Norris v. Wal-Mart Assocs., Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-798
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
BOBBY D. NORRIS, Employee,
Plaintiff-Appellee,
v. N.C. Industrial Commission
I.C. No. 562529
WAL-MART ASSOCIATES, INC.,
Employer, and AMERICAN HOME
ASSURANCE, Carrier (CLAIMS
MANAGEMENT, INC., Third-Party
Administrator),
Defendant-Appellants.
Appeal by defendants from an amended opinion and award of
the North Carolina Industrial Commission filed 6 March 2013.
Heard in the Court of Appeals 9 December 2013.
Brent Adams & Associates, by Sheila W. Chavis, for
plaintiff-appellee.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Tracie H.
Brisson and M. Duane Jones, for defendant-appellants.
McCULLOUGH, Judge.
Wal-Mart Associates, Inc. and American Home Assurance
(Claims Management, Inc.) (together “defendants”) appeal from an
amended opinion and award of the North Carolina Industrial
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Commission (the “Commission”) in favor of Bobby D. Norris
(“plaintiff”). For the following reasons, we affirm.
I. Background
On 29 May 2005, plaintiff sustained a compensable lower
back injury while moving merchandise at work. Upon submission
of plaintiff’s worker’s compensation claim in October 2005,
defendants accepted plaintiff’s claim and began paying temporary
total disability compensation and providing medical treatment.
In the years that followed, plaintiff consulted numerous
doctors, received various treatments and medications to manage
pain, and underwent several surgical procedures.
In 2008, plaintiff unsuccessfully attempted to return to
work as a people greeter on two separate occasions. Following
the second attempt to return to work on 2 August 2008, a dispute
arose when defendants refused to reinstate plaintiff’s
disability compensation upon notification that the return to
work had failed.
Thereafter, plaintiff filed a Form 33 requesting his claim
be assigned for hearing. In the filing, plaintiff asserted that
he is unable to work and defendants had refused to resume
temporary total disability and refuse to authorize treatment.
In defendants’ Form 33R response, defendants claimed
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“[p]laintiff has reached maximum medical improvement and was
provided light duty restrictions which were accommodated by
[d]efendants. Plaintiff has unjustifiably refused suitable
employment and is therefore not entitled to temporary total
disability benefits.” Plaintiff’s Form 33 and defendants’ Form
33R were received by the Commission on 17 November 2010.
The matter came on for hearing in Raleigh before Deputy
Commissioner Chrystal Redding Stanback on 27 January 2011.
Following the hearing, the record was held open until 20 January
2012 to allow for depositions of plaintiff’s physicians. On 10
July 2012, an opinion and award by the deputy commissioner was
filed reinstating total disability compensation for plaintiff as
of 4 August 2008, ordering defendants to authorize and pay for
certain past medical treatment and reasonably necessary future
medical treatment, and sanctioning defendants by awarding fees
and costs. Defendants filed notice of appeal to the Full
Commission on 24 July 2012.
Without reopening the evidence, the Full Commission
considered defendants’ appeal on 3 December 2012. On 13
February 2013, an opinion and award for the Full Commission and
a dissenting opinion were filed.
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Following a motion by defendants to amend the opinion and
award to correctly reflect the parties in the caption, an
amended opinion and award for the Full Commission and a
dissenting opinion were filed 6 March 2013. In the Commission’s
6 March 2013 opinion and award, the Commission affirmed, with
modifications, the opinion and award by the deputy commissioner.
Specifically, the Commission’s opinion and award reinstated
total disability compensation for plaintiff as of 4 August 2008
and required that it continue until plaintiff returned to work
or further order by the Commission. The opinion and award
further ordered defendants to pay for past medical treatment and
additional reasonably necessary medical treatment. Lastly, the
opinion and award required defendants to pay fees and costs as a
sanction for “their willful, stubborn, and litigious
behavior[.]”
Defendants appealed to this Court on 20 March 2013.
II. Discussion
Standard of Review
Review of an opinion and award of the Commission “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 ‘[C]ourt’s
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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) (citation omitted) (quoting Anderson
v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274
(1965)). “The Commission is the sole judge of the credibility
of the witnesses and the weight to be given their testimony.”
Anderson, 265 N.C. at 433-34, 144 S.E.2d at 274.
Ongoing Disability Compensation
On appeal, defendants first argue the Commission erred in
awarding ongoing disability compensation because plaintiff
failed to prove he is disabled.
In the North Carolina Workers’ Compensation Act, “[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)
(2013). Thus, “‘disability refers not to physical infirmity but
to a diminished capacity to earn money.’” McLaughlin v.
Staffing Solutions, 206 N.C. App. 137, 148, 696 S.E.2d 839, 847
(2010) (quoting Peoples v. Cone Mills Corp., 316 N.C. 426, 434–
35, 342 S.E.2d 798, 804 (1986) (citation and quotation marks
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omitted)). As this Court explained in Russell v. Lowes Prod.
Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993),
[t]he burden is on the employee to show that
he is unable to earn the same wages he had
earned before the injury, either in the same
employment or in other employment. 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; (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; (3) 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; or (4)
the production of evidence that he has
obtained other employment at a wage less
than that earned prior to the injury.
Id. at 765, 425 S.E.2d at 457 (citations omitted).
In this case, the Commission cited the Russell standard and
stated the following in conclusion of law number 6:
The medical evidence offered by Plaintiff
from his treating physicians meets the
burden of proof for continuing disability
under Russell . . . . In this case,
Plaintiff has met his burden under Russell
in that Plaintiff has unsuccessfully
attempted to return to work with Defendant-
Employer on two occasions, is still employed
[by] Defendant-Employer, but has not been
provided with suitable employment by
Defendant-Employer, regularly searches
newspaper ads looking for possible work
within his physical capabilities, and has
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presented sufficient evidence to determine
that Plaintiff is disabled due to his injury
by accident.
Now on appeal, defendants contend this conclusion
corresponds solely to the second prong in Russell and argue that
neither the findings of fact, nor the evidence, supports a
conclusion that plaintiff has been unable to find suitable
employment after a reasonable effort. Defendants argue the only
finding of fact concerning plaintiff’s search for employment is
finding of fact number 48, which provides “[p]laintiff testified
that he regularly searches newspaper ads looking for possible
work but is unable to find any work that he can do within his
physical abilities.” Yet, defendants claim finding of fact
number 48 is not an adequate finding of fact because it merely
summarizes plaintiff’s testimony and, in the alternative, does
not support a conclusion that plaintiff has satisfied his burden
of proving disability under the second prong in Russell. In
support of their alternative argument, defendants cites Salomon
v. Oaks Of Carolina, _ N.C. App. _, 718 S.E.2d 204 (2011), for
the proposition that testimony that a plaintiff attempted to
locate other employment was insufficient standing alone to
support a finding of a reasonable job search effort.
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Upon review, we disagree with defendants arguments and
affirm the Commission’s opinion and award.
First, we hold finding of fact 48 to be a proper finding of
fact. As both parties acknowledge, “findings of fact must be
more than a mere summarization or recitation of the evidence and
the Commission must resolve the conflicting testimony.” Lane v.
Am. Nat’l Can Co., 181 N.C. App. 527, 531, 640 S.E.2d 732, 735
(2007). Recitations of testimony are not proper findings
“because they do not reflect a conscious choice between the
conflicting versions of the incident in question which emerged
from all the evidence presented.” Winders v. Edgecombe Cty.
Home Health Care, 187 N.C. App. 668, 673, 653 S.E.2d 575, 579
(2007) (quotation marks omitted). In the present case, however,
there is no evidence contradicting plaintiff’s testimony that he
searched newspaper ads for employment. Although the better
practice would be to omit the opening phrase “[p]laintiff
testified[,]” in this case, it is evident from the opinion and
award that the Commission found the testimony concerning
plaintiff’s job search to be credible since the Commission
reiterated the finding in conclusion of law number 6, stating
“[plaintiff] regularly searches newspaper ads looking for
possible work within his physical capabilities.”
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Second, we find this case distinguishable from Salomon. In
Salomon, the plaintiff was terminated for reasons unrelated to
her compensable injury and, therefore, the Commission determined
the plaintiff had constructively refused suitable employment. _
N.C. App. at _, 718 S.E.2d at 208. Nevertheless, the Commission
determined the plaintiff was entitled to temporary total
disability benefits based on its findings that the plaintiff
“attempted to find other employment” and “made a reasonable job
search in an effort to find possible suitable employment but has
been unsuccessful in her efforts.” Id. at _, 718 S.E.2d at 209.
Upon appeal of the opinion and award, this Court held the
Commission’s “conclusory findings [were] insufficient to support
the Commission's conclusion that [the] [p]laintiff has
established her disability by showing her job search was
‘reasonable’ but unsuccessful.” Id.In the present case, the Commission’s finding of fact
number 48 is not a conclusory statement, but an account of
plaintiff’s search efforts. Moreover, the Commission’s
conclusion that plaintiff met his burden of proof for continuing
disability was not based solely on finding of fact number 48.
In addition to finding of fact 48, the Commission made findings
indicating that plaintiff was limited in the work he could
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perform, unsuccessfully attempted to return to work at Wal-Mart
in the people greeter position on two separate occasions, and
remains employed by Wal-Mart even though he has not been
provided suitable employment. It is evident from the
Commission’s conclusion of law number 6 that it was the
combination of these findings and finding of fact number 48 that
convinced the Commission plaintiff was entitled to ongoing
disability under the second prong of Russell.
Upon review, we agree the combination of the Commission’s
findings, which are amply supported by the evidence, support the
conclusion that plaintiff is entitled to continuing disability.
Attorney’s Fees and Costs
On appeal, defendants also argue the Commission erred in
awarding attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.1,
which provides “[i]f the [Commission] shall determine that any
hearing has been brought, prosecuted, or defended without
reasonable ground, it may assess the whole cost of the
proceedings including reasonable fees for defendant's attorney
or plaintiff's attorney upon the party who has brought or
defended them.” N.C. Gen. Stat. § 97-88.1 (2013).
Specifically, defendants contend their defense of plaintiff’s
claim was reasonable.
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As this Court has recently explained,
[t]he standard of review for an award or
denial of attorney's fees under N.C. Gen.
Stat. § 97–88.1 is a two-part analysis:
First, whether the defendant had a
reasonable ground to bring a hearing is
reviewable by this Court de novo. If
this Court concludes that a party did
not have reasonable ground to bring or
defend a hearing, then we review the
decision of whether to make an award
and the amount of the award for an
abuse of discretion. In conducting the
first step of the analysis, the
reviewing court should consider the
evidence presented at the hearing to
determine reasonableness of a
defendant's claim. As such, the burden
is on the defendant to place in the
record evidence to support its position
that it acted on reasonable grounds.
The test is not whether the defense
prevails, but whether it is based in reason
rather than in stubborn, unfounded
litigiousness.
Ensley v. FMC Corp., _ N.C. App. _, _, 731 S.E.2d 855, 858
(2012) (citations and quotation marks omitted).
As indicated in the pre-trial agreement and the opinion and
award of the deputy commissioner, the attorney’s fee issue
considered by the deputy commissioner and reviewed by the Full
Commission was
[w]hether defendants should be sanctioned
pursuant to N.C. [Gen. Stat.] § 97-88.1 for
their unjust refusal to resume indemnity
benefits upon learning of [p]laintiff’s
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unsuccessful return to work and after being
put on notice of N.C. [Gen. Stat.] § 97-32.1
and [this Court’s] decision in Davis v.
Hospice & Palliative Care, 202 N.C. App.
660, 692 S.E.2d 631 (2010).
Upon de novo review, the Full Commission found the following in
finding of fact number 54:
Based upon a preponderance of the evidence
of record, the Full Commission finds that
[d]efendants’ defense of this claim was
unreasonable and indicative of stubborn and
unfounded litigiousness as [d]efendants
filed a Form 28, Return to Work Report, on
August 11, 2008, stating that [p]laintiff
returned to work on August 2, 2008 despite
having notice that [p]laintiff’s attempt to
return to work was unsuccessful as of August
4, 2008. The Full Commission finds that the
intentional filing of the Form 28, seven
days after [p]laintiff provided sufficient
notice of a failed return to work,
establishes stubborn and unfounded
litigiousness. The Full Commission further
finds that [d]efendants’ failure to
reinstate temporary total disability
payments after being notified that
[p]laintiff’s return to work attempt was
unsuccessful also constituted stubborn and
unfounded litigiousness.
Based on this finding, the Commission then concluded in
conclusion of law number 13:
The Full Commission concludes that
[d]efendants’ defense of this claim
constitutes stubborn, unfounded
litigiousness. The [d]efendants have
defended this claim without reasonable
grounds; therefore, [p]laintiff is entitled
to an attorney’s fee in this matter. N.C.
Gen. Stat. § 97-88.1; Sparks v. Mountain
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Breeze Restaurant & Fish House, Inc., 55
N.C. App. 663, 286 S.E.2d 575 (1982).
Defendants now argue the Commission erred in conclusion of
law number 13 by concluding defendants’ defense was unreasonable
and argue finding of fact number 54, as well as all findings to
the extent they imply defendants’ defense was unreasonable, are
not supported by the evidence. Defendants further argue their
defense was reasonable because plaintiff has failed to meet his
burden to establish disability. Defendants’ arguments are
misguided.
N.C. Gen. Stat. § 97-32.1 (2013) governs trial returns to
work. It states that “[i]f the trial return to work is
unsuccessful, the employee's right to continuing compensation
under [N.C. Gen. Stat. §] 97-29 shall be unimpaired unless
terminated or suspended thereafter pursuant to the provisions of
this Article.” N.C. Gen. Stat. § 97-32.1 (2013). In Davis v.
Hospice & Palliative Care of Winston-Salem, 202 N.C. App. 660,
692 S.E.2d 631 (2010), this Court made clear that N.C. Gen.
Stat. § 97-32.1 mandates automatic reinstatement of disability
compensation “as soon as an employer has knowledge that an
employee’s return to work has been unsuccessful.” Id. at 668,
692 S.E.2d at 637. Notice of the failed return to work via a
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Form 28U, although preferred, is not required for reinstatement
of compensation so long as the employer receives notice. Id.In this case, the evidence supports the Commission’s
finding that “[d]efendants filed a Form 28, Return to Work
Report, . . . despite having notice that [p]laintiff’s attempt
to return to work was unsuccessful[.]” Based on this finding
and the requirements of N.C. Gen. Stat. § 97-32.1 and Davis, we
hold defendants’ defense to plaintiff’s claim for reinstatement
of temporary total disability benefits was unreasonable.
Defendant does not argue the Commission abused its discretion in
awarding fees or determining the amount; thus, we affirm the
Commission’s award of fees and costs pursuant to N.C. Gen. Stat.
§ 97-88.1.
As noted in Davis, “if defendants wished to cease making
the reinstated disability payments, they were required to follow
the procedures under one of the listed sections in Chapter 97.”
Id. at 669, 692 S.E.2d at 637. Reinstatement of temporary total
disability compensation to plaintiff, however, should have been
automatic upon notice of plaintiff’s failed return to work.
III. Conclusion
As discussed above, the Commission’s findings of fact are
supported by the evidence and those findings, in turn, support
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the Commission’s conclusions of law. Accordingly, we affirm the
opinion and award of the Commission.
Affirmed.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).