in the Court of Appeals 6 February 2017.
by plaintiff from opinion and award entered on or about 31
May 2016 by the Full Commission. North Carolina Industrial
Commission, I.C. No. 764008
Law Offices of Timothy D. Welborn, P.A., by Timothy D.
Welborn, for plaintiff-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane
Jones and Tonya D. Davis, for defendant-appellee.
appeals from an opinion and award denying her additional
compensation because she failed to file a claim against her
employer's insurance company. Because plaintiff timely
filed her claim for her back injury against her employer, the
Industrial Commission erred in denying her claim due to her
failure to file a claim against a specific insurance company.
Plaintiff's claim is against her employer; her employer
has the statutory obligation to maintain workers'
compensation insurance and is responsible for work-related
compensable injuries. Any dispute plaintiff's employer
may have with its insurers is not relevant to the validity of
plaintiff's claim against her employer. We therefore
reverse and remand for further proceedings.
sustained a lower back injury while working for
defendant-employer as a nurse in 2007; plaintiff filed a
workers' compensation claim, and defendant-employer
admitted plaintiff's right to compensation. In 2008,
plaintiff filed Form 28B and requested additional
compensation for her 2007 injury. Over the course of the next
five years, plaintiff had several other incidents at work
which exacerbated her back injury, with no dispute as to
whether these were compensable injuries, and
defendant-employer continued to provide medical compensation,
until plaintiff eventually returned to full duty
work. During this five year period,
defendant-employer's insurance company changed at least
twice. In January of 2012, plaintiff again "sustained
another injury" to her back at work and "was
diagnosed with recurrent lumbar pain[.]" Plaintiff
returned to Dr. Maxy, who had treated her starting in 2007
for her lower back injury. As the Commission found,
Dr. Maxy examined Plaintiff, and given that she had failed
conservative treatment, he referred her for a new MRI.
Plaintiff had been out of work, and he continued light duty
work until she could be re-evaluated.
38. Plaintiff was out of work from January 14 through
February 9, 2012 due to the January 12, 2012 accident and
39. After Dr. Maxy referred Plaintiff for a lumbar MRI on
February 3, 2012, Plaintiff requested that Synergy authorize
the MRI. Upon Synergy's refusal to authorize the MRI and
treatment, Plaintiff filed a Motion to compel authorization,
to which Synergy responded in opposition. Synergy pointed out
that Plaintiff was required to file a new claim against
United Heartland considering that she had sustained an injury
to her low back on January 12, 2012.
40. Plaintiff never underwent the MRI recommended by Dr. Maxy
on February 3, 2012.
September of 2014, defendants filed a Form 33 requesting that
plaintiff's claim be assigned for hearing because they
"dispute[d] that Plaintiff's low back condition
since January 12, 2012 is causally related to the accident
and injury of April 10, 2007[;]" defendants did not
contest that plaintiff was injured in 2012 but rather whether
the 2012 injury was related to her 2007 injury. In response,
on 15 September 2014, plaintiff filed a Form 33R stating that
"Plaintiff contends that her back condition since
January 12, 2012 is causally related to the accident and
injury of April 10, 2007."
2007, defendant-employer's insurance company was
defendant Key Risk Insurance Company, the named
defendant-insurer in this appeal. But in 2012,
defendant-employer's insurance company was United
Wisconsin Insurance Company/United Heartland Insurance
Company ("United Heartland") which is not a party
on appeal. Thus, defendants argued that United Heartland was
not liable for plaintiff's 2012 injury because it was a