Hardison v. Goodyear Tire & Rubber Co.
| Decision Date | 04 August 2015 |
| Docket Number | No. COA14–1391.,COA14–1391. |
| Citation | 776 S.E.2d 898 (Table) |
| Parties | Rexford D. HARDISON, Employee, Plaintiff, v. GOODYEAR TIRE AND RUBBER COMPANY, Employer, and Liberty Mutual Insurance Company, Carrier, Defendants. |
| Court | North Carolina Court of Appeals |
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, and Jay Gervasi, P.A., by Jay A. Gervasi, Jr., for plaintiff-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J. Ledwith and M. Duane Jones, for defendant-appellees.
Plaintiff Rexford D. Hardison appeals from the Industrial Commission's opinion and award denying his workers' compensation claims. Initially, Defendants Goodyear Tire and Rubber Company and Liberty Mutual Insurance accepted and began paying Hardison's claim, which involved an umbilical hernia. Hardison told Defendants that the hernia occurred at work and that he had never had any previous hernias or similar injuries.
Hardison later retired and amended his claim to request compensation for foot and leg problems that he said were an occupational disease. Defendants obtained Hardison's neurology records concerning his foot and leg issues and discovered—for the first time—medical notes indicating that Hardison already suffered from an umbilical hernia before the date of his purported hernia injury, and that Hardison told his doctor that “[h]e plans to have surgery on the hernia after he retires.”
After discovering this evidence, Defendants moved to set aside their acceptance of the hernia claim. The Commission granted that motion based on the newly discovered evidence and Hardison's misrepresentations to Defendants that he had never previously suffered from hernia issues. The Commission also held that Hardison's foot and leg issues were not a compensable occupational disease.
As explained below, we affirm the Industrial Commission's Opinion and Award. The Commission properly set aside Defendants' acceptance of compensability because Defendants could not have discovered the unrelated neurology records documenting Hardison's pre-existing hernia in the exercise of due diligence. Thus, the Commission had inherent authority to set aside the acceptance of compensability based on newly discovered evidence and Hardison's misrepresentations that he had not previously suffered from hernia problems.
The Commission also properly concluded that Hardison's foot and leg problems were not an occupational disease. Hardison failed to show his job duties caused or significantly contributed to his foot and leg problems or that his job placed him at increased risk of developing those conditions. His neurologist testified that there are many possible causes of his foot and leg problems, that these were issues common to the general public, and that he was not able to testify more likely than not those foot and leg issues had any particular cause.
Finally, the Industrial Commission did not abuse its discretion in declining to sanction Defendants for unilaterally terminating payments without first filing a Form 24. Hardison correctly points out that Defendants wrongly ceased payments without following the proper procedure. But Defendants admitted their mistake and Hardison suffered no harm because the Commission concluded he was never entitled to benefits in the first place. Thus, the Commission was within its broad discretion to decline to sanction Defendants for their wrongful conduct.
Facts and Procedural History
Defendant Goodyear Tire and Rubber Company hired Plaintiff Rexford D. Hardison as a tire builder in 1976. According to Hardison, on 22 December 2011, he was lifting a liner roll when he felt pain in his abdomen. Hardison testified that after he felt this pain he noticed a golf ball sized protrusion in his navel area. He was unable to continue working and his supervisor sent him to Goodyear's on-site medical facility. From there, Hardison was immediately sent to the hospital emergency room where he was diagnosed with an umbilical hernia.
That same day, Hardison filled out an initial incident report, notifying Goodyear of his umbilical hernia. In the report, Hardison denied that he had ever had a previous hernia or similar condition. Hardison then filed a claim for workers' compensation.
Nancy Talavera, an adjuster for Defendant Liberty Mutual Insurance, handled Hardison's workers' compensation claim. In her investigation of Hardison's claim, Talavera reviewed the workers' compensation submissions, the incident report, and the medical treatment notes from the on-site medical facility. She obtained a medical authorization signed by Hardison, releasing “all medical information regarding his abdomen[.]” Talavera also interviewed Hardison. During the interview, Talavera asked Hardison “if he had any pre-existing hernias, if he had ever in his life been treated for any hernia condition” and “asked if he had any medical conditions at all.” Hardison denied having “any previous or pre-existing hernia ” or “prior treatment for hernias.” Hardison told Talavera that “he had issues that were pre-existing and longstanding of his legs and toes where his legs swell and he has pain in his toes, that he has seen pain management for it, he called it neuropathy.”
Talavera did not seek medical records relating to Hardison's neuropathy because “[h]e told me it was a long-standing pre-existing condition,” “at the time he did not allege or relate it to work—to being work-related,” and she “would have no reason to request medical records on a condition that was not relevant ... to a hernia.” After completing the investigation of Hardison's hernia claim, Defendants filed a Form 60 on 18 January 2012, accepting Hardison's hernia as a compensable injury.
On 1 February 2012, Hardison retired from employment with Goodyear. Defendants stopped paying Hardison temporary total disability benefits on 20 February 2012, although the company did not first submit an application to terminate or suspend those payments through Form 24. Defendants conceded that unilaterally ceasing payments without first filing a Form 24 was improper. Nancy Talavera testified that Defendants' failure to file a Form 24 before stopping the payments “certainly wasn't intentional” and “that under the circumstances, with [Hardison's] retirement and the fact that he had been released from doctor's care, I thought it was appropriate to stop benefits based on those facts and circumstances at the time.”
On 19 April 2012, Hardison filed a Form 33 requesting a hearing “[t]o determine benefits due” for “bilateral feet & legs swelling .” This was the first notice Defendants received of any workers' compensation claim regarding issues with Hardison's feet and legs. On 25 July 2012, Hardison amended his initial workers' compensation claim to add a claim for “bilateral feet & leg swelling” due to the “repetitive nature of his job” in addition to his umbilical hernia claim.
After receiving notice of this added claim, Defendants obtained medical records from Hardison's neurologist, Dr. Nailesh Dave, who had been treating Hardison for the pain and swelling in his feet and legs. Included in the records from Dr. Dave was a note from an 11 November 2011 examination indicating that Hardison had “an umbilical hernia ” and “[h]e plans to have surgery on the hernia after he retires.” Based on this newly obtained evidence of a pre-existing hernia, Defendants moved to set aside their earlier acceptance of that claim.
On 5 June 2012, Defendants' counsel sent a letter to Dr. Dominic Storto, the surgeon who had treated Hardison's umbilical hernia, requesting his opinion regarding Hardison's work restrictions. Defendants sent Hardison's counsel a copy of the letter at the same time. Dr. Storto responded that “Mr. Hardison may resume unrestricted activity,” but “will always be vulnerable to re-herniating and ideally should perform work that does not involve heavy lifting.”
Hardison's claims were heard before Deputy Commissioner Melanie Wade Goodwin on 29 November and 18 December 2012. The Industrial Commission accepted into evidence the depositions of Dr. Dominic Storto, the surgeon who treated Hardison's hernia, and Dr. Nailesh Dave, the neurologist who treated Hardison's foot and leg swelling and neuropathy.
Dr. Dave testified that bilateral foot and leg swelling could be caused by “systemic illness, like heart failure ” or arthritis, from which Hardison suffers. When asked if Hardison's job duties put him at increased risk of swelling and neuropathy, Dr. Dave stated that “the job itself would not cause nerve damage, but if there is underlying nerve damage,” it can “make the problem worse.” Dr. Dave also testified that there are many possible causes of neuropathy and that he was “not able to testify more likely than not that the neuropathy is from one cause or another.” Dr. Dave also testified that Hardison's conditions were common to the general public.
On 15 January 2014, the Deputy Commissioner filed an opinion and award, setting aside Defendants' acceptance of the workers' compensation claim under Form 60 and denying Hardison's workers' compensation claims. The Deputy Commissioner concluded that Defendants were entitled to have the Form 60 set aside on the grounds of “newly discovered evidence” and “fraud and/or misrepresentation.” The Deputy Commissioner also concluded that the claim “is not compensable because it pre-existed the December 22, 2011 incident.” Finally, the Deputy Commissioner concluded that Defendants did not improperly terminate Hardison's benefits following his retirement because the award of benefits ultimately was vacated.
With respect to Hardison's foot and leg edema, the Deputy Commissioner held that those injuries are not compensable because “Dr. Dave's testimony was equivocal regarding causation” and Hardison did not meet his burden of proving that his job duties placed him at increased risk of developing the condition or that his job caused or significantly contributed to the development of the condition.
Hardison appealed to...
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