Cromartie v. Goodyear Tire & Rubber Co. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-519
No. COA21-236
Filed 2 August 2022
North Carolina Industrial Commission, No. 14-023351
GERALDINE M. CROMARTIE, Employee, Plaintiff,
v.
GOODYEAR TIRE & RUBBER COMPANY, INC., Employer, LIBERTY MUTUAL
INSURANCE COMPANY, Carrier, Defendants.
Appeal by Defendants from opinion and award entered 24 November 2020 and
order entered 23 December 2020 by the Full Commission of the North Carolina
Industrial Commission. Heard in the Court of Appeals 8 March 2022.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner and David P.
Stewart, and Jay A. Gervasi, Jr., for Plaintiff-Appellee.
Young Moore and Henderson, P.A., by Angela Farag Craddock, for Defendants-
Appellants.
INMAN, Judge.
¶1 A tire manufacturing company and its insurance carrier (collectively,
“Defendants”) appeal from an order of the Full Commission of the North Carolina
Industrial Commission (the “Full Commission”) denying their application to
terminate compensation payments to an employee after paying her temporary
disability over the last eight years because she sustained an injury to her hand in the
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course of her employment. Defendants argue the Full Commission: (1) failed to
address whether the employee presented competent evidence to support a finding of
total disability as a result of her work injury; and (2) erred in concluding the
alternative position was not suitable employment for the employee. After careful
review of the record and our precedent, we remand the opinion and award of the Full
Commission for additional findings.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 The record below discloses the following:
¶3 Plaintiff-Appellee Geraldine M. Cromartie (“Ms. Cromartie”) had worked for
Defendant-Appellant Goodyear Tire and Rubber Co. (“Goodyear”) for over 16 years
as a machine operator in Goodyear’s tire production facility in Fayetteville, North
Carolina when she injured her hand on 30 May 2014. While performing her duties
as a machine operator, Ms. Cromartie sustained a severe laceration to her right hand,
requiring sutures. She developed a painful raised scar that did not heal.
¶4 Ms. Cromartie initially received a medical recommendation to refrain from
work until 11 July 2014, so she was placed off-duty and began receiving temporary
total disability payments of $904.00 per week. Before her injury, Ms. Cromartie had
worked up to 42 hours per week and earned an average weekly wage of $1,413.33.
Ms. Cromartie returned to work in her machine operator position on schedule, with
no restrictions.
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¶5 After returning to work, Ms. Cromartie complained of continued pain and
swelling from her scar. Goodyear sent Ms. Cromartie to Doctor James Post (“Dr.
Post”). Dr. Post noted Ms. Cromartie experienced “knifelike pain” in the back of her
right hand when she attempted to grip anything with that hand. He determined Ms.
Cromartie had a “right thumb symptomatic hypertrophic scar with distal neuroma
formation of the branch of the radial sensory nerve.” Dr. Post recommended Ms.
Cromartie return to work with restrictions—no lifting anything greater than five
pounds and no forceful gripping for four weeks. On 21 July 2014, Goodyear placed
Ms. Cromartie out of work because Goodyear could not accommodate her work
restrictions. Goodyear reinstated Ms. Cromartie’s temporary disability compensation
at that time.
¶6 Ms. Cromartie returned to Dr. Post for treatment several times in August and
September and on 11 September 2014, Dr. Post performed a scar revision with
excision procedure on Ms. Cromartie’s right hand. Dr. Post recommended different
work restrictions: no lifting anything greater than five pounds and no pushing or
pulling greater than 40 pounds.
¶7 On 14 October 2014, Ms. Cromartie returned to a restricted duty assignment
teaching safety courses at Goodyear to accommodate her work restrictions. On 3
December 2014, Dr. Post modified her work restrictions once more: no lifting greater
than 15 pounds and no pushing or pulling greater than 40 pounds. He also ordered
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that Ms. Cromartie attend physical therapy sessions through 5 January 2015. Ms.
Cromartie returned to work light duty on 3 February 2015. As of 3 March 2015, Dr.
Post detected no significant improvement in Ms. Cromartie’s symptoms, noted a
diagnosis of “neuroma,” and ordered she complete a functional capacity evaluation
(“FCE”).
¶8 On 14 April 2015, Lauri Jugan, PT, (“Ms. Jugan”) conducted an FCE on Ms.
Cromartie but was unable to determine Ms. Cromartie’s functional capabilities
because she had “failed to give maximum voluntary effort.” On 21 April 2015, Dr.
Post determined Ms. Cromartie had reached maximum medical improvement and
rated her right upper extremity seven percent permanent partial disability. Noting
the inconclusive FCE, Dr. Post assigned Ms. Cromartie permanent work restrictions
of no lifting greater than 20 pounds and no repetitive forceful gripping or grasping.
Ms. Cromartie continued working in the light duty position, and Goodyear did not
offer her a different permanent position.
¶9 In May 2015, Goodyear and Ms. Cromartie entered into a Consent Agreement,
approved by the Deputy Commissioner, authorizing a one-time evaluation with
plastic surgeon Doctor Anthony DeFranzo (“Dr. DeFranzo”) and requiring Ms.
Cromartie to engage in a repeat FCE of her hand. Per the agreement, Defendants
acknowledged Ms. Cromartie “sustained a compensable injury by accident to her
right hand pursuant to [N.C. Gen. Stat. §] 97-18(b).” In August 2015, Dr. DeFranzo
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evaluated Ms. Cromartie, diagnosed her with complex regional pain syndrome, and
suggested sedentary work with no lifting over 10 pounds.
¶ 10 On 30 September 2015, Ms. Jugan repeated the FCE on Ms. Cromartie, and
determined, among other things, that Ms. Cromartie’s right hand was limited to 20
pounds lifting, 30 pounds pulling, 39 pounds pushing, and 12.5 pounds lifting above
the shoulder, demonstrating her capacity for a “[m]edium demand vocation.”
¶ 11 On 3 November 2015, Goodyear sent Ms. Cromartie for an independent
medical evaluation with Doctor Richard Ramos (“Dr. Ramos”). Dr. Ramos diagnosed
her with neuropathic pain of her right hand and symptoms of complex regional pain
syndrome and suggested she would benefit from pain management medication.
Goodyear reinstated temporary total disability compensation on 10 November 2015.
¶ 12 Ms. Cromartie continued treatment with Dr. Ramos and Dr. Post over the next
two years. In June 2017, Dr. Post reaffirmed he could not offer Ms. Cromartie further
medical treatment and maintained the same permanent work restrictions he had
previously prescribed. In the same month, Dr. Ramos determined Ms. Cromartie was
at maximum medical improvement and released her from his care.
¶ 13 Goodyear’s job-matching contractor identified a position in compliance with
Dr. Ramos’s work restrictions for Ms. Cromartie: “Production Service Truck
Carcasses” (“Carcass Trucker”). The position primarily consisted of driving a truck
to deliver parts of tires, referred to as “carcasses,” to and from building stations and
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storage over a 12-hour shift. In particular, the position required driving the truck for
12 hours, rarely lifting up to 25 pounds when carcasses fell from the trailer, and 30
pounds of force, which can be split between each hand by 15 pounds lifting and 15
pounds pushing, to replace the truck’s battery.
¶ 14 In February 2018, Goodyear requested Dr. Ramos review and approve the
position if he agreed the position was within Ms. Cromartie’s work restrictions. On
1 March 2018, Dr. Ramos approved the position for Ms. Cromartie, and on 6 March
2018, Goodyear formally offered Ms. Cromartie a job as Carcass Trucker. She refused
the offer. On 16 March 2018, Defendants filed a “Form 24 Application to Terminate
or Suspend Payment of Compensation” with the Industrial Commission, asserting
Ms. Cromartie unjustifiably refused suitable employment.
¶ 15 On 29 March 2018, Ms. Cromartie returned to Dr. DeFranzo, the plastic
surgeon who had evaluated her three years earlier, with a Workers’ Compensation
Medical Status Questionnaire. Dr. DeFranzo assigned permanent restrictions of
“light duty” and “sedentary” work that required Ms. Cromartie not to lift more than
10 pounds. On 26 April 2018, the Special Deputy Commissioner denied Defendants’
Form 24 application, concluding Ms. Cromartie was justified in refusing the Carcass
Trucker position in part because it did not fall within the sedentary work limitations
assigned by Dr. DeFranzo. Defendants appealed the order denying suspension of Ms.
Cromartie’s benefits and contested Ms. Cromartie’s disability.
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¶ 16 Upon Goodyear’s request, on 26 September 2018, Ms. Cromartie underwent an
additional examination with Doctor Marshall Kuremsky (“Dr. Kuremsky”). Dr.
Kuremsky “subjectively” believed Ms. Cromartie could return to work without
restrictions after confirmation from a third FCE and that she could perform the
Carcass Trucker position. Based on Dr. Kuremsky’s recommendation, Goodyear
again offered Ms. Cromartie the position of Carcass Trucker on 2 October 2018. Ms.
Cromartie again refused the position.
¶ 17 One month later, on 5 November 2018, Goodyear approved Ms. Cromartie’s
application for medical retirement. Ms. Cromartie was eligible for medical
retirement because she had already qualified for Social Security Disability.
¶ 18 In February 2019, Defendants’ appeal of the Special Deputy Commissioner’s
order came before the Deputy Commissioner for an evidentiary hearing. The Deputy
Commissioner filed an opinion and award on 10 January 2020, concluding that Ms.
Cromartie was disabled following her receipt of Social Security Disability benefits
and Goodyear’s negotiated pension disability plan. The Deputy Commissioner gave
“great weight” to the medical opinion of Dr. DeFranzo, compared to the opinions of
the other medical experts, and his recommendation that Ms. Cromartie should be
limited to sedentary work and concluded the Carcass Trucker position was not
suitable employment for Ms. Cromartie. Defendants appealed to the Full
Commission.
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¶ 19 Following a hearing on 16 June 2020, the Full Commission filed its opinion
and award on 24 November 2020. The Full Commission afforded the greatest weight
to the expert opinion of treating surgeon Dr. Post and found that (1) Ms. Cromartie
had reached maximum medical improvement on 21 April 2015 and (2) her permanent
work restrictions were those assigned by Dr. Post on that date, including no lifting
over 20 pounds with her right arm and no repetitive forceful gripping or grasping
with her right hand. The Full Commission found and then concluded that the Carcass
Trucker position “is outside of [Ms. Cromartie]’s permanent restrictions because on
its face, without any of the modifications explained . . . , the job requires lifting over
20 pounds.” It further concluded the Deputy Commissioner properly denied
Defendants’ application to terminate compensation payments because Defendants
failed to demonstrate Ms. Cromartie “has the ability to earn pre-injury wages in the
same employment after reaching maximum medical improvement.”
¶ 20 On 4 December 2020, Defendants filed a motion for reconsideration, asserting
the Full Commission had failed to enter findings of fact and conclusions of law
addressing the issue of whether Ms. Cromartie remained totally disabled. The Full
Commission denied Defendants’ motion on 23 December 2020. Defendants appeal
the Full Commission’s opinion and award and its order denying their motion for
reconsideration to this Court.
II. ANALYSIS
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A. Standard of Review
¶ 21 In our review of an award from the Full Commission, we are limited to a
determination of “(1) whether the findings of fact are supported by competent
evidence, and (2) whether the conclusions of law are supported by the findings.”
McAuley v. N.C. A&T State Univ., 280 N.C. App. 473, 2021-NCCOA-657, ¶ 8 (citation
omitted). “As long as the Commission’s findings are supported by competent evidence
of record, they will not be overturned on appeal.” Rackley v. Coastal Painting, 153
N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002). The Commission’s “conclusions of
law are reviewable de novo.” Whitfield v. Lab. Corp. of Am., 158 N.C. App. 341, 348,
581 S.E.2d 778, 783 (2003) (citation omitted).
¶ 22 “[T]he Workers’ Compensation Act should be liberally construed, whenever
appropriate, so that benefits will not be denied upon mere technicalities or strained
and narrow interpretations of its provisions.” Booth v. Hackney Acquisition Co., 270
N.C. App. 648, 653, 842 S.E.2d 171, 175 (2020) (citation omitted).
B. Disability
¶ 23 As an initial matter, Ms. Cromartie alleges the issue of her disability is not yet
ripe. We disagree.
¶ 24 “[O]nce an injured employee reaches maximum medical improvement, either
party can seek a determination of permanent loss of wage-earning capacity.” Pait v.
Se. Gen. Hosp., 219 N.C. App. 403, 412, 724 S.E.2d 618, 625 (2012) (quotation marks
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and citation omitted). In Pait, this Court held that so long as competent evidence
before the Commission indicated that the worker’s condition had reached maximum
medical improvement, “the parties’ dispute as to the extent of plaintiff’s disability
and defendants’ liability therefor was ripe for the Commission’s hearing.” Id.¶ 25 In Finding of Fact 34, the Full Commission determined that Ms. Cromartie
had reached maximum medical improvement more than seven years ago, in April
2015. The issue of Ms. Cromartie’s disability became ripe for determination by the
Commission on the date she reached maximum medical improvement. See id. We
now address the merits of Defendants’ arguments.
1. Insufficient Findings about Ms. Cromartie’s Disability
¶ 26 Defendants assert the Full Commission erred in failing to determine Ms.
Cromartie’s total disability status. We agree and remand this matter to the
Commission to make necessary factual findings. The Full Commission, in its
discretion, may make additional findings based on the record before it or receive
additional evidence.
¶ 27 When reviewing workers’ compensation claims, “[t]he Full Commission must
make definitive findings to determine the critical issues raised by the evidence[.]”
Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 139, 502 S.E.2d 58, 61-62 (1998)
(quotation marks and citation omitted). “[W]hile the Commission is not required to
make findings as to each fact presented by the evidence, it is required to make specific
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findings with respect to crucial facts upon which the question of Plaintiff’s right to
compensation depends.” Powe v. Centerpoint Human Servs., 226 N.C. App. 256, 262,
742 S.E.2d 218, 222 (2013) (cleaned up). When “the question of [Plaintiff’s] disability
affects Plaintiff’s right to compensation, the Commission is required to make explicit
findings on the existence and extent of that disability when it is in dispute.” Id. If
the Full Commission fails to make specific findings of fact, we must remand the issue
to the Commission for a determination. See Johnson v. Southern Tire Sales & Serv.,
358 N.C. 701, 708, 599 S.E.2d 508, 513 (2004) (remanding the issue of disability to
the Commission “for the purpose of making adequate findings of fact”).
¶ 28 Our General Statutes define disability 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) (2021). To support an award of
disability compensation, an employee must prove:
(1) that plaintiff was incapable after his injury of earning
the same wages he had earned before his injury in the 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., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). An
employee may satisfy this burden in one of the following ways:
(1) the production of medical evidence that he is physically
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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. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)
(citations omitted). Once the employee has established the existence and extent of
disability, the burden shifts to the employer to demonstrate that it has offered the
employee suitable employment. See Smith v. Sealed Air Corp., 127 N.C. App. 359,
361, 489 S.E.2d 445, 446-47 (1997).
¶ 29 Defendants compare this case to Powe. In Powe, the employer acknowledged
that a compensable injury occurred and commenced payment of temporary total
disability, but the employer disputed “the continuing status of Plaintiff’s disability.”
226 N.C. App. at 261-62, 742 S.E.2d at 222. Though the issue of disability was before
the Full Commission, it made “insufficient factual findings” and “reached no
conclusions on the disputed question of disability.” Id. at 262, 742 S.E.2d at 222. We
remanded the case to the Full Commission to enter “explicit findings on the existence
and extent of [Plaintiff’s] disability.” Id. at 262, 264, 742 S.E.2d at 222-23.
¶ 30 In this case, like the employer in Powe, Goodyear has acknowledged that Ms.
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Cromartie had suffered a compensable injury and paid her temporary total disability.
However, like the employer in Powe, throughout “every level” of litigation, id. at 262,
742 S.E.2d at 222, Defendants have disputed whether Ms. Cromartie remained
totally disabled. Similar to the Full Commission in Powe, even though the critical
issue of disability was before the Full Commission in this case, the Commission made
no findings or conclusions about whether Ms. Cromartie remained disabled.1 Since
the question of Ms. Cromartie’s disability affects her right to compensation, the
Commission must make express findings about Ms. Cromartie’s disability status. See
id.
¶ 31 We remand to the Full Commission for it to enter “explicit findings on the
existence and extent of [Ms. Cromartie’s] disability[.]” Id.
1We note that while the Full Commission did not include explicit findings on the existence
or extent of Ms. Cromartie’s disability, the Deputy Commissioner did include findings and
conclusions of law regarding Ms. Cromartie’s disability in its decision:
5. . . . Based on the preponderance of the evidence, the
undersigned concludes that Employee has met her burden of
proving disability based upon the medical evidence in this as
well as the fact that she qualified for Social Security Disability
benefits and the defendant-employer’s negotiated Pension
Disability Plan, based upon the determination that she was
“permanently incapacitated” and “totally disabled.”
The Deputy Commissioner’s findings and conclusions are, however, superseded by the Full
Commission’s findings and conclusions. See Jenkins v. Piedmont Aviation Servs., 147 N.C.
App. 419, 427, 557 S.E.2d 104, 109 (2001) (“The deputy commissioner’s findings of fact are
not conclusive; only the Full Commission’s findings of fact are conclusive.” (citation omitted)).
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2. Suitability of Alternative Employment Position
¶ 32 Goodyear further asserts the Full Commission erred in determining the
Carcass Trucker position was not suitable employment for Ms. Cromartie. We
disagree.
¶ 33 We have defined suitable employment as “any job that a claimant is capable of
performing considering [her] age, education, physical limitations, vocational skills
and experience.” Griffin v. Absolute Fire Control, Inc., 269 N.C. App. 193, 200, 837
S.E.2d 420, 425 (2020) (citation omitted). “If an injured employee refuses suitable
employment . . . , the employee shall not be entitled to any compensation[.]” N.C.
Gen. Stat. § 97-32 (2021). The burden of proof is first on the employer “to show that
an employee refused suitable employment.” Wynn v. United Health Servs./Two
Rivers Health-Trent Campus, 214 N.C. App. 69, 74, 716 S.E.2d 373, 379 (2011)
(citation omitted). “Once the employer makes this showing, the burden shifts to the
employee to show that the refusal was justified.” Id. (citation omitted).
¶ 34 In its opinion and award, the Full Commission concluded, “Defendant-
Employer’s Production Service Truck Carcasses position, unless modified in several
aspects, is not within Plaintiff’s physical limitations. . . . and is therefore not suitable
post-MMI employment.” We hold the Full Commission’s findings support its
conclusion about the suitability of the Carcass Trucker position. See McAuley, ¶ 8.
¶ 35 Relying on Dr. Post’s testimony and giving less weight to the testimony from
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other doctors, the Full Commission found by a preponderance of the evidence that
“[Ms. Cromartie] reached [maximum medical improvement] on April 21, 2015 and
her permanent work restrictions are the restrictions assigned by Dr. Post on that
date, including no lifting over 20 pounds with her right arm and no repetitive forceful
gripping or grasping with her right hand.” The Full Commission determined the
demands of the Carcass Trucker position exceeded the restrictions prescribed by Dr.
Post:
[T]he Production Service Truck Carcasses position is
outside of [Ms. Cromartie]’s permanent restrictions
because on its face, without any of the modifications
explained by Mr. Murray or Ms. Flantos, the job requires
lifting over 20 pounds. Accordingly, the Full Commission
further finds that [Goodyear’s] March 16, 2018 Form 24
was properly disapproved because the job [Ms. Cromartie]
refused was not within her restrictions.
¶ 36 These findings were supported by competent evidence. See id. The Carcass
Trucker position required 12 hours of driving while gripping the steering wheel,
occasionally lifting 25 pounds, and pushing or pulling 30 pounds total. During his
testimony, Dr. Ramos noted the requirements of this position did not comply with Ms.
Cromartie’s permanent work restrictions. Both Dr. DeFranzo and Dr. Post testified
that they did not approve the Carcass Trucker position because it did not comply with
Ms. Cromartie’s permanent work restrictions. Despite Goodyear’s plea to the
contrary, we cannot reweigh the evidence. See Adams v. AVX Corp., 349 N.C. 676,
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681, 509 S.E.2d 411, 414 (1998) (“[T]his Court does not have the right to weigh the
evidence and decide the issue on the basis of its weight. The court’s duty goes no
further than to determine whether the record contains any evidence tending to
support the finding.” (quotation marks and citation omitted)); Deese v. Champion Int’l
Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000) (“The Commission is the sole
judge of the credibility of the witnesses and the weight to be given their testimony.”
(citation omitted)).
III. CONCLUSION
¶ 37 For the reasons set forth above, we remand to the Full Commission for further
findings not inconsistent with this opinion.
REMANDED.
Judges MURPHY and ARROWOOD concur.