{ "id": 9366085, "name": "DAVID POLLOCK, Employee, Plaintiff v. WASPCO CORPORATION, Employer, SELF-INSURED, Key Risk Management Services, Carrier, Defendants", "name_abbreviation": "Pollock v. Waspco Corp.", "decision_date": "2002-02-05", "docket_number": "No. COA01-136", "first_page": "381", "last_page": "388", "citations": [ { "type": "official", "cite": "148 N.C. App. 381" } ], "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": "476 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "440" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888498 ], "year": 1997, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0072-01" ] }, { "cite": "549 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "563" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435851 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "110" }, { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0102-01" ] }, { "cite": "501 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652441 ], "year": 1998, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0695-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "181 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "484 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "367", "parenthetical": "quoting Watkins v. Central Motor Lines, 279 N.C. 132,137,181 S.E.2d 588, 592 (1971)" } ], "opinion_index": 0 }, { "cite": "346 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139539 ], "year": 1997, "pin_cites": [ { "page": "157", "parenthetical": "quoting Watkins v. Central Motor Lines, 279 N.C. 132,137,181 S.E.2d 588, 592 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0154-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "463", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "6", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "254", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "year": 1997, "pin_cites": [ { "page": "680", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] } ], "analysis": { "cardinality": 723, "char_count": 17571, "ocr_confidence": 0.752, "pagerank": { "raw": 4.4793276177203605e-08, "percentile": 0.28096078188342255 }, "sha256": "a2b8b24480d60e5eec921d3b72dc01d9fda6b37ae3c6b83edc7ca244d45504cf", "simhash": "1:99e17f8a93b2f2c0", "word_count": 2713 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and HUDSON concur." ], "parties": [ "DAVID POLLOCK, Employee, Plaintiff v. WASPCO CORPORATION, Employer, SELF-INSURED, Key Risk Management Services, Carrier, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nDavid Pollock (\u201cplaintiff\u2019) appeals from an opinion and award of the Commission which (1) denied plaintiffs request for additional compensation based upon a change of condition, (2) relieved Waspco Corporation (employer \u201cdefendant\u201d) of its obligation to pay plaintiff based on a previous opinion and award dated 9 May 1997, (3) denied plaintiffs request for penalties pursuant to G.S. \u00a7 9748(g), and (4) required defendant to pay plaintiff limited future medical treatments. We affirm the Commission\u2019s opinion and award in part and reverse and remand in part.\nI. Facts\nDefendant employed plaintiff as a drywall finisher. Plaintiff injured his back on 20 June 1994 while lifting a 50 to 70 pound bucket of drywall compound. Plaintiff\u2019s salary averaged $394.68 per week at the time of the injury.\nOn 27 June 1994, defendant filed Form 19, \u201cEmployer\u2019s Report of Injury to Employee,\u201d with the Commission reporting plaintiff\u2019s injury. On 7 December 1994, the Commission approved a Form 21, \u201cAgreement for Compensation for Disability,\u201d whereby defendant agreed to pay plaintiff $236.01 per week for 13 weeks of total disability beginning 20 June 1994, subject to verification of wages. This amount was based on an erroneous average weekly wage of $354.00. The form also indicated that plaintiff had returned to work for defendant on 19 September 1994. Plaintiff visited many health care providers and worked for numerous employers after 1994.\nSometime after 22 June 1995, plaintiff filed Form 18, \u201cNotice of Accident to Employer,\u201d with the Commission seeking further indemnity benefits. On 17 July 1995, defendant filed Form 61, \u201cDenial of Workers\u2019 Compensation Claim,\u201d stating that plaintiff had \u201cclaimed a change of condition .... Employee [plaintiff] claims recurrence of pain while working June 23, 1995. Our denial is based on the fact that there was no change of condition but a new and separate incident . ...\u201d On 10 August and 6 October 1995, plaintiff filed two Form 33\u2019s, \u201cRequest that Claim be Assigned for Hearing.\u201d Plaintiff asserted that defendant denied his claim and requested compensation benefits from 20 June 1994 to the \u201ccurrent date.\u201d\nDeputy Commissioner Lawrence B. Shuping, Jr. (\u201cDeputy Shuping\u201d) conducted a hearing on 22 July 1996. Deputy Shuping filed an opinion and award on 9 May 1997. The award granted plaintiff compensation for (1) corrected \u201ctemporary total disability,\u201d (2) adjusted \u201ctemporary partial disability,\u201d (3) additional \u201ctemporary total disability,\u201d (4) \u201cpermanent partial disability,\u201d under G.S. \u00a7 97-30, (5) reasonable attorney fees, and (6) medical expenses.\nFirst, the corrected \u201ctemporary total disability\u201d required defendant to pay $27.12 per week covering periods 20 June 1994 through 18 September 1994 and 6 October 1994 through 16 October 1994. These amounts were ordered to correct the \u201cunderpayment of temporary total disability benefits based on an incorrect average weekly wage . . . ,\u201d which resulted from an incorrect average weekly wage reported on Form 21 filed 7 December 1994.\nSecond, the adjusted \u201ctemporary partial disability\u201d award ordered defendant to pay compensation from 20 October 1994 to 26 December 1994 based on \u201ctwo-thirds of the difference between the $394.68 average weekly wage that plaintiff earned at time of injury and the reduced average weekly wage that he was able to earn during that period . . . .\u2019\u2019 Deputy Shuping was unable to determine, however, how much plaintiff was earning at that time. He presumed that plaintiff and defendant would \u201cagree to the appropriate additional amount of compensation due without the necessity of a supplemental Opinion and Award or further hearing.\u201d\nThird, the additional \u201ctemporary total disability\u201d totaled $236.13 per week from 22 June 1995 through 16 October 1995. This benefit was based on a \u201csubstantial change for the worse in [plaintiff\u2019s] condition subsequent to the Industrial Commission\u2019s last Award . . . .\u201d This award was to be reduced pursuant to G.S. \u00a7 97-42.1 for unemployment benefits plaintiff received from the Virginia Employment Security Commission. Deputy Shuping\u2019s award presumed that plaintiff and defendant could \u201cobtain the specific amount and period of unemployment compensation benefits from the Employment Security Commission and agree to the appropriate credit without the necessity of a supplemental Opinion and Award or further hearing.\u201d\nFourth, the \u201cpermanent partial disability\u201d required defendant to pay $183.13 per week pursuant to G.S. \u00a7 97-30. This award was based on Deputy Shuping\u2019s finding and conclusion that plaintiff had reached maximum medical improvement on 3 October 1995. Plaintiff retained a permanent back injury and \u201cwas no longer capable of engaging in the type of heavy work required by drywall finishing; but rather, was only capable of lighter work earning less wages .. ..\u201d Payments were required from 1 November 1995 to the scheduled hearing date of 22 July 1996, \u201cand thereafter continuing at the same rate so long as he [plaintiff] remains partially disabled, subject to a change of condition, medical or employment.\u201d This award was not offset by plaintiff\u2019s wages or unemployment benefits.\nThe opinion and award also granted plaintiff reasonable attorney\u2019s fees and all plaintiff\u2019s reasonable and necessary medical expenses.\nNeither defendant nor plaintiff appealed from Deputy Shuping\u2019s opinion and award.\nOn or about 16 September 1997, plaintiff filed a \u201cMotion for Order to Show Cause and Motion to Compel Payments of Compensation Benefits.\u201d The record does not contain the disposition of these motions. Plaintiff filed Form 33, \u201cRequest that Claim be Assigned for Hearing,\u201d and a \u201cMotion for Review and Modification of Prior Opinion and Award Based upon a Change in Claimant\u2019s Condition for the Worse Pursuant to N.C.G.S. \u00a7 97-47\u201d on 16 January 1998. On 24 January 1998, plaintiff filed a \u201cMotion to Compel Payment for Medical Expenses Pursuant to N.C.G.S. \u00a7 97-25.\u201d\nDefendant executed a \u201cResponse to Request that Claim be Assigned for Hearing\u201d on 4 March 1998, stating that: \u201c[w]e have received no information regarding any alleged change of condition since the Opinion and Award . . . filed May 9, 1997 and the same is therefore denied; no physician has diagnosed any change in plaintiff\u2019s physical condition; any alleged diminishment in plaintiff\u2019s wage earning capacity is not related to his compensable injury.\u201d\nPlaintiff and defendant entered into a pre-trial agreement on 1 October 1998. Deputy Commissioner W. Bain Jones, Jr. (\u201cDeputy Jones\u201d) convened a hearing that day. Deputy Jones halted the hearing and issued an order on 2 October 1998 requiring plaintiff to document his sources of income for all relevant periods. The hearing resumed on 18 November 1998. Deputy Jones stated that \u201cthere is still outstanding information needed .... Plaintiff\u2019s counsel is allowed seven days from this hearing ... to contact the . . . Virginia Unemployment Commission . . . relating to benefits . . . paid to plaintiff and ask that those records be certified and then provided to me.\u201d\nOn 30 August 1999, Deputy Jones filed an opinion and award. He found that (1) \u201c[bjased on the inconsistencies in plaintiffs testimony and other credible evidence, and based upon plaintiff\u2019s demeanor at hearing . . . plaintiff has failed to meet his burden of proof that he was partially disabled at any time after July 1, 1996,\u201d (2) defendant had paid all benefits due and payable under Deputy Shuping\u2019s opinion and award, and (3) circumstances beyond defendant\u2019s control caused defendant to pay plaintiff late. The opinion and award obviated defendant\u2019s obligation under Deputy Shuping\u2019s opinion and award after 22 July 1996, denied plaintiff\u2019s request for additional benefits, and directed defendant to pay all of plaintiff\u2019s medical expenses.\nPlaintiff appealed to the Commission on 9 September 1999. After review on 22 May 2000, the Commission filed an opinion and award on 2 October 2000 affirming Deputy Jones\u2019 opinion and award. Plaintiff appeals.\nII. Issues\nPlaintiff assigns as error the Commission\u2019s (1) finding that plaintiff earned an income greater than the average weekly wage at the time of injury, (2) relieving defendant of its obligation to pay worker\u2019s compensation based on Deputy Shuping\u2019s opinion and award, and (3) failing to sanction defendant for its willful noncompliance with Deputy Shuping\u2019s opinion and award.\nIII. Plaintiff\u2019s Wage\nPlaintiff argues that there is no evidence to support a finding that plaintiff earned wages greater or equal to $394.68 per week subsequent to 20 June 1994, and that it was error to relieve defendant of its obligation to pay plaintiff pursuant to Deputy Shuping\u2019s order and award. We disagree.\nOur review of an opinion and award is limited to \u201cwhether there is any competent evidence in the record to support the Commission\u2019s findings of fact and whether these findings support the Commission\u2019s conclusions of law. Lineback v. Wake County Bd. of Comm\u2019rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997) (citation omitted). Findings of fact are conclusive upon appeal if supported by competent evidence, even if there is evidence to support a contrary finding. Morrison v. Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981) (citations omitted).\nThe Commission found that (1) \u201cplaintiff began working for Thomas Brown at $12.00 per hour ... on July 1, 1996,\u201d (2) plaintiff worked for employer Joe Roper as a drywall finisher from February 1997 to May 1997, and (3) plaintiff had returned to work after 1 July 1996 at wages greater than he earned before his injury on 20 June 1994.\nPlaintiffs own admissions, both from discovery responses and his testimony, support Deputy Jones\u2019 findings that plaintiff earned more than his pre-injury wages. At the 1 October 1998 hearing the following exchange occurred on cross-examination:\nDefense Counsel: It [discovery request] says you worked for him [Thomas Brown] from July of 1996 to December of 1996, isn\u2019t that right. That\u2019s what it says, right?\nPlaintiff: That\u2019s what it says, yes.\nDefense Counsel: And you were earning $12 an hour for Mr. Brown.\nPlaintiff: Yes, that\u2019s what\u2014\nDefense Counsel: That\u2019s more than you were earning with Waspco, isn\u2019t that right?\nPlaintiff: That\u2019s correct.\nPlaintiff also disclosed that he was earning more than his pre-injury wage at the 18 November 1998 hearing.\nDefense Counsel: All right. What did you do for Mr. Roper?\nPlaintiff: Same thing, drywall finishing. I worked with him from \u2014 I think it\u2019s from February to May, around the end of May, I believe ....\nDefense Counsel: How much did you make?\nPlaintiff: With Mr. \u2014 I can\u2019t remember what he paid me\u2014 Mr. Roper. To be honest I don\u2019t \u2014 -I don\u2019t remember exactly. Eleven\u2014\nWe hold that there was competent evidence to support the Commission\u2019s finding of fact that plaintiff earned wages greater than or equal to his pre-injury average weekly wage.\nIV. Defendant\u2019s Duty to Pav\n\u201c \u2018If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work In re Stone v. G & G Builders, 346 N.C. 154, 157, 484 S.E.2d 365, 367 (1997) (quoting Watkins v. Central Motor Lines, 279 N.C. 132,137,181 S.E.2d 588, 592 (1971)). \u201cHowever, as stated in Rule 404(1) of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission, this presumption of continued disability is rebuttable.\u201d Id.\nPlaintiff entered the hearing before Deputy Jones with a presumption of disability that attached based upon Deputy Shuping\u2019s opinion and award of 19 May 1997. Defendant rebutted that presumption using plaintiff\u2019s testimonial evidence showing that plaintiff returned to work earning wages equal to or greater than his pre-injury wages after 1 July 1996. We conclude that this finding rebutted plaintiff\u2019s presumption. We hold that this finding, which is supported by competent evidence, relieves defendant of its obligation to pay plaintiff pursuant to Deputy Shuping\u2019s opinion and award for \u201cpermanent partial disability,\u201d under G.S. \u00a7 97-30. This assignment of error is overruled.\nWe note that Deputy Shuping\u2019s award, by its own terms, awarded plaintiff benefits up to the date of the hearing on 22 July 1996, as well as benefits thereafter subject to any \u201cchange of condition, medical or employment.\u201d Defendant never appealed from that opinion and award. Deputy Jones found subsequently that plaintiff\u2019s employment condition improved on 1 July 1996. This finding cannot affect that portion of Deputy Shuping\u2019s award requiring payment through the hearing date certain of 22 July 1996. Defendant is therefore only entitled to cease paying after 22 July 1996 pursuant to Deputy Jones\u2019 award. This date should be modified upon remand.\nV. Sanctions\nPlaintiff contends the Commission erred by failing to impose a 10% penalty for violation of N.C. Gen. Stat. \u00a7 97-18 (1998). Deputy Shuping awarded plaintiff four separate compensation awards. We agree with regards to Deputy Shuping\u2019s awards one and four as outlined above.\nG.S. \u00a7 97-18(e) requires the Commission to assess a 10% penalty for an unpaid installment if the payment is not made withing 14 days after it becomes due. Tucker v. Workable Company, 129 N.C. App. 695, 703, 501 S.E.2d 360, 366 (1998); Bostick v. Kinston-Neuse Corp., 145 N.C. App. 102, 110, 549 S.E.2d 558, 563 (2001). The Commission concluded that plaintiff was not entitled to penalties for receiving late payments. In support of this conclusion it found that:\nThe amount of the benefits due plaintiff as awarded in Deputy Commissioner Shuping\u2019s May 9, 1997 Opinion and Award was intentionally left uncertain due to a lack of information. Deputy Commissioner Shuping... instructed \u2018the parties\u2019 to ascertain the exact amounts owed subsequent to his decision. The sources of information that were available to the Commission and the parties subsequent to that Opinion and Award and could clarify the exact amounts owed plaintiff were: plaintiff\u2019s Virginia unemployment records, plaintiff\u2019s tax returns, plaintiff\u2019s testimony, and plaintiff\u2019s answers to interrogatories. These sources are inconsistent, incomplete, and incongruous with each other. The problems surrounding the procurement of correct wage information were beyond defendant\u2019s control. Given the resulting good-faith disputes arising from these issues, plaintiff has produced insufficient evidence from which the Full Commission can award penalties pursuant to N.C. Gen. Stat. \u00a7 97-18.\nWe have reviewed the entire record and conclude that competent evidence only supports this finding with respect to Deputy Shuping\u2019s awards two and three. Awards two and three were subject to plaintiff\u2019s cooperation; awards one and four were not. We conclude that no good faith justification existed to prevent defendant paying awards one and four. Defendant possessed all the information needed to calculate plaintiff\u2019s payment pursuant to those two awards when Deputy Shuping\u2019s opinion and award issued. \u201cBecause the provisions of G.S. \u00a7 97-18(g) are mandatory (\u2018there shall be added\u2019), we are compelled to conclude that a 10% penalty is due.\u201d Bostick, 145 N.C. App. at 110, 549 S.E.2d at 563 (citing Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 83, 476 S.E.2d 434, 440 (1997)). We affirm the opinion and award in part and reverse and remand in part.\nAffirmed in part, reversed and remanded in part.\nJudges TIMMONS-GOODSON and HUDSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Brent Adams & Associates, by Brenton D. Adams, for plaintiff - appellant.", "Young Moore and Henderson, P.A., by Jeffrey T. Linder and Zachary C. Bolen, for defendants-appellees." ], "corrections": "", "head_matter": "DAVID POLLOCK, Employee, Plaintiff v. WASPCO CORPORATION, Employer, SELF-INSURED, Key Risk Management Services, Carrier, Defendants\nNo. COA01-136\n(Filed 5 February 2002)\n1. Workers\u2019 Compensation\u2014 average weekly wage \u2014 income more than pre-injury wages\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff employee earned an income greater than the average weekly wage at the time of injury, because plaintiff\u2019s own admissions, both from discovery responses and his testimony, support the deputy commissioner\u2019s findings that plaintiff earned more than his pre-injury wages.\n2. Workers\u2019 Compensation\u2014 permanent partial disability\u2014 presumption of disability rebuttable\nThe Industrial Commission did not err in a workers\u2019 compensation case by relieving defendant employer of its obligation to pay workers\u2019 compensation based on the deputy commissioner\u2019s opinion and award for permanent partial disability, because defendant rebutted the presumption of disability by using plaintiff\u2019s testimonial evidence showing that plaintiff returned to work earning wages equal to or greater than his pre-injury wages after 1 July 1996.\n3. Workers\u2019 Compensation\u2014 sanctions \u2014 penalty for unpaid installments\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to sanction defendant employer ten percent for its willful noncompliance of two out of four of the deputy commissioner\u2019s compensation awards in violation of N.C.G.S. \u00a7 97-18, because no good faith justification existed to prevent defendant paying awards one and four since defendant possessed all the information needed to calculate plaintiff\u2019s payment under those two awards when the deputy commissioner\u2019s opinion and award was issued.\nAppeal by employee-plaintiff from the North Carolina Industrial Commission\u2019s (\u201cCommission\u201d) opinion and award entered 2 October 2000. Heard in the Court of Appeals 28 November 2001.\nBrent Adams & Associates, by Brenton D. Adams, for plaintiff - appellant.\nYoung Moore and Henderson, P.A., by Jeffrey T. Linder and Zachary C. Bolen, for defendants-appellees." }, "file_name": "0381-01", "first_page_order": 411, "last_page_order": 418 }