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Pine v. Wal-Mart Associates, Inc.

Court of Appeals of North Carolina

September 5, 2017

PATRICIA PINE, Employee, Plaintiff,
v.
WAL-MART ASSOCIATES, INC. #1552, Employer, and NATIONAL UNION FIRE INSURANCE CO., Carrier (CLAIMS MANAGEMENT, INC. Third-Party Administrator), Defendants.

          Heard in the Court of Appeals 9 August 2016.

         Appeal by Defendants from an Opinion and Award entered 10 November 2015 by the Full North Carolina Industrial Commission.

          Doran Shelby Pethel and Hudson, P.A., by David A. Shelby, for Plaintiff-Appellee.

          Hedrick Gardner Kincheloe & Garofalo, LLP, by Holly M. Stott and M. Duane Jones, for Defendant-Appellants.

          INMAN, Judge.

         This appeal involves a commonly relied upon presumption in North Carolina workers' compensation law, which shifts from an employee to an employer the burden of proof for causation of an injury. At issue is whether the North Carolina Industrial Commission erred by applying this presumption, known as the Parsons presumption, to a medical condition not listed on an employer's admission of compensability form.

          Wal-Mart Associates, Inc., employer, and National Union Fire Insurance Co., carrier, (collectively "Defendants") appeal from an Opinion and Award of the Full North Carolina Industrial Commission (the "Commission") awarding Patricia Pine, employee, ("Plaintiff") compensation for medical treatment for injuries to her neck, wrist, shoulder, hand, and left knee and ongoing disability payments.

         Following an amendment to the North Carolina Workers Compensation Act by the North Carolina General Assembly, we hold that it was error for the Commission to apply the Parsons presumption in this case. However, the error does not require reversal because the Commission also found that Plaintiff had proved by a preponderance of the evidence that her additional medical conditions were causally related to her workplace injury, thereby satisfying her burden of proof absent the presumption. Accordingly, we affirm the Commission's Opinion and Award.

         Factual and Procedural History

         On 29 December 2011, while at work, Plaintiff tripped and fell face-forward over the bottom of a stairway ladder. As she fell, she extended her right arm to break the fall; her wrist hit the floor first, followed by her right shoulder area, her left knee, and her chest near her collarbone. One of Plaintiff's co-workers witnessed the fall and confirmed that Plaintiff complained of left knee and right hand, wrist, and shoulder pain.

          Plaintiff, at the direction of her employer, went to Dr. Clifford Callaway, who diagnosed her with a shoulder sprain. Plaintiff followed up with Dr. Callaway several times throughout January 2012. Dr. Callaway updated his diagnosis to include a left knee sprain, a cervical strain, and a wrist sprain, and referred Plaintiff to Dr. James Comadoll, an orthopedic specialist.

         Dr. Comadoll ordered an MRI of Plaintiff's right shoulder and diagnosed Plaintiff with a possible right rotator cuff tear and a left knee contusion. Plaintiff followed up with Dr. Comadoll within one month complaining of neck soreness and issues with range of motion. Dr. Comadoll ordered an EMG[1] to look for signs of nerve entrapment. The EMG showed Plaintiff suffered from carpal tunnel syndrome in her right wrist, so Dr. Comadoll performed a carpal tunnel release surgery. Because Plaintiff still complained of left knee pain, Dr. Comadoll ordered an MRI of Plaintiff's left knee, which showed a possible lateral meniscus anterior horn tear.

         Dr. Comadoll referred Plaintiff to Dr. Michael Getter, a board-certified orthopedic surgeon who specializes in spinal surgery, for further evaluation of her continued complaints of numbness and pain in her upper extremities. Dr. Getter ordered a cervical MRI for Plaintiff, which showed degenerative disc disease causing stenosis compressing the nerve at C4-5, C5-6, and C6-7. Dr. Getter recommended surgery to decompress the nerve and to prevent progressive neurological problems and muscle atrophy.

         At the request of Defendants, Plaintiff underwent additional medical examinations. Dr. Joseph Estwanik diagnosed Plaintiff with a partial full thickness tear of her right rotator cuff for which he recommended arthroscopic surgery. Dr. Louis Koman, a board-certified orthopedic surgeon with a certificate of subspecialty in hand surgery, diagnosed Plaintiff with a carpal boss, a traumatic sagittal band rupture, and cervical spine pathology that was causing some residual symptoms in her right upper extremity despite the carpal tunnel release.

         Meanwhile, Plaintiff filed a Form 18, Notice of Accident to Employer, related to her fall at work, citing injuries to her "RUE, LLE, neck and any other injuries causally related." In response, Wal-Mart filed a Form 60, Employer's Admission of Employee's Right to Compensation, admitting compensability for Plaintiff's claim with regard to the injuries suffered to her right shoulder and arm. Wal-Mart subsequently filed a Form 61, Denial of Workers' Compensation Claim, denying compensability for Plaintiff's cervical spine condition as "a new injury outside of her employment" and "unrelated to the original compensable injury."

         Following a hearing before the Industrial Commission, deputy commissioner Kim Ledford issued an Opinion and Award concluding, as shown by the greater weight of competent medical opinion, that as a consequence of her workplace accident Plaintiff not only suffered the shoulder injury admitted by Wal-Mart, but also sustained injuries to her right wrist and left knee and aggravated her pre-existing cervical disc condition. Both parties appealed to the Full Commission.

         Following additional proceedings, the Commission found, inter alia:

20. Based upon a preponderance of the evidence, the Full Commission places greater weight on the testimony of Dr. Callaway, Dr. Comadoll, Dr. Getter, and Dr. Koman, than that of Dr. Estwanik, and finds that Plaintiff's pre-existing cervical disc disease was aggravated by her fall at work on December 29, 2011. Additional medical treatment with Dr. Getter, including but not limited to surgery, is reasonable and necessary to effect a cure, give relief, or lessen the period of disability related to this injury.
. . .
22. Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff's carpal tunnel syndrome and sagittal band rupture were caused by the December 29, 2011 injury by accident. The Full Commission further finds, by a preponderance of the evidence that Plaintiff's carpal boss was materially aggravated by the December 29, 2011 injury by accident. Additional medical treatment, including but not limited to surgery with Dr. Koman, is reasonable and necessary to effect a cure, give relief, or lessen the period of disability related to these injuries.

         The Commission concluded that because Wal-Mart accepted as compensable Plaintiff's right shoulder injuries, a rebuttable presumption arose that Plaintiff's other medical conditions were causally related to the compensable injury. It then concluded:

3. Defendants failed to present sufficient evidence to rebut the presumption that Plaintiff's carpal tunnel syndrome, carpal boss, sagittal band rupture, dystrophic right hand symptoms, neck, and left knee problems are causally related to the December 29, 2011 injury by accident. See Gonzalez v. Tidy Maids, Inc., 2015 N.C.App. LEXIS 138, 768 S.E.2d 886 (2015). . . .

         The Commission awarded Plaintiff "all reasonable and necessary medical expenses which tend to effect a cure, give relief or lessen the period of Plaintiff's disability, incurred or to be incurred by Plaintiff for treatment of her right shoulder, left knee, right carpal tunnel syndrome, right sagittal band rupture, right hand dystrophic condition, right carpal boss, and neck injuries."

         Defendants timely appealed.

         Analysis

         Defendants argue that the Commission acted under a misapprehension of the law when it relied on this Court's decision in Wilkes v. City of Greenville, __ N.C.App. __, __, 777 S.E.2d 282, 286 (2015) (citations omitted), aff'd in part, aff'd as modified in part, and remanded by __ N.C. __, 799 S.E.2d 838 (2017), and applied the presumption established by this Court in Parsons v. Pantry, Inc., 126 N.C.App. 540, 485 S.E.2d 867 (1997), shifting to Defendants the burden of proving that Plaintiff's other injuries were not causally related to her right shoulder injury suffered in her fall at work. Defendants further assert that Plaintiff failed to meet her burden of proof without the Parsons presumption to establish a causal relationship between the injuries. We disagree.

         A. Standard of Review

         Appellate review of an opinion and award of the North Carolina Industrial Commission is "limited to determining: (1) whether the findings of fact are supported by competent evidence, and (2) whether those findings support the Commission's conclusions of law." Reed v. Carolina Holdings, __ N.C.App. __, __, 796 S.E.2d 102, 108-09 (2017) (citing Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006)). Findings of fact supported by competent evidence are binding on appeal, Chaisson v. Simpson, 195 N.C.App. 463, 470, 673 S.E.2d 149, 156 (2009), and unchallenged findings of fact are presumed to be supported by competent evidence, Morgan v. Morgan Motor Co. of Albemarle, 231 N.C.App. 377, 380, 752 S.E.2d 677, 680 (2013). However, the Commission's conclusions of law are reviewed de novo. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004). And "[w]hen the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legal standard." Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987) (citation omitted).

         B. Parsons Presumption

          Defendants specifically challenge the Commission's Conclusions of Law Numbers 1 and 3 related to Plaintiff's neck, wrist, and hand injuries, asserting that the Commission misapplied the Parsons presumption to those medical conditions not previously admitted by Wal-Mart in its Form 60. This argument is supported by a recent statutory amendment, even though the amendment was enacted while this appeal has been pending. However, the error does not require reversal because the Commission made adequate findings that Plaintiff met her burden of proving causation without the presumption.

         The North Carolina Workers' Compensation Act requires employers to provide medical compensation for the treatment of compensable injuries, including "additional medical compensation . . . directly related to the compensable injury" that is designed to effectuate a cure, provide relief, or lessen the period of disability. Perez v. American Airlines/AMR Corp., 174 N.C.App. 128, 135, 620 S.E.2d 288, 292 (2005) (internal quotation marks and citation omitted); N.C. Gen. Stat. § 97-25 (2015). "It is well established that an employee seeking compensation for an injury bears the burden of demonstrating that the injury suffered is causally related to the work-related accident." Wilkes, __ N.C.App. at __, 777 S.E.2d at 286.

         Our Court has long held that once an employee obtained a compensation award for a workplace injury, if that employee seeks additional compensation for treatment of later developing medical conditions claimed to be causally related to the compensable injury, the Commission should presume "that the additional medical treatment is directly related." Perez, 174 N.C.App. at 135, 620 S.E.2d at 292; Parsons, 126 N.C.App. at 542, 485 S.E.2d at 869. "The employer may rebut the presumption with evidence that the medical treatment is not directly related to the compensable injury." Perez, 174 N.C.App. at 135, 620 S.E.2d at 292. This presumption allows an employee to obtain additional compensation for medical conditions related to a compensable injury without having to re-litigate the issue of causation. Parsons, 126 N.C.App. at 542, 485 S.E.2d at 869 ("To require [a] plaintiff to re-prove causation each time she seeks treatment for the very injury that the Commission has previously determined to be the result of a compensable accident is unjust and violates our duty to interpret the [Workers' Compensation] Act in favor of injured employees.").

         In Parsons, the plaintiff was working as a store clerk when two men entered the store and assaulted her, striking her in the forehead and shooting her four times with a stun gun. Id. at 540, 485 S.E.2d at 868. The Industrial Commission awarded the plaintiff compensation for her injuries, which were primarily frequent headaches. Id. at 540-41, 485 S.E.2d at 868-69. Eight months after the award, the plaintiff sought compensation for additional treatment of her headaches, but the Commission denied her claim because she " 'ha[d] not introduced any evidence of causation between her injury and her headache complaints at the time of the hearing' and . . . 'failed to meet her burden of proof for showing the necessity of continued or additional medical treatment.' " Id. at 541, 485 S.E.2d at 869. Our Court reversed the Commission's opinion and award, holding that "[i]n effect, requiring that [the] plaintiff once again prove a causal relationship between the accident and her headaches in order to get further medical treatment ignores th[e] prior award." Id. at 542, 485 at 869.

         In Perez, this Court extended the Parsons presumption to instances in which the Commission had not directly ruled on compensability of an injury because the employer had admitted it by filing of a Form 60 and had paid compensation to the employee. Perez, 174 N.C.App. at 136, 620 S.E.2d at 293 ("As the payment of compensation pursuant to a Form 60 amounts to a determination of compensability, we conclude that the Parsons presumption applies in this context."). The Perez Court noted that "[t]he presumption of compensability applies to future symptoms allegedly related to the original compensable injury." Id. at 136-37 n. 1, 620 S.E.2d at 293 n. 1 (emphasis added) (rejecting the defendant's argument that the plaintiff suffered a different injury from the injury stated on the Form 60).

         In Clark v. Sanger Clinic, 175 N.C.App. 76, 623 S.E.2d 293 (2005), this Court declined to extend the Parsons presumption to an injury that had not previously been deemed compensable by the Commission. The Court rejected the plaintiff's argument that the Parsons presumption applied to the plaintiff's compensation claim for degenerative arthritis after the plaintiff had obtained an award for a knee injury caused by an accident at work. Id. at 79, 623 S.E.2d at 296. The Clark decision emphasized in its holding the reasoning in Parsons that the presumption's purpose was to alleviate a plaintiff from having to re-prove causation for the "very injury" the Commission determined compensable. Id. at 76, 623 S.E.2d at 296 (quoting Parsons, 126 N.C.App. at 542, 485 S.E.2d at 869).

         In Wilkes, this Court again extended the Parsons presumption, holding that "the Parsons presumption applies even where the injury or symptoms for which additional medical treatment is being sought is not the precise injury originally deemed compensable." Wilkes, __ N.C.App. at __, 777 S.E.2d at 287 (citing Carr v. Dep't of Health & Human Servs. (Caswell Ctr.), 218 N.C.App. 151, 156, 720 S.E.2d 869, 874 (2012)). The plaintiff in Wilkes suffered numerous physical injuries in a work related car accident, which his employer accepted as compensable. Id. at, 777 S.E.2d at 284. After the employer began providing medical compensation for the plaintiff's physical injuries, the parties disagreed about the extent of the plaintiff's other injuries. Id. at __, 777 S.E.2d at 284. The plaintiff was seeking compensation for, inter alia, depression and anxiety, injuries which were not listed on his employer's Form 60. Id. at __, 777 S.E.2d at 285. Our Court held that the Commission erred by failing to apply the Parsons presumption "to his request for additional medical treatment and compensation for his complaints of anxiety and depression." Id. at__, 777 S.E.2d at 285.

         After this Court heard Defendants' appeal in this case, our Supreme Court affirmed the holding in Wilkes[2] which applied the Parsons presumption to medical conditions not included on an employer's admission of compensability form, but alleged to be related to the compensable injury. Wilkes at __, 799 S.E.2d at 846 ("Accordingly, we conclude that an admission of compensability approved under [ N.C. Gen. Stat.] § 97-82(b) entitles an employee to a presumption that additional medical treatment is causally related to his compensable injury.").

         The General Assembly, however, promptly abrogated the Supreme Court's decision in Wilkes by amending N.C. Gen. Stat. § 97-82. 2017 N.C. Sess. Laws 2017-124. Section 1. (a) rewrites N.C. Gen. Stat. § 97-82(b) as follows:

(b) If approved by the Commission, a memorandum of agreement shall for all purposes be enforceable by the court's decree as hereinafter specified. Payment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d) when compensability and liability are not contested prior to expiration of the period for payment without prejudice, shall constitute an award of the Commission on the question of compensability of and the insurer's liability for the injury as reflected on a form prescribed by the Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) for which payment was made. An award of the Commission arising out of G.S. 97-18(b) or G.S. 97-18(d) shall not create a presumption that medical treatment for an injury or condition not identified in the form prescribed by the Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) is causally related to the compensable injury. An employee may request a hearing pursuant to G.S. 97-84 to prove that an injury or condition is causally related to the compensable injury. Compensation paid in these circumstances shall constitute payment of compensation pursuant to an award under this Article.

2017 N.C. Sess. Laws 2017-124, § 1. (a) (emphasis added). N.C. Gen. Stat. § 97-18(b) provides that an employer admits compensability by filing a Form 60 with the Industrial Commission, and N.C. Gen. Stat. § 97-18(d) provides that an employer can pay for an employee's medical treatment without admitting compensability by filing a Form 63.

         Section 1. (b) of the Session Law amending N.C. Gen. Stat. § 97-82 provides that the intent of the General Assembly in amending the Workers' Compensation Act was "to clarify, in response to Wilkes v. City of Greenville, that an injury not identified in an award arising out of [ N.C. Gen. Stat. §] 97-18(b) or [ N.C. Gen. Stat. §] 97-18(d) is not presumed to be causally related to the compensable injury . . . ." 2017 N.C. Sess. Laws 2017-124, § 1. (b). The statutory amendment binds our decision in this case because Section 1. (c) provides that the statute applies to all claims "accrued or pending prior to, on, or after" the date on which the amendment became law. 2017 N.C. Sess. Laws 2017-124, § 1. (c).

         The medical conditions Plaintiff seeks compensation for were not admitted by Wal-Mart because they were not listed on its admission of compensability form. Plaintiff's reliance on this Court's decision in Wilkes fails in light of the General Assembly actions. We therefore hold that the Commission's application of the Parsons presumption in this case was error. Generally, such an error would require a remand to the Commission for the application of the correct legal standard. However, as explained below, we instead affirm the Commission's Opinion and Award because it includes factual ...


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