Pollock v. Waspco Corp.

559 S.E.2d 567, 148 N.C. App. 381, 2002 N.C. App. LEXIS 31
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2002
DocketNo. COA01-136
StatusPublished
Cited by1 cases

This text of 559 S.E.2d 567 (Pollock v. Waspco 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
Pollock v. Waspco Corp., 559 S.E.2d 567, 148 N.C. App. 381, 2002 N.C. App. LEXIS 31 (N.C. Ct. App. 2002).

Opinion

TYSON, Judge.

David Pollock (“plaintiff’) appeals from an opinion and award of the Commission which (1) denied plaintiffs request for additional compensation based upon a change of condition, (2) relieved Waspco Corporation (employer “defendant”) of its obligation to pay plaintiff based on a previous opinion and award dated 9 May 1997, (3) denied plaintiffs request for penalties pursuant to G.S. § 9748(g), and (4) required defendant to pay plaintiff limited future medical treatments. We affirm the Commission’s opinion and award in part and reverse and remand in part.

I. Facts

Defendant employed plaintiff as a drywall finisher. Plaintiff injured his back on 20 June 1994 while lifting a 50 to 70 pound bucket of drywall compound. Plaintiff’s salary averaged $394.68 per week at the time of the injury.

On 27 June 1994, defendant filed Form 19, “Employer’s Report of Injury to Employee,” with the Commission reporting plaintiff’s injury. On 7 December 1994, the Commission approved a Form 21, “Agreement for Compensation for Disability,” whereby defendant agreed to pay plaintiff $236.01 per week for 13 weeks of total disability beginning 20 June 1994, subject to verification of wages. This amount was based on an erroneous average weekly wage of $354.00. The form also indicated that plaintiff had returned to work for defendant on 19 September 1994. Plaintiff visited many health care providers and worked for numerous employers after 1994.

Sometime after 22 June 1995, plaintiff filed Form 18, “Notice of Accident to Employer,” with the Commission seeking further indemnity benefits. On 17 July 1995, defendant filed Form 61, “Denial of Workers’ Compensation Claim,” stating that plaintiff had “claimed a change of condition .... Employee [plaintiff] claims recurrence of pain while working June 23, 1995. Our denial is based on the fact that there was no change of condition but a new and separate incident . ...” On 10 August and 6 October 1995, plaintiff filed two Form 33’s, “Request that Claim be Assigned for Hearing.” Plaintiff asserted [383]*383that defendant denied his claim and requested compensation benefits from 20 June 1994 to the “current date.”

Deputy Commissioner Lawrence B. Shuping, Jr. (“Deputy Shuping”) conducted a hearing on 22 July 1996. Deputy Shuping filed an opinion and award on 9 May 1997. The award granted plaintiff compensation for (1) corrected “temporary total disability,” (2) adjusted “temporary partial disability,” (3) additional “temporary total disability,” (4) “permanent partial disability,” under G.S. § 97-30, (5) reasonable attorney fees, and (6) medical expenses.

First, the corrected “temporary total disability” required defendant to pay $27.12 per week covering periods 20 June 1994 through 18 September 1994 and 6 October 1994 through 16 October 1994. These amounts were ordered to correct the “underpayment of temporary total disability benefits based on an incorrect average weekly wage . . . ,” which resulted from an incorrect average weekly wage reported on Form 21 filed 7 December 1994.

Second, the adjusted “temporary partial disability” award ordered defendant to pay compensation from 20 October 1994 to 26 December 1994 based on “two-thirds of the difference between the $394.68 average weekly wage that plaintiff earned at time of injury and the reduced average weekly wage that he was able to earn during that period . . . .’’ Deputy Shuping was unable to determine, however, how much plaintiff was earning at that time. He presumed that plaintiff and defendant would “agree to the appropriate additional amount of compensation due without the necessity of a supplemental Opinion and Award or further hearing.”

Third, the additional “temporary total disability” totaled $236.13 per week from 22 June 1995 through 16 October 1995. This benefit was based on a “substantial change for the worse in [plaintiff’s] condition subsequent to the Industrial Commission’s last Award . . . .” This award was to be reduced pursuant to G.S. § 97-42.1 for unemployment benefits plaintiff received from the Virginia Employment Security Commission. Deputy Shuping’s award presumed that plaintiff and defendant could “obtain the specific amount and period of unemployment compensation benefits from the Employment Security Commission and agree to the appropriate credit without the necessity of a supplemental Opinion and Award or further hearing.”

Fourth, the “permanent partial disability” required defendant to pay $183.13 per week pursuant to G.S. § 97-30. This award was based [384]*384on Deputy Shuping’s finding and conclusion that plaintiff had reached maximum medical improvement on 3 October 1995. Plaintiff retained a permanent back injury and “was no longer capable of engaging in the type of heavy work required by drywall finishing; but rather, was only capable of lighter work earning less wages .. ..” Payments were required from 1 November 1995 to the scheduled hearing date of 22 July 1996, “and thereafter continuing at the same rate so long as he [plaintiff] remains partially disabled, subject to a change of condition, medical or employment.” This award was not offset by plaintiff’s wages or unemployment benefits.

The opinion and award also granted plaintiff reasonable attorney’s fees and all plaintiff’s reasonable and necessary medical expenses.

Neither defendant nor plaintiff appealed from Deputy Shuping’s opinion and award.

On or about 16 September 1997, plaintiff filed a “Motion for Order to Show Cause and Motion to Compel Payments of Compensation Benefits.” The record does not contain the disposition of these motions. Plaintiff filed Form 33, “Request that Claim be Assigned for Hearing,” and a “Motion for Review and Modification of Prior Opinion and Award Based upon a Change in Claimant’s Condition for the Worse Pursuant to N.C.G.S. § 97-47” on 16 January 1998. On 24 January 1998, plaintiff filed a “Motion to Compel Payment for Medical Expenses Pursuant to N.C.G.S. § 97-25.”

Defendant executed a “Response to Request that Claim be Assigned for Hearing” on 4 March 1998, stating that: “[w]e have received no information regarding any alleged change of condition since the Opinion and Award . . . filed May 9, 1997 and the same is therefore denied; no physician has diagnosed any change in plaintiff’s physical condition; any alleged diminishment in plaintiff’s wage earning capacity is not related to his compensable injury.”

Plaintiff and defendant entered into a pre-trial agreement on 1 October 1998. Deputy Commissioner W. Bain Jones, Jr. (“Deputy Jones”) convened a hearing that day. Deputy Jones halted the hearing and issued an order on 2 October 1998 requiring plaintiff to document his sources of income for all relevant periods. The hearing resumed on 18 November 1998. Deputy Jones stated that “there is still outstanding information needed .... Plaintiff’s counsel is allowed seven days from this hearing ... to contact the . . . Virginia Unemployment [385]*385Commission . . . relating to benefits . . . paid to plaintiff and ask that those records be certified and then provided to me.”

On 30 August 1999, Deputy Jones filed an opinion and award. He found that (1) “[bjased on the inconsistencies in plaintiffs testimony and other credible evidence, and based upon plaintiff’s demeanor at hearing . . .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson v. Herbie's Place
579 S.E.2d 110 (Court of Appeals of North Carolina, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
559 S.E.2d 567, 148 N.C. App. 381, 2002 N.C. App. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollock-v-waspco-corp-ncctapp-2002.