Saums v. Raleigh Community Hosp.

• Decision Date: 24 July 1997
• Docket Number: No. 494PA96,494PA96
• Citation: 346 N.C. 760,487 S.E.2d 746
• Court: North Carolina Supreme Court
• Parties: Hattie SAUMS, Employee, v. RALEIGH COMMUNITY HOSPITAL, Employer, Continental Insurance Company (Continental Loss Adjusting, Adjusting Agent), Carrier.

Page 746

487 S.E.2d 746

346 N.C. 760

Hattie SAUMS, Employee, v. RALEIGH COMMUNITY HOSPITAL, Employer,

Continental Insurance Company (Continental Loss Adjusting,

Adjusting Agent), Carrier.

No. 494PA96.

Supreme Court of North Carolina.

July 24, 1997.

Law Offices of Robin E. Hudson by Robin E. Hudson, and Law Offices of Nancy P. White by Nancy P. White, Raleigh, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham, L.L.P. by Thomas M. Clare and Mallory A. Taylor, Raleigh, for defendant-appellees.

ORR, Justice.

Plaintiff-employee, Hattie Saums, sustained an injury to her back on 22 September 1989 while employed as a housekeeper at defendant Raleigh Community Hospital. On 23 October 1989, the parties entered into North Carolina Industrial Commission Form 21, which is an "Agreement for Compensation for Disability." The Form 21 agreement was approved by the Commission on 28 December 1989. The agreement provided that defendants agreed to compensate plaintiff $168.01 per week for her disability continuing for the number of weeks deemed necessary. Plaintiff underwent surgery for her injuries in November 1989 and January 1990.

In March 1990, plaintiff was released to return to work with restrictions of "[lifting] no more than 25 pounds ... [and] no prolonged climbing[ ] or crawling." Plaintiff resumed her job as a housekeeper at the hospital, but continued to complain of leg pain. Because of this pain, she once again left work to undergo further testing. However, the surgical reexploration and diagnostic tests revealed no evidence of any recurrent disc problems, and plaintiff returned to work. On 4 April 1990, after working for only two days, plaintiff reported to her orthopedic surgeon, Dr. David Fajgenbaum, that she had begun experiencing back and hip pain again. As a result of plaintiff's complaints, Dr. Fajgenbaum performed a laminectomy and fusion on plaintiff on 7 June 1990.

Plaintiff once again returned to work on 21 January 1991. Upon returning to her employment with defendant Raleigh Community Hospital, plaintiff was offered the position of quality control clerk. This position was, as stated by defendant's director of human resources, "a new position created for [plaintiff's] return to the work place." The duties of the quality control clerk included filing, coordinating quality control inspection sheets, counting linens, taking inventory of supplies, and picking up master checkout sheets. Subsequent to plaintiff's return to work, Dr. Fajgenbaum assigned a thirty percent permanent partial disability rating to plaintiff's back. Plaintiff continued to complain of an increase in pain and difficulty with her restricted work duty and left work on 7 February 1992. Between February and July of 1992, plaintiff had numerous additional tests, none of which revealed the cause for plaintiff's continued pain.

Plaintiff was paid compensation for several periods of temporary total disability through 1 July 1992, when she filed a Form 33 request for a hearing. The issues to be decided at the hearing were (1) whether plaintiff was entitled to compensation benefits from 7 February 1992 through 25 February 1992 and from 7 March 1992 through 21 July 1992, and (2) whether plaintiff was entitled to any additional compensation benefits beyond her medical release in December 1992. After the Form 33 was filed, plaintiff underwent additional surgery to remove the hardware used in the fusion. A Form 26 agreement was then prepared, which provided plaintiff compensation of $168.01 per week beginning on 22 July 1992 and lasting for the number of weeks deemed necessary. On 16 December 1992, Dr. Fajgenbaum released plaintiff from his care and stated in a letter to defendant hospital that he could not "find any hard reason why this patient should not be allowed to return to the job that was created by you which would eliminate any strenuous activities." However, plaintiff did not return to the position of quality control clerk. A controversy arose over whether plaintiff was required to return to the job that had been created for her return to the workplace or whether she had a right to continue receiving compensation benefits.

This case was heard before Deputy Commissioner Scott M. Taylor on 20 April 1993. Both parties presented evidence and submitted stipulated medical records. On 24 November 1993, the deputy commissioner issued an opinion and award granting, inter alia, compensation benefits for temporary total disability beginning 22 July 1992 and continuing "until plaintiff returns to work or defendants obtain permission from the Industrial Commission to cease payment of temporary total disability compensation, whichever first occurs." The deputy commissioner further found in his opinion and award that plaintiff's refusal to return to work in the "newly created" position was justified. The Industrial Commission affirmed the deputy commissioner's award on 22 March 1994.

Defendants appealed to the Court of Appeals, which, in a unanimous opinion, reversed the Commission and remanded for "entry of a new Opinion and Award." In the opinion below, the Court of Appeals held that "the Commission failed to give the employer the benefit of the presumption that the newly created job of Clerk was ordinarily available in the competitive job market." Saums v. Raleigh Community Hosp., 124 N.C.App. 219, 221, 476 S.E.2d 372, 374 (1996). Plaintiff subsequently filed a petition for discretionary review with this Court. On 7 February 1997, plaintiff's petition was allowed as a writ of certiorari because the petition for discretionary review was not timely filed.

The principal issue in this case is whether the Court of Appeals erred in creating a presumption that a newly created, post-injury job offered to an employee is of a type generally available in the competitive job market. Plaintiff argues that no such presumption exists under North Carolina law. We agree with plaintiff and, accordingly, reverse the Court of Appeals.

"In order to obtain compensation under the Workers' Compensation Act, the claimant has the burden of proving the existence of his disability and its extent." Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). To support a conclusion of disability, the Commission must find: (1) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in the same employment, (2) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment, and (3) that the plaintiff's incapacity to earn was caused by his injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). Further, our case law has consistently held that once a Form 21 agreement is entered into by the parties and approved by the Commission, a presumption of disability attaches in favor of the employee. See Watkins v. Central Motor Lines, Inc., 279 N.C. 132, 137-38, 181 S.E.2d 588, 592 (1971); Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C.App. 72, 76-77, 476 S.E.2d 434, 436-37 (1996), disc. rev. denied, 345 N.C. 343, 483 S.E.2d 169 (1997); Dalton v. Anvil Knitwear, 119 N.C.App. 275, 282-83, 458 S.E.2d 251, 256-57, disc. rev. denied and cert. denied, 341 N.C. 647, 462 S.E.2d 507 (1995); Radica v. Carolina Mills, 113 N.C.App. 440, 447, 439 S.E.2d 185, 190 (1994). After the presumption attaches, "the burden shifts to [the employer] to show that plaintiff is employable." Dalton, 119 N.C.App. at 284, 458 S.E.2d at 257.

"[A]bsent a settlement with the employee, an award of [permanent partial] disability cannot be undone without resort to a lawful determination by the Commission that the employee's disability no longer exists--which will require the application of law to fact and, therefore, a hearing." Kisiah, 124 N.C.App. at 80, 476 S.E.2d at 438. N.C.G.S. § 97-83 provides, in pertinent part:

[I]f [the employer and employee] have reached such an agreement [for disability payments] which has been signed and filed with the Commission, and compensation has been paid or is due in accordance therewith, and the parties thereto then disagree as to the continuance of any weekly payment under such agreement, either party may make application to the Industrial Commission for a hearing in regard to the matters at issue, and for a ruling thereon.

N.C.G.S. § 97-83 (1991). The employee need not present evidence at the hearing unless and until the employer, "claim[ing] that the plaintiff is capable of earning wages[,] ... come[s] forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations." Kennedy v. Duke Univ. Med. Ctr., 101 N.C.App. 24, 33, 398 S.E.2d 677, 682 (1990).

Here, a Form 21 agreement was signed by defendants on 23 October 1989 and provided that defendants agreed to compensate plaintiff $168.01 per week for her disability continuing for the number of weeks deemed necessary. The agreement was approved by the North Carolina Industrial Commission on 28 December 1989. Thus pla...