ANGELA BROWN, Next of Kin of DONALD L. BROWN, Deceased Employee, Plaintiff,
N.C. DEPARTMENT OF PUBLIC SAFETY, Employer, SELF-INSURED (CORVEL CORPORATION, Third-Party Administrator), Defendant.
in the Court of Appeals 20 February 2017.
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
Attorney General Joshua H. Stein, by Assistant Attorney
General Ryan C. Zellar, for Defendant-Appellee.
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.
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. 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."
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.
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."
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." (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.
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."
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
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.
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.
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 ...