Wilkes v. City of Greenville , 369 N.C. 730 ( 2017 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 368PA15
Filed 9 June 2017
JOHNNIE WILKES, Employee
v.
CITY OF GREENVILLE,
Employer, SELF-INSURED
(PMA MANAGEMENT GROUP, Third-Party Administrator)
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 777 S.E.2d 282 (2015), reversing in part
and vacating and remanding in part an opinion and award filed on 9 April 2014 by
the North Carolina Industrial Commission. Heard in the Supreme Court on 15
February 2017.
Hunt Law Firm, PLLC, by Anita B. Hunt; and Patterson Harkavy LLP, by
Narendra K. Ghosh, for plaintiff-appellee.
Brooks, Stevens & Pope, P.A., by Matthew P. Blake, for defendant-appellant.
Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson; and Sumwalt Law
Firm, by Vernon Sumwalt, for North Carolina Advocates for Justice, amicus
curiae.
Young Moore and Henderson, P.A., by Angela Farag Craddock; and Hedrick,
Gardner, Kincheloe & Garofalo, L.L.P., 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, by Bruce Hamilton, for
North Carolina Association of Self-Insurers, and by Tracey Jones, for North
WILKES V. CITY OF GREENVILLE
Opinion of the Court
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, 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
-2-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
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
-3-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
(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,
-4-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
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,
-5-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
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
-6-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
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 the evidence, the Full Commission
concludes that Plaintiff has not met his burden of showing
that his alleged depression and anxiety is a result of the 21
April 2010 work-related accident or has caused him any
temporary disability.
6. . . . The Full Commission concludes that
Plaintiff has not presented evidence of a reasonable job
search and has presented insufficient evidence that a job
search would be futile. Thus, the Full Commission
concludes that Plaintiff is entitled to temporary total
disability benefits from the 21 April 2010 work-related
injury until 18 January 2011, the date that Employer-
Defendant filed a Form 33 requesting a hearing on
Plaintiff’s claims.
(Citations omitted.) On 9 April 2014, the Commission issued its opinion and award,
from which plaintiff appealed.
In a unanimous opinion, the Court of Appeals first vacated the portion of the
opinion and award concerning plaintiff’s request for additional medical treatment for
anxiety and depression. Wilkes, ___ N.C. App. at ___, ___, 777 S.E.2d at 287-88, 292.
In light of the court’s previous decisions in Parsons v. Pantry, Inc., 126 N.C. App. 540,
-7-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
485 S.E.2d 867 (1997), and Perez v. American Airlines/AMR Corp., 174 N.C. App.
128, 620 S.E.2d 288 (2005), disc. rev. improvidently allowed per curiam, 360 N.C. 587,
634 S.E.2d 887 (2006), the court held that the Commission erred by not applying the
rebuttable Parsons presumption to plaintiff’s anxiety and depression, and instead
placing the burden on plaintiff to demonstrate causation of those conditions. Wilkes,
___ N.C. App. at ___, 777 S.E.2d at 285-88. The court remanded the matter to the
Commission to “apply the Parsons presumption and then make a new determination
as to whether Plaintiff’s psychological symptoms are causally related to the 21 April
2010 injury.” Id. at ___, 777 S.E.2d at 287-88.
Additionally, the court reversed the portion of the Commission’s opinion and
award terminating plaintiff’s total temporary disability benefits. Id. at ___, 777
S.E.2d at 292. Noting the testimony of Kurt Voos, M.D., who “authorized Plaintiff to
return to work at sedentary duty with permanent restrictions including lifting up to
10 lbs with occasional walking and standing,” the court stated that based on this
testimony the Commission had found that plaintiff was “incapable of returning to his
previous job but is capable of working in sedentary employment.” Id. at ___, 777
S.E.2d at 289. The court also took note of other facts found by the Commission:
Specifically, the Commission found that Plaintiff (1) was 60
years old at the time of the hearing; (2) had been employed
as a landscaper with Defendant since 2001; (3) had been
employed in medium and heavy labor positions throughout
his entire adult life; (4) attended school until the tenth
grade; (5) was physically incapable of performing his
former job as a landscaper/laborer; (6) has “difficulty
-8-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
reading and comprehending” written material as evidenced
during his evaluation with Dr. Peter Schulz; and (7)
has “an IQ of 65, putting him in the impaired range.”
Id. at ___, 777 S.E.2d at 289. The court held that with this evidence, plaintiff had
met his initial burden of showing that a job search would be futile so as to shift the
burden to his employer to show that suitable jobs were available. Id. at ___, 777
S.E.2d at 289-90. Because defendant made no such showing, the court concluded that
“the Commission erred in ruling that Plaintiff was not temporarily totally disabled,”
and that the Commission’s “conclusions of law reaching the opposite result were not
supported by the findings of fact contained within its Opinion and Award.” Id. at ___,
777 S.E.2d at 291.
Defendant filed a petition for discretionary review, which this Court allowed
on 13 April 2016.
I. Medical Compensation
Here defendant argues that the Court of Appeals erred in holding that plaintiff
was entitled to a presumption that his anxiety and depression were causally related
to his compensable injuries. We do not agree, and affirm the Court of Appeals on this
issue.
Our review of an order of the Commission is limited to determining “whether
any competent evidence supports the Commission’s findings of fact and whether the
findings of fact support the Commission’s conclusions of law.” Deese v. Champion
-9-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); see also N.C.G.S. § 97-86
(2015). But, “[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 Indus. Piping, Inc., 320 N.C. 155,
158, 357 S.E.2d 683, 685 (1987) (citing, inter alia, Conrad v. Cook-Lewis Foundry Co.,
198 N.C. 723, 153 S.E. 266 (1930)). “When considering a case on discretionary review
from the Court of Appeals, we review the decision for errors of law.” Irving v.
Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611, 781 S.E.2d 282, 284 (2016)
(citing N.C. R. App. P. 16(a)).
In construing the provisions of the Workers’ Compensation Act, “[w]e have held
in decision after decision that our Workmen’s Compensation Act should be liberally
construed to effectuate its purpose to provide compensation for injured employees or
their dependants, and its benefits should not be denied by a technical, narrow, and
strict construction.” Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874,
882 (1968) (citing 3 Strong’s North Carolina Index: Master and Servant § 45 (1960)).
But, we are mindful that the Act “was never intended to be a general accident and
health insurance policy.” Weaver v. Swedish Imports Maint., Inc., 319 N.C. 243, 253,
354 S.E.2d 477, 483 (1987). We have also noted that “[t]he primary purpose of
legislation of this kind is to compel industry to take care of its own wreckage.” Barber
v. Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943); see also Deese v. Se. Lawn &
Tree Expert Co., 306 N.C. 275, 278, 293 S.E.2d 140, 143 (1982) (“[I]n all cases of doubt,
-10-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
the intent of the legislature regarding the operation or application of a particular
provision is to be discerned from a consideration of the Act as a whole—its language,
purposes and spirit.”).
A claim for benefits under the Workers’ Compensation Act “is the right of the
employee, at his election, to demand compensation for such injuries as result from an
accident.” Biddix v. Rex Mills, Inc., 237 N.C. 660, 663, 75 S.E.2d 777, 780 (1953).
Under the terms of the Act, an “injury” is compensable when it is: (1) by accident; (2)
arising out of employment; and (3) in the course of employment. N.C.G.S. § 97-2(6)
(2015); Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977).
When the employee suffers a compensable injury, “[m]edical compensation
shall be provided by the employer.” N.C.G.S. § 97-25(a) (2015) (emphasis added);
Mehaffey v. Burger King, 367 N.C. 120, 124, 749 S.E.2d 252, 255 (2013) (“The Act
places upon an employer the responsibility to furnish ‘medical compensation’ to an
injured employee.”). “Medical Compensation” includes any treatment that “may
reasonably be required to effect a cure or give relief” or “tend to lessen the period of
disability.” N.C.G.S. § 97-2(19) (2015); see also Little v. Penn Ventilator Co., 317 N.C.
206, 213, 345 S.E.2d 204, 209 (1986) (“In our judgment relief embraces not only an
affirmative improvement towards an injured employee’s health, but also the
prevention or mitigation of further decline in that health due to the compensable
injury.”); Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869 (“ ‘Logically implicit’ in
this statute is the requirement that the future medical treatment be ‘directly related
-11-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
to the original compensable injury.’ ” (quoting Pittman v. Thomas & Howard, 122
N.C. App. 124, 130, 468 S.E.2d 283, 286, disc. rev. denied, 343 N.C. 513, 472 S.E.2d
18 (1996))). The employee’s “right to medical compensation” continues until “two
years after the employer’s last payment of medical or indemnity compensation.”
N.C.G.S. § 97-25.1 (2015) (emphasis added). At that point, the right to medical
compensation terminates, unless, before the end of that period: “(i) the employee files
with the Commission an application for additional medical compensation which is
thereafter approved by the Commission, or (ii) the Commission on its own motion
orders additional medical compensation.” Id.
The question here concerns whether, when an injury has previously been
established as compensable, a presumption arises that additional medical treatment
is related to the compensable injury. While we have yet to address whether a
presumption arises in the context of medical compensation, the Court of Appeals first
addressed this issue in Parsons v. Pantry, Inc.
In Parsons the plaintiff was working in the defendant’s store late at night when
two men entered. 126 N.C. App. at 540-42, 485 S.E.2d at 868. One of the men struck
the plaintiff in the forehead and shot her multiple times with a stun gun. Id. At a
hearing before the Commission, the plaintiff met her burden of establishing that as
a result of the incident she suffered compensable injuries, which consisted primarily
of headaches. Id. at 540-42, 485 S.E.2d at 868-69. Accordingly, the Commission
entered an opinion and award ordering the defendant to pay the plaintiff’s medical
-12-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
expenses and to provide additional treatment “which tends to effect a cure, give relief,
or lessen the plaintiff’s period of disability.” Id. at 540-41, 485 S.E.2d at 868. When
the plaintiff subsequently requested a hearing because of the defendant’s failure to
pay medical expenses, the Commission denied her any further medical treatment on
the basis that she had “not introduced any evidence of causation between her injury
and her headache complaints at the time of the hearing.” Id. at 541, 485 S.E.2d at
868-69. On appeal, the Court of Appeals reversed and remanded, holding that it was
error to place the burden on the plaintiff to prove causation in order to obtain
additional medical treatment. Id. at 542-43, 485 S.E.2d at 869. The court explained
that the plaintiff had met her burden at the initial hearing, and that “[t]o require
plaintiff to re-prove causation each time she seeks treatment for the very injury that
the Commission has previously determined to be the result of a compensable accident
is unjust and violates our duty to interpret the Act in favor of injured employees.” Id.
at 542, 485 S.E.2d at 869. This presumption that additional medical treatment is
directly related to the compensable injury has since become known as the “Parsons
presumption.” See Wilkes, ___ N.C. App. at ___, 777 S.E.2d at 286 (“Once the
employee meets this initial burden, however, a presumption arises—often referred to
as the Parsons presumption—that ‘additional medical treatment is directly related
to the compensable injury.’ ” (quoting Perez, 174 N.C. App. at 135, 620 S.E.2d at 292)).
The Court of Appeals has since held that the Parsons presumption applies both
to agreements to pay compensation by means of a Form 21 (“Agreement for
-13-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
Compensation for Disability’’) and to cases involving “direct payment” accompanied
by a Form 60 (“Employer’s Admission of Employee’s Right to Compensation (G.S. §
97-18(b))”). See Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259-60,
523 S.E.2d 720, 723-24 (1999); see also Perez, 174 N.C. App. at 135-37, 620 S.E.2d at
292-94. With the filing of a Form 21, the employer agrees after a workplace injury to
accept the claim as compensable pursuant to N.C.G.S. §§ 97-18 and 97-82. The
statutes require the employer to file a “memorandum of agreement” in the form
prescribed by the Commission; once approved, that document constitutes an award
of the Commission. N.C.G.S. §§ 97-82, -87(a)(2) (2015); see also Watkins v. Cent.
Motor Lines, Inc., 279 N.C. 132, 138, 181 S.E.2d 588, 593 (1971) (“The agreement
between the parties on Form 21, approved by the Commission . . . . constituted an
award by the Commission . . . .”). The statutes also permit “direct payment” by the
employer, which requires no approval either from the Commission or the employee,
and allows the employer to promptly initiate payments to the employee following an
injury. N.C.G.S. § 97-18(b), (d) (2015); id. § 97-82. In 1994, the legislature enacted
direct payment by amending subsection 97-18(b), adding subsection 97-18(d), and
amending N.C.G.S. § 97-82(b). The Workers’ Compensation Reform Act of 1994, ch.
679, secs. 3.1, 3.2, 1993 N.C. Sess. Laws (Reg. Sess. 1994) 394, 400-03. Under the
current statutory framework, when the employer proceeds with direct payment, the
employer can file with the Commission a Form 60 “admit[ting] the employee’s right
to compensation” under N.C.G.S. § 97-18(b). See, e.g., Clark v. Wal-Mart, 360 N.C.
-14-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
41, 42, 619 S.E.2d 491, 492 (2005). In the alternative, the employer can file a Form
63 under N.C.G.S. § 97-18(d), in which the employer may initiate payments without
prejudice and without admitting liability, after which the employer has ninety days
to contest or accept liability for the claim. See, e.g., Johnson v. S. Tire Sales & Serv.,
358 N.C. 701, 702, 599 S.E.2d 508, 510 (2004). Notably, N.C.G.S. § 97-82(b) provides
that “[p]ayment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d)
when compensability and liability are not contested prior to expiration of the period
for payment without prejudice, shall constitute an award of the Commission on the
question of compensability of and the insurer’s liability for the injury for which
payment was made.”
We hold that plaintiff here is entitled to a presumption that additional medical
treatment is related to his compensable conditions. This holding is consistent both
with the statutory language and with cases pointing out that “compensability” and
“disability” are separate issues. We have recognized that a presumption of ongoing
disability arises only in limited circumstances—specifically, once the disability has
been admitted or proved to the Industrial Commission. Johnson, 358 N.C. at 706,
599 S.E.2d at 512. This judicial construction of a presumption of ongoing disability
arising based upon an “award of the Commission” dates back to at least 1951. Tucker
v. Lowdermilk, 233 N.C. 185, 189, 63 S.E.2d 109, 112 (1951) (“However, if an award
is made, payable during disability, and there is a presumption that disability lasts
until the employee returns to work, there is likewise a presumption that disability
-15-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
ended when the employee returned to work.”); see also Watkins, 279 N.C. at 137, 181
S.E.2d at 592 (“If an award is made by the Industrial Commission, payable during
disability, there is a presumption that disability lasts until the employee returns to
work . . . .”). On that basis, we held that while the employer admits compensability
by filing a Form 60, or a Form 63 when the employer fails to contest compensability
within the ninety-day period, no presumption of disability arises in those
circumstances. Clark, 360 N.C. at 43-46, 619 S.E.2d at 492-94; Johnson, 358 N.C. at
706-07, 599 S.E.2d at 512-13.
Nonetheless, on the issue of compensability in the same circumstances, we
view the plain language of N.C.G.S. § 97-82(b) as dispositive. Subsection 97-82(b)
provides that “[p]ayment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-
18(d) when compensability and liability are not contested prior to expiration of the
period for payment without prejudice, shall constitute an award of the Commission
on the question of compensability of and the insurer’s liability for the injury for which
payment was made.” (Emphasis added.) Continually placing the burden on an
employee to prove that his symptoms are causally related to his admittedly
compensable injury before he can receive further medical treatment “ignores this
prior award.” Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869. Accordingly, we
conclude that an admission of compensability approved under N.C.G.S. § 97-82(b)
entitles an employee to a presumption that additional medical treatment is causally
related to his compensable injury. In reaching this conclusion, we note the
-16-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
mandatory language of N.C.G.S. § 97-25(a) (stating that “[m]edical compensation
shall be provided by the employer” (emphasis added)), as well as the fact that medical
compensation encompasses any treatment that “may reasonably be required to effect
a cure or give relief,” Id. § 97-2(19).
Defendant contends that the “award” under N.C.G.S. § 97-82(b) is merely an
admission that the employee has suffered an accident arising out of and in the course
of employment, and that the specifics of any injury must still be determined by an
adjudication of the Commission. We conclude otherwise. Requiring the employee to
repeatedly “build claims for medical compensation” for an admittedly compensable
injury, as argued by defendant, would be inconsistent with the language of N.C.G.S.
§§ 97-25, 97-2(19), and 97-82(b), as well as the purpose and spirit of the Act. We
decline to adopt such a narrow interpretation of the Act.
Moreover, defendant’s proposed interpretation would allow the employer, by
“admitting” that the employee has suffered a compensable injury, to enjoy the right
to direct the employee’s medical treatment without accepting the accompanying
responsibility to provide medical compensation for any treatment until the employee
has proved its relatedness to the compensable injury. We have observed that,
concomitant with the employer’s duty under N.C.G.S. § 97-25 to provide, and the
employee’s right to receive, medical compensation, is the employer’s right to direct
the medical treatment that it furnishes. Schofield v. Great Atl. & Pac. Tea Co., 299
N.C. 582, 586-87, 264 S.E.2d 56, 60 (1980); see N.C.G.S. § 97-25 (2015). Even before
-17-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
compensability is established, when the employee claims compensation after an
injury, the employer has the right to direct the employee to submit to an independent
medical examination by one of its authorized physicians. N.C.G.S. § 97-27(a) (2015);
see also Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d 785, 788 (2000)
(“One of the implicit purposes of this requirement is to enable the employer to
ascertain whether the injury is work-related or not and thus whether the claim is
indeed compensable.”), disc. rev. denied, 356 N.C. 303, 570 S.E.2d 725 (2002).
Finally, defendant argues that applying the Parsons presumption to a Form 60
filing will discourage direct payment, upset the framework of the Act, and convert the
Act into general health insurance. We are unconvinced. Applying the rebuttable
presumption merely removes from the employee seeking medical treatment the
burden of proving every time that such treatment is for injuries or symptoms causally
related to the admittedly compensable condition. Perez, 174 N.C. App. at 135, 620
S.E.2d at 292. The employer may rebut this presumption with evidence that the
condition or treatment is not directly related to the compensable injury. Id. at 135,
620 S.E.2d at 292. Defendant has not identified any marked decrease in the use of
Form 60s, or any increase in related litigation and costs, since Perez was decided in
2004.1
To the contrary, following the enactment of direct payment and our holdings in
1
Johnson and Clark, Forms 60 and 63 have essentially replaced Forms 21 and 26. See North
Carolina Workers’ Compensation Law: A Practical Guide to Success at Every Stage of a Claim
155-56 (Valerie A. Johnson & Gina E. Cammarano eds., 3d ed. 2016) (“The use of [Form 21
and Form 26], however, has declined dramatically since the 1994 amendments to the Act.
-18-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
Certainly, medical issues can be complex and the extent of an employee’s
injuries may be difficult to determine at the time of the accident. However, with
N.C.G.S. § 97-27(a) (providing that an employee alleging a compensable injury is
required to submit to a medical examination by the employer’s authorized physician)
and N.C.G.S. § 97-18(d) (authorizing payment without prejudice to later contest
liability), the legislature has wisely given employers who are uncertain about the
compensability of an employee’s injuries the methods to investigate such injuries
without admitting any liability under the Act while still providing prompt payments
to injured employees.
In addition, the legislature has provided more recently for an expedited
“medical motions” procedure, which was utilized here and can quickly be used to
rebut the presumption if appropriate.2 In 2007 the General Assembly amended
N.C.G.S. § 97-78 to require the Commission to implement a plan to expeditiously
resolve disputes involving medical compensation. Current Operations and Capital
Improvements Appropriations Act of 2007, ch. 323, sec. 13.4A.(a), 2007 N.C. Sess.
Laws 616, 787-88. And in 2013 the legislature amended N.C.G.S. § 97-25(f) to set
forth such an expedited procedure. Act of July 9, 2013, ch. 294, sec. 4, 2013 N.C. Sess.
Employers and insurance carriers instead use a Form 60 or Form 63 procedure to admit
liability for a claim and pay weekly benefits, without giving rise to any presumption of
disability. Thus, the presumption of continuing disability, while it still exists, is increasingly
irrelevant.” (citations omitted)).
2 Here, where plaintiff utilized these expedited procedures, the matter might well have
been concluded speedily, had the presumption been properly applied.
-19-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
Laws 802, 803-04. Thus, our holding on this issue is consistent with both the
statutory mandate to provide treatment to the employee and with any employer’s
need to quickly rebut the presumption.
Here, as a result of a motor vehicle crash that occurred within the course and
scope of his employment, plaintiff sustained injuries that included an abrasion on his
head, three broken ribs, and injuries to his neck, back, pelvis, hip, and entire left side,
as well as a concussion. Defendant filed a Form 60 accepting that plaintiff suffered
compensable injuries by accident and began paying temporary total compensation
and medical compensation for plaintiff’s injuries. Accordingly, when plaintiff sought
additional medical treatment for tinnitus, anxiety, and depression, alleging that
these conditions were directly related to his compensable injuries, he was entitled to
a rebuttable presumption to that effect. It is clear from the Commission’s Conclusions
of Law that did it not apply any presumption, and instead placed the initial burden
on plaintiff to prove causation for any medical compensation he sought:
2. The claimant in a workers’ compensation case
bears the initial burden of proof, and must establish “each
and every element of compensability,” including a causal
relationship between the injury and his employment.
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. N.C. Gen. Stat. §
97-2(6).
....
-20-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
5. . . . Based upon the preponderance of the
evidence, the Full Commission concludes that Plaintiff has
not met his burden of showing that his alleged depression
and anxiety is a result of the 21 April 2010 work-related
accident . . . .
(Citation omitted.) Because the Commission acted under a misapprehension of law,
the Court of Appeals vacated the opinion and award on this issue and remanded for
application of the presumption; we affirm this portion of the Court of Appeals’
opinion. See Ballenger, 320 N.C. at 158, 357 S.E.2d at 685. We note that plaintiff
was evaluated by several physicians and that the Commission found the evidence
regarding plaintiff’s anxiety and depression to be “conflicting.” Like the Court of
Appeals, “[w]e express no opinion on the question of whether the evidence of record
is sufficient to rebut the presumption that Plaintiff’s current complaints are directly
related to his initial compensable injury.” Wilkes, ___ N.C. App. at ___, 777 S.E.2d at
288. We leave this determination to the Commission on remand.
II. Disability
On the issue of disability, the Court of Appeals, relying in part on Russell v.
Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), held
that the uncontroverted evidence establishing plaintiff’s cognitive limitations
adequately demonstrated that any attempt by him to find other employment would
be futile, and therefore, plaintiff was entitled to total disability benefits. Defendant
argues that the Court of Appeals erred in reversing the Commission’s termination of
-21-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
plaintiff’s temporary total disability benefits. We modify and affirm that decision,
and remand for further proceedings.
As we explained in Medlin v. Weaver Cooke Construction, LLC, “disability” is
defined by the Act in N.C.G.S. § 97-2(9) as:
“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.” Id. §§ 97-2(9) (2013), -2(i) (1930).
This definition, we have long and consistently held,
specifically relates to the incapacity to earn wages, rather
than only to physical infirmity. See, e.g., Hendrix v. Linn-
Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 378-79
(1986); Fleming v. K-Mart Corp., 312 N.C. 538, 541, 324
S.E.2d 214, 216 (1985). In Hilliard [v. Apex Cabinet Co.,
305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982)], we
articulated again the three factual elements that a plaintiff
must prove to support the legal conclusion of disability:
[“]We are of the opinion that in order to support a
conclusion of disability, the Commission must find: (1) that
plaintiff was incapable after his injury of earning the same
wages he had earned before his injury in the same
employment, (2) that plaintiff was incapable after his
injury of earning the same wages he had earned before his
injury in any other employment, and (3) that this
individual’s incapacity to earn was caused by plaintiff’s
injury.[”]
367 N.C. 414, 420, 760 S.E.2d 732, 736 (2014). In 1993 the Court of Appeals issued
its decision in Russell, apparently to provide examples of methods3 by which a
3 “The employee may meet this burden in one of four ways: (1) the production of
medical evidence that he is physically or mentally, as a consequence of the work related
injury, incapable of work in any employment, Peoples, 316 N.C. at 443, 342 S.E.2d at 809; (2)
the production of evidence that he is capable of some work, but that he has, after a reasonable
effort on his part, been unsuccessful in his effort to obtain employment, id. at 444, [342]
S.E.2d at 809; 1C Arthur Larson, The Law of Workmen’s Compensation § 57.61(d) (1992); (3)
-22-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
plaintiff could prove disability as defined above. Here we emphasize that this Court
has not adopted Russell, and that the approaches taken therein are not the only
means of proving disability. See id. at 422, 760 S.E.2d at 737 (stating that “Hilliard
was grounded explicitly in the statutory definition of disability in section 97-2;
Russell expanded upon, and perhaps diverged from, that grounding” and that the
Russell methods “are neither statutory nor exhaustive” (emphases added)). In fact,
the issue in Russell was “whether an injured employee seeking an award of total
disability under N.C.G.S. § 97-29, who is unemployed, medically able to work, and
possesses no preexisting limitations which would render him unemployable,”
presented sufficient evidence that he was unable to find work. Russell, 108 N.C. App.
at 764-65, 425 S.E.2d at 456-57 (emphasis added). Here, where plaintiff has
numerous preexisting limitations as found by the Commission (over the age of sixty,
limited IQ of sixty-five, limited education and work experience), Russell is inapposite.
Again, we have stated that, in determining loss of wage-earning capacity, the
Commission must take into account age, education, and prior work experience as well
as other preexisting and coexisting conditions. Little v. Anson Cty. Sch. Food Serv.,
295 N.C. 527, 532, 246 S.E.2d 743, 746 (1978). While plaintiff here bears the burden
the production of evidence that he is capable of some work but that it would be futile because
of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment,
Peoples, 316 N.C. at 444, 342 S.E.2d at 809; or (4) the production of evidence that he has
obtained other employment at a wage less than that earned prior to the injury[,] Tyndall v.
Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550, disc. rev. denied, 329 N.C.
505, 407 S.E.2d 553 (1991).” Russell, 108 N.C. App. at 765-66, 425 S.E.2d at 457.
-23-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
of proof to establish disability, once plaintiff has done so, the burden shifts to
defendant “to show not only that suitable jobs are available, but also that the plaintiff
is capable of getting one, taking into account both physical and vocational
limitations.” Johnson, 358 N.C. at 706, 708, 599 S.E.2d at 512, 513 (quoting Burwell
v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994)
(emphasis omitted)).
Defendant argues that, in reversing the Commission, the Court of Appeals
erroneously overruled an earlier decision of that court in Fields v. H&E Equipment
Services, LLC, 240 N.C. App. 483, 771 S.E.2d 791 (2015). It is unclear whether
defendant, in relying on Fields, is arguing that plaintiff was required to produce
expert testimony to prove that engaging in a job search would be futile under Russell.
See Fields, 240 N.C. App. at 483, 771 S.E.2d at 792 (concluding that the plaintiff did
not establish futility because he “failed to provide competent evidence through expert
testimony of his inability to find any other work as a result of his work-related injury”
(emphasis added)). Because we have held that Russell does not apply here, this
argument is misplaced; however, we have never held, and decline to do so now, that
an employee is required to produce expert testimony in order to demonstrate his
inability to earn wages. A plaintiff’s own testimony, as well as that of his lay
witnesses, can be quite competent to explain how a plaintiff’s injury and any related
symptoms have affected his activities. See Kennedy v. Duke Univ. Med. Ctr., 101 N.C.
App. 24, 31, 398 S.E.2d 677, 681 (1990) (“Testimony by the plaintiff him/herself has
-24-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
also been found to be competent on the issue of wage earning capacity.” (citing
Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 325, 69 S.E.2d 707, 714 (1952))). If
plaintiff shows total incapacity for work, taking into account his work-related
conditions combined with the other factors noted above, he is not required to also
show that a job search would be futile. See Peoples v. Cone Mills Corp., 316 N.C. 426,
444, 342 S.E.2d 798, 809 (1986) (“In order to prove disability, the employee need not
prove he unsuccessfully sought employment if the employee proves he is unable to
obtain employment.”).
We have often stated that the Commission must make specific findings that
address the “crucial questions of fact upon which plaintiff’s right to compensation
depends.” Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599
(1955); see also, e.g., Singleton v. Durham Laundry Co., 213 N.C. 32, 34-35, 195 S.E.
34, 35 (1938) (“It is the duty of the Commission to make such specific and definite
findings upon the evidence reported as will enable this Court to determine whether
the general finding or conclusion should stand, particularly when there are material
facts at issue.”). Here the Commission found the evidence conflicting on whether
plaintiff was actually suffering from anxiety and depression, and as a result, the
Commission determined that plaintiff had failed to establish that his anxiety and
depression were compensable or that they affected his ability to work, thus resulting
in disability. The Commission found as fact, in relevant part that:
35. Testimony by Plaintiff, Plaintiff’s wife, and
-25-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
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.
The Commission concluded as a matter of law that:
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 the evidence, the Full Commission
concludes that Plaintiff has not met his burden of showing
that his alleged depression and anxiety is a result of the 21
April 2010 work-related accident or has caused him any
temporary disability.
(Emphasis added and citations omitted.)
On the other hand, the Commission found credible plaintiff’s evidence that he
was actually suffering from tinnitus, noting plaintiff’s numerous complaints dating
back to May 2010, and found that he had not reached maximum medical
improvement with regard to his tinnitus at the time of the Commission’s opinion and
award in April 2014. The Commission specifically found:
26. On 27 December 2011, Plaintiff saw Dr.
Debara Tucci, a board-certified otolaryngologist at Duke
University Medical Center, for an evaluation. Dr. Tucci
reviewed Plaintiff’s previous medical records, audiograms
and physically examined Plaintiff’s head and ears. Dr.
Tucci diagnosed Plaintiff with severe tinnitus and testified
that this condition was likely caused by the accident. Dr.
-26-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
Tucci further testified that the tinnitus was “wrapped up
with the anxiety or depression” diagnosed in Dr. Hervey’s
report, which she reviewed.
27. Dr. Tucci testified that Plaintiff’s tinnitus was
“more likely than not” a result of the 21 April 2010 accident
and was part of the “symptomatology that occurred as a
result of the accident.”
The Commission awarded plaintiff medical compensation for his tinnitus, including
any treatment “reasonably required to effect a cure, provide relief or lessen any
disability.” (Emphasis added.) Yet, having found credible evidence of plaintiff’s
“severe tinnitus,” the Commission made no related findings on how plaintiff’s
compensable tinnitus and any related symptoms may have affected his ability to
engage in wage-earning activities. Accordingly, we remand this case to the
Commission to take additional evidence if necessary and to make specific findings
addressing plaintiff’s wage-earning capacity, considering plaintiff’s compensable
tinnitus in the context of all the preexisting and coexisting conditions bearing upon
his wage-earning capacity. See Medlin, 367 N.C. at 420, 760 S.E.2d at 736; Peoples,
316 N.C. at 441, 342 S.E.2d at 808 (“If preexisting conditions such as the employee’s
age, education and work experience are such that an injury causes the employee a
greater degree of incapacity for work than the same injury would cause some other
person, the employee must be compensated for the actual incapacity he or she suffers,
and not for the degree of disability which would be suffered by someone younger or
-27-
WILKES V. CITY OF GREENVILLE
Opinion of the Court
who possesses superior education or work experience.” (citing Little, 295 N.C. at 532,
246 S.E.2d at 746)).
Conclusion
In sum, we hold that the Commission erred in failing to give plaintiff the
benefit of a presumption that the additional medical treatment he sought was for
conditions related to his compensable injuries. The Commission will reevaluate its
decision, applying the correct presumption. As the Court of Appeals correctly
addressed this error, we affirm on this issue. On the issue of plaintiff’s entitlement
to additional disability benefits, we hold that the evidence raises factual issues
regarding the effect of plaintiff’s compensable tinnitus on his ability to earn wages,
and that, on remand, the Commission must find these facts. Accordingly, on this
second issue we modify and affirm the decision of the Court of Appeals. We remand
this case to the Court of Appeals for further remand to the Commission for further
proceedings not inconsistent with this opinion.
AFFIRMED IN PART; MODIFIED AND AFFIRMED IN PART, AND
REMANDED.
-28-