Estate of Apple v. Commercial Courier Express

The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing and following in a Pre-Trial Agreement admitted into evidence by the Deputy Commissioner as:

2. On 4 August 1994, an employment relationship existed between plaintiff-employee (hereinafter "decedent") and defendant-employer.

3. On 4 August 1994, Michigan Mutual Insurance Company was the carrier at risk.

4. Decedent's average weekly wage on 4 August 1994 was $369.53, which yields a compensation rate of $246.37 per week, based upon the Form 21.

5. On 4 August 1994, decedent sustained a compensable injury by accident arising out of and in the course of his employment with defendant-employer. The parties agree and stipulate that the compensable injury by accident on 4 August 1994 resulted in decedent's death on 14 January 2001.

6. The parties agree that the decision in plaintiff's claim for death benefits may be decided without the need of an initial hearing or depositions and may be decided on the Pre-Trial Agreement and the matters incorporated by reference therein, including plaintiff's and defendants' list of exhibits indentified therein.

7. Defendants preserved their rights to contest and do contest whether benefits are recoverable in this case under N.C. Gen. Stat. § 97-38,et seq., and whether any claim for death benefits in this case is barred by the doctrines of res judicata and collateral estoppel.

8. The nature of decedent's injuries was brain and other injuries more particularly described in the medical records.

9. Decedent last worked for defendant-employer on August 4, 1994, the date of the admitted injury by accident.

10. Bessie Hutchins Apple was the wife of and lived with decedent on the date of the 4 August 1994 injury by accident. The one child of the marriage is a son who was not dependent on decedent for support, and who, on 4 August 1994, was an adult greater than 18 years of age. Bessie Apple is decedent's sole dependent within the meaning of the Act.

11. As a result of decedent's death, Mrs. Apple incurred burial expenses exceeding the $2,000.00 maximum reimbursement under the Act.

12. Exhibits, indexed, referenced, listed or attached to the Pre-Trial Agreement as plaintiff's and defendants' lists of exhibits, were received into evidence.

13. The Opinion and Award of Deputy Commissioner Stephenson filed on 19 April 2001 in I.C. File No. 467935 is a part of the evidence of record.

14. The issues to be determined by the Commission are: (1) whether defendants owe death and burial benefits under the Workers' Compensation Act as a result of decedent's death; (2) whether plaintiff is entitled to attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1; (3) whether a claim for death benefits is recoverable in this case under N.C. Gen. Stat. § 97-38 et seq.; and (4) whether a claim for death benefits is barred by the doctrines of res judicata and collateral estoppel.

2. On 20 October 1994, the Industrial Commission approved a Form 21, Agreement for Compensation for Disability, which had been signed by defendants and decedent's wife as his guardian ad litem. By this Agreement, the parties agreed that decedent's workers' compensation claim was compensable and that defendants would pay weekly indemnity benefits for "necessary weeks."

3. As a result of the compensable injury, decedent received in-house treatment from several hospitals until he was placed under the care of Winston-Salem Rehabilitative Healthcare Center (W-S Rehab) in August 1995. Except for brief periods of hospitalization for infection, decedent remained at this facility until his death on 14 January 2001.

4. Decedent reached maximum medical improvement with respect to his injuries between 10 March 1995 and 13 March 1995. At that time decedent was permanently and totally disabled and remained permanently and totally disabled until his death on 14 January 2001. However, there was no final determination of that disability until the Deputy Commissioner's Opinion and Award filed 19 April 2001 in I.C. File No. 467935.

5. On 4 August 1994 Bessie Hutchins Apple, widow, was wholly dependent upon support from decedent. There were no other individuals wholly or permanently dependent upon decedent for support at that time.

6. Bessie Hutchins Apple incurred funeral expenses in an amount in excess of $2,000.00 for the burial of decedent.

7. On 14 January 2001 decedent died as a direct consequence of his 4 August 1994 injuries. Decedent's date of death was more than 6 years after the date of his injury, but was before any final determination of disability.

8. Defendants have not denied death benefits without a reasonable basis or based on unfounded litigiousness. A legitimate legal issue is presented in this claim as to when the "final determination of disability" was made for purposes of N.C. Gen. Stat. § 97-38.

2. As a result of this compensable injury, decedent reached maximum medical improvement approximately 10 March 1995 to 13 March 1995, and was permanently and totally disabled from that time period until the date of his death on 14 January 2001. N.C. Gen. Stat. § 97-29.

3. N.C. Gen. Stat. § 97-38 provides as follows:

"If death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid [death benefits]. . . ." (italics added)

In this case, decedent's death was the proximate result of the compensable injury by accident, but his death did not occur within six years of the date of injury. However, decedent's death was within two years of the "final determination of disability" within the meaning of N.C. Gen. Stat. § 97-38. The final determination of disability was the issuance of Deputy Commissioner Stephenson's Opinion and Award on 19 April 2001 in which decedent was found to be permanent and totally disabled. The Form 21 Agreement entered into between the parties did not constitute a "final determination of disability" as contemplated by the statute, in that it provided for payment of disability compensation for "necessary weeks" and was entered into prior to the date decedent reached maximum medical improvement from his injuries. Therefore, plaintiff's claim for death benefits is not barred by N.C. Gen. Stat. § 97-38.

4. Bessie Hutchins Apple, decedent's surviving widow, is entitled to recover death benefits. N.C. Gen. Stat. § 97-38.

5. The widow and only dependent of decedent, Bessie Hutchins Apple, is entitled to reimbursement for funeral expenses in the amount of $2,000.00. N.C. Gen. Stat. § 97-38.

6. Defendants had a reasonable basis for their defense of this claim, and plaintiff is not entitled to recover additional attorney's fees. N.C. Gen. Stat. § 97-88.1.

Defendants shall pay to Bessie Hutchins Apple $2,000.00 for funeral benefits.

A reasonable attorney's fee of 25% of the benefits provided in Award No. 1 above is approved for plaintiff's attorney. To the extent that these benefits have accrued, this sum shall be withheld and paid directly to counsel for plaintiff. For continuing benefits, defendants shall pay every fourth check to counsel for plaintiff.

Defendants shall pay the costs due this Commission.

This the ___ day of November 2002.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING WITH A SEPARATE OPINION:

S/_______________ RENEE C. RIGGSBEE COMMISSIONER

I concur in the result in this case and write separately to briefly address the legal issues raised under Section 97-38 of the Act.

Section 97-38 states in pertinent part:

"If death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later, the employer shall pay or cause to be paid"

[Emphasis added]. Under the circumstances of this case, there is little question that plaintiff died more than six years from his date of injury. The relevant inquiry, therefore, is whether plaintiff died within two (2) years from the final determination of disability.

I agree with the findings of the majority opinion in this case, and in the companion file, I.C. No. 467935, to the effect that the parties entered into a Form 21 Agreement that was approved by the Industrial Commission on 20 October 1994 approving payment for "necessary weeks" of compensation. Upon approval by the Industrial Commission, the Form 21 Agreement became an Award and a determination of disability by the Industrial Commission. See Lewis v. Sonoco Products Co., 137 N.C. App. 61,526 S.E.2d 671 (2000); Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72,476 S.E.2d 434 (1996). In most cases, the Form 21 Agreement for "necessary weeks" may be the final determination of disability and there may be no need for, nor any further determination of disability by the Commission. Thus, in many cases the approval of the Form 21 Agreement by the Industrial Commission may in fact be "the final" [or last] determination of disability.

Unfortunately for the defendants, under the circumstances of this case, and by their own actions, the Commission's approval of the Form 21 was not the final determination of disability in this case. Out of an abundance of precaution, defendants initiated this proceeding to obtain an express finding by the Commission that plaintiff was permanently and totally disabled. The Commission did not render its "final determination" on this issue until Deputy Commissioner Stephenson, or this panel of the Full Commission, entered the Opinion and Award in this claim. Thus, the "final determination" did not occur with the approval of the Form 21 Agreement. And because plaintiff's death is with within two years from the Commission's last finding on disability, the death claim is not precluded by the two year provision of Section 97-38.

I write separately in an effort to hopefully prevent the perverse procedural and substantive outcome that occurred in this case from occurring in future cases. Defendants prudently, however improvidently, filed a Form 33 in this case requesting a hearing to determine that plaintiff was permanently and totally disabled in an effort to secure a "final determination of disability" to avoid death benefits under the 2 year provision of Section 97-38. As a consequence, the Commission was required to expend resources and the parties needlessly expended time and money to unnecessarily determining an issue that was not in controversy. There was no question that plaintiff was disabled and his disability was continuing. Whether he was technically "permanently and totally disabled" rather than merely entitled to continuing total disability benefits was a moot issue which did not require the intervention of the Commission. The proceeding became perverse because the defendants were seeking to establish that plaintiff was "more disabled" than the determination of continuing disability for "necessary weeks" awarded in the Form 21 Agreement. The result is that the "final" or last determination of disability was within the 2-year period of Section 97-38. Had defendants not sought the determination that plaintiff was "totally and permanently" disabled, the "final" or last determination of disability would have occurred with the Form 21 Agreement and the claim for death benefits would have to be denied under Section 97-38. Moreover, the plaintiff, his widow, the Commission, and others would have been saved the mental strife and economic expense of needlessly litigating the issue of "permanency" because litigation of this issue was not necessary and did not present a justiciable controversy for determination by the Commission.

Because the question of when the "final determination" is made can vary under the circumstances of each case, and the legal question is raised as to whether defendant was required to seek a determination of "permanency" after there was a prior agreement [whether by means of a Form 60 or Form 21] to pay continuing, necessary benefits, I find defendants' action to be perverse and legally unnecessary. Hopefully, parties will recognize that further determination will not be necessary after a Form 60 or Form 21 is filed agreeing to pay benefits in order to invoke "final determination" provision of Section 97-38.

For these reasons, I agree with the Award of death benefits under the specific circumstances of this case.

S/_______________ RENEE C. RIGGSBEE COMMISSIONER