Johnson v. Southern Tire Sales and Service

• Decision Date: 13 August 2004
• Docket Number: No. 514A02.,514A02.
• Court: North Carolina Supreme Court
• Parties: Willie B. JOHNSON, Employee v. SOUTHERN TIRE SALES AND SERVICE, Employer, Casualty Reciprocal Exchange, Carrier.

599 S.E.2d 508

358 N.C. 701

Willie B. JOHNSON, Employee v. SOUTHERN TIRE SALES AND SERVICE, Employer, Casualty Reciprocal Exchange, Carrier.

No. 514A02.

Supreme Court of North Carolina.

August 13, 2004.

Schiller & Schiller PLLC, by Marvin Schiller and David G. Schiller, Raleigh, for plaintiff-appellee.

Young Moore and Henderson P.A., by Joe E. Austin, Jr., and Dawn Dillon Raynor, Raleigh, for defendant-appellants.

EDMUNDS, Justice.

This case arises from proceedings before the North Carolina Industrial Commission (the Commission) and raises the issue of whether the Commission erred in awarding Willie B. Johnson (plaintiff) ongoing total disability compensation as a result of his 24 October 1996 work-related injury.

The evidence in this case showed that plaintiff was employed by Southern Tire Sales and Service (defendant-employer) as a mechanic. On 24 October 1996, plaintiff sustained a work-related injury to his back while replacing a vehicle's lower ball joint. When an iron pry bar that plaintiff was using slipped unexpectedly, he experienced pain in his lower back. Defendants initially issued compensation benefits pursuant to a Form 63, Notice to Employee of Payment of Compensation Without Prejudice to Later Deny the Claim, which was dated 23 December 1996. Thereafter, pursuant to N.C.G.S. § 97-18(d), defendants accepted liability for plaintiff's injury by failing to contest the compensability of plaintiff's claim or their liability therefor within the statutory period. See N.C.G.S. § 97-18(d) (2003). Plaintiff continued to work for defendant-employer and sought medical treatment on 27 November 1996.

In March 1997 plaintiff came under the care of Michael D. Gwinn, M.D. (Dr. Gwinn), a board-certified expert in physical medicine and rehabilitation. Tests revealed that plaintiff suffered from "multi-level lumbar degenerative disk disease." On 23 April 1997, Dr. Gwinn released plaintiff to light-duty work, restricting him from lifting more than fifteen to twenty pounds occasionally. Dr. Gwinn also recommended that plaintiff avoid frequent bending and twisting. On 6 August 1997, Dr. Gwinn assigned plaintiff permanent restrictions, including avoidance of frequent bending and twisting at the waist and limitations on the number of pounds plaintiff could lift or carry. Dr. Gwinn was of the opinion that plaintiff had "likely" reached maximum medical improvement and, if so, he would assign to plaintiff a ten percent permanent partial disability rating. However, defendant-employer did not have work available that met plaintiff's physical restrictions. Consequently, in August 1997 Ronald Alford (Alford), a Certified Rehabilitation Counselor with Southern Rehabilitation Network, Inc., was assigned to assist plaintiff in finding suitable employment.

Although Alford secured approximately twelve leads for jobs that were within plaintiff's restrictions, plaintiff did not receive an offer of employment from any of these potential employers. Alford testified by deposition that plaintiff was not hired because he either failed to appear at scheduled interviews or attended the interviews but effectively sabotaged his chances of being hired with complaints of being in pain. As a result of plaintiff's alleged unwillingness to cooperate with recommended treatment and his refusal to attend a scheduled evaluation for an in-patient treatment program, defendants filed with the Commission a motion requesting that plaintiff be ordered to cooperate with rehabilitation efforts. On 17 August 1998, the Deputy Commissioner ordered plaintiff to, among other things, "cooperate with efforts at rehabilitation."

On 11 December 1998, defendants filed a Form 24, Application to Terminate or Suspend Payment of Compensation, on the ground that plaintiff was still not cooperating with efforts at rehabilitation. After conducting a hearing on 5 May 1999, the Deputy Commissioner on 27 April 2000 entered an opinion and award that included findings of fact consistent with Alford's deposition testimony as to plaintiff's failure to attend some job interviews and his behavior at the interviews he did attend. Based on these findings, the Deputy Commissioner made conclusions of law entitling defendants to suspend compensation payments as of 9 February 1999 because "[p]laintiff unjustifiably refused to cooperate with defendant[-employer]'s rehabilitative efforts." The Deputy Commissioner also denied plaintiff's claim for permanent and total disability.

On 6 February 2001, the Full Commission reconsidered the record in the case and reversed the Deputy Commissioner. Although defendants submitted, and the Commission accepted, additional evidence prior to the reconsideration, no mention of this evidence is made in the Commission's opinion and award. The Commission made the following pertinent findings of fact:

3. On 24 October 1996, plaintiff sustained an injury arising out of his employment when the iron bar he was using to replace a lower ball joint suddenly gave way, and he experienced the immediate onset of pain in his lower back. This injury was deemed compensable when defendants failed to accept or deny the claim within the statutory time period after filing an Industrial Commission Form 63.

....

12. In August 1997, Mr. Ronald Alford, a Certified Rehabilitation Counselor with Southern Rehabilitation Network, was assigned to assist plaintiff in finding suitable employment. Mr. Alford located approximately twelve (12) job leads for plaintiff who attended many interviews. However, no job was ever officially offered to plaintiff due to his physical condition and restrictions resulting from his 24 October 1996 compensable injury. Furthermore, in no manner were plaintiff's actions regarding these job leads inappropriate and he did not constructively refuse suitable employment.

13. In addition to Mr. Alford's efforts, plaintiff located a job lead on his own in December 1997, but was not offered the position due to his physical condition and symptoms.

14. Plaintiff has made a reasonable effort to locate suitable employment on his own and through the leads provided to him by Mr. Alford since he was first medically removed from work by Dr. Adomonis on 27 January 1997.

....

18. Because no job was ever offered to plaintiff, it cannot be found that he unjustifiably refused suitable employment.

Based upon these findings, the Commission concluded that plaintiff was entitled to ongoing total disability compensation. Defendants appealed the Commission's decision to the North Carolina Court of Appeals.

On 20 August 2002, a divided panel of the Court of Appeals held that competent evidence supported the Commission's determination that plaintiff did not constructively refuse suitable employment because no job was ever offered to plaintiff. The dissenting judge, citing Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C.App. 69, 441 S.E.2d 145 (1994), stated that the test for determining whether plaintiff constructively refused suitable employment "is not whether a job was actually offered, but whether suitable jobs are available and whether plaintiff is capable of getting one." Johnson v. Southern Tire Sales & Serv., 152 N.C.App. 323, 333, 567 S.E.2d 773, 780 (2002). Defendants appealed to this Court on the basis of the dissent.

The Commission, having exclusive original jurisdiction over workers' compensation proceedings, is required to hear the evidence and file its award, "together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue." N.C.G.S. § 97-84 (2003). While the Commission is not required to make findings as to each fact presented by the evidence, it must find those crucial and specific facts upon which the right to compensation depends so that a reviewing court can determine on appeal whether an adequate basis exists for the Commission's award. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955). See also Singleton v. Durham Laundry Co., 213 N.C. 32, 34-35, 195 S.E. 34, 35-36 (1938) (requiring the Commission to make specific findings of fact upon the evidence).

The Commission's findings of fact "are conclusive on appeal when supported by competent evidence even though" evidence exists that would support a contrary finding. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). As a result, appellate review of an award from the Commission is generally limited to two issues: (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986). "[W]hen the findings are insufficient to determine the rights of the parties, the court may remand to the Industrial Commission for additional findings." Hilliard v. Apex Cabinet Co., 305 N.C. at 595, 290 S.E.2d at 684. In addition, if the findings of the Commission are based on a misapprehension of the law, the case should be remanded so "that the evidence [may] be considered in its true legal light." McGill v. Town of Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939).

Defendants raise three issues on appeal. First, defendants contend the Commission erred in finding that, when defendants failed to accept or deny plaintiff's claim within the statutory time period after the Form 63 was filed, a presumption of continuing disability was established and attached in plaintiff's favor.

An employee seeking compensation under the Workers' Compensation Act for an injury arising out of and in the course of employment bears "the burden of proving the existence of his disability and its extent." Hendrix v. Linn-Corriher Corp., 317 N.C. at 185, 345 S.E.2d at 378. This Court has recognized that a presumption of disability in favor of an employee arises only in limited circumstances. First, the employer and employee may execute a Form 21, Agreement for Compensation for...