Norris v. Wal-Mart Assocs., Inc.

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-798
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-798 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

BOBBY D. NORRIS, Employee, Plaintiff-Appellee,

v. N.C. Industrial Commission I.C. No. 562529 WAL-MART ASSOCIATES, INC., Employer, and AMERICAN HOME ASSURANCE, Carrier (CLAIMS MANAGEMENT, INC., Third-Party Administrator), Defendant-Appellants.

Appeal by defendants from an amended opinion and award of

the North Carolina Industrial Commission filed 6 March 2013.

Heard in the Court of Appeals 9 December 2013.

Brent Adams & Associates, by Sheila W. Chavis, for plaintiff-appellee.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Tracie H. Brisson and M. Duane Jones, for defendant-appellants.

McCULLOUGH, Judge.

Wal-Mart Associates, Inc. and American Home Assurance

(Claims Management, Inc.) (together “defendants”) appeal from an

amended opinion and award of the North Carolina Industrial -2- Commission (the “Commission”) in favor of Bobby D. Norris

(“plaintiff”). For the following reasons, we affirm.

I. Background

On 29 May 2005, plaintiff sustained a compensable lower

back injury while moving merchandise at work. Upon submission

of plaintiff’s worker’s compensation claim in October 2005,

defendants accepted plaintiff’s claim and began paying temporary

total disability compensation and providing medical treatment.

In the years that followed, plaintiff consulted numerous

doctors, received various treatments and medications to manage

pain, and underwent several surgical procedures.

In 2008, plaintiff unsuccessfully attempted to return to

work as a people greeter on two separate occasions. Following

the second attempt to return to work on 2 August 2008, a dispute

arose when defendants refused to reinstate plaintiff’s

disability compensation upon notification that the return to

work had failed.

Thereafter, plaintiff filed a Form 33 requesting his claim

be assigned for hearing. In the filing, plaintiff asserted that

he is unable to work and defendants had refused to resume

temporary total disability and refuse to authorize treatment.

In defendants’ Form 33R response, defendants claimed -3- “[p]laintiff has reached maximum medical improvement and was

provided light duty restrictions which were accommodated by

[d]efendants. Plaintiff has unjustifiably refused suitable

employment and is therefore not entitled to temporary total

disability benefits.” Plaintiff’s Form 33 and defendants’ Form

33R were received by the Commission on 17 November 2010.

The matter came on for hearing in Raleigh before Deputy

Commissioner Chrystal Redding Stanback on 27 January 2011.

Following the hearing, the record was held open until 20 January

2012 to allow for depositions of plaintiff’s physicians. On 10

July 2012, an opinion and award by the deputy commissioner was

filed reinstating total disability compensation for plaintiff as

of 4 August 2008, ordering defendants to authorize and pay for

certain past medical treatment and reasonably necessary future

medical treatment, and sanctioning defendants by awarding fees

and costs. Defendants filed notice of appeal to the Full

Commission on 24 July 2012.

Without reopening the evidence, the Full Commission

considered defendants’ appeal on 3 December 2012. On 13

February 2013, an opinion and award for the Full Commission and

a dissenting opinion were filed. -4- Following a motion by defendants to amend the opinion and

award to correctly reflect the parties in the caption, an

amended opinion and award for the Full Commission and a

dissenting opinion were filed 6 March 2013. In the Commission’s

6 March 2013 opinion and award, the Commission affirmed, with

modifications, the opinion and award by the deputy commissioner.

Specifically, the Commission’s opinion and award reinstated

total disability compensation for plaintiff as of 4 August 2008

and required that it continue until plaintiff returned to work

or further order by the Commission. The opinion and award

further ordered defendants to pay for past medical treatment and

additional reasonably necessary medical treatment. Lastly, the

opinion and award required defendants to pay fees and costs as a

sanction for “their willful, stubborn, and litigious

behavior[.]”

Defendants appealed to this Court on 20 March 2013.

II. Discussion

Standard of Review

Review of an opinion and award of the 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 ‘[C]ourt’s -5- 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.

Ongoing Disability Compensation

On appeal, defendants first argue the Commission erred in

awarding ongoing disability compensation because plaintiff

failed to prove he is disabled.

In the North Carolina Workers’ Compensation Act, “[t]he

term ‘disability’ means incapacity because of injury to earn the

wages which the employee was receiving at the time of injury in

the same or any other employment.” N.C. Gen. Stat. § 97-2(9)

(2013). Thus, “‘disability refers not to physical infirmity but

to a diminished capacity to earn money.’” McLaughlin v.

Staffing Solutions, 206 N.C. App. 137, 148, 696 S.E.2d 839, 847

(2010) (quoting Peoples v. Cone Mills Corp., 316 N.C. 426, 434–

35, 342 S.E.2d 798, 804 (1986) (citation and quotation marks -6- omitted)). As this Court explained in Russell v. Lowes Prod.

Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993),

[t]he burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden 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, 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.

Id. at 765, 425 S.E.2d at 457 (citations omitted).

In this case, the Commission cited the Russell standard and

stated the following in conclusion of law number 6:

The medical evidence offered by Plaintiff from his treating physicians meets the burden of proof for continuing disability under Russell . . . . In this case, Plaintiff has met his burden under Russell in that Plaintiff has unsuccessfully attempted to return to work with Defendant- Employer on two occasions, is still employed [by] Defendant-Employer, but has not been provided with suitable employment by Defendant-Employer, regularly searches newspaper ads looking for possible work within his physical capabilities, and has -7- presented sufficient evidence to determine that Plaintiff is disabled due to his injury by accident.

Now on appeal, defendants contend this conclusion

corresponds solely to the second prong in Russell and argue that

neither the findings of fact, nor the evidence, supports a

conclusion that plaintiff has been unable to find suitable

employment after a reasonable effort. Defendants argue the only

finding of fact concerning plaintiff’s search for employment is

finding of fact number 48, which provides “[p]laintiff testified

that he regularly searches newspaper ads looking for possible

work but is unable to find any work that he can do within his

physical abilities.” Yet, defendants claim finding of fact

number 48 is not an adequate finding of fact because it merely

summarizes plaintiff’s testimony and, in the alternative, does

not support a conclusion that plaintiff has satisfied his burden

of proving disability under the second prong in Russell. In

support of their alternative argument, defendants cites Salomon

v. Oaks Of Carolina, _ N.C. App. _, 718 S.E.2d 204 (2011), for

the proposition that testimony that a plaintiff attempted to

locate other employment was insufficient standing alone to

support a finding of a reasonable job search effort. -8- Upon review, we disagree with defendants arguments and

affirm the Commission’s opinion and award.

First, we hold finding of fact 48 to be a proper finding of

fact. As both parties acknowledge, “findings of fact must be

more than a mere summarization or recitation of the evidence and

the Commission must resolve the conflicting testimony.” Lane v.

Am. Nat’l Can Co., 181 N.C. App. 527, 531, 640 S.E.2d 732, 735

(2007). Recitations of testimony are not proper findings

“because they do not reflect a conscious choice between the

conflicting versions of the incident in question which emerged

from all the evidence presented.” Winders v. Edgecombe Cty.

Home Health Care, 187 N.C. App. 668, 673, 653 S.E.2d 575, 579

(2007) (quotation marks omitted). In the present case, however,

there is no evidence contradicting plaintiff’s testimony that he

searched newspaper ads for employment. Although the better

practice would be to omit the opening phrase “[p]laintiff

testified[,]” in this case, it is evident from the opinion and

award that the Commission found the testimony concerning

plaintiff’s job search to be credible since the Commission

reiterated the finding in conclusion of law number 6, stating

“[plaintiff] regularly searches newspaper ads looking for

possible work within his physical capabilities.” -9- Second, we find this case distinguishable from Salomon. In

Salomon, the plaintiff was terminated for reasons unrelated to

her compensable injury and, therefore, the Commission determined

the plaintiff had constructively refused suitable employment. _

N.C. App. at _, 718 S.E.2d at 208. Nevertheless, the Commission

determined the plaintiff was entitled to temporary total

disability benefits based on its findings that the plaintiff

“attempted to find other employment” and “made a reasonable job

search in an effort to find possible suitable employment but has

been unsuccessful in her efforts.” Id. at _, 718 S.E.2d at 209.

Upon appeal of the opinion and award, this Court held the

Commission’s “conclusory findings [were] insufficient to support

the Commission's conclusion that [the] [p]laintiff has

established her disability by showing her job search was

‘reasonable’ but unsuccessful.” Id.

In the present case, the Commission’s finding of fact

number 48 is not a conclusory statement, but an account of

plaintiff’s search efforts. Moreover, the Commission’s

conclusion that plaintiff met his burden of proof for continuing

disability was not based solely on finding of fact number 48.

In addition to finding of fact 48, the Commission made findings

indicating that plaintiff was limited in the work he could -10- perform, unsuccessfully attempted to return to work at Wal-Mart

in the people greeter position on two separate occasions, and

remains employed by Wal-Mart even though he has not been

provided suitable employment. It is evident from the

Commission’s conclusion of law number 6 that it was the

combination of these findings and finding of fact number 48 that

convinced the Commission plaintiff was entitled to ongoing

disability under the second prong of Russell.

Upon review, we agree the combination of the Commission’s

findings, which are amply supported by the evidence, support the

conclusion that plaintiff is entitled to continuing disability.

Attorney’s Fees and Costs

On appeal, defendants also argue the Commission erred in

awarding attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.1,

which provides “[i]f the [Commission] shall determine that any

hearing has been brought, prosecuted, or defended without

reasonable ground, it may assess the whole cost of the

proceedings including reasonable fees for defendant's attorney

or plaintiff's attorney upon the party who has brought or

defended them.” N.C. Gen. Stat. § 97-88.1 (2013).

Specifically, defendants contend their defense of plaintiff’s

claim was reasonable. -11- As this Court has recently explained,

[t]he standard of review for an award or denial of attorney's fees under N.C. Gen. Stat. § 97–88.1 is a two-part analysis:

First, whether the defendant had a reasonable ground to bring a hearing is reviewable by this Court de novo. If this Court concludes that a party did not have reasonable ground to bring or defend a hearing, then we review the decision of whether to make an award and the amount of the award for an abuse of discretion. In conducting the first step of the analysis, the reviewing court should consider the evidence presented at the hearing to determine reasonableness of a defendant's claim. As such, the burden is on the defendant to place in the record evidence to support its position that it acted on reasonable grounds.

The test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness.

Ensley v. FMC Corp., _ N.C. App. _, _, 731 S.E.2d 855, 858

(2012) (citations and quotation marks omitted).

As indicated in the pre-trial agreement and the opinion and

award of the deputy commissioner, the attorney’s fee issue

considered by the deputy commissioner and reviewed by the Full

Commission was

[w]hether defendants should be sanctioned pursuant to N.C. [Gen. Stat.] § 97-88.1 for their unjust refusal to resume indemnity benefits upon learning of [p]laintiff’s -12- unsuccessful return to work and after being put on notice of N.C. [Gen. Stat.] § 97-32.1 and [this Court’s] decision in Davis v. Hospice & Palliative Care, 202 N.C. App. 660, 692 S.E.2d 631 (2010).

Upon de novo review, the Full Commission found the following in

finding of fact number 54:

Based upon a preponderance of the evidence of record, the Full Commission finds that [d]efendants’ defense of this claim was unreasonable and indicative of stubborn and unfounded litigiousness as [d]efendants filed a Form 28, Return to Work Report, on August 11, 2008, stating that [p]laintiff returned to work on August 2, 2008 despite having notice that [p]laintiff’s attempt to return to work was unsuccessful as of August 4, 2008. The Full Commission finds that the intentional filing of the Form 28, seven days after [p]laintiff provided sufficient notice of a failed return to work, establishes stubborn and unfounded litigiousness. The Full Commission further finds that [d]efendants’ failure to reinstate temporary total disability payments after being notified that [p]laintiff’s return to work attempt was unsuccessful also constituted stubborn and unfounded litigiousness.

Based on this finding, the Commission then concluded in

conclusion of law number 13:

The Full Commission concludes that [d]efendants’ defense of this claim constitutes stubborn, unfounded litigiousness. The [d]efendants have defended this claim without reasonable grounds; therefore, [p]laintiff is entitled to an attorney’s fee in this matter. N.C. Gen. Stat. § 97-88.1; Sparks v. Mountain -13- Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 286 S.E.2d 575 (1982).

Defendants now argue the Commission erred in conclusion of

law number 13 by concluding defendants’ defense was unreasonable

and argue finding of fact number 54, as well as all findings to

the extent they imply defendants’ defense was unreasonable, are

not supported by the evidence. Defendants further argue their

defense was reasonable because plaintiff has failed to meet his

burden to establish disability. Defendants’ arguments are

misguided.

N.C. Gen. Stat. § 97-32.1 (2013) governs trial returns to

work. It states that “[i]f the trial return to work is

unsuccessful, the employee's right to continuing compensation

under [N.C. Gen. Stat. §] 97-29 shall be unimpaired unless

terminated or suspended thereafter pursuant to the provisions of

this Article.” N.C. Gen. Stat. § 97-32.1 (2013). In Davis v.

Hospice & Palliative Care of Winston-Salem, 202 N.C. App. 660,

692 S.E.2d 631 (2010), this Court made clear that N.C. Gen.

Stat. § 97-32.1 mandates automatic reinstatement of disability

compensation “as soon as an employer has knowledge that an

employee’s return to work has been unsuccessful.” Id. at 668,

692 S.E.2d at 637. Notice of the failed return to work via a -14- Form 28U, although preferred, is not required for reinstatement

of compensation so long as the employer receives notice. Id.

In this case, the evidence supports the Commission’s

finding that “[d]efendants filed a Form 28, Return to Work

Report, . . . despite having notice that [p]laintiff’s attempt

to return to work was unsuccessful[.]” Based on this finding

and the requirements of N.C. Gen. Stat. § 97-32.1 and Davis, we

hold defendants’ defense to plaintiff’s claim for reinstatement

of temporary total disability benefits was unreasonable.

Defendant does not argue the Commission abused its discretion in

awarding fees or determining the amount; thus, we affirm the

Commission’s award of fees and costs pursuant to N.C. Gen. Stat.

§ 97-88.1.

As noted in Davis, “if defendants wished to cease making

the reinstated disability payments, they were required to follow

the procedures under one of the listed sections in Chapter 97.”

Id. at 669, 692 S.E.2d at 637. Reinstatement of temporary total

disability compensation to plaintiff, however, should have been

automatic upon notice of plaintiff’s failed return to work.

III. Conclusion

As discussed above, the Commission’s findings of fact are

supported by the evidence and those findings, in turn, support -15- the Commission’s conclusions of law. Accordingly, we affirm the

opinion and award of the Commission.

Affirmed.

Chief Judge MARTIN and Judge ERVIN concur.

Report per Rule 30(e).