Freeman v. Rothrock

• Decision Date: 02 February 2010
• Docket Number: No. COA07-269-2.,COA07-269-2.
• Citation: 689 S.E.2d 569
• Court: North Carolina Court of Appeals
• Parties: Randy B. FREEMAN, Employee, Plaintiff, v. J.L. ROTHROCK, Employer, and North American Specialty, Carrier, Aequicap Claims Services, Inc. (Formerly Claims Control, Inc.) Administrator, Defendants-Appellants.

689 S.E.2d 569

Randy B. FREEMAN, Employee, Plaintiff, v. J.L. ROTHROCK, Employer, and North American Specialty, Carrier Aequicap Claims Services, Inc. (Formerly Claims Control, Inc.) Administrator, Defendants-Appellants.

No. COA07-269-2.

Court of Appeals of North Carolina.

February 2, 2010.

On remand to the Court of Appeals from an order of the Supreme Court of North Carolina reversing and remanding the decision in Freeman v. J.L. Rothrock, 189 N.C.App. 31, 657 S.E.2d 389 (2008), for consideration of the remaining assignments of error. Appeal by defendants from Opinion and Award of the Full Commission of the North Carolina Industrial Commission entered 9 November 2006. Originally heard in the Court of Appeals 18 September 2007.

Jay Gervasi, P.A., Greensboro, by Jay A. Gervasi, Jr., for plaintiff-appellee.

Brooks, Stevens & Pope, P.A., Cary, by Joy H. Brewer, for defendants-appellants.

JACKSON, Judge.

This case is heard upon remand from our Supreme Court, see Estate of Freeman v. J.L. Rothrock, Inc., 363 N.C. 249, 676 S.E.2d 46 (2009), reversing the prior opinion of this Court for the reasons set forth in the dissenting opinion. See Freeman v. J.L. Rothrock, 189 N.C.App. 31, 48-49, 657 S.E.2d 389, 399-400 (2008) (Wynn, J., dissenting) (rejecting the adoption of the Larson test as a bar to recovery of worker's compensation benefits when an employee made misrepresentations at the time of hiring about his physical condition) (citations omitted) ("Freeman I"). Pursuant to our Supreme Court's opinion, we address the remaining assignments of error not discussed in Freeman I. Estate of Freeman, 363 N.C. at 249, 676 S.E.2d at 46. For the reasons set forth below, we affirm.

A more complete presentation of the facts appears in Freeman I. See Freeman I, 189 N.C.App. at 33-35, 657 S.E.2d at 390-92. Following, however, is a brief recitation of the material history.

In June 2000, Randy B. Freeman ("plaintiff") obtained employment as a truck driver with J.L. Rothrock, Inc. ("defendant"). On 11 March 2002, plaintiff alleged an injury to his neck, right shoulder, and back that occurred as a result of cranking a dolly on a trailer. On 12 March 2002, plaintiff began receiving ongoing total disability payments of $431.32 per week. On 23 December 2002, defendant filed an application to terminate payment of worker's compensation benefits to plaintiff, which was denied on 3 February 2003.

On 5 March 2003, defendant filed a motion to reconsider the denial, alleging that discovery had produced evidence of plaintiff's misrepresentations made during the initial hiring process that would require the termination of defendant's compensation to plaintiff. On 22 April 2003, Special Deputy Commissioner Chrystina S. Franklin entered an order noting an inability to reach a decision upon defendant's motion and referring the matter for a formal hearing.

On 25 July 2003, the matter came on for hearing before Deputy Commissioner Bradley W. Houser ("Deputy Commissioner Houser"). By opinion and award entered 17 June 2005, Deputy Commissioner Houser concluded in relevant part that (1) North Carolina law did not provide a defense to worker's compensation claims on the basis of an employee's providing false information in obtaining employment; (2) plaintiff produced sufficient evidence to establish ongoing disability and that he is unable to obtain gainful employment without vocational rehabilitation; and (3) clincher settlement agreements are not equivalent to accelerated payments of compensation for total disability, and therefore, defendant is not entitled to a credit for the compensation already paid to plaintiff. Upon these conclusions, Deputy Commissioner Houser awarded plaintiff ongoing total disability compensation at the rate of $431.32 per week and ordered defendant to provide for all medical and vocational rehabilitation expenses incurred as a result of plaintiff's compensable accident on 11 March 2002. On 9 November 2006, the Full Commission affirmed Deputy Commissioner Houser's opinion and award over Chairman Buck Lattimore's dissent.

Upon remand from our Supreme Court from our prior reversal of the Full Commission's opinion and award, we address defendant's remaining assignments of error. Estate of Freeman, 363 N.C. at 249, 676 S.E.2d at 46.

Initially, we address defendant's argument that the Full Commission erred in denying the release of plaintiff's prior files with the Industrial Commission. Defendant argues that these records were necessary to determine the full extent of the misrepresentations plaintiff made in obtaining employment with defendant. In view of our Supreme Court's rejection of the Larson test for the reasons set forth in the dissenting opinion of Freeman I, we hold that this assignment of error is moot, and we need not address it. See id.; Freeman I, 189 N.C.App. at 48-49, 657 S.E.2d at 399-400.

Next, defendant argues that the Full Commission erred in concluding that plaintiff is entitled to ongoing total disability compensation. We disagree.

Pursuant to our well-settled standard of review of opinions and awards of the Full Commission, we inquire "(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact." Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (citation omitted). The "Commission is the sole judge of the credibility of the witnesses and the [evidentiary] weight to be given their testimony[;]" however, "findings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them." Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (internal citations and quotation marks omitted). The Full Commission may refuse to believe certain evidence and may accept or reject the testimony of any witness. Pitman v. Feldspar Corp., 87 N.C.App. 208, 216, 360 S.E.2d 696, 700 (1987) (citing Harrell v. Stevens & Co., 45 N.C.App. 197, 205, 262 S.E.2d 830, 835, disc. rev. denied, 300 N.C. 196, 269 S.E.2d 623 (1980)), disc. rev. denied, 321 N.C. 474, 364 S.E.2d 924 (1988). Furthermore, "[t]he Commission's findings of fact are conclusive on appeal if supported by competent evidence. This is so even if there is evidence which would support a finding to the contrary." Sanderson v. Northeast Construction Co., 77 N.C.App. 117, 121, 334 S.E.2d 392, 394 (1985) (citing Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981)). We review the Commission's conclusions of law de novo. Griggs v. Eastern Omni Constructors, 158 N.C.App. 480, 483, 581 S.E.2d 138, 141 (2003).

Pursuant to the North Carolina Workers' Compensation Act, "the term `disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen.Stat. § 97-2(9) (2005). "The employee seeking compensation under the Act bears `the burden of proving the existence of [her] disability and its extent.'" Clark, 360 N.C. at 43, 619 S.E.2d at 493 (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)).

The employee bears the burden "to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment." Russell v. Lowes Prod. Distrib., 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993) (citing Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982)).

The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.

Id. (internal citations omitted).

Once an employee establishes disability, the burden shifts to the employer "to show not only that suitable jobs are available, but also that the [employee] is capable of getting one, taking into account both physical and vocational limitations." Kennedy v. Duke Univ. Med. Ctr., 101 N.C.App. 24, 33, 398 S.E.2d 677, 682 (1990). An employer may rebut the presumption of disability by providing evidence that

(1) suitable jobs are available for the employee; (2) that the employee is capable of getting said job taking into account the employee's physical and vocational limitations; (3) and that the job would enable employee to earn some wages.

Franklin v. Broyhill Furniture Indus., 123 N.C.App. 200, 209, 472 S.E.2d 382, 388 (Walker, J., concurring), cert. denied, 344 N.C. 629, 477 S.E.2d 39 (1996), overruled on other grounds, Saums v. Raleigh Comm. Hosp., 346 N.C. 760, 487 S.E.2d 746 (1997).

In the case sub judice, defendant challenges the following findings of fact made by the Full Commission 14. The Full Commission finds that, as of the time of the hearing before the Deputy Commissioner, plaintiff was in need of retraining in employment that he has not done before, because he is unable to do anything he has previously done for a living and will be unable to work without first getting that training. Accordingly, and based upon the totality of the credible medical and lay evidence of record, the Full Commission finds that plaintiff is currently unable to return to work and will require training and vocational assistance before he will be able to perform other work. It follows that a job search now would be futile.

15. Despite the likely futility of a job search, plaintiff has been searching for jobs...