Brooks v. Capstar Corp.

606 S.E.2d 696, 168 N.C. App. 23, 2005 N.C. App. LEXIS 175
CourtCourt of Appeals of North Carolina
DecidedJanuary 18, 2005
DocketCOA03-1064
StatusPublished
Cited by7 cases

This text of 606 S.E.2d 696 (Brooks v. Capstar Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brooks v. Capstar Corp., 606 S.E.2d 696, 168 N.C. App. 23, 2005 N.C. App. LEXIS 175 (N.C. Ct. App. 2005).

Opinions

McGEE, Judge.

Capstar Corporation (employer) and The Hartford, carrier (collectively defendants) appeal from an opinion and award of the North Carolina Industrial Commission (the Commission) filed 29 April 2003 finding and concluding that Patricia Brooks (plaintiff) complied with the vocational services provided by defendants and that she had not constructively refused to accept employment. Accordingly, defendants were ordered to reinstate plaintiff’s total disability compensation.

The evidence before the Commission tended to show that at the date of injury, plaintiff had worked for employer as a seamstress for ten years. Plaintiff was injured on 27 January 1997 when her left arm and elbow were struck by a door as she turned to see a coworker. Defendants accepted the claim as compensable through a Form 60.

Dr. Wodecki initially diagnosed plaintiff with a left elbow contusion on 28 January 1997, and she was allowed to return to work with lifting restrictions. Plaintiff continued to complain of pain and Dr. Wodecki referred plaintiff to Dr. Bryon Dunaway (Dr. Dunaway). Dr. Dunaway diagnosed plaintiff on 28 March 1997 as having a “left medial elbow contusion resulting in a chronic medial tennis elbow.” Dr. Dunaway released plaintiff to return to work. He also noted that plaintiffs motivation for returning to work was low. Plaintiff continued to seek treatment from Dr. Dunaway until 21 May 1997. During this time, plaintiff complained of neck, shoulder, arm, and hand pain attributable to a prior motor vehicle accident. Dr. Dunaway ultimately diagnosed plaintiff as having a disc herniation.

Plaintiff next sought treatment on 5 June 1997 from Dr. Larry Pearce (Dr. Pearce) who provided pain management treatment for plaintiff through July 1998. Dr. Pearce signed a Form 28U on 6 November 1997, but defendants did not reinstate plaintiff’s benefits since Dr. Pearce was not plaintiff’s authorized treating physician. [25]*25However, after the Commission authorized Dr. Pearce as a treating physician for plaintiff, defendants reinstated plaintiffs benefits. Plaintiff next sought treatment from Dr. T. Kern Carlton (Dr. Carlton) on 18 April 2000.

A deputy commissioner entered an opinion and award on 25 October 2000 ordering defendants to pay plaintiff temporary total disability compensation until further order of the Commission. The deputy commissioner also concluded that as a condition of receiving these benefits, plaintiff was required to “cooperate fully with medical and vocational services[.]”

In a Form 24 dated 5 February 2001, defendants requested that plaintiffs compensation be suspended, alleging that plaintiff had “impeded [defendants’] efforts at returning [plaintiff] to suitable employment[.]” Plaintiff disputed that compensation should be suspended on the ground that “no suitable employment ha[d] been found, offered, approved and [was] available.” In an order filed 29 March 2001, a special deputy commissioner approved defendants’ application to suspend plaintiffs compensation from the date the Form 24 was filed until plaintiff demonstrated compliance with the vocational and rehabilitation services.

A deputy commissioner entered an opinion and award on 29 August 2002 rescinding the special deputy commissioner’s order which had allowed defendants to suspend plaintiff’s temporary total disability compensation. Defendants appealed to the Commission. In an opinion and award filed 29 April 2003, the Commission concluded that plaintiff had complied with the vocational services provided by defendants and that defendants’ Form 24 application was improvidently granted. Accordingly, the Commission vacated the special deputy commissioner’s order allowing defendants to suspend plaintiff’s compensation. The Commission further ordered that plaintiff’s benefits be reinstated effective 8 February 2001 until further order of the Commission. Defendants appeal.

This Court’s review of an opinion and award of the Commission is “limited to reviewing whether any competent evidence supports the Commission’s findings of fact and whether the findings of fact support the Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). “Under our Workers’ Compensation Act, ‘the Commission is the fact finding body.’ ” Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Brewer v. Trucking Co., 256 N.C. 175, 182, 123 S.E.2d [26]*26608, 613 (1962)). “The facts found by the Commission are conclusive upon appeal to this Court when they are supported by competent evidence, even when there is evidence to support contrary findings.” Pittman v. International Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C. 310, 534 S.E.2d 596, aff’d, 351 N.C. 42, 519 S.E.2d 524 (1999). So long as “there is any credible evidence to support the findings, the reviewing court is bound by it.” Roman v. Southland Transp. Co., 350 N.C. 549, 556, 515 S.E.2d 214, 219 (1999).

Defendants first argue in multiple assignments of error that the Commission erred in concluding that plaintiff complied with the vocational rehabilitation services and in concluding that the Form 24 was improvidently granted. Defendants argue that plaintiff had a suitable work opportunity, that she sabotaged the vocational rehabilitation efforts, and that although capable of work, she “chose to thwart efforts to obtain suitable employment.” For the reasons stated below, we disagree.

The Commission specifically found that:

13. The greater weight of the evidence of record shows that from December 20, 2001 to March 29, 2001, plaintiff was cooperative with the vocational case manager, Ms. O’Kane. Plaintiff did whatever Ms. O’Kane asked her to do and met with Ms. O’Kane on a regular basis.
14. Plaintiff did not intentionally sabotage vocational efforts regarding the security job available with Statesville Auto Auction.

Accordingly, the Commission concluded that:

1. Plaintiff has complied with the vocational services provided by defendants. Plaintiff has not constructively refused to accept suitable employment available to her that she could have obtained with due diligence. N.C. Gen. Stat. § 97-25; 97-32.
2. In that plaintiff has not refused to comply with vocational rehabilitation, the Form 24 application was improvidently granted and defendants are not entitled to suspend payment of compensation. N.C. Gen. Stat. § 97-25.

As support for their first argument, defendants assert that plaintiff “had an opportunity for suitable work with Statesville Auto Auction within the guidelines set by her doctor, but she sabotaged the efforts of vocational rehabilitation[.]” Defendants also [27]*27emphasize plaintiffs interview with Cracker Barrel as support for their argument.

Defendants assert that plaintiff’s vocational case manager, Katherine O’Kane (Ms.

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Brooks v. Capstar Corp.
606 S.E.2d 696 (Court of Appeals of North Carolina, 2005)

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Bluebook (online)
606 S.E.2d 696, 168 N.C. App. 23, 2005 N.C. App. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-capstar-corp-ncctapp-2005.