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Hawkins v. Wilkes Regional Medical Center

Court of Appeals of North Carolina

December 5, 2017

APRIL HAWKINS, Employee, Plaintiff,
v.
WILKES REGIONAL MEDICAL CENTER, Employer, and KEY RISK INSURANCE COMPANY, Carrier, Defendants.

          Heard in the Court of Appeals 6 February 2017.

         Appeal 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

          The 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.

          STROUD, JUDGE

         Plaintiff 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.

         I. Background

         Plaintiff 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.[1] 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 injury.
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.

         In 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."

         In 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 ...


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