Easton v. J.D. Denson Mowing

In its Opinion and Award, the majority terminates plaintiff benefits. I respectfully dissent.

In the case at hand, the defendants are paying plaintiff for total disability compensation pursuant to a Full Commission decision filed 13 October 2000 that was subsequently affirmed by the North Carolina Court of Appeals on 5 February 2002. The parties stipulated that plaintiff has been paid total disability compensation since the date of injury, 7 September 1997, and that no physician has released him to return to work. Plaintiff has a wife of nine years and two minor stepchildren. All three are his dependents. Plaintiff was arrested for a probation violation and was incarcerated on 22 January 2003. Plaintiff was released on 8 September 2003. Defendants pursued the Industrial Commission's Form 24 process following the plaintiff's incarceration. The matter at hand is the appeal from an approved Form 24.

In terminating the plaintiff's benefits, the majority relies heavily on Parker v. Union Camp, 108 N.C. App. 85 (1992). It is my opinion that this reliance is misplaced. It is well-established law that following an award of benefits via an Opinion and Award, the plaintiff has a presumption of continuing disability and that the defendant has the burden of rebutting this presumption. Radica v. Carolina Mills, 113 N.C. App. 440 (1994); Watkins v. Motor Lines, 279 N.C. 132 (1971). The North Carolina Supreme Court has "warned against any inclination toward judicial legislation" in the construction of the Worker's Compensation Act. Johnson v. Southern Indus. Constructors,347 N.C. 275 (1982). Given the absence of any statute concerning this incarceration issue the plaintiff's presumption of continuing benefits should stand. Compensation should continue notwithstanding the plaintiff's incarceration. The fact that the legislature acted in N.C. Gen. Stat. § 97-13(c) specifically to exclude prisoners injured as they worked for the state while incarcerated but did not address the situation in the case at bar shows unmistakable intent by the legislature to allow the general provisions of the Act to apply. The dissent in Parker noted this vital point:

[A]fter it has been determined that an employee is entitled to benefits because of a work-related injury, a change in physical condition is the only basis upon which the Industrial Commission can modify such benefits. See N.C.G.S. 97-47 (1991) (a worker's compensation award can be modified only "on the grounds of a change of condition"); 307 N.C. 99 (1982) ("change of condition" means "a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, earnings") . . . If a different result is desired by the legislature, then it is up to that body of government, not this court, to enact laws to that effect.

The fact situation in the case at hand is very similar to one in which a worker injured by a compensable injury is encountered with a concurring disabling factor, such as a serious car accident. "Disability" is defined by the Act as "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment." N.C. Gen. Stat. § 97-2(9). It is well settled that in the case of a car accident that causes serious injury to an already-disabled injured worker, compensation benefits continue notwithstanding the superimposed injuries. This is so because, until proven otherwise, the plaintiff is still entitled to disability compensation for the compensable injury even after a concurring disabling event occurs. Seagraves v. Austin Co.,123 N.C. App. 228 (1996). Only if the plaintiff's physical capacity to earn wages has been affected can the defendants reduce or terminate plaintiff's benefits on a change of condition theory.Grantham v. R.G. Barry Corp., 127 N.C. App. 529 (1997) cert.denied 347 N.C. 671 (1998). Here the plaintiff's physical capacity was not changed by his incarceration. His inability to work predated his arrest. While incarcerated, plaintiff was still physically disabled as a result of his compensable injury. Being incarcerated did not keep him from working, because whether he was incarcerated or not, he still would not have been able to work. Numerous other jurisdictions follow this rationale. In cases in which the plaintiffs are not incarcerated, defendants have the opportunity to terminate benefits by proving that the plaintiff is suitably employed. This is not possible with an incarcerated injured worker, obviously. Therefore, the suitable employment analysis would not be included in the case of an incarcerated injured worker. Rather, a plaintiff in this position could have his benefits terminated merely with a showing that he had the physical capacity to earn wages were he not imprisoned.

Importantly, Parker is not binding in considering the case at hand. The Parker case involved an incarcerated injured worker without dependents. The majority in the Parker case specifically asked the legislature to examine the issue of awarding workers' compensation benefits to the dependants of incarcerated disabled workers, and specifically did not address the issue we have at bar: "Because there are no dependents involved in this case, that issue is not before this Court." Parker v. Union Camp,108 N.C. App. 85, 88 (1992). Further, if workers compensation benefits are terminated in plaintiff's case, the burden of providing for his dependents will no doubt shift to Social Security, Medicaid, and other public assistance programs. In effect, this would shift the burden of paying for industry wreckage from the defendants to the backs of hard pressed taxpayers.

For the above reasons I respectfully dissent.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

2. All parties have been correctly designated, and that there are no questions of misjoinder or nonjoinder of the parties.

3. All carriers have been correctly designated, and that Ohio Casualty Insurance Company is properly on the risk, and there are no questions as to insurance coverage of the parties.

4. Plaintiff's compensation rate is $365.78 and defendants are paying plaintiff for total disability pursuant to a Full Commission decision filed October 13, 2000, that was affirmed by the Court of Appeals on February 5, 2002. It is stipulated that plaintiff has now been paid total disability since his date of injury of September 7, 1997 and that no physician has released him to return to work.

5. Plaintiff is married to Jacqueline Lassiter Easton and they have been married approximately nine years. It is stipulated that, during the period of plaintiff's incarceration, Jacqueline Lassiter Easton was undergoing treatment for breast cancer and for ovarian cancer and, as a consequence, was unable to work.

6. Jacqueline Lassiter Easton has custody of her two minor children from a previous marriage, who live with her and plaintiff in their home. These minor children are plaintiff's stepchildren.

7. Jacqueline Easton and her minor children are substantially dependent upon plaintiff's workers' compensation indemnity payments of $1,097.36 per month and his Social Security disability payments of $513.00 per month in order to survive financially. Social Security is currently reducing and/or offsetting plaintiff's receipt of social security disability payments due to plaintiff's receipt of workers' compensation benefits. It is anticipated that plaintiff's Social Security disability benefits would increase toward the maximum of approximately $803.00 per month if plaintiff's workers' compensation benefits were suspended or stopped.

8. Plaintiff was incarcerated at the Wake County jail on or about January 22, 2003 for probation violation. Plaintiff's counsel informed the defendants of the possible incarceration on April 4, 2003 and he confirmed the incarceration with defense counsel on June 3, 2003. Defendants filed their Form 24 on July 24, 2003. Plaintiff remained incarcerated until he was released on September 8, 2003. It is also stipulated that defendants paid plaintiff $10,973.40 during his period of incarceration. Defendants are seeking a credit of this amount. It is stipulated that, after approval of the Form 24 on August 28, 2003, defendants suspended payments of $991.26. Plaintiff is seeking payment of this amount.

9. Defendants are not waiving any right to seek a credit for any other periods of incarceration between September 7, 1997 and January 22, 2003.

10. The above stipulations were submitted in lieu of having a hearing in this matter for lay testimony. There are no medical questions that require expert testimony.

11. Form 24 application, Form 24 response, Form 24 Order, Form 33, and Form 33R are made a part of the record.

12. This hearing is on plaintiff's appeal from the Form 24 approved in this matter on August 28, 2003. Therefore, the issues to be tried are as follows:

a. Are defendants entitled to suspend payment of plaintiff's compensation as a result of his incarceration?

b. Are defendants entitled to suspend payment of plaintiff's compensation to his dependants as a result of his incarceration?

c. If defendants were entitled to suspend benefits during a period of incarceration, are they entitled to a credit pursuant to N.C. Gen. Stat. § 97-42 for amounts paid to plaintiff during his incarceration? If so, are they entitled to take an immediate credit by reducing his ongoing benefits? If so, by what reduction? If not, when are they entitled to take this credit.

2. Plaintiff's compensation rate was $365.78.

3. Plaintiff was hospitalized as a result of his accident and was awarded ongoing disability benefits by the Full Commission on October 13, 2000. Defendants requested an Independent Medical Examination in May 2002 with Dr. Scott Sanitate. Dr. Sanitate noted in his May, 9 2002 report that he "would have no reason to restrict Mr. Easton based on the described C7 spinous fracture and his physical exam today, although I feel he is disabled secondary to the effects of alcohol abuse and underlying depression at this time. I do not feel it would be safe for him to return to work secondary to above."

4. Plaintiff has been married to his current wife for approximately nine years and is the stepfather of her children from a previous marriage.

5. During the period of plaintiff's incarceration, his wife was unable to work due to health problems related to cancer.

6. Plaintiff was arrested and incarcerated at the Wake County jail on or about January 22, 2003 for probation violation. He remained imprisoned until he was released on September 8, 2003.

7. Plaintiff's wife and stepchildren rely on him for financial support and survival.

8. Plaintiff improperly received $10,973.40 in indemnity compensation during the period of his incarceration from January 22, 2003 to September 7, 2003.

2. Prior to his imprisonment, plaintiff's incapacity to earn wages was a result of his injury; however, while in prison, plaintiff does not have the right to earn wages. Thus, his incapacity to earn was caused by his imprisonment not by his injury. Parker v. Union Camp Corp., 108 N.C. App. 85 (1992).

3. There is no provision in the Workers' Compensation Act at the current time for dependents of prisoners who rely in whole or in part on Workers' Compensation benefits to continue to receive those benefits while the plaintiff-recipient is incarcerated. Id. at 90.

4. Defendants are entitled to an immediate credit for all payments of indemnity compensation during plaintiff's incarceration from January 22, 2003 to September 8, 2003. The credit is $10,973.40.

2. Defendants are entitled to an immediate credit in the amount of $10,973.40. It is hereby ORDERED that defendants shall reduce the weekly benefits being paid to plaintiff and plaintiff's counsel by $100 per week until the full amount of the credit is exhausted.

3. Plaintiff shall pay the costs.

This the 20th day of August 2004.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_______________ LAURA K. MAVRETIC COMMISSIONER

DISSENTING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

DCS/mlb