Johnson v. Lowe's Companies

McCullough, Judge.

On 16 February 1993, plaintiff Ricky Johnson injured his knee while working for defendant Lowe’s Companies, Inc., when he slipped in a puddle of oil and twisted his leg. Plaintiff sustained a thirty percent permanent partial impairment to his right knee. Plaintiff and defendant-employer entered into a Form 21 Agreement for Compensation for Disability, which was approved by the Industrial Commission on 3 May 1993. On 26 November 1997, defendants deposed plaintiff in an effort to determine his ability to engage in employment and other activities. Plaintiff testified at his deposition that his knee problems had intensified such that his everyday activities were extremely restricted. Specifically, plaintiff stated that he could not crouch down, kneel, squat or stand for more than twenty minutes.

Following a criminal indictment of plaintiff on 10 December 1997 for fraudulently obtaining workers’ compensation benefits and for perjury, defendants filed a Form 24 Application to Terminate or Suspend Payment of Compensation with the Industrial Commission, claiming that plaintiff had “fraudulently misrepresented his condition that he was unable to work.” Plaintiff, responding through counsel, contested the termination of benefits, stating that he had “been given total and permanent disability by his treating physician, Dr. Walton W. Curl on February 7, 1994[,]” and that “after completing the treatment provided for him by his employer and after finishing a rehabilitation program, he [was] still unable to stand on his right leg for any prolonged period of time.”

On 27 August 1998, the matter was heard before a deputy commissioner of the Industrial Commission, whose opinion and award was later adopted by the Full Commission (Commission). Upon reviewing the testimony of numerous witnesses, as well as videotaped surveillance of plaintiff conducted by both defendants’ and the Industrial Commission’s investigators, the Commission found that “[p]laintiff has consistently misrepresented his knee condition and his physical capacity to work to his health care providers, including Dr. Curl, and his employer[,]” and that “plaintiff has repeatedly demonstrated the capacity to engage in activities through which he could earn wages. He is able to work as an auto mechanic. He is able to work in logging. He is capable of standing, walking, kneeling, stooping, and bending on a continuous basis. He is capable of lifting more than just a light load or more than 30 pounds, on an occasional basis.” The Commission concluded that defendants had rebutted the presumption of an ongoing disability arising from the Form 21 Agreement, and that plaintiff had the capacity to earn wages in gainful and suitable employment. The Commission further awarded defendants attorney’s fees “incurred as a result of plaintiff’s unfounded litigiousness.” Plaintiff appealed to this Court.

Plaintiff argues that the Commission erred by failing to apply the presumption that plaintiff’s disability continued until he returned to work at the same wage earned prior to the injury. Plaintiff also contends that defendants failed to prove that plaintiff was employable, and that plaintiff’s medical evidence as to his infirmity outweighs the testimony of numerous witnesses and videotaped surveillance of plaintiff regarding his ability to engage in physical activity.

On appeal of cases from the Industrial Commission, our review is limited to two issues: “ ‘[W]hether 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.’ ” In re Stone v.G & G Builders, 346 N.C. 154, 157, 484 S.E.2d 365, 367 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986)). Because it is the fact-finding body, the Commission is “ ‘the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ ” Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). The Commission’s findings of fact are conclusive on appeal if they are supported by any competent evidence. Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). Accordingly, this Court “does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.” Anderson, 265 N.C. at 434, 144 S.E.2d at 274. In the instant case, we conclude that the Commission’s findings of fact are supported by competent evidence that in turn justifies the Commission’s conclusions of law.

In order to qualify for compensation under the Workers’ Compensation Act, a claimant must prove both the existence and the extent of disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). In the context of a claim for workers’ compensation, disability refers to the impairment of the injured employee’s earning capacity. Peoples v. Cone Mills Corp., 316 N.C. 426, 432, 342 S.E.2d 798, 804 (1986). “If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work . . . .” Watkins v. Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971). As stated in Rule 404(1) of the Workers’ Compensation Rules of the North Carolina Industrial Commission and noted by our Supreme Court in In re Stone, however, “this presumption of continued disability is rebuttable.” In re Stone, 346 N.C. at 157, 484 S.E.2d at 367. In the instant case, any presumptions existing in favor of plaintiff-employee have been rebutted by defendants through witness testimony, videotaped surveillance of plaintiff, as well as medical evidence and strong evidence of fraud.

In Stone v. G & G Builders, 121 N.C. App. 671, 674, 468 S.E.2d 510, 512, disc. review allowed, 343 N.C. 757, 473 S.E.2d 627 (1996), reversed, 346 N.C. 154, 484 S.E.2d 365 (1997), this Court determined that the defendant-employer.failed to rebut the presumption of an ongoing disability raised by a Form 21 Agreement, even though the Industrial Commission had found that plaintiff-employee was capable of returning to work at his regular job. “ [I]t does not necessarily follow that an employee who returns to his ‘regular job’ will earn the same wages he earned before his injury.” Stone, 121 N.C. App. at 674, 468 S.E.2d at 512. Reversing this decision, our Supreme Court held that the defendant- employer had successfully rebutted the presumption of plaintiffs disability “through medical and other evidence.” In re Stone, 346 N.C. at 157, 484 S.E.2d at 368. The Court noted that defendants had introduced videotaped surveillance of plaintiff performing various activities, including painting overhead with a roller, lifting and carrying plywood, trimming overhead branches, and throwing horseshoes. Defendants also introduced medical evidence that plaintiff retained no permanent partial impairment to his back, and that plaintiff could return to regular employment with certain restrictions. The Court further observed that the Industrial Commission found plaintiffs testimony regarding his inability to engage in the same or any other employment at the same wages neither credible nor convincing. Because defendants had successfully rebutted the presumption of plaintiffs disability, the Court reinstated the Industrial Commission’s opinion and award for defendants.

Harrington v. Adams-Robinson Enterprises, 128 N.C. App. 496, 495 S.E.2d 377, reversed, 349 N.C. 218, 504 S.E.2d 786 (1998) (Harrington I), further illustrates an employer’s successful rebuttal of a presumption of disability arising from a Form 21 Agreement where there is evidence of fraud by the employee. In that case, plaintiff-employee and defendant-employer entered into a Form 21 Agreement after plaintiff suffered compensable injuries while in the scope of his employment. Although he sustained permanent partial impairment to his back, plaintiff was eventually released to work by his physician, at which time defendant filed to terminate benefits. The Industrial Commission agreed with defendant that plaintiff had no further claim for workers’ compensation benefits and terminated such benefits. On appeal to this Court, plaintiff argued that the Industrial Commission erred in concluding that defendant had rebutted the presumption of disability because defendant had presented no evidence concerning plaintiff’s wage-earning capacity. Plaintiff contended that, because defendant had not offered him a job, nor had it shown that there were any jobs available which plaintiff could perform, defendant had not shown that plaintiff was capable of earning wages greater than or at the level he was earning at the time of his injury. A divided panel of this Court agreed with plaintiff, holding that defendant had not met its burden of disproving plaintiff’s disability. The Court stated that “[u]pon a showing of disability by the employee, the employer must produce evidence that suitable jobs are available for the employee and that the employee is capable of getting a job.” Harrington I, 128 N.C. App. at 498, 495 S.E.2d at 378. Because there was “no evidence to support a finding that the plaintiff retained any earning capacity after he was released by his doctors[,]” defendant failed to rebut the presumption of plaintiffs disability. Id. at 499, 495 S.E.2d at 379.

Quoting Stone, Judge Walker dissented from the majority, asserting that, “ ‘as stated in Rule 404(1) of the Workers’ Compensation Rules of the North Carolina Industrial Commission, [the] presumption of continuing disability [until the employee returns to work] is rebuttable.’ ” Harrington I, 128 N.C. App. at 500, 495 S.E.2d at 380 (quoting In re Stone, 346 N.C. at 157, 484 S.E.2d at 367) (Walker, J., dissenting). Noting that the Industrial Commission found that plaintiff’s testimony of continuing pain was not credible, and that he had been released to work, Judge Walker concluded that “the presumption existing in favor of the plaintiff was rebutted by the defendant through medical and other evidence.” Harrington I, 128 N.C. App. at 501, 495 S.E.2d at 380.

Defendant appealed to our Supreme Court, arguing that, because it had adequately rebutted the presumption of plaintiff’s disability, the decision by the Court of Appeals in favor of plaintiff should be reversed. Plaintiff again rejoined that, because defendant had not rehired plaintiff, nor provided vocational assistance, nor shown suitable and available job opportunities for plaintiff, defendant had not proven that plaintiff was capable of earning wages greater than or at the level he was earning at the time of his injury. Our Supreme Court, writing per curiam, rejected plaintiff’s argument, again reversing the Court of Appeals “[f]or the reasons stated in the dissenting opinion of Judge Walker[.]” Harrington v. Adams-Robinson Enterprises, 349 N.C. 218, 504 S.E.2d 786 (1998) (Harrington II).

In re Stone and Harrington II make clear that, although a Form 21 agreement creates a presumption that an employee is disabled until he returns to work, the presumption of disability may be rebutted by an employer through medical and other evidence. See In re Stone, 346 N.C. at 157, 484 S.E.2d at 367; Harrington I, 128 N.C. App. at 500, 495 S.E.2d at 380; Workers’ Comp. R. of the N.C. Indus. Comm’n 404(1), 2001 Ann. R. (N.C.) 745. Such “other evidence” includes evidence that the employee is capable of obtaining suitable and available employment. Davis v. Embree-Reed, Inc., 135 N.C. App. 80, 84, 519 S.E.2d 763, 765, disc. review denied, 351 N.C. 102, 541 S.E.2d 143 (1999); see also Stamey v. N.C. Self-Insurance Guar. Ass’n, 131 N.C. App. 662, 665, 507 S.E.2d 596, 599 (1998) (“The employer may rebut the presumption of continuing disability ‘through medical and other evidence,’ including evidence ‘that suitable jobs are available to the employee ....’”) Id. (citation omitted). The issue now before this Court is whether strong evidence of fraud, coupled with evidence that plaintiff-employee is, in fact, working, is enough to rebut the presumption of plaintiff’s continuing disability. We believe that, under the facts of this case, such evidence is sufficient.

In the instant case, defendants presented medical evidence that plaintiff had been released to work, albeit with restrictions, by his physician, Dr. Walton Curl. Dr. Curl opined that plaintiff was physically capable of “get[ting] a job working on cars. He seems to be comfortable doing that.” Contrary to plaintiff’s claim in his response to defendants’ application to terminate benefits, Dr. Curl’s 7 February 1994 note did not state that plaintiff suffered from “total and permanent disability,” but rather that plaintiff was “permanently disabled.” Dr. Curl testified that he did not mean to imply with his note that plaintiff was totally and permanently disabled, only that plaintiff had sustained a permanent impairment to his knee. Further, after viewing videotaped surveillance of plaintiff, Dr. Curl admitted that, based upon plaintiff’s subjective presentation of his injury during the course of treatment, plaintiff’s videotaped activities exceeded the level of performance of which he thought plaintiff capable.

In addition to the medical evidence, defendants also presented lengthy videotaped surveillance of plaintiff. One of the videotapes, dated October 1997, shows plaintiff working at a logging operation, cutting felled trees with a chain saw. Plaintiff’s filmed activities include prolonged standing, walking, stooping, kneeling, and lifting. The private investigator who filmed plaintiff testified that plaintiff worked continuously for over four hours, showing no signs of physical distress. Evidence showed that, during October and November 1997, plaintiff worked at the logging operation on approximately twelve occasions for four to eight hours a day. Plaintiff received about two hundred dollars for his work from Mr. Doug Williams, who claimed that the money was reimbursement for plaintiff’s expenses. Further videotaped surveillance shows plaintiff loading and unloading various items from the bed of his pickup truck, climbing ladders, shoveling sand or dirt, carrying piles of clothing and large boxes, and repairing automobiles. This evidence directly contradicts plaintiffs assertion in his deposition that he could not crouch down, kneel, squat or stand for more than twenty minutes.

Defendants presented numerous witnesses who testified as to plaintiffs physical capabilities. Ken Whapham, a private investigator, testified that in July and August 1994, he observed plaintiff working at an automobile service station, repairing a Mustang. Plaintiff had “grease and dirt on his arms” and at the time was wearing a “dark blue . . . shirt and pants that appeared to be a local work type uniform[.]” Mike Volin, a manager with Lowe’s, testified that on 9 April 1996, he observed plaintiff “in the back of a small light tan pickup truck bending down lifting ... cinder blocks that you build — to build a foundation to another gentleman that was outside of the truck.” Mr. Volin watched plaintiff unload the bed of the pickup truck for approximately fifteen minutes. R. Dee Mitchell, an employee at Lowe’s, testified that, on 24 October 1995, he drove by a garage on Union Methodist Church Road and observed plaintiff and another man “carrying what appeared to be a complete rear-end [assembly of an automobile].” Mr. Mitchell further testified that he observed plaintiff squatting, carrying heavy objects, and working on vehicles at the same garage on numerous occasions. Two other witnesses testified that they observed plaintiff walking in a smooth, natural manner until plaintiff became aware of their presence, whereupon plaintiff began noticeably limping.

Defendants also presented evidence of their efforts to assist plaintiff in locating employment. When Mr. McIntosh, Lowe’s Human Resource Manager, suggested “that GAB would probably want to assign a rehab nurse to assist [plaintiff] in looking for employment[,j” plaintiff replied that “they had done that and for over a year[,]” and that “[i]t didn’t do any good, that when [plaintiff] talked to employers and told them about his knee ... no one wanted to give him a job.” Mr. McIntosh also testified that plaintiff consistently told him that “he was unable to do anything based on his knee problem[,]” and that plaintiff’s attitude was one of “permanent disability.” Because of plaintiff’s statements, Mr. McIntosh concluded that Lowe’s did not have any work for plaintiff. Moreover, when asked what sort of vocational training he might find helpful, plaintiff stated that “I can’t think of anything, because I don’t — I’ve never been one to want to stay inside.”

Ray Young, an investigator with the Fraud Division of the Industrial Commission, testified that the Commission had received a fraud complaint regarding plaintiff. Pursuant to the complaint, the Commission conducted an investigation and presented the results to a screening committee, which subsequently referred the case to the District Attorney for prosecution. District Attorney Tom Horner authorized criminal prosecution against plaintiff for fraudulently obtaining Workers’ Compensation benefits and for perjury, crimes for which plaintiff was indicted. Plaintiff ultimately pled no contest to the charges, and a prayer for judgment was entered.

Like the plaintiffs in Stone and Harrington I, plaintiff in the instant case suffered compensable injuries for which he was compensated. Like Mr. Harrington, Mr. Johnson was released by his physician to work, even though he sustained a permanent partial impairment to his knee. Like Mr. Stone, Mr. Johnson was filmed engaging in strenuous physical activities. Further, like the Stone and Harrington I plaintiffs, the Industrial Commission specifically found that “[plaintiff's testimony regarding his knee condition is not credible.”

We hold that the Commission’s findings adequately established that the presumption existing in favor of plaintiff was rebutted by defendants through medical and other evidence. Where there is overwhelming evidence of fraud by the employee regarding both the physical limitations of his injury and his capacity to engage in work-related activities, as well as strong evidence that the employee is actually working on a regular basis, such evidence rebuts the presumption of continuing disability arising from the employee’s original injury. See In re Stone, 346 N.C. at 157, 484 S.E.2d at 367; Harrington I, 128 N.C. App. at 500, 495 S.E.2d at 380 (Walker, J., dissenting). Moreover, we determine that the Commission did not abuse its discretion in awarding defendants attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.1 (1999). Because. we find that the Industrial Commission’s findings of fact and conclusions of law were supported by competent evidence, the opinion and award by the Commission, including the award of attorney’s fees, is hereby

Affirmed.

Judge GREENE concurs. Judge HUDSON dissents.