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Brown v. N.C. Department of Public Safety

Court of Appeals of North Carolina

July 18, 2017

ANGELA BROWN, Next of Kin of DONALD L. BROWN, Deceased Employee, Plaintiff,

          Heard in the Court of Appeals 20 February 2017.

         Appeal by Plaintiff from opinion and award of the North Carolina Industrial Commission I.C. No. 577995 entered 22 April 2016.

          Campbell & Associates, by Bradley H. Smith, for Plaintiff-Appellant.

          Attorney General Joshua H. Stein, by Assistant Attorney General Ryan C. Zellar, for Defendant-Appellee.

          McGEE, Chief Judge.

         Angela Brown ("Plaintiff") appeals from opinion and award of the North Carolina Industrial Commission ("the Commission") dismissing Plaintiff's claim for next-of-kin death benefits under the North Carolina Workers' Compensation Act. We affirm.

         I. Background

         Plaintiff's father, Donald L. Brown (hereinafter, "Brown" or "Decedent"), was employed as a correctional officer for the North Carolina Department of Correction ("Defendant"), at Foothills Correctional Institution in Morganton, when he was injured during a work-related training exercise on 25 August 2005 ("the accident"). The accident occurred while Brown was participating in a training exercise during which Brown alleged he injured himself in a fall. Defendant filed a Form 19 "Employer's Report of Employee's Injury" that stated Defendant first became aware of the accident on 19 November 2005. Brown alleged he injured his lower back, left hip, and leg in the accident, but that Brown had not felt injured until the following day, and had not received any medical treatment for the alleged injuries.[1] Brown filed a Form 18 "Notice of Accident to Employer" dated 13 December 2005, but this form was file stamped by the Commission on 27 December 2005. In this Form 18, Brown gave notice, "as required by law, that [he] sustained an injury[, ]" and "[d]escribe[d] the injury . . ., including the specific body part involved (e.g., right hand, left hand)" as follows: "[l]ower [b]ack."

         Defendant submitted a Form 61 "Denial of Workers' Compensation Claim, " dated 4 January 2006, stating it was "without sufficient information to admit [Brown's] right to compensation." However, Defendant subsequently filed a Form 60 "Employer's Admission of Employee's Right to Compensation, " dated 23 March 2006, in which Defendant "admit[ted Brown's] right to compensation for an injury by accident on 8/25/2005[.]" This Form 60 indicated that the "description of the injury . . . is: low back strain[, ]" and calculated a weekly compensation rate of $378.11. The Form 60 did not include any alleged injuries to Brown's hip or leg. Defendant compensated Brown for his medical treatment related to his back injury while Brown continued to work full-time in 2005 and 2006. Brown underwent surgery for his compensable back injury in December 2007.

         Brown filed a second Form 18 on 15 May 2007, again alleging he injured his back on 25 August 2005 when he "was participating in a training exercise[.]" Once again, in this second Form 18, Brown made no claim that he had sustained injuries to his left hip or leg as a result of the accident. Defendant "initiated payment of temporary total disability . . . benefits to [Brown] in June 2008 in relation to his compensable back injury." These payments continued until Brown's death. Brown was "assessed at maximum medical improvement" on 10 February 2009, and was "assigned a 15% permanent partial impairment rating to [his] back, and [was] written out of work on a permanent basis" due to his ongoing "chronic back pain."

         Brown submitted a third Form 18, "Amended Notice of Accident to Employer, " dated 7 October 2010, alleging for the first time that, as a result of the accident, he sustained injuries "[i]ncluding, but not limited to, [his] back and left hip and leg."[2] (emphasis added). In addition to the "Amended Notice of Accident, " Brown apparently filed a Form 33 "Request that Claim be Assigned for Hearing, " also dated 7 October 2010, in which he alleged that he had "sustained a compensable injury to his left hip [during the 25 August 2005 exercise] which [was] being denied by [] Defendant[]." (emphasis added). We note that there is no record evidence that Brown ever claimed he had sustained a compensable injury to his left hip prior to this amended Form 18 that was apparently filed concurrently with his Form 33 requesting a hearing related to his alleged compensable hip injury. A hearing on the matter was set for 5 May 2011.

         Two days before the hearing date, Brown filed a request that the matter be "postponed indefinitely as there are currently no issues in dispute between the parties" in order to allow the parties "to try to mediate [Brown's] claim[.]" Pursuant to Brown's request, a deputy commissioner filed an order on 9 May 2011 removing the matter from the "May 5, 2011 hearing calendar and the active hearing docket as there [were] no issues currently in dispute." The matter was referred to mediation. The Commission's opinion and award stated: "The parties reached an impasse in settlement discussions at mediation. However, [Brown] did not file a new Form 33 request for hearing on the denied claim of left hip injury at any point during his lifetime."

         The Commission found that Brown "received significant medical treatment for his left hip from 2007 until his death[.]" This treatment included a total left hip replacement in 2008, "at which time [Brown] denied to the medical provider any specific injury to [his] hip." Brown underwent multiple additional surgical procedures related to his left hip replacement that were complicated by persistent infections. However, "Defendant did not authorize, direct, or pay for any left hip medical treatment[.]"

         Temporary total disability benefits related to Brown's back injury, totaling $105, 233.12, continued until Brown's death on 1 January 2014. Total medical benefits paid for Brown's compensable back injury amounted to $40, 198.87. Brown's death certificate listed alcoholic cirrhosis as the immediate cause of death, and noted

underlying causes of death as hepatic encephalopathy [- altered mental state resulting from alcoholic cirrhosis of the liver R62 -] for a period of weeks prior to death and chronic left hip and psoas muscle abscess refractory to antibiotics [- infection resistant to antibiotics resulting in abscess of hip and associated muscle, likely resultant of Brown's 2008 left hip replacement -] for approximately six years prior to the date of death.

         Plaintiff, as Brown's next of kin, submitted a Form 33 "Request that Claim be Assigned for Hearing" dated 21 August 2014, in which she sought death benefits pursuant to N.C. Gen. Stat. § 97-38. In Plaintiff's Form 33, she claimed that the parts of Decedent's body that had been injured in the 25 August 2005 accident were his "[b]ack and hip." Defendant mailed a response to Plaintiff's Form 33, dated 9 December 2014, in which it stated: "Decedent sustained a compensable low back injury on August 25, 2005 during a training exercise. Defendant accepted [P]laintiff's claim as compensable and has paid all benefits to which [D]ecedent [was] entitled for his compensable [lower back] injury. Defendant denies that the August 25, 2005 injury proximately caused [D]ecedent's death." Defendant again identified the only compensable injury suffered by Decedent as "low back strain." The matter was set for a hearing before a deputy commissioner on 21 April 2015, but Plaintiff and Defendant agreed to proceed without a hearing, and the record in this matter was closed on 14 September 2015 after the deputy commissioner received depositions, briefs, and other materials. The deputy commissioner entered an opinion and award on 21 October 2015, in which he concluded, inter alia, that Plaintiff was entitled to payment of death benefits pursuant to N.C. Gen. Stat. § 97-38, and ordered Defendant to pay Plaintiff said benefits.

         Defendant appealed the deputy commissioner's order to the Commission. Following a hearing on 8 March 2016, the Commission entered an opinion and award dismissing with prejudice Plaintiff's claims for (1) medical compensation related to Decedent's alleged hip injury, and (2) death benefits pursuant to N.C. G.S. § 97-38. The Commission concluded, inter alia, that (1) Decedent's cause of death was "unrelated to his compensable back injury[;]" and (2) Plaintiff's claim ...

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