Patillo v. Goodyear Tire & Rubber Co.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-636
Filed: 20 December 2016
From The North Carolina Industrial Commission IC No. X63688
SHAWN F. PATILLO, Plaintiff,
v.
GOODYEAR TIRE AND RUBBER COMPANY, Employer, LIBERTY MUTUAL
INSURANCE GROUP, Carrier, Defendants.
Appeals by Plaintiff and Defendants from an Opinion and Award filed 28 April
2016 by the Full North Carolina Industrial Commission. Heard in the Court of
Appeals 16 November 2016.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner and Law Office of
David P. Stewart, by David P. Stewart, for Plaintiff-Appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J. Ledwith and M.
Duane Jones, for Defendant-Appellants.
HUNTER, JR., Robert N., Judge.
Shawn F. Patillo (“Plaintiff”) and Goodyear Tire & Rubber Company
(“Employer”) and Liberty Mutual Insurance Company (collectively, “Defendants”)
appeal from an Opinion and Award filed 28 April 2016 by the Full North Carolina
Industrial Commission. We reverse and remand in part and affirm in part.
I. Factual and Procedural Background
PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
On 16 February 2011, Employer filed a Form 19 (Employer’s Report of
Employee’s Injury or Occupational Disease to the Industrial Commission). On 7
October 2011, Plaintiff filed a Form 18 (Notice of Accident to Employer and Claim of
Employee, Representative, or Dependent), stating he was injured as a result of a
flatbed accident at his place of employment on 16 February 2011. On the same day,
Plaintiff filed a Form 33 (Request that Claim be Assigned for Hearing), requesting
compensation for days missed, disability pay, payment of medical
expenses/treatment, and attorney’s fees and costs.
The parties executed a consent order on 28 March 2012. The Defendants
admitted an accident occurred at Goodyear and Plaintiff sustained “some level of
contusion to the lower back as a result of [the] accident[,]” but disputed the extent of
injury beyond the contusion.
On 24 October 2013, Deputy Commissioner Keischa M. Lovelace heard
Plaintiff’s case. The parties stipulated to the employee-employer relationship, the
insurance carried by Employer, and that Employer should provide a Form 22 for wage
calculation. Deputy Commissioner Lovelace issued an Opinion and Award on 18
December 2014. The Opinion and Award found and concluded Plaintiff sustained a
compensable injury, which was causally related to Plaintiff’s lower back pain. Deputy
Commissioner Lovelace awarded Plaintiff temporary total disability compensation
beginning 6 March 2012 until the time of the hearing, but denied Plaintiff’s request
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Opinion of the Court
for temporary total disability compensation from 13 May 2011 to 6 March 2012.
Employer gave proper notice of appeal to the Full Commission (“the Commission”) on
23 December 2014.
On 8 July 2015, the Commission filed an Interlocutory Order and reopened the
record for the receipt of additional evidence. The Commission ordered the parties to
confer and agree on a physician to conduct Plaintiff’s medical evaluation.
On 22 July 2015, Plaintiff filed a motion with the Commission, proposing seven
physicians to conduct Plaintiff’s medical evaluation. On 23 July 2015, Employer filed
a Motion to Amend, Clarify, and/or Consideration, asking the Commission to allow
both parties to depose medical providers who examined Plaintiff. On 3 August 2015,
Employer filed a response to Plaintiff’s motion, arguing Plaintiff’s motion was moot.
On the same day, Plaintiff filed a response, arguing there was no need for evidence
on the issue of disability and additional evidence was only needed regarding
causation.
In response, Commissioner Bernadine S. Ballance issued an order on 27
August 2015, holding Employer’s 23 July 2015 motion in abeyance. Commissioner
Ballance also ordered the parties to comply with the 8 July 2015 order by 30
September 2015. On 29 August 2015, Plaintiff filed a Motion for Additional Direction
regarding the 8 July 2015 Order. On 30 September 2015, Plaintiff filed a response to
the 8 July 2015 Order.
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Opinion of the Court
The Commission filed its Opinion and Award on 28 April 2016. The
Commission found the following facts.
Plaintiff, a forty-nine year old male at the time of the hearing, worked at
Employer since August 2007. At the time of the incident, Plaintiff worked as a press
operator. As a press operator, Plaintiff transferred uncured1 tires from a flatbed
trailer onto the loader pan of the press machine for curing. Plaintiff monitored fifteen
presses, ensuring the machines operated properly and removing tires after they
cured.
In the early morning of 16 February 2011, Plaintiff unloaded tires from a
stationary, unattached flatbed to a press machine loader pan. Nearby, a trucker
drove a powered industrial truck with an attached flatbed down the press row. The
flatbed attached to the truck “jackknifed” the unattached flatbed, which hit Plaintiff
in his lower back and knocked Plaintiff to the floor. Plaintiff immediately felt pain
from his back to his hips and legs, and Plaintiff was unable to stand up.
Immediately following the collision, a “Code Blue” was called, indicating an
accident occurred. Workers from the onsite medical clinic arrived and transported
Plaintiff to the clinic. Plaintiff complained of pain in his left lower back, groin, and
1“Curing” a tire is the cooking process for tires. Before a tire enters the pressing machine, it
is a “green tire.” A press operator removes the green tires from a flatbed and places them on a loader
pan, to be placed into a presser, where the tires are cooked. After the tire is pressed, it is considered
a cured tire.
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
hip area. The onsite medical clinic treated Plaintiff, scheduled him for an evaluation
the next day, and recommended Plaintiff only perform “off-standard”2 work. Plaintiff
arrived at the onsite medical clinic before his shift on the evening of 16 February 2011
for his examination. Plaintiff informed his evaluator the pain had worsened since
the night before and Plaintiff would not be capable of lifting tires due to the pain.
The onsite medical clinic team recommended “off-standard” work.
On 17 February 2011, Leslie A. Byrne (“Nurse Byrne”), a nurse practitioner at
the onsite medical clinic, evaluated Plaintiff. Plaintiff, once again, complained of pain
in the left side of his back, left hip, and left knee. Plaintiff displayed contusions.
Nurse Byrne restricted Plaintiff to “off-standard” work with help with large tires.
Plaintiff worked “off-standard” until 4 April 2011.
From 16 February 2011 to 13 May 2011, Plaintiff received treatment from the
onsite medical clinic. The treatment included pain medication and physical therapy.
Physical therapy ended on 22 March 2011, when Plaintiff reported less frequent and
less intense pain.
On 5 April 2011, Plaintiff returned to on-standard work. While performing his
regular job duties, Plaintiff’s back pain increased. Plaintiff told Nurse Byrne he
wanted a second opinion regarding his back injury. Although Nurse Byrne
prescribed various medications, Plaintiff still reported back pain.
2 “Off-standard” means Plaintiff did not fully perform all of his job functions and received
assistance with performing his job.
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Opinion of the Court
Not only did Plaintiff seek medical care at Employer’s onsite clinic, he also
went to Physician’s Express urgent care on 20 February 2011. The next day, Plaintiff
sought treatment at Northside Urgent Care for pain resulting from the injury.
Plaintiff applied for a wind-up operator position at Employer. Employer hired
Plaintiff for this position. However, after training, Plaintiff failed the certification
test to be a wind-up operator because he could not physically perform the job tasks.3
Consequently, Plaintiff returned to his press operator position on 5 April 2011.
While visiting Northside Urgent Care on 30 April 2011 for his asthma, Plaintiff
complained of lower back pain. Physician Assistant Aubrey Reid ordered a Magnetic
Resonance Image (“MRI”) of Plaintiff’s lumbar spine. On 12 May 2011, Plaintiff
received an MRI. On 13 May 2011, Physician Assistant Kerry Clancy saw a small
meningioma or nerve sheath tumor in Plaintiff’s lumbar spine. As a result, Clancy
restricted Plaintiff to two weeks of sit-down work and scheduled a neurosurgical
evaluation. Employer received notice of Plaintiff’s restriction to sit-down work, but
Employer indicated on its “Modified Work Authorization Form Medical Department”
no modified work was available. Notably, Employer indicated on the form Plaintiff’s
injury was “non-occupational.”4 Employer did not assign Plaintiff to a sit-down work
only position. Plaintiff has not worked since 13 May 2011. On 14 June 2011,
3 The Opinion and Award did not address why Plaintiff could not physically perform the job
tasks. However, Plaintiff testified a wind-up operator must work the crane and bend down to cut
plywood with a saw. Due to Plaintiff’s back pain, he could not perform these tasks.
4 “Non-occupational” means the injury was not related to Plaintiff’s job.
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Opinion of the Court
Physician Assistant Clancy treated Plaintiff for lower back pain. Plaintiff’s medical
provider restricted him to sit-down work only for two weeks.
Plaintiff reported to Dr. David Jones on 1 November 2011. Dr. Jones reviewed
Plaintiff’s lumbar spine MRIs. Dr. Jones was concerned about lesions on Plaintiff’s
lumbar spine and put the work-related back pain “on the back burner.” On 21
December 2011, Dr. Jones referred Plaintiff to Dr. Gabriel Pantol, a neurologist.
Dr. Pantol evaluated Plaintiff on 6 March 2012 and 11 May 2012. Dr. Pantol
opined Plaintiff’s spine lesions were asymptomatic and Plaintiff’s back pain was not
related to the lesions or sarcoidosis. Dr. Pantol recommended Plaintiff be evaluated
by a pain specialist for his back pain.
On 13 May 2011, Plaintiff reported to Dr. Robert Ferguson, an expert in
internal medicine. Based on Dr. Ferguson’s testimony, the Commission found
Plaintiff’s restriction to “sit-down work” related to his injury and low back pain and
he needed to be evaluated for the spinal lesions. Additionally, Plaintiff had
complained of back pain, which limited his capacity to perform his job duties
continuously from the date of injury.
Employer never filed an Industrial Commission form to admit or deny
Plaintiff’s claim. Additionally, Employer never indicated to the Industrial
Commission whether Plaintiff’s claim was being treated as “medical only.” With
regard to the parties’ consent order, the Commission found the consent order resulted
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Opinion of the Court
in a rebuttable presumption Plaintiff’s lower back injury was related to his
compensable 16 February 2011 injury and resulting back contusion.
By consent of the parties, Plaintiff reported to Dr. John Buttram, a
neurosurgeon, on 25 April 2012. Dr. Buttram diagnosed Plaintiff with non-
mechanical back pain and recommended conservative treatment from a physiatrist.
Dr. Buttram did not address restrictions for Plaintiff’s non-mechanical back pain. Dr.
Buttram opined to a reasonable degree of medical certainty “a contusion to the
paraspinous musculature5 is a reasonable assumption for Plaintiff’s non-mechanical
back pain, and if severe enough, his injury could prevent him from returning to the
kind of work that he did before.”
The Commission found Plaintiff’s work-related injury caused his contusion and
resulting non-mechanical back pain. The Commission explicitly relied on, and gave
great weight to, Dr. Buttram’s, Dr. Pantol’s, and Dr. Ferguson’s opinion testimonies.
The Commission further found Defendants failed to rebut the presumption that
Plaintiff’s need for medical treatment was causally related to the 16 February 2011
injury. Moreover, even without the presumption, the Commission found Plaintiff
proved the 16 February 2011 injury caused his lower back contusion and continuing
non-mechanical back pain.
5 “Paraspinous musculature” is defined as the muscles adjacent to the spinal column.
Paraspinal, MERRIAM-WEBSTER, http://www.merriam-webster.com/medical/paraspinal (last visited
Nov. 30, 2016).
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Opinion of the Court
Turning to the issue of disability compensation, on 13 May 2011, Plaintiff’s
medical providers assigned him to sit-down work only. However, Employer was
unable to accommodate Plaintiff’s work restrictions, and Plaintiff did not return to
work on 13 May 2011.6 Plaintiff was restricted to “sit-down only” work until 6 March
2012, when he reported to Dr. Pantol. At his deposition on 21 March 2014, Dr. Pantol
first opined, to a reasonable degree of medical certainty, Plaintiff was disabled and
unable to work when Dr. Pantol saw him on 6 March 2012 and May 2012. However,
on cross examination, Dr. Pantol limited his opinion of Plaintiff’s disability to the 11
May 2012 visit. Dr. Pantol did not think the 6 March 2012 visit was a basis to remove
Plaintiff from work.
Based upon Dr. Pantol’s testimony and a review of the record, the Commission
found Plaintiff failed to prove he was totally incapable of working in any employment
since 6 March 2012. The Commission further found since 6 March 2012, Plaintiff
failed to show he made a reasonable effort to find suitable employment, or due to
preexisting conditions and his work related restrictions, a search would have been
futile.7 The Commission noted Plaintiff’s testimony indicating he still considered
6 There are no findings in the record regarding why Employer was unable to accommodate
Plaintiff’s work restrictions.
7 There are no findings in the Opinion and Award regarding why the Commission found
Plaintiff failed to show he made a reasonable effort to find suitable employment, or due to preexisting
conditions and his work related restrictions, a search would have been futile. The lack of findings is
at issue on appeal.
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
himself an employee of Employer, which means Plaintiff may have been on a leave of
absence or a non-work related disability.
Regarding the 8 July 2015 Order, the Commission found the parties failed to
comply with the order, and also failed to comply with the 28 August 2015 Order.
Specifically, the parties failed to agree on a physician or a letter to send to a physician
for a medical evaluation of Plaintiff. As such, the Commission reconsidered the
record and found the 8 July 2015 and 28 August 2015 Orders should be vacated.
Accordingly, the Commission concluded based on a preponderance of the
evidence, the Parsons presumption applied to Plaintiff’s injury, due to the parties’
Consent Order. Defendants failed to rebut the Parsons presumption. The
Commission further concluded, even without the presumption, Plaintiff proved the
16 February 2011 injury caused the contusion and the continuing non-mechanical
back pain. The Commission awarded payment for all related medical treatment for
Plaintiff’s contusion and causally related injuries.
Turning to disability, the Commission concluded Plaintiff failed to prove he
had been totally incapable of working since 6 March 2012. Additionally, the
Commission concluded Plaintiff failed to show he made a reasonable effort to find
suitable employment, or due to preexisting conditions and his work related
restrictions, a search would have been futile.
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Opinion of the Court
Plaintiff filed notice of appeal of the Commission’s Opinion and Award to this
Court on 4 May 2016. Defendants filed notice of appeal on 2 June 2016.
II. Jurisdiction
This Court has jurisdiction over appeals from the Industrial Commission
pursuant to N.C. Gen. Stat. § 7A-29(a) and N.C. Gen. Stat. § 97-86 (2016).
III. Standard of Review
Review of an Opinion and Award of the Industrial 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
‘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) (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.
“This Court does not weigh the evidence; if there is any competent evidence which
supports the Commission’s findings, we are bound by their findings even though there
may be evidence to the contrary.” Peagler v. Tyson Foods, Inc., 138 N.C. App. 593,
597, 532 S.E.2d 207, 210 (2000) (citing Hansel v. Sherman Textiles, 304 N.C. 44, 283
S.E.2d 101 (1981)).
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Opinion of the Court
IV. Analysis
A. Plaintiff’s Appeal
We review Plaintiff’s contentions in three parts: (1) the conclusion of law
regarding whether Plaintiff made a reasonable effort to find suitable employment; (2)
findings regarding the Form 22; and (3) Plaintiff’s motion to dismiss Defendants’
appeal.
1. Conclusion of Law Number Nine
On appeal, Plaintiff contends the Commission erred by concluding Plaintiff
failed to make a reasonable effort to find suitable employment. We agree.
Under North Carolina Workers’ Compensation Law, an employee must prove
three factual elements to support the legal conclusion of disability:
(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.
Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 420, 760 S.E.2d 732, 735 (2014)
(quoting Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982)).
An employee can establish disability 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,
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Opinion of the Court
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.
Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)
(internal citations omitted). An employee can prove the first two statutory elements
through any of the four methods listed in Russell, “but these methods are neither
statutory nor exhaustive.” Medlin, 367 N.C. at 422, 760 S.E.2d at 737.
Regarding an employee’s efforts to obtain employment, there is no general rule
for determining the reasonableness of an employee’s job search. Gonzalez v. Tiny
Maids, Inc., ___ N.C. App. ___, ___, 768 S.E.2d 886, 894 (2015). Rather, “[t]he
Commission [is] free to decide” whether an employee “made a reasonable effort to
obtain employment under the second Russell option.” Perkins v. U.S. Airways, 177
N.C. App. 205, 214, 628 S.E.2d 402, 408 (2006).
“Further, the Commission ‘must make specific findings of fact as to each
material fact upon which the rights of the parties in a case involving a claim for
compensation depend. Thus, the Commission must find those facts which are
necessary to support its conclusions of law.’” Salomon v. Oaks of Carolina, 217 N.C.
App. 146, 152, 718 S.E.2d 204, 208 (2011) (quoting Johnson v. Herbie’s Place, 157
N.C. App. 168, 172, 579 S.E.2d 110, 113 (2003)).
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
Here, Plaintiff contends Conclusion of Law Number Nine is not supported by
the Commission’s findings of fact. Specifically, Plaintiff argues the Commission failed
to make the requisite findings of fact regarding Plaintiff’s search for employment.
The crux of Plaintiff’s argument is Plaintiff was not required to search for
employment outside of Employer for his search to be considered “reasonable”.
Defendants contend Plaintiff’s search for employment was insufficient to establish
disability under Russell.
Regarding Plaintiff’s employment, the Commission found the following:
49. On the issue of disability, on May 13, 2011, Plaintiff
was assigned the following restrictions: “sit down work
only . . . two weeks; scheduling neurosurgery.” Defendant-
Employer was unable to accommodate Plaintiff’s sedentary
restrictions and Plaintiff did not return to work on or about
May 13, 2011. Plaintiffs “sit down only” work restrictions
were continued by various medical providers until March
6, 2012, when Plaintiff presented to Dr. Pantol for a
neurosurgical evaluation. On March 6, 2012, Dr. Pantol
ruled out neuro-sarcoidosis and determined that Plaintiff's
non-work related spinal lesions were asymptomatic.
During his examination and treatment of Plaintiff, Dr.
Pantol also addressed Plaintiff’s ongoing non-mechanical
back pain related to his compensable February 16, 2011
injury by accident.
50. Plaintiff is not seeking disability compensation prior to
his March 6, 2012 evaluation with Dr. Pantol.
51. Plaintiff contends, based upon the deposition
testimony of Dr. Pantol and the evidence presented, that
he has proven he was temporarily totally disabled as of
March 6, 2012 and continues to be temporarily totally
disabled. At his March 21, 2014 deposition, Dr. Pantol was
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
asked to give an opinion on the issue of whether Plaintiff’s
non-mechanical back pain was disabling. During direct
examination, Dr. Pantol was asked: “Okay. And do you
have an opinion within a reasonable degree of medical
certainty whether Mr. Patillo was disabled and unable to
work at the time you saw him on March 6, 2012 and May
2012?” Dr. Pantol answered, “Yes, from the description,
that pretty much any type of activity would worsen his
pain.” However, during cross-examination, Dr. Pantol was
asked, “Okay. So then your opinion regarding the work
only involves the May 11, 2012, visit, correct?” He
answered, “That would be it exactly.” During re-direct
examination, Dr. Pantol was again asked his opinion
regarding Plaintiff’s disability and testified, “Based on my
first visit [March 6, 2012] . . . with a pain level of one or
two, I don’t think is a basis [to remove Plaintiff from work].
On the second visit [May 11, 2012], I would probably take
him out of work for at least a couple of days of rest.”
Considering the totality of his testimony, the Full
Commission finds that Dr. Pantol opined that he would
have removed Plaintiff from work due to his non-
mechanical back pain for a period of approximately three
days.
52. Dr. Buttram testified that he did not assign any work
restrictions to Plaintiff and it would have been speculative
for him to assign retroactive restrictions as of the date of
his deposition.
53. Based upon a preponderance of the evidence in view of
the entire record, the Full Commission finds that, except
for the three days in May 2012 when Dr. Pantol felt
Plaintiff should have been removed from work, Plaintiff
has not proven on this record that he has been totally
incapable of working in any employment since March 6,
2012. Plaintiff is not seeking indemnity compensation
prior to March 6, 2012, the date of his evaluation with Dr.
Pantol. Since March 6, 2012, Plaintiff has not shown that
he made a reasonable effort to find suitable employment,
or that due to preexisting conditions and his work related
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Opinion of the Court
restrictions, it would have been futile for him to seek
suitable employment. Plaintiff testified at the hearing
before the Deputy Commissioner that he still considered
himself to be an employee of Defendant-Employer. The
evidence indicates that he may have been on a leave of
absence or a non-work related disability.
Based on these findings, the Commission concluded:
9. On the issue of disability, the Full Commission concludes
that, except for the three days in May 2012 when Dr.
Pantol felt Plaintiff should have been removed from work,
Plaintiff has not proven on this record that he has been
totally incapable of working in any employment since
March 6, 2012. Plaintiff is not seeking indemnity
compensation prior to March 6, 2012, the date of his
evaluation with Dr. Pantol. Since March 6, 2012, Plaintiff
has not shown that he made a reasonable effort to find
suitable employment, or that due to preexisting conditions
and his work related restrictions, it would have been futile
for him to seek suitable employment. Plaintiff testified at
the hearing before the Deputy Commissioner that he still
considered himself to be an employee of Defendant-
Employer. N.C. Gen. Stat. § 97-29; Russell v. Lowes Prod.
Distrib., 108 N.C. App. 762,425 S.E.2d 454 (1993).
We conclude the Commission’s Conclusion of Law Number Nine is not
supported by competent evidence. The order and opinion contains no explanation for
the Commission’s determination of “reasonableness.” Franklin v. Broyhill Furniture
Indus. Inc., No. COA10-1334, 2011 WL 3890989, at *6-*7 (unpublished) (N.C. Ct.
App. Sept. 6, 2011) (requiring the Commission to explain the basis for its
determination of “reasonableness”). See also Freeman v. Rothrock, 202 N.C. App. 273,
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Opinion of the Court
277-79, 689 S.E.2d 569, 572-74 (2010) (affirming an award of disability when the
Commission explained the basis for its determination of “reasonableness”).
In Franklin, this Court reversed and remanded in part an Opinion and Award
where the Commission failed to explain its determination of “reasonableness.” 2011
WL 3890989, at *6-*7, *12. The Commission found the following in regards to the
reasonableness of a job search:
At the hearing before the Deputy Commissioner, Plaintiff
testified that he has attempted to obtain employment as a
truck driver since his termination with Defendant.
Plaintiff's job search log was introduced into evidence and
indicated that since his termination on May 29, 2008,
Plaintiff made weekly contacts to various companies that
employ truck drivers. Plaintiff testified that any available
positions were not within his physical restrictions. The
undersigned finds by the greater weight of the evidence
that Plaintiff has conducted a reasonable job search
without success and that Plaintiff's inability to find or hold
other employment is related to his work injury.
Id. at *5. The Franklin court relied on Freeman v. Rothrock, 202 N.C. App. 273, 689
S.E.2d 569, and held “the Commission’s finding that Plaintiff had conducted a
reasonable search for employment was not supported by sufficient factual findings.”
Id. at *7. The Court characterized the Commission’s determination of reasonableness
as “unsupported” and “conclusory.” Id. at *7. The Court concluded:
the Commission was required to make findings of fact
explaining the reason that it deemed Plaintiff’s job search
to be “reasonable” and that its failure to make such
findings constituted an error of law requiring us to reverse
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Opinion of the Court
this portion of the Commission’s order and remand this
case to the Commission for further proceedings not
inconsistent with this opinion, including the making of
adequate findings of fact . . . .
Id. at *7.
We note Franklin is not a published decision. However, we hold the Franklin
Court’s requirement for an explanation of the determination of “reasonableness” is
persuasive. As such, we hold the Commission must explain its basis for its
determination of “reasonableness.” Here, the Commission’s finding regarding
Plaintiff’s search is merely a conclusion that Plaintiff’s search for employment was
unreasonable. Such a conclusory finding is insufficient to support the Commission’s
conclusion regarding Plaintiff’s failure to establish his disability because he failed to
make a “reasonable” job search. Accordingly, we reverse this portion of the Opinion
and Award and remand to the Commission for further proceedings not inconsistent
with this opinion. See Munns v. Precision Franchising, Inc., 196 N.C. App. 315, 319,
674 S.E.2d 430, 434 (2009) (remanding to Commission when the Commission failed
to make necessary findings).
In Plaintiff’s brief, he asks this Court to instruct the Commission on remand
“to consider whether, in light of the fully favorably decision in his Social Security
Disability claim, he has met his burden of proving that it would futile for him to seek
other employment under the third prong of Russell.”
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Opinion of the Court
However, “it is not a proper function of courts ‘to give advisory opinions . . . .’”
Martin v. Piedmont Asphalt & Paving, 337 N.C. 785, 788, 448 S.E.2d 380, 382 (1994)
(quoting Adams v. N. Carolina Dep’t of Natural and Econ. Res., 295 N.C. 683, 704,
249 S.E.2d 402, 414 (1978)). It is the Commission’s role to determine whether
Plaintiff meets the third prong of Russell. Thus, instructing the Commission on
remand whether Plaintiff has met his burden under Russell would result in this
Court issuing an advisory opinion. As such, we decline Plaintiff’s invitation to advise
the Commission on this issue.
2. Form 22
Plaintiff next argues the Commission committed reversible error by failing to
make a finding regarding Defendants’ failure to submit a Form 22. We disagree.
It is well established the Commission is required to address all issues
necessary to resolve a Plaintiff’s claim. See Joyner v. Rocky Mount Mills, 92 N.C.
App. 478, 482, 374 S.E.2d 610, 613 (1988). A Form 22 (Statement of Days Worked
and Earnings of Injured Employee) is an aid in calculating average weekly wages,
pursuant to N.C. Gen. Stat. § 97-2(5), when indemnity compensation is granted.
In this case, the parties stipulated Defendants would provide a Form 22.
Deputy Commissioner Lovelace ordered Defendants to provide a Form 22 within
thirty days of the order. In the Commission’s order, the Commission found and
concluded the following:
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Opinion of the Court
The parties stipulated that Defendants would provide a
Form 22 for calculation of Plaintiff’s wages. The Industrial
Commission file does not contain a Form 22. This Opinion
and Award does not address Plaintiff’s average weekly
wage and compensation rate. Defendants shall provide a
Form 22 to Plaintiff.
In its Award, the Commission denied Plaintiff’s claim for indemnity
compensation. Additionally, the Commission stated the following: “This Opinion and
Award does not address Plaintiff’s average weekly wage and compensation rate.
Defendants shall provide a Form 22 to Plaintiff.”
Plaintiff argues he is entitled to a specific finding acknowledging Defendants
failed to comply with the order. Plaintiff contends the Commission’s duty to “resolve
all matters in controversy before it” requires the finding. Joyner, 92 N.C. App. at 482,
374 S.E.2d at 613. Plaintiff points to several opinions and awards, in which either a
deputy commissioner or the Commission found an employer failed to submit a Form
22. See Thompson v. N.C. Centel Tel., 2000 WL 1562940 at *2, I.C. No. 706622 (2000);
McLaughlin v. Sandoz Chem. Corp., 1998 WL 710019 at *5, I.C. No. 371437 (1998).
Defendants argue a Form 22 was not required because disability was not
awarded by the Commission. Thus, Defendants contend, the Commission did
properly determine all issues in controversy before it.
In this case, the Commission’s findings are sufficient to address all matters in
controversy. A Form 22 is used for wage calculation upon the grant of indemnity
compensation. See N.C. Gen. Stat. § 97-2(5). Here, the Commission denied Plaintiff’s
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Opinion of the Court
request for indemnity compensation. Thus, a Form 22 was not necessary pursuant
to the Commission’s Award, and Plaintiff was not entitled to a specific finding
regarding Defendants’ failure to submit a Form 22. Accordingly, this assignment of
error is without merit.8
3. Motion to Dismiss Defendants’ Appeal
Lastly, Plaintiff contends Defendants failed to timely file notice of appeal. In
his argument, Plaintiff reasserts the arguments included in his Motions to Dismiss,
filed 20 July 2016 and 26 July 2016. This Court denied Plaintiff’s motions to dismiss
in orders entered 5 August 2016.
B. Defendants’ Appeal
We review Defendants’ contentions in three parts: (1) applicability of the
Parsons presumption; (2) whether Defendants rebutted the Parsons presumption;
and (3) whether the Commission properly considered the entirety of the medical
expert testimony.
1. Whether the Parsons Presumption Applies
Defendants argue the Parsons presumption does not apply because “Plaintiff’s
non-mechanical back condition is not ‘the very injury’ Defendants accepted pursuant
to the consent order.” We disagree.
8Although a Form 22 was not required because the Commission denied Plaintiff’s request for
indemnity compensation, a Form 22 would be necessary if the Commission awards indemnity
compensation upon remand.
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
In Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), this Court
held after a workers’ compensation claimant meets the initial burden of proving the
compensability of an injury, there arises a presumption that further medical
treatment is directly related to the compensable injury. 126 N.C. App. at 541-42, 485
S.E.2d at 869. See also Miller v. Mission Hosp., Inc., 234 N.C. App. 514, 519, 760
S.E.2d 31, 35 (2014). The presumption exists because “[t]o require plaintiff to re-
prove causation each time [he] 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.”
Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869.
However, the Parsons presumption is not without limits. The presumption
applies only to “the very injury” determined to be compensable. Clark v. Sanger
Clinic, P.A., 175 N.C. App. 76, 79, 623 S.E.2d 293, 296 (2005); Perez v. Am.
Airlines/AMR Corp., 174 N.C. App. 128,135-36, 620 S.E.2d 288, 292-94 (2005).
Although limited to the very injury of compensability, “[t]he presumption of
compensability applies to future symptoms allegedly related to the original
compensable injury.” Perez, 174 N.C. App. at 136-37, 620 S.E.2d at 293 n.1.
Here, the parties’ consent order stated:
Defendants, in this Consent Order, agree to admit that
Employee was involved in an accident during the course
and scope of his employment with Employer-Defendant on
February 16, 2011, and admit that Employee sustained
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Opinion of the Court
some level of contusion to the lower back as a result of such
accident. The parties continue to dispute the extent of
injury beyond a contusion.
At the outset, we note the Parsons presumption applies to the parties’ consent
order. See id. at 135-36, 620 S.E.2d at 293 (applying the Parsons presumption where
employer admitted compensability of the plaintiff’s injury). The dispute here regards
the extent of the Parsons presumption.
Defendants contend the Parsons presumption does not apply to Plaintiff’s
ongoing back pain because the parties only consented to the compensability of a
contusion on Plaintiff’s back, not to Plaintiff’s continuing back pain. Plaintiff argues
“[w]hether the presumption of compensability is limited to the ‘very injury’ previously
determined to be compensable is irrelevant in this case, because [Plaintiff] alleged
(and the Full Commission ultimately found) that his current low back pain is related
to the ‘very injury’ determined to be compensable in the Consent Order.”
Here, the Full Commission properly applied the Parsons presumption to
Plaintiff’s continuing back pain. The parties’ consent order resolved the
compensability of Plaintiff’s contusions. Plaintiff’s continuing back pain is a “future
symptom allegedly related to the original compensable injury[,]” with Plaintiff’s
contusions being the compensable injury. Id. at 136-37, 620 S.E.2d at 293 n.1. As
such, Plaintiff was entitled to a rebuttable presumption that his continuing back pain
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
was directly related to the original compensable injury. Therefore, our next inquiry
is whether Defendants rebutted the Parsons presumption.
2. Whether Defendants Rebutted the Parsons Presumption
Defendants next argue the Commission erred in concluding Defendants failed
to rebut the Parsons presumption. We disagree.
Once the Parsons presumption applies, the burden rests on the Defendants to
rebut the presumption. “The employer may rebut the presumption with evidence that
the medical treatment is not directly related to the compensable injury.” Id. at 135,
620 S.E.2d at 292 (citing Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255,
259, 523 S.E.2d 720, 723 (1999)).
Regarding whether Defendants rebutted the Parsons presumption, the
Commission concluded:
3. The Parsons presumption is rebuttable. In order to rebut
this presumption, Defendants have the burden of
producing evidence showing Plaintiff’s non-mechanical
back pain and his need for medical treatment for his non-
mechanical back pain are unrelated to the compensable
injury. Defendants must present expert testimony or
affirmative medical evidence tending to show that the
treatment Plaintiff seeks for his current low back condition
is not directly related to his admittedly compensable back
injury. Id.; Perez v. Am. Airlines/AMR Corp., 174 N.C.
App. 128, 136- 37, 620 S.E.2d 288, 293 (2005).
4. Where the exact nature and probable genesis of a
particular type of injury involves complicated medical
questions far removed from the ordinary experience and
knowledge of laymen, only an expert can give competent
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
opinion evidence as to the cause of the injury. Click v. Pilot
Freight Carriers, 300 N.C. 164, 265 S.E.2d 389 (1980).
Additionally, the entirety of causation evidence must meet
the reasonable degree of medical certainty standard
necessary to establish a causal link. Holley v. ACTS. Inc.,
357 N.C. 228, 581 S.E.2d 750 (2003); Young v. Hickory Bus.
Furn., 353 N.C. 227, 538 S.E.2d 912 (2000). Defendants
did not present sufficient medical evidence to rebut the
Parsons presumption. Parsons v. Pantry, Inc., 126 N.C.
App. 540, 485 S.E.2d 867 (1997); Perez v. Am.
Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288(2005); Carr v. HHS (Caswell Ctr.), 218 N.C. App. 151, 720
S.E.2d 869 (2012).
Defendants point to testimony from Physical Therapist Frank Murray and Dr.
David Jones. First, regarding Dr. Murray’s testimony, Dr. Murray did not testify to
a reasonable degree of medical certainty regarding causation between Plaintiff’s back
pain and his work injury. Defendants point to the following piece of testimony from
the cross-examination of Dr. Murray:
A. [O]n the 22nd of March he had been feeling better
overall, is what he reported. So, I discharged him. And
then when he returned on April 5th, he had had an increase
in pain.
Q. Okay. And when he reported the increasing pain, he
reported that it occurred the prior weekend, when he was
not working. Is that correct?
A. Yes.
Q. And do you have an opinion or would you agree that the
presentation on April 5th of 2011 was secondary to the
reported activities or the reported flare-up at home the
weekend prior to that examination?
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
A. Would I agree that that was -- what it was related to, in
other words?
Q. Correct.
A. Yes.
However, this testimony does not adequately show Plaintiff’s current low back pain
is separate and distinct from his work injury. As such, the testimony from Dr. Murray
does not rebut the Parsons presumption.
Defendants next point to testimony from Dr. Jones. Specifically, Defendants
point to the following exchange in their direct examination of Dr. Jones:
I don't think that there is a[n] association between . . . his
back pain, and that trauma he suffered. . . whatever back
pain he had, for a short time after the injury, was probably
related to the injury itself. Why he had long term, chronic
back pain, I cannot answer. . . .
However, Defendants mischaracterize Dr. Jones’s testimony. In that part of his
deposition, Dr. Jones testified regarding lesions Plaintiff suffered on his spine, which
were admittedly not related to Plaintiff’s injury at work.
A full review of Dr. Jones’s testimony shows Dr. Jones never gave testimony to
a reasonable degree of medical certainty regarding causation for Plaintiff’s long term,
continuing back pain. In fact, in the same excerpt included in Defendants’ brief, Dr.
Jones further testified he did not “spend any time with [Plaintiff] in any of our visits
talking about his back pain and the likely causation of that.” Additionally, Dr. Jones
testified:
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
Q. And so, Doctor, fast-forwarding to today, if [Plaintiff]
was still having back complaints as of today, would you
have an opinion as to whether such current back
complaints would, more likely than not, be related to the
2011 incident or to some other cause?
A. It’s so – and it’s really hard for me to form any opinion
regarding that because I never really spent time with him
talking about that. So I don’t know that I have a strong
opinion one way or the other, as far as the etiology of his
back pain, just because that was never my focus and I
never thought these lesions were the cause of his back pain.
So again, I put the work related injury and the back pain
on the back burner and tried to find a diagnosis for
him . . . . So literally, I don’t know if I have a real strong
opinion [ ] as to whether or not his current pain or residual
pain or whatever pain he’s had over the years is related to
that trauma or not.
On cross-examination, the following exchange occurred:
Q: Doctor, you just said that nothing you just read changed
your opinions on causation. You had not given us any
opinion on causation, is that correct, in this case?
A. No.
Q: That’s not ---
A: I have---
Q: ---correct?
A: No, I have not given any opinions regarding causation.
I don’t have an opinion regarding causation.
Q: Okay. And to be clear, you have general medical
opinions, but no specific medical opinions on [Plaintiff] and
his facts involving his workers’ compensation case?
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
A: I have no opinion regarding causation for him. I don’t
know myself, I don’t know -- even if I could try to read these
notes and come up with an opinion, I don’t know yet what
I would think. I really have no opinion regarding
causation. It wasn’t my focus ever seeing him.
Defendants failed to present evidence showing the medical treatment was not
directly related to the compensable injury. See Perez, 174 N.C. App. at 135, 620
S.E.2d at 292. Neither Dr. Murray nor Dr. Jones testified regarding causation
between Plaintiff’s back pain and the work injury. Accordingly, we hold the
Commission did not err in concluding Defendants failed to rebut the Parsons
presumption and this assignment of error is without merit.9
3. Entirety of Medical Evidence
Next, we consider whether the Commission erred by failing to make sufficient
findings of fact to resolve all of the material issues raised by the evidence. In
particular, Defendants argue the Commission failed to make sufficient findings
regarding testimony of Defendants’ witnesses, Dr. Murray and Dr. Jones. We
disagree.
“In a workers’ compensation case, the Industrial Commission is the finder of
fact.” Peagler, 138 N.C. App. at 601, 532 S.E.2d at 212. It is exclusively within the
9 Because we hold the Defendants did not rebut the Parsons presumption, the burden to prove
causation did not shift back to Plaintiff. Miller, 234 N.C. App. at 519, 760 S.E.2d at 35 (“If the
defendant rebuts the Parsons presumption, the burden of proof shifts back to the plaintiff.”) (citation
omitted). As such, we need not address whether Plaintiff proved causation without the Parsons
presumption, as argued in Defendants’ brief.
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
Commission’s province to determine the credibility of the witnesses and the evidence
and the weight each is to receive. Floyd v. First Citizens Bank, 132 N.C. App. 527,
528, 512 S.E.2d 454, 455 (1999) (citation omitted). “In making these determinations,
the Commission may not wholly disregard or ignore the competent evidence before
it.” Peagler, 138 N.C. App. at 601, 532 S.E.2d at 212 (citation omitted).
However, “[t]he Commission is not required . . . to find facts as to all credible
evidence” and is “not required to make findings as to every detail of the credible
evidence.” London v. Snak Time Catering, Inc., 136 N.C. App. 473, 476, 525 S.E.2d
203, 205 (2000) (citation omitted); Woolard v. N. Carolina Dep’t of Transp., 93 N.C.
App. 214, 218, 377 S.E.2d 267, 269 (1989) (citation omitted). “Instead the
Commission must find those facts which are necessary to support its conclusions of
law.” London, 136 N.C. App. at 476, 525 S.E.2d at 205.
Defendants argue the Commission failed to make proper findings regarding
Dr. Murray’s and Dr. Jones’s testimony. Specifically, Defendants contend the
Commission wholly failed to consider testimony from Dr. Murray, and that the
Commission’s findings regarding Dr. Jones’s testimony are in error.
Here, the Commission made no findings directly regarding Dr. Murray’s
testimony. However, the Commission explicitly stated it received the deposition
testimony of Dr. Murray into evidence. Additionally, Finding of Fact Number Eleven
discusses Plaintiff’s visits with Dr. Murray. As such, the Commission did not “wholly
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PATILLO V. GOODYEAR TIRE & RUBBER CO.
Opinion of the Court
disregard or ignore the competent evidence before it.” Peagler, 138 N.C. App. at 601,
532 S.E.2d at 212.
Regarding Dr. Jones’s testimony, Defendants incorrectly assert Dr. Jones
opined as to the causation issue. However, as explained supra, Dr. Jones did not
testify regarding causation. As such, the Commission’s findings regarding Dr. Jones’s
testimony were not in error.
Because the Commission did not fail to properly consider the evidence before
it, this assignment of error is without merit.
V. Conclusion
For the foregoing reasons, we reverse and remand in part, and affirm in part
the Commission’s Opinion and Award.
REVERSED AND REMANDED IN PART; AFFIRMED IN PART.
Judges STROUD and DAVIS concur.
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