Heard in the Court of Appeals January 23, 2014.
From the Industrial Commission. I.C. No. 675930.
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. Judges STROUD and HUNTER, JR. concur.
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.
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 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.
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.
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:
(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 ...