Cunningham v. Goodyear Tire & Rubber Co.

• Decision Date: 06 May 2022
• Docket Number: 465A20
• Citation: 871 S.E.2d 724
• Parties: Doris G. CUNNINGHAM, Employee, v. The GOODYEAR TIRE & RUBBER COMPANY, Employer, Liberty Mutual Insurance Company, Carrier.
• Court: North Carolina Supreme Court

871 S.E.2d 724

Doris G. CUNNINGHAM, Employee,

v.The GOODYEAR TIRE & RUBBER COMPANY, Employer, Liberty Mutual Insurance Company, Carrier.

No. 465A20

Supreme Court of North Carolina.

Filed May 6, 2022

Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, Greensboro, and David P. Stewart ; and Jay Gervasi, Greensboro, for plaintiff.

Young Moore & Henderson, PA, Raleigh, by Angela Farag Craddock, for defendant-appellant.

The Sumwalt Group, Charlotte, by Vernon Sumwalt ; and Lennon, Camak & Bertics, PLLC, Raleigh, by Michael Bertics, for North Carolina Advocates for Justices, amicus curiae.

HUDSON, Justice.

¶ 1 The Goodyear Tire & Rubber Company (defendant-employer) and Liberty Mutual Insurance Company (defendant-carrier) (together, defendants) appeal as of right on the basis of a dissenting opinion from a decision of the Court of Appeals, in which the majority held the North Carolina Industrial Commission erred in denying Doris G. Cunningham (plaintiff) her claim for disability compensation from defendants. On appeal, defendants argue the Court of Appeals erred in holding plaintiff's claim was not time-barred under N.C.G.S. § 97-24 thereby reversing the Full Commission's dismissal of plaintiff's claim based on an alleged 27 May 2014 injury, and by remanding the case to the Commission to determine whether plaintiff suffered a compensable injury under the Workers’ Compensation Act. We affirm the decision of the Court of Appeals reversing the opinion and award of the Commission and remand for further remand to the Commission for consideration of the merits of plaintiff's 27 May 2014 claim.

I. Factual and Procedural Background¹

¶ 2 Plaintiff, now 59 years old, began working for defendant-employer, the Goodyear Rubber and Tire Company, in 1999, was laid off and rehired in 2001, and worked continuously thereafter for at least 17 years. Since 2014, when the relevant events began, plaintiff has been working as a press operator. This physically demanding job requires plaintiff to walk at least eight miles a day, pick up tires, place them in a loader pan, and clear out jams when the tires backed up. Due to her height, she frequently has to reach, climb, and lift. She is personally responsible for 15 machines that "cook" the tires, and when other workers are on break, she handles twice that amount. She picks up "anywhere from one thousand to fourteen hundred tires" during her typical 12-hour shift. Her production quota, or "expectancy" from defendant-employer, is the processing of fourteen-hundred tires per shift.

¶ 3 Plaintiff picks the tires up from a flatbed truck and places them into a loading pan, in order to scan them. When she lifts the tire off the flat bed, she pulls it towards her, stands it up, and flips it over to turn the barcode up, which she scans along with the paperwork to ensure the tire is the correct one for the mold. At that point a machine picks up the tires from the loading pan where they are molded and pressed and then returned to a conveyor belt. The tires sometimes get stuck in this process and, on a bad day, ten tires an hour might get stuck. Plaintiff had injured her back twice while lifting tires in 2011; she filed claims with the Commission and both claims were settled in 2012.

¶ 4 On 27 May 2014 during a twelve-hour shift, plaintiff attempted to pick a tire up off the truck, but the tire was stuck, causing plaintiff to hurt her back. She immediately notified her supervisor that she was hurt. The next morning when she woke up, she could not move. She filed an internal report titled a Form F159, or "Associate Report of Incident and Associate Statement of Work Related Accident." Plaintiff was placed on light duty for six weeks, and she returned to full-time work on 8 July 2014 without missing any work.

¶ 5 When defendant-employer received plaintiff's F159, it sent the information to defendant-carrier, Liberty Mutual, plaintiff-employer's insurance carrier for workers’ compensation. Defendant-carrier used the information received from defendant-employer to complete a Form 19, Employer's Report of Employee's Injury, and filed it with the Commission. Defendant-carrier mailed a packet including the completed Form 19 and a blank Form 18, "Notice of Accident to Employer and Claim of Employee," to plaintiff. However, plaintiff testified that she never received these forms and that she believed her workers’ compensation claim was already accepted because she had been placed on light duty, unlike for her 2011 injuries. She testified she was prepared to fill out a Form 18 in 2014 but was told by her union representative that "they" had already received her form.

¶ 6 After her 27 May 2014 injury, plaintiff received medical treatment through an onsite medical facility (the dispensary), as well as from Frank Murray, a physical therapist who contracts with defendant-employer to provide physical therapy treatment to defendant-employer's employees. Mr. Murray had treated Ms. Cunningham once on 10 October 2011 following her 18 September 2011 back injury and determined that "she had low-back pain, but it was beginning to resolve. She had no real limitations in range of motion or strength." Mr. Murray did not treat plaintiff again for back pain until after the 27 May 2014 injury on 3 June 2014.

¶ 7 On 3 June 2014, plaintiff reported to Mr. Murray that her pain was at a level of ten out of ten. By 9 June 2014, plaintiff's pain was "five out of ten at worse [sic], to two out of ten at best." Mr. Murray testified he treated plaintiff on 10, 13, 18, 23, and 24 June 2014, and by the last visit, plaintiff's "[r]ange of motion was full and painless."

¶ 8 On 23 February 2015, however, plaintiff returned to Mr. Murray, reporting that her back pain had never completely subsided since the 2014 injury, and that she felt a recent increase in pain, describing it as "eight out of ten down to four out of ten." Mr. Murray diagnosed plaintiff with lower back pain. On 3 March 2015, Mr. Murray saw plaintiff again and she reported her pain as between "three out of ten to five out of ten."

¶ 9 Plaintiff did not return to the dispensary and Mr. Murray again until 25 April 2017. She testified that the reason she did not return until 2017 was that she began experiencing foot pain in addition to back pain and was referred to a podiatrist, Dr. Mark Thomas Eaton, in March 2016. Dr. Eaton initially diagnosed her with plantar fasciitis

. However, following extensive treatment for plantar fasciitis, Dr. Eaton informed plaintiff that she had been misdiagnosed and that her problems did not come from her feet, but were caused by her back problems stemming from her 27 May 2014 injury.

¶ 10 Plaintiff returned to Mr. Murray for treatment for her back pain on 25 April 2017. Mr. Murray testified that "[plaintiff] didn't indicate that there was anything new or that something happened [in 2017]. Her response was, no, nothing happened. It—this never has completely gone away." Mr. Murray testified there was "no precipitating episode" of her back pain in 2017 and that her pain reflected "episodic increases and decreases from the first time that [he] saw her."

¶ 11 On 28 April 2017, plaintiff visited Kelly Avants, the nurse case manager, at the dispensary. Ms. Avants told plaintiff that defendant-carrier closed her file because "she reached the statute of limitations in regard to her back claims" and they would not cover further treatment. On 8 May 2017, plaintiff reported that she had been injured again on 25 April 2017 from a stuck tire and she felt pain in her lower back.

¶ 12 David Jones, a neurosurgeon who had previously seen plaintiff for her 2011 injury, evaluated plaintiff on 19 June 2017 and 18 July 2019, following an MRI. Based on the MRI, Dr. Jones concluded that plaintiff had degeneration in the last two discs of her spine, that one of the discs had a "small far lateral disc bulge," that the second "had a more focal right-sided disc protrusion," and that both could irritate nerve roots. Dr. Jones testified it was "more than likely" that a 2017 injury exacerbated plaintiff's 27 May 2014 injury, and that "once you hurt your back the first time you are more likely to injure your back again," but there was no way to determine to what extent each injury caused her current condition.

¶ 13 On 19 May 2017, plaintiff filed separate Form 18s with the Commission for the alleged incidents on 27 May 2014 and on 25 April 2017, respectively. Defendants filed a Form 61 denying the 27 May 2014 claim and moving to dismiss the claim, arguing that the action was time-barred because it was not filed within two years of the date of the alleged injury. The matters were consolidated and on 13 December 2018, the Deputy Commissioner entered an opinion and award denying the 25 April 2017 claim and dismissing the 27 May 2014 claim for lack of jurisdiction. Regarding the 27 May 2014 injury, the Deputy Commissioner found that plaintiff did not file a claim for compensation until 29 May 2017 and that plaintiff last received medical treatment related to that injury on 3 March 2015. The Deputy Commissioner concluded plaintiff failed to file her claim within two years of either the date of the incident or the last payment of medical compensation and the claim was therefore time-barred under N.C.G.S. § 97-24(a). Regarding the 25 April 2017 claim, the Deputy Commissioner concluded the evidence in the record did not support a compensable injury.

¶ 14 Plaintiff appealed to the Full Commission, specifically arguing that she last received payment for her 27 May 2014 injury on 25 April 2017 and, therefore, had filed her claim within two years of the last payment of medical compensation. On 30 July 2019, the Full Commission entered an opinion and award dismissing the 27 May 2014 claim for lack of jurisdiction and denying the 25 April 2017 claim. Plaintiff appealed to the Court of Appeals.

¶ 15 In a divided opinion authored by Judge Brook, the Court of Appeals reversed the opinion and award entered...