Powe v. Centerpoint Human Servs. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1410
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
MARY FRANCES POWE,
Employer,
Plaintiff,
v. North Carolina
Industrial Commission
CENTERPOINT HUMAN SERVICES, I.C. No. 150598
Employer,
BRENTWOOD SERVICES,
Carrier,
Defendants.
Appeal by Plaintiff from Opinion and Award entered 1
November 2013 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 10 April 2014.
Law Offices of Kathleen G. Sumner by Kathleen G. Sumner,
for plaintiff-appellant.
Rudisill White & Kaplan, P.L.L.C. by Stephen Kushner, for
defendants-appellees.
STROUD, Judge.
Mary Powe (“plaintiff”) appeals from an order and award
entered by the Full Commission concluding that she was not
-2-
disabled and denying her temporary total disability benefits. We
affirm.
I. Procedural History
This case is now on its fourth trip to this Court. The
factual background to the case and its procedural history
through 2013 have been more than adequately discussed in the
prior three opinions: Powe v. Centerpoint Human Services, 183
N.C. App. 300, 644 S.E.2d 269, 2007 WL 1412447 (2007)
(unpublished), disc. rev. denied, 362 N.C. 237, 659 S.E.2d 738(2008), Powe v. Centerpoint Human Services (Powe II), 215 N.C.
App. 395, 715 S.E.2d 296 (2011), disc. rev. denied, ___ N.C.
___, 721 S.E.2d 230 (2012), and Powe v. Centerpoint Human
Services (Powe III), ___ N.C. App. ___, 742 S.E.2d 218 (2013).
In Powe III, we remanded to allow the Commission to make
findings and conclusions on whether plaintiff was disabled
during the relevant time periods. Powe III, ___ N.C. App. at
___, 742 S.E.2d at 223. On remand, the Commission made a number
of relevant findings concerning plaintiff’s medical history,
vocational efforts, and treatment. It found that plaintiff is
capable of at least some work, but has failed to conduct a
reasonable job search. Based on these findings, it concluded
that plaintiff failed to show that she was disabled and denied
-3-
her an award of temporary total disability benefits. Plaintiff
timely appealed to this Court.
II. Disability
Plaintiff argues that the Full Commission erred in denying
her temporary total disability benefits because it impermissibly
shifted the burden to her to show that she was disabled. She
further argues that the Commission erred by readdressing the
issue of vocational rehabilitation in violation of this Court’s
mandate. We disagree.
A. Standard of Review
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. This
Court’s duty goes no further than to
determine whether the record contains any
evidence tending to support the finding. If
supported by competent evidence, the
Commission’s findings are conclusive, even
if the evidence might also support contrary
findings. The Commission is the sole judge
of the credibility of the witnesses and the
weight to be given their testimony. The
Commission’s conclusions of law are reviewed
de novo.
Powe III, ___ N.C. App. at ___, 742 S.E.2d at 221 (citations,
quotation marks, and brackets omitted).
B. Analysis
-4-
First, plaintiff argues that the Commission erred by
requiring her to prove that she was disabled when there was a
prior order awarding disability compensation that was not
appealed. She contends that when the Full Commission affirmed
the Deputy Commissioner’s order awarding her temporary total
disability compensation from 29 April 2004 to 25 October 2004,
it implicitly found that she was disabled. She reasons that she
is therefore entitled to a presumption of disability.
[A] presumption of disability in favor of an
employee arises only in limited
circumstances. First, the employer and
employee may execute a Form 21, Agreement
for Compensation for Disability, that
stipulates to a continuing disability and is
subsequently approved by the Industrial
Commission. Second, the employer and
employee may execute a Form 26, Supplemental
Agreement as to Payment of Compensation,
that stipulates to a continuing disability
and is later approved by the Commission.
Third, an employee may prove to the
Industrial Commission the existence of a
disability.
Johnson v. Southern Tire Sales and Service, 358 N.C. 701, 706,
599 S.E.2d 508, 512 (2004) (citations omitted).
A plaintiff is only entitled to a presumption of disability
under the third circumstance “[a]fter plaintiff meets her
initial burden.” Radica v. Carolina Mills, 113 N.C. App. 440,
447, 439 S.E.2d 185, 190 (1994). Thus, it is only “once the
-5-
disability is proven [that] there is a presumption that it
continues . . . .” Watson v. Winston-Salem Transit Authority, 92
N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988) (emphasis added).
Defendants filed a Form 60, admitting a compensable
injury. But filing a Form 60 and paying disability benefits
pursuant thereto does not admit that plaintiff was or remains
disabled. Powe III, ___ N.C. App. at ___, 742 S.E.2d at 222.
Filing a Form 60 and paying benefits therefore does not create a
presumption of disability. Id. Although the Full Commission,
by its 2006 Order and Award, required defendants to reinstate
disability benefits for a discrete time period, they did so on
the basis of the Form 60, not on a finding of disability—which
had not been contested at that point. Plaintiff has never proven
disability and the burden of proof remains hers.
Indeed, this Court specifically held in Powe III that “once
the continuing status of Plaintiff’s disability was disputed, it
became Plaintiff’s burden to prove that she remained disabled.”
Id. Thus, this Court has already considered the burden issue
under the facts of this case and held that it is plaintiff’s
burden to prove disability. That holding is binding on us both
as the law of the case and as the published decision of another
panel of this Court. North Carolina Nat. Bank v. Virginia
-6-
Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983)
(“Once an appellate court has ruled on a question, that decision
becomes the law of the case and governs the question not only on
remand at trial, but on a subsequent appeal of the same case.”);
In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)
(“Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the
same court is bound by that precedent, unless it has been
overturned by a higher court.”).
Plaintiff asserts that “any statement by the Powe III Court
indicating that the burden remains upon Ms. Powe to prove her
disability is clearly obiter dictum.” As discussed above, this
Court’s holding in Powe III directly addressed the issue of
which party should bear the burden of proof. We held that the
Commission erred in assuming disability because no presumption
arose from the filing of a Form 60. This determination was
necessary to the Court’s disposition of the case. It was not, in
any sense, obiter dictum. The Court’s central holding in Powe
III therefore remains binding. The Commission did not err by
following the holding of this Court and placing the burden of
proving disability on plaintiff.
-7-
Plaintiff next asks this Court to vacate the present Order
and Award because the Full Commission “deleted” various findings
of fact from prior orders and modified others in the present
order. She contends that by making various findings relating to
vocational rehabilitation at variance with its prior findings on
those issues that we have upheld, the Full Commission violated
the law of the case doctrine.
Plaintiff ignores that the only issue to be considered on
remand was disability, not compliance with vocational
rehabilitation. The Full Commission properly limited itself to
addressing the disability issue rather than readdressing the
issue of plaintiff’s compliance with rehabilitation. We noted in
Powe III that “[i]f the Commission determines that Plaintiff has
not met her burden of proving disability during the contested
periods, then the issues regarding Plaintiff’s cooperation with
vocational rehabilitation efforts will be moot.” Powe III, ___
N.C. App. at ___, 742 S.E.2d at 223. On remand, the Full
Commission concluded, with one dissent, that plaintiff was not
disabled, so its findings on vocational rehabilitation efforts
were irrelevant. See id. Rather than ignoring the prior
opinions of this Court or the law of the case, the Industrial
-8-
Commission scrupulously followed our instructions in Powe III.
Therefore, plaintiff’s second argument is without merit.
III. Constitutional Arguments
Plaintiff also raises a number of constitutional arguments
related to the Industrial Commission’s decision to split costs
between her and defendant. She contends that forcing her to pay
$110 in costs violated her rights to substantive and procedural
due process, and to equal protection under the United States
Constitution. She argues that the Worker’s Compensation statutes
are constitutionally inadequate because they do not provide a
mechanism by which indigent claimants can proceed in forma
pauperis or by which costs may be waived. There is absolutely no
evidence in the record that plaintiff has ever raised this issue
before the Industrial Commission.1 We have held innumerable
times, including in Powe II, that “a constitutional question
which is not raised and passed upon in the trial court will not
ordinarily be considered on appeal.” Powe II, 215 N.C. App. at
1
Admittedly, the lack of a transcript in the record makes it
difficult to say with certainty that this issue has never been
raised. But it is the appellant’s burden to show that the record
reflects that she has properly preserved the issues raised on
appeal. See Hill v. Hill, 173 N.C. App. 309, 322, 622 S.E.2d
503, 512 (2005) (noting that “an appellant has the duty to
ensure the record and complete transcript are properly prepared
and transmitted to this Court” and holding that an issue was not
preserved where preservation was not apparent from the record).
-9-
412 n.3, 715 S.E.2d at 307 n.3 (citation and quotation marks
omitted). Plaintiff has not preserved this issue for our review
and we will not address it.
IV. Conclusion
For the foregoing reasons, we hold that the Commission did
not err in concluding that plaintiff has failed to prove that
she is disabled. Plaintiff did not preserve her arguments
concerning the fees, so we do not address them. As a result, we
affirm the 1 November 2013 Order and Award in full.
AFFIRMED.
Judges HUNTER, JR., Robert N. and DILLON concur.
Report per Rule 30(e).