LISA A. GARRETT, Employee, Plaintiff,
THE GOODYEAR TIRE & RUBBER CO., Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants.
in the Court of Appeals 20 September 2017
Appeals by Plaintiff and Defendants from an Opinion and Award
filed 10 February 2017 by the Full North Carolina Industrial
Commission No. 13-007190.
Offices of Kathleen G. Sumner, by Kathleen G. Sumner and
David P. Stewart, for plaintiff-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane
Jones and Matthew J. Ledwith, for defendants-appellees.
Garrett ("Plaintiff") and The Goodyear Tire &
Rubber Company ("Goodyear") and Liberty Mutual
Insurance Company ("Liberty") (collectively
"Defendants") appeal from an Opinion and Award
filed 10 February 2017 by the North Carolina Industrial
Commission. For the reasons discussed herein, we affirm in
part and remand in part.
is approximately 56 years old, has a high school diploma, and
previously served in the United States Navy. She first worked
at the Goodyear plant in Fayetteville beginning on 12 June
2000 until sometime in 2001 when she was laid off. In 2007,
Goodyear rehired Plaintiff, and on 15 June 2009, she started
a new position with the company as a Production Service
Carcass Trucker ("Carcass Trucker"). The Carcass
Trucker position required Plaintiff to operate a stand-up,
three-wheeled motorized vehicle in an industrial and
warehouse setting. The position also included the following
physical demands and frequencies:
• One-Hand Pull with Right Hand - 15 pounds of force
• Lift, Push, Pull to Change Battery - 30 pounds
• Pick Up Fallen Tire - 25 pounds
working approximately one year as a Carcass Trucker,
Plaintiff underwent two surgeries, a spinal fusion on 15
October 2010 and a right shoulder surgery on 29 December
2011. On 29 November 2012, Plaintiffs treating physician, Dr.
Musante of Triangle Orthopedic Associates, medically released
her to return to work, and she resumed employment as a
Carcass Trucker with Goodyear
later, on 15 December 2013, another employee driving a
stand-up vehicle collided with Plaintiffs vehicle. This is
the workplace accident triggering Plaintiffs workers'
compensation claim and is the subject of this appeal. After
the accident, Plaintiff initially resumed working, but she
soon started "feeling something weird," and a
numbness in the back of her neck. Plaintiff then reported the
accident to her supervisor, received treatment at Goodyear,
and went to the emergency room. Goodyear completed Industrial
Commission Form 19 (Employer's Report of Employee's
Injury) and stated it knew of the incident and that Plaintiff
received "[m]inor on-site remedies by employer medical
staff." Plaintiff then began to see several health care
providers for her symptoms.
December 2013, Plaintiff saw Dr. Perez-Montes, and complained
of pain in her neck and back. Dr. Perez-Montes imposed
modified work (i.e. "light-duty") restrictions that
included "no repetitive bending or twisting, as well as
no pulling, pushing, or lifting of more than 15 pounds."
Approximately two weeks after the accident, Plaintiff
returned to work as a Carcass Trucker, subject to these
assigned Plaintiff a nurse case manager, who scheduled a 9
April 2014 appointment with a pain management specialist, Dr.
Kishbaugh. Dr. Kishbaugh noted that Plaintiff was suffering
from "low back and leg pain, cervical and thoracic back
pain, and pain in the shoulder region with numbness and
tingling involving the arms." Dr. Kishbaugh referred
Plaintiff for physical therapy to address her low back pain
and suggested she follow up with a neurosurgeon for her neck
complaints. On 21 April 2014, Plaintiff visited the office of
Dr. David Musante, her treating physician after her 2010 and
2011 surgeries and the doctor who released her for work in
November 2012. Plaintiff complained of neck pain to Dr.
Musante's Physician's Assistant. X-rays and an MRI
scan of her neck and spinal areas were ordered.
initially accommodated Plaintiff's light-duty work
restrictions, and Plaintiff continued working there as a
Carcass Trucker while she received medical treatment.
However, on 12 May 2014, Goodyear notified Plaintiff that it
would no longer accommodate her work restrictions. Plaintiff
then went on leave and began receiving accident and sickness
disability benefits through an employer-sponsored plan.
on leave, Plaintiff participated in a functional capacity
evaluation ("FCE") with physical therapist Frank
Murray on 29 October 2014. Two weeks later, on 13 November
2014, Dr. Kishbaugh reviewed the FCE, which concluded that
Plaintiff "could perform the physical demands and
essential functions of the … Carcass Trucker
position." Dr. Kishbaugh determined that it was
appropriate for Plaintiff to return to work, consistent with
the conclusions of the 29 October 2014 FCE. Four days after
Dr. Kishbaugh's determination that Plaintiff could return
to work, on 17 November 2014, Plaintiff sought and obtained a
note from Dr. Musante excusing her from driving the carcass
truck. Dr. Musante provided the note due to Plaintiff's
"treatment for degeneration of a cervical intervertebral
disc." Plaintiff continued to remain out of work.
January 2015, Plaintiff filed a Form 18 with the Industrial
Commission giving notice of her workers' compensation
claim to Goodyear. On 29 January 2015, Plaintiff underwent an
independent medical evaluation ("IME") with Dr. Jon
Wilson upon referral of Goodyear's accident and sickness
insurance carrier. Dr. Wilson concluded that Plaintiff could
not at the time drive a carcass truck safely, but that she
could work full time at a sedentary level. On 13 February
2015, Defendants filed a Form 63 Notice to Employee of
Payment of Medical Benefits Only Without Prejudice.
then filed a Form 33 on 22 April 2015, requesting a hearing
before the Industrial Commission because "Defendants
failed to file any forms" and "treated the claims
as compensable." Almost three months later, on 16 July
2015, Goodyear made an employment offer to Plaintiff for the
Carcass Trucker position at her prior wages, but Plaintiff
refused the offer. Plaintiff later testified that she
"did not want to return to work as a [C]arcass [T]rucker
because of the bouncing nature of the truck." Goodyear
then filed a Form 61 on 18 August 2015, denying liability for
the 15 December 2013 incident. This was the same day that the
claim was assigned for hearing before Deputy Commissioner
to the 18 August 2015 hearing before the Deputy Commissioner,
the parties stipulated that the issues to be heard were:
(a) Whether Plaintiff's claims should be deemed admitted
based upon the actions of Defendants?
(b) If not deemed admitted, whether Plaintiff suffered
compensable injuries to her neck, low back, and bilateral
(c) If so, to what compensation, if any, is Plaintiff
(d) Whether Dr. Musante should be designated as
Plaintiff's authorized treating physician for her neck
and low back conditions?
(e) Whether Plaintiff is entitled to attorney's fees
pursuant to [ N.C. G.S.] § 97-88.1?
Commissioner Baddour filed his Opinion and Award on 23 June
2016 and concluded that both Plaintiff's neck and low
back conditions were causally related to the work accident
and that she was entitled to total disability compensation
from "13 May 2014 to the present and continuing until
she returns to work or compensation is otherwise legally
terminated." Plaintiff's bilateral shoulder
condition was not compensable and she was not entitled to
attorney's fees. The Deputy Commissioner's Opinion
and Award also stated "[t]he Commission may not prohibit
Defendants from contesting compensability of Plaintiff's
claims as a sanction for Defendants' failure to timely
admit or deny the claims." Defendants then filed a
notice of appeal to the Full Commission.
February 2017, the Full Commission filed its Opinion and
Award. The Full Commission considered several evidentiary
sources, including Dr. Musante's deposition testimony,
the stipulated medical records of Dr. Kishbaugh and Dr.
Perez-Montes, as well as Plaintiff's statements and
testimony. The Full Commission concluded that Plaintiff's
low back condition was not a compensable injury but her neck
condition was. Plaintiff was awarded total temporary
disability compensation for her neck injury from 13 May 2014
(the date Goodyear stopped accommodating her light-duty work
restrictions) to 16 July 2015 (the date Plaintiff refused
Defendants' offer to return to her previous position at
the same wages). Plaintiff and Defendants timely appealed
this Opinion and Award. Each party alleges that the Full
Commission committed several errors, and we address
Plaintiff's and Defendants' issues in turn.
review of an Opinion and Award of the Industrial Commission
"is limited to consideration of whether competent
evidence supports the Commission's findings of fact and
whether the findings support the Commission's conclusions
of law. This court's duty goes no further than to
determine whether the record contains any evidence tending to
support the finding." Richardson v. Maxim
Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d
582, 584 (2008) (citation and quotation marks omitted).
ISSUES ON APPEAL
appeal is addressed in three parts: (A) preservation of the
estoppel issue for review by the Full Commission; (B)
causation of Plaintiff's low back injury; and, (C)
Plaintiff's determination of disability.
first argues that the Full Commission erred in failing to
consider her argument that Defendants were estopped from
denying the compensability of her claims through their
actions. She contends that Defendants waived their right to
contest compensability of her claims because subsequent to
her Form 18 Notice of Claim filing, Defendants neither
admitted liability, denied liability, nor did they file a
Form 63 Notice of Payment Without Prejudice regarding the
claim within 30 days as required by statute and Industrial
Commission Rules. See N.C. G.S. § 97-18(j)
(2017); 04 NCAC 10A.0601 (2017) (titled Employer's
Obligations Upon Notice; Denial of Liability; And Sanctions).
Plaintiff also argues that after her Form 18 filing,
Defendants engaged in a course of conduct, including an
allegedly improper use of Form 63 designed "to direct
and limit every aspect of [Plaintiff's] medical care to
her medical and legal detriment" while "avoiding
their legal obligation to admit or deny her claim."
Without addressing the merits of Plaintiff's substantive
argument, we conclude that the Full Commission erred by
failing to address this issue of estoppel because Plaintiff
properly raised the issue before the Deputy Commissioner and
the Full Commission.
this case was before the Deputy Commissioner, the
parties' pre-trial agreement stipulated the issues to be
heard. Stipulation 9 (B) of the pre-trial agreement states
that Plaintiff contends the issues to be heard are:
Whether [D]efendant's accepted this claim pursuant to [
N.C. G.S.] § 97-18(d), when [D]efendants took a recorded
statement, provided medical treatment in the outsourced
medical clinic on premises, paid for the emergency room
visit, sent [Plaintiff] out for medical treatment and
diagnostic studies, and assigned a nurse case manager to the
file, and failed to file any Industrial Commission form
either accepting or denying this claim in a timely manner and
failed to send to the medical providers from whom
[D]efendants required [Plaintiff] to treat the mandatory
letter stating that they do not accept the claim?
Deputy Commissioner's Opinion and Award listed the five
issues to be heard and one was the issue of whether Goodyear
was estopped from denying the compensability of
(a) Whether Plaintiff's claims should be deemed admitted
based upon the actions of Defendants?
the Deputy Commissioner did not adjudicate this specific
issue. Conclusion of Law 1 of his Opinion and Award only
1. The Commission may not prohibit Defendants from contesting
compensability of Plaintiff's claims as a sanction for
Defendants' failure to timely admit or deny the claims. [
N.C. G.S.] § 97-18(j).
the Full Commission heard this case, it invoked the "law
of the case" doctrine and determined that Plaintiff
waived the issue because she did not appeal from the Deputy
Commissioner's Opinion and Award. The 10 February 2017
Opinion and Award of the Full Commission states:
Plaintiff did not appeal from the [Deputy Commissioner's]
Opinion and Award of June 23, 2016 as to the issues of . . .
whether [D]efendants' actions constitute an acceptance of
[P]laintiff's claim . . . [.] Accordingly, the Findings
of Fact and Conclusions of Law issued by the Deputy
Commissioner in the June 23, 2016 Opinion and Award are the
law of the case as to those issues from which no appeal was
taken by [P]laintiff.
well-established that "[t]he law of estoppel does apply
in workers' compensation proceedings, and liability may
be based upon estoppel to contravene an insurance
carrier's subsequent attempt to avoid coverage of a
work-related injury." See e.g., Carroll v.
Daniels & Daniels Construction Co., 327 N.C. 616,
620, 398 S.E.2d 325, 328 (1990). "[E]stoppel requires
proof that the party to be estopped must have misled the
party asserting the estoppel either by some words or some
action or by silence." Id. at 621, 398 S.E.2d.
at 328 (citation omitted). In a workers' compensation