Richardson v. Maxim Healthcare/Allegis

Citation669 S.E.2d 582,362 N.C. 657
Decision Date12 December 2008
Docket NumberNo. 102A08.,102A08.
PartiesPenny M. Rumple RICHARDSON, Employee v. MAXIM HEALTHCARE/ALLEGIS GROUP, Employer, Kemper Insurance Company/American Protection Insurance c/o Specialty Risk Services, Carrier.
CourtUnited States State Supreme Court of North Carolina

Anne R. Harris, Greensboro; and Lennon & Camak, PLLC, by George W. Lennon, Raleigh, for plaintiff-appellant.

Robinson & Lawing, L.L.P., by Jolinda J. Babcock, Winston-Salem, for defendant-appellees.

HUDSON, Justice.

This workers' compensation case concerns two issues: 1) sufficiency of notice to the employer of an injury by accident, and 2) whether competent evidence supported the Industrial Commission's findings about the need to replace plaintiff's left breast implant. We conclude that in enacting N.C.G.S. § 97-22, the General Assembly did not intend to require an injured worker to give written notice when the employer has actual notice of her on-the-job injury, as the employer had here. Further, we find the evidence of the need to replace the left implant to be insufficient. As discussed below, we affirm in part, reverse in part, and remand.

On 16 May 2001, plaintiff Penny Rumple Richardson was injured in a motor vehicle collision while on her job as a certified nursing assistant. Plaintiff's evidence showed that she suffered numerous injuries, including to her chest. Within thirty minutes after the crash, while on the way to the emergency room, she called her supervisor by telephone to report the incident and request that he send someone to care for her patient in her absence. She did not give written notice until she filed a Form 18 (Notice of Accident to Employer and Claim of Employee for Workers' Compensation Benefits) with the Industrial Commission in June 2002.

Plaintiff saw her family physician for facial injuries and body soreness the day after the wreck. She also saw a plastic surgeon, David Bowers, M.D., beginning on 31 May 2001 and "complained of ruptured breast implants." On 7 June 2001, Dr. Bowers replaced both implants. He testified that the right implant did appear to be ruptured, but that "the left implant did not appear to me to be—to have been ruptured." Plaintiff also sought treatment for her knee from an orthopedic surgeon. Collectively, these physicians took her out of work until 6 August 2001. Plaintiff then worked until 6 October 2001, when she had surgery on her right knee. She performed sporadic light-duty jobs for her employer until shortly before another knee surgery on 25 June 2002. Since that date, she has been under restrictions and has not worked.

Following the accident, plaintiff filed a claim with Nationwide Insurance, her own motor vehicle carrier, because the at-fault driver of the other car did not stop and was never located. After receiving her final check from Nationwide in payment for her personal injuries, plaintiff filed her claim for workers' compensation benefits with the Industrial Commission in June 2002.

Defendants denied liability for the claim. The matter was heard before a deputy commissioner, who awarded plaintiff temporary total disability compensation and ordered defendants to pay all related medical expenses.

Defendants appealed to the Full Commission, which filed a divided decision on 15 March 2006 affirming the deputy with modifications. Defendants appealed to the Court of Appeals. On 5 February 2008, a divided panel of that court affirmed in part, reversed in part, and remanded the matter to the Commission for further proceedings. The majority agreed with defendants that the Full Commission erred in failing to address properly whether plaintiff reported her claim as required by N.C.G.S. § 97-22 and concluded that she failed to show a causal connection between the accident and any damage to her left breast implant. We reverse on the issue of notice, but affirm on the question of whether there was competent evidence to support the award of benefits for replacement of the left implant.

The standard of review in workers' compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court. N.C.G.S. § 97-86 (2007); e.g. Deese v. Champion Int'l Corp., 352 N.C. 109, 530 S.E.2d 549 (2000). Under the Workers' Compensation Act, "[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony." Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965). Therefore, on appeal from an award of the Industrial Commission, review 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. Adams v. AVX Corp., 349 N.C. 676, 681-82, 509 S.E.2d 411, 414 (1998). This "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.

The Commission made the following findings of fact and mixed findings of fact and conclusions of law1 relevant to the two issues before this Court:

4. The plaintiff called her supervisor, David Popp, to report the accident within thirty minutes of the incident. She requested that he send a staff member to care for her patient. The defendants acknowledge the plaintiffs same-day notification of the accident as indicated on the Form 19 dated August 9, 2002. The defendants did not send another staff member to care for the plaintiff's patient.

. . . .

8. The plaintiff began to experience a decrease in the size of her breast implants almost immediately after the accident. She reported her concerns to the physicians at the emergency room, where a visual inspection was performed, and no asymmetry noted.

9. The plaintiff followed up with Dr. David Bowers, a plastic surgeon, on May 31, 2001, regarding her breast implants. She reported a decrease in the size of her implants since the accident. On June 7, 2001, Dr. Bowers performed bilateral breast re-augmentation, removing Plaintiff's original breast implants and replacing them with new implants. Dr. Bowers testified that the right breast implant had a leak at the time it was removed, but the left one did not appear to have ruptured. He replaced both implants with fully filled 475 cc implants. Dr. Bowers billed and was paid by Nationwide Insurance for his work, pursuant to plaintiff's claim with Nationwide. Dr. Bowers restricted the plaintiff from work from June 7, 2001, the date of her surgery, until July 26, 2001.

10. The damage to plaintiff's breast implants were [sic] caused or aggravated by the accident. Dr. Bowers testified that the accident caused the leak he found in the plaintiff's right breast implant. He was not certain whether the accident caused the rippling in her left breast implant or whether the rippling was from normal wear and tear. However, Dr. Bowers noted that, even if there was deterioration of the implants pre-accident, the trauma to the plaintiff's chest would "most definitely" have accelerated or aggravated the process. Dr. Bowers replaced both implants, even though only one had ruptured, because the replacements would have to be symmetrical and evenly matched. Replacement of one implant required replacement of both.

. . . .

27. Defendants had no reasonable basis upon which to deny the plaintiff's claim. The defendants also failed to admit or deny the plaintiff's claim for injuries that she sustained in the May 16, 2001 accident in that they had actual notice of her injury by accident within 30 minutes of the time of the accident and have known about the medical treatment plaintiff has received as it was performed.

28. The plaintiff notified the defendant-employer about her accident on May 16, 2001, within thirty minutes. Her notice was timely. She gave written notice, by filing a Form 18 in June 2002. In light of the defendants' actual notice of the plaintiff's accident in May 2001, the defendants were not prejudiced by her failure to immediately file a written notice.

29. The defendants have not denied this claim within the prescribed time period as set forth in N.C. Gen.Stat. § 97-18, despite their actual notice. Thus, the Full Commission finds the amount of $250.00 to be a reasonable sanction for the defendants' failure to comply with the filing requirements of N.C. Gen.Stat. § 97-18.

We begin by considering whether the majority in the Court of Appeals erred in remanding to the Full Commission for additional findings of fact and conclusions of law concerning whether plaintiff satisfied the notice requirements of N.C.G.S. § 97-22. As discussed below, we conclude that the Commission's findings and conclusions were adequate and the Court of Appeals' decision to remand was in error.

N.C.G.S. § 97-22 provides:

Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident, ... unless it can be shown that the employer, his agent or representative, had knowledge of the accident, ...; but no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.

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