Stevens v. U.S. Cold Storage, Inc., No. COA11–1000.

Docket NºNo. COA11–1000.
Citation729 S.E.2d 128
Case DateJuly 17, 2012
CourtCourt of Appeal of North Carolina (US)

729 S.E.2d 128

Walter STEVENS, Employee, Plaintiff,
N.C. Insurance Guaranty Association, Carrier/Defendant.

No. COA11–1000.

Court of Appeals of North Carolina.

July 17, 2012.

Appeal by plaintiff from the Opinion and Award entered 2 May 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 11 January 2012.

Smith, James, Rowlett & Cohen, L.L.P. by Margaret Rowlett, for plaintiff-appellant.

McAngus, Goudelock & Courie, P.L.L.C. by Laura Carter and Layla T. Santa Rosa, for defendant-appellee.


The Commission erred in awarding temporary total disability compensation under N.C. Gen.Stat. § 97–29 without assessing whether N.C. Gen.Stat. § 97–31 would provide plaintiff with a more munificent remedy. We affirm the denial of plaintiff's claim for attorney's fees. Plaintiff cannot show that the failure to address his motion for production of a privilege log and in-camera review was highly prejudicial.

I. Factual and Procedural History

On 18 March 1996, Walter Stevens (plaintiff) suffered an injury at work while pulling a tarp over his truck. In the 15 years since his work-related injury, he has returned to work for approximately two months. Plaintiff experiences daily back pain which radiates into his legs. Plaintiff has also been diagnosed with depression and dyspepsia. His symptoms have “persisted despite five years of psychotropic medication trials and intermittent counseling.”

On 27 March 2009, defendants filed a Form 33 Request for Hearing. On 2 May 2011, the Full Commission entered an Opinion and Award, finding that plaintiff is permanently and totally disabled and awarding temporary total disability compensation for plaintiff's lifetime.

Plaintiff appeals.

II. Whether the Commission Erred in Failing to Allow Plaintiff a More Munificent Remedy

In his first argument, plaintiff contends that the Commission erred in failing to allow plaintiff to elect a more munificent remedy, pursuant to Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392 (1987). We agree.

A. Standard of Review

“Appellate review of an order and award of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal conclusions of the Commission.” Radica v. Carolina Mills, 113 N.C.App. 440, 445–46, 439 S.E.2d 185, 189 (1994). “The Industrial Commission's findings of fact are conclusive on appeal when supported by competent evidence ... even [if] there is evidence to support a contrary finding[,] and may be set aside on appeal [only] when there is a complete lack of competent evidence to support them[.]” Johnson v. Herbie's Place, 157 N.C.App. 168, 171, 579 S.E.2d 110, 113 (2003) (alteration in original) (internal quotation marks and citation omitted). The Industrial Commission's conclusions of law are reviewable de novo. Id.

B. Analysis

Plaintiff argues that the Commission erred in failing to allow plaintiff to elect compensation for both total incapacity under N.C. Gen.Stat. § 97–291 and scheduled injury under N.C. Gen.Stat. § 97–31.

N.C. Gen.Stat. §§ 97–29 and 97–31 “have been interpreted as offering alternative avenues of recovery to an employee whose scheduled injuries leave him or her totally incapacitated.” Dishmond v. Int'l Paper Co., 132 N.C.App. 576, 577, 512 S.E.2d 771, 772 (1999). “Section 97–29 provides compensation for total disability, while section 97–31 furnishes a menu of specific harms and corresponding compensations.” Id.

“The general rule is that stacking of benefits covering the same injury for the same time period is prohibited.” Id. (internal quotation marks omitted). However, our Supreme Court has held that recovery under both N.C. Gen.Stat. §§ 97–29 and 97–31 is available under certain circumstances. An employee may be compensated for both a scheduled compensable injury under N.C. Gen.Stat. § 97–31 and total incapacity for work under N.C. Gen.Stat. § 97–29 “when the total incapacity is caused by a psychiatric disorder brought on by the scheduled injury.” Hill, 319 N.C. at 174, 353 S.E.2d at 397.

The reason for this exception is that psychological injuries are not covered by the schedule in N.C. Gen.Stat. § 97–31 and therefore are compensable, if at all, under N.C. Gen.Stat. § 97–29 or N.C. Gen.Stat. § 97–30. McLean v. Eaton Corp., 125 N.C.App. 391, 395, 481 S.E.2d 289, 291 (1997).

In McLean, the plaintiff suffered hand injuries, major depressive disorder, and post-traumatic stress disorder. McLean, 125 N.C.App. at 392, 481 S.E.2d at 290. The Commission awarded compensation under N.C. Gen.Stat. § 97–31. McLean, 125 N.C.App. at 394, 481 S.E.2d at 291. This Court held that the Commission denied benefits to which the plaintiff may be entitled. “[A] claimant who is entitled to benefits under either G.S. section 97–31 or G.S. section 97–30 may select the more munificent remedy. A similar election is available as between G.S. sections 97–31 and 97–29.” McLean, 125 N.C.App. at 394, 481 S.E.2d at 291 (alteration in original) (citation omitted).

The Court remanded for the Commission to make findings and...

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