Johnson v. Southern Tire Sales & Service, Inc.

NO. COA13-1074
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
WILLIE B. JOHNSON, Employee,
Plaintiff,
v. North Carolina Industrial
Commission
I.C. No. 689047
SOUTHERN TIRE SALES AND SERVICE,
INC., Employer, and N.C. INSURANCE
GUARANTY ASSOCIATION, Carrier,
Defendants.
Appeal by plaintiff from opinion and award entered 21 June
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 5 February 2014.
Oxner Thomas & Permar, PLLC, by John R. Landry, Jr., for
plaintiff-appellant.
Young Moore and Henderson, P.A., by Joe E. Austin, Jr., for
defendants-appellees.
HUNTER, Robert C., Judge.
Willie B. Johnson (“plaintiff”) appeals from an opinion and
award entered by the Full Commission of the North Carolina
Industrial Commission (“the Commission”) denying his request to
reinstate vocational rehabilitation efforts and ruling that
plaintiff is time-barred from recovering any further
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compensation. On appeal, plaintiff argues that: (1) he offered
proof of his ongoing disability as the result of his compensable
injury; (2) he has offered proof of his willingness to comply
with vocational rehabilitation efforts; and (3) the Full
Commission applied erroneous legal standards in its opinion and
award.
After careful review, we affirm the Full Commission’s
opinion and award.
Background
The facts of this case have previously been addressed at
length, twice by this Court and once by our Supreme Court. See
Johnson v. S. Tire Sales & Serv., 152 N.C. App. 323, 567 S.E.2d
773 (2002) (“Johnson I”), rev’d, 358 N.C. 701, 599 S.E.2d 508(2004) (“Johnson II”); Johnson v. S. Tire Sales & Serv., No.
COA10-770, 2011 WL 2848842 (N.C. Ct. App. July 19, 2011)
(“Johnson III”). We need not restate the full factual history
here. The facts relevant to this appeal are as follows:
Plaintiff was previously employed by Southern Tire Sales and
Service, Inc. (“Southern Tire”) as a shop mechanic, and he
sustained a work-related back injury on 24 October 1996.
Southern Tire was insured by Casualty Reciprocal Exchange at the
time of plaintiff’s injury but is now insured by North Carolina
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Insurance Guaranty Association (with Southern Tire,
“defendants”). Defendants filed a Form 63 and paid plaintiff
medical and indemnity compensation. Defendants later accepted
liability for plaintiff’s injury by failing to contest the
compensability of plaintiff’s claim or their liability therefor
within the statutory period.
As part of the compensation, defendants provided vocational
rehabilitation services to assist plaintiff in locating suitable
employment. Ronald Alford (“Mr. Alford”), a Certified
Rehabilitation Counselor, arranged multiple job interviews for
plaintiff and registered him for the Johnston County Industries
program, which provided potential jobs that comported with
plaintiff’s work restrictions. However, plaintiff refused to
participate in the Johnston County Industries program and either
failed to attend the interviews that Mr. Alford had scheduled or
sabotaged them through “extreme pain behavior.”
Effective 9 February 1999, former Deputy Commissioner
Theresa B. Stephenson authorized defendants to suspend payment
of compensation due to plaintiff’s unjustified refusal to
cooperate with the vocational rehabilitation program defendants
had assigned. That decision was appealed to the Full
Commission, which reversed Deputy Commissioner Stephenson’s
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opinion and award and ordered defendants to pay temporary total
disability compensation from 27 January 1997. The Full
Commission’s opinion and award was affirmed by this Court in
Johnson I. However, on discretionary review, the Supreme Court
ruled that the Full Commission had erroneously operated under a
presumption of continuing disability in plaintiff’s favor and
applied an incorrect legal standard in determining whether
plaintiff had constructively refused suitable employment.
Johnson II, 358 N.C. at 706, 709, 599 S.E.2d at 512, 514. Thus,
the Supreme Court reversed the Court of Appeals decision in
Johnson I and ordered remand back to the Commission for entry of
findings regarding the existence and extent of plaintiff’s
disability and the suitability of alternative employment. Id.
at 711, 599 S.E.2d at 515.
After the Supreme Court’s ruling in Johnson II, there was
an unexplained six-year delay in the proceedings.1 Ultimately
the Full Commission entered a revised opinion and award on 9
1
As the Johnson III Court explained: “The record in this case is
an oddity. There are copies of several letters written by
counsel for the parties, addressed to the Commission and various
representatives thereof. These letters contain references to
various filings and occasionally contain requests to the
Commission such as ‘I would appreciate a ruling in this case.’
However, there is nothing in the record . . . that informs this
Court as to why the Commission delayed from 2004 until 2010 in
making the additional findings ordered by the Supreme Court.”
Johnson III, at *5.
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March 2010 (“the 9 March 2010 opinion and award”), in which it
found that plaintiff was not permanently and totally disabled
and concluded that plaintiff had failed to establish disability
for any time after 9 February 1999 due to his unjustifiable
refusal to cooperate with defendants’ vocational rehabilitative
efforts. It further ordered that defendants overpaid plaintiff
for any compensation for disability paid after 9 February 1999
and were entitled to a credit to offset this overpayment. After
appeal from both plaintiff and defendants, the Johnson III Court
affirmed the 9 March 2010 opinion and award, holding in relevant
part that there was no inconsistency in the Full Commission’s
conclusions as to disability. See Johnson III, at *9.
On 4 August 2011, plaintiff filed a Form 33, arguing that
he was entitled to temporary total disability compensation from
9 February 1999 onward. Plaintiff then filed a motion to compel
vocational rehabilitation on 1 September 2011. On 9 November
2012, Deputy Commissioner Mary C. Vilas entered an opinion and
award allowing plaintiff’s motion to compel vocational
rehabilitation and ordering defendants to authorize vocational
rehabilitation efforts for plaintiff. Defendants filed notice
of appeal to the Full Commission on 26 November 2012. After a
hearing on 1 May 2013, the Full Commission entered an opinion
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and award denying plaintiff’s request for additional vocational
rehabilitation services, denying plaintiff’s request for a
hearing to the extent that plaintiff sought additional
compensation, and awarding defendants a credit of $21,812.45
against any future indemnity compensation due plaintiff. The
Full Commission entered the following relevant findings of fact:
31. With respect to job search efforts,
Plaintiff acknowledged that the 11 employers
listed in his responses to Defendants’ 2010
Interrogatories were contacted at the time
he was working with Mr. Alford, which was
from 1997 through 1999. The only evidence
Plaintiff provided that could be construed
as job search efforts following 1999 was his
testimony that, “I’ve talked with Stephanie.
She’s a — you know, finds jobs and stuff....
we’re supposed to meet next week about some
interviews for jobs.”
32. Based upon the preponderance of the
evidence in view of the entire record, the
Full Commission finds that Plaintiff has
failed to produce any medical evidence that,
since February 9, 1999, he has been unable
to work as a result of his injury of October
24, 1996. Plaintiff has also failed to
produce sufficient evidence that, since
February 9, 1999, he has made a reasonable
effort to find work, that it would have been
futile for him to seek employment, or that
he has returned to work earning lower wages
than he was earning at the time of the
aforementioned injury.
Based on these findings, the Full Commission entered the
following conclusions of law:
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2. No presumption of continuing disability
is created when a Form 63 is executed
followed by payments by the employer to the
employee beyond the statutory time period
contained in N.C. Gen. Stat. § 97-18(d)
without contesting the compensability of or
liability for a claim. As such, Plaintiff
in the instant case bears the burden of
proving the existence and degree of
disability.
3. In order to meet this burden of proof,
Plaintiff must prove that he was incapable
of earning pre-injury wages in either the
same or in any other employment and that the
incapacity to earn pre-injury wages was
caused by Plaintiff’s injury. . . .
4. In its March 9, 2010 Opinion and Award on
Remand, the Full Commission determined that
Plaintiff met his burden of proving
disability under the first prong of Russell
through April 23, 1997, and under the second
prong of Russell until February 9, 1999. The
Full Commission further determined that, as
of February 9, 1999, Defendants had
successfully rebutted Plaintiff’s evidence
of disability through the presentation of
evidence that suitable work was available to
Plaintiff, and that plaintiff was capable of
obtaining a suitable job taking into account
both his physical and vocational
limitations.
5. . . . Following its analysis of the March
9, 2010 Opinion and Award on Remand, the
[Court of Appeals] ultimately concluded that
there was no inconsistency in the Full
Commission’s findings on disability and
affirmed the Full Commission’s March 9, 2010
Opinion and Award on Remand.
6. . . . Accordingly, the Court of Appeals’.
determination that the Full Commission
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resolved the disability issue in its March
9, 2010 Opinion and Award on Remand is law
of the case and is binding on the parties
and the Commission going forward.
7. Plaintiff has failed to meet his burden
of proving disability at any time on or
after February 9, 1999. As such, plaintiff
is not entitled to additional vocational
rehabilitation services as he has not proven
a period of disability which such services
could serve to lessen.
8. Because Plaintiff filed his Industrial
Commission Form 33 indicating he believed he
was entitled to additional compensation on
August 4, 2011, over two years since the
final payment of compensation on April 27,
2000, Plaintiff is precluded from seeking
additional compensation. N.C. Gen. Stat. §
97-47.
Plaintiff filed timely notice of appeal to this Court on 25 June
2013.
Discussion
I. Reinstitution of Vocational Rehabilitation Efforts
Plaintiff’s first argument on appeal is that the Full
Commission erred by declining to order reinstatement of
vocational rehabilitation efforts. We disagree.
The Commission has exclusive original jurisdiction over
workers’ compensation proceedings. Thomason v. Red Bird Cab
Co., 235 N.C. 602, 604, 70 S.E.2d 706, 708 (1952). It is
required to hear the evidence and file its award, “together with
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a statement of the findings of fact, rulings of law, and other
matters pertinent to the questions at issue.” N.C. Gen. Stat. §
97-84 (2013). “The reviewing court’s inquiry is limited to two
issues: whether the Commission’s findings of fact are supported
by competent evidence and whether the Commission’s conclusions
of law are justified by its findings of fact.” Hendrix v. Linn-
Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986).
The Commission’s findings of fact are conclusive on appeal when
supported by competent evidence even though evidence exists that
would support a contrary finding. Hilliard v. Apex Cabinet Co.,
305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). “[F]indings of
fact which are left unchallenged by the parties on appeal are
presumed to be supported by competent evidence and are, thus
conclusively established on appeal.” Chaisson v. Simpson, 195
N.C. App. 463, 470, 673 S.E.2d 149, 156 (2009) (citation and
quotation marks omitted).
First, we affirm the Full Commission’s legal conclusions
that support its denial of plaintiff’s request for reinstatement
of vocational rehabilitation. Plaintiff argues that, in order
for the Full Commission to address whether he is entitled to
future disability compensation, defendants must be ordered to
reinstate vocational rehabilitation efforts, after which point
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plaintiff will be given the opportunity to offer evidence of his
substantial compliance. We disagree with plaintiff’s analysis.
Pursuant to N.C. Gen. Stat. § 97-25(a) (2013), “medical
compensation shall be provided by the employer” under the
Workers’ Compensation Act. As defined in N.C. Gen. Stat. § 97-
2(19) (2013), “medical compensation” includes “vocational
rehabilitation.” However, services only fall under the
definition of “medical compensation” if they “effect a cure or
give relief” or “will tend to lessen the period of disability.”
N.C. Gen. Stat. § 97-2(19). The Full Commission correctly
reasoned that because vocational rehabilitation by its nature
cannot effect a cure or give relief in a medical sense, it must
lessen the period of disability in order to meet the statutory
definition of medical compensation. “Under the . . .
Compensation Act disability refers not to physical infirmity but
to a diminished capacity to earn money.” Mabe v. Granite Corp.,
15 N.C. App. 253, 255, 189 S.E.2d 804, 806 (1972). To meet the
standard of tending to lessen the period of disability, a
vocational rehabilitation service must reduce “the period of
[the employee’s] diminished capacity to work.” Peeler v. State
Highway Comm’n, 48 N.C. App. 1, 6-7, 269 S.E.2d 153, 157 (1980).
Thus, we agree with the Full Commission that a disability, or a
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“diminished capacity to earn money,” must be shown before
vocational rehabilitation services can be awarded or reinstated
as part of a worker’s compensation claim. See Powe v.
Centerpoint Human Servs., __ N.C. App. __, __, 742 S.E.2d 218,
223 (2013) (“[T]he impact of an employee’s refusal to cooperate
with vocational rehabilitation services on that employee’s right
to indemnity compensation arises only after she has met her
burden of establishing disability. . . . If the Commission
determines that [p]laintiff has not met her burden of proving
disability during the contested periods, then the issues
regarding [p]laintiff’s cooperation with vocational
rehabilitation efforts will be moot.”).
As the Johnson II Court noted in its opinion remanding for
a determination as to the extent of plaintiff’s disability, “a
determination of whether a worker is disabled focuses upon
impairment to the injured employee’s earning capacity rather
than upon physical infirmity.” Johnson II, 358 N.C. at 707, 599
S.E.2d at 513. An employee may carry the burden of proving the
existence of a disability by producing evidence of one of the
following: (1) medical evidence that he is physically or
mentally, as a result of the work-related injury, incapable of
work in any employment; (2) evidence that he is capable of some
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work, but that he has, after a reasonable effort, been
unsuccessful in his efforts to obtain employment; (3) evidence
that he is capable of some work, but that it would be futile
because of preexisting conditions, such as age, inexperience, or
lack of education, to seek employment; or (4) evidence that he
has obtained other employment at wages less than his pre-injury
wages. Russell v. Lowes Prod. Distribution, 108 N.C. App. 762,
765, 425 S.E.2d 454, 457 (1993).
Here, competent evidence supports the Full Commission’s
findings of fact, and those findings support the conclusions of
law, that plaintiff has failed to carry the burden of
establishing disability for any time after 9 February 1999.
First, it is the law of the case that plaintiff failed to
establish disability from 9 February 1999 through the entry of
the 9 March 2010 opinion and award. “[O]nce an appellate court
has ruled on a question, that decision becomes the law of the
case and governs the question both in subsequent proceedings in
a trial court and on subsequent appeal.” Prior v. Pruett, 143
N.C. App. 612, 618, 550 S.E.2d 166, 170 (2001) (citation and
quotation marks omitted). The Johnson III Court affirmed the
Full Commission’s 9 March 2010 opinion and award, which
concluded that plaintiff only established disability through 9
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February 1999 and after that date had failed to carry his burden
of establishing disability. Johnson III, at *9. Thus, because
the issue of whether plaintiff established disability was
presented and affirmatively addressed by this Court, the law of
the case doctrine applies, and we are bound to conclude that
plaintiff failed to establish disability from 9 February 1999
through entry of the 9 March 2010 opinion and award.
Second, there is competent evidence to support the Full
Commission’s finding of fact that plaintiff failed to establish
disability under Russell at any time after entry of the 9 March
2010 opinion and award. Plaintiff does not challenge the Full
Commission’s finding of fact that the only effort he put forth
in attempting to find work after 9 February 1999 was talking to
an individual named “Stephanie,” with whom he was scheduled to
meet after the 14 October 2011 hearing before Deputy
Commissioner Vilas. Because this finding is unchallenged, it is
presumed to be supported by competent evidence and is binding on
appeal. Chaisson, 195 N.C. App. at 470, 673 S.E.2d at 156.
This finding further supports the Full Commission’s conclusion
that plaintiff failed to put forth a “reasonable effort” to find
employment, and therefore did not establish disability under the
second prong of the Russell test. See Russell, 108 N.C. App. at
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766, 425 S.E.2d at 457. Furthermore, competent evidence
supports the Full Commission’s findings that plaintiff also
fails to establish disability under the other three prongs of
the Russell test. There is evidence to support, and plaintiff
does not contest, that: (1) he is capable of some employment,
albeit with physical limitations; (2) it would not be futile for
plaintiff to return to work due to a preexisting condition such
as age or lack of education; and (3) he has not taken employment
that paid a lesser wage than he earned before his injury. See
id.Accordingly, because no period of disability existed when
plaintiff filed his request to reinstate vocational
rehabilitation, we affirm the Full Commission’s denial of
plaintiff’s request, as those efforts could not serve to lessen
a period of disability.
II. Section 97-47
Plaintiff next argues that the Full Commission erred by
ruling that he is time-barred by N.C. Gen. Stat. § 97-47 from
seeking further compensation. We disagree and affirm the Full
Commission’s opinion and award.
First, plaintiff contends that the issue of whether he is
time-barred by section 97-47 from seeking additional
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compensation was not properly presented to the Commission for
determination, and therefore the portions of the opinion and
award that address this argument must be vacated with leave for
either party to raise such issues pursuant to a Form 33 request
for a new hearing. We disagree. Here, Deputy Commissioner
Vilas limited the issue for determination at the initial hearing
solely to whether defendants should be ordered to reinstate
vocational rehabilitation efforts for plaintiff. However,
defendants filed motions to dismiss plaintiff’s requests,
arguing that plaintiff was time-barred by section 97-47 from
receiving any further compensation. “[T]he [F]ull Commission
has the duty and responsibility to decide all matters in
controversy between the parties . . . even if those matters were
not addressed by the deputy commissioner.” Perkins v. U.S.
Airways, 177 N.C. App. 205, 215, 628 S.E.2d 402, 408 (2006).
“Thus, the mere fact that a particular issue was not raised
before a deputy commissioner does not, standing alone, obviate
the necessity for the Commission to consider that issue.”
Bowman v. Scion, __ N.C. App. __, __, 737 S.E.2d 384, 388
(2012). Here, given that plaintiff requested further
compensation in his Form 33 and requested compensation in the
form of vocational rehabilitation, we hold that it was proper
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for the Full Commission to consider whether plaintiff is time-
barred by section 97-47 from receiving further compensation in
its opinion and award.
Pursuant to section 97-47:
Upon its own motion or upon the application
of any party in interest on the grounds of a
change in condition, the Industrial
Commission may review any award, and on such
review may make an award ending,
diminishing, or increasing the compensation
previously awarded, subject to the maximum
or minimum provided in this Article, and
shall immediately send to the parties a copy
of the award. No such review shall affect
such award as regards any moneys paid but no
such review shall be made after two years
from the date of the last payment of
compensation pursuant to an award under this
Article[.]
N.C. Gen. Stat. § 97-47 (emphasis added). “The time limitation
[in section 97-47] commences to run from the date on which [the]
employee received the last payment of compensation[.]” Sharpe
v. Rex Healthcare, 179 N.C. App. 365, 372, 633 S.E.2d 702, 706
(2006).
Plaintiff and defendants are in disagreement as to the
grounds upon which the Full Commission suspended plaintiff’s
compensation in the 9 March 2010 opinion and award, and both
contend that this distinction is dispositive as to the
applicability of the two-year limitation in section 97-47.
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Plaintiff argues that compensation was suspended under section
97-25 for his refusal to accept vocational rehabilitation.
Thus, under Scurlock v. Durham Cnty. Gen. Hosp., 136 N.C. App.
144, 147, 523 S.E.2d 439, 441 (1999), plaintiff contends the
question of whether he is entitled to future benefits hinges on
the opportunity to comply with further vocational rehabilitation
efforts once they are provided by defendants, and section 97-47
is not implicated. See id. (concluding that where a case was
“pending under section 97-25,” it was not a “change-of-condition
case under section 97-47,” and the two-year statute of
limitation did not apply). Defendants, on the other hand,
contend that compensation was suspended not under section 97-25,
but under N.C. Gen. Stat. § 97-32 (2013), based on plaintiff’s
failure to accept suitable employment. See N.C. Gen. Stat. §
97-32 (“If an injured employee refuses suitable employment . . .
the employee shall not be entitled to any compensation at any
time during the continuance of such refusal, unless in the
opinion of the Industrial Commission such refusal was
justified.”). Citing Sharpe, defendants argue that plaintiff’s
failure to accept suitable employment under section 97-32
triggered the time-bar of section 97-47, and therefore the Full
Commission properly determined that plaintiff is foreclosed from
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seeking further compensation. See Sharpe, 179 N.C. App. at 372-
73, 633 S.E.2d at 706-07 (holding that where an employee’s
compensation was suspended for her unjustified refusal to return
to suitable employment under section 97-32, the time-bar of
section 97-47 ran upon last payment of compensation).
We agree with defendants that the Full Commission
terminated compensation under section 97-32 because plaintiff
refused suitable employment without justification. In Johnson
II, the Supreme Court cited section 97-32 for the proposition
that “[i]f the employer successfully rebuts the employee’s
evidence of disability by producing evidence that the employee
has refused suitable employment without justification,
compensation can be denied.” Johnson II, 358 N.C. at 709, 599
S.E.2d at 514. It further noted that the Full Commission’s
previous opinion and award “should have contained specific
findings as to what jobs plaintiff is capable of performing and
whether jobs are reasonably available for which plaintiff would
have been hired had he diligently sought them.” Id. at 710, 599
S.E.2d at 514. On remand, the Full Commission cited section 97-
32 and concluded that plaintiff “unjustifiably refused to
cooperate with defendants’ vocational rehabilitative efforts,”
and as a result, ordered that defendants “are entitled to
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suspend payment of compensation to plaintiff effective 9
February 1999.” In his arguments before this Court in Johnson
III, plaintiff himself characterized the 9 March 2010 opinion
and award as a “decision to suspend [his] receipt of temporary
total disability compensation pursuant to N.C. Gen. Stat. § 97-
32 . . . .” Johnson III, at *3. Based on the foregoing, we
conclude that compensation was suspended by the Full Commission
in its 9 March 2010 opinion and award pursuant to section 97-32,
not section 97-25. Accordingly, under Sharpe, the time
limitation in section 97-47 began to run upon receipt of
plaintiff’s final payment of compensation on 27 April 2000.
Because plaintiff requested additional compensation based on a
change of condition more than two years after the final payment
of compensation, we affirm the Full Commission’s conclusion of
law that plaintiff is time-barred by section 97-47 from
receiving such compensation.
Conclusion
Because plaintiff has failed to establish any period of
disability after 9 February 1999, we affirm the Full
Commission’s denial of his request to reinstate vocational
rehabilitation efforts. Furthermore, plaintiff is time-barred
from seeking additional compensation under section 97-47 because
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the two-year limitation began upon receipt of final payment and
has since run.
AFFIRMED.
Judges GEER and McCULLOUGH concur.