Powe v. Centerpoint Human Services

742 S.E.2d 218, 226 N.C. App. 256
CourtCourt of Appeals of North Carolina
DecidedApril 2, 2013
DocketNo. COA12-849
StatusPublished
Cited by6 cases

This text of 742 S.E.2d 218 (Powe v. Centerpoint Human Services) 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
Powe v. Centerpoint Human Services, 742 S.E.2d 218, 226 N.C. App. 256 (N.C. Ct. App. 2013).

Opinion

STEPHENS, Judge.

Background

Mary Frances Powe (“Plaintiff’) and Centerpoint Human Services (“Centerpoint”) along with Brentwood Services (collectively, “Defendants”) appeal from an opinion and award entered by the Industrial Commission (“the Commission”), which reinstated Plaintiffs temporary total disability compensation at the rate of $461.36 per week, back-dated to 23 February 2008. That opinion also awarded attorneys’ fees and the right to designate a board-certified neurosurgeon or pain management physician of Plaintiff’s choosing to provide medical treatment for her compensable injuries. The Commission denied Plaintiff’s request for temporary total disability benefits accrued before 23 February 2008 on a finding that Plaintiff had not substantially complied with vocational rehabilitation services between 22 June 2006 and 23 February 2008, a period of approximately one year and eight months.

This is the third time this case has made its way to this Court in twice as many years. Issues surrounding Plaintiff’s interaction with various vocational rehabilitation professionals have permeated each appeal, including the present one. The underlying facts and procedural history have not changed, are described in detail in the two previous opinions of this Court, and are not repeated here. Instead, we limit our discussion to the developments which led to this appeal following remand by the second panel.1

In Powe II, we determined that “the Commission made its findings of fact under a misapprehension of law.” Powe II,_. N.C. App. at_, 715 S.E.2d at 304. As a result, we remanded the case to the Commission and directed it to determine whether Plaintiff “substantially complied] with [vocational] services and [did] not significantly interfered with the [259]*259vocational rehabilitation specialist’s efforts to assist [her] in returning to suitable employment.” Id. at_, 715 S.E.2d at 304 (emphasis added).

The full Commission entered its revised opinion on 30 May 2012. In pertinent part, the Commission found: (1) Plaintiff misrepresented her true physical capacity to the vocational rehabilitation specialist, Ms. Sonya Ellington (“Ellington”), specifically with respect to Plaintiff’s need to use a cane. (2) Plaintiffs attendance at the vocational rehabilitation meetings was not, in and of itself, sufficient to constitute substantial compliance with vocational rehabilitation. (3) Plaintiff “failed to make a genuine effort to locate employment and to comply with vocational rehabilitation.” (4) Plaintiff “significantly interfered with []Ellington’s efforts to assist Plaintiff in returning to suitable employment” and “willfully refused vocational rehabilitation through February 22, 2008[.]” (5) Plaintiffs vocational rehabilitation ended, in part, because Ellington felt “she had covered all of the vocational activities that she could help Plaintiff with, and she did not feel like she was effecting any change in Plaintiff.” (6) Ellington’s decision was not entirely the result of Plaintiff’s failure to comply. (7) Plaintiff is capable of earning wages and would have benefitted from continued rehabilitation, especially computer training. Thus, “vocational rehabilitation should have continued after February 22, 2008,” and Defendants should have provided it. (8) Because Defendants did not offer or provide vocational rehabilitation after 22 February 2008, Plaintiff’s refusal to accept rehabilitation ceased after 22 February 2008.

Based on these findings, the Commission concluded that Plaintiff was prohibited from receiving temporary total disability benefits during the period in which she both significantly interfered and failed to substantially comply with vocational rehabilitation, from 22 June 2006 through 22 February 2008. Because her refusal ceased on 23 February 2008, the Commission concluded that Plaintiff was entitled to temporary total disability benefits “continuing at the rate of $461.36 per week” from that date onward. Both parties appealed.

Standard of Review

Review of an opinion and award of the Industrial 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 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 and quotation [260]*260marks omitted). If supported by competent evidence, the Commission’s findings are conclusive, even if the evidence might also support contrary findings. Jones v. Candler Mobile Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995). “The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.” Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965). The Commission’s conclusions of law are reviewed de novo. Johnson v. Herbie’s Place, 157 N.C. App. 168, 171, 579 S.E.2d 110, 113, disc. rev. denied, 357 N.C. 460, 585 S.E.2d 760 (2003).

Discussion

I. Plaintiff’s Appeal

In her first argument, Plaintiff repeats two points she raised in Powe II: (1) that the Commission erred in refusing to reinstate temporary total disability benefits, beginning 22 June 2006, because Plaintiff “demonstrated [that] she was willing to participate with Defendants’ vocational rehabilitation efforts!,] and she immediately took affirmative steps to comply”; and (2) that Plaintiff is neither “able to participate, nor required to participate with vocational rehabilitation” because she was “not under the care of an authorized physician, and . . . there was no authorized treating physician [made available] to oversee her vocational rehabilitation.” These arguments are wholly without merit and improperly disregard our previous disposition of this case. As we have already resolved these issues, we will not repeat our reasoning here.

Second, Plaintiff asserts that the Commission erred because it did not hold Defendants in contempt for failing to provide her with medical treatment. In support of that assertion, Plaintiff cites to Rule 37(b)(2)(b) of the North Carolina Rules of Civil Procedure for the proposition that the courts may sanction a party for failing to comply with any order. We are unpersuaded.

Rule 37(b) provides, in pertinent part:

(2) Sanctions by Court in Which Action is Pending. — If a party . . . fails to obey an order to provide or permit discovery, ... a judge . . . may make such orders in regard to the failure as are just, [including] the following:
b. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters in evidence^]

[261]*261N.C. Gen. Stat. § 1A-1, Rule 37(b)(2)(b) (emphasis added). “Rule 37 . . .

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Cite This Page — Counsel Stack

Bluebook (online)
742 S.E.2d 218, 226 N.C. App. 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powe-v-centerpoint-human-services-ncctapp-2013.