Gregory v. W.A. Brown & Sons

• Court: North Carolina Court of Appeals
• Writing for the Court: McGee
• Citation: Gregory v. W.A. Brown & Sons, 664 S.E.2d 589, 192 N.C. App. 94 (N.C. App. 2008)
• Decision Date: 19 August 2008
• Docket Number: No. COA07-1265.,COA07-1265.
• Parties: Andrea GREGORY, Employee, Plaintiff-Appellee, v. W.A. BROWN & SONS, Employer, PMA Insurance Group, Carrier, Defendants-Appellants.

664 S.E.2d 589

Andrea GREGORY, Employee, Plaintiff-Appellee, v. W.A. BROWN & SONS, Employer PMA Insurance Group, Carrier, Defendants-Appellants.

No. COA07-1265.

Court of Appeals of North Carolina.

August 19, 2008.

Appeal by Defendants from opinion and award entered 11 May 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 April 2008.

DeVore, Acton, & Stafford, P.A., by William D. Acton, Jr., Charlotte, for Plaintiff-Appellee.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Neil P. Andrews and Jennifer P. Pulley, Charlotte, for Defendants-Appellants.

McGEE, Judge.

Andrea Gregory (Plaintiff) filed a Form 18 on 5 February 2002 claiming benefits for a back injury allegedly caused by a specific traumatic incident that occurred while Plaintiff was working for W.A. Brown & Sons (Defendant-Employer). Defendant-Employer and its carrier, PMA Insurance Group (collectively Defendants), denied Plaintiff's claim, and Plaintiff requested that her claim be assigned for hearing.

Deputy Commissioner Morgan S. Chapman (Deputy Commissioner Chapman) held a hearing on 16 September 2003. One of Plaintiff's lay witnesses, Tony Harding (Mr. Harding), did not appear for the hearing, and Plaintiff testified that she had personally delivered a subpoena to Mr. Harding in advance of the hearing. At the close of the hearing, Plaintiff "moved that she be allowed to depose [Mr.] Harding who did not appear for the hearing to testify." The parties also requested additional time to depose necessary medical witnesses. Deputy Commissioner Chapman entered an order on 10 October 2003 allowing Plaintiff sixty days to depose Mr. Harding at Plaintiff's expense and thirty additional days in which to submit Mr. Harding's deposition transcript. Deputy Commissioner Chapman also allowed the parties sixty days to depose necessary medical witnesses at Defendants' expense and thirty additional days to submit their depositions.

Deputy Commissioner Chapman entered an opinion and award on 28 April 2004 denying Plaintiff's claim for benefits. Deputy Commissioner Chapman concluded that Plaintiff had sustained an injury by accident arising out of and in the course of her employment with Defendant-Employer on an unknown date during the week of 11 October 2001. However, Deputy Commissioner Chapman also concluded that Plaintiff's claim was barred because Plaintiff failed to give Defendant-Employer written notice of the injury within thirty days.

Plaintiff and Defendants appealed to the North Carolina Industrial Commission (the Commission), and the Commission filed an opinion and award on 18 January 2005 (2005 opinion and award) reversing Deputy Commissioner Chapman's opinion and award. The Commission concluded that "[o]n an unknown date during the week of October 11, 2001, [P]laintiff sustained an injury by accident arising out of and in the course of her employment with [D]efendant[-Employer] in that she sustained a back injury as the result of a specific traumatic incident of the work assigned." The Commission also concluded that "[t]he aggravation or exacerbation of [P]laintiff's pre-existing back condition as a result of a specific traumatic incident, which has resulted in loss of wage earning capacity, is compensable under the Workers' Compensation Act." The Commission further concluded that Defendants had actual notice of Plaintiff's work-related injury. The Commission concluded that even if Defendants did not have actual notice, "[P]laintiff's failure to give written notice within thirty days [was] reasonably excused because [P]laintiff did not reasonably know of the nature, seriousness, or probable compensable character of her injury until after extensive treatment with Dr. Roy, her treating physician." The Commission remanded the matter for assignment to a deputy commissioner "for the taking of additional evidence or further hearing, if necessary, and the entry of an Opinion and Award with findings on the issues of (1) the extent of [P]laintiff's disability; (2) the amount of indemnity benefits due [P]laintiff; and (3) the extent of medical compensation due [P]laintiff."

Defendants appealed to our Court, and Plaintiff filed a motion to dismiss Defendants' appeal on the grounds that Defendants' appeal was interlocutory and did not affect a substantial right. We entered an order on 3 June 2005 dismissing Defendants' appeal.

On remand of the Commission's 2005 opinion and award, Deputy Commissioner John B. Deluca (Deputy Commissioner Deluca) filed an opinion and award on 4 May 2006. Defendants appealed, and the Commission filed an opinion and award on 11 May 2007 (2007 opinion and award), adopting Deputy Commissioner Deluca's opinion and award "except with regard to the issue of the causal relationship of [P]laintiff's leg and hip pain to the compensable injury and the issue of ongoing disability." The Commission made numerous findings of fact, including a finding that the Commission's 2005 opinion and award "is incorporated by reference as if fully set forth herein." The Commission concluded that "[o]n or about October 10, 2001, [P]laintiff sustained a compensable injury as the result of a specific traumatic incident that aggravated her pre-existing back condition." However, the Commission concluded that Plaintiff had "failed to carry the burden of proving by competent evidence that a causal relationship existed between the work-related accident and her left leg and hip pain." The Commission concluded that as a result of her compensable specific traumatic incident, Plaintiff was totally disabled from 16 October 2001 until 31 May 2005, and also concluded that Plaintiff was entitled to receive disability compensation for that period of time. The Commission concluded that Defendants were not entitled to a credit for short-term and long-term disability payments received by Plaintiff and further concluded that "Defendants are required to provide [P]laintiff with reasonably necessary medical treatment related to her compensable back injury by accident that tends to effect a cure, provide relief, or lessen the period of disability." In its award, the Commission stated as follows: "In that the record contains insufficient evidence concerning the extent of [P]laintiff's disability, if any, after May 31, 2005, this issue is RESERVED for future determination." Defendants appeal.

Our review of an opinion and award by the Commission is limited to two inquiries: (1) whether there is any competent evidence in the record to support the Commission's findings of fact; and (2) whether the Commission's conclusions of law are justified by the findings of fact. Counts v. Black & Decker Corp., 121 N.C.App. 387, 389, 465 S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68 (1996). If supported by competent evidence, the Commission's findings are conclusive even if the evidence might also have supported contrary findings. Jones v. Candler Mobile Village, 118 N.C.App. 719, 721, 457 S.E.2d 315, 317 (1995). We review the Commission's conclusions of law de novo. Johnson v. Herbie's Place, 157 N.C.App. 168, 171, 579 S.E.2d 110, 113, disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003).

I.

Defendants first argue the Commission erred by concluding that Plaintiff sustained a specific traumatic incident on some unknown date during the week of 11 October 2001 or on or about 10 October 2001. Specifically, Defendants argue that these conclusions "are not supported by the competent evidence regarding when Plaintiff's alleged lifting incident occurred." Defendants contend that Plaintiff "claims she was picking up a bucket of pods and felt pain in her lower back [on 11 October 2001]" and that "Plaintiff has never wavered in the identification of October 11, 2001, as the specific date she claims to have been injured at work." However, Defendants point to the Commission's finding in the 2005 opinion and award that "[Plaintiff's] time records show she did not work that particular morning." Defendants also argue that the Commission's conclusions are premised upon a misapprehension of law. Specifically, Defendants argue that "the caselaw does not permit the Commission to create a date of injury or to substitute its own findings when the evidence is insufficient."

In its 2005 opinion and award, the Commission found as follows: "Plaintiff alleges that she was injured on October 11, 2001, after her morning break; however, her time records show she did not work that particular morning. Nonetheless, the Full Commission finds that [P]laintiff did suffer an injury on an unknown date that same week." In its 2007 opinion and award, the Commission found that "Plaintiff sustained a back injury as a result of a specific traumatic incident on or about October 10, 2001."

These findings of fact are supported by competent evidence. Plaintiff testified that when she tried to pick up a bucket of metal pods weighing sixty to seventy pounds, she "felt a pop" in the lower part of her back. Plaintiff testified that this occurred some time between 9:40 a.m. and 12:00 p.m. on Thursday, 11 October 2001. Plaintiff also testified that at the time of the incident, she was working with Mr. Harding, and that Mr. Harding came over to her and "asked what was wrong." Plaintiff testified that Mr. Harding called over Rick Dunaway (Mr. Dunaway) and that Mr. Dunaway went to get Plaintiff's supervisor, Barry Christy (Mr. Christy). Plaintiff also testified that Mr. Christy gave her a back brace.

Plaintiff further testified that she went to ProMed, a medical clinic, on Sunday, 14 October 2001, complaining of back pain. Plaintiff's testimony is corroborated by a ProMed medical report stating that Plaintiff was treated for low back pain on 14 October 2001. Plaintiff testified that she was unable to work on Monday, 15 October 2001 due to her back pain, and that she went to work on Tuesday, 16 October 2001, but that she only worked until 11:00 a.m. or 12:00 p.m. Specifically...