{ "id": 11710453, "name": "DELBERT G. SWAIN, Employee Plaintiff v. C & N EVANS TRUCKING CO., INC., Employer SELF-INSURED (ASSOCIATED RISK MANAGEMENT, SERVICING AGENT), Defendant", "name_abbreviation": "Swain v. C & N Evans Trucking Co.", "decision_date": "1997-05-20", "docket_number": "No. COA96-764", "first_page": "332", "last_page": "337", "citations": [ { "type": "official", "cite": "126 N.C. App. 332" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 ALR5th 907", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "72 ALR4th 905", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "395 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "163" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526616 ], "year": 1990, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0248-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "479 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "345 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54050, 53956, 53868, 53842, 54108 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0179-04", "/nc/345/0179-05", "/nc/345/0179-02", "/nc/345/0179-01", "/nc/345/0179-03" ] }, { "cite": "474 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "810-11" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915507 ], "pin_cites": [ { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0777-01" ] }, { "cite": "419 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "179", "parenthetical": "legal issue presented where resolution of issue requires application of fixed rules of law" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527264 ], "year": 1992, "pin_cites": [ { "page": "145", "parenthetical": "legal issue presented where resolution of issue requires application of fixed rules of law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0140-01" ] }, { "cite": "73 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "236 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626252 ], "year": 1952, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0435-01" ] }, { "cite": "217 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "288 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565113 ], "year": 1975, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0122-01" ] } ], "analysis": { "cardinality": 622, "char_count": 12845, "ocr_confidence": 0.75, "pagerank": { "raw": 1.6791801124842666e-07, "percentile": 0.6972215368540792 }, "sha256": "79c8bab05beea4de0da7e8ab3e4442f4ed8586eae04c224fbfdf681c8eb1c3ef", "simhash": "1:f5b783ee58cb641c", "word_count": 2050 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "DELBERT G. SWAIN, Employee Plaintiff v. C & N EVANS TRUCKING CO., INC., Employer SELF-INSURED (ASSOCIATED RISK MANAGEMENT, SERVICING AGENT), Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nDelbert Swain (plaintiff) appeals from an opinion and award of the North Carolina Industrial Commission (Commission) setting aside a Form 21 Agreement (Agreement) with C & N Evans Trucking Co., Inc. (defendant) and terminating plaintiffs compensation benefits.\nOn 6 June 1991 plaintiff sustained an injury to his foot by accident arising out of and in the course of his employment with defendant. On 9 June 1991 an Agreement was agreed to by defendant, its workers\u2019 compensation carrier and plaintiff and approved by the Commission. The Agreement provided that the \u201cactual average weekly wage of the employee at the time of said injury\u201d was \u201c1469.58\u201d and that the defendant and the \u201cinsurance carrier hereby undertake to pay compensation to [plaintiff] at the rate of $406.00 per week beginning June 15, 1991, and continuing for necessary weeks.\u201d\nJudy Johnson (Johnson), personnel and safety director for defendant, calculated plaintiffs average weekly wage for the Agreement. She \u201cpulled [plaintiffs] payroll file\u201d and determined his wage by \u201cus[ing] his gross trips earnings and dividing] it by the number of weeks worked.\u201d Johnson did not know the amount of plaintiffs expenses when she figured his average weekly wages and did not ask him for his expenses or his assistance in determining that figure. Johnson called plaintiff prior to his receiving the Agreement and told him that he was required to sign it to receive any benefits.\nPlaintiff presented evidence that when he signed the Agreement he did not know how his average weekly wage was determined and the $1,469.58 on the Agreement was \u201cprobably [his] average gross\u201d wages. He assumed that no expenses had been deducted from that figure.\nClarence Evans (Evans), the owner of defendant who had been an owner/operator in the trucking business for fifteen years, knew that owner/operators kept their own expenses. According to Evans, \u201ca good rule of thumb\u201d as an \u201cowner/operator\u201d in the trucking business, is that \u201ctypical take-home pay is generally about a third of the gross revenue.\u201d According to Evans, Johnson wrote down plaintiffs gross earnings because \u201cshe had no idea what his expenses is [sic] out on the road.\u201d\nDefendant filed three separate applications to stop payment of compensation (Form 24) based upon plaintiff being \u201cuncooperative and noncompliant with vocational rehabilitation.\u201d The Commission notified plaintiff of its receipt of each Form 24 and on 4 December 1992 and 29 March 1993 ordered him \u201cto cooperate with rehabilitation\u201d and stated that benefits were contingent upon such cooperation. On 3 December 1993 the third Form 24 was approved by the Commission at which time defendant ceased paying compensation to plaintiff. The Form 24 alleged that plaintiff had been \u201cauthorized to return to his former work duties\u201d by Dr. Noah and plaintiff \u201chas been uncooperative and noncompliant with vocational rehabilitation.\u201d Although plaintiff still complained that he could not work due to pain in his foot, the Commission did \u201cnot accept as credible plaintiff\u2019s testimony.\u201d\nAt the hearing before the Commission plaintiff presented evidence that he originally went to vocational rehabilitation meetings once a week, but eventually the counselor told him that she was required to start meeting with him only once a month. Defendant stated that the vocational rehabilitation services lasted only two months longer before they were stopped, but did not indicate why they were stopped. Plaintiff stated that he was fully cooperative during the rehabilitation sessions and generated from five to seven of his own job leads each week in addition to those found for him by the rehabilitation counselors.\nThere was also evidence that plaintiff tried rehabilitation of his foot \u201ctwo or three times\u201d and quit rehabilitation in March 1992. When plaintiff was later offered further rehabilitation he decided not to participate. The notes of the case manager, which are a part of this record, reveal that plaintiff in March and April of 1992 was \u201cunwilling to participate in any treatment approaches that may [have] improve[d] his foot symptoms.\u201d\nThe Commission found as a fact that plaintiff refused \u201cas of 29 March 1993\u201d to \u201caccept rehabilitation services\u201d and that when the Agreement was signed, both parties \u201cwere operating under a mutual mistake of fact as to plaintiffs average weekly wage.\u201d\nThe Commission concluded that the Agreement should be set aside based on the parties\u2019 \u201cmutual mistake of fact\u201d and that plaintiff was barred from receiving further compensation due to his refusal \u201cas of 29 March 1993\u201d to participate in vocational rehabilitation. Plaintiff was entitled to receive compensation for the temporary disability of his foot at the rate of $326.26 per week, subject to a credit to defendant for compensation already paid. Plaintiff was also entitled to 10.8 weeks of compensation at the same rate for the seven and one-half percent disability of his foot, subject to a credit to defendant for compensation previously paid.\nBased on its conclusions the Commission determined that \u201c[i]nasmuch as defendant has over-paid compensation in the amount\u201d and \u201cinasmuch as defendant has over-paid compensation in the terms of the number of weeks . . . due and payable . . . plaintiff is entitled to no further compensation\u201d and \u201cdefendant is entitled to a credit for the amount of its overpayment of compensation made to plaintiff.\u201d\nThe issues are whether (I) there was a mutual mistake of fact as to plaintiffs average weekly wage requiring the Agreement be set aside, and (II) the evidence supports the finding of the Commission that the plaintiff refused to accept vocational rehabilitation.\nI\nPlaintiff argues the Commission erred when it set aside the Agreement on the grounds that it was entered into as a result of a mutual mistake of fact.\nSection 97-17 of the North Carolina General Statutes provides that the Commission may set aside a Form 21 Agreement if it appears that the agreement was entered into under a mutual mistake of fact. N.C.G.S. \u00a7 97-17 (1991). A mutual mistake of fact is a mistake \u201ccommon to both parties and by reason of it each has done what neither intended.\u201d Financial Services v. Capitol Funds, 288 N.C. 122, 135, 217 S.E.2d 551, 560 (1975). A mistake of law ordinarily \u201cdoes not affect the validity of a contract.\u201d Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 495 (1952). If, however, the mistake of law is attended by \u201cfraud, misrepresentation, undue influence, or abuse of a confidential relationship\u201d the mistake can support rescission of the agreement. 13 Am. Jur. 2d, Cancellation of Intruments \u00a7 36, at 526 (1964).\nIn this case the alleged error in the Agreement relates to the computation of the \u201caverage weekly wages.\u201d The determination of the plaintiff\u2019s \u201caverage weekly wages\u201d requires application of the definition set forth in the Workers\u2019 Compensation Act, N.C.G.S. \u00a7 97-2(5) (1991), and the case law construing that statute and thus raises an issue of law, not fact. See Lawrence v. Tise, 107 N.C. App. 140, 145, 419 S.E.2d 176, 179 (1992) (legal issue presented where resolution of issue requires application of fixed rules of law); Craft v. Bill Clark Construction Co., 123 N.C. App. 777, 780, 474 S.E.2d 808, 810-11 (not always appropriate to deduct expenses incurred in earning those wages in computing \u201caverage weekly wages\u201d), disc. rev. denied, 345 N.C. 179, 479 S.E.2d 203 (1996). Eecause there is no evidence of fraud, misrepresentation, undue influence or abuse of a confidential relationship, any mistake made by either or both of the parties to the Agreement in the computation of the \u201caverage weekly wages\u201d is not a basis for setting it aside.\nIn any event, even assuming that the inclusion of the sum of $1,469.58 as the \u201caverage weekly wage\u201d was not a mistake of law and that plaintiff\u2019s expenses should have been deducted from the gross income in calculating the \u201caverage weekly wages,\u201d any error was the result of the defendant\u2019s negligence in calculating the figure. The defendant prepared the Agreement (without checking with the plaintiff to determine his expenses) and delivered it to the plaintiff with instructions to sign it in order to receive his benefits. Equity will not relieve a party from an agreement \u201centered into by' reason of a mistake resulting from negligence where the means of knowledge were easily accessible.\u201d 13 Am. Jur. 2d, Cancellation of Instruments \u00a7 34, at 525 (1964). The Commission therefore erred in setting aside the Agreement.\nII\nSection 97-25 of the Workers\u2019 Compensation Act provides that \u201c[t]he refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the [Commission] shall bar said employee from further compensation until such refusal ceases.\u201d N.C.G.S. \u00a7 97-25 (1991). The standard of review on appeal from the Commission is whether there is any competent evidence to support the Commission\u2019s findings of fact and whether those findings support its conclusions. Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).\nThere is evidence in this record to support the finding of the Commission that the plaintiff refused to accept rehabilitation services after being ordered to do so by the Commission. Although the evidence is conflicting, there is competent evidence that the plaintiff quit rehabilitation of his foot in March of 1992 after only two or three sessions and was unwilling to pursue further treatment. The Commission, on 29 March 1993, ordered the plaintiff to \u201ccooperate with rehabilitation\u201d and the evidence supports the finding that he did not do so. Thus the Commission was justified in suspending benefits effective 29 March 1993.\nHaving held that the Commission erred in setting aside the Agreement this case must be remanded to the Commission for reinstatement of the Agreement and defendant is required to pay all sums, including interest, which should have been paid pursuant to the Agreement. See Mullinax v. Fieldcrest Cannon, Inc., 100 N.C. App. 248, 253, 395 S.E.2d 160, 163 (1990). Defendant need not, however, make any payments that were due subsequent to 29 March 1993. This suspension of payments shall remain in place until the Commission determines, pursuant to section 97-25, that plaintiffs refusal to accept vocational rehabilitation has ceased.\nAffirmed in part, reversed and remanded.\nJudges WALKER and McGEE concur.\n. We are aware that the Commission had earlier on 4 December 1992 ordered the plaintiff to cooperate with rehabilitation and payments could have been suspended by the Commission effective on that date. The Commission, however, chose not to suspend the payments until 29 March 1993, the date of the second order, and thus the plaintiff has not been prejudiced by the Commission\u2019s selection of the later date. The defendant has not complained of this decision by the Commission.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Lennard D. Tucker for employee-plaintiff.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton, and Karen K. Prather, for employer-defendant." ], "corrections": "", "head_matter": "DELBERT G. SWAIN, Employee Plaintiff v. C & N EVANS TRUCKING CO., INC., Employer SELF-INSURED (ASSOCIATED RISK MANAGEMENT, SERVICING AGENT), Defendant\nNo. COA96-764\n(Filed 20 May 1997)\n1. Workers\u2019 Compensation \u00a7 341 (NCI4th)\u2014 Form 21 Agreement \u2014 erroneous average weekly wage \u2014 mistake of law \u2014 not basis for setting aside\nThe Industrial Commission erred in setting aside a Form 21 Agreement for compensation on the ground that it was entered as a result of mutual mistake of fact as to the amount of plaintiffs average weekly wage since the alleged mistake was one of law, and there was no evidence of fraud, misrepresentation, undue influence, or abuse of a confidential relationship. Assuming that the error was not a mistake of law, it was the result of defendant employer\u2019s negligence and is not a basis for setting aside the Agreement. N.C.G.S. \u00a7 97-17.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 513-515.\n2. Workers\u2019 Compensation \u00a7 296 (NCI4th)\u2014 suspension of benefits \u2014 refusal to accept rehabilitation services\nThe Industrial Commission was justified in suspending plaintiff\u2019s workers\u2019 compensation benefits pursuant to N.C.G.S. \u00a7 97-25 where the evidence in the record supported the Commission\u2019s findings that plaintiff refused to accept rehabilitation services after being ordered to do so by the Commission.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 389, 390.\nWorkers\u2019 compensation: reasonableness of employee\u2019s refusal of medical services tendered by employer. 72 ALR4th 905.\nWhat amounts to failure or refusal to submit to medical treatment sufficient to bar recovery of worker\u2019s compensation. 3 ALR5th 907.\nAppeal by plaintiff from Opinion and Award for the Full Commission filed 30 January 1996. Heard in the Court of Appeals on 19 March 1997.\nLennard D. Tucker for employee-plaintiff.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton, and Karen K. Prather, for employer-defendant." }, "file_name": "0332-01", "first_page_order": 370, "last_page_order": 375 }