{ "id": 9125602, "name": "JENNIFER J. EFFINGHAM, Employee, Plaintiff v. THE KROGER COMPANY, Employee, CNA CONTINENTAL CASUALTY, Carrier, Defendants", "name_abbreviation": "Effingham v. Kroger Co.", "decision_date": "2002-03-05", "docket_number": "No. COA01-24", "first_page": "105", "last_page": "120", "citations": [ { "type": "official", "cite": "149 N.C. App. 105" } ], "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": "342 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695872 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0539-01" ] }, { "cite": "327 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "293" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522779 ], "year": 1985, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0072-01" ] }, { "cite": "414 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523903 ], "year": 1992, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0480-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-42", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "389 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521869 ], "year": 1990, "pin_cites": [ { "page": "494-95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0493-01" ] }, { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "748" } ], "opinion_index": 0 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "528 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "635", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094063 ], "year": 2000, "pin_cites": [ { "page": "464-65", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0461-01" ] }, { "cite": "464 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "485" }, { "page": "486", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915261 ], "year": 1995, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0048-01" ] }, { "cite": "394 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "192", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525056 ], "year": 1990, "pin_cites": [ { "page": "768", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0767-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "290 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571218 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0507-01" ] }, { "cite": "277 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "89-90", "parenthetical": "stacking of total benefits on top of partial benefits, for the same period, is not authorized by the Act" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646753 ], "year": 1981, "pin_cites": [ { "page": "490", "parenthetical": "stacking of total benefits on top of partial benefits, for the same period, is not authorized by the Act" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0480-01" ] }, { "cite": "350 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "98", "parenthetical": "an injured employee cannot be simultaneously totally and partially disabled" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358461 ], "year": 1986, "pin_cites": [ { "page": "306", "parenthetical": "an injured employee cannot be simultaneously totally and partially disabled" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0301-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(g)" } ], "opinion_index": 0 }, { "cite": "550 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "243-44", "parenthetical": "citing Franklin, 123 N.C. App. at 204-05, 472 S.E.2d at 385" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436438 ], "year": 2001, "pin_cites": [ { "page": "670", "parenthetical": "citing Franklin, 123 N.C. App. at 204-05, 472 S.E.2d at 385" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0661-01" ] }, { "cite": "326 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "329-30" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 309", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523676 ], "year": 1985, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0309-01" ] }, { "cite": "510 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "adopting dissenting opinion of Timmons-Goodson, J." } ], "opinion_index": 0 }, { "cite": "350 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132040 ], "year": 1999, "pin_cites": [ { "parenthetical": "adopting dissenting opinion of Timmons-Goodson, J." } ], "opinion_index": 0, "case_paths": [ "/nc/350/0063-01" ] }, { "cite": "477 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "203", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889375 ], "year": 1996, "pin_cites": [ { "page": "330", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0320-01" ] }, { "cite": "472 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "385" }, { "page": "385" }, { "page": "385" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. 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Benefits Review Bd., 731 F.2d 199, 201 (4th Cir. 1984)" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527096 ], "year": 1994, "pin_cites": [ { "page": "73-4", "parenthetical": "quoting Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir. 1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0069-01" ] }, { "cite": "398 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11888498 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/124/0072-01" ] }, { "cite": "458 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. 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Stat.", "year": 1999, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "64 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "pin_cites": [ { "page": "268" }, { "page": "268" } ], "opinion_index": 0 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "weight": 2, "year": 1951, "pin_cites": [ { "page": "376" }, { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "684" }, { "page": "683" }, { "page": "684" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "595" }, { "page": "595" }, { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "379" }, { "page": "378" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "186" }, { "page": "185" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 1 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "428" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0426-01" ] } ], "analysis": { "cardinality": 1192, "char_count": 35444, "ocr_confidence": 0.751, "pagerank": { "raw": 6.055971609801795e-07, "percentile": 0.955014365702402 }, "sha256": "beb65b8afb7f894c8ebc7218fc92ebedfa0704cf0bd51e542b9bc32e9bac7ad0", "simhash": "1:2ce9654204eb8812", "word_count": 5582 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge HUDSON concurs with separate opinion." ], "parties": [ "JENNIFER J. EFFINGHAM, Employee, Plaintiff v. THE KROGER COMPANY, Employee, CNA CONTINENTAL CASUALTY, Carrier, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nJennifer J. Effingham (\u201cplaintiff\u201d) appeals the denial of her claim for permanent total disability by the North Carolina Industrial Commission (\u201cCommission\u201d). Defendants, The Kroger Company (\u201cdefendant-employer\u201d) and CNA Continental Casualty (\u201cdefendant-carrier\u201d), appeal an award of temporary total disability by the Commission. We affirm in part and reverse in part.\nI. Facts\nPlaintiff filed a motion for payment of past due workers\u2019 compensation benefits, ten percent penalty pursuant to N.C.G.S. \u00a7 97-18, and attorney\u2019s fees pursuant to N.C.G.S. \u00a7 97-88.1 in her Form 33, Request for Hearing, on 5 February 1998. Defendants filed a response to plaintiff\u2019s motions on 17 February 1998.\nThe Commission unanimously made the following findings of fact: Plaintiff began working for defendant-employer as a cashier in May 1995. Plaintiff\u2019s job duties included lifting and scanning grocery items.\nWhile at work on 18 December 1995, plaintiff felt a pain in her lower back, after she lifted a bag of cat liter from the bottom of the shopping cart and onto the scanner. Plaintiff\u2019s injury was accepted as compensable by defendants pursuant to a Form 60, Employer\u2019s Admission of Employee\u2019s Right to Compensation, filed 14 February 1996.\nPlaintiff had surgery on 24 January 1996. Dr. Fulghum removed two large disc fragments at L4-5. On 30 July 1996, Dr. Derian performed a decompression at plaintiff\u2019s L4-5.\nThe Commission found that plaintiff had degenerative disc disease, prior to her accident, and that the compensable injury on 18 December 1995 significantly aggravated her back condition, resulting in a herniated disc at L4-5. The surgeries performed by Dr. Fulghum and Dr. Derian were reasonably necessary to treat plaintiff\u2019s back injury and provide her relief from pain.\nAs a result of her injury, plaintiff has a condition known as failed low back syndrome. The Commission found that plaintiff will need ongoing treatment, including medication, to manage her pain. The Commission also found that because of her back pain, plaintiff is not capable of working full-time and that plaintiff is unable to compete for part-time jobs available for unskilled workers.\nThe Commission further found that plaintiffs neck problems and herniated cervical disc were not caused by her compensable injury and that the treatment and neck surgery by Dr. Haglund on 12 October 1997 were not compensable.\nThe Commission concluded that plaintiff is entitled to temporary total disability benefits at the rate of $229.34 per week, beginning 27 January 1997 and continuing until further order. Defendants are entitled to offset wages paid to plaintiff while employed. Plaintiff and defendants appeal.\nII. Issues\nThe issues presented by plaintiff are whether: (1) the Commission erred by finding and concluding that plaintiff\u2019s herniated cervical disc was not caused by her compensable injury, (2) the Commission erred by failing to award plaintiff permanent and total disability benefits, (3) the Commission erred by failing to find and conclude that plaintiff was entitled to a late payment penalty, and (4) the Commission erred by failing to award plaintiff her attorney\u2019s fees for defendants\u2019 unreasonable denial and defense of this claim.\nThe issues presented by defendants are whether: (1) the Commission erred in awarding plaintiff temporary total disability benefits, (2) the Commission erred by failing to allow defendants a credit for payment of partial disability, and (3) the Commission erred by failing to tailor the award of medical expenses in conformity with the Workers\u2019 Compensation Act. Those assignments of error relating to the findings of facts and conclusions of law that are not argued are deemed abandoned. N.C.R. App. R. 28(b)(5) (1999).\nIII. Standard of Review\nThis Court\u2019s review is limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by competent evidence, and (2) whether the Commissioner\u2019s conclusions of law are supported by the findings of fact. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986). The Commission\u2019s findings of fact are conclusive on appeal if supported by competent evidence, even where there is evidence to support contrary findings. Id. The Commission\u2019s conclusions of law, however, are reviewable de novo by this Court. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). The Commission is the sole judge of the credibility of the witnesses and the weight accorded to their testimony. Anderson v. Northwestern Motor Co., 233 N.C. 372, 376, 64 S.E.2d 265, 268 (1951).\nIV. Plaintiff\u2019s Appeal\nA. Herniated cervical disc not compensable\nPlaintiff argues the Commission\u2019s findings, that her herniated cervical disc was not caused by her compensable accident, are contrary to the undisputed evidence and other findings of fact. We disagree.\nOn 14 February 1997, plaintiff contacted Dr. Blackburn with a burning sensation in her upper back. Dr. Blackburn prescribed muscle relaxants. Plaintiff then sought treatment from Dr. Esposito, an orthopaedic surgeon, with complaints of neck pain on 1 May 1997.\nIn July 1997, Dr. Esposito diagnosed plaintiff with a herniated disc at C5-6. Dr. Esposito referred plaintiff to Duke University Medical Center for further treatment. Plaintiff was examined by Dr. Haglund on 6 October 1997, at Duke. Plaintiff reported to Dr. Haglund a history of neck pain that was continuous from the date of her com-pensable injury. Dr. Haglund performed an anterior cervical discec-tomy and fusion on 12 October 1997.\nPlaintiff was not treated for neck pain by her prior doctors, Fulghum and Derian, and did not report any neck pain to either until her last visits. Dr. Esposito did not treat plaintiff until eighteen months after her injury. Plaintiff told Dr. Esposito that her neck pain had developed over the last couple of months.\nDr. Haglund opined that plaintiff\u2019s herniated cervical disc was caused or aggravated by her injury on 18 December 1995. The Commission determined that Dr. Haglund relied on the medical history provided by plaintiff which was inconsistent, unsupported by medical documentation, and not credible. The Commission concluded that: (1) plaintiff\u2019s neck problems and herniated cervical disc were not caused by her compensable injury and (2) the treatment and neck surgery by Dr. Haglund were not compensable.\nWe hold that there is competent evidence in the record to support the Commission\u2019s finding that the history plaintiff provided to Dr. Haglund was not credible. The Commission is the sole judge of the credibility of the witnesses and it rejected plaintiff\u2019s evidence that her neck problems resulted from her back injury. See Anderson, 233 N.C. at 376, 64 S.E.2d at 268. This assignment of error is overruled.\nB. Disability Award\nThe Workers\u2019 Compensation Act (\u201cthe Act\u201d) defines \u201cdisability\u201d as the \u201cincapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.\u201d N.C. Gen. Stat. \u00a7 97-2(9) (1999). \u201cCompensation must be based upon loss of wage-earning power rather than the amount actually received.\u201d Hill v. DuBose, 234 N.C. 446, 447-48, 67 S.E.2d 371, 372 (1951). If the employee has the capacity to earn some wages, but less than she was earning at the time of injury, she is entitled to partial disability benefits under N.C.G.S. \u00a7 97-30. Gupton v. Builders Transp., 320 N.C. 38, 42, 357 S.E.2d 674, 678 (1987). If the employee\u2019s earning capacity has been \u201ctotally obliterated,\u201d she is entitled to total disability benefits under N.C.G.S. \u00a7 97-29. Id.\nPlaintiff contends the Commission erred in denying her permanent total disability benefits. The Commission awarded plaintiff temporary total disability at the rate of $229.34 per week, beginning 27 January 1997 and continuing until further order of the Commission. Defendants appeal the Commission\u2019s award of temporary total disability and argue that the Commission erred in concluding that plaintiff did not have wage earning capacity.\n1. Burden of Proof\n\u201cIn order to obtain compensation under the Workers! Compensation Act, the claimant has the burden of proving the existence of his disability and its extent.\u201d Hendrix, 317 N.C. at 185, 345 S.E.2d at 378. To support a conclusion of disability, the plaintiff must prove and the Commission must find that: (1) plaintiff was incapable after her injury of earning the same wages earned prior to injury in the same employment, (2) plaintiff was incapable after her injury of earning the same wages she earned prior to injury in any other employment, and (3) plaintiff\u2019s incapacity to earn wages was caused by her compensable injury. Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. After these elements are proven, \u201cthe burden shifts to [the employer] to show that plaintiff is employable.\u201d Dalton v. Anvil Knitwear, 119 N.C. App. 275, 284, 458 S.E.2d 251, 257 (1995).\nOne method for establishing disability is the use and approval of a Form 21 agreement, which entitles employees to a presumption of disability. Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434 (1996). N.C.G.S. \u00a7 97-18(b) permits an employer to admit that the injury suffered by the employee is compensable, that the employer is liable for compensation, and to notify the Commission of such action by use of a Form 60. Sims v. Charmes/Arby\u2019s Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d 277, 281 (2001).\nAdmitting compensability and liability, through the use of a Form 60, does not create a presumption of continuing disability as does a Form 21 agreement. Id. at 159-60, 542 S.E.2d at 281-82. The Form 60 in the present case does not entitle plaintiff to a presumption of continuing disability. Therefore, the burden of proving disability is on plaintiff.\nHere, Dr. Fulghum testified that plaintiff suffers from chronic back pain and was temporarily totally disabled from full-time competitive employment as of the last time he saw her in April 1996. Dr. Derian testified that plaintiff suffers from chronic back pain, is disabled from full-time competitive employment, and that she is permanently disabled. Dr. Haglund testified that plaintiff suffers from chronic back pain and is permanently and totally disabled from sustaining any full-time or part-time competitive employment. Dr. Blackburn testified that plaintiff is permanently and totally disabled from full-time work. David Arthur, vocational rehabilitation counselor, testified that plaintiff is permanently and totally disabled from full-time competitive employment while she suffers from chronic back pain.\nDefendants contend that plaintiff is capable of earning wages. To rebut evidence of disability, defendants must show \u201cnot only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.\u201d Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990). \u201cAn employee is \u2018capable of getting\u2019 a job if \u2018there exists a reasonable likelihood . . . that he would be hired if he diligently sought the job.\u2019 \u201d Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 73-4, 441 S.E.2d 145, 149 (1994) (quoting Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir. 1984)).\nIn this case, defendants presented evidence that a \u201cgreeter\u201d job was available to plaintiff which met the restrictions placed on plaintiff for return to work, and paid plaintiff the same wages she had earned prior to her back injury.\nIn Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798, (1986), our Supreme Court stated:\nIf the proffered employment does not accurately reflect the person\u2019s ability to compete with others for wages, it cannot be considered evidence of earning capacity. Proffered employment would not accurately reflect earning capacity if other employers would not hire the employee with the employee\u2019s limitations at a comparable wage level.\nId. at 438, 342 S.E.2d at 806.\nDefendants did not establish that the greeter position offered to plaintiff is an accurate measure of plaintiff\u2019s ability to earn wages in the competitive job market. There is no evidence that other employers would hire plaintiff to do a similar job at a comparable wage. We hold that there is sufficient evidence to support the Commission\u2019s findings that plaintiff is temporarily totally disabled as defined by the Act, as of the date of hearing.\n2. Temporary vs. Permanent Disability Benefits\nPlaintiff filed a Form 33, Request for Hearing, asking the Commission to find that she was entitled to benefits for \u201ctotal and permanent disability\u201d under N.C.G.S. \u00a7 97-29. In order to prove her entitlement to \u201ctotal and permanent disability,\u201d plaintiff sought a determination that the \u201cgreeter\u201d job did not reflect her actual wage-earning capacity. Alternatively, defendants sought a determination that plaintiff retained wage-earning capacity in the \u201cgreeter\u201d job and was only entitled to \u201cpartial permanent disability\u201d under N.C.G.S. \u00a7 97-30.\nThe Commission made no findings as to whether plaintiff\u2019s loss of wage-earning capacity was permanent. The Commission did conclude that the \u201cgreeter\u201d position did not indicate that plaintiff is presently able to compete with others for wages. We have already held that this conclusion of law was supported by the findings of fact which in turn were supported by competent evidence. See Hendrix, 317 N.C. at 186, 345 S.E.2d at 379.\nThe Workers\u2019 Compensation Act provides two basic categories of benefits as the result of an injury by accident: (1) indemnity benefits for loss of wage-earning capacity under N.C.G.S. \u00a7 97-29 (total incapacity) or N.C.G.S. \u00a7 97-30 (partial incapacity) and (2) benefits for physical impairment, without regard to its effect on wage-earning capacity, under N.C.G.S. \u00a7 97-31 (schedule of injuries). N.C.G.S. \u00a7\u00a7 97-29 and 97-30 are alternate sources of compensation for an employee who suffers an injury which is also included under the schedule of injuries found in N.C.G.S. \u00a7 97-31. Harrington v. Pait Logging Co./Georgia Pac., 86 N.C. App. 77, 80, 356 S.E.2d 365, 366 (1987). The employee is allowed to select the more favorable remedy. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 90, 348 S.E.2d 336, 340 (1986). The employee cannot recover compensation under both sections, because 97-31 is \u201cin lieu of all other compensation.\u201d Harrington, 86 N.C. App. at 80, 356 S.E.2d at 366-67.\nPlaintiff argues that she is entitled to \u201ctotal and permanent\u201d disability benefits under N.C.G.S. \u00a7 97-29 after reaching maximum medical improvement. Plaintiff cites Franklin v. Broyhill Furniture Indus., 123 N.C. App. 200, 204-05, 472 S.E.2d 382, 385 (1996), for the proposition that once an employee reaches maximum medical improvement she may seek to establish permanent incapacity.\nMaximum medical improvement has been held to be \u201cthe prerequisite to determination of the amount of permanent disability for purposes of G.S. 97-31,\u201d see Brown v. S & N Communications, Inc., 124 N.C. App. 320, 330, 477 S.E.2d 197, 203 (1996) (citation omitted), or the end of the \u201chealing period,\u201d see Neal v. Carolina Management, 350 N.C. 63, 510 S.E.2d 375 (1999) (adopting dissenting opinion of Timmons-Goodson, J.); Franklin, 123 N.C. App. at 204-05, 472 S.E.2d at 385.\nWe have held that \u201ctemporary disability\u201d is payable only \u201cduring the healing period\u201d under N.C.G.S. \u00a7 97-31. Carpenter v. Industrial Piping Co., 73 N.C. App. 309, 311, 326 S.E.2d 328, 329-30 (1985). This Court in Anderson v. Gulistan Carpet, Inc., 144 N.C. App. 661, 670, 550 S.E.2d 237, 243-44 (2001) (citing Franklin, 123 N.C. App. at 204-05, 472 S.E.2d at 385), implied that \u201ctemporary disability\u201d benefits for loss of wage-earning capacity under N.C.G.S. \u00a7\u00a7 97-29 or 97-30 are only payable before the employee has reached maximum medical improvement. In light of the Workers\u2019 Compensation Act, the case law prior to Franklin, and the cases cited by Franklin, we interpret Franklin to hold that an employee may seek a determination of her entitlement to permanent disability under N.C.G.S. \u00a7\u00a7 97-29, 97-30, or 97-31, only after reaching maximum medical improvement. We hold that maximum medical improvement is the initial point at which either party can seek a determination of permanent loss of wage-earning capacity.\nTemporary disability benefits are for a limited period of time. See Leonard T. Jernigan, Jr., North Carolina Workers\u2019 Compensation Law and Practice, \u00a7 12-1 at 89 (3d ed. 1999). \u201cThere is a presumption that [the employee] will eventually recover and return to work.\u201d Id. Therefore, the employee must make reasonable efforts to go back to work or obtain other employment.\nIn determining an employee\u2019s loss of wage-earning capacity, the Commission must determine whether the employee has made reasonable efforts to seek and obtain employment, whether there is a reasonable probability that with training and education the employee can achieve suitable employment, and whether it is in the best interest of the employee to undertake such training and education. Additionally, the Commission must take into account the physical impairment from the injury, as well as the age, education, job skills, and other physical limitations of the worker, plus other vocational factors, such as the availability of jobs within the worker\u2019s limitations. Hillard, 305 N.C. at 596, 290 S.E.2d at 684.\nHere, the plaintiff exercised her election to seek permanent disability benefits after reaching maximum medical improvement. The Commission failed to determine whether plaintiff proved her loss of wage-earning capacity was permanent. We remand to the Commission for a hearing to determine plaintiff\u2019s alleged permanent disability, if any, consistent with this opinion. Either party may offer additional evidence to support their claims or defenses.\nC. Late Payment Penalty\nPlaintiff argues that she is due a 10% penalty under N.C. Gen. Stat. \u00a7 97-18(g) (1999), which provides that \u201c[i]f any installment of compensation is not paid within 14 days after it becomes due, there shall be added to such unpaid installment an amount equal to ten per centum (10%) thereof . . . .\u201d Plaintiff contends that defendants owed her temporary partial disability benefits during her attempt to return to work and failed to pay them.\nIn January 1997., plaintiff attempted a trial return to work, part-time for defendant-employer in the greeter position, as approved by Dr. Derian. Defendant-employer filed a Form 28T to terminate plaintiffs temporary total disability benefits pursuant to N.C.G.S. \u00a7 97-18.1(b). During the trial return to work, plaintiff was entitled to temporary partial disability benefits pursuant to N.C.G.S. \u00a7 97-30 which provides in pertinent part:\nwhere the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such disability, a weekly compensation equal to sixty-six and two-thirds percent (66 2/3%) of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than the amount established annually to be effective October 1 as provided in G.S. 97-29 a week, and in no case shall the period covered by such compensation be greater than 300 weeks from the date of injury.\nN.C. Gen. Stat. \u00a7 97-30 (1999) (emphasis added).\nThe record shows that plaintiffs average weekly wage before injury was $344.00 and that plaintiffs average weekly wage, which she earned based on the approved twenty hours per week, was $172.00. Defendants contend that they paid all of the temporary partial disability due to plaintiff. Plaintiff concedes that defendants paid plaintiff $114.67 per week in addition to the hours she actually worked each week.\nAlthough the Commission failed to enter any specific findings regarding the payment of temporary partial disability, the Commission awarded plaintiff temporary total disability beginning 27 January 1997 and concluded that defendants were entitled to offset for wages paid. See Carothers v. Ti-Caro, 83 N.C. App. 301, 306, 350 S.E.2d 95, 98 (1986) (an injured employee cannot be simultaneously totally and partially disabled); Smith v. American and Efird Mills, 51 N.C. App. 480, 490, 277 S.E.2d 83, 89-90 (1981) (stacking of total benefits on top of partial benefits, for the same period, is not authorized by the Act), modified on other grounds and aff\u2019d, 305 N.C. 507, 290 S.E.2d 634 (1982).\nThe record and award of the Commission supports our conclusion that defendants paid plaintiff all temporary partial disability benefits owed. Plaintiff is not entitled to a late payment penalty pursuant to N.C.G.S. \u00a7 97-18(g).\nD. Unreasonable Defense\nPlaintiff also contends she is due attorney\u2019s fees under N.C.G.S. \u00a7 97-88.1 for defendant\u2019s unreasonable defense of this claim. Under N.C.G.S. \u00a7 97-88.1, the Commission may award attorney\u2019s fees if it determines that \u201cany hearing has been brought, prosecuted, or defended without reasonable ground.\u201d N.C. Gen. Stat. \u00a7 97-88.1 (1999). The purpose behind this section is to prevent \u201cstubborn, unfounded litigiousness which is inharmonious with the primary purpose of the Workers\u2019 Compensation Act to provide compensation to injured employees.\u201d Beam v. Floyd\u2019s Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990) (citations omitted). The Commission, therefore, may assess the whole costs of litigation, including attorney fees, against any party who prosecutes or defends a hearing without reasonable grounds. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 54, 464 S.E.2d 481, 485 (1995).\n\u201cThe decision of whether to make such an award, and the amount of the award, is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion.\u201d Id. at 54-55, 464 S.E.2d at 486 (citations omitted). An abuse of discretion results only where a decision is \u201cmanifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Long v. Harris, 137 N.C. App. 461, 464-65, 528 S.E.2d 633, 635 (2000) (citation omitted).\nDefendants argued before the Commission and on appeal that plaintiff retained wage-earning capacity, entitling her only to partial disability and not total disability benefits. Plaintiff contends that defendants\u2019 argument is premised on the greeter position. Plaintiff argues that the greeter position was a highly modified job not available in the competitive job market or \u201cmake-work.\u201d We disagree.\nOn 27 January 1997, plaintiff was released from Dr. Derian\u2019s care. Dr. Derian opined that plaintiff was capable of performing part-time work with the following restrictions: no lifting greater than ten pounds; no repetitive or prolonged bending; lifting, or stooping; and frequent changes from sitting and standing to walking. Plaintiff subsequently attempted a trial return to work, part-time for defendant-employer as a greeter. The Commission found that:\n[t]he greeter position is an actual job that exists in some of defendant-employer\u2019s stores, but before plaintiff was offered the position, a greeter was not used at the store where plaintiff worked. The greeter position had been modified to fit plaintiff\u2019s work restrictions. Plaintiff was given a chair and was allowed frequent breaks. The position was scheduled for twenty hours per week, but due to chronic back pain, plaintiff averaged only 14.84 hours per week.\n(Emphasis added).\nPlaintiff relies on Peoples and Saums to support her contention that this was not a reasonable basis upon which to defend the claim. We find this case to be distinguishable from Peoples and Saum\u00e1.\nIn Saums v. Raleigh Community Hospital, 346 N.C. 760, 487 S.E.2d 746 (1997), plaintiff-employee was working as a housekeeper prior to her back injury. A new position, quality control clerk, was created for plaintiff-employee\u2019s return to the work place by defendant-employer. Id: at 761, 487 S.E.2d at 748. Similarly, in Peoples, 316 N.C. 426, 342 S.E.2d 798, plaintiff-employee worked in the card room prior to his pulmonary disease. Defendant-employer highly modified an existing third shift supply room position for plaintiff-employee\u2019s return to work. Id. at 428-29, 342 S.E.2d at 801. The personnel manager testified that: (1) a job such as the one offered to plaintiff never existed before, (2) it was created especially for plaintiff with his physical limitations in mind, and (3) no other person other than plaintiff would be hired to work in that position at the wages he was offered. Id. at 429-30, 342 S.E.2d at 801.\nHere, the Commission found that the greeter position in the present case was an actual job, not created especially for plaintiff. While the position was modified, to the extent that defendants gave plaintiff a chair so that she could change positions from standing to sitting as needed, it was not so highly modified as the position in Peoples to make it one that never existed before or one that no one but plaintiff would be hired to fill that position. In fact, the store manager, Janet Novak, testified that the greeter position was advertised before plaintiff was placed in that position and that if profits allowed, she would again fill the greeter position if a qualified person came along.\nWe find this case to be distinguishable from Saums and Peoples, and conclude that the parties \u201cbrought, prosecuted, or defended\u201d this matter with reasonable grounds. We hold that an award of attorney\u2019s fees is not warranted pursuant to N.C.G.S. \u00a7 97-88.1.\nV. Defendants\u2019 Appeal\nWe have already addressed defendants\u2019 argument regarding the disability award in section IV, B of this opinion.\nA. Credit for Partial Disability Benefits\nPlaintiff received $400.00 in private disability benefits under a plan funded by defendants in December 1997 for problems associated with her neck. Defendants contend that the Commission erred in concluding that defendants are not entitled to a credit. We disagree.\nThis Court has held that N.C.G.S. \u00a7 97-42 is the only statutory authority for allowing an employer in North Carolina any credit against workers\u2019 compensation payments due an injured employee. Johnson v. IBM, Inc., 97 N.C. App. 493, 494-95, 389 S.E.2d 121, 122 (1990). N.C.G.S. \u00a7 97-42 provides:\nPayments made by the employer to the injured employee during the period of his disability . . . which by the terms of this Article were not due and payable when made, may, subject to the approval of the Commission be deducted from the amount to be paid as compensation.\nN.C. Gen. Stat. \u00a7 97-42 (1999). The rationale behind the statute is to encourage voluntary payments by the employer during the time of the worker\u2019s disability. See Gray v. Carolina Freight Carriers, Inc., 105 N.C. App. 480, 484, 414 S.E.2d 102, 104 (1992). The decision of whether to grant a credit is within the sound discretion of the Commission. Moretz v. Richards & Associates, Inc., 74 N.C. App. 72, 75, 327 S.E.2d 290, 293 (1985), aff'd as modified, 316 N.C. 539, 342 S.E.2d 844 (1986). Such decision to grant or deny a credit will not be disturbed on appeal in the absence of an abuse of discretion. Id.\nAt bar, the Commission held that plaintiff\u2019s neck problems and herniated cervical disc were not caused by her compensable back injury. We affirm this conclusion. Since defendants have not been ordered to pay compensation for plaintiff\u2019s neck problems, we conclude the Commission did not abuse its discretion by denying defendants a credit for this payment.\nB. Award of Medical Expenses\nDefendants final argument is that the award by the Commission that defendants pay all reasonably necessary medical expenses incurred or to be incurred as a result of plaintiff\u2019s compensable back injury is overly broad. Defendants contend that the award should be subject to the limitations of N.C.G.S \u00a7\u00a7 97-25.1 (two-year statute of limitations) and 97-2(19) (definition of medical compensation).\nThe Commission incorporated these limitations in its Conclusion of Law No. 3. We believe that the Commission also intended to incorporate these limitations into the award of medical expenses. Since we have remanded to the Commission for a determination of permanent disability, we also remand to the Commission to incorporate these statutory limitations into the award.\nAffirmed in part, reversed in part and remanded.\nJudge TIMMONS-GOODSON concurs.\nJudge HUDSON concurs with separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "HUDSON, Judge,\nconcurring.\nWhile I agree with the majority in almost every respect, I write separately to clarify one point pertaining to the issue of attorneys fees under N.C.G.S. \u00a7 97-88.1 (Issue IV.D). As to this issue, the majority states that the Commission has not abused its discretion in declining to award such fees, because the defendants did not \u201cdefend without reasonable grounds.\u201d With this conclusion, I agree. However, I believe that the basis for this conclusion is that the defendant presented sufficient evidence to create a dispute as to whether the plaintiffs greeter job accurately reflected her wage earning capacity. As such, the Commission was justified in declining to award attorneys fees.\nThe plaintiff presented evidence that the job was highly modified, and that, even so, because of her irregular attendance due to chronic pain, she could not hold the job. The Commission found, and we have affirmed, based on Peoples, 316 N.C. 426, 342 S.E.2d 798, the following:\n[the modified greeter position] was scheduled for twenty hours per week, but due to chronic back pain, plaintiff was unable to perform the job for the full twenty hours . . . [but] on average, plaintiff worked only 14.84 hours per week. . . . Plaintiff\u2019s irregular attendance would not be tolerated by most employers. Under the totality of the circumstances, the greeter position performed by plaintiff was not indicative of plaintiff\u2019s ability to compete with others for wages.\nI believe that Peoples, 316 N.C. at 428, 342 S.E.2d at 806, and Saums, 346 N.C. 760, 487 S.E.2d 746, bear on whether or not the greeter job reflects plaintiffs wage earning capacity, and do not resolve the issue of attorneys fees. Despite the above finding, there were significant disputes in the evidence. Therefore, the Commission\u2019s conclusion to award no attorneys fees was justified. Having made this clarification, I concur.", "type": "concurrence", "author": "HUDSON, Judge," } ], "attorneys": [ "Law Offices of George W. Lennon, by George W. Lennon and Michael W. Ballance, for -plaintiff", "Young, Moore and Henderson, P.A., by Joe E. Austin, Jr. and Dawn M. Dillon, for defendants." ], "corrections": "", "head_matter": "JENNIFER J. EFFINGHAM, Employee, Plaintiff v. THE KROGER COMPANY, Employee, CNA CONTINENTAL CASUALTY, Carrier, Defendants\nNo. COA01-24\n(Filed 5 March 2002)\n1. Workers\u2019 Compensation\u2014 compensable injury \u2014 Commission is sole judge of credibility of witnesses\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding and concluding that plaintiff grocery cashier\u2019s neck injury was not caused by her compensable back injury, because: (1) the Commission is the sole judge of the credibility of the witnesses; and (2) there is competent evidence in the record to support the Commission\u2019s finding that the history plaintiff provided to a doctor was not credible.\n2. Workers\u2019 Compensation\u2014 benefits \u2014 temporary total disability\nThe Industrial Commission did not err in a workers\u2019 compensation case by awarding plaintiff grocery cashier temporary total disability benefits instead of permanent total disability benefits, because: (1) an employer\u2019s admission of compensability and liability through the use of a Form 60 does not create a presumption of continuing disability as does a Form 21 agreement; and (2) although defendants presented evidence that a \u201cgreeter\u201d job was available to plaintiff which met the restrictions placed on plaintiff for return to work and paid plaintiff the same wages she had earned prior to her back injury, defendants did not establish that the position offered to plaintiff is an accurate measure of plaintiff\u2019s ability to earn wages in the competitive job market and there is no evidence that other employers would hire plaintiff to do a similar job at a comparable wage.\n3. Workers\u2019 Compensation\u2014 permanent disability \u2014 proof of loss of wage-earning capacity\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to determine whether plaintiff grocery cashier proved her loss of wage-earning capacity was permanent when she elected to seek permanent disability benefits under N.C.G.S. \u00a7 97-29 after reaching maximum medical improvement.\n4. Workers\u2019 Compensation\u2014 late payment penalty \u2014 payment of benefits during employee\u2019s attempt to return to work\nThe Industrial Commission did not err in a workers\u2019 compensation case by failing to find and conclude that plaintiff grocery cashier was entitled to a ten percent late payment penalty under N.C.G.S. \u00a7 97-18(g) based on defendants\u2019 failure to pay plaintiff temporary partial disability benefits during her attempt to return to work, because the record and award of the Commission supports the conclusion that defendants paid plaintiff all temporary partial disability benefits owed.\n5. Workers\u2019 Compensation\u2014 attorney fees \u2014 unreasonable denial and defense of claim\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by failing to award plaintiff grocery cashier her attorney fees under N.C.G.S. \u00a7 97-88.1 for defendants\u2019 alleged unreasonable denial and defense of this claim regarding plaintiff\u2019s retained wage-earning capacity based on plaintiff\u2019s return to work in a greeter position, because the parties brought, prosecuted, or defended this matter with reasonable grounds based on the facts that: (1) the Commission found the greeter position offered to plaintiff employee by defendant employer in the present case was an actual job not created especially for plaintiff, and the position was advertised by the company before plaintiff was placed in that position; and (2) while the position was modified by giving plaintiff a chair so that she could change positions from standing to sitting as needed, it was not so highly modified to make it one that never existed before or one that no one but plaintiff would be hired to fill that position.\n6. Workers\u2019 Compensation\u2014 partial disability \u2014 denial of credit for payment\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by failing to allow defendants a credit for payment to plaintiff grocery cashier of partial disability associated with plaintiff\u2019s neck injury, because defendants have not been ordered to pay compensation for plaintiff\u2019s neck problems since the Commission held that plaintiff\u2019s neck problems and herniated cervical disc were not caused by her compensable back injury.\n7. Workers\u2019 Compensation\u2014 medical expenses \u2014 statutory limitations\nThe Industrial Commission\u2019s award of medical expenses for plaintiff, grocery cashier\u2019s compensable back injury in a workers\u2019 compensation case is remanded to the Commission to incorporate the statutory limitations under N.C.G.S. \u00a7\u00a7 97-25.1 and 97-2(19).\nJudge Hudson concurring in a separate opinion.\nAppeals by plaintiff and defendants from Opinion and Award entered 22 August 2000 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 December 2001.\nLaw Offices of George W. Lennon, by George W. Lennon and Michael W. Ballance, for -plaintiff\nYoung, Moore and Henderson, P.A., by Joe E. Austin, Jr. and Dawn M. Dillon, for defendants." }, "file_name": "0105-01", "first_page_order": 139, "last_page_order": 154 }