Curtis v. Gaines Motor Lines, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: HUNTER, Robert C.
• Decision Date: 16 August 2011
• Docket Number: NO. COA11-51,COA11-51
• Citation: Curtis v. Gaines Motor Lines, Inc., NO. COA11-51 (N.C. App. Aug 16, 2011)
• Parties: MICHAEL E. CURTIS, Employee, Plaintiff, v. GAINES MOTOR LINES, INC., Employer/Defendant, and THE HARTFORD, Carrier/Defendant.

MICHAEL E. CURTIS, Employee, Plaintiff, v. GAINES MOTOR LINES, INC., Employer/Defendant and THE HARTFORD, Carrier/Defendant.

NO. COA11-51

NORTH CAROLINA COURT OF APPEALS

Filed: August 16 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

North Carolina

Industrial Commission

I.C. No. 792425

Appeal by defendants from opinion and award entered 6 August 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 May 2011.

Richard B. Harper for plaintiff-appellee.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Neil P. Andrews and M. Duane Jones, for defendants-appellants.

HUNTER, Robert C., Judge.

Gaines Motor Lines, Inc. and The Harford ("defendants") appeal from the North Carolina Industrial Commission's opinion and award in which the Commission awarded Michael E. Curtis("plaintiff") continuing temporary total disability compensation and payment of medical expenses. After careful review, we affirm.

Background

Plaintiff began work as a long-distance truck driver for defendant-employer in July 2005. Plaintiff earned $.36 per mile for an average weekly wage of $1,009.80. On 5 September 2007, plaintiff slipped on diesel fuel and fell backwards, suffering a compensable injury by accident to his back. On 18 September 2007, defendants accepted the compensability of plaintiff's work injury via a Form 63. Plaintiff was initially treated by his family physician, Dr. Don Hoover, who referred him to Dr. Jeffrey Knapp, an orthopedic surgeon. Dr. Knapp examined plaintiff on 10 October 2007 and recommended an MRI which revealed an annular bulge and tear at the L5-S1 level of the spine. Plaintiff received epidural steroid injections and began physical therapy. Plaintiff was unable to work from 7 September 2007 through 12 November 2007.

On 13 November 2007, plaintiff began a trial return to work on light duty. In January 2008, plaintiff returned to full duty as a long-distance truck driver; however, he experienced a recurrence of his back pain, and, on 22 February 2008, Dr.Hoover and Dr. Knapp took him out of work. On 29 April 2008, plaintiff filed a Form 28U giving notice that his trial return to work was unsuccessful.

In March 2008, plaintiff reported that his back pain was worse, and Dr. Knapp recommended a discography, which showed pain generating from both the L4-L5 and L5-S1 levels of the spine. In May 2008 Dr. Knapp recommended surgery for fusion at L4-L5 and L5-S1. Plaintiff was reluctant to undergo surgery, and, in September 2008, he received a second opinion from Dr. Theodore Belanger, an orthopedist. Dr. Belanger advised plaintiff not to undergo surgery and recommended a cognitive behavioral and functional restoration program. On 7 October 2008, Dr. Knapp released plaintiff to return to work in a light-duty capacity with work restrictions, including no repetitive bending, no lifting more than five pounds, and alternating between sitting and standing as needed.

On 21 November 2008, defendants authorized plaintiff's participation in the functional restoration program. Plaintiff underwent the functional restoration program with Dr. Thomas Kern Carlton from 11 December 2008 to 21 January 2009. The program also involved psychological counseling with Dr. John Riley.

On 21 January 2009, Dr. Carlton released plaintiff at maximum medical improvement for his back injury and assigned a 10% permanent partial disability rating to his back. Dr. Carlton issued permanent work restrictions for plaintiff of light to medium duty, frequent position changes during the day, and no lifting over 40 pounds. Dr. Knapp also released plaintiff with a 3% permanent partial disability rating to his back, and assigned permanent work restrictions of no repetitive bending and no lifting over 25 pounds. Dr. Knapp testified that plaintiff's condition might worsen with age and that he might need fusion surgery in the future.

On 13 October 2008, Ricky Tompkins, safety director and human resources officer for defendant-employer, offered plaintiff a guard shack position at defendant-employer's terminal in Hickory. The guard shack position required monitoring drivers as they entered and left the premises. It did not require any lifting and allowed sitting and standing as needed. The guard shack position paid $11.22 per hour for 40 hours of work per week, or between $440.00 and $450.00 per week. Mr. Tompkins testified that the guard shack position was available to the general public, but had never been advertised and had always been filled internally. Plaintiff refused theguard shack position, and, on 31 October 2008, defendant-employer terminated plaintiff's employment because he failed to report to work for the guard shack position.

At the beginning of February 2009, after completing the functional restoration program, plaintiff called Roger Short, the terminal manager and plaintiff's former supervisor, to discuss returning to work, specifically asking about the guard shack position. Mr. Short told plaintiff that the guard shack position was not a real job, and, if it were a real job, he would have offered it to one of his drivers who had been laid off. On 6 March 2009 defendants' counsel again offered plaintiff the guard shack position. Plaintiff again refused the guard shack position based on his belief that it was not a real job, as indicated to him by Mr. Short, and on advice of his counsel that it was not suitable employment.

On 17 November 2008, defendants filed a Form 24 application, seeking to terminate plaintiff's benefits due to his refusal of the guard shack position. The application was denied on 29 January 2009 by Special Deputy Commissioner Christopher B. Rawls. Defendants appealed, and, on 8 January 2010, Deputy Commissioner J. Brad Donovan issued an opinion and award concluding that plaintiff reached maximum medicalimprovement on 21 January 2009, that the guard shack position was suitable, and that plaintiff unjustifiably refused suitable employment as of 1 February 2009. Plaintiff appealed to the Full Commission.

The Commission's opinion and award issued on 6 August 2010, found as fact that plaintiff's refusal of the guard shack position on 13 October 2008 was justifiable. The Commission found that plaintiff was at maximum medical improvement as of 21 January 2009, that plaintiff had a 10% permanent partial disability rating to his back, and that he required further medical treatment and psychological therapy. The Commission found that plaintiff's refusal of the guard shack position when it was offered to him again on 6 March 2009 was justifiable because it was not a real job and was not suitable employment for him.

In its conclusions of law, the Commission concluded that plaintiff was incapable of any work from 5 September 2007 to 13 November 2007, when he began a trial return to work. On 22 February 2008 plaintiff again became medically disabled from any employment. Although plaintiff was released to work in a light-duty capacity on 7 October 2008, his pain level "was severe enough to justify pain management treatment in an intensivefunctional restoration program and [he] was awaiting authorization for such treatment. Therefore, any attempt to work during that period would have been futile." Plaintiff was again unable to work while enrolled in the functional restoration program. After plaintiff reached maximum medical improvement on 21 January 2009, he was capable of some work, but he was incapable of returning to his pre-injury employment. Plaintiff made reasonable but unsuccessful attempts to find suitable employment on his own, and his refusal of the unsuitable guard shack position was justifiable. Therefore, plaintiff proved continuing disability from 21 January 2009 and continuing. As a result, the Commission's opinion and award ordered defendants to pay temporary total disability compensation to plaintiff at the rate of $673.23 per week from 5 September 2007 and continuing until further order of the Commission.

Plaintiff's Motion to Dismiss Case as Interlocutory

As a preliminary matter, plaintiff asserts that defendants' appeal is interlocutory, does not affect a substantial right, and should, therefore, be dismissed. We disagree.

"A decision of the Industrial Commission that determines one but not all of the issues in a case is interlocutory, as isa decision which on its face contemplates further proceedings or 'does not fully dispose of the pending stage of the litigation.'" Berardi v. Craven Cty. Schools, _____ N.C. App. _____ , __ , 688 S.E.2d 115, 116 (quoting Cash v. Lincare Holdings, 181 N.C. App. 259, 263, 639 S.E.2d 9, 13 (2007)), disc. review denied, 364 N.C. 239, 698 S.E.2d 74 (2010). For example, "[a]n opinion and award that settles preliminary questions of compensability but leaves unresolved the amount of compensation to which the plaintiff is entitled and expressly reserves final disposition of the matter pending receipt of further evidence is interlocutory." Riggins v. Elkay Southern Corp., 132 N.C. App. 232, 233, 510 S.E.2d 674, 675 (1999) (emphasis added).

This Court has recently addressed this matter and reasserted that a workers' compensation case is interlocutory where issues remain for further resolution. See, e.g., Evans v. Hendrick Automotive Group, __ N.C. App. __ , _____ , 708 S.E.2d 99, 103 (2011) (holding that appeal was interlocutory where the Commission contemplated entry of a future order "to resolve the amount of plaintiff's wage loss benefits"); Thomas v. Contract Core Drilling & Sawing, _____ N.C. App. ___ , _____ , 703 S.E.2d 862, 865 (2011) (holding that appeal was interlocutory where "the Commission reserved both the issue of the extent of[plaintiff's] temporary disability, if any, after [a certain date] and the issue of his permanent partial disability...