Wynn v. United Health Serv./Two Rivers Health–trent Campus

• Decision Date: 02 August 2011
• Docket Number: No. COA10–991.,COA10–991.
• Citation: 716 S.E.2d 373
• Parties: Tamida WYNN, Employee, Plaintiffv.UNITED HEALTH SERVICES/TWO RIVERS HEALTH–TRENT CAMPUS, EmployerandThe Phoenix Insurance Company, Carrier, Defendants.
• Court: North Carolina Court of Appeals

716 S.E.2d 373

Tamida WYNN, Employee, Plaintiff

v.UNITED HEALTH SERVICES/TWO RIVERS HEALTH–TRENT CAMPUS, EmployerandThe Phoenix Insurance Company, Carrier, Defendants.

No. COA10–991.

Court of Appeals of North Carolina.

Aug. 2, 2011.

Appeal by defendants from an Opinion and Award entered 7 April 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 January 2011.

Scudder & Hedrick, PLLC, Raleigh, by Samuel A. Scudder, for Plaintiff-appellee.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., Charlotte, by Dalton B. Green, for Defendant-appellants.

ERVIN, Judge.

Defendants Two Rivers Healthcare and The Phoenix Insurance Company appeal from an order entered by the Industrial Commission awarding Plaintiff Tamida Wynn medical and disability benefits. On appeal, Defendants argue that the Commission utilized an incorrect legal standard in evaluating the suitability of a job offered to the claimant and failed to properly evaluate the evidence relating to Plaintiff's disability. After careful consideration of Defendants' challenges to the Commission's order in light of the record and the applicable law, we conclude that Defendants' arguments lack merit and that the Commission's order should be affirmed.

I. Factual Background

A. Substantive Facts

Plaintiff was born in 1975 and resides in New Bern. Plaintiff began working as a certified nursing assistant (CNA) for Defendant Two Rivers on 27 June 2006.

On 1 August 2008, Plaintiff suffered a compensable injury to her left knee. At the time of her injury, Plaintiff earned $10.50 per hour. Plaintiff had seven children, whose ages at the time of her injury ranged from fourteen to just over one. In order to avoid incurring child care expenses, Plaintiff had been working for Defendant Two Rivers from 3:00 p.m. until 11:00 p.m. on Mondays and Fridays and from 7:00 a.m. to 3:00 p.m. on Saturdays and Sundays, a schedule that allowed Plaintiff's older children to watch the younger children while Plaintiff was at work.

In the aftermath of her injury, Plaintiff was treated by Dr. Mark Wertman, an orthopedist, who diagnosed her as having sustained a traumatic ACL sprain with intrasubstance edema and Type 2 signal in the meniscus of her knee. In October 2008, Dr. Wertman allowed Plaintiff to return to work subject to the restriction that she not engage in any kneeling, squatting, or lifting of objects weighing over 40 pounds.

After Dr. Wertman imposed these work restrictions, Defendant Two Rivers offered Plaintiff a job which Defendant classified as a “light duty CNA” position. The duties performed by occupants of the light duty CNA position included folding laundry, rolling silverware inside napkins, pushing meal carts, sweeping floors, taking out the trash, and providing grooming services for patients. The light duty CNA position paid only $6.50 per hour, an amount which was thirty-nine percent (39%) less than Plaintiff's normal salary, and was not a job that Defendant Two Rivers made available to applicants drawn from the general public. Instead, the light duty CNA job was a temporary position that offered no prospects for advancement and was reserved for employees who had suffered a compensable injury, were under light duty restrictions, and had not yet reached maximum medical improvement (MMI). The light duty CNA position was only available on the 7:00 a.m. to 3:00 p.m. shift, a schedule which was incompatible with Plaintiff's child care arrangements.

Plaintiff worked as a light duty CNA on Saturday, 8 November and Sunday, 9 November 2008. As she left work on 9 November 2008, Plaintiff wrote a note to her supervisor explaining that she could not work the Tuesday and Thursday day shifts during the upcoming week because she had been unable to find child care. As a result, Plaintiff did not report for work as scheduled on Tuesday, 11 November or Thursday, 13 November 2008. When Plaintiff returned to work on Saturday, 15 November 2008, her supervisor informed Plaintiff that, if she could not work the day shift schedule, she no longer had employment.

After her termination, Plaintiff immediately began looking for other employment that she could perform consistently with the restrictions imposed by Dr. Wertman. Within two weeks, Plaintiff obtained a data entry position with Jackson Hewitt Tax Service and began working for Jackson Hewitt on 27 November 2008. The data entry position at Jackson Hewitt paid $8.50 per hour. As of the date of the hearing held before the deputy commissioner on 18 March 2009, Plaintiff continued to occupy this data entry position, working about 16 to 25 hours per week under a schedule that accommodated her child care needs. At that time, Plaintiff was still under the care of Dr. Wertman, had not reached MMI, and was still subject to the work restrictions that Dr. Wertman had imposed in October 2008.

After terminating Plaintiff's employment, Defendant Two Rivers drafted a letter to Plaintiff on 17 November 2008 offering her the light duty CNA job; directing her to report for work on the day shift on Wednesday, 26 November 2008; and stating that, if Plaintiff did not appear for work at the specified time, Defendant Two Rivers would assume that she had resigned. Although it had Plaintiff's correct mailing address, Defendant Two Rivers mailed the 17 November 2008 letter to an outdated address. After the 17 November 2008 letter was returned as undeliverable, it was re-sent. Plaintiff finally received the 17 November 2008 letter on 9 December 2008. By that time, Plaintiff had obtained her part-time position with Jackson Hewitt.

B. Procedural History

The parties stipulated that Plaintiff suffered a compensable injury to her left knee on 1 August 2008; that Defendants acknowledged the compensability of Plaintiff's injury by filing an Industrial Commission Form 60 on 28 August 2008; and that Defendants paid workers' compensation benefits to Plaintiff from 2 August 2008 through 8 November 2008. After Plaintiff returned to work for two days in November 2008, Defendants sought to terminate these benefit payments by filing an Industrial Commission Form 28T on 12 November 2008. On 2 December 2008, Plaintiff filed an Industrial Commission Form 33 requesting a hearing with respect to the disability payment issue. In their response to Plaintiff's filing, Defendants asserted that Plaintiff was not entitled to disability benefits because she had “constructively refused suitable employment.”

A hearing concerning the disability benefit issue was conducted before Industrial Commission Deputy Commissioner Robert J. Harris on 18 March 2009. On 16 September 2009, Deputy Commissioner Harris entered an order in which he concluded that Plaintiff was entitled to receive disability and medical payment benefits. Defendants appealed Deputy Commissioner Harris' order to the Commission. On 7 April 2010, the Commission, by means of an order issued by Commissioner Christopher Scott with the concurrence of Commissioner Laura K. Mavretic and over a dissent by Commissioner Dianne C. Sellers,¹ affirmed Deputy Commissioner Harris' decision subject to “minor modifications.” Defendants noted an appeal to this Court from the Commission's decision.

II. Legal Analysis

A. Standard of Review

“The standard of review in workers' compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court.... Under the Workers' Compensation Act, ‘[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ Therefore, on appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission's findings of fact and whether the findings support the Commission's conclusions of law. This ‘court's duty goes no further than to determine whether the record contains any evidence tending to support the finding.’ ” Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citing Deese v. Champion Int'l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000), and Adams v. AVX Corp., 349 N.C. 676, 681–82, 509 S.E.2d 411, 414 (1998), and quoting Anderson v. Construction Co., 265 N.C. 431, 433–34, 144 S.E.2d 272, 274 (1965)). “[F]indings of fact which are left unchallenged by the parties on appeal are ‘presumed to be supported by competent evidence’ and are, thus ‘conclusively established on appeal.’ ” Chaisson v. Simpson, 195 N.C.App. 463, 470, 673 S.E.2d 149, 156 (2009) (quoting Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118, disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003)). The “Commission's conclusions of law are [, however,] reviewed de novo.” McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (citation omitted). As a result, “[w]hen the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legal standard.” Ballenger v. ITT Grinnell Industrial Piping, 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987). We will now review Defendants' challenges to the Commission's order utilizing the applicable standard of review.

B. “ Suitable Employment ”

In their first challenge to the Commission's decision, Defendants argue that the Commission erroneously refused to terminate Plaintiff's workers' compensation benefits because she unjustifiably refused to accept suitable employment. In seeking to persuade us of the merits of this position, Defendants argue that the Commission erred by applying “the suitability standard for permanent post-MMI employment to the temporary pre-MMI CNA position.” We do not find Defendant's argument persuasive.

In the workers' compensation context, “[t]he term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen.Stat. § 97–2(9)...