Betts v. N.C. Dep't of Health & Human Servs.-Cherry Hosp.

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MARY BETTS, Employee, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES - CHERRY HOSPITAL, Employer, SELF-INSURED (CCMSI, Third-Party Administrator), Defendants.

No. COA22-324

Court of Appeals of North Carolina

July 5, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 10 May 2023.

Appeal by plaintiff from opinion and award entered 1 February 2022 by Commissioner Wanda Blanche Taylor for the North Carolina Industrial Commission, I.C. No. X59367.

The Sumwalt Group, by Vernon Sumwalt, and Lucas Denning &Ellerbe, P.A., by Sarah E. Ellerbe and Robert Lucas, for plaintiff-appellant.

Attorney General Joshua H. Stein, by Assistant Attorney General Heather Haney, for appellee North Carolina Department of Health and Human Services - Cherry Hospital, et al.

Lennon Camak &Bertics, PLLC, by Michael W. Bertics, and The Harper Law Firm, PLLC, by Richard B. Harper and Joshua O Harper, for Amicus Curae North Carolina Advocates for Justice.

Brewer Defense Group, by Joy H. Brewer and Ginny P. Lanier, for Amicus Curae North Carolina Association for Defense Attorneys, et al.

GORE Judge

Plaintiff Mary Betts appeals the Full Commission's denial of her claim for extended disability benefits. We consider two issues on appeal: (i) whether the Commission misapprehended the law in denying plaintiff's claim for extended compensation under N.C. Gen. Stat. section 97-29(c); and (ii) whether the Commission appropriately determined that plaintiff's right shoulder injury is not the proximate and compensable consequence of her original ankle injury. Upon review, we remand in part and affirm in part.

I.

On 12 August 2011, plaintiff sustained an admittedly compensable injury by accident resulting in injury to her right ankle arising out of and in the course of her employment as a Heath Care Technician at Cherry Hospital. Plaintiff was injured during a confrontation with a combative patient.

Defendants admitted liability and compensability for plaintiff's right ankle injury. Defendants paid plaintiff temporary total disability benefits beginning 13 August 2011, plaintiff's first date of disability.

On 18 December 2019, plaintiff filed a Form 33 Request for Hearing, seeking payment of extended compensation under N.C. Gen. Stat. section 97-29(c). On 12 March 2021, a deputy commissioner filed an Opinion and Award, approving the claim for extended compensation.

On 15 March 2021, defendants appealed to the Full Commission. Defendants filed their Form 44 Application for Review on 18 May 2021. On 1 February 2022, the Full Commission reversed the deputy commissioner and denied plaintiff's claim for extended compensation.

On 23 February 2022, plaintiff appealed to this Court. North Carolina General Statutes section 97-86 enables this Court to review final awards of the Industrial Commission.

II.

In this case, the Full Commission concluded as a matter of law that:

N.C. Gen. Stat. § 97-29(c) does not invoke "disability" as defined by N.C. Gen. Stat. § 97-2(9), nor does it require the employee to prove that she is unable to obtain competitive employment. Indeed, to qualify for benefits extending beyond 500 weeks, the statute on its face requires the employee to prove "by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity."

The Full Commission subsequently engaged in statutory construction- resorting to a collegiate dictionary to ascertain the plain, ordinary, and literal meaning of the words "total," "loss," and "capacity." The Full Commission construed section 97-29(c):

as requiring Plaintiff to prove by a preponderance of the evidence that she has sustained a complete destruction of the ability to earn wages. Here, Plaintiff has satisfied the time prerequisites to qualify for extended compensation as set out in N.C. Gen. Stat. § 97-29(c). However, the Full Commission concludes that Plaintiff has the capacity to earn some wages, and thus, has failed to prove by the preponderance of the evidence that she has sustained a "total loss of wage-earning capacity" due to her compensable right ankle injury. As such, Defendants are entitled to terminate compensation as of [13 March 2021] (the last day of the 500-week period following Plaintiff's date of first disability).

Plaintiff asserts the Full Commission misapprehended the law in denying her claim for extended compensation under section 97-29(c). Specifically, plaintiff argues the Full Commission: (i) erred by resorting to a collegiate dictionary, rather than decades of appellate precedent, to define the term of art "total loss of wage-earning capacity;" and (ii) erred by concluding that plaintiff was not entitled to extended compensation on grounds that she has the capacity to earn some wages. We agree.

A.

We review the Full Commission's conclusions of law de novo. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004). However, we must refrain from an exercise in statutory construction in the instant case. We are guided by our recent decision in Sturdivant v. State Dep't of Pub. Safety, wherein we addressed the proper interpretation of section 97-29(c) as "an issue of first impression." ___ N.C. App.___,___,___ S.E.2d ___,___ (2023), disc. rev. pending, 130-P-23-1. Our Supreme Court has instructed this Court, "[w]here 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." In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act etc., 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).^[1]

B.

"[I]n 2011, our General Assembly reinstated a cap on eligibility for temporary, total disability benefits of 500 weeks 'unless the employee qualifies for extended compensation under subsection (c)[.]'" Sturdivant,___ N.C.App. at___,___ S.E.2d at___ (quoting N.C. Gen. Stat. § 97-29(b)). "An employee qualifies for extended temporary, total disability benefits, beyond the 500-week cap, if 'pursuant to the provisions of G.S. 97-84, . . . the employee shall prove by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity.'" Id. (quoting N.C. Gen. Stat. § 97-29(c)).

In Sturdivant, we held that the Full Commission erred by "conclud[ing] that an employee who has some work capabilities but cannot find a compatible job, though 'totally disabled', has not suffered a 'total loss of wage-earning capacity' to qualify for extended benefits under Section 97-29(c)." Id. at___,___ S.E.2d at___ . In reaching this holding, we reasoned "that 'total disability' (under Section 97-29(b)) and 'total loss of wage-earning capacity' (under Section 97-29(c)) are synonymous." Id. at___,___ S.E.2d at___ . In other words, as Judge Dillon observed, plaintiff's "burden of showing a 'total loss of wage-earning capacity' under Section 97-29(c) is the same as his burden of showing a 'total disability' to receive benefits under Section 97-29(b). For instance, one who can perform some work may still qualify for extended benefits if no one would hire him." Id. at___,___ S.E.2d at___ (Opinion of Dillon, J.).

Consistent with our holding in Sturdivant, in this case, the Full Commission erroneously concluded that" N.C. Gen. Stat. § 97-29(c) does not invoke 'disability' as defined by N.C. Gen. Stat. § 97-2(9)," and erred by determining that plaintiff failed to meet her burden to prove "a total loss of wage-earning capacity" based exclusively upon a finding that "plaintiff has the capacity to earn some wages."

C.

However, our inquiry does not end here. In Sturdivant, Judge Dillon ultimately upheld the Full Commission's Decision and Order because, "in other parts of its order, the Commission seem[ed] to apply the correct analysis and d[id] make findings of fact which support[ed] its ultimate decision based on our interpretation of Section 97-29(c)." Id. at___,___ S.E.2d at___ (Opinion of Dillon, J.). Here, the Commission's Opinion and Award is distinguishable from the written order under review in Sturdivant.

"The burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment." Russell v. Lowe's Prod. Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993) (citation omitted). An employee meets this burden of showing a total-loss of wage-earning capacity in one of four ways:

(1) by showing he is incapable of performing any work;

(2) by showing that he is capable of work but that "after a reasonable effort on his part, been unsuccessful" in finding employment;

(3) by showing that he is capable of work but that "it would be futile" to seek other employment "because of preexisting conditions; i.e., age, inexperience, lack of education";

(4) by showing he has obtained employment, but at a lower wage than he was earning before the accident.

Sturdivant,___ N.C. App. at___,___ S.E.2d at___ (citing Russell, 108 N.C.App. at 765, 425 S.E.2d at 457) (Opinion of Dillon, J.). "Only the first three ways are relevant here, as the fourth concerns partial loss wage-earning capacity." Id.

Unlike in Sturdivant, the Commission in this case failed to make findings demonstrating it considered these factors. Instead, the Commission based its denial of extended compensation upon its erroneous application of section 97-29(c), which it interpreted as "requiring [p]laintiff to prove by a...