Sanhueza v. Liberty Steel Erectors , 122 N.C. App. 603 ( 1996 )

471 S.E.2d 92 (1996)

Luis A. SANHUEZA, Employee, Plaintiff;
v.
LIBERTY STEEL ERECTORS, Employer;
Michigan Mutual Insurance Company, Defendant.

No. COA95-468.

Court of Appeals of North Carolina.

June 4, 1996.

Todd, Parham & Harris by Ken Harris, Charlotte, for plaintiff-appellant.

Golding, Meekins, Holden, Cosper & Stiles by Henry C. Byrum, Jr., Charlotte, for defendants-appellees.

EAGLES, Judge.

Plaintiff first argues that the Industrial Commission erred in concluding that plaintiff unjustifiably refused to cooperate with defendants' reasonable vocational efforts. Plaintiff argues that any failure to cooperate on his part was justified and that he is therefore entitled to continuing temporary total disability benefits. We disagree.

The findings of fact made by the Industrial Commission are conclusive on appeal if supported by any competent evidence. Watkins v. City of Asheville, 99 N.C.App. 302, 303, 392 S.E.2d 754, 756, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990). Our review is limited to determining "whether there was competent evidence before the Commission to support its findings and ... whether such findings support its legal conclusions." McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982). The Industrial Commission is the sole judge of witness credibility. E.g., Burwell v. Winn-Dixie Raleigh, 114 N.C.App. 69, 74, 441 S.E.2d 145, 149 (1994).

Here, the Commission as finder of fact chose to believe defendants' evidence, including the testimony of Ms. Baker and Mr. Hinson and the videotape taken by Mr. Hinson. Ms. Baker testified in detail as to plaintiff's consistently uncooperative conduct. Mr. Hinson's videotape corroborates Ms. Baker's contention that plaintiff was intentionally uncooperative with her efforts to assist him in returning to the work force. Although, plaintiff's testimony tended to contradict defendants' evidence, the Commission chose not to believe plaintiff's testimony. The Commission's assessment of witness credibility is conclusive. Burwell, 114 N.C.App. at 74, 441 S.E.2d at 149. Accordingly, we conclude that there is competent evidence in the record to support the Commission's determination that plaintiff unjustifiably refused to cooperate with defendants' rehabilitation efforts.

Plaintiff next argues that the Commission erred in concluding that plaintiff's benefits must be terminated pursuant to G.S. 97-25 because plaintiff unjustifiably refused to cooperate with defendants' rehabilitation efforts. Plaintiff asserts that G.S. 97-25 is inapplicable to the vocational rehabilitation efforts employed by defendants here. We disagree. G.S. 97-25 provides in pertinent part that:

Medical Compensation shall be provided by the employer. In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital, or other treatment, the Industrial Commission may order such further treatment as may in the discretion of the Commission be necessary.

....

The refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the Industrial Commission shall bar said employee from further compensation until such refusal ceases....

G.S. 97-25 (1991). Plaintiff's argument misinterprets this statutory language. While the title of G.S. 97-25 is "Medical treatment and supplies," the title does not identify the full breadth of the statute's language.

G.S. 97-25 explicitly pertains to "medical compensation." G.S. 97-2(19) defines "medical compensation" as "medical, surgical, hospital, nursing, and rehabilitative services, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability...." G.S. 97-2(19) (1995). Reading these two statutory sections in pari materia, it is clear that "treatment," "rehabilitative procedures" or "rehabilitative services" are all within the purview of G.S. 97-25 so long as they "will tend to lessen the period of disability." Id.

Here, the Industrial Commission found that defendants secured vocational rehabilitation services for the plaintiff "in order to assist [plaintiff] in obtaining the type of suitable alternate light/sedentary work required by his permanent back injury...." In this context, we hold that an attempt to secure suitable employment for plaintiff is an appropriate attempt to "lessen the period of disability." We conclude therefore that G.S. 97-25 is controlling and that defendants here have met their burden of showing that plaintiff has unjustifiably refused to cooperate with defendants' rehabilitation efforts. Accordingly, we conclude that the portion of the Industrial Commission's opinion and award that suspends plaintiff's benefits pursuant to G.S. 97-25 should be affirmed.

The terminology of the Industrial Commission's opinion and award, however, effectively terminates plaintiff's right to receive future disability benefits rather than merely suspending that right for the period of plaintiff's unjustified refusal to cooperate with defendants' vocational rehabilitative efforts. Plaintiff argues that this is contrary to the language of G.S. 97-25. We agree. G.S. 97-25 is clear in its mandate that a claimant who refuses to cooperate with a rehabilitative procedure is only barred from receiving further compensation "until such refusal ceases...." Accordingly, we must reverse the Commission's opinion and award as to its conclusion that plaintiff is "no longer entitled to any further weekly compensation benefits ..." after 6 February 1991. The Commission's opinion and award must reflect the fact that plaintiff may again be entitled to weekly compensation benefits upon a proper showing by plaintiff that he is willing to cooperate with defendants' rehabilitative efforts.

Affirmed in part, reversed in part, and remanded.

JOHN C. MARTIN and MARK D. MARTIN, JJ., concur.