Johnson v. Lowe's Companies, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: McCULLOUGH.
• Citation: Johnson v. Lowe's Companies, Inc., 546 S.E.2d 616 (N.C. App. 2001)
• Decision Date: 15 May 2001
• Docket Number: No. COA00-124.,COA00-124.
• Parties: Ricky JOHNSON, Employee, Plaintiff, v. LOWE'S COMPANIES, INC., Employer, Self Insured (Gab Robins, Servicing Agent), Defendant.

546 S.E.2d 616

Ricky JOHNSON, Employee, Plaintiff, v. LOWE'S COMPANIES, INC., Employer, Self Insured (Gab Robins, Servicing Agent), Defendant.

No. COA00-124.

Court of Appeals of North Carolina.

May 15, 2001.

Franklin Smith, Elkin, for plaintiff appellant.

McElwee Firm, P.L.L.C., by Karen Inscore McElwee, Wilkesboro, for defendant appellees.

McCULLOUGH, Judge.

On 16 February 1993, plaintiff Ricky Johnson injured his knee while working for defendant Lowe's Companies, Inc., when he slipped in a puddle of oil and twisted his leg. Plaintiff sustained a thirty percent permanent partial impairment to his right knee. Plaintiff and defendant-employer entered into a Form 21 Agreement for Compensation for Disability, which was approved by the Industrial Commission on 3 May 1993. On 26 November 1997, defendants deposed plaintiff in an effort to determine his ability to engage in employment and other activities. Plaintiff testified at his deposition that his knee problems had intensified such that his everyday activities were extremely restricted. Specifically, plaintiff stated that he could not crouch down, kneel, squat or stand for more than twenty minutes.

Following a criminal indictment of plaintiff on 10 December 1997 for fraudulently obtaining workers' compensation benefits and for perjury, defendants filed a Form 24 Application to Terminate or Suspend Payment of Compensation with the Industrial Commission, claiming that plaintiff had "fraudulently misrepresented his condition that he was unable to work." Plaintiff, responding through counsel, contested the termination of benefits, stating that he had "been given total and permanent disability by his treating physician, Dr. Walton W. Curl on February 7, 1994[,]" and that "after completing the treatment provided for him by his employer and after finishing a rehabilitation program, he [was] still unable to stand on his right leg for any prolonged period of time."

On 27 August 1998, the matter was heard before a deputy commissioner of the Industrial Commission, whose opinion and award was later adopted by the Full Commission (Commission). Upon reviewing the testimony of numerous witnesses, as well as videotaped surveillance of plaintiff conducted by both defendants' and the Industrial Commission's investigators, the Commission found that "[p]laintiff has consistently misrepresented his knee condition and his physical capacity to work to his health care providers, including Dr. Curl, and his employer[,]" and that "plaintiff has repeatedly demonstrated the capacity to engage in activities through which he could earn wages. He is able to work as an auto mechanic. He is able to work in logging. He is capable of standing, walking, kneeling, stooping, and bending on a continuous basis. He is capable of lifting more than just a light load or more than 30 pounds, on an occasional basis." The Commission concluded that defendants had rebutted the presumption of an ongoing disability arising from the Form 21 Agreement, and that plaintiff had the capacity to earn wages in gainful and suitable employment. The Commission further awarded defendants attorney's fees "incurred as a result of plaintiff's unfounded litigiousness." Plaintiff appealed to this Court.

Plaintiff argues that the Commission erred by failing to apply the presumption that plaintiff's disability continued until he returned to work at the same wage earned prior to the injury. Plaintiff also contends that defendants failed to prove that plaintiff was employable, and that plaintiff's medical evidence as to his infirmity outweighs the testimony of numerous witnesses and videotaped surveillance of plaintiff regarding his ability to engage in physical activity.

On appeal of cases from the Industrial Commission, our review is limited to two issues: "`[W]hether the Commission's findings of fact are supported by competent evidence and whether the Commission's conclusions of law are justified by its findings of fact.'" In re Stone v. G & G Builders, 346 N.C. 154, 157, 484 S.E.2d 365, 367 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986)). Because it is the fact-finding body, the Commission is "`the sole judge of the credibility of the witnesses and the weight to be given their testimony.'" Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998)(quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). The Commission's findings of fact are conclusive on appeal if they are supported by any competent evidence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). Accordingly, this Court "does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Anderson, 265 N.C. at 434,144 S.E.2d at 274. In the instant case, we conclude that the Commission's findings of fact are supported by competent evidence that in turn justifies the Commission's conclusions of law.

In order to qualify for compensation under the Workers' Compensation Act, a claimant must prove both the existence and the extent of disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). In the context of a claim for workers' compensation, disability refers to the impairment of the injured employee's earning capacity. Peoples v. Cone Mills Corp., 316 N.C. 426, 432, 342 S.E.2d 798, 804 (1986). "If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work...." Watkins v. Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971). As stated in Rule 404(1) of the Workers' Compensation Rules of the North Carolina Industrial Commission and noted by our Supreme Court in In re Stone, however, "this presumption of continued disability is rebuttable." In re Stone, 346 N.C. at 157, 484 S.E.2d at 367. In the instant case, any presumptions existing in favor of plaintiff-employee have been rebutted by defendants through witness testimony, videotaped surveillance of plaintiff, as well as medical evidence and strong evidence of fraud.

In Stone v. G & G Builders, 121 N.C.App. 671, 674, 468 S.E.2d 510, 512, disc. review allowed, 343 N.C. 757, 473 S.E.2d 627 (1996), reversed, 346 N.C. 154, 484 S.E.2d 365 (1997), this Court determined that the defendant-employer failed to rebut the presumption of an ongoing disability raised by a Form 21 Agreement, even though the Industrial Commission had found that plaintiff-employee was capable of returning to work at his regular job. "[I]t does not necessarily follow that an employee who returns to his `regular job' will earn the same wages he earned before his injury." Stone, 121 N.C.App. at 674, 468 S.E.2d at 512. Reversing this decision, our Supreme Court held that the defendant-employer had successfully rebutted the presumption of plaintiff's disability "through medical and other evidence." In re Stone, 346 N.C. at 157, 484 S.E.2d at 368. The Court noted that defendants had introduced videotaped surveillance of plaintiff performing various activities, including painting overhead with a roller, lifting and carrying plywood, trimming overhead branches, and throwing horseshoes. Defendants also introduced medical evidence that plaintiff retained no permanent partial impairment to his back, and that plaintiff could return to regular employment with certain restrictions. The Court further observed that the Industrial Commission found plaintiff's testimony regarding his inability to engage in the same or any other employment at the same wages neither credible nor convincing. Because defendants had successfully rebutted the presumption of plaintiff's disability, the Court reinstated the Industrial Commission's opinion and award for defendants.

Harrington v. Adams-Robinson Enterprises, 128 N.C.App. 496, 495 S.E.2d 377,reversed,349 N.C. 218, 504 S.E.2d 786 (1998) (Harrington I), further illustrates an employer's successful rebuttal of a presumption of disability arising from a Form 21 Agreement where there is evidence of fraud by the employee. In that case, plaintiff-employee and defendant-employer entered into a Form 21 Agreement after plaintiff suffered compensable injuries while in the scope of his employment. Although he sustained permanent partial impairment to his back, plaintiff was eventually released to work by his physician, at which time defendant filed to terminate benefits. The Industrial Commission agreed with defendant that plaintiff had no further claim for workers' compensation benefits and terminated such benefits. On appeal to this Court, plaintiff argued that the Industrial Commission erred in concluding that defendant had rebutted the presumption of disability because defendant had presented no evidence concerning plaintiff's wage-earning capacity. Plaintiff contended that, because defendant had not offered him a job, nor had it shown that there were any jobs available which plaintiff could perform, defendant had not shown that plaintiff was capable of earning wages greater than or at the level he was earning at the time of his injury. A divided panel of this Court agreed with plaintiff, holding that defendant had not met its burden of disproving plaintiff's disability. The Court stated that "[u]pon a showing of disability by the employee, the employer must produce evidence that suitable jobs are available for the employee and that the employee is capable of getting a job." Harrington I, 128 N.C.App. at 498,495 S.E.2d at 378. Because there was "no evidence to support a finding that the plaintiff retained any earning capacity after he was released by his doctors[,]" defendant failed to rebut the presumption of plaintiff's disability. Id. at 499, 495 S.E.2d at 379.

Quoting Stone, Judge Walker dissented from the majority, asserting...