Miller v. Carolinas Med. Ctr.-Ne. , 233 N.C. App. 342 ( 2014 )

NO. COA13-1028
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
VICKIE MILLER,
Employee/Plaintiff
v. From the Industrial Commission
I.C. No. 675930
CAROLINAS MEDICAL CENTER—
NORTHEAST, Self-Insured Employer,
Defendant.
Appeal by Defendant from opinion and award entered 30 May
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 23 January 2014.
The Sumwalt Law Firm, by Vernon Sumwalt, for Plaintiff.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Jeffrey A.
Kadis, M. Duane Jones, and Melissa H. Grimes, for
Defendant.
DILLON, Judge.
Defendant Carolinas Medical Center — Northeast appeals from
an opinion and award of the Full Commission of the North
Carolina Industrial Commission reforming a Form 21 agreement
executed by Defendant and Plaintiff Vickie Miller and granting
Plaintiff’s claim for additional workers’ compensation benefits
relating to a previously determined compensable injury. For the
-2-
following reasons, we affirm in part, vacate in part, and
reverse and modify in part.
I. Factual & Procedural Background
Plaintiff was thirty-two years old and had been employed by
Defendant as an emergency room nurse for more than eleven years
at the time of her hearing before the Full Commission. The
record evidence, as presented before the Full Commission, tends
to show the following: On 21 August 2006, Plaintiff sustained an
injury to her lower back while working within the scope of her
employment with Defendant. Defendant did not contest the
compensability of Plaintiff’s injury and paid for Plaintiff’s
medical treatment through 26 December 2006, when Plaintiff’s
physician, Dr. Michael Meighen, determined that Plaintiff had
reached maximum medical improvement and assigned her a five
percent permanent partial disability (PPD).
The parties signed a Form 21 agreement entitling Plaintiff
to five percent PPD as compensation for her 2006 injury
consistent with Dr. Meighen’s determination. The PPD award was
calculated based on an average weekly salary of $689.21 and
corresponding compensation of $459.50. The Form 21 agreement
was approved by the Full Commission on 29 November 2007.
-3-
Plaintiff proceeded to perform her job duties and did not
seek further treatment for her back until 9 September 2008, when
she returned to Dr. Meighen reporting increased pain in her
lower back. Ultimately, Dr. Meighen opined that Plaintiff’s
“issues [were] unrelated to any work-related injury[,]”
speculating that Plaintiff might have contracted Lyme disease.
As a result of Dr. Meighen’s determination, Defendant filed a
Form 61 on 26 September 2008 denying Plaintiff further coverage
for medical treatment relating to her 2006 injury.
On 31 December 2008, Plaintiff presented for treatment with
Dr. Brian Rose, an orthopedic surgeon who specializes in
treating spinal injuries. Dr. Rose opined that Plaintiff’s back
issues “likely correspond[ed] to her original work injury.”
On 17 July 2009, Plaintiff presented for treatment with Dr.
Daniel Oberer, a board-certified neurosurgeon, who determined
that Plaintiff’s back injury required surgery. Dr. Oberer
performed three surgical procedures on Plaintiff. Although the
first two procedures failed to produce the desired results, the
third procedure, which was performed on 1 November 2010, proved
successful. Plaintiff thus returned to her full-time nursing
position with Defendant on 31 December 2010 and has continued
working in that capacity ever since.
-4-
In November 2010, Plaintiff filed a Form 18M with the
Commission, seeking medical compensation for her 2006 injury in
addition to the coverage already provided under the Form 21
agreement that had been approved by the Full Commission in 2007.
On 29 August 2011, Plaintiff filed an Amended Form 18, alleging
that there had been a “change of condition” since she entered
into the Form 21 agreement. Plaintiff also requested that her
claim be assigned for hearing, asserting that Defendant had
underpaid her PPD benefits “based on [a] miscalculation of [her]
average weekly wage” in the Form 21 agreement. In response,
Defendant filed a Form 33R asserting that Plaintiff had “failed
to make her claim regarding a change of condition within 2 years
of the last payment of medical compensation” and that,
accordingly, her claim was barred under the applicable statute
of limitations.
On 17 November 2011, Plaintiff’s claim came on for hearing
before Deputy Commissioner James C. Gillen, who ultimately
entered an opinion and award favorable to Plaintiff. Defendant
appealed to the Full Commission, which, by opinion and award
entered 30 May 2013, affirmed with modifications the Deputy
Commissioner’s decision. The substance of the Full Commission’s
opinion and award, in pertinent part, was as follows:
-5-
(1) The Form 21 agreement was reformed by
the Commission to reflect what it determined
to be the correct average weekly wage,
$691.11, instead of $689.21, to which the
parties had agreed in the original Form 21
agreement;
(2) Defendant was ordered to pay Plaintiff
$18.90, representing the deficiency owed to
Plaintiff as a result of the new computation
of the average weekly wage;
(3) Plaintiff’s claims for additional
benefits relating to the August 2006
accident were not time-barred;
(4) Defendant was ordered to pay Plaintiff
temporary total disability benefits in the
amount of $460.76 – an amount based on the
recalculated average weekly benefits – for
the periods between 2008 and 2010 that
Plaintiff missed work due to her injury; and
(5) Defendant was ordered to pay Plaintiff’s
medical bills incurred subsequent to the
Form 21 agreement relating to Plaintiff’s
back injury.
From this opinion and award, Defendant appeals.
II. Analysis
A. Standard of Review
Our standard of review is well-established:
Our review of an opinion and award by the
Commission is limited to two inquiries: (1)
whether there is any competent evidence in
the record to support the Commission’s
findings of fact; and (2) whether the
Commission’s conclusions of law are
justified by the findings of fact. If
supported by competent evidence, the
-6-
Commission’s findings are conclusive even if
the evidence might also support contrary
findings. The Commission’s conclusions of
law are reviewable de novo.
Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442–43, 640
S.E.2d 744, 748 (2007) (internal citations omitted).
B. Reformation of the Form 21 Agreement
Defendant first contends that the Full Commission erred in
reforming the amount of the average weekly wage from the amount
contained in the Form 21 agreement that had been approved by the
Full Commission in 2007. We agree.
With respect to Plaintiff’s average weekly wage, the
parties agreed in the Form 21 agreement that “[t]he average
weekly wage of the employee at the time of the injury, including
overtime and allowances, was $689.21, subject to
verification[.]” It is unclear whether, in changing the average
weekly wage figure from $689.21 to $691.11, the Full Commission
was rescinding the “average weekly wage” provision in the Form
21 agreement pursuant to N.C. Gen. Stat. § 97-17, or whether the
Full Commission was simply enforcing the “average weekly wage”
provision, specifically, the phrase which provides that the
calculation was “subject to verification.” We believe, in
either case, that the Full Commission erred in changing the
agreed-upon figure for the reasons stated below.
-7-
To the extent that the Full Commission’s “reformation”
constituted a rescission of the Form 21 agreement, we believe
that we are compelled under Swain v. C & N Evans Trucking Co.,
Inc., 126 N.C. App. 332, 484 S.E.2d 845 (1997), to conclude that
the Full Commission lacked the authority to change the
Plaintiff’s average weekly wage since any mistake by the parties
in its calculation was a mistake of law, not of fact and,
therefore, not subject to rescission.
Rescission of a workers’ compensation settlement agreement,
such as a Form 21, is governed by N.C. Gen. Stat. § 97-17, which
provides, in pertinent part, as follows:
No party to any agreement for compensation
approved by the Commission shall deny the
truth of the matters contained in the
settlement agreement, unless the party is
able to show to the satisfaction of the
Commission that there has been error due to
fraud, misrepresentation, undue influence or
mutual mistake, in which event the
Commission may set aside the agreement.
Except as provided in this subsection, the
decision of the Commission to approve a
settlement agreement is final and is not
subject to review or collateral attack.
N.C. Gen. Stat. § 97-17(a) (2011) (emphasis added). The
foregoing provision “provides the Commission with the authority
to set aside a Form 21 Agreement entered into upon a mutual
mistake of fact.” Foster v. Carolina Marble & Tile Co., Inc.,
-8-
132 N.C. App. 505, 508-09, 513 S.E.2d 75, 78 (1999) (citing N.C.
Gen. Stat. § 97-17) (emphasis added). “A mistake of law,
however, unless accompanied by fraud, misrepresentation, undue
influence, or abuse of a confidential relationship, ‘does not
affect the validity of a contract.’” Id. at 509, 513 S.E.2d at
78 (citation omitted). In Swain, we addressed the issue of
whether the Commission should have set aside a Form 21 agreement
on grounds of an “alleged error in the Agreement relat[ing] to
the computation of the [claimant’s] ‘average weekly wages.’”
Swain, 126 N.C. App. at 335, 484 S.E.2d at 848. We held the
following:
The determination of the plaintiff’s
“average weekly wages” requires application
of the definition set forth in the Workers’
Compensation Act, N.C.G.S. § 97-2(5) (1991),
and the case law construing that statute and
thus raises an issue of law, not fact. See
Lawrence v. Tise, 107 N.C. App. 140, 145,
419 S.E.2d 176, 179 (1992) (legal issue
presented where resolution of issue requires
application of fixed rules of law); Craft v.
Bill Clark Construction Co., 123 N.C. App.
777, 780, 474 S.E.2d 808, 810-11 (not always
appropriate to deduct expenses incurred in
earning those wages in computing “average
weekly wages”), disc. rev. denied, 345 N.C.
179, 479 S.E.2d 203 (1996). Because there is
no evidence of fraud, misrepresentation,
undue influence or abuse of a confidential
relationship, any mistake made by either or
both of the parties to the Agreement in the
computation of the “average weekly wages” is
not a basis for setting it aside.
-9-
Id. In Foster, we construed Swain as standing for the
proposition that where “the parties needed to look to the Act,
as well as the caselaw [sic] construing the Act, in order to
determine the correct amount of the plaintiff’s average weekly
wages, . . . the issue [was] one of law, not fact.” Foster, 132
N.C. App. at 509, 513 S.E.2d at 78.
Here, the Full Commission expressly found that the average
weekly wage figure of $689.21 set forth in the original Form 21
agreement had been calculated by (1) dividing Plaintiff’s
earnings for the prior 52 weeks by 365 and then (2) multiplying
the quotient by 7. The Commission further found that our
General Statutes – specifically, N.C. Gen. Stat. § 97-2(5) – do
not provide for the calculation of the average weekly wage to be
made in the manner that had been employed in the original Form
21 agreement, but instead require that the calculation be made
by dividing Plaintiff’s earnings for the previous 52 weeks by
52, which, in this case, would yield a quotient of $691.11.
Applying Swain, we conclude that the alleged error in
computing Plaintiff’s average weekly wages on the parties’ Form
21 agreement constituted an error of law, not of fact. As
reflected in the Commission findings, the Commission’s review of
the purported computational error, as well as the propriety of
-10-
the method which had produced that error, required reference to,
and construction of, the provisions of our General Statutes.
The nature of this inquiry clearly reveals the asserted error as
one of law. Accordingly, we hold that based on the precedent of
this Court, the Commission erred in setting aside the original
Form 21 agreement. Swain, 126 N.C. App. at 335, 484 S.E.2d at
848; Foster, 132 N.C. App. at 509, 513 S.E.2d at 78.1
Plaintiff alternatively argues that the Full Commission was
not actually rescinding the parties’ agreement in Form 21
agreement concerning the average weekly wage figure, but rather
enforcing a contractual provision therein that provides that the
average weekly wage figure is “subject to verification.” To the
extent that the Full Commission was merely enforcing this
verification provision, we believe that our analysis in Swain
does not apply because, as we noted in Pruett v. Pruett Floor
Coverings, 2004 WL 383281 (N.C. App. 2004) (unpublished), after
1
We note that the Commission cites Bond, 139 N.C. App. 123, 532
S.E.2d 583 (2000), in its opinion and award as supportive of its
decision to reform the Form 21 agreement. The procedural
posture presented in Bond, however, renders that case
inapplicable. In Bond, the plaintiff appealed to this Court,
assigning error to the computational method used by the
Commission in its opinion and award from which the plaintiff was
appealing. Id. at 127, 532 S.E.2d at 586. Here, Plaintiff is
not appealing from an opinion and award in which the allegedly
erroneous computation was made; rather, Plaintiff has raised the
alleged error in order to invalidate the original Form 21
agreement.
-11-
Swain was decided, the verification provision was not made part
of the standard Form 21 agreement until after Swain.2 In other
words, the standard Form 21 which was analyzed by this Court in
Swain did not contain the verification provision.
In the present case, Defendant essentially argues that the
parties do not have the right to seek verification of the
average weekly wage under the verification provision of the Form
21 agreement once the agreement has been approved by the Full
Commission.3 The Form 21 agreement does not specify any time by
which either party seeking verification of the average weekly
wage figure must request such verification. Our Supreme Court
has held that when a contract does not specify a time by which
some duty or right therein is to be performed or exercised, “a
reasonable time will be implied as a matter of law.” Colt v.
Kimball, 190 N.C. 169, 173, 129 S.E. 406, 409 (1925) (holding
that under a contract to deliver goods, and no time of delivery
2
The revised Form 21 also provides that the parties to an
agreement may agree to waive the “subject to verification”
language.
3
We note that in Pruett we held that the parties had the right
to request the Full Commission to “verify” the average weekly
wage figure contained in a Form 21 agreement. Pruett, 2004 WL
383281, at *5 (noting that “[t]he present printed Form 21
explicitly states that the listed wage is “subject to
verification”). However, it does not appear that either party
in that case raised the argument raised by Defendant in this
case, as we did not address the argument.
-12-
is specified, delivery must be made within a “reasonable time”);
see also Trust Co. v. Ins. Co., 199 N.C. 465, 154 S.E. 743(1930) (holding that where a policyholder had the right to seek
reinstatement of his policy, “[i]f no time for the performance
of an obligation is agreed upon by the parties, then the law
prescribes that the act must be performed within a reasonable
time”); Lewis v. Allred, 249 N.C. 486, 106 S.E.2d 689 (1959)
(holding that where a contract to sell land does not specify a
closing date, “the law implies that it will be done within a
reasonable time”). Following these principles, we hold that a
party to a Form 21 agreement which contains a verification
provision but no provision regarding the time by which
verification must be sought cannot assert a right to seek
verification once a “reasonable time” has passed.
In Colt, our Supreme Court stated that what constitutes a
“reasonable time” is “generally a mixed question of law and
fact, and, therefore, for the [fact-finder], but when the facts
are simple and admitted, and only one inference can be drawn, it
is a question of law.” 190 N.C. at 174, 129 S.E. at 409. The
Court, further stated that “[w]here the delay is so great as to
support only one inference in the minds of all reasonable
-13-
persons, then it is clearly the duty of the [court] to declare
it unreasonable as a matter of law.” Id.In the present case, the findings made by the Full
Commission – the finder of fact in this case – and the record on
appeal reveal that the parties entered into the Form 21
agreement; the Form 21 agreement was approved by the Full
Commission in November 2007; Defendant tendered and Plaintiff
accepted benefits based on the average weekly wage calculation
in the Form 21 agreement; and Plaintiff did not file any request
with the Full Commission seeking verification of the calculation
of her average weekly wage until her attorney filed an Amended
Form 18 in August 2011.
Generally, the determination as to what constitutes a
reasonable time would be a question to be resolved by the Full
Commission, as the finder of fact. However, in this case, we
believe that Plaintiff waited an unreasonable amount of time to
seek verification, as a matter of law. We believe that, under
the facts of this case, by August 2011 – being more than three
and one half years after the initial benefits had been tendered
and accepted and the Form 21 agreement had been approved by the
Full Commission - neither party had the right to seek
verification. Accordingly, we hold that, with respect to any
-14-
claim for benefits arising out of the August 2006 accident,
Plaintiff’s average weekly wage is deemed to be $689.21 as
agreed upon by the parties in their Form 21 agreement.
C. Additional Medical Treatment
Defendant further argues that the Commission erred in
allowing Plaintiff’s claim for additional benefits relating to
her 2006 injury, contending that her claim for additional
benefits was time-barred by either N.C. Gen. Stat. § 97-25.1 or
N.C. Gen. Stat. § 97-47. We disagree.
N.C. Gen. Stat. § 97-25.1 imposes, in pertinent part, the
following limitation upon a claimant’s right to seek medical
compensation:
The right to medical compensation shall
terminate two years after the employer’s
last payment of medical or indemnity
compensation unless, prior to the expiration
of this period, . . . the employee files
with the Commission an application for
additional medical compensation which is
thereafter approved by the Commission[.]
N.C. Gen. Stat. § 97-25.1 (2011).
Moreover, although N.C. Gen. Stat. § 97-47 authorizes the
Commission to increase the amount of workers’ compensation
benefits previously awarded to a claimant where there is “a
change in condition” – which “[o]ur case law defines . . . as a
condition occurring after a final award of compensation that is
-15-
‘different from those existent when the award was made’ [and
that] results in a substantial change in the physical capacity
to earn wages,” Pomeroy v. Tanner Masonry, 151 N.C. App. 171,
179, 565 S.E.2d 209, 215 (2002) (quoting Weaver v. Swedish
Imports Maintenance, Inc., 319 N.C. 243, 247, 354 S.E.2d 477,
480 (1987)) – the Commission’s authority to review an award for
a change of condition is expressly limited by the statute’s
mandate that “no such review shall be made after two years from
the date of the last payment of compensation pursuant to an
award . . . .” N.C. Gen. Stat. § 97-47 (2011).
The issues thus are (1) the date on which Defendant made
its last payment of medical or indemnity compensation on
Plaintiff’s behalf; and (2) whether Plaintiff filed her request
for additional medical benefits within two years of that date.
1. Defendant’s Last Medical or Indemnity Payment
The record reveals that Defendant made the last indemnity
payment on 6 December 2007, which was more than two years prior
to the date on which Plaintiff filed her claim for additional
benefits, in November 2010, when she filed her Form 18M. With
respect to Defendant’s last medical payment, the Commission’s
opinion and award includes the following pertinent finding of
fact and conclusion of law:
-16-
[Finding of fact] 15. On January 20, 2009,
Defendant last paid $556.80 to Armstrong &
Armstrong, a rehabilitation company, for
rehabilitative services in Plaintiff’s
claim.
. . . .
[Conclusion of law] 7. Rehabilitation
services, including nurse case management
services, are a form of “medical
compensation” under the statutory definition
of that term. See N.C. Gen. Stat. § 97-
2(19).
Defendant does not dispute that it tendered a payment to
Armstrong & Armstrong, Inc. (A&A) on 20 January 2009 on
Plaintiff’s behalf. Rather, Defendant contends that, given the
nature of the services provided by A&A in connection with
Plaintiff’s claim, this payment did not constitute a payment of
“medical compensation” within the meaning of the North Carolina
Workers’ Compensation Act, and that the last medical payment was
in fact made on 11 November 2008, slightly more than two years
before Plaintiff filed her Form 18M with the Commission.
Defendant points to evidence presented before the Commission
indicating that A&A merely provided medical case management
services – as opposed to actual medical treatment or other
services that could be properly characterized as “effecting a
cure or giving relief” to Plaintiff’s medical condition – and
that, in the instant case, the “sole purpose” of A&A’s
-17-
involvement was to schedule a single medical appointment on
Plaintiff’s behalf.
The relevant provision of our General Statutes defines
“medical compensation” as follows:
The term “medical compensation” means
medical, surgical, hospital, nursing, and
rehabilitative services, including, but not
limited to, attendant care services
prescribed by a health care provider
authorized by the employer or subsequently
by the Commission, vocational
rehabilitation, and medicines, sick travel,
and other treatment, including medical and
surgical supplies, as may reasonably be
required to effect a cure or give relief and
for such additional time as, in the judgment
of the Commission, will tend to lessen the
period of disability[.]
N.C. Gen. Stat. § 97-2(19) (2011). We note our General
Assembly’s employment of the language “but not limited to” as
indicative of its intent to set out a non-exhaustive list of
what might constitute “rehabilitative services” in this context
while affording some room for judicial augmentation. We also
note that a narrow construction of this provision would
undermine the oft-stated and axiomatic principle mandating that
the workers’ compensation provisions of our General Statutes be
construed liberally in the claimant’s favor. Hollin v. Johnston
County Council on Aging, 181 N.C. App. 77, 84, 639 S.E.2d 88, 93
(2007) (“It is well established in North Carolina that the
-18-
Workers’ Compensation Act should be liberally construed and that
[w]here any reasonable relationship to employment exists, or
employment is a contributory cause, the court is justified in
upholding the award as arising out of employment.”). Bearing
these principles in mind, while every expense paid might not be
considered “medical compensation” under N.C. Gen. Stat. § 97-
2(19), we believe that the services provided by A&A in the
present case do fall within the statute’s ambit. While it is
true that A&A did not provide “treatment” or “rehabilitative
services” to Plaintiff in the conventional sense, its role as an
administrative intermediary was necessary to ensure that
Plaintiff received the treatment determined to be appropriate by
the Commission in order to “effect a cure or give relief for”
Plaintiff’s compensable back injury. N.C. Gen. Stat. § 97-
2(19). We, therefore, hold that Defendant last provided
“medical compensation” for Plaintiff’s 2006 injury when it
tendered its payment to A&A on 20 January 2009.
2. Plaintiff’s Request for Additional Benefits
The sole remaining issue is whether Plaintiff filed her
request for additional benefits within two years of 20 January
2009. The Commission found that Plaintiff filed her Form 18M on
6 October 2010. However, Defendant states in its brief that
-19-
Plaintiff filed her Form 18M on 16 November 2010 and that it was
received by the Commission on 23 November 2010. In either
case, given our conclusion that Defendant’s 20 January 2009
payment to A&A constituted the last medical payment, we hold
that Plaintiff timely filed her claim for additional benefits.
In light of our resolution of the issue concerning the
Commission’s modification of the Form 21 agreement, however, we
modify the amount of temporary total disability due to Plaintiff
for the periods of her disability from 2008-2010 as set forth in
our Conclusion below.
III. Conclusion
We vacate paragraph 1 of the Full Commission’s 30 May 2013
opinion and award modifying the average weekly wage figure in
the Form 21 agreement from $689.21 to $691.11; vacate paragraph
2 of the Full Commission’s opinion and award directing Defendant
to pay Plaintiff an additional $18.90 for her initial period of
disability in 2006; and we reverse paragraph 4 of the Full
Commission’s opinion and award to the extent that it establishes
the amount of Plaintiff’s temporary total disability
compensation award for her periods of disability between 2008
and 2010 at $460.76 per week, a figure based on the “modified”
average weekly wage, and we modify this amount to $459.50 per
-20-
week, the figure agreed upon by the parties in the original Form
21 agreement. We affirm the Full Commission’s opinion and award
in all other respects.
AFFIRMED IN PART; VACATED IN PART; REVERSED AND MODIFIED IN
PART.
Judges STROUD and HUNTER, JR. concur.