Spain v. Spain
| Decision Date | 16 September 2014 |
| Docket Number | No. COA14–312.,COA14–312. |
| Citation | 765 S.E.2d 556 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | David J. SPAIN, Employee, Plaintiff, v. David J. SPAIN d/b/a Spain's Mobile Home Movers, Employer, Companion Property & Casualty Group, Carrier, Defendants. |
Mast, Mast, Johnson, Wells & Trimyer P.A., by Charles D. Mast, for plaintiff.
Hedrick, Gardner, Kincheloe & Garofalo, LLP, by M. Duane Jones, Matthew J. Carrier, and Tracie H. Brisson, for defendants.
Both plaintiff David J. Spain and defendants David J. Spain d/b/a Spain's Mobile Home Movers and Companion Property & Casualty Group appeal from an opinion and award of the Industrial Commission terminating plaintiff's temporary total disability benefits for his right arm injury by accident, but ordering defendants to authorize and pay for further medical treatment of plaintiff's right arm injury.
On appeal, plaintiff primarily argues that the Commission misapplied the test set forth in Lanning v. Fieldcrest–Cannon, Inc. .,352 N.C. 98, 107, 530 S.E.2d 54, 61 (2000), for determining whether a claimant's ownership of a business supports a finding that he has earning capacity such that he is not totally disabled. However, because there is competent evidence to support the Commission's findings that plaintiff has demonstrated wage earning capacity through his active involvement and the skills he obtained in the running of an auto repair shop and those findings support the Commission's conclusion that plaintiff was no longer totally disabled, we affirm the termination of benefits.
Defendants argue that the Commission erred in awarding further medical treatment for plaintiff's right arm complaints and, specifically, for ordering defendants to authorize and pay for plaintiff to undergo a psychiatric evaluation. We hold that the Commission properly applied the presumption set out in Parsons v. Pantry, Inc.,126 N.C.App. 540, 485 S.E.2d 867 (1997), and found that plaintiff's current complaints are related to plaintiff's original compensable injury, requiring defendants to pay for additional treatment of plaintiff's right arm symptoms, including a psychiatric evaluation related to plaintiff's right arm paralysis.
Facts
At the time of the hearing before the deputy commissioner, plaintiff was 30 years old. Plaintiff dropped out of high school in the tenth grade and later completed his GED. Prior to working for defendant-employer, plaintiff had worked as a truck driver, mobile home maintenance worker, and tree remover. In 2006, plaintiff was employed by his father, defendant-employer David J. Spain d/b/a Spain's Mobile Home Movers, who was in the business of transporting and setting up mobile homes. Plaintiff's work was very physical in that it involved, among other things, crawling under trailers and lifting up to about 200 pounds.
On 21 November 2006, plaintiff was using an auger machine to drill an anchor into the ground. While holding on to the auger machine with his right hand, plaintiff accidentally drilled into an underground power line and sustained an electric shock injury. Plaintiff was taken to the emergency department of Beaufort County Hospital where he complained of right upper extremity numbness. On 28 November 2006, defendant-employer filed a Form 19 reporting plaintiff's injury.
Following the injury, plaintiff consistently reported to medical providers that he was unable to move his right upper extremity and was numb below his right elbow. Plaintiff came under the care of Dr. J. Gregg Hardy, a neurologist, whom he initially saw in the emergency room at Pitt County Memorial Hospital on 27 November 2006. After seeing plaintiff on 6 February 2007, Dr. Hardy noted that although proximal muscles of plaintiff's right arm had recovered, plaintiff still reported being unable to move his right hand. Dr. Hardy believed that “there is a probable psychiatric component to this” and ordered a Minnesota Multiphasic Personality Inventory (“MMPI”) test for plaintiff.
On 21 March 2007, Dr. Hardy noted that plaintiff was able to move his right wrist, but reported that he was unable to curl or straighten the fingers of his right hand. The MMPI results suggested to Dr. Hardy that plaintiff may have a somatoform disorder, which is a psychological condition. A patient with a somatoform disorder unconsciously focuses on physical symptoms and perceives them as more significant than they actually are. Plaintiff underwent a cervical MRI on 28 March 2007 that showed minimal cervical spondylosis with right eccentric disc bulge at C5–6 and mild multilevel uncovertebral joint spurring and no evidence of neural impingement or cord deformity.
On 8 May 2007, plaintiff saw Dr. Robert C. Frere, a neurologist, who noted that there was no objective evidence of a lower neuron injury that would account for plaintiff's right hand paralysis. Dr. Frere ordered a brain MRI which showed no acute intracranial abnormality. Dr. Frere referred plaintiff for physical and occupational therapy, but plaintiff, after undergoing therapy, reported on 8 November 2007 no change in his distal right arm weakness. Dr. Frere believed that plaintiff's persistent right upper extremity condition was related to a somatoform disorder and that the original electrical injury more likely than not contributed to plaintiff's psychological condition.
On 8 February 2008, plaintiff presented to Dr. Stuart Busby at the UNC Neurology Clinic, complaining about his right arm and about severe headaches that he had three to four times a week beginning after his injury. On 4 April 2008, Dr. Busby noted that the headaches and paralysis of plaintiff's right arm were probably related to his injury, but concluded that plaintiff had no determinable neurological impairment.
On 9 March 2009, plaintiff saw Dr. Ann Nunez, a physiatrist, who performed a functional capacity evaluation (“FCE”) of plaintiff. Dr. Nunez concluded that plaintiff could work at a sedentary capacity and exert up to 10 pounds of force occasionally. On 16 March 2009, Dr. Nunez recommended that plaintiff return to work. She also noted that none of the medical providers had made any physiological findings that could explain plaintiff's continuing inability to move his right upper extremity and recommended a psychiatric evaluation.
On 22 June 2009, defendants filed a Form 60 admitting compensability for plaintiff's injury to his right arm. The form stated that disability resulting from the injury began on 22 November 2006 and that compensation commenced on 29 November 2006.
In February 2010 defendants began providing plaintiff with vocational rehabilitation from Richard Cowan. In July 2010, plaintiff took an online insurance course but did not pass the exam. In June 2011, plaintiff enrolled in an EKG Monitor Technician course, which he successfully completed, but then did not obtain a job in that field.
In January 2011, plaintiff and his wife opened Wharton Station Tire and Auto Care, a business providing auto and truck servicing. Plaintiff obtained an inspection mechanic license and on 4 March 2011, the North Carolina DMV issued Wharton Station an “Official Inspection Station Certificate.” Plaintiff and his wife reported that Wharton Station had a net profit of $22,131.00 for 2011 which constituted the entirety of their reported income for that year. On 23 May 2011 and 8 December 2011, plaintiff executed Form 90s that stated: “I do not know what your definition of work is, but I do hang around Wharton Station Tire & Auto Care during the day and may occasionally try to do something helpful.”
On 22 December 2011, defendants filed a Form 24 application to terminate or suspend payment of compensation pursuant to N.C. Gen.Stat. § 97–18.1. The form stated that Defendants filed a Form 33 Request for Hearing dated 28 December 2011. On 8 February 2012 Special Deputy Commissioner Jennifer S. Boyer entered an administrative decision and order stating that she was unable to reach a decision on the Form 24 Application following an informal hearing.
Following a full evidentiary hearing on 26 July 2012, Deputy Commissioner Robert J. Harris entered an opinion and award on 7 March 2013. The deputy commissioner concluded that because plaintiff is actively involved in the daily operation of Wharton Station and has shown that he has wage-earning capacity in the competitive market, plaintiff was no longer totally disabled and defendants were entitled to terminate payment of temporary total disability compensation. To the extent plaintiff could show that he remained partially disabled, the deputy commissioner found that plaintiff was no longer entitled to partial disability compensation because the 300–week period from the date of plaintiff's injury had passed. The deputy commissioner further concluded that defendants failed to rebut the presumption that further medical treatment for plaintiff's right upper extremity condition was directly related to his original compensable injury, and ordered defendants to authorize and pay for future medical treatment, including a psychiatric evaluation of plaintiff. Both parties appealed to the Full Commission.
On 26 August 2013, plaintiff filed a Notice of Change of Condition and Motion to Reinstate Compensation, or In the Alternative, Motion for New Evidence, asserting that Wharton Station closed on 30 March 2013 because it was operating at a loss. The Commission entered an opinion and award on 28 October 2013 in which it denied plaintiff's motion and affirmed the deputy commissioner's opinion and award. With respect to plaintiff's 26 August 2013 motion, the Commission specified that “[a]ny further issues in this claim related to any period after 11 December 2012[, the date the record was closed,] may be raised by either side through the filing of a new Form 33 Request That Claim be...
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