Perez v. American Airlines/Amr Corp.

• Decision Date: 18 October 2005
• Docket Number: No. COA04-1573.,COA04-1573.
• Citation: 620 S.E.2d 288
• Court: North Carolina Supreme Court
• Parties: Lori PEREZ, Employee, Plaintiff, v. AMERICAN AIRLINES/AMR CORP., Employer, AIG Vendor Services, Carrier, (Administered by Specialty Risk Services), Defendants.

620 S.E.2d 288

Lori PEREZ, Employee, Plaintiff, v. AMERICAN AIRLINES/AMR CORP., Employer, AIG Vendor Services, Carrier, (Administered by Specialty Risk Services), Defendants.

No. COA04-1573.

Court of Appeals of North Carolina.

October 18, 2005.

Appeal by defendants from opinion and award entered 31 August 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 8 June 2005.

Brooks, Stevens & Pope, P.A., by Joy H. Brewer and Kimberley A. D'Arruda, Cary, for defendants-appellants.

Scudder & Hedrick, by John A. Hedrick, Raleigh, for plaintiff-appellee.

ELMORE, Judge.

Lori Perez (plaintiff) was employed by American Airlines/AMR Corporation (defendant) as a flight attendant beginning in 1983. On 3 July 1998 plaintiff was performing her job duties in London, England. While walking down a stairway carrying luggage, she slipped and fell. Plaintiff landed on her buttocks and immediately felt pain in her right leg, right hip, and lower back. Defendant filed a Form 60, admitting plaintiff's right to compensation, with the North Carolina Industrial Commission (Commission) on 17 July 1998. Pursuant to the Form 60, defendant paid plaintiff compensation for temporary total disability beginning on 9 July 1998 at a rate of $532.00 per week.

Plaintiff was treated by Dr. Dwayne Patterson beginning in August of 1998. Plaintiff returned to her position as a flight attendant on 1 November 1998. In April of 2000, plaintiff suffered a flare-up of the lower back pain symptoms she had been experiencing since the 1998 injury. Plaintiff testified that she received treatment from Dr. Patterson and was able to return to work in June of 2000. Defendant filed a Form 28B with the Commission stating that plaintiff's last indemnity compensation was paid on 21 June 2000 and that her last medical compensation was paid on 18 September 2000.

Following the events of 11 September 2001, plaintiff decided to resign from her position as a flight attendant in November of 2001. In January of 2002, plaintiff began a new position as a bank teller at RBC Centura. Plaintiff testified that her lower back pain started to intensify again in the spring of 2002. Plaintiff began receiving treatment from Dr. Dale Patrick, a chiropractor, on 23 July 2002. Dr. Patrick suspected that plaintiff might have a herniated disc. Plaintiff's condition worsened, and she was evaluated in the emergency department of Rex Hospital on 30 July 2002. Dr. Dennis Bullard reviewed plaintiff's MRI, which revealed that she had a herniated disc at L5-S1. Subsequently, on 2 August 2002, Dr. Bullard performed a microdiskectomy at L5-S1. Plaintiff stated that, due to her treatment and surgery, she was unable to work from 29 July 2002 through 30 August 2002. She returned to her position at RBC Centura and worked part-time through the end of September 2002, at which time she returned to full-time work.

Plaintiff filed a Form 18M, requesting additional medical compensation for her back injury, on 29 August 2002. Plaintiff also filed a Form 33 request for a hearing, claiming additional indemnity compensation. Defendant filed a response to plaintiff's request for hearing, denying her claims for additional compensation. The claims were heard before Deputy Commissioner George R. Hall on 13 May 2003. Deputy Commissioner Hall entered an opinion and award on 29 December 2003 awarding plaintiff temporary total disability compensation from 22 July 2002 through 2 September 2002; temporary partial disability compensation from 3 September 2002 through 26 September 2002; permanent partial disability compensation for 30 weeks beginning 6 January 2003; and additional future medical compensation. Defendant appealed to the Full Commission. On 31 August 2004 the Commission entered an opinion and award affirming the opinion and award of Deputy Commissioner Hall. Defendant filed timely notice of appeal to this Court.

Defendant raises the following issues on appeal: (1) whether the Commission erred in concluding that plaintiff's claim for additional indemnity compensation was not time-barred under Section 97-47 of our General Statutes; (2) whether the Commission erred in finding and concluding that plaintiff's herniated disc was causally related to her compensable injury of 1998; and (3) whether the Commission erred in concluding that plaintiff was entitled to additional medical compensation under N.C. Gen.Stat. § 97-25. We affirm on all three issues.

Applicability of Section 97-47

Defendant asserts that plaintiff's claim for additional indemnity compensation was barred under the time limitations stated in N.C. Gen.Stat. § 97-47. Section 97-47 provides, in pertinent part, that

upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded. . . . [N]o such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article[.]

N.C. Gen.Stat. § 97-47 (2003). It is undisputed that plaintiff filed her claim for additional indemnity compensation more than two years after the final payment of indemnity compensation. Nonetheless, plaintiff's claim was not time-barred if the statute has no applicability to the facts here. N.C. Gen.Stat. § 97-47 applies only where there has been a final award of workers' compensation benefits. See Beard v. Blumenthal Jewish Home, 87 N.C.App. 58, 60, 359 S.E.2d 261, 262 (1987) (citing Pratt v. Central Upholstery Co., Inc., 252 N.C. 716, 115 S.E.2d 27 (1960)), disc. review denied, 321 N.C. 471, 364 S.E.2d 918 (1988). We agree with defendant that an employer's payment of compensation pursuant to a Form 60 filed with the Commission is an enforceable award on the compensability of the employee's injury. See N.C. Gen.Stat. § 97-82(b) (2003) (payments pursuant to N.C. Gen.Stat. § 97-18(b), Form 60 payments, "shall constitute an award of the Commission on the question of compensability of and the insurer's liability for the injury for which payment was made."). However, we reject defendant's argument that an employer's Form 60 payments constitute a final award within the meaning of N.C. Gen.Stat. § 97-47.

The applicability of N.C. Gen.Stat. § 97-47 to an award which determines some aspects of the employee's claim but does not resolve permanent disability was addressed in Beard v. Blumenthal Jewish Home, 87 N.C.App. 58, 359 S.E.2d 261 (1987). In Beard, the plaintiff-employee injured her back during a work-related accident. The Commission approved a Form 21 agreement executed by the parties, wherein the employer admitted liability under the Workers' Compensation Act and agreed to pay the plaintiff compensation at a specified rate. Beard, 87 N.C.App. at 58-59, 359 S.E.2d at 261. The plaintiff returned to work and received the insurance carrier's final compensation payment in 1980. Id. at 59, 359 S.E.2d at 261. Following a surgery for a ruptured disc in 1983 and a recovery period, the plaintiff filed a claim for additional compensation in 1985. Id. The Commission concluded that the plaintiff's claim was time-barred under N.C. Gen.Stat. § 97-47 because the Form 21 agreement constituted a final award and the plaintiff failed to file the claim for additional compensation within two years of the last payment of compensation. Id. at 59-60, 359 S.E.2d at 261-62. This Court reversed, concluding that the Form 21 agreement was an interlocutory award because it did not determine the extent of the plaintiff's permanent disability. Id. at 60, 359 S.E.2d at 262. In fact, the agreement "said nothing about plaintiff either having or not having a permanent disability." Id. The Court explained that N.C. Gen.Stat. § 97-47 was enacted to "establish[] conditions under which otherwise final disability awards can be reviewed and revised when changes occur; it does not establish either a procedure or a limitations period for processing unresolved claims for permanent disability." Id. at 63, 359 S.E.2d at 264.

In the instant case, the Form 60 filed by defendant does not resolve the extent of plaintiff's permanent disability. Indeed, like the Form 21 agreement at issue in Beard, the Form 60 does not mention permanent disability. At most, the Form 60 payments were an interlocutory award resolving the issue of compensability but not the nature and extent of any disability. See Watts v. Hemlock Homes of the Highlands, Inc., 141 N.C.App. 725, 729, 544 S.E.2d 1, 3 (2001) ("By executing a Form 60 and paying compensation pursuant thereto, a defendant admits only the compensability of the employee's injury.") (emphasis added). The Form 60 payments of temporary total disability compensation did not constitute a final award contemplated by N.C. Gen.Stat. § 97-47. Thus, the Commission did not err in concluding that N.C. Gen.Stat. § 97-47 did not apply to bar plaintiff's claim for further indemnity compensation.

Causal Relationship

Next, defendant argues that there was no competent evidence to support the findings and conclusion of the Commission that plaintiff's herniated disc was causally related to her compensable injury of July 1998. The Commission made the following findings of fact on the expert causation testimony:

17. Dr. Bullard stated that he felt it was possible for plaintiff as a result of her injury at work to have sustained the injury she described and the damage to ligamentous structures which resulted in the ruptured disc on which he operated in 2002. He also stated that plaintiff's herniated disc was related to her compensable injury based upon her history of continuous recurrent symptoms since the time of the injury and the absence of those symptoms before the injury. Dr. Bullard felt to a reasonable degree of medical probability that plaintiff's central disc herniation at L5-S1 and her need for a microdiskectomy was a direct and natural...