Richardson v. Maxim Healthcare/Allegis Group

JACKSON, Judge.

WYNN, Judge, dissenting in part and concurring in the results only in part.

Because I find that the majority reweighs the evidence in this case and improperly substitutes its judgment for that of the Full Commission, I respectfully dissent.

I note at the outset that this Court's review of an Opinion and Award of the Full Commission is "limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law."Deese v. Champion Int'l Corp.,352 N.C. 109,116,530 S.E.2d 549,553(2000). Most significantly, this Court "does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record containsanyevidence tending to support the finding."Adamsv. AVX Corp.,349 N.C. 676,681,509 S.E.2d 411,414(1998) (emphasis added) (quotingAnderson v. Lincoln Constr.Co.,Page 358265 N.C. 431,434,144 S.E.2d 272,274(1965)),reh'gdenied,350 N.C. 108,532 S.E.2d 522(1999).

Thus, if there is any evidence at all, taken in the light most favorable to the non-moving party, the finding of fact made by the Full Commission stands, even if there is substantial evidence supporting the opposing position.Id.Findings may therefore be set aside on appeal only "where there is acomplete lackof competent evidence to support them."Rhodes v. Price Bros.,175 N.C. App. 219,221,622 S.E.2d 710,712(2005) (emphasis added and quotation omitted). First, I disagree with the majority's conclusion that the Full Commission erred in failing to address whether Ms. Richardson timely reported her worker's compensation claim pursuant to North Carolina General Statute §97-22.

The majority cites toBooker v. Duke Medical Centerfor the proposition that the Full Commission should make findings as to an employer's ability to "provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury" and to conduct "the earliest possible investigation of the circumstances surrounding the injury."297 N.C. 458,481,256 S.E.2d 189,204(1979) (citation omitted). However, I note that the Supreme Court also held inBookerthat the defendant-employer had waived the issue of notice by failing to raise it before the Full Commission, and that the facts indicated that the defendant-employer did have actual notice of the employee's work-related illness.Id.at 482,256 S.E.2d at 204. Thus, I find the language fromBookercited by the majority to be dicta from the Supreme Court, offered only in the context of discussing "[t]he purpose of the notice-of-injury requirement,"id.at 481,256 S.E.2d at 204, and not stated as a directive to the trial court as to what specific findings must be made.

Moreover, inJones v. Lowe's Companies, this Court referred to the "purpose of the statutory notice requirement" when explaining how the Industrial Commission should determine whether prejudice exists, not as a requirement as to what findings are necessary for the Full Commission to make.103 N.C. App. 73,76-77,404 S.E.2d 165,167(1991). Indeed, we vacated and remanded the Industrial Commission's Opinion and Award in that case, finding that the record showed that the employee did have a reasonable excuse for lack of written notice so the Commission had to make a determination as to prejudice.Page 359Id.at 76,404 S.E.2d at 167. Significantly, however, we held that "the burden is on Employer to show prejudice."Id.

Likewise, the Supreme Court explicitly stated inBookerits finding that a worker's compensation claim is barred "if the employer is not notified within 30 days of the date the claimant is informed of the diagnosis unless reasonable excuse is madeto the satisfaction of the Industrial Commissionfor not giving such notice andthe Commission is satisfied thatthe employer has not been prejudiced thereby."297 N.C. at 481,256 S.E.2d at 203(emphasis added and quotation omitted). The holdings from these cases make clear that the statute does not require specific findings as to prejudice, only that the Commission find to its "satisfaction" that the employer failed to show prejudice.

In the instant case, the Full Commission made the explicit finding that:

The plaintiff notified the defendant-employer about her accident' on May 16, 2001, within thirty minutes. Her notice was timely. She gave written notice, by filing a Form 18 in June 2002. In light of the defendants' actual notice of the plaintiff's accident in May 2001,the defendants were not prejudiced byher failure to immediately file a written notice.

(Emphasis added).²I find this to be sufficient under the Supreme Court's language inBookerthat a claim will not be barred if "the Commission is satisfied that the employer has not been prejudiced [by the failure to give written notice]."Id.

Additionally, I note that we held inChavis v. TLC HomeHealth Carethat actual knowledge was a reasonable excuse for failure to give written notice:Page 360

Here, the full Commission found that [the defendant-employer] had actual notice of [the plaintiff-employee's] accident on the day it occurred. The full Commission found also that [the defendant-employer] "offered no evidence that might tend to show that they were prejudiced" by any delay in written notification. Although [the defendant-employer] now argues it was prejudiced because it was unable to direct [the plaintiff-employee's] medical treatment, it did not argue this to the full Commission. Also, [the defendant-employer] fails to assert how it was prejudiced by [the plaintiff-employee] seeking medical treatment from her own doctor. We find competent evidence to support the full Commission's finding that [the defendant-employer] had actual knowledge of [the plaintiff-employee's] injury and was not prejudiced by any delay in written notification.

172 N.C. App. 366,378,616 S.E.2d 403,413(2005) (citation omitted),appeal dismissed,360 N.C. 288,627 S.E.2d 464(2006). This holding is binding on other panels of this Court and should be followed, given that the Full Commission's findings amounted to the conclusion that Ms. Richardson had offered a reasonable excuse for the delay in her written notice.See In re Appeal from Civil Penalty,324 N.C. 373,384,379 S.E.2d 30,37(1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").

Accordingly, I would affirm the Full Commission's Opinion and Award as to the issues of notice and prejudice. I agree with the majority's conclusion to affirm the Full Commission's award of compensation for Ms. Richardson's treatment for headaches, carpal tunnel syndrome in her right wrist and thumb, treatment and surgeries on her right knee, and treatment and procedures on her teeth. However, I would likewise affirm the Full Commission's award of compensation for the replacement of both of Ms. Richardson's breast implants, rather than only the right breast implant.

As previously noted, this Court's review of a Full Commission Opinion and Award is strictly limited to determining "whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions ofPage 361law."Deese,352 N.C. at 116,530 S.E.2d at 553. We are therefore precluded from reweighing the evidence and instead review the record only to verify that it "contains any evidence tending to support the finding."Adams,349 N.C. at 681,509 S.E.2d at 414.

Additionally, under our legal framework, "[t]he objective of any proceeding to rectify a wrongful injury resulting in loss is to restore the victim to his original condition, to give back to him that which was lost as far as it may be done by compensation in money."Phillips v. Chesson,231 N.C. 566,571,58 S.E.2d 343,347(1950). Put more simply, "[t]he goal is to make the plaintiff whole."Shaver v. N.C. Monroe Constr.Co.,63 N.C. App. 605,615,306 S.E.2d 519,526(1983),disc. review denied,310 N.C. 154,311 S.E.2d 294(1984);see also Watson v. Dixon,352 N.C. 343,347,532 S.E.2d 175,177-78(2000) (citingBowen v. FidelityBank,209 N.C. 140,144,183 S.E. 266,268(1936) ("The purpose of the law is to place the party as near as may be in the condition which he would have occupied had he not suffered the injury complained of.")). Workers' compensation cases are a subset of these compensatory damages cases; they seek to compensate the employee for medical expenses and the loss of earning capacity while also limiting the liability of employers.See Hendrix v. Linn-Corriher Corp.,317 N.C. 179,190,345 S.E.2d 374,381(1986). Thus, although an employee may not recover traditional monetary compensatory damages, the Workers' Compensation Act nevertheless seeks to make an injured employee whole by providing for her medical treatment to restore her, to the extent possible, to the same condition she was in prior to a compensable accident and injury.

This is true even when the injury merely accelerated or aggravated an employee's pre-existing condition.See Davisv. Columbus County Schs.,175 N.C. App. 95,101,622 S.E.2d 671,676(2005) (citingAnderson v. Northwestern MotorCo.,233 N.C. 372,374,64 S.E.2d 265,267(1951)). "In such a case, where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the pre-existing condition will not be weighed."Wilder v. Barbour BoatWorks,84 N.C. App. 188,196,352 S.E.2d 690,694(1987) (citation omitted).

In the instant case, the relevant finding by the Full Commission states:

10.The damage to plaintiff's breast implants werecaused or aggravated by the accident.Dr. Bowers testified that the accident caused the leak he found in the plaintiff's rightPage 362breast implant. He was not certain whether the accident caused the rippling in her left breast implant or whether the rippling was from normal wear and tear. However, Dr. Bowers noted that, even if there was deterioration of the implants pre-accident, the trauma to the plaintiff's chest would "most definitely" have accelerated or aggravated the process.Dr. Bowers replaced both implants, eventhough only one had ruptured, because the replacementswould have to be symmetrical and evenly matched.Replacement of one implant required replacement ofboth.

(Emphasis added). In his deposition, Dr. Bowers stated that he did not believe the left implant had been ruptured, but "it did have that rippling around the periphery." Although Dr. Bowers did not have the medical records from Ms. Richardson's first implant surgery, he made the assumption that she had had 475 cc implants that were underfilled, which could lead to the rippling effect she had noticed — but he also stated that he was not certain as to the exact amount of fluid Ms. Richardson had in her first implants. Dr. Bowers also confirmed that the right breast implant did appear to be ruptured based on the amount of fluid it was missing, such that there was a lot less fluid in the right implant than in the left implant.

Ms. Richardson testified that she had not had any problems with her breast implants prior to the accident and had been satisfied with the result of that earlier surgery. She further stated that she believed her implants were affected by the accident because "they had decreased. You could see rippling that you could not see before." Additionally, her bra size had changed. Ms. Richardson recounted that she had her breast implants replaced with implants of the same size, because they had decreased in size after the accident and she wanted "[t]o achieve the look that [she] had before the wreck."

This testimony was corroborated by the notes Dr. Bowers took following his initial consultation with Ms. Richardson, which likewise recounted that she reported a decrease in breast size and rippling in both implants following the accident. Moreover, Dr. Bowers wrote that, "[i]f these were initially 475 cc implants, then clearly they are smaller than they were." Following the surgery, Dr. Bowers recorded "[v]ery nice symmetry" and that the procedure "seems to have corrected the deficit which she noticed post car accident."

I believe this testimony and evidence supports the Full Commission's finding that replacement of both implants was necessaryPage 363to ensure that they would be "symmetrical and evenly matched[,]" and that "[r]eplacement of one implant required replacement of the both." Given that the right implant was ruptured and necessitated replacement, the sole means of ensuring that both implants would be symmetrical — and in the condition they were prior to Ms. Richardson's car accident — was to replace and fill both to the same saline level. The majority's holding would force any woman who suffered this type of compensable injury, including one who had undergone reconstructive surgery following a double mastectomy, to choose between a noticeably asymmetrical appearance or out-of-pocket payment for treatment necessary due only to a compensable injury. I cannot agree with such an outcome. Accordingly, I would therefore affirm the Full Commission in this regard. Next, I find that the Full Commission's Opinion and Award recognizes that Maxim Healthcare does, in fact, have a lien on Ms. Richardson's third-party settlement with Nationwide Insurance, and that it further allows for either party to apply to the Superior Court to subsequently determine the amount of that lien. This conclusion is exactly in line with the language and directive of North Carolina General Statute §97-10.2(2005). Accordingly, I see no error or reason to reverse and remand on this issue and would instead affirm the Full Commission.

As noted by the majority, section97-10.2(b) gives an employee the exclusive right to enforce the liability of a third party for an injury. N.C. Gen. Stat. § 9740.2(b). The statute further dictates that "every party to the claim for compensationshall have a lien to the extent of his interest. . . upon any payment made by the third party . . . and such lien may be enforced against any person receiving such funds."Id.§ 9740.2(h). Although the written consent of the employer is generally required before a third-party settlement is valid and enforceable,see id., the statute also allows an exception, for the employee to settle with the third party and then have either the employer or the employee "apply to the resident superior court judge . . . to determine the subrogation amount[.]"Id.§§ 9740.2(h)(2), (j). The statute includes factors that the trial court should consider in using its discretion to determine the amount of the lien the employer should have against the employee's third-party settlement.Id.§ 9740.2(j).

In the instant case, the Full Commission's conclusion states:Page 364

5. Plaintiff's settled claim against Nationwide Insurance is a third-party claim and, thus, N.C. Gen. Stat. §97-10.2applies to provide the defendants a statutory lien.

N.C. Gen. Stat. §97-10.2(j) provides in pertinent part:

[I]n the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose, where the injured employee resides or the presiding judge before whom the cause of action is pending, to determine the subrogation amount.

Thus, the defendants may be entitled to a credit for plaintiff's third party recovery pursuant to N.C. Gen. Stat. §97-10.2(j).

From its plain language, the Opinion and Award "provide [s] the defendants a statutory lien[]" against Ms. Richardson's third-party settlement with Nationwide Insurance. Nevertheless, by stating only that "the defendantsmay beentitled to a credit[,]" the Full Commission complied with the express statutory directive that it is the responsibility of a Superior Court judge — not that of the Full Commission — to determine the actual amount of the lien.

This conclusion of law fully comports with the applicable statute; the Full Commission recognized that Maxim Healthcare has an automatic statutory lien on Ms. Richardson's settlement but left the amount to be determined by a Superior Court judge upon application by either party. As such, the Full Commission has already done in its Opinion and Award what the majority would direct them to do on remand. I would therefore affirm the Full Commission. Finally, I concur in the result only of the dismissal of Maxim Healthcare's third assignment of error. I, too, would dismiss the assignment of error contending that the Full Commission erred in "omitting relevant stipulated documents from the transcript of the evidence prepared by the Industrial Commission." Maxim Healthcare failed to present or discuss any actual argument as to this assignment of error in their brief to this Court; accordingly, under our Rules of Appellate Procedure, it must be dismissed. N.C. R. App. P. 28(b)(6). Because Maxim Healthcare essentially abandoned this assignment of error by failing to argue it, I would dispose of this assignment of error in the same manner the majority has treated Maxim Healthcare'sPage 365assignment of error concerning the Full Commission's Finding of Fact number 24, namely, to dismiss it as abandoned.