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Garrett v. The Goodyear Tire & Rubber Co.

Court of Appeals of North Carolina

July 3, 2018

LISA A. GARRETT, Employee, Plaintiff,

          Heard 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.

          Law 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.

          MURPHY, JUDGE.

         Lisa A. 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.


         Plaintiff 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

         After 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

         A year 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.

         On 18 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 light-duty restrictions.

         Defendants 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.

         Goodyear 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.

         While 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.

         On 2 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.

         Plaintiff 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 Phillip Baddour.

         Prior 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 shoulders?
(c) If so, to what compensation, if any, is Plaintiff entitled?
(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?

         Deputy 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.

         On 10 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.


         Our 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).


         Plaintiff's 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.

         A. Issue Preservation

         Plaintiff 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.

         When 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?

         The 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 Plaintiff's claims.

(a) Whether Plaintiff's claims should be deemed admitted based upon the actions of Defendants?

         However, the Deputy Commissioner did not adjudicate this specific issue. Conclusion of Law 1 of his Opinion and Award only states:

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).

         When 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.

         It is 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 ...

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