Wilkes v. City of Greenville

• Decision Date: 09 June 2017
• Docket Number: No. 368PA15,368PA15
• Citation: 799 S.E.2d 838,369 N.C. 730
• Court: North Carolina Supreme Court
• Parties: Johnnie WILKES, Employee v. CITY OF GREENVILLE, Employer, Self-Insured (PMA Management Group, Third-Party Administrator)

369 N.C. 730

799 S.E.2d 838

Johnnie WILKES, Employee

v.CITY OF GREENVILLE, Employer, Self-Insured

(PMA Management Group, Third-Party Administrator)

No. 368PA15

Supreme Court of North Carolina.

Filed June 9, 2017

Hunt Law Firm, PLLC, Durham, by Anita B. Hunt ; and Patterson Harkavy LLP, Chapel Hill, by Narendra K. Ghosh, for plaintiff-appellee.

Brooks, Stevens & Pope, P.A., Cary, by Matthew P. Blake, for defendant-appellant.

Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson ; and Sumwalt Law Firm, Charlotte, by Vernon Sumwalt, for North Carolina Advocates for Justice, amicus curiae.

Young Moore and Henderson, P.A., Raleigh, by Angela Farag Craddock ; and Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., Charlotte, by M. Duane Jones, for North Carolina Association of Defense Attorneys, North Carolina Chamber, North Carolina Retail Merchants Association, North Carolina Home Builders Association, Employers Coalition of North Carolina, Property Casualty Insurers of America, and American Insurance Association, amici curiae.

Lewis & Roberts, PLLC, by J. William Crone and J. Timothy Wilson, for all amici; Teague, Campbell, Dennis & Gorham, LLP, Raleigh, by Bruce Hamilton, for North Carolina Association of Self-Insurers, and by Tracey Jones, for North Carolina Association of County Commissioners; Allison B. Schafer, Legal Counsel, and Christine T. Scheef, Staff Attorney, for N.C. School Boards Association; and Kimberly S. Hibbard, General Counsel, for N.C. League of Municipalities, amici curiae.

Law Offices of Kathleen G. Sumner, Greensboro, by Kathleen G. Sumner ; and Law Office of David P. Stewart, by David P. Stewart, for Workers’ Injury Law & Advocacy Group, amicus curiae.

HUDSON, Justice.

Plaintiff Johnnie Wilkes appealed the opinion and award of the North Carolina Industrial Commission concluding that: (1) plaintiff failed to meet his burden of establishing that his anxiety and depression were a result of his work-related accident; and (2) plaintiff was not entitled to disability payments made after 18 January 2011. Wilkes v. City of Greenville , ––– N.C.App. ––––, ––––, ––––, 777 S.E.2d 282, 284-85, 289 (2015). On appeal, the Court of Appeals unanimously vacated and remanded in part, holding that on remand in reviewing plaintiff’s entitlement to medical treatment, the Commission should give plaintiff the benefit of a presumption that his anxiety and depression were related to his injuries, and reversed in part, holding that plaintiff had met his burden of establishing disability. Id. at ––––, ––––, 777 S.E.2d at 285-91.

Because we agree that plaintiff was entitled to a presumption of compensability in regards to his continued medical treatment, we affirm that portion of the decision of the Court of Appeals. Because we conclude further that the Commission failed to address the effects of plaintiff’s tinnitus in determining whether he lost wage-earning capacity, we modify and affirm that portion of the Court of Appeals’ decision, and remand for further proceedings not inconsistent with this opinion.

Background

Plaintiff was employed by defendant as a landscaper for approximately nine years before 21 April 2010, when he was involved in a motor vehicle wreck while on the job. Plaintiff was driving a truck owned by defendant when a third party ran a red light and struck plaintiff’s vehicle. The truck then collided with a tree, causing the windshield to break and the airbags to deploy. Plaintiff was taken to the emergency room at Pitt County Memorial Hospital and treated for his injuries, which included an abrasion on his head, three broken ribs, and injuries to his neck, back, pelvis, and hip. The following day, plaintiff returned to the ER complaining of dizziness; an MRI revealed that plaintiff had suffered a concussion from the accident. Slightly over a week later, on 29 April 2010, defendant filed a Form 60 with the North Carolina Industrial Commission, in which defendant accepted plaintiff’s claim as compensable under the Workers’ Compensation Act (Act), and described the injury as "worker involved in MVA and had multiple injuries to ribs, neck, legs and entire left side." Defendant began paying plaintiff compensation for temporary total disability and provided medical compensation for plaintiff’s injuries.

Plaintiff saw numerous physicians over the next year for treatment and evaluation of continuing complaints of pain in his back and leg, ringing in his ears (tinnitus), anxiety and depression, and sleep loss. On 18 January 2011, defendant filed a Form 33 requesting that plaintiff’s claim be assigned for a hearing before the Commission, stating that the "[p]arties disagree about the totality of plaintiff’s complaints related to his compensable injury and need for additional medical evaluations." On 28 January 2011, plaintiff filed a Form 33 requesting an "Expedited Medical Motion" hearing, listing his work-related injuries as "head, back, depression, ringing in ears [tinnitus], memory loss, speech changes, dizziness, balance, etc.," and stating that he was "in need of additional medical treatment ... specifically an evaluation by a neurosurgeon." After a conference call hearing on 4 February 2011, plaintiff saw Robert Lacin, M.D., a neurosurgeon; the Commission held a subsequent conference call hearing on 7 April 2011, and declined to refer plaintiff to a neuropsychiatrist.

Eventually, the matter was heard in person before Deputy Commissioner Mary C. Vilas on 21 September 2011, after which depositions of medical personnel were taken. On 1 February 2013, Deputy Commissioner Vilas entered an opinion and award determining that plaintiff’s low back and leg pain, anxiety, depression, sleep disorder, tinnitus, headaches, and temporomandibular joint pain were causally related to his 21 April 2010 compensable injury. Deputy Commissioner Vilas also determined that plaintiff had established temporary total disability by demonstrating "that he is capable of some work but that it would be futile to seek work at this time because of preexisting conditions of his age, full-scale IQ of 65, education level and reading capacity at grade level 2.6, previous work history of manual labor jobs, and his physical conditions resulting from his April 21, 2010 compensable injury." Accordingly, the deputy commissioner ordered defendant to pay plaintiff temporary total disability until he returned to work or until further order of the Commission and to pay all medical expenses reasonably required to effect a cure or lessen plaintiff’s period of disability. Defendant appealed to the Full Commission (Commission).

The Commission heard the case on 4 November 2013, and considered the parties’ stipulations, exhibits, testimony from multiple witnesses, including plaintiff and plaintiff’s wife, and depositions taken from Doctors Albernaz, Tucci, Lacin, Schulz, Hervey, and Gualtieri. The Commission found that plaintiff suffered tinnitus as a result of the 21 April 2010 accident, but that the evidence regarding his alleged anxiety and depression was conflicting. The Commission noted, for example, that "Dr. Schulz diagnosed Plaintiff with malingering along with possible mild depression," and that "Dr. Gualtieri concurred with Dr. Schulz’s diagnosis of symptom exaggeration and malingering." On the other hand, "Dr. Hervey disagreed with Dr. Schulz’s malingering diagnosis.... Dr. Hervey noted ‘apparent distress’ and diagnosed Plaintiff with depression and anxiety," while Dr. Tucci diagnosed Plaintiff with "severe tinnitus" and testified that the tinnitus was "wrapped up with the anxiety or depression." Accordingly, the Commission found, in relevant part:

34. Based on the preponderance of the evidence, including testimony by Doctors Albernaz and Tucci, the Full Commission concludes that Plaintiff has not reached maximum medical improvement with regard to his tinnitus.

35. Testimony by Plaintiff, Plaintiff’s wife, and Doctors Lacin, Schulz, Hervey, and Gualtieri is conflicting as to whether Plaintiff is currently suffering from anxiety and depression. Based upon a preponderance of all the evidence of record, the Full Commission concludes that Plaintiff’s alleged anxiety and depression was not caused by the 21 April 2010 work-related accident.

Based on these findings of fact, the Commission concluded that while plaintiff was entitled to medical compensation for his tinnitus, plaintiff had failed to meet his burden of establishing that he had anxiety and depression caused by his work-related accident, and that therefore, plaintiff was not entitled to medical compensation for those conditions. The Commission further concluded that plaintiff was not entitled to any disability payments made after 18 January 2011 (the date defendant filed a Form 33 requesting a hearing on plaintiff’s claims), and that defendant was entitled to a credit for any payments it had made after that date. More specifically, the Commission made the following relevant conclusions of law:

2. ... Based upon all credible evidence, the Full Commission concludes that Plaintiff has met his burden of showing that on 21 April 2010 he suffered compensable injuries [to] his head and ears leading to tinnitus as a result of a traffic accident arising out of the course and scope of his employment with Employer-Defendant.

....

4. Plaintiff is entitled to the payment of past and future medical expenses incurred for treatment that was reasonably required to effect a cure, provide relief or lessen any disability, including such further treatment for his tinnitus that may be recommended by Doctors Tucci and Albernaz.

5. Where depression or other emotional trauma has been caused by a compensable accident and injury, and such depression or trauma has caused disability, then total disability benefits may be allowed. Here, the evidence is conflicting as to whether Plaintiff has suffered from depression and whether any depression was caused by the 21 April 2010 work-related accident. Based upon the preponderance of

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