Dancy v. Abbott Laboratories , 139 N.C. App. 553 ( 2000 )

Judge Greene

dissenting.

I believe plaintiff is entitled to a presumption of total disability, arising from the execution of the Form 21 agreement, and I, therefore, respectfully dissent.

In this case, plaintiff and employer entered into a Form 21 agreement for an indefinite duration that stated plaintiff was totally disabled. Plaintiff and employer subsequently supplemented or amended the Form 21 agreement with a Form 26 agreement. The Form 26 agreement stated plaintiff was partially disabled; however, this Form 26 agreement specified plaintiffs partial disability was for a definite period of two weeks. Thus, the terms of the Form 21 agreement remained in effect, except as modified by the Form 26 agreement. Accordingly, at the end of the two-week period specified in the Form 26 agreement, plaintiff was again entitled to benefits consistent with the Form 21 agreement and the presumption of disability arising under that agreement in the event payments (or lack of payments) under the agreement were contested before the Commission.

This result does not contradict the North Carolina Supreme Court’s holding in Saunders v. Edenton Ob/Gyn Center, 352 N.C. 136, 530 S.E.2d 62 (2000). In Saunders, the parties entered into a Form 21 agreement that provided the employee was totally disabled for a limited duration of time. Id. at 137, 530 S.E.2d at 63. The parties then supplemented the Form 21 agreement with a Form 26 agreement that provided the employee was partially disabled for an indefinite period of time. Id. In Saunders, the court held the Form 26 agreement constituted the “final terms which became binding between the parties.” Id. at 140, 530 S.E.2d at 65. Unlike the case sub judice, the duration of the Form 21 agreement in Saunders was limited and the duration of the subsequent Form 26 agreement was unlimited. The employee in Saunders was, therefore, no longer entitled to a presumption of total disability, as the employee’s entitlement under the Form 21 agreement terminated upon the expiration of the period designated in that agreement. Accordingly, the relevant agreement in Saunders was the Form 26 agreement and any presumption the employee was entitled to receive was pursuant to that agreement.

In this case, because plaintiff was entitled to a presumption of total disability based on the Form 21 agreement and that agreement is the relevant agreement (benefits under the Form 26 agreement having expired), I would affirm the opinion and award of the Full Commission which gave plaintiff the benefit of the total disability presumption.