Wilkes v. City of Greenville
Wilkes v. City of Greenville
Opinion
*492 Johnnie Wilkes ("Plaintiff") appeals from the Opinion and Award of the North Carolina Industrial Commission ("the Commission") determining that he (1) failed to demonstrate that his anxiety and depression were causally related to his work-related accident; and (2) was no longer entitled to temporary total disability benefits. After careful review, we reverse in part, vacate in part, and remand for further proceedings.
Factual Background
Plaintiff is a 62-year-old man who, at the time of his accident, had been employed by the City of Greenville ("Defendant") for approximately nine years. On 21 April 2010, Plaintiff was driving one of Defendant's trucks when a third party ran a red light and collided into the truck. The force of the accident caused the truck to collide with a tree, breaking the windshield and deploying the airbags. Plaintiff was transported to Pitt County Memorial Hospital, where he was treated for an abrasion on his head, broken ribs, and various injuries to his neck, back, pelvis, and left hip. At the hospital, Plaintiff underwent a brain MRI, which appeared "negative for acute infarction but ... showed mild paranasal sinus disease resulting from a concussion." Plaintiff was discharged from the hospital the next day.
On 22 April 2010, Defendant filed a Form 19, reporting to the Commission that Plaintiff had in the course of performing his duties as a landscaper for the Recreation and Parks Department sustained injuries in a multi-vehicle accident. One week later, on 29 April 2010, Defendant filed a Form 60, admitting Plaintiff's entitlement to compensation for his injury by accident.
In January 2011, both parties filed a Form 33 requesting that the claim be assigned for hearing. Defendant's Form 33 stated that the "[p]arties disagree about the totality of plaintiff's complaints related to his compensable injury and need for additional medical evaluations." Plaintiff's Form 33 alleged that Plaintiff "is in need of additional medical treatment ... specifically an evaluation by a neurosurgeon." On 4 February 2011, Deputy Commissioner Theresa B. Stephenson entered an order requiring Defendant to "send Plaintiff for a one time evaluation *493 to a neurosurgeon of their choosing. If that neurosurgeon recommends additional neurological or neuropsychological treatment, Defendant shall provide this and direct treatment."
On 21 September 2011, a hearing was held before Deputy Commissioner Mary C. Vilas on Defendant's Form 33 Request for Hearing. The record was closed on 18 July 2012 and then reopened by order on 10 January *285 2013 to allow the parties to submit three additional stipulated exhibits. Deputy Commissioner Vilas entered an opinion and award on 1 February 2013 determining that Plaintiff's low back and knee pain, anxiety, depression, sleep disorder, tinnitus (ringing in one's ears), headaches, and temporomandibular joint pain were causally related to his 21 April 2010 compensable injury and ordering Defendant to pay all of Plaintiff's medical expenses incurred or to be incurred with regard to treatment of these conditions. Deputy Commissioner Vilas also concluded that Plaintiff demonstrated "that he is capable of some work but that it would be futile to seek work at this time because of preexisting conditions of his age, full-scale IQ of 65, education level and reading capacity at grade level 2.6, previous work history of manual labor jobs, and his physical conditions resulting from his April 21, 2010 compensable injury" such that he was entitled to temporary total disability compensation.
Defendants appealed to the Full Commission, and the Commission heard the matter on 4 November 2013. On 9 April 2014, the Commission entered its Opinion and Award reversing Deputy Commissioner Vilas' decision. Specifically, the Commission concluded that (1) Plaintiff failed to meet his burden of demonstrating that his anxiety and depression were caused by his work-related accident; and (2) Plaintiff was no longer entitled to total temporary disability benefits because he "presented insufficient evidence that a job search would be futile." The Commission found that Plaintiff's tinnitus, however, was causally related to his 21 April 2010 accident and therefore ordered Defendant to pay all of Plaintiff's past and future medical expenses "that are reasonably required to effect a cure, provide relief or lessen any disability" related to his tinnitus. Plaintiff filed a timely appeal to this Court.
Analysis
Appellate 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."
Philbeck v. Univ. of Mich.,
---N.C.App. ----, ----,
Here, Plaintiff makes two primary arguments on appeal. First, he contends that the Commission misapplied the law when considering whether he was entitled to medical compensation for his anxiety and depression. Second, he argues that the Commission erred in concluding that he was not entitled to disability benefits because he "has not presented evidence of a reasonable job search and has presented insufficient evidence that a job search would be futile." We address each of these arguments in turn.
I. Request for Additional Medical Compensation
Plaintiff first argues that the Commission erred by failing to apply the presumption arising from our decision in
Parsons v. Pantry, Inc.,
Pursuant to N.C. Gen.Stat. § 97-25, an employer must provide medical compensation for the treatment of compensable injuries, which includes "additional medical treatment ... directly related to the compensable injury" that is designed to effect a cure, provide relief, or lessen the period of disability.
Perez v. Am. Airlines/AMR Corp.,
It is well established that an employee seeking compensation for an injury bears the burden of demonstrating that the injury suffered is causally related to the work-related accident.
Hedges v. Wake Cty. Pub. Sch. Sys.,
*495
Perez,
In
Parsons,
the plaintiff worked as an assistant manager at one of the defendant's stores and was injured when two men entered the store and assaulted her, striking her in the forehead and shooting her four times with a stun gun.
Parsons,
The plaintiff appealed to this Court, arguing that the Commission had erred in placing the burden on her to prove that her current headaches were caused by the employment-related assault.
Id.
at 541,
[a]t the initial hearing, plaintiff's main injury complaint was headaches. At that time, it was her burden to prove the causal relationship between her 30 April 1991 accident and her headaches. Plaintiff met this burden, as evidenced by the Commission's initial opinion and award, from which there was no appeal, granting her medical expenses and future medical treatment. In effect, requiring that plaintiff once again prove a causal relationship between the accident and her headaches in order to get further medical treatment ignores this prior award. Plaintiff met her causation burden; the Industrial Commission ruled that her headaches were causally related to the compensable accident. Logically, defendants now have the responsibility to prove the original finding of compensable injury *496 is unrelated to her present discomfort. To require plaintiff to re-prove causation each time she seeks treatment for the very injury that the Commission has previously determined to be the result of a compensable accident is unjust and violates our duty to interpret the Act in favor of injured employees.
Id.
at 542,
This Court has applied the
Parsons
presumption to additional medical treatment not only when the initial determination of compensability is made by the Commission in an opinion and award,
see
Plaintiff asserts that because Defendant filed a Form 60, which admitted that he had suffered a compensable injury by accident, he was entitled to the presumption that the additional medical treatment he sought for
*287
his symptoms of anxiety and depression was directly related to his compensable injury. Defendant contends that Plaintiff is not entitled to the
Parsons
presumption because it admitted compensability only as to the injuries Plaintiff suffered to his "ribs, neck, legs and entire left side" and not to Plaintiff's complaints relating to anxiety and depression. However, our caselaw since
Perez
has made clear that the
Parsons
presumption applies even where the injury or symptoms for which additional medical treatment is being sought is not the precise injury originally deemed compensable.
See
Carr v. Dep't of Health & Human Servs. (Caswell Ctr.),
This Court addressed this same issue in
Perez.
The plaintiff in
Perez
was employed as a flight attendant and slipped and fell while carrying luggage down a stairway.
Perez,
*497
Id.
at 129, 137 n. 1,
Approximately four years after the injury, the plaintiff's lower back pain "started to intensify again," and she sought medical treatment for her symptoms.
[t]he presumption of compensability applies to future symptoms allegedly related to the original compensable injury. We can conceive of a situation where an employee seeks medical compensation for symptoms completely unrelated to the compensable injury. But the burden of rebutting the presumption of compensability in this situation, although slight, would still be upon the employer.
In the present case, Plaintiff requested additional medical treatment for his anxiety and depression, which he alleged was the result of the 21 April 2010 accident. Plaintiff has been evaluated by several medical and psychological professionals, who expressed differing opinions both as to Plaintiff's veracity in reporting these symptoms and as to whether the psychological complaints were, in fact, causally linked to the 21 April 2010 accident. In its Opinion and Award, the Commission denied Plaintiff additional medical compensation for his anxiety and depression, stating that based on the conflicting testimony of the physicians and psychologists who evaluated him, "Plaintiff has not met his burden of showing that his alleged depression and anxiety is a result of the 21 April 2010 work-related accident."
Thus, it is evident from the Opinion and Award that the Commission did not apply the rebuttable presumption under
Parsons
to Plaintiff's psychological symptoms and instead kept the burden on Plaintiff to demonstrate causation despite Defendant's prior admission of
*498
compensability in the Form 60. Based on our Court's decisions in
Parsons, Perez
, and
Carr
, we hold that doing so was a misapplication of the law. Consequently, we remand this matter to the Commission so
*288
that it may apply the
Parsons
presumption and then make a new determination as to whether Plaintiff's psychological symptoms are causally related to the 21 April 2010 injury.
See
Reinninger v. Prestige Fabricators, Inc.,
We express no opinion on the question of whether the evidence of record is sufficient to rebut the presumption that Plaintiff's current complaints are directly related to his initial compensable injury. On remand, it is the role of the Commission to make this determination by evaluating the applicable evidence in order to determine whether the presumption has, in fact, been rebutted.
See
Miller v. Mission Hosp., Inc.,
--- N.C.App. ----, ----,
II. Disability Benefits
Plaintiff next argues that the Commission erred in concluding that he was no longer entitled to temporary total disability benefits. We agree.
" 'Disability,' within the meaning of the North Carolina Workers' Compensation Act, is defined as 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."
Demery v. Perdue Farms, Inc.,
(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the *499 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 this individual's incapacity to earn was caused by plaintiff's injury.
Hilliard v. Apex Cabinet Co.,
A plaintiff seeking to demonstrate disability may prove these first two elements of disability through several methods, including
(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.
Russell v. Lowes Prod. Distribution,
*289
Once an employee meets his initial burden of production under
Russell,
the burden shifts to the employer to rebut the evidence of disability by demonstrating "not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations."
Johnson v. S. Tire Sales & Serv.,
Here, the Commission concluded as a matter of law that Plaintiff, who was receiving total disability benefits from Defendant since the date of the 21 April 2010 accident, was no longer entitled to such benefits as of 18 January 2011, the date Defendant filed its Form 33 challenging the totality of Plaintiff's physical complaints related to his compensable injury. The Commission concluded that Plaintiff had failed to prove disability because he did not demonstrate that he had engaged in a reasonable job search and "presented insufficient evidence that a job search would be futile."
It is well established that "[t]he determination of whether a disability exists is a conclusion of law that must be based upon findings of fact supported by competent evidence."
Parker v. Wal-Mart Stores, Inc.,
However, the Commission also took note of several of Plaintiff's personal characteristics that relate to his employability. Specifically, the Commission found that Plaintiff (1) was 60 years old at the time of the hearing; (2) had been employed as a landscaper with Defendant since 2001; (3) had been employed in medium and heavy labor positions throughout his entire adult life; (4) attended school until the tenth grade; (5) was physically incapable of performing his former job as a landscaper/laborer; (6) has "difficulty reading and comprehending" written material as evidenced during his evaluation with Dr. Peter Schulz; and (7) has "an IQ of 65, putting him in the impaired range."
Plaintiff asserts that this uncontroverted evidence, which the Commission found as fact, was sufficient to meet his initial burden of showing that he was incapable of earning his pre-injury wages because his preexisting personal characteristics made it futile for him to seek sedentary employment-the only type of employment within his physical restrictions. We agree.
As our Supreme Court explained in
Peoples v. Cone Mills Corp.,
*501 [i]f preexisting conditions such as the employee's age, education and work experience are such that an injury causes the employee a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the actual incapacity he or she suffers, and not for the degree of disability which would be suffered by someone younger or who possesses superior education or work experience.
It follows where occupational ... disease [or injury by accident] incapacitates an employee from all but sedentary employment, and because of the employee's age, limited education or work experience no sedentary employment for which the employee is qualified exists, the employee *290 is entitled to compensation for total disability.
Id.
at 441,
We find our decision in
Johnson v. City of Winston-Salem,
While the defendant argued that the plaintiff had failed to prove that engaging in a job search would be futile, we disagreed, first noting that "the fact that [p]laintiff can perform light-duty work does not in itself preclude the Full Commission from making an award of total disability if the evidence shows that, because of preexisting limitations, [p]laintiff is not qualified to perform the kind of light-duty jobs that might be available in the marketplace" and then explaining that
*502 the uncontradicted evidence established that [p]laintiff has only a high school education, had been working as a custodian for [d]efendant for almost his entire adult working life, and has a litany of medical problems.... There was no evidence that [p]laintiff was offered or received any kind of vocational rehabilitation services. Given [p]laintiff's limited education, limited work experience, and limited training, in addition to his poor health, his compensable injury causes him a greater degree of incapacity than the same injury would cause some other person with superior education or work experience, or who is in better health. Thus, all the evidence tends to show that any current effort by [p]laintiff to obtain sedentary light-duty employment, the only employment Dr. DeFranzo testified that [p]laintiff is physically capable of performing, would have been futile.
Id.
at 391-92,
The circumstances of the present case-specifically the fact that Plaintiff has an IQ in the "impaired range" coupled with limited education and training and has been employed for his entire working life in a line of work he is no longer physically capable of performing-are analogous to those in
Johnson.
As we clarified in that case, when determining whether disability exists, "the relevant inquiry is whether
Plaintiff himself
is capable of working and earning wages, not whether all or some persons with Plaintiff's degree of injury have such capacity."
Id.
at 391,
We conclude that by introducing evidence of these preexisting facts, Plaintiff offered sufficient evidence that engaging in such a job search would be futile so as to shift the burden to his employer "to show that suitable jobs are available and that [he was] capable of obtaining a suitable job taking into account both physical and vocational limitations."
Thompson,
Thus, because Plaintiff demonstrated the futility of engaging in a job search and Defendant made no attempt to show that suitable jobs were available to Plaintiff, the Commission erred in ruling that Plaintiff was not temporarily totally disabled. The Commission's conclusions of law reaching the opposite result were not supported by the findings of fact contained within its Opinion and Award.
See
White v. Weyerhaeuser Co.,
Defendant attempts to rely on our recent decision in
Fields v. H & E Equip. Servs., LLC,
--- N.C.App. ----,
Specifically, we stated that the plaintiff
offered no testimony from a vocational expert that his preexisting condition made it futile to seek any other employment opportunities in his job market. There was no evidence presented of any labor market statistics stating that his pre-existing condition made him incapable of re-entering the labor market. Plaintiff's medical expert did not state that it was impossible for him to work, only that he should not continue in his current role. Without any expert testimony establishing that [p]laintiff's job with [d]efendant is the only job obtainable, or any evidence demonstrating that no other man of his age, education, experience, and physical capabilities is currently working *504 anywhere, [p]laintiff did not meet his burden of proof of disability under Russell prong three.
While we believe
Fields
is distinguishable from the present case on its facts-given that Plaintiff here lacks transferable skills such as computer proficiency and offered evidence from medical, psychological, and neuropsychological professionals that he is intellectually impaired with a full-scale IQ of 65, a 2.6 grade reading level, borderline nonverbal reasoning skills, and impaired verbal comprehension and processing speed-we take this opportunity to note that our prior caselaw has made clear that "a plaintiff is
not required
to present medical evidence or the testimony of a vocational expert on the issue of futility."
Thompson,
Accordingly, we conclude that the evidence establishing Plaintiff's cognitive limitations, in combination with his age and lack of any other training, adequately demonstrates that searching for employment within his physical restrictions would be futile.
See
Peoples,
*292 Conclusion
For the reasons stated above, we reverse the Commission's termination of Plaintiff's total temporary disability benefits, vacate the portion of the Opinion and Award concerning Plaintiff's request for additional treatment for anxiety and depression, and remand for further proceedings consistent with this opinion.
REVERSED IN PART; VACATED AND REMANDED IN PART.
Judges BRYANT and INMAN concur.
Reference
- Full Case Name
- Johnnie WILKES, Employee, Plaintiff v. CITY OF GREENVILLE, Employer, Self-Insured (PMA Management Group, Third-Party Administrator), Defendant.
- Cited By
- 7 cases
- Status
- Published