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Harrison v. Gemma Power Systems, LLC

Supreme Court of North Carolina

June 9, 2017

KERRY RAY HARRISON, Employee
v.
GEMMA POWER SYSTEMS, LLC, Employer, TRAVELERS INSURANCE COMPANY, Carrier

          Heard in the Supreme Court on 22 March 2017.

         Appeal pursuant to N.C. G.S. § 7A-30(2) from the unpublished decision of a divided panel of the Court of Appeals, __ N.C.App. __, 786 S.E.2d 433 (2016), affirming an amended opinion and award filed on 4 March 2015 by the North Carolina Industrial Commission.

          Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson, for plaintiff-appellant.

          Orbock, Ruark & Dillard, P.C., by Jessica E. Lyles and Roger L. Dillard, Jr., for defendant-appellees.

          HUDSON, Justice.

         In the Court of Appeals, plaintiff employee challenged the Industrial Commission's determination that he is not entitled to any compensation for permanent partial disability under N.C. G.S. § 97-31. The Court of Appeals, in a divided opinion, affirmed the denial, and plaintiff appealed to this Court on the basis of the dissenting opinion. We reverse the decision of the Court of Appeals and remand this case for further proceedings.

         This summary of facts is based on the stipulations of the parties as well as the forms in the record and the unchallenged findings of fact in the most recent opinion and award filed on 4 March 2015. On 2 March 2001, plaintiff, a pipefitter, suffered a compensable accident and sustained injuries to his left upper leg, neck, and other areas of his body when a heavy valve fell on his head, while he was walking at his job site. Defendants, his employer at the time and its workers' compensation insurance carrier, accepted plaintiff's claim as compensable under the Workers' Compensation Act (Act). Plaintiff received medical treatment for his injuries for a period of several years, but defendants eventually refused to authorize additional medical treatment. Defendants have handled the claim as medical only from its onset, and plaintiff has never received indemnity payments.

         After his work-related accident, plaintiff immediately complained of neck pain and headaches, and he received prompt treatment from an authorized medical provider, who documented plaintiff's complaints of headaches and neck pain. Plaintiff was referred to chiropractor Larry Stogner for care. Plaintiff attempted to return to work for defendant employer by doing light duty tasks, but he was laid off on 22 April 2001. On 27 June 2001, Dixon Gerber, M.D., an orthopaedic surgeon, saw plaintiff for a second opinion examination and found that plaintiff "was at maximum medical improvement and had no permanent partial disability." Dr. Gerber's medical record also reflected plaintiff's impression that he "could probably return to work at any time." Dr. Gerber released plaintiff from treatment without restrictions as of 2 July 2001, four months after plaintiff's work-related accident.

         Defendant employer re-hired plaintiff but shortly thereafter terminated him for missing work and tardiness. After that, plaintiff worked for other employers, also as a pipefitter. Plaintiff testified that he had to stop working as a pipefitter in February 2003 because of his ongoing neck pain. Plaintiff then worked in other occupations until May 2009, and he received unemployment benefits when he was not working during that time. Plaintiff became a full-time community college student in May 2009.

         During the years after his work-related accident, plaintiff continued to have neck pain, and in October 2002, defendants referred him for an independent medical examination by Robert Lacin, M.D., at Goldsboro Neurological Surgery. Dr. Lacin opined that he "certainly ha[d] no doubt that [plaintiff's] symptoms are related to this incident of March 2, 2001."

         In December 2003, plaintiff began treatment with Hemanth Rao, M.D., at Neurology Consultants of the Carolinas. An MRI in November 2006 showed that plaintiff had evidence of a continuing injury, for which he was referred for a surgical opinion. Plaintiff received an independent medical evaluation from Alfred Rhyne, M.D., at OrthoCarolina in April 2009, after which Dr. Rhyne recommended another MRI. Dr. Rhyne later testified that if plaintiff had no complaints of pain or problems before his March 2001 workplace injury, that injury "precipitated the onset of his symptoms." Defendants did not authorize the MRI as recommended by Dr. Rhyne.

         Plaintiff subsequently received an MRI at the Veterans Affairs Medical Center in Fayetteville, North Carolina. A medical record from that facility dated 9 August 2010 diagnosed "[m]ultilevel cervical spondylosis seen in the lower cervical spine, most prominent at C5 and C6." Chiropractor Stogner, who had treated plaintiff since shortly after his injury, also opined that it was "more probable than not" that the 2 March 2001 workplace accident caused plaintiff's neck problems and stated that he does "not expect to see any significant improvement with [plaintiff's] injury status [as he] suspect[s] that [plaintiff's] condition is permanent."

         Defendants' last payment of medical compensation to plaintiff was on 18 May 2009. Plaintiff enrolled in college full time in May 2009, graduated with an associate's degree in May 2012, and at the time his case was heard before the deputy commissioner, was a full-time student pursuing a bachelor's degree in business. Plaintiff worked part time at a desk job while he was a student.

         On 25 January 2012, plaintiff filed a Form 33 with the Industrial Commission, asserting that defendants "ha[d] failed to authorize plaintiff's request for further treatment with Dr. Rhyne" and contending that there was also "an issue with indemnity benefits." In their response to this filing, defendants stated that the claim "is barred by the statute of limitations [in] G.S. §97-24. Plaintiff's claim is a no lost time claim. This claim was medical only and it has been more than two years since the last payment of medical compensation."

         On 7 February 2013, a deputy commissioner ordered that, to the extent they had not done so, defendants provide (pay for) all medical treatment for plaintiff's neck condition for the period between the date of injury through 18 May 2009. The deputy denied plaintiff's claim for additional benefits under the Act. Plaintiff appealed to the Full Commission (Commission), which affirmed the deputy commissioner's opinion and award on 16 September 2013.

         Plaintiff appealed the Commission's opinion and award to the North Carolina Court of Appeals, arguing, inter alia, that the Commission's findings of fact were inadequate and that the record evidence entitled him to permanent impairment indemnity benefits. Harrison v. Gemma Power Sys., LLC, 234 N.C.App. 664, 763 S.E.2d 17, 2014 WL 2993853 (2014) (unpublished) (Harrison I). Specifically, plaintiff argued that Finding of Fact 22 was not supported ...


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