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Gonzalez v. Tidy Maids, Inc.

Court of Appeals of North Carolina

March 3, 2015

PRISILA GONZALEZ, Employee, Plaintiff,
v.
TIDY MAIDS, INC., Employer, ERIE INSURANCE GROUP, Carrier, Defendants

Heard in the Court of Appeals May 7, 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

The Bricio Law Firm, P.L.L.C., by Francisco J. Bricio, for plaintiff-appellee.

McAngus, Goudelock & Courie, PLLC, by Laura Carter and Cassie M. Keen, for defendants-appellants.

GEER, Judge. Judges BRYANT and CALABRIA concur.

OPINION

Appeal by defendants from opinion and award entered 18 October 2013 by the North Carolina Industrial Commission.

GEER, Judge.

Defendants Tidy Maids, Inc. and its workers' compensation insurance carrier, Erie Insurance Group, appeal an opinion and award of the Full Commission reinstating disability compensation to plaintiff Prisila Gonzalez retroactively from 1 August 2011 and granting plaintiff's request for compensation for medical treatment related to pain in her back and her shoulder. Defendants primarily argue that they successfully rebutted the evidentiary presumption under Parsons v. Pantry, Inc., 126 N.C.App. 540, 485 S.E.2d 867 (1997), which provides that a plaintiff is entitled to a presumption that her current discomfort and related medical treatment are directly related to her compensable injuries (" the Parsons presumption" ).

Because, however, defendants presented no evidence suggesting that the pain and discomfort for which plaintiff now seeks compensation is unrelated to injuries the defendants accepted as compensable in 2010, we hold that defendants have failed to rebut the Parsons presumption. We find defendants' remaining arguments equally unpersuasive and affirm the opinion and award.

Facts

The following facts are undisputed. Plaintiff was born 13 January 1963 and has a sixth grade education received in Mexico. She speaks only a little English. Prior to her employment as a housekeeper with Tidy Maids, plaintiff worked as a housekeeper in hotels, homes, and offices and in the kitchen of a Bojangles.

On 10 September 2010, plaintiff was involved in a car accident while traveling from Tidy Maids' office to a job site. She sustained injuries to her head, neck, back, and right shoulder, and she suffered headaches and vertigo. On 29 September 2010, plaintiff gave notice of her injuries to her employer by filing a Form 18 " Notice of Accident." On 13 October 2010, defendants filed a Form 63, " Notice to Employee of Payment of Compensation Without Prejudice." Defendants commenced paying compensation at $155.00 per week beginning 13 September 2010. Plaintiff has not worked since the accident.

On 1 August 2011, defendants filed a Form 24, " Application to Terminate or Suspend Payment of Compensation," alleging that " plaintiff is no longer disabled . . . as she has no restrictions on her ability to work at this time." On 7 November 2011, a special deputy commissioner granted defendants' Form 24 request, and defendants immediately ceased payments to plaintiff. On 10 January 2012, plaintiff filed a Form 33, " Request that Claim be Assigned for Hearing." On 19 January 2012, defendants filed a Form 33R, " Response to Request that Claim be Assigned for Hearing," arguing that plaintiff's claim should not be heard because the Form 33 request was untimely. Nonetheless, plaintiff's claim was heard before a deputy commissioner on 3 April 2012.

On 16 July 2012, plaintiff filed a Form 23, " Application for Reinstatement of Disability Compensation." The deputy commissioner granted defendants' Form 24 request and denied plaintiff's Form 23 request in an opinion and award filed 15 February 2013. Plaintiff appealed the deputy commissioner's decision to the Full Commission.

The Full Commission entered an opinion and award reversing the deputy commissioner's decision and entering an award in plaintiff's favor. The Full Commission's opinion and award made the following findings of fact. Plaintiff was injured in a car accident " while on the job" for defendant Tidy Maids on 10 September 2010.

Plaintiff first sought treatment, in September 2010, from Dr. Jeffrey Gerdes, a chiropractor, for neck pain, right shoulder pain with numbness to the right elbow, mid and low back pain, and headaches. Subsequently, in October 2010, she began receiving treatment from Dr. Kapil Rawal, a neurologist, upon referral from the defendant carrier. At that time, plaintiff complained of neck pain, back pain, pain from the shoulder down into the right arm, pain in the right leg, and headaches associated with stabbing pain, nausea, and vomiting on occasions. Dr. Rawal diagnosed plaintiff with neck sprain/strain, lumbar sprain/strain, post traumatic headache, dizziness, insomnia, and thoracic sprain/strain.

On 13 October 2010, defendants filed a Form 63 and began making payments to plaintiff without prejudice for the September 2010 accident, acknowledging that plaintiff's injuries included " 'neck, back, headache, vertigo, [and] rt [sic] shoulder.'" However, defendants subsequently failed to file a Form 61 denying the compensability of plaintiff's claim. As ...


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