Shaw v. US Airways, Inc.

• Decision Date: 20 December 2011
• Docket Number: No. COA11–284.,COA11–284.
• Citation: 720 S.E.2d 688
• Parties: Linda SHAW, Widow of Curry Shaw, Deceased Employee, Plaintiff v. US AIRWAYS, INC., Employer, American Protection Insurance Co., Carrier, Defendants.
• Court: North Carolina Court of Appeals

720 S.E.2d 688

Linda SHAW, Widow of Curry Shaw, Deceased Employee, Plaintiff

v.US AIRWAYS, INC., Employer, American Protection Insurance Co., Carrier, Defendants.

No. COA11–284.

Court of Appeals of North Carolina.

Dec. 20, 2011.

Appeal by defendants from opinion and award entered 17 December 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 September 2011.

The Sumwalt Law Firm, Charlotte, by Vernon Sumwalt and Mark T. Sumwalt, for plaintiff-appellee.

Littler Mendelson, P.C., Pittsburgh, by Kimberly A. Zabroski, for defendant-appellant.

BRYANT, Judge.

Because there was no determination of disability by the Commission, plaintiff's claim for death benefits was not barred pursuant to N.C. Gen.Stat. § 97–38. Further, because there was competent evidence in the record to support the Commission's findings of fact determining that Curry Shaw's death proximately resulted from a compensable injury, we affirm the Commission's opinion and award.

On 12 July 2000, plaintiff Curry Shaw worked as a fleet-services worker for defendant U.S. Airways. While lifting a piece of luggage from a baggage carousel, Shaw suffered an injury to his lower back. In August, U.S. Airways filed an Employer's Report of Injury to Employee. On 24 August 2000, U.S. Airways and its insurance carrier filed a Form 60, Employer's Admission of Employee's Right to Compensation Pursuant to N.C. Gen.Stat. § 97–18(b). On the form, U.S. Airways acknowledged that temporary total compensation in the amount of $550.36 per week was paid to Shaw. On 16 April 2003, U.S. Airways and its insurance carrier, American Protection Insurance Company (collectively “defendants”) filed a Form 62 again acknowledging that temporary total disability compensation at a rate of $550.36 per week was being paid to Curry Shaw.

Contesting the calculation of the average weekly wage, Shaw filed a Form 33, Request that Claim be Assigned for Hearing, and, on 25 May 2005, the matter was heard before Deputy Commissioner Phillip A. Holmes.

On 3 October 2005, Deputy Commissioner Holmes filed an opinion and award making the following pertinent findings based on the stipulation of the parties: (1) “The date of the admittedly compensable injury in this claim [was] July 12, 200[0]”; and (6) “[s]ince August 5, 200[0], Defendants have paid $550.36 each week to Plaintiff for total disability, based on an assumed weekly wage of $825.55 during the fifty-two weeks preceding July 12, 2000.” The matter of the calculation of Shaw's average weekly wage was further considered by the Full Commission (the Commission), this Court, and our Supreme Court: Shaw v. U.S. Airways, Inc., 186 N.C.App. 474, 652 S.E.2d 22 (2007), rev'd, 362 N.C. 457, 665 S.E.2d 449 (2008). The opinion of our Supreme Court, Shaw v. U.S. Airways, Inc., 362 N.C. 457, 665 S.E.2d 449 (2008), was filed 27 August 2008. On 25 September 2008, Curry Shaw died.

On 8 April 2009, Curry Shaw's wife, Linda Shaw, filed a Form 18, Notice of Accident to Employer and Claim of Employee, Representative, or Dependent, claiming, on her husband's behalf, “death as a consequence of compensable injury.” The same day, Shaw filed a Form 33, Request that Claim be Assigned for Hearing.

On 17 June 2009, the matter was heard before Deputy Commissioner Philip A. Baddour, III. And, on 7 June 2010, the deputy commissioner filed an opinion and award concluding that Curry Shaw's death was the proximate result of his 12 July 2000 compensable injury and that his wife, Linda Shaw, was entitled to death benefits at a rate of $550.36 per week for the rest of her life, unless she remarries. Defendants appealed to the Full Commission (the Commission).

On 17 December 2010, the Commission entered an opinion and award finding that the case had been the subject of prior litigation resulting in the Supreme Court decision Shaw v. U.S. Airways, Inc., 362 N.C. 457, 665 S.E.2d 449 (2008), but noted that “[t]he prior litigation did not produce a final determination of decedent's disability.” The Commission concluded that on 12 July 2000, Curry Shaw suffered an admittedly compensable injury, and, as a direct and natural result, he experienced back pain. To help manage the pain, Curry Shaw's authorized treating physician, Dr. Douglas Pritchard, prescribed methadone. Curry Shaw took methadone in increasing dosages for over four-and-a-half years prior to his death. The Commission concluded that Curry Shaw died of methadone toxicity—a direct result of his methadone use and a proximate result of his original compensable back injury. The Commission further concluded that Curry Shaw “was paid temporary total disability pursuant to a Form 60 and subsequent Forms 62 until his death. At the time of [Curry Shaw's] death no ‘final determination of disability’ had been made within the meaning of N.C. Gen.Stat. § 97–38” and, therefore, “plaintiff's claim for death benefits [was] not barred by N.C. Gen.Stat. § 97–38.”

Defendants were ordered to pay death benefits to Linda Shaw in the amount of $550.36 per week continuing for the remainder of her life or until remarriage. Defendants appeal.

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On appeal, defendants raise two issues: Did the Commission err in concluding that (I) Shaw's claim for death benefits was timely filed; and (II) Shaw's death proximately resulted from the 12 July 2000 compensable injury.

Standard of Review

On appeal of cases from the Industrial Commission, our review is limited to two issues: Whether the Commission's findings of fact are supported by competent evidence and whether the Commission's conclusions of law are justified by its findings of fact. Because it is the fact-finding body, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The Commission's findings of fact are conclusive on appeal if they are supported by any competent evidence. Accordingly, this Court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding.Johnson v. Lowe's Cos., 143 N.C.App. 348, 350, 546 S.E.2d 616, 617–18 (2001) (citations and quotations omitted).

I

Defendants argue that plaintiff's claim for death benefits is barred by the statute of limitations. Curry Shaw died on 25 September 2008. Defendants note, and we agree, that this occurred more than six years after the date of Curry Shaw's 12 July 2000 injury. However, defendants argue that more than two years passed after entry of Deputy Commissioner Holmes' opinion and award making the uncontested finding that defendants paid Curry Shaw $550.36 each week for temporary total disability. Defendants contend that this uncontested finding amounts to a final determination of disability and, as a result, Linda Shaw's 8 April 2009 claim for death benefits was untimely and barred by the statute of limitations under N.C. Gen.Stat. § 97–38. We disagree.

Under North Carolina General Statutes, section 97–38,

If death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation equal to sixty-six and two-thirds percent (66 2/3 %) of the average weekly wages of the deceased employee at the time of the accident....

N.C. Gen.Stat. § 97–38 (2009). As noted by the Commission in the opinion and award entered 17 December 2010, defendants paid temporary total disability to Curry Shaw pursuant to a Form 60 and subsequent Forms 62. Entry of these forms raises only a presumption of disability, not a final determination. See Treat v. Mecklenburg County, 194 N.C.App. 545, 669 S.E.2d 800 (2008).

Under the Workers' Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity. Thus, the employee has the burden “to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment.” Russell v. Lowes Product Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993)....

Knight v. Wal–Mart Stores, Inc., 149 N.C.App. 1, 7, 562 S.E.2d 434, 439 (2002) (citations omitted).

There is nothing in the record to indicate that Shaw was paid anything other than temporary total benefits pursuant to Forms 60 and 62. See Estate of Apple v. Commercial Courier Express, Inc., 165 N.C.App. 514, 598 S.E.2d 625 (2004) (finding that a Form 21 was not a final determination of disability).

Therefore, as there was no determination of Curry Shaw's final determination of disability prior to the Commission's 17 December 2010 opinion and award determining that his death was the proximate result of his 12 July 2000 compensable injury, Linda Shaw's 8 April 2009 claim for death benefits was not untimely and not barred by the statute of limitations under N.C. Gen.Stat. § 97–38. Accordingly, defendants' argument is overruled.

II

Next, defendants argue that the Commission erred in concluding that Curry Shaw's death proximately resulted from the 12 July 2000 compensable injury. Defendants contend that (A) the Commission's finding that Curry Shaw took methadone in “substantial compliance” with his authorized physician's prescription is unsupported; (B) Curry Shaw's death was caused by a non-work related fatty liver disease; and (C) the medical expert testimony presented fails to support a conclusion of proximate cause.

Workers Compensation death benefits are governed by section 97–38 of the North Carolina General Statutes. Booker–Douglas v. J & S Truck Serv., 178 N.C.App. 174, 177, 630 S.E.2d 726, 729 (2006). “For death benefits to be awarded under this statute, a compensable injury must be the proximate cause of the employee's death.” Id. (citation...