Sperry v. Koury Corporpation, No. CO A09-391 (N.C. App. 1/19/2010), CO A09-391.
| Decision Date | 19 January 2010 |
| Docket Number | No. CO A09-391.,CO A09-391. |
| Parties | HELEN K. SPERRY, Plaintiff, v. KOURY CORPORPATION, Employer-Defendant, and SELECTIVE INSURANCE COMPANY, Carrier-Defendant. |
| Court | North Carolina Court of Appeals |
Appeal by Plaintiff from Opinion and Award of the North Carolina Industrial Commission entered 3 February 2009. Heard in the Court of Appeals 30 September 2009.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner and Jeanette F. Gray, for Plaintiff.
Rudisill, White & Kaplan, P.L.L.C., by Bradley H. Smith, for Defendants.
Plaintiff Helen K. Sperry appeals from the 3 February 2009 Opinion and Award of the North Carolina Industrial Commission affirming with modifications the 26 June 2008 Opinion and Award of Deputy Commissioner Bradley W. Houser denying Plaintiff total disability compensation benefits subsequent to 1 September 2006 while awarding Plaintiff "all related medical expenses incurred or to be incurred by plaintiff as the result of her injury by accident, for so long as such examinations, evaluations and treatments may reasonably be required to effect a cure, give relief or tend to lessen plaintiff's period of disability." After careful consideration of the record in light of the applicable law, we conclude that the Commission's decision should be affirmed.
Plaintiff was born on 24 February 1950 and began her employment with Defendant Koury Corp. as a resident manager on 15 March 1985. At the time of her initial employment with Koury, Plaintiff managed two apartment complexes. Plaintiff's duties as resident manager included leasing, checking apartments, evictions, generating reports, payroll, and supervision of maintenance personnel. Both before and after the incident that gave rise to Plaintiff's claim, the resident manager position required no heavy lifting and allowed Plaintiff to sit and stand as needed.
On 5 June 2001, Plaintiff underwent a lumbar fusion unrelated to her subsequent work-related injury. Plaintiff was out of work for three to four months following this procedure.
In the late afternoon on 8 April 2003, Plaintiff tripped over a rug runner and sustained a compensable injury to her lower back. As a result of this incident, Plaintiff experienced back pain and sought treatment from Dr. Mark Roy. Dr. Roy assigned permanent work restrictions, instructing Plaintiff not to lift more than ten pounds, not to bend or stretch, not to climb stairs or walk excessively, and to sit and stand as needed.
On 14 April 2003, Plaintiff returned to her resident manager's position and continued to work her usual hours while complying with the restrictions imposed by Dr. Roy. Plaintiff's restrictions did not limit her ability to perform any of the duties associated with her job as resident manager, although there were a number of days upon which Plaintiff was unable to work due to her injury. Except for those dates,1 Plaintiff continued working as resident manager from 14 April 2003 through 31 October 2005 without the necessity for special accommodations.
On 27 June 2003, Dr. Roy noted that a CAT scan revealed no loosening of any hardware related to Plaintiff's 2001 fusion surgery. In addition, an MRI failed to demonstrate any disc or compressive pathology. Dr. Roy continued to examine Plaintiff every two or three months. On 7 May 2005, Dr. Roy concluded that Plaintiff had reached maximum medical improvement and assigned her a thirty percent permanent partial disability rating to her back. Dr. Roy apportioned ten percent of Plaintiff's rating to the 2001 fusion procedure and twenty percent to the 8 April 2003 work-related injury.
On 1 November 2005, Plaintiff temporarily left her employment with Koury pursuant to the Family and Medical Leave Act (FMLA) in order to take care of her eighty-seven year old mother, who had broken her hip.2 Although Plaintiff intended to return to work in January 2006, she remained out of work for the purpose of undergoing three different surgeries unrelated to her 8 April 2003 compensable injury, the last of which was performed in August 2006. On 28 February 2006, the Commission approved a settlement embodied in a Form 21 agreement which was based on a twenty percent permanent partial disability rating to Plaintiff's back.
During the period from January 2006 to August 2006, when Plaintiff was out of work for reasons unrelated to her compensable injury, Plaintiff was consistently in contact with Koury. Koury agreed to an extension of Plaintiff's FMLA leave. Although Plaintiff notified Koury that she would be ready to return to work on 1 September 2006, Koury terminated Plaintiff on 31 August 2006. Plaintiff has not worked or received indemnity compensation since that time.
Beverly Carlton, Defendants' vocational expert, testified that the fact that Plaintiff returned to work as a resident manager after her injury on 8 April 2003 substantiated her wage-earning capacity. Ms. Carlton further stated that Plaintiff would have been capable of performing her job as resident manager had the position been available following her recovery from her August 2006 surgery. According to Dr. Roy, Plaintiff has remained at maximum medical improvement since 7 May 2005 and is capable of working for Koury as a resident manager.
Plaintiff's claim was heard before the Deputy Commissioner on 28 February 2008. On 26 June 2008, the Deputy Commissioner entered a decision denying Plaintiff's request for total disability compensation on and after 1 September 2006. The Deputy Commissioner concluded that the Form 21 agreement, which was approved on 26 February 2006, gave rise to a presumption of disability; however, based on the credible evidence of record, the Deputy Commissioner concluded that Defendants had rebutted that presumption by presenting evidence of Plaintiff's capacity to earn wages after her injury based upon the fact that she had continued to work as a resident manager from 14 April 2003 through 31 October 2005. The Deputy Commissioner further concluded that Plaintiff experienced no change of condition associated with her 8 April 2003 injury after she reached maximum medical improvement on 7 May 2005 or after the Commission approved the Form 21 agreement on 28 February 2006. As a result, the Deputy Commissioner determined that "[a]ny inability plaintiff has had to earn wages subsequent to 31 August 2006 is not related to her 8 April 2003 injury by accident." However, the Deputy Commissioner awarded Plaintiff "all . . . medical expenses incurred or to be incurred by plaintiff as the result of her 8 April 2003 injury by accident[.]"
Plaintiff appealed the Deputy Commissioner's decision to the Commission on 26 June 2008. On 3 February 2009, the Commission entered an order denying Plaintiff's request for total disability compensation on and after 1 September 2006, but awarding Plaintiff "all related medical expenses incurred or to be incurred by plaintiff as the result of her injury by accident, for so long as such examinations, evaluations and treatments may reasonably be required to effect a cure, give relief or tend to lessen plaintiff's period of disability." Plaintiff noted an appeal to this Court from the Commission's decision.
The standard of review in workers' compensation cases is well-established. "The Industrial Commission is the fact-finding body." Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986) (citing Watkins v. City of Wilmington, 290 N.C. 276, 280, 225 S.E.2d 577, 580 (1976)). "In considering factual issues, the Commission's responsibility is to judge the credibility of the witnesses and the weight to be given to their testimony." Hendrix, 317 N.C. at 186, 345 S.E.2d at 379 (citing Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683-84 (1982)). Our review of a Commission decision is limited to two issues: "whether there was any competent evidence before the Commission to support its findings of fact and whether the findings of fact justify its legal conclusions and decision." Buchanan v. Mitchell County, 38 N.C App. 596, 599, 248 S.E.2d 399, 401 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 35 (1979) (citing Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E.2d 449 (1977)). Although the Commission's findings of fact are conclusive upon appeal when supported by competent evidence, Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), the Commission's conclusions of law are subject to de novo review. Long v. Morganton Dyeing & Finishing Co., 321 N.C. 82, 86, 361 S.E.2d 575, 577 (1987).
Plaintiff contends that the Commission erred because (1) the Commission failed to conclude that she was entitled to total disability benefits from and after 1 September 2006; (2) the Commission failed to find that Plaintiff experienced no change of condition subsequent to reaching maximum medical improvement on 7 May 2005 or the approval of the Form 21 agreement on 28 February 2006; and (3) the Commission failed to find that Plaintiff was entitled to compensation for days on which she missed work prior to 1 September 2006. We disagree.
A presumption that an employee is disabled arises where the claimant and employer have executed a Form 21, Agreement for Compensation for Disability, or a Form 26, Supplemental Agreement as to Payment of Compensation, assuming that the forms include a stipulation that the employee is subject to a continuing disability and are later approved by the Commission. Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 706, 599 S.E.2d 508, 512 (2004). "Settlement agreements between the parties, approved by the Commission pursuant to N.C. [Gen. Stat.] § 97-17, are binding on the parties and enforceable, if necessary, by court decree." Saunders v....
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