Larramore v. Richardson Sports Ltd. Partners
Larramore v. Richardson Sports Ltd. Partners
Opinion of the Court
Defendant Richardson Sports Limited Partners, d/b/a Carolina Panthers, and Legion Insurance Company appeal an order and award of the Industrial Commission awarding plaintiff Leonard Larramore temporary partial disability compensation, temporary permanent disability compensation, and reimbursement for medical expenses.
On 27 April 1995 plaintiff signed a contract with the Carolina Panthers professional football team to play football during the Panthers’ 1995-96 season. The contract provided for a $1,000.00 signing bonus and a salary of $85,000.00 for the period 27 April 1995 to 28 February 1996. The contract further specified that plaintiff was not entitled to the contract amount until plaintiff was officially added to the Panthers’ active roster. Under the standard National Football League players contract which constituted part of the agreement, in the event plaintiff was injured during the professional season and could not play for the remainder of the year, the contract specified that plaintiff would still receive the full contract amount. The contract expressly provided the Panthers with discretion to unilaterally terminate plaintiff if his football skills were unsatisfactory.
Prior to a determination of which players would make the active roster, contract players, including plaintiff, participated in pre-season football camps for which they were paid a per diem amount for expenses and work performed. Plaintiff participated in such a camp lasting from 30 May 1995 to 9 June 1995. However, on 8 June 1995 plaintiff injured his back when he slipped and fell during practice. Plaintiff was excused from the final day of the camp, and he returned home to Jacksonville, Florida.
Plaintiff returned to Jacksonville, and on 4 August 1995 plaintiff was examined by orthopaedist Fady El-Bahri. Dr. El-Bahri performed an MRI on plaintiff which revealed slight disc herniations and evidence of degenerative disc disease. Dr. El-Bahri recommended plaintiff undergo conservative treatments of physical therapy, nerve studies, and epidural injections for two to three months. Plaintiff submitted Dr. El-Bahri’s bill to the Panthers’ team trainer, but defendants refused to pay.
Plaintiff returned to Dr. El-Bahri on 25 July 1996 complaining of increased pain and constant numbness and tingling in both legs. Dr. El-Bahri diagnosed plaintiff as having a “bilateral sacroiliac joint sprain,” and recommended plaintiff undergo a microdiscectomy.
Following his dismissal from the Panthers, plaintiff did not obtain any other employment in football for the 1995-96 season. Plaintiff received unemployment assistance for approximately three months until beginning work as a teacher’s assistant. Plaintiff also worked as a temporary service employee. Plaintiff tried out for a player position with the Dallas Cowboys in January 1997, but was not selected for the team.
In an opinion and award filed 4 August 1999, the Full Commission concluded plaintiff suffered a compensable injury when he fell and injured his back during practice on 8 June 1995. The Commission determined plaintiff was temporarily totally disabled from 9 June 1995 through 14 July 1995. The Commission calculated plaintiff’s average weekly wage as $1,653.85, yielding a weekly compensation rate of $478.00, minus appropriate credits to defendants. The Commission further concluded plaintiff was entitled to temporary partial disability from 8 June 1995 to the time of the order, for a total of 300 weeks, at a rate two-thirds of the difference between $1,653.85
Defendants bring forth three assignments of error on appeal: (1) the Commission erred in determining plaintiff’s average weekly wage as $1,653.85, yielding a maximum compensation rate of $478.00; (2) the Commission erred in awarding plaintiff payment for medical expenses incurred or to be incurred for plaintiffs treatment by Dr. El-Bahri; and (3) the Commission erred in awarding plaintiff temporary partial disability compensation under N.C. Gen. Stat. § 97-30 (1999).
It is well-established that our standard of review of an opinion and award of the Commission is limited to a determination of “(1) whether the Commission’s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission’s findings justify its conclusions of law.” Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000) (citation omitted). “ ‘[T]he Industrial Commission is the fact finding body and . . . the findings of fact made by the Commission are conclusive on appeal,... if supported by competent evidence.... This is so even though there is evidence which would support a finding to the contrary.’ ” Hunter v. Perquimans County Bd. of Educ., 139 N.C. App. 352, 355, 533 S.E.2d 562, 564, (quoting Hansel v. Sherman Textiles, 304 N.C. 44, 49, 283 S.E.2d 101, 104 (1981)), cert. denied, 352 N.C. 674, - S.E.2d -, No. 415P00 (N.C. Supreme Court 6 Oct. 2000).
I.
By their first assignment of error, defendants allege the Commission erred in determining plaintiff’s average weekly wage under the Worker’s Compensation Act to be $1,653.85. N.C. Gen. Stat. § 97-2(5) (1999) defines “average weekly wage” and enumerates procedures for its computation:
‘Average weekly wages’ shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury. . . . Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both*255 parties will be thereby obtained .... But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.
G.S. § 97-2(5) (Emphasis added).
The Commission concluded that, given the circumstances and short duration of plaintiff’s employment, it was appropriate “to resort to such other method of computing average weekly wages as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.” Pursuant to G.S. § 97-2(5), the Commission determined this method would be to add the contract amount of $85,000.00 and the $1,000.00 signing bonus, and divide the total by fifty-two weeks, yielding an average weekly wage of $1,653.85.
Defendants first argue that the Commission’s conclusion was erroneous in that the Commission should not have used the final “exceptional reasons” method of calculating plaintiff’s average weekly wage. Specifically, defendants contend no such exceptional circumstances existed to permit the use of an alternative method.
This Court addressed an identical argument in Hendricks v. Hill Realty Group, Inc., 131 N.C. App. 859, 861-62, 509 S.E.2d 801, 803 (1998), disc. review denied, 350 N.C. 379, 536 S.E.2d 73 (1999). The appellant in Hendricks argued there was insufficient evidence of exceptional circumstances to justify the Commission’s use of an alternative method to determining average weekly wages. Id. In upholding the Commission’s use of an alternative method, this Court noted that “[t]he intent of [G. S. § 97-2(5)] is to make certain that the results reached are fair and just to both parties. . . . ‘Ordinarily, whether such results will be obtained ... is a question of fact; and in such case a finding of fact by the Commission controls the decision.’ ” Id. at 862, 509 S.E.2d at 803 (quoting McAninch v. Buncombe County Schools, 347 N.C. 126, 130, 489 S.E.2d 375, 378 (1997)).
The Commission in Hendricks determined that an “exceptional reasons” approach was “ ‘the only method which is fair and which would result in a calculation of decedent’s average weekly wage
In the present case, the Commission likewise concluded that under the circumstances, the only appropriate method, and that which would “most nearly approximate the amount which the injured employee would be earning were it not for the injury,” would be to divide plaintiff’s $86,000.00 contract amount by fifty-two. We hold this determination to be supported by at least some competent evidence in the record, and thus, binding upon this Court. Plaintiff’s contract and the circumstances of this appeal are indeed exceptional, and we therefore will not substitute our judgment for that of the Commission. See, e.g., Christian v. Riddle & Mendenhall Logging, 117 N.C. App. 261, 264, 450 S.E.2d 510, 513 (1994) (“due to the unique nature of [plaintiff’s] employment, it is difficult to make a precise calculation of his income, and the Commission was therefore justified in resorting to an alternative method of determining his average weekly wage as provided by G. S. § 97-2(5).”).
Defendants further argue that the Commission’s computation of plaintiff’s average weekly wage is erroneous because it was based on an unsupported finding of fact. Defendants assert the computation was based on the Commission’s finding that the “reasonable inference from the facts is that, but for plaintiff’s injury, plaintiff would have played for the Carolina Panthers during the contract year and would have earned the contract pay of $85,000.00 plus a $1,000.00 signing bonus.” Defendants contend this finding was not supported by any competent evidence, and thus, the conclusion that plaintiff’s average weekly wage is $1,653.85 was unsupported.
We acknowledge as true defendants’ argument that the record does not contain direct evidence establishing to a certainty that, but for plaintiff’s injury, he would have made the Panthers’ active roster. However, just as the Commission is entitled to use circumstantial evidence in determining the existence of a causal link between an injury and a worker’s employment, we believe the Commission is entitled to the use of circumstantial evidence here. See Brafford v. Brafford’s Construction Co., 125 N.C. App. 643, 647, 482 S.E.2d 34, 37 (1997) (“Circumstantial evidence of the causal connection between the occupation and the disease is sufficient.”).
While this Court may disagree with the inference which the Commission drew, the determination of whether, but for his injury, plaintiff would have continued in his employment with the Panthers is a question of fact most appropriately resolved by the Commission. See, e.g., Young v. Hickory Bus. Furn., 137 N.C. App. 51, 55, 527 S.E.2d 344, 348 (2000) (citation omitted) (Commission vested “with full authority to find the essential facts in a workers’ compensation case... and it is the responsibility of the Commission, not the reviewing court, to weigh the evidence of causation and to assess its credibility.”). Given the circumstantial evidence present in the record, we decline to substitute our judgment for that of the Commission, and we therefore uphold its finding that plaintiffs injury prevented him from maintaining his employment with the Panthers. This assignment of error is overruled.
II.
By their second assignment of error, defendants argue the Commission erroneously awardéd plaintiff payment for medical expenses incurred or to be incurred for plaintiffs treatment by Dr. El-Bahri. Specifically, defendants assert plaintiff failed to request the Commission’s approval for treatment by Dr. El-Bahri within a reasonable time, and the Commission failed to make any relevant findings on the issue.
Under the Worker’s Compensation Act, an injured employee has the right to procure his own physician so long as the Commission approves such treatment. N.C. Gen. Stat. § 97-25 (1999); Schofield v. Tea Co., 299 N.C. 582, 586, 264 S.E.2d 56, 60 (1980) (citations omit
In Scurlock, this Court observed that the Commission’s failure to make findings as to the reasonableness of the time within which a request for treatment approval is made constitutes grounds for remand on the issue:
Here, plaintiff began seeing Dr. Scott in June of 1991, but made no specific request for authorization with the Commission until 15 August 1994, more than three years after her visits began. Though we profess doubts as to how a three-year delay could be reasonable, ultimately this is not for us to determine. Rather, the Industrial Commission must make specific findings as to whether approval was sought within a reasonable time after her treatments with Dr. Scott began. The Full Commission made no such findings here, requiring a remand for that determination.
Id. at 152, 523 S.E.2d at 444 (citations omitted); see also, Braswell v. Pitt County Mem. Hosp., 106 N.C. App. 1, 7, 415 S.E.2d 86, 89 (1992) (“Insofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue.”).
Clearly, the decision as to whether plaintiff in this case requested treatment approval within a reasonable time under the circumstances is within the sole province of the Commission. While the Commission determined plaintiff’s treatment by Dr. El-Bahri to be reasonably necessary, the order of the Commission lacks any finding as to the reasonableness of the time frame within which plaintiff requested any such approval. While plaintiffs request may have been reasonably timely in light of defendants’ protracted denial of the Commission’s jurisdiction over this matter, only the Commission may make such findings. We therefore remand this issue to the Commission to make proper findings as to whether plaintiff requested approval of Dr. El-Bahri’s treatment in a reasonably timely fashion as required by statute.
Defendants’ third and final assignment of error alleges the Commission erred in awarding plaintiff temporary partial disability compensation under G.S. § 97-30. Defendants contend plaintiff failed to meet his burden of establishing his disability past 14 July 1995. While defendants correctly assert that the record contains competent evidence tending to support a conclusion that plaintiff was not disabled for the length of time determined by the Commission, we must defer to the Commission’s finding of disability where supported by any competent evidence in the record. See, e.g., Dancy v. Abbott Labs., 139 N.C. App. 553, 534 S.E.2d 601 (2000).
This Court recently noted that an injured employee is disabled for purposes of the Worker’s Compensation Act if the injury results in an “ ‘incapacity... to earn the wages which the employee was receiving at the time of injury in the same or any other employment.’ ” Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 131, 532 S.E.2d 583, 588 (2000) (quoting Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)). Thus, disability under the Act is defined as “ ‘the impairment of the injured employee’s earning capacity rather than physical disablement.’ ” Id. (quoting Russell, 108 N.C. App. at 765, 425 S.E.2d at 457). The Bond court further observed that an injured employee may establish disability by producing evidence that he has obtained other employment at a wage less than that earned prior to the injury. Id.
In the present case, there is evidence in the record which would support a conclusion that plaintiff’s injury resulted in the loss of his wage-earning capacity. We have previously upheld as supported by competent evidence the Commission’s determination that, but for his injury, plaintiff would have received the Panthers contract amount of $86,000.00. The Commission also found plaintiff was unable to obtain other professional football employment for the remainder of the 1995-96 season. Plaintiff attempted similar employment with the Dallas Cowboys in January 1997, but was not selected for the team.
Rather, the Commission found, and the record supports, that subsequent to his injury and dismissal from the Panthers, plaintiff performed various low-paying jobs, including work as a teacher’s assistant at the pay rate of $6.50 per hour, and as a temporary service employee at the rate of $8.10 per hour. Such evidence, while not dis-positive of disability, shifts the burden to the employer to establish
Again, while the judgment of this Court may differ from that of the Commission, it is the Commission that is wholly vested with authority to find the essential facts, weigh the evidence, and assess its credibility. Young, 137 N.C. App. at 55, 527 S.E.2d at 348. The record contains some competent evidence which would support the Commission’s conclusion that plaintiff was entitled to temporary partial disability, and we therefore will not disturb this determination on appeal.
The order of the Commission awarding plaintiff disability compensation is hereby affirmed; this matter is remanded to the Commission for further findings as to whether plaintiff’s request for approval for treatment by Dr. El-Bahri was reasonably timely.
Affirmed in part, reversed and remanded in part.
Dissenting Opinion
dissenting.
I disagree with the majority that plaintiff met his burden of proving a “temporary partial disability” within the meaning of the Workers’ Compensation Act. I, therefore, dissent.
“The 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.G.S. § 97-2(9) (1999). Disability refers to “a diminished capacity to earn money rather than physical infirmity.” Arrington v. Texfi Indus., 123 N.C. App. 476, 478,
(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that [plaintiffs] incapacity to earn was caused by [his] injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). A plaintiff may meet this burden by producing “evidence that he has obtained other employment at a wage less than that earned prior to the injury.” Russell v. Lowes Pro. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).
In this case, the Commission concluded “plaintiff is entitled to temporary partial disability compensation for the period from June 8, 1995, to the present and continuing for a total of 300 weeks.” The Commission made findings of fact regarding the wages earned by plaintiff subsequent to his injury; however, the Commission did not make any findings of fact comparing plaintiffs post-injury wages to any pre-injury wages. The Commission’s findings of fact, therefore, do not support a conclusion that plaintiff was disabled under the Workers’ Compensation Act due to his inability to earn after his injury “the same wages he had earned before his injury in the same employment . . . [or] any other employment.” Accordingly, I would reverse the opinion and award of the Commission.
Even assuming plaintiff is disabled under the Workers’ Compensation Act, I disagree with the majority that the record contains competent evidence to support the trial court’s finding of fact that “but for plaintiffs injury, plaintiff would have played for the Carolina Panthers during the contract year and would have earned the contract pay of $85,000.00 plus a $1,000.00 signing bonus.” The record shows plaintiff would have earned the contract pay of $85,000.00 only if plaintiff was officially added to the active roster of the Carolina Panthers. Plaintiff, however, was excused from the team without having made the active roster. There is no evidence in the record that plaintiff was excused as a result of his injury. Evidence of plaintiffs prior employment record as a professional football player and his attendance at the pre-season training camp of the Carolina Panthers is not “circumstantial evidence which could lead to an inference that plaintiff’s injury caused his dismissal from the Panthers.” I,
Reference
- Full Case Name
- LEONARD LARRAMORE, Employee, Plaintiff-Appellee v. RICHARDSON SPORTS LIMITED PARTNERS, D/B/A CAROLINA PANTHERS, Employer, and LEGION INSURANCE COMPANY, Carrier, Defendant-Appellants
- Cited By
- 39 cases
- Status
- Published