Franklin v. Broyhill Furniture Industries

• Decision Date: 16 July 1996
• Docket Number: No. COA95-1031,COA95-1031
• Citation: 472 S.E.2d 382,123 N.C.App. 200
• Court: North Carolina Court of Appeals
• Parties: Peggy S. FRANKLIN v. BROYHILL FURNITURE INDUSTRIES (Self-Insured) and Trigon Administrators (Administering Agent).

Page 382

472 S.E.2d 382

123 N.C.App. 200

Peggy S. FRANKLIN v. BROYHILL FURNITURE INDUSTRIES (Self-Insured) and Trigon Administrators (Administering Agent).

No. COA95-1031.

Court of Appeals of North Carolina.

July 16, 1996.

Daniel & LeCroy, P.A. by M. Alan LeCroy, Morganton, for plaintiff-appellant/appellee.

Hedrick, Eatman, Gardner & Kincheloe by Linda Hinson Ambrose and Erica B. Lewis, Charlotte, for defendant-appellee/appellant.

GREENE, Judge.

Peggy S. Franklin (plaintiff) and Broyhill Furniture Industries (defendant) appeal from the 17 May 1995 Opinion and Award of the North Carolina Industrial Commission (Commission) which, pursuant to the Worker's Compensation Act, awarded plaintiff temporary total disability compensation, partial permanent disability, pursuant to N.C. Gen.Stat. § 97-31, future medical expenses, and a reasonable attorney fee and directed defendant to pay costs.

Plaintiff, "a 40 year old, tenth grade educated female" worked for defendant from September 1989, until 19 February 1992, as a rough end worker. On 15 January 1992, while working for defendant, plaintiff sustained a compensable injury by accident, "when she tripped and fell, landing on both knees." On 28 February 1992, the parties executed a Form 21 Agreement for Compensation for Disability, which stipulated that plaintiff suffered an "injury by accident arising out of and in the course of [her] employment" to her left knee and further agreed that plaintiff sustained a disability from the injury and provided weekly compensation "beginning February 26, 1992 and continuing for [a period] to be determined." Defendant paid temporary total disability to plaintiff pursuant to this Form 21 until the entry of the Deputy Commissioner's Opinion and Award in this case.

Plaintiff was treated "for complaints of left knee pain" by Dr. Stephen G. Fleming (Fleming), and on 26 March 1992 Fleming "excised a loose body and fibrotic fat pad from plaintiff's left knee" and ordered physical therapy. Plaintiff saw three doctors after Fleming's treatment, one of whom was to administer work hardening therapy and one, Dr. Walton Curl (Curl), whose treatment the Commission found was "not authorized by the defendant and was not authorized by the Industrial Commission except for a one time visit."

The Commission made the undisputed finding that all of plaintiff's physicians "have opined that plaintiff is capable of performing some range of sedentary work with restrictions, which include a permanent four (4) hour per day restriction, recommended self-pacing, no bending, no stooping, no climbing, and no kneeling." The Commission also found that plaintiff "reached maximum medical improvement on January 4, 1993" ¹ and that "she retains a 20% permanent partial impairment to her left leg." Because, the Commission found that plaintiff had reported no problems with her right leg, the Commission did not accept Curl's impairment rating of 20% as to plaintiff's right leg.

Based upon its findings of fact, the Commission made the following relevant Conclusions of Law:

1. As a result of the compensable injury, the plaintiff retains a 20% permanent partial disability to her left leg, for which she is entitled to 40 weeks of compensation should she choose to elect to receive this benefit. N.C.G.S. 97-31(15).

....

4. The plaintiff has failed to prove by competent or convincing evidence that she is unable to work or obtain any employment. All of the medical evidence establishes that plaintiff has exaggerated complaints has refused treatment, and has refused to cooperate with functional evaluations even after being ordered to comply on two occasions by Chief Deputy Commissioner Sellers.

5. Dr. Curl's treatment did not provide relief, effect a cure, or lessen the period of disability as plaintiff admits that she received no relief, cure, or lessening of disability from his treatment. Furthermore, the plaintiff did not request authorization to seek treatment by Dr. Curl from either the defendant or the Commission. Therefore, the defendant is not liable for this unauthorized treatment beyond the first visit.

6. The plaintiff is entitled to temporary total disability compensation until the end of the healing period [citation omitted]....

As it appears that plaintiff remained incapable as of the time of the initial decision of earning wages, plaintiff is entitled to continued temporary total disability compensation from May 25, 1993 and continuing until such time as she returns to work within her restrictions or until further order by the Commission....

Accordingly, the Commission awarded plaintiff temporary total disability compensation from 25 May 1993 until she returns to work within her restrictions, future medical expenses incurred by plaintiff as a result of these injuries, reasonable attorney fees, and ordered that defendant pay the costs of the hearing.

On 8 June 1995, defendant made a motion for reconsideration, requesting that the Commission reconsider its award of temporary total disability, because plaintiff did, in fact, return to work when she began her job at Domino's. The Commission denied defendants' motion on 13 June 1995. Plaintiff appealed from the Commission's 17 May 1995 order and the defendant cross-appealed from that same order.

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The issues are whether (I) the Commission's findings are supported by competent evidence; (II) the Commission's conclusion granting plaintiff temporary total disability and denying plaintiff permanent disability are supported by the findings; and (III) the Commission erred in not awarding plaintiff the costs of her treatment by Curl.

I

The Commission's findings are binding on appeal if they are supported by competent evidence. ² Andrews v. Fulcher Tire Sales and Serv., 120 N.C.App. 602, 605, 463 S.E.2d 425, 427 (1995). Moreover, the Commission may reject all or any part of any witness' testimony. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683-84 (1982). Both parties raise the issue of whether the findings are supported by the evidence. We have reviewed the evidence in this case, and determine that there is competent evidence to support the findings.

II

Temporary total disability is payable only "during the healing period." N.C.G.S. § 97-31 (1991); Carpenter v. Industrial Piping Co., 73 N.C.App. 309, 311, 326 S.E.2d 328, 329-30 (1985). The "healing period" ends when an employee reaches "maximum medical improvement." Id. Only when an employee has reached "maximum medical improvement" does the question of her entitlement to permanent disability arise.

Once an employee has reached her "maximum medical improvement," she may establish permanent incapacity pursuant to either section 97-29, -30, or -31. An employee may recover for an injury to a specifically listed body part, pursuant to N.C. Gen.Stat. § 97-31, or for any inability to earn wages, resulting from injury to that body part, pursuant to N.C. Gen.Stat. § 97-29 or 30. The employee, however, may not recover pursuant to section 97-31 and section 97-30 (or 97-29) simultaneously, but has the option of choosing the more favorable recovery. Gupton v. Builders Transp., 320 N.C. 38, 43, 357 S.E.2d 674, 678 (1987). When incapacity arises from both a scheduled, section 97-31 injury and a non-scheduled injury, recovery is permitted for both the scheduled injury, pursuant to section 97-31, and any incapacity from the non-scheduled injury, pursuant to section 97-29 or section 97-30. Gray v. Carolina Freight Carriers, 105 N.C.App. 480, 485, 414 S.E.2d 102, 105 (1992).

An employee seeking disability compensation must establish the existence and extent of her disability. Radica v. Carolina Mills, 113 N.C.App. 440, 447, 439 S.E.2d 185, 190 (1994); Tyndall v. Walter Kidde Co., 102 N.C.App. 726, 731, 403 S.E.2d 548, 550, disc. rev. denied, 329 N.C. 505, 407 S.E.2d 553 (1991). Disability refers to decreased earning capacity. Tyndall, 102 N.C.App. at 730, 403 S.E.2d at 550. To receive compensation for a permanent total disability, an employee must show that she is "totally unable to 'earn wages which ... [she] was receiving at the time [of injury] in the same or any other employment.' " Burwell v. Winn-Dixie Raleigh, 114 N.C.App. 69, 73, 441 S.E.2d 145, 149 (1994) (quoting Tyndall, 102 N.C.App. at 730, 403 S.E.2d at 550). A reduction in wages resulting from a compensable injury will only support permanent partial disability and not a total disability. See Tyndall, 102 N.C.App. at 731, 403 S.E.2d at 551. Once the Commission approves a Form 21 Agreement between the parties, the employee receives the benefit of a presumption that she is totally disabled. ³ See Stone v. G & G Builders, 121 N.C.App. 671, 674, 468 S.E.2d 510, 512 (1996). Thus, the approval of the Form 21 by the Commission relieves the employee of her initial burden.

Upon a showing of disability by the employee, including the approval of an executed Form 21, the employer may produce evidence that suitable jobs are available for the employee and " 'that the [employee] is capable of getting one,' " taking the employee's physical and vocational limitations into account. Burwell, 114 N.C.App. at 73, 441 S.E.2d at 149 (quoting Kennedy v. Duke Univ. Medical Ctr., 101 N.C.App. 24, 33, 398 S.E.2d 677, 682 (1990)). A job is "suitable" if the employee is capable of performing the job, given her "age, education, physical limitations, vocational skills, and experience." Id. An employee is "capable of getting" a job if there is " 'a reasonable likelihood ... that [she] would be hired if [she] diligently sought the job.' " Id. at 73-74, 441 S.E.2d at 149 (quoting Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir.1984)).

Once the employer produces evidence that disputes the employee's disability, the employee may "produc[e] evidence that either contests the availability of other jobs or [her] suitability for those jobs, or establishes that [she] has unsuccessfully...