JENNIFER L. HAULCY, Employee, Plaintiff,
THE GOODYEAR TIRE & RUBBER CO., Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants.
in the Court of Appeals 24 January 2018.
Appeals by plaintiff and by defendants from opinion and award
entered 25 April 2017 by the Full Commission of the North
Carolina Industrial Commission, I.C. No. 14-017309
Offices of Kathleen G. Sumner, by Kathleen G. Sumner; and Law
Office of David P. Stewart, by David P. Stewart, for
plaintiff-appellant and plaintiff-appellee.
Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane
Jones and Matthew J. Ledwith, for defendant-appellees and
workers' compensation case, employer Goodyear Tire &
Rubber Co. and carrier Liberty Mutual Ins. Co. (defendants),
and employee Jennifer L. Haulcy (plaintiff), both appeal from
an opinion and award of the North Carolina Industrial
Commission, which awarded Haulcy retroactive workers'
compensation benefits and awarded defendants a credit for
disability payments paid to Haulcy under an employer-funded
accident-and-sickness (A&S) disability plan during that
defendants' appeal, they assert the Commission's
conclusion that Haulcy suffered a compensable injury in the
form of a material aggravation of her preexisting lower back
condition while maneuvering a fifty-five pound tire during
the course of her employment on 23 April 2014 was unsupported
by competent evidence and its findings. In Haulcy's
appeal, she asserts the Commission erred by awarding
defendants the A&S credit because they failed to preserve
the issue, and because the Commission's dispositive
finding supporting its conclusion on the matter was
unsupported by competent evidence.
competent evidence supports the dispositive findings that
support the challenged conclusions, we affirm the
Commission's opinion and award in full.
Commission's opinion and award reveals the following
facts. Jennifer Haulcy is forty-six years old and has worked
with Goodyear Tire for the last eighteen years. During her
employment there, Haulcy has worked as a tire sorter, a
Banbury operator, and, since 2007, a paint machine operator.
machine operators work in pairs. When the paint machine is
working properly, one operator removes tires from an elevated
flatbed and places them onto an entrance conveyor, where the
tires move under the paint machine to be sprayed with
lubricant. When the lubricated tires exit the conveyor, the
other operator puts the tires back onto the elevated flatbed,
a process known as "throwing" tires. If a paint
machine breaks down, the tires need to be manually
lubricated. One operator picks up a tire, hangs it on a hook,
spins the tire while brushing it with the lubricant, and then
throws it back on the elevated flatbed. The other operator
pushes the flatbed of tires to and from the lubricating area.
March 2013, Haulcy injured her back while attempting to push
a flatbed with a stuck wheel. She presented to the on-site
medical clinic, was diagnosed with a low back strain, and was
put on modified duty until 3 May, when she was released to
return to full duty and prescribed to wear a back brace.
Haulcy returned to work, continued to wear her back brace,
and never filed a workers' compensation claim for that
incident. Haulcy's medical records do not reveal she
received any further treatment for her lower back after 3 May
April 2014, Haulcy and her paint-machine-operator partner
were manually lubricating larger tires that weighed
approximately fifty-five pounds because their paint machine
was inoperable. At that time, Haulcy was wearing her back
brace, throwing the tires, and lubricating them, while her
partner was pushing the flatbed of tires to and from the
area. Around 8:00 a.m., Haulcy leaned back to throw a tire
and felt pain in her lower back. She attempted to throw a few
more tires but her back pain increased as she continued to
twist her body to throw the tires onto the elevated flatbed.
Haulcy asked her partner to change positions, and she started
pushing the flatbed before determining she needed to present
to the on-site medical facility for her back pain. MRIs later
revealed, inter alia, a small disc herniation at
L5-S1 and facet arthropathy at L4-L5, and Haulcy was
diagnosed with multiple injuries to her lumbar spine. Haulcy
started working modified duty on 24 April 2014.
April 2014, Haulcy filed a Form 18 "Notice of Accident,
" alleging she sustained a back injury at work. On 27
May, defendants filed a Form 63 "Notice to Employee of
Payment of Medical Benefits Only." In accordance with
Goodyear Tire's 90-day modified-duty policy, Haulcy
worked modified duty until that policy expired on 4 August,
when Goodyear Tire prohibited her from working because she
had neither been released to full duty work nor had she been
assigned permanent restrictions to allow a job match.
Starting 14 August 2014, Goodyear Tire paid Haulcy weekly
disability payments from an employer-funded A&S
September, Haulcy filed a Form 33 "Request for
Hearing" because defendants had failed to accept or deny
her workers' compensation claim, and were directing her
medical care but refused to pay workers' compensation
benefits when she was out of work. On 27 February 2015,
defendants filed a Form 61 "Denial of Workers'
Compensation Claim." Following physical therapy, steroid
injections, and radio frequency intervention for her lower
back pain and symptoms, Haulcy eventually returned to work
with Goodyear Tire on 4 November 2015, earning wages at or
above her pre-April 2014 incident wages.
the hearing arising from Haulcy's Form 33, Deputy
Commissioner Wanda Blanche Taylor entered an opinion and
award on 29 December 2015. In her opinion and award, Deputy
Commissioner Taylor concluded Haulcy sustained a compensable
injury on 23 April 2014 and awarded her continuing weekly
workers' compensation benefits, but did not address
Haulcy having returned to work or the A&S disability
payments she received during the period the deputy
commissioner awarded her retroactive workers'
compensation benefits. After defendants' motion to add
evidence and to reconsider the deputy commissioner's
opinion and award was denied, they appealed to the
hearing, the Commission entered its opinion and award on 25
April 2017. The Commission concluded Haulcy sustained a
compensable injury on 23 April 2014 and awarded her
retroactive workers' compensation benefits from 5 August
2014 until 3 November 2015. It further concluded defendants
were entitled to a $15, 521.90 credit for the weekly A&S
disability payments they ...