{ "id": 8955552, "name": "WANDA JEFFERSON HOOKER, Employee, Plaintiff v. STOKES-REYNOLDS HOSPITAL/NORTH CAROLINA BAPTIST HOSPITAL, INC., Employer; SELF-INSURED, Defendants", "name_abbreviation": "Hooker v. Stokes-Reynolds Hospital/North Carolina Baptist Hospital, Inc.", "decision_date": "2003-11-04", "docket_number": "No. COA02-1361", "first_page": "111", "last_page": "118", "citations": [ { "type": "official", "cite": "161 N.C. App. 111" } ], "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": "N.C. Gen. Stat. \u00a797-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "internal citations omitted" } ], "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", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "without regard to any loss of wage-earning capacity" } ], "opinion_index": 0 }, { "cite": "577 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491599 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0044-01" ] }, { "cite": "562 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125102 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/149/0001-01" ] }, { "cite": "495 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "347 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551293 ], "year": 1998, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0530-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "citation and quotation marks omitted" }, { "page": "414" }, { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "citation and quotation marks omitted" }, { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "553" }, { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "116" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] } ], "analysis": { "cardinality": 707, "char_count": 15373, "ocr_confidence": 0.774, "pagerank": { "raw": 7.046177216481859e-08, "percentile": 0.4250039288004822 }, "sha256": "6679274fb0b9c50f8303674ef4208b40831b3cca2898ba8ee86f0ee01db6fd98", "simhash": "1:b68b7d923ebf5a8e", "word_count": 2418 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and CALABRIA concur." ], "parties": [ "WANDA JEFFERSON HOOKER, Employee, Plaintiff v. STOKES-REYNOLDS HOSPITAL/NORTH CAROLINA BAPTIST HOSPITAL, INC., Employer; SELF-INSURED, Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nDefendants Stokes-Reynolds Hospital/North Carolina Baptist Hospital appeal from an opinion and award entered 7 May 2002 by the North Carolina Industrial Commission awarding plaintiff continuing total disability compensation, and temporary partial disability compensation, as well as attorney\u2019s fees and costs. We affirm.\nBackground\nThe following is a summary of the facts found by the Commission. In May 1995, while working as a truck driver for Direct Trucking of Mount Airy, plaintiff injured her ankle and back in a fall from her truck. She initially sought medical care only for her ankle, which was placed in a cast, and later saw an orthopedic spine specialist, on 15 June 1995. The orthopedist prescribed an anti-inflammatory medication, a self-care spine program and return to work. Plaintiff saw the orthopedist one final time on 17 July 1995 when he released her to work. However, because of the injury to her ankle, plaintiff was not able to return to work as a truck driver. Plaintiff settled her worker\u2019s compensation claim, and sought training for other work.\nPlaintiff completed a certified nursing assistant (\u201cCNA\u201d) class at Surry County Community College, and thereafter, in September 1996, applied for a job as a CNA with defendants. Plaintiff was interviewed by Karen Lawrence, the acute care unit manager for defendants. When asked about her physical ability to handle the CNA position, plaintiff told Ms. Lawrence about her fall in 1995.\nDefendants then hired plaintiff, who worked without incident until 2 December 1998, when she sustained a back injury while helping a co-worker move a patient. Thereafter, plaintiff went to several physicians who ordered various diagnostic tests for her back, and eventually recommended surgery. On 31 August 1999, plaintiffs surgeon released her to return to work with restrictions on lifting, and a permanent impairment rating of 12.5% to her back.\nThe parties stipulated that plaintiff had been out of work under medical care between 4 December 1998 and 19 February 1999, and from 28 April 1999 through 7 May 2002. Between 20 February 1999 and 29 April 1999, she worked limited hours. Defendants terminated plaintiff from employment at the end of her leave of absence on 11 June 1999. Plaintiff then applied for and received unemployment benefits beginning 22 August 1999. Plaintiff sought compensation from defendants for her disability, and her claims were heard by Deputy Commissioner Kim L. Cramer, who denied the claims. On appeal, the Full Commission reversed the Deputy Commissioner, and awarded plaintiff compensation for on-going total disability (subject to a credit for unemployment benefits) and for a period of temporary partial disability, medical expenses, costs and attorney\u2019s fees. Defendants appeal.\nAnalysis\nOn appeal defendants make two arguments. First, they contend that plaintiff misrepresented her physical ability when applying for the CNA job, and urge this Court to adopt the defense of misrepresentation as a complete bar to worker\u2019s compensation benefits. Defendants also argue that plaintiff failed to prove she was entitled to ongoing benefits. We affirm the award of the Commission.\nThe Supreme Court has articulated clearly the standard of appellate review in worker\u2019s compensation cases. When reviewing a worker\u2019s compensation decision, this Court must first consider whether any challenged findings of fact are supported by evidence in the record, and then determine whether those findings support the conclusions of law. Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). This Court does not weigh evidence, but rather only determines \u201cwhether the record contains any evidence tending to support the finding.\u201d Adams v. AVX Gorp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation and quotation marks omitted), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). The Commission is the \u201csole judge of the weight and credibility of the evidence.\u201d Deese, 352 N.C. at 116, 530 S.E.2d at 553. This means that the' Commission\u2019s findings are binding if they are supported by any of the evidence, even if the evidence could also have supported a contrary finding. Id. at 115, 630 S.E.2d at 552-53. Finally, in making these determinations, this Court must view the eyidence in the light most favorable to plaintiff. Adams, 349 N.C. at 681, 509 S.E.2d at 414.\nI.\nHere, defendants first contend that plaintiff misrepresented her medical history when applying for the CNA job, and argue that the Commission failed to make a finding about whether plaintiff made misrepresentations during the interview process. The findings of the Commission indicate otherwise. Finding of fact 4 states that during the interview process, Karen Lawrence asked plaintiff about any injuries which might prevent her from performing the duties of a CNA, and \u201c[p]laintiff told Ms. Lawrence about plaintiffs fall as a truck driver.\u201d By implication, this finding indicates that the Commission found that plaintiff did not misrepresent her history to Ms. Lawrence.\nThe evidence before the Commission supports this finding. At the hearing, Lawrence and another nurse employed by defendants testified that plaintiff would not have been hired had they known that the truck accident had included a back injury as well as an ankle injury. Plaintiff testified that she told Lawrence about the truck accident and did not mention her back injury because her back was no longer troubling her at that time; Ms. Lawrence asked her about injuries that might limit her ability to perform the job. This evidence supports the Commission\u2019s finding that plaintiff disclosed her prior injury before being hired. We do not concern ourselves with whether the evidence might support some other finding, because this Court\u2019s \u201cduty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414. The Commission\u2019s finding of fact, in turn, adequately support its related conclusions of law.\nAlthough the heading of argument I of defendants\u2019 brief refers to assignments of error 1 and 2, which challenge several findings of fact and all of the conclusions of law, they make no argument in the body of the brief regarding any of the individual findings of fact. Thus, we deem assignment of error 2 (challenging findings 12, 16, 17, and conclusions 1 through 5) abandoned. See N.C.R. App. P. 28(b)(6). Most of defendants\u2019 first argument consists of urging this Court to adopt a new rule of law regarding the effect of a plaintiff\u2019s misrepresentations in worker\u2019s compensation cases.\nBecause the Commission did not find any misrepresentation on the part of plaintiff, we need not reach the merits of defendants\u2019 contention that this Court should adopt a misrepresentation defense in worker\u2019s compensation cases. We do note, however, that neither the Industrial Commission nor this Court has the authority to adopt such a defense, if it is not found in the Worker\u2019s Compensation Act. Our Supreme Court \u201chas warned against any inclination toward judicial legislation\u201d in the construction of the Worker\u2019s Compensation Act. Johnson v. Southern Indus. Constructors, 347 N.C. 530, 536, 495 S.E.2d 356, 359 (1998).\nII.\nDefendants next argue that the Commission\u2019s award should be reversed because plaintiff did not prove her entitlement to on-going benefits. Defendants base their assignment of error on an assertion that temporary total disability (TTD) compensation must end once an injured worker reaches maximum medical improvement (MMI). This assertion is an inaccurate reflection of the law.\nOur Supreme Court has recently affirmed this Court\u2019s holding in Knight v. Wal-Mart, 149 N.C. App. 1, 562 S.E.2d 434 (2002), affirmed, 357 N.C. 44, 577 S.E.2d 620 (2003), that reaching MMI does not effect an employee\u2019s right to continue to receive temporary disability benefits. In Knight, we explained that\nThe primary significance of the concept of MMI... is to delineate when \u201cthe healing period\u201d ends and the statutory period begins in cases involving an employee who may be entitled to benefits for a physical impairment listed in N.C. Gen. Stat. \u00a7 97-31. In other words, MMI represents the first point in time at which the employee may elect, if the employee so chooses, to receive scheduled benefits for a specific physical impairment under N.C. Gen. Stat. \u00a7 97-31 (without regard to any loss of wage-earning capacity). MMI does not represent the point in time at which a loss of wage-earning capacity under N.C. Gen. Stat. \u00a7 97-29 or \u00a7 97-30 automatically converts from \u201ctemporary\u201d to \u201cpermanent.\u201d\nId. at 16, 562 S.E.2d at 445. Although Knight had not been affirmed by the Supreme Court when defendants\u2019 brief was written, the issue has now been resolved. Thus, defendants\u2019 argument, that plaintiff is no longer eligible for TTD benefits simply because she has reached MMI, is without merit.\nDefendants also argue that plaintiff is not entitled to any wage loss benefits because she did not make a reasonable effort to obtain other employment. To prove her entitlement to disability benefits, an injured worker must show: an incapacity following her injury to earn the same wages she had earned before the injury in the same employment; an incapacity after the injury to earn the same wages she had earned before her injury in other employment; and a causal connection between her injury and her incapacity to earn. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).\nThe plaintiff bears the burden of proving her incapacity to earn the same wages as she received before the injury. This burden can be met in one of four ways:\n(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\nRussell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted). In the instant case, plaintiff relies on the second of these factors to support her claim for disability benefits. Defendants contend that plaintiff failed to prove that she had made reasonable efforts to obtain employment, and that the Commission failed to make a finding about plaintiff\u2019s effort to find work.\nStipulated fact 6 states:\n6. Plaintiff has been out of work under medical care during the dates of December 4, 1998-February 19, 1999 and April 28, 1999 through the present. Between February 20, 1999 and April 29, 1999, she worked limited hours.\nIn addition, findings 11 and 12 by the Commission indicate that her orthopedist \u201cwrote plaintiff out of work\u201d in April 1999, and released her to return to work with restrictions. In addition, finding 17 states that \u201c[following her release to return to work by Dr. Hayes, plaintiff applied for and received unemployment benefits beginning 22 August 1999.\u201d These findings are supported by the testimony from plaintiff and Dr. Hayes and, in turn, fully support the Commission\u2019s conclusions 2 and 3:\n2. Plaintiff is entitled to compensation for her total disability at the rate of $161.57 per week for the period from 3 December 1998 up through and including 18 February 1999. On 19 February 1999 plaintiff returned to work with defendant-employer on a part-time basis. Subject to a credit for the unemployment benefits paid plaintiff, plaintiff is again entitled to compensation for her total disability from 27 April 1999 and continuing until plaintiff returns to work or further order of the Commission. N.C. Gen. Stat. \u00a797-29.\n3. For the period from 19 February 1999 up through and including 26 April 1999, plaintiff was temporarily partially disabled as a result of the compensable specific traumatic incident and is entitled to receive two-thirds of the difference between her pre-injury wage and the wages plaintiff earned working part-time. N.C. Gen. Stat. \u00a797-30.\nFurther, to be eligible for unemployment benefits, one must conduct at least two in-person contacts with different employers on different days each week. North Carolina Employment Security Commission Regulation \u00a7 10.25. Plaintiff testified during the hearing that she complied with these requirements to receive unemployment benefits, and described her additional efforts seeking employment. The hearing and deposition evidence, medical records and stipulated fact 6 support the Commission\u2019s findings that plaintiff was out of work under medical care due to her injury, and that she applied for and received unemployment benefits, and made reasonable efforts to obtain employment within her restrictions. These findings, in turn, support the Commission\u2019s conclusion that she continues to be entitled to receive TTD benefits. Thus, we reject defendant\u2019s arguments.\nCONCLUSION\nFor the reasons set forth above, we affirm the decision of the Industrial Commission.\nAffirmed.\nJudges WYNN and CALABRIA concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Maynard, & Harris, L.L.P., by Celeste M. Harris, for plaintiff - appellee.", "Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Clayton M. Custer, Philip J. Mohr and Alison R. Bost, for defendant-appellants." ], "corrections": "", "head_matter": "WANDA JEFFERSON HOOKER, Employee, Plaintiff v. STOKES-REYNOLDS HOSPITAL/NORTH CAROLINA BAPTIST HOSPITAL, INC., Employer; SELF-INSURED, Defendants\nNo. COA02-1361\n(Filed 4 November 2003)\n1. Workers\u2019 Compensation\u2014 misrepresentation \u2014 medical history\nThe Industrial Commission did not err in a workers\u2019 compensation case by allegedly failing to make a finding about whether plaintiff employee made misrepresentations regarding her medical history during the interview process when applying for a CNA job with defendant hospital, because the evidence supports the Commission\u2019s finding that plaintiff disclosed her prior injury before being hired.\n2. Workers\u2019 Compensation\u2014 misrepresentation defense\u2014 medical history\nNeither the Industrial Commission nor the Court of Appeals has the authority to adopt a misrepresentation defense regarding an employee\u2019s medical history if it is not found in the Workers\u2019 Compensation Act.\n3. Workers\u2019 Compensation\u2014 continuing temporary total disability \u2014 maximum medical improvement\nThe Industrial Commission\u2019s award in a workers\u2019 compensation case of continuing temporary total disability is affirmed, because: (1) reaching maximum medical improvement does not affect an employee\u2019s right to continue to receive temporary disability benefits; and (2) the hearing and deposition evidence, medical records, and stipulated fact six support the Commission\u2019s findings that plaintiff was out of work under medical care due to her injury, that she applied for and received unemployment benefits, and that she made reasonable efforts to obtain employment within her restrictions.\nAppeal by defendants from Opinion and Award entered 7 May 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 August 2003.\nMaynard, & Harris, L.L.P., by Celeste M. Harris, for plaintiff - appellee.\nWomble, Carlyle, Sandridge & Rice, P.L.L.C., by Clayton M. Custer, Philip J. Mohr and Alison R. Bost, for defendant-appellants." }, "file_name": "0111-01", "first_page_order": 141, "last_page_order": 148 }