Richardson v. Goodyear Tire & Rubber Co.
| Decision Date | 01 June 2021 |
| Docket Number | No. COA20-745,COA20-745 |
| Citation | 861 S.E.2d 356 |
| Parties | Hermena RICHARDSON, Employee, Plaintiff v. GOODYEAR TIRE & RUBBER COMPANY, Employer, Liberty Mutual Insurance Group, Carrier, Defendants. |
| Court | North Carolina Court of Appeals |
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, Greensboro, David P. Stewart, and Jay A. Gervasi, Jr., Greensboro, for plaintiff-appellant.
Young Moore and Henderson, P.A., by Jefferson P. Whisenant, for defendant-appellee.
¶ 1 Hermena Richardson ("Plaintiff") appeals from an Opinion and Award by the North Carolina Industrial Commission ("Commission") granting the Goodyear Tire & Rubber Company and Liberty Mutual Insurance Company's ("Defendants") motion to add additional evidence, affirming the deputy commissioner's Opinion and Award, and denying the award of attorney's fees. We affirm.
¶ 2 Plaintiff sustained compensable injuries in the course and scope of her employment to her bilateral shoulders on 21 October 2013. Plaintiff reached maximum medical improvement ("MMI") for her right shoulder injury and was given permanent restrictions in December 2014.
¶ 3 Plaintiff presented for a second evaluation by Dr. Brian Szura, who also found Plaintiff was at MMI for the right shoulder and assigned a 10% disability rating on 13 August 2015. The parties agreed Plaintiff was not disabled under the North Carolina Workers’ Compensation Act. Plaintiff was already out of work for an unrelated knee condition, followed by her unrelated back condition. Dr. Christopher Barnes opined Plaintiff had reached MMI for her bilateral shoulder injury in January 2016.
¶ 4 On 10 August 2016, the Commission entered the Consent Order memorializing the parties’ agreement. According to the Consent Order:
Employee has ... sustained no additional disability as a result of her compensable bilateral shoulder injury. Employee will not be entitled to indemnity benefits in the future unless and until she is taken out of work totally for her bilateral shoulder condition by her authorized treating physician or unless defendants are unable to accommodate bilateral shoulder work restrictions assigned by her authorized treating physician, in which case, Defendants have agreed to immediately reinstate temporary total disability benefits. (emphasis supplied).
¶ 5 The parties designated Dr. Peter Dalldorf as Plaintiff's authorized treating physician.
¶ 6 Two weeks after approval of the Consent Order, Dr. Dalldorf excused Plaintiff from work for two months on 29 August 2016 due to her left shoulder. Defendants re-instated temporary total disability compensation at the maximum compensation rate for 2013. This compensation continued to be paid at the time this appeal was filed.
¶ 7 Dr. Dalldorf opined Plaintiff had reached MMI for the left shoulder and assigned a 20% disability rating to the left arm and permanent work restrictions on 5 April 2017. Dr. Dalldorf noted the need to perform an isolated upper extremity functional capacity evaluation ("FCE") to determine Plaintiff's permanent restrictions. Plaintiff was unable to undergo the evaluation due to her unrelated back restrictions.
¶ 8 Plaintiff regularly visited Dr. Dalldorf to address her compensable shoulder injuries and attempted new treatments from October 2017 until October 2019. Defendants scheduled an independent medical examination with Dr. Marshall Kuremsky in November 2019. On 13 January 2020, Defendants asked Dr. Dalldorf to prescribe and order the previously indicated FCE for Plaintiff. Dr. Dalldorf responded he would not order an FCE. Plaintiff refused to participate in the FCE.
¶ 9 Defendants filed a motion to compel medical treatment before the Commission on 28 February 2020. They sought an order for Plaintiff to participate in an FCE pursuant to N.C. Gen. Stat. § 97-25 and 11 N.C. Admin. Code 23A.0609 of the Workers’ Compensation Rules. Defendants argued, pursuant to N.C. Gen. Stat. § 97-25, they direct Plaintiff's medical treatment, and medical compensation is defined "as may reasonably be required to effect a cure or give relief and ... will tend to lessen the period of disability" in accordance with N.C. Gen. Stat. § 97-2(19) (2019).
¶ 10 Special Deputy Commissioner Kimberly Fennell denied Defendants’ motion. Defendants filed a motion to reconsider their motion to compel medical treatment. Defendants again cited "medical compensation" as the basis pursuant to N.C. Gen. Stat. § 97-25. Special Deputy Commissioner Fennell agreed to hear the motion and again denied Defendants’ motion to compel medical treatment on 7 April 2020. Special Deputy Commissioner Fennell recommended the issue be raised before the Commission by requesting an appeal.
¶ 11 Defendant filed a Form 33: Request the Claim be Assigned for Hearing on 9 April 2020 in response to the special deputy commissioner's 7 April order. Defendants requested the scope of the hearing be limited to the legal issues raised in Defendants’ motion to compel medical treatment. The parties submitted a pre-trial agreement and stipulations.
¶ 12 Issues before Deputy Commissioner Lori Gaines included: (1) whether an FCE qualifies as medical compensation as defined in N.C. Gen. Stat. §§ 97-2(19) and 97-25 ; (2) whether the FCE was wholly unnecessary; and (3) whether Defendants should pay attorney fees pursuant to N.C. Gen. Stat. §§ 97-25(f)(5) and 97-88.1
¶ 13 Deputy Commissioner Gaines gave "great weight" to Dr. Dalldorf's revised opinion that an FCE was unsuitable. The commissioner found "Defendants acted unreasonably in waiting three years post MMI to request [an FCE]." Deputy Commissioner Gaines concluded: "[b]ased on the preponderance of evidence ... [the FCE] at issue is not medical compensation because it does not effect a cure, provide relief or lessen the period of disability." The Opinion and Award was entered 10 June 2020 pursuant to N.C. Gen. Stat. § 97-25(f). The deputy commissioner awarded Plaintiff attorney's fees, "[a]s sanctions for Defendants’ unreasonable engagement in stubborn, unfounded litigiousness of this claim."
¶ 14 Defendants filed a motion to reconsider the award of attorney's fees on 19 June 2020. Deputy Commissioner Gaines denied Defendants’ motion to reconsider and ordered Defendants to pay Plaintiffs’ attorney's fees pursuant to N.C. Gen. Stat. §§ 97-25(f)(5) and 97-88.1 in the amount of $11,075.00 for 44.3 hours worked defending Plaintiff's claims since February 2020. Defendants filed notice of appeal to the Full Commission along with a motion to admit additional evidence to present proof of Plaintiff's ongoing medical treatments.
¶ 15 The issues before the Full Commission included: (1) whether Defendant's motion to compel Plaintiff's FCE should be approved, and (2) whether Plaintiff is entitled to an award of attorney's fees pursuant to N.C. Gen. Stat. §§ 97-25(f)(5), 97-88.1.
¶ 16 The Commission found inter alia : (1) Defendants were made aware of Plaintiff reaching MMI for her left shoulder in March 2017; (2) Plaintiff received shoulder injections from October 2017 until August 2019; (3) Plaintiff indicated pain was no longer an issue on 10 August 2018; (4) Dr. Dalldorf ordered a diagnostic MRI for Plaintiff's right shoulder on 30 September 2019; (5) Dr. Dalldorf administered to Plaintiff additional injections and reviewed the MRI and noted he was "not really sure why [Plaintiff] is experiencing as much difficulty with her right shoulder as she is" on 14 October 2019; (6) Defendants scheduled an independent medical examination ("IME") two days later for 6 November 2019; and, (7) Dr. Kuremsky recommended the FCE at issue on 6 November 2019, which Dr. Dalldorf opined was not appropriate because it would not give the physician any information regarding Plaintiff's ability to return to work given the other injuries.
¶ 17 The Commission concluded, "[the FCE] in dispute in this matter is not reasonably necessary to effect a cure, provide relief, or lessen the period of disability as a result of Plaintiff's compensable injuries." The Commission further concluded "Defendants have not acted unreasonably by initiating the underlying medical motion pursuant to N.C. Gen. Stat. § 97-25(f)" and denied an award of attorney's fees for Plaintiff. Plaintiff appeals.
¶ 18 An appeal lies with this Court from the Industrial Commission pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 97-86 (2019).
¶ 19 Whether the Commission's findings of fact and conclusions of law are insufficient to support the decision not to award attorney's fees to Plaintiff when the Commission determined Defendants brought this action as an expedited medical motion pursuant to N.C. Gen. Stat. § 97-25(f), and the FCE at issue was determined not to constitute medical compensation under the act.
¶ 20 Review of an opinion and award of the Industrial Commission "is limited to consideration of whether competent evidence supports the Commission's findings of fact and whether the findings support the Commission's conclusions of law." "This court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Richardson v. Maxim Healthcare/Allegis Grp. , 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted).
¶ 21 "The decision whether to award or deny attorney's fees rests within the sound discretion of the Commission and will not be overturned absent a showing that the decision was manifestly unsupported by reason." Bell v. Goodyear Tire & Rubber Co. , 252 N.C. App. 268, 279, 798 S.E.2d 143, 151 (2017) (citation omitted). This Court reviews the Commission's conclusions of law de novo. Id. at 272, 798 S.E.2d at 147.
¶ 22 The Workers’ Compensation Act provides "a party may file a motion as set forth in this subsection regarding a request for medical compensation or a dispute involving medical issues." N.C. Gen. Stat. § 97-25(f). Defendants defended the...
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