Freeman v. Rothrock, COA07-269.

CourtCourt of Appeal of North Carolina (US)
Citation657 S.E.2d 389
Docket NumberNo. COA07-269.,COA07-269.
PartiesRandy 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.
Decision Date04 March 2008
657 S.E.2d 389
Randy B. FREEMAN, Employee, Plaintiff,
J.L. ROTHROCK, Employer, and
North American Specialty, Carrier,
Aequicap Claims Services, Inc. (Formerly Claims Control, Inc.) Administrator, Defendants-Appellants.
No. COA07-269.
Court of Appeals of North Carolina.
March 4, 2008.

[657 S.E.2d 390]

Appeal by defendants from Opinion and Award of the Full Commission of the North Carolina Industrial Commission entered 9 November 2006. Heard in the Court of Appeals 18 September 2007.

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

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


J.L. Rothrock ("defendant-employer"), its insurance carrier, North American Specialty, and its insurance administrator, Aequicap Claims Services, Inc. (collectively, "defendants") appeal from an order of the Full Commission of the North Carolina Industrial Commission ("Full Commission") awarding workers' compensation benefits to Randy B. Freeman ("plaintiff"). For the reasons stated below, we reverse.

Plaintiff has a history of lower back problems, having experienced back injuries in

657 S.E.2d 391

1992 and 1996 and having filed workers' compensation claims with respect to both injuries. As a result of the lower back injury in 1996, plaintiff was assigned a ten percent permanent partial impairment rating to his back and was restricted to performing light-to medium-duty work, including: (1) lifting no more than thirty-five pounds occasionally; (2) lifting no more than fifteen pounds frequently; (3) lifting no more than seven pounds continuously; and (4) limited sitting, bending, driving, and climbing. Plaintiff s work restriction was based upon a general estimate of a truck driver job as opposed to a specific job description. Plaintiff acknowledged in his testimony that, as a result of these restrictions, he was (1) incapable of continuing to drive a truck for B.B. Walker, his employer at the time, and (2) advised to seek another line of employment.

In early 2000, plaintiff applied for employment with defendant-employer, performing substantially the same work "[b]ecause it-quite a time had passed there and it was-it was good. . . . I could do basically pretty much what I wanted to do, up to a certain extent." At the time he applied for the position, plaintiff was aware that he remained restricted to light- to medium-duty work, notwithstanding the fact that the job description form prepared by defendant-employer expressly stated: "This is a strenuous position which requires the ability to sit, stand, bend, stoop, reach, climb, push, pull, and live under adverse conditions. . . ."

On 9 February 2000, plaintiff completed, as part of defendant-employer's application process, a medical history questionnaire. On the questionnaire, plaintiff denied (1) suffering from any prior health conditions, including backache or a "herniated intervertebral disk (slipped disk)"; (2) the existence of "any health-related reason" that may prevent plaintiff from performing the job for which he was applying; (3) having "any physical defects" or "work limitations" that would have prevented him "from performing certain kinds of work"; (4) having "any disabilities or impairments" that may have affected his performance in the position for which he was applying; and (5) having ever filed a workers' compensation claim. Plaintiff later testified that he made these false representations on the questionnaire because he was concerned that he would not be hired if he told the truth. Specifically, plaintiff stated, "The point was I'd go fill out an application. At that time, they'd ask if you've ever been injured, or you'd ever been hurt on a job, or if you've ever drawn workers' comp and I'd put `yes,' and nobody ever hired me."

Also on 9 February 2000, plaintiff presented to Dr. Robert Williford ("Dr. Williford") for a Department of Transportation physical examination-a prerequisite for hiring. Dr. Williford testified that as part of such an examination, he interviews the patient and asks for a medical history, in part because there are "conditions that cannot be discovered based purely on a physical exam." At the top of his examination forms is a section entitled "Health History," in which various injuries and illnesses are listed. Next to each injury or illness are two boxes, one for "Yes" and one for "No." Dr. Williford testified that none of the boxes were checked on the examination form for plaintiff's 9 February 2000 examination that Dr. Williford retained in his files.1 Dr. Williford stated that he always asks if the patient has had any serious injuries and explained that if plaintiff had informed him of a prior injury, he probably would have checked the appropriate box on the examination form.

In June 2000, after plaintiff executed the job description form describing the position as "strenuous," defendant-employe hired plaintiff. Less than two years later, on 11 March 2002, plaintiff sustained an injury by accident to his back while cranking a dolly in the course and scope of his employment with defendant-employer. Plaintiff experienced significant pain in his lower back, and over time, he also developed problems with his legs. Plaintiff reported the incident to defendant-employer within fifteen to twenty minutes after its occurrence. Defendants admitted compensability of the accident, and

657 S.E.2d 392

as of 12 March 2002, plaintiff began receiving ongoing total disability payments of $431.32 per week.

On 23 December 2002, defendants filed a Form 24 Application to Terminate or Suspend Payment of Compensation, contending that plaintiff had refused an offer of suitable employment. Defendants' Form 24 was disapproved by order entered 3 February 2003 by Special Deputy Commissioner Chrystina S. Franklin ("Special Deputy Commissioner Franklin"). Defendants filed another Form 24 on 5 March 2003, and by order entered 22 April 2003, Special Deputy Commissioner Franklin indicated that she was unable to reach a decision, noting that "[d]ue to the particular disputed issue, evidence will need to be taken, and the matter should proceed to hearing."

Following a hearing on 25 July 2003, Deputy Commissioner Bradley W. Houser ("Deputy Commissioner Houser") entered an Opinion and Award in favor of plaintiff. Defendants appealed to the Full Commission, and on 9 November 2006, the Full Commission entered an Opinion and Award affirming Deputy Commissioner Houser's Opinion and Award. Chairman Buck Lattimore, dissenting in part from the Full Commission's Opinion and Award, stated that "[t]he majority has erred in finding that plaintiff has established entitlement to ongoing disability payments . . . [because) Wile competent evidence of record fails to show that plaintiff is completely incapable of performing any work." Defendants filed timely notice of appeal to this Court.

As a preliminary matter, we note that plaintiff has included in his brief a motion to dismiss defendants' appeal. It is well-established, however, that "[s]uch motions may not be raised in a brief, but rather must be made in accordance with [Rule 37 of the North Carolina Rules of Appellate Procedure]." Warren v. Warren, 175 N.C.App. 509, 512, 623 S.E.2d 800, 802 (2006). Plaintiff's motion is not properly before this Court, and therefore, we decline to address it.

Our standard of review from a decision of the Full Commission

is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law. The findings of the Commission are' conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings. This Court reviews the Commission's conclusions of law de novo.

Ramsey v. S. Indus. Constructors, Inc., 178 N.C.App. 25, 29-30, 630 S.E.2d 681, 685 (internal quotation marks and citations omitted), disc. rev. denied, 361 N.C. 168, 639 S.E.2d 652 (2006). Additionally, in the instant case, defendants have failed to assign error to the Full Commission's findings of fact numbers 1 through 9, and therefore, these findings of fact are deemed binding on appeal. See McGhee v. Bank of Am. Corp., 173 N.C.App. 422, 427, 618 S.E.2d 833, 837 (2005).

Defendants first argue that the Full Commission erred in concluding that plaintiff's misrepresentations did not bar his right to recover compensation. We agree.

In its Opinion and Award, the Full Commission found "that plaintiff had applied for a job with defendant-employer on June 1, 2000, had been hired conditionally, and had been given a medical questionnaire to complete to ensure he had the physical ability to perform its truck driving job." The Full Commission further found that

[i]n completing the medical questionnaire, plaintiff made no reference to prior back injuries he had or to workers' compensation claims associated with those injuries. While his responses to most of the' questions were either accurate or ambiguous, the negative answers to the direct questions, as to whether he had ever had a backache or made a workers' compensation claim were clearly incorrect.

Defendants, therefore, argue that plaintiff should be barred from recovering based upon a three-part test from Professor Larson's treatise on workers' compensation ("the Larson test").

Pursuant to the Larson test, an employee may be barred from recovering workers' compensation benefits as a result of a

657 S.E.2d 393

false statement at the time of hiring when the employer proves:

(1) The employee must have knowingly and wilfully made a false representation as to his or her physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.

3 Larson's Workers' Compensation Law § 66.04...

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    ...301 (1987)). Prior to the enactment of N.C. Gen.Stat. § 97–12.1, a majority opinion in Freeman v. J.L. Rothrock, 189 N.C.App. 31, 36, 657 S.E.2d 389, 392–93 (2008), rev'd per curiam sub nom. Estate of Freeman v. J.L. Rothrock, Inc., 363 N.C. 249, 676 S.E.2d 46 (2009), attempted to adopt the......
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