Richardson v. The Goodyear Tire & Rubber Co.

• Court: Court of Appeals of North Carolina
• Decided: June 1, 2021
• Docket: 20-745
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-234

No. COA20-745

Filed 1 June 2021

North Carolina Industrial Commission, I.C. No. 13-763301

HERMENA RICHARDSON, Employee, Plaintiff

v.

GOODYEAR TIRE & RUBBER COMPANY, Employer, LIBERTY MUTUAL INSURANCE GROUP, Carrier, Defendants.

Appeal by plaintiff from opinion and award entered 18 August 2020 by the

North Carolina Industrial Commission. Heard in the Court of Appeals 12 May 2021.

Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, David P. Stewart, and Jay A. Gervasi, Jr., for plaintiff-appellant.

Young Moore and Henderson, P.A., by Jefferson P. Whisenant, for defendant- appellee.

TYSON, Judge.

¶1 Hermena Richardson (“Plaintiff”) appeals from an Opinion and Award by the

North Carolina Industrial Commission (“Commission”) granting the Goodyear Tire &

Rubber Company and Liberty Mutual Insurance Company’s (“Defendants”) motion to

add additional evidence, affirming the deputy commissioner’s Opinion and Award,

and denying the award of attorney’s fees. We affirm.

I. Background RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

Opinion of the Court

¶2 Plaintiff sustained compensable injuries in the course and scope of her

employment to her bilateral shoulders on 21 October 2013. Plaintiff reached

maximum medical improvement (“MMI”) for her right shoulder injury and was given

permanent restrictions in December 2014.

¶3 Plaintiff presented for a second evaluation by Dr. Brian Szura, who also found

Plaintiff was at MMI for the right shoulder and assigned a 10% disability rating on

13 August 2015. The parties agreed Plaintiff was not disabled under the North

Carolina Workers’ Compensation Act. Plaintiff was already out of work for an

unrelated knee condition, followed by her unrelated back condition. Dr. Christopher

Barnes opined Plaintiff had reached MMI for her bilateral shoulder injury in January

2016.

¶4 On 10 August 2016, the Commission entered the Consent Order memorializing

the parties’ agreement. According to the Consent Order:

Employee has . . . sustained no additional disability as a result of her compensable bilateral shoulder injury. Employee will not be entitled to indemnity benefits in the future unless and until she is taken out of work totally for her bilateral shoulder condition by her authorized treating physician or unless defendants are unable to accommodate bilateral shoulder work restrictions assigned by her authorized treating physician, in which case, Defendants have agreed to immediately reinstate temporary total disability benefits. (emphasis supplied).

¶5 The parties designated Dr. Peter Dalldorf as Plaintiff’s authorized treating RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

physician.

¶6 Two weeks after approval of the Consent Order, Dr. Dalldorf excused Plaintiff

from work for two months on 29 August 2016 due to her left shoulder. Defendants

re-instated temporary total disability compensation at the maximum compensation

rate for 2013. This compensation continued to be paid at the time this appeal was

filed.

¶7 Dr. Dalldorf opined Plaintiff had reached MMI for the left shoulder and

assigned a 20% disability rating to the left arm and permanent work restrictions on

5 April 2017. Dr. Dalldorf noted the need to perform an isolated upper extremity

functional capacity evaluation (“FCE”) to determine Plaintiff’s permanent

restrictions. Plaintiff was unable to undergo the evaluation due to her unrelated back

restrictions.

¶8 Plaintiff regularly visited Dr. Dalldorf to address her compensable shoulder

injuries and attempted new treatments from October 2017 until October 2019.

Defendants scheduled an independent medical examination with Dr. Marshall

Kuremsky in November 2019. On 13 January 2020, Defendants asked Dr. Dalldorf

to prescribe and order the previously indicated FCE for Plaintiff. Dr. Dalldorf

responded he would not order an FCE. Plaintiff refused to participate in the FCE.

II. Procedural History

¶9 Defendants filed a motion to compel medical treatment before the Commission RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

on 28 February 2020. They sought an order for Plaintiff to participate in an FCE

pursuant to N.C. Gen. Stat. § 97-25 and 11 N.C. Admin. Code 23A.0609 of the

Workers’ Compensation Rules. Defendants argued, pursuant to N.C. Gen. Stat. § 97-

25, they direct Plaintiff’s medical treatment, and medical compensation is defined “as

may reasonably be required to effect a cure or give relief and . . . will tend to lessen

the period of disability” in accordance with N.C. Gen. Sta. § 97-2(19) (2019).

¶ 10 Special Deputy Commissioner Kimberly Fennell denied Defendants’ motion.

Defendants filed a motion to reconsider their motion to compel medical treatment.

Defendants again cited “medical compensation” as the basis pursuant to N.C. Gen.

Stat. § 97-25. Special Deputy Commissioner Fennell agreed to hear the motion and

again denied Defendants’ motion to compel medical treatment on 7 April 2020.

Special Deputy Commissioner Fennell recommended the issue be raised before the

Commission by requesting an appeal.

¶ 11 Defendant filed a Form 33: Request the Claim be Assigned for Hearing on 9

April 2020 in response to the special deputy commissioner’s 7 April order.

Defendants requested the scope of the hearing be limited to the legal issues raised in

Defendants’ motion to compel medical treatment. The parties submitted a pre-trial

agreement and stipulations.

¶ 12 Issues before Deputy Commissioner Lori Gaines included: (1) whether an FCE

qualifies as medical compensation as defined in N.C. Gen. Stat. §§ 97-2(19) and 97- RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

25; (2) whether the FCE was wholly unnecessary; and (3) whether Defendants should

pay attorney fees pursuant to N.C. Gen. Stat. §§ 97-25(f)(5) and 97-88.1

¶ 13 Deputy Commissioner Gaines gave “great weight” to Dr. Dalldorf’s revised

opinion that an FCE was unsuitable. The commissioner found “Defendants acted

unreasonably in waiting three years post MMI to request [an FCE].” Deputy

Commissioner Gaines concluded: “[b]ased on the preponderance of evidence . . . [the

FCE] at issue is not medical compensation because it does not effect a cure, provide

relief or lessen the period of disability.” The Opinion and Award was entered 10 June

2020 pursuant to N.C. Gen. Stat. § 97-25(f). The deputy commissioner awarded

Plaintiff attorney’s fees, “[a]s sanctions for Defendants’ unreasonable engagement in

stubborn, unfounded litigiousness of this claim.”

¶ 14 Defendants filed a motion to reconsider the award of attorney’s fees on 19 June

2020. Deputy Commissioner Gaines denied Defendants’ motion to reconsider and

ordered Defendants to pay Plaintiffs’ attorney’s fees pursuant to N.C. Gen. Stat. §§

97-25(f)(5) and 97-88.1 in the amount of $11,075.00 for 44.3 hours worked defending

Plaintiff’s claims since February 2020. Defendants filed notice of appeal to the Full

Commission along with a motion to admit additional evidence to present proof of

Plaintiff’s ongoing medical treatments.

¶ 15 The issues before the Full Commission included: (1) whether Defendant’s

motion to compel Plaintiff’s FCE should be approved, and (2) whether Plaintiff is RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

entitled to an award of attorney’s fees pursuant to N.C. Gen. Stat. §§ 97-25(f)(5), 97-

88.1.

¶ 16 The Commission found inter alia: (1) Defendants were made aware of Plaintiff

reaching MMI for her left shoulder in March 2017; (2) Plaintiff received shoulder

injections from October 2017 until August 2019; (3) Plaintiff indicated pain was no

longer an issue on 10 August 2018; (4) Dr. Dalldorf ordered a diagnostic MRI for

Plaintiff’s right shoulder on 30 September 2019; (5) Dr. Dalldorf administered to

Plaintiff additional injections and reviewed the MRI and noted he was “not really

sure why [Plaintiff] is experiencing as much difficulty with her right shoulder as she

is” on 14 October 2019; (6) Defendants scheduled an independent medical

examination (“IME”) two days later for 6 November 2019; and, (7) Dr. Kuremsky

recommended the FCE at issue on 6 November 2019, which Dr. Dalldorf opined was

not appropriate because it would not give the physician any information regarding

Plaintiff’s ability to return to work given the other injuries.

¶ 17 The Commission concluded, “[the FCE] in dispute in this matter is not

reasonably necessary to effect a cure, provide relief, or lessen the period of disability

as a result of Plaintiff’s compensable injuries.” The Commission further concluded

“Defendants have not acted unreasonably by initiating the underlying medical

motion pursuant to N.C. Gen. Stat. § 97-25(f)” and denied an award of attorney’s fees

for Plaintiff. Plaintiff appeals. RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

III. Jurisdiction

¶ 18 An appeal lies with this Court from the Industrial Commission pursuant to

N.C. Gen. Stat. §§ 7A-27(b) and 97-86 (2019).

IV. Issue

¶ 19 Whether the Commission’s findings of fact and conclusions of law are

insufficient to support the decision not to award attorney’s fees to Plaintiff when the

Commission determined Defendants brought this action as an expedited medical

motion pursuant to N.C. Gen. Stat. § 97-25(f), and the FCE at issue was determined

not to constitute medical compensation under the act.

V. Standard of Review

¶ 20 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

court’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 omitted).

¶ 21 “The decision whether to award or deny attorney’s fees rests within the sound

discretion of the Commission and will not be overturned absent a showing that the

decision was manifestly unsupported by reason.” Bell v. Goodyear Tire & Rubber Co.,

252 N.C. App. 268, 279, 798 S.E.2d 143, 151 (2017) (citation omitted). This Court RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

reviews the Commission’s conclusions of law de novo. Id. at 272, 798 S.E.2d at 147.

VI. Analysis

A. N.C. Gen. Stat. §§ 97-2(19) and 97-25(f)

¶ 22 The Workers’ Compensation Act provides “a party may file a motion as set

forth in this subsection regarding a request for medical compensation or a dispute

involving medical issues.” N.C. Gen. Stat. § 97-25(f). Defendants defended the

request for a compelled FCE as medical compensation before Special Deputy

Commissioner Fennell, Deputy Commissioner Gaines, and the Full Commission. On

appeal, Defendants argue their medical motion is permissible under the statute as a

“dispute involving medical issues” pursuant to N.C. Gen. Stat. § 97-25.

¶ 23 Defendants argued before the Commission a “dispute involving medical issues”

is permitted by N.C. Gen. Stat. § 97-25(f). Defendants’ asserted argument the FCE

was a “dispute involving medical issues” is not properly before this Court. See Setzer

v. Boise Cascade Corp., 123 N.C. App. 441, 445, 473 S.E.2d 431, 433 (1996) (holding

“we do not reach the substantive merits of defendants’ arguments on appeal [because

he did] not properly preserve for this Court’s consideration under Rule 10. N.C.R.

App. P. 10(b)(1)”).

¶ 24 Whether the IME for the isolated upper extremity FCE would qualify as

medical compensation under the statute is a question of law. Defendants did not

cross-appeal the Commission’s finding the FCE at issue is not medical compensation. RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

This issue is not before this Court. We express no opinion on the merits, if any, of

this issue.

B. Reasonableness of Defendants’ Motion

¶ 25 N.C. Gen. Stat. § 97-25(f) provides guidance for the imposition of attorney’s

fees when a party acts unreasonably in filing a medical motion when a party: (1) is

requesting medical compensation; or (2) there is a dispute involving medical issues.

N.C. Gen. Stat. §§ 97-25(f) (2019).

¶ 26 Defendants argue the Commission correctly concluded they did not act

unreasonably in filing the underlying expedited medical motion because they

presented medical evidence that the FCE was reasonably required to determine

Plaintiff’s work restrictions as of 28 February 2020.

¶ 27 Plaintiff argues the FCE at issue does not constitute medical compensation or

medical treatment and is not a proper subject of the truncated medical motion

procedure set forth in N.C. Gen. Stat. § 97-25(f). Plaintiff asserts Defendants failed

to request proper medical compensation under the statute.

¶ 28 Defendants clearly have the statutory right to direct Plaintiff’s necessary

medical treatment. N.C. Gen. Stat. § 97-25(c) (2019) (“the Industrial Commission

may order necessary treatment”). Plaintiff had several concurrent injuries and

conditions, some work related and some not. The parties stipulated in their Consent

Order the bilateral shoulder injury was compensable, and as long as the treating RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

physician excused Plaintiff from work for the shoulder injuries, Defendant would pay

the medical costs related thereto.

¶ 29 Plaintiff’s shoulder treatments were ongoing from October 2017 to October

2019. Defendants requested the FCE two days after Dr. Dalldorf had reviewed

Plaintiff’s MRI results. He could not determine why Plaintiff had continued to

experience difficulties after treatments for the work-related shoulder injury.

Defendants assert it was imperative to ensure Plaintiff’s bilateral shoulder injuries

prevented her from work as support for their requested FCE. The MMI had been

ordered and completed for both shoulders. Plaintiff had undergone injections,

therapy, medications and claimed her pain was not an issue.

¶ 30 Defendants scheduled an IME two days after Dr. Dalldorf had reviewed

Plaintiff’s MRI for 6 November 2019. Dr. Kuremsky recommended the FCE at issue

on 6 November 2019, which Dr. Dalldorf opined was not appropriate, even though he

had agreed he could not substantiate Plaintiff’s complaint related to her shoulders.

The Commission properly found Defendants reasonably acted within their statutory

rights after treatments and claims of lack of pain to determine the status of Plaintiff’s

compensable shoulder injury, which “will tend to lessen the period of disability,”

particularly if Dr. Dalldorf’s FCE reservations were based upon or due to Plaintiff’s

non-employment related medical conditions. N.C. Gen. Stat. § 97-2(19).

C. Award of Attorney’s Fees RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

¶ 31 Plaintiff contends Defendants’ motion should retroactively be held not to be a

request for medical compensation, and the Commission must award attorney’s fees

under N.C. Gen. Stat. § 97-25(f)(5) as a matter of law. We disagree and affirm the

Commission’s Opinion and Award on this issue.

¶ 32 This notion would require any unsuccessful medical motion, from any party, to

result in an automatic award of attorney’s fees as a matter of law, without the

Commission exercising its discretion. “[S]uch liberality should not . . . extend beyond

the clearly expressed language of those provisions, and our courts may not enlarge

the ordinary meaning of the terms used by the legislature or engage in any method

of ‘judicial legislation.’” Deese v. Lawn and Tree Expert Co., 306 N.C. 275, 277, 293

S.E.2d 140, 143 (1982) (citations omitted).

¶ 33 An award of attorney’s fees is only permissible under N.C. Gen. Stat. § 97-

25(f)(5) when “the Commission determines that any party has acted unreasonably by

initiating or objecting to a motion filed pursuant to this section.” N.C. Gen. Stat § 97-

25(f)(5). Plaintiff has failed to show the Commission abused its discretion, or that its

findings are “manifestly unsupported by reason.” Bell, 252 N.C. App. at 279, 798

S.E.2d at 151.

¶ 34 Defendants’ initial motion to compel the FCE was asserted as medical

compensation under N.C. Gen. Stat. § 97-2(19). Presuming without deciding, the

Commission properly concluded Defendants had misapplied the statute, the RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

Commission also concluded Defendants’ actions do not warrant imposition of

Plaintiff’s attorney’s fees. That conclusion is not “manifestly unsupported by reason”

under these facts. Bell, 252 N.C. App. at 279, 798 S.E.2d at 151.

¶ 35 Plaintiff was and is receiving ongoing disability compensation from

Defendants. On 14 October 2019, Plaintiff’s authorized treating physician, Dr.

Dalldorf, could no longer explain her right shoulder complaints. Defendants sought

a second opinion through an IME. Defendants inquired if Dr. Kuremsky would

recommend an FCE to determine Plaintiff’s work restrictions for her compensable

bilateral shoulder injuries. Dr. Kuremsky noted “it would not be unreasonable to

have an [FCE] . . . in order to have a specific set of restrictions or limitations . . . that

would help in assigning any permanent restrictions” for Plaintiff.

¶ 36 An employee is only entitled to disability compensation if the employee is

unable “because of injury to earn the wages which the employee was receiving at the

time of injury.” N.C. Gen. Stat. § 97-2(9). The parties’ August 2016 Consent Order

agreed Plaintiff would only be entitled to disability compensation if “she is taken out

of work totally for her bilateral shoulder condition by her authorized treating

physician or unless defendants are unable to accommodate bilateral shoulder work

restrictions.”

¶ 37 The motion to compel the FCE could determine Plaintiff’s work restrictions

and ability and her continued entitlement to disability compensation for that injury. RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

The Commission concluded Defendant’s motion was not “manifestly unsupported by

reason” under these facts. Bell, 252 N.C. App. at 279, 798 S.E.2d at 151. If Plaintiff’s

unrelated medical conditions limits or prevents her from undergoing an FCE, that

fact does not render Defendant’s motion and assertions unreasonable.

¶ 38 Plaintiff argues the Commission failed to make appropriate findings of fact to

support its conclusion of law that Defendants were not unreasonable in bringing this

non-medical issue as a medical motion under the truncated expedited medical motion

procedure under N.C. Gen. Stat. §§ 97-78(f)(2) and 97-25(f).

¶ 39 The Commission in its discretion properly concluded an award of attorney’s

fees was not allowed pursuant to N.C. Gen. Stat. § 97-25(f). Plaintiff is not entitled

to attorney’s fees. That portion of the Commission’s Opinion and Award is affirmed.

D. N.C. Gen. Stat. § 97-88.1

¶ 40 Plaintiff abandoned her appeal regarding attorney’s fees pursuant to N.C. Gen.

Stat. § 97-88.1 (2019). An award of attorney’s fees under this statute is not before us.

E. Frivolous Appeal

¶ 41 This Court has consistently held Rule 34 sanctions may be warranted, inter

alia, if the appeal is not well grounded in fact, warranted by existing law, or taken

for an improper purpose. MacMillan v. MacMillan, 239 N.C. App. 573, 771 S.E.2d

633 (2015).

¶ 42 Defendant argues Plaintiff has brought a frivolous appeal. Plaintiff’s case was RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

presented before Special Deputy Commissioner Fennell who denied and re-denied

Defendants’ motion to compel the FCE. Deputy Commissioner Gaines found the FCE

was not medical compensation and determined the unreasonableness of the motion

compelled Plaintiff’s attorney’s fees. The Commission agreed Defendants did not act

unreasonably in attempting to confirm the degree and limits of Plaintiff’s shoulder

¶ 43 Plaintiff’s argument was affirmed repeatedly before the Commission at three

different levels. It can hardly be said that Plaintiff’s appeal is not well grounded or

taken for improper purpose before this Court. Defendants’ assertion has no merit

and is dismissed.

VII. Conclusion

¶ 44 The Commission found the FCE at issue was not medical compensation,

Defendants did not cross-appeal that conclusion. We express no opinion on the

merits, if any, of that issue. The Full Commission properly concluded Defendants’

motion to compel the FCE was not unreasonable and, as such, did not abuse its

discretion in concluding Plaintiff is not entitled to an award of attorney’s fees.

¶ 45 Finally, Plaintiff’s appeal is based on the statutory requirements is well

grounded and is not frivolous. The Opinion and Award of the Commission is affirmed.

It is so ordered.

AFFIRMED. RICHARDSON V. GOODYEAR TIRE & RUBBER CO.

Judges HAMPSON and WOOD concur.