Johnson v. Herbie's Place

• Decision Date: 15 April 2003
• Docket Number: No. COA02-298.,COA02-298.
• Citation: 579 S.E.2d 110,157 NC App. 168
• Parties: Michael JOHNSON, Employee-Plaintiff v. HERBIE'S PLACE, Employer, Uninsured, Defendant, North Carolina Industrial Commission, Agency of the State of North Carolina, Plaintiff, v. Herbie's Place, L.L.C., and Bill Kennedy, Individually, Defendants.
• Court: North Carolina Court of Appeals

579 S.E.2d 110

157 NC App. 168

Michael JOHNSON, Employee-Plaintiff v. HERBIE'S PLACE, Employer, Uninsured, Defendant, North Carolina Industrial Commission, Agency of the State of North Carolina, Plaintiff, v. Herbie's Place, L.L.C., and Bill Kennedy, Individually, Defendants.

No. COA02-298.

Court of Appeals of North Carolina.

April 15, 2003.

Hodgman and Oxner by Todd P. Oxner, Greensboro, for plaintiff-appellee Michael Johnson.

Attorney General Roy Cooper by Assistant Attorney General Tina Lloyd Hlabse and Assistant Attorney General Adrian Phillips, for the State.

Smith, James, Rowlett & Cohen, L.L.P. by Norman B. Smith, Greensboro, for defendant-appellant.

LEVINSON, Judge.

This appeal arises from two consolidated actions: (1) a workers' compensation claim filed by plaintiff Michael Johnson, and (2) a petition for assessment of administrative penalty filed by the Industrial Commission against defendants (Herbie's Place, L.L.C., and Bill Kennedy, individually), plaintiff's employer. Defendants appeal both the award of disability benefits to plaintiff and the assessment of a civil penalty. For the reasons that follow, we affirm.

The procedural history of this case is as follows: On 24 January 2000, plaintiff filed an Industrial Commission Form 18, "Notice of Accident to Employer." Plaintiff alleged that he suffered a back injury as a result of a workplace fall occurring on 1 January 2000. Defendants denied his claim for medical expenses and disability, and plaintiff sought a hearing before the Commission. On 1 March 2000, the Industrial Commission filed a Petition for Assessment of Administrative Penalty for defendants' failure to have Workers' Compensation insurance or self-insurance. The Industrial Commission also moved to consolidate the actions.

Both cases were heard before a deputy commissioner of the Industrial Commission on 9 May 2000. On 23 August 2000, the deputy commissioner awarded plaintiff temporary total disability and medical expenses. The Opinion and Award also assessed a civil penalty against defendant Herbie's Place of $37,200, and against individual defendant Kennedy in "an amount equal to 100% of the medical and disability compensation due to [plaintiff]." The order provided for a reduction in the civil penalties if defendants paid plaintiff "all compensation due under the North Carolina Workers' Compensation Act." Defendants appealed to the Full Commission, which issued its Opinion and Award on 16 November 2001. The Industrial Commission affirmed the deputy commissioner's awards in both cases. The opinion was unanimous as to the administrative penalty. Commissioner Scott dissented from the award of temporary total disability. Defendants appealed to this Court on 11 December 2001.

Standard of Review

"The Workers' Compensation Act should be liberally construed to achieve its purpose of providing compensation to employees injured by accident arising out of and in the course of their employment[.]" Lynch v. M.B. Kahn Construction Co., 41 N.C.App. 127, 130, 254 S.E.2d 236, 238, cert. denied, 298 N.C. 298, 259 S.E.2d 914 (1979). "The standard of appellate review of an opinion and award of the Industrial Commission in a workers' compensation case is whether there is any competent evidence in the record to support the Commission's findings of fact and whether these findings support the Commission's conclusions of law." Lineback v. Wake County Board of Commissioners, 126 N.C.App. 678, 680, 486 S.E.2d 252, 254 (1997). The Industrial Commission's findings of fact "are conclusive on appeal when supported by competent evidence ... even [if] there is evidence to support a contrary finding[,]" Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and "may be set aside on appeal [only] 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).

"Whether the full Commission conducts a hearing or reviews a cold record, N.C.G.S. § 97-85 places the ultimate fact-finding function with the Commission[.]" Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413 (1998). Where "defendants' interpretation of the evidence is not the only reasonable interpretation[, it] is for the Commission to determine the credibility of the witnesses, the weight to be given the evidence, and the inferences to be drawn from it. As long as the Commission's findings are supported by competent evidence of record, they will not be overturned on appeal." Rackley v. Coastal Painting, 153 N.C.App. 469, 472, 570 S.E.2d 121, 124 (2002) (citation omitted). Therefore, "appellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000) (citing Adams, 349 N.C. at 681, 509 S.E.2d at 413). However, the Industrial Commission's conclusions of law are reviewable de novo. Lewis v. Craven Regional Medical Center, 122 N.C.App. 143, 468 S.E.2d 269 (1996).

Defendants argue first that the Industrial Commission "committed reversible error by failing to make [certain] specific findings of fact supported by competent and unrebutted evidence[.]" Defendants contend that their proposed findings were "necessary to decide in order for the appellate court to determine whether there was any adequate basis for the Commission's ultimate findings of fact."

Defendants correctly state that the Industrial Commission "must make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim for compensation depend." Hansel v. Sherman Textiles, 304 N.C. 44, 59, 283 S.E.2d 101, 109 (1981) (citing Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979)). Thus, "the Commission must find those facts which are necessary to support its conclusions of law." Peagler v. Tyson Foods, Inc., 138 N.C.App. 593, 602, 532 S.E.2d 207, 213 (2000).

In the instant case, the Industrial Commission awarded plaintiff temporary total disability and medical expenses. Under N.C.G.S. § 97-2(9) (2001), "`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." A compensable injury in the meaning of the workers' compensation statute is an "injury by accident arising out of and in the course of the employment[.]" N.C.G.S. § 97-2(6) (2001). With respect to back injuries, G.S. § 97-2(6) also provides that

where injury to the back arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned, `injury by accident' shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident.

In the factual context of the present case, the Industrial Commission's findings of fact should be sufficient to establish: (1) that plaintiff fell, suffering a "specific traumatic incident," in the course of his employment; (2) that he injured his back as a result of the fall; and (3) that, as a result of the injury to his back, plaintiff was unable "to earn the wages which [he] was receiving at the time of injury in the same or any other employment." Against this backdrop, we evaluate the Order of the Industrial Commission, which included the following pertinent findings of fact:

1. ... [D]efendant employed plaintiff as a cook....

2. Plaintiff worked ... for defendant on 31 December 1999 and 1 January 2000. At approximately 5:30 a.m., plaintiff slipped in the kitchen and fell on his back. Two of his co-workers ... saw him on the floor immediately after he fell....

....

4. A co-employee, Larry Jones, was working at defendant restaurant on the night of 31 December 1999.... [He] saw plaintiff slip on a small amount of butter or margarine and fall, hitting his "tail and right elbow" on the tile floor of the kitchen. Mr. Jones took plaintiff from defendant's business to the emergency room at... [the] Hospital[.]

5. Plaintiff was admitted at 6:05 a.m. on 1 January 2000. Plaintiff reported that he had slipped and fallen while working, injuring his low back. Plaintiff stated that this incident had occurred at work just prior to coming to the hospital. He complained of severe pain. A[n] examination by ... [a] physician revealed swelling and marks on the skin. The physician excused plaintiff from work pending evaluation at [Moses Cone] Occupational Health.

6. On 6 January 2000, plaintiff was seen at Moses Cone Occupational Health by [Dr.] Ciacchella, M.D., ... [who] ordered an MRI to be completed the next day[,]... [and] excused plaintiff from work for another day.

7. The ... MRI revealed a broad based left sided disc protrusion at L5-S1 potentially encroaching on the left S1 nerve root.... Dr. Ciacchella ... excused plaintiff from work until ... 10 January 2000.

8. Plaintiff returned to Dr. Ciacchella on 10 January 2000. Dr. Ciacchella assessed plaintiff as having a herniated nucleus pulposus at L5-S1 with fairly significant symptomotalogy. Dr. Ciacchella referred plaintiff to a neurosurgeon and excused him from work until insurance authorized the referral.

....

14. As a result of the incident on 1 January 2000, plaintiff was rendered incapable of earning wages from defendant or any other employer beginning from 1 January 2000 and continuing through the date of the hearing....

15. The incident on 1 January 2000 was not caused by plaintiff's intoxication.

....

These findings of fact are supported by competent record evidence, and establish in a straightforward manner that plaintiff fell on 1 January 2000 while performing his job; that the fall was witnessed by Larry Jones; and that as a result of his injury, Dr. Ciacchella determined that he was unable to work until he could obtain neurosurgery. The...