Hoyle v. Carolina Associated Mills

• Decision Date: 21 May 1996
• Docket Number: No. COA95-196,COA95-196
• Citation: 470 S.E.2d 357,122 N.C.App. 462
• Court: North Carolina Court of Appeals
• Parties: Joyce HOYLE, Plaintiff-Employee, v. CAROLINA ASSOCIATED MILLS, Defendant-Employer, and Liberty Mutual Insurance, Defendant-Carrier.

Page 357

470 S.E.2d 357

122 N.C.App. 462

Joyce HOYLE, Plaintiff-Employee, v. CAROLINA ASSOCIATED MILLS, Defendant-Employer and Liberty Mutual Insurance, Defendant-Carrier.

No. COA95-196.

Court of Appeals of North Carolina.

May 21, 1996.

Killian and Reilly by Mark L. Killian, Newton, for plaintiff-appellant.

Alala Mullen Holland & Cooper, P.A. by H. Randolph Sumner and Jesse V. Bone, Jr., Gastonia, for defendants-appellees.

LEWIS, Judge.

On 9 October 1986, plaintiff injured her back and right leg while at work. The parties have stipulated that this was an injury by accident arising out and in the course of her employment. Pursuant to a Form 21 agreement, defendants accepted the accident as compensable and paid compensation for temporary total disability for a period of four months. Plaintiff filed a Form 33 Request for Hearing seeking payment for permanent partial disability or permanent total disability. On 17 September 1991, a hearing was held before Deputy Commissioner Charles Markham. In opinion filed 23 March 1993, Deputy Commissioner Markham denied plaintiff's claim. She appealed to the Full Commission which denied her claim in opinion filed 15 December 1994. Plaintiff appeals.

In an appeal from the Industrial Commission our review is limited to a determination of whether the findings of the Commission are supported by " 'any competent evidence,' " and " 'whether the Commission's findings of fact justify its legal conclusions and decision.' " Roberts v. A.B.R. Assocs., Inc., 101 N.C.App. 135, 138, 398 S.E.2d 917, 918 (1990) (quoting Sanderson v. Northeast Constr. Co., 77 N.C.App. 117, 120-21, 334 S.E.2d 392, 394 (1985)). The Commission's findings of fact are conclusive on appeal if supported by competent evidence; however, its legal conclusions are reviewable on appeal. Roberts, 101 N.C.App. at 141, 398 S.E.2d at 920.

In her first assignment of error, plaintiff contends that the Commission erred by failing to apply the presumption, in Watkins v. Central Motor Lines, Inc., 279 N.C. 132, 181 S.E.2d 588 (1971), that her temporary total disability continues until she returns to work at the same wage earned prior to the injury.

N.C.Gen.Stat. section 97-2(9) defines "disability" as "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." G.S. § 97-2(9) (Cum.Supp.1995). In order to find a worker disabled under the Workers' Compensation Act, the Commission must find: (1) that plaintiff was incapable after her injury of earning the same wages she earned before her injury in the same employment, (2) that she was incapable after her injury of earning the same wages she earned before her injury in any other employment, and (3) that her incapacity to earn was caused by her injury. See Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).

Under the Watkins presumption, if the Commission makes an award payable during disability, it is presumed that the disability continues until the employee returns to work and that the disability ends when the employee returns to work at the same wages he was receiving at the time of the injury. Watkins, 279 N.C. at 137, 181 S.E.2d at 592. The Watkins presumption only applies if the Commission approves an award payable during disability. See Nash v. Conrad Industries, 62 N.C.App. 612, 619, 303 S.E.2d 373, 377, aff'd per curiam, 309 N.C. 629, 308 S.E.2d 334 (1983) (citing Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109 (1951)). For example, an award of payments that continue "for necessary weeks" is payable during disability. See Nash, 62 N.C.App. at 619, 303 S.E.2d at 377.

The Watkins presumption has been applied when an employee requests additional temporary total disability payments after an employer has ceased making payments it had agreed to pay during disability. E.g. Radica v. Carolina Mills, 113 N.C.App. 440, 439 S.E.2d 185 (1994); Watson v. Winston-Salem Transit Authority, 92 N.C.App. 473, 374 S.E.2d 483 (1988). Here, plaintiff is not requesting additional compensation for temporary total disability, but is seeking compensation for permanent disability. Furthermore, the stipulation was for "temporary total disability," not permanent. She cites no cases and we have found none that apply the Watkins presumption in this context.

However, we need not decide whether the presumption applies here because the record does not show that the payments made by defendants were payable during disability. The parties stipulated at the hearing that, on 9 October 1986, plaintiff sustained an injury by accident arising out of and in the course of her employment and that this accident resulted in injuries to her back and right leg. They also stipulated that, pursuant to a Form 21 agreement, she was paid compensation "for temporary total disability for a period not specifically identified in the record " (emphasis added). In their response to plaintiff's request for hearing, defendants agreed that they had admitted compensability in a Form 21 agreement approved on 2 April 1987 and in a Form 26 agreement approved on 19 March 1987. Neither of these forms is in the record. The record does not reveal whether the payments made by defendants pursuant to these approved agreements were payable during disability. Thus, we cannot determine whether the Watkins presumption should have been applied. This assignment of error is overruled.

In her second assignment of error, plaintiff asserts that the Commission erred by determining that she had not established by expert testimony the causal connection between her work-related injury and her inability to work.

Plaintiff first contends that defendants have admitted that her permanent disability was caused by her 9 October 1986 accident. The parties have stipulated that, on 9 October 1986, plaintiff suffered an injury by accident arising out of and in the course of her employment. They have also stipulated, pursuant to a Form 21 agreement, that plaintiff was paid compensation for temporary total disability "for a period not specifically identified in the record." This stipulation alone does not establish that defendants have admitted liability for plaintiff's alleged permanent disability. Neither the Form 21 stipulated to by the parties nor the Form 26 agreement referenced on defendants' response to plaintiff's request for hearing are in the record. We reject plaintiff's contention that the record shows that defendants have admitted liability for her alleged permanent disability.

In further support of her second assignment of error, plaintiff asserts that she established a causal connection between her injury and her disability because the stipulated medical records show she had a preexisting condition that was aggravated by her injury. The work-related injury need not be the sole cause of the problems to...