{ "id": 8955696, "name": "GARLAND JOYNER, Employee-Plaintiff v. MABREY SMITH MOTOR COMPANY, Employer-Defendant and NON-INSURED, Carrier-Defendant", "name_abbreviation": "Joyner v. Mabrey Smith Motor Co.", "decision_date": "2003-11-04", "docket_number": "No. COA02-1733", "first_page": "125", "last_page": "131", "citations": [ { "type": "official", "cite": "161 N.C. App. 125" } ], "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": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "472 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "year": 1996, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0228-01" ] }, { "cite": "462 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "547", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915700 ], "year": 1995, "pin_cites": [ { "page": "359", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0356-01" ] }, { "cite": "514 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 378", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219776 ], "year": 1999, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0378-01" ] }, { "cite": "510 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 11", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236822 ], "year": 1999, "pin_cites": [ { "page": "15-16" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0011-01" ] } ], "analysis": { "cardinality": 627, "char_count": 15534, "ocr_confidence": 0.773, "pagerank": { "raw": 1.2427463207660548e-07, "percentile": 0.6083362389081372 }, "sha256": "5ab8835769f9a0984a6b8b2b83c233f217e5da99160a6f744c6174dd64248493", "simhash": "1:90ac638ebb0b2205", "word_count": 2366 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "GARLAND JOYNER, Employee-Plaintiff v. MABREY SMITH MOTOR COMPANY, Employer-Defendant and NON-INSURED, Carrier-Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nMabrey Smith Motor Company (\u201cdefendant\u201d) appeals an opinion and award issued by the North Carolina Industrial Commission (\u201cCommission\u201d) awarding Garland Joyner (\u201cplaintiff\u2019) total disability benefits, medical expenses, and attorneys\u2019 fees for plaintiff\u2019s work-related injuries resulting from a motor vehicle accident. We affirm.\nOn 6 July 1998, plaintiff was employed as a mechanic for defendant. While plaintiff was test-driving a vehicle he repaired, he was struck from behind by another vehicle. Plaintiff sought medical treatment from Carteret General Hospital and was diagnosed with cervical strain. Plaintiffs condition grew worse. He was placed on medical restrictions by his treating physician and missed work periodically due to dizziness, blurred vision, and headaches associated with the accident. On 18 September 2000, plaintiff\u2019s wife called defendant and reported plaintiff\u2019s inability to work that day because of a headache. The following day, defendant informed plaintiff he was terminated for failing to follow personnel policy by having his wife call, rather than himself, to report that he was ill and unable to work.\nOn 9 May 2000, plaintiff filed a claim for workers\u2019 compensation benefits for injuries \u201ccaused [on 6 July 1998] by being rear ended....\u201d On 12 July 2000, plaintiff reported to the Commission that the parties failed to reach an agreement regarding compensation because plaintiff was \u201cunable to locate workers\u2019 compensation insurance, and employer has neither accepted or denied [the] claim.\u201d Plaintiff requested that his claim be assigned for hearing.\nOn 18 July 2000, plaintiff sent defendant a set of interrogatories. Two months later, after defendant failed to timely respond to the interrogatories, plaintiff wrote to defendant and requested that defendant forward the answers \u201cas soon as possible.\u201d Defendant again failed to respond, and the hearing scheduled for 3 October 2000 was converted into a pretrial conference. At the pretrial conference, the parties stipulated to the following: (1) an employer-employee relationship existed between defendant and plaintiff; (2) defendant was non-insured; (3) plaintiff\u2019s average weekly wage was $410.00; and (4) the date of injury was 6 July 1998. An order of continuance, granted by Deputy Commissioner Morgan S. Chapman, mandated that defendant respond to plaintiff\u2019s interrogatories \u201cwithin two weeks or be subject to sanctions.\u201d\nOn 1 November 2000, plaintiff wrote to defendant requesting answers to plaintiff\u2019s interrogatories \u201cas soon as possible.\u201d When defendant failed to respond to the sought interrogatories, plaintiff wrote defendant again on 12 December 2000 to remind it that the order of continuance required defendant to answer the interrogatories within two weeks. Plaintiff warned defendant that, if its answers were not received by 19 December 2000, plaintiff would request sanctions. Defendant never responded.\nAt a hearing held 6 February 2001, Deputy Commissioner George T. Glenn, II, imposed sanctions against defendant \u201cfor defendant\u2019s failure to comply with Deputy Commissioner Morgan Chapman\u2019s Order of October 11, 2000\u201d by \u201cstriking any defenses that the defendant may have to the claim of plaintiff.\u201d Accordingly, Deputy Commissioner Glenn entered an opinion and award in favor of plaintiff for a work-related injury sustained by plaintiff while in the course and scope of his employment. The hearing was limited to the issue of the workers\u2019 compensation benefits to which plaintiff was entitled as a result of his injuries. The deputy commissioner awarded plaintiff total disability benefits at the rate of $532.00 per week beginning 19 September 2000 and continuing until plaintiff returned to work \u201cearning the same or greater wages as he was earning at the time of his injury\u201d or the Commission ordered otherwise. Medical expenses, attorneys\u2019 fees and costs were also awarded. The Full Commission affirmed the opinion and award of the deputy commissioner, and defendant appeals. On appeal, defendant contends (I) the Commission should not have sanctioned defendant by striking its defenses; (II) the Commission\u2019s findings of fact and conclusions of law concerning plaintiff\u2019s entitlement to total disability benefits from 19 September 2000 are not supported by competent evidence; and (III) there was insufficient evidence that plaintiff is entitled to the payment of medical expenses.\nI. Sanctions\nNorth Carolina General Statute \u00a7 97-80(a) (2001) \u201cgives the Commission the power to make rules consistent with the Workers\u2019 Compensation Act for carrying out its provisions.\u201d Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 15-16, 510 S.E.2d 388, 392 (1999). Rule 605(1) of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission provides that parties may obtain discovery by the use of interrogatories, and where there is a \u201cfailure to answer an interrogatory, the party submitting the interrogatories may move the Industrial Commission for an order compelling answer.\u201d Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 605(1), 2002 Ann. R. (N.C.) 765. The rule goes on to expressly provide for sanctions for \u201cfailure to comply with a Commission order compelling discovery.\u201d Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 605(5), 2002 Ann. R. (N.C.) 766.\nRule 802 of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission provides that \u201cfailure to comply\u201d with the Workers\u2019 Compensation Rules \u201cmay subject the violator to any of the sanctions outlined in Rule 37 of the North Carolina Rules of Civil Procedure . . . against the party or his counsel whose conduct necessitates the order.\u201d\nHauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 387, 514 S.E.2d 545, 551 (1999). Rule 37 expressly allows a court to sanction a party failing to comply with an order by \u201crefusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 37(b)(2)b (2001). \u201cThe administration of [discovery] rules, in particular the imposition of sanctions, is within the broad discretion of the trial court. The trial court\u2019s decision regarding sanctions will only be overturned on appeal upon showing an abuse of that discretion.\u201d Williams v. N.C. Dep\u2019t of Correction, 120 N.C. App. 356, 359, 462 S.E.2d 545, 547 (1995) (citations omitted).\nIn the instant case, defendant asserts the hearing officer should not have stricken its defenses. Defendant failed to answer plaintiff\u2019s interrogatories sent to it on 18 July 2000 within the appropriate time period and failed to request any extension of time. After defendant was ordered by the Commission to respond to plaintiff\u2019s interrogatories within two weeks of the pretrial conference order filed 11 October 2000, defendant again failed to answer plaintiff\u2019s interrogatories or request any extension of time. Defendant further chose to ignore plaintiff\u2019s letters reminding defendant of its obligation to comply with the order by answering the interrogatories and ultimately warning defendant of plaintiff\u2019s impending intent to seek sanctions. Over three and a half months after defendant was warned it would be subject to sanctions, the deputy commissioner imposed sanctions expressly approved under Rule 37 as authorized by Rules 605 and 802 of the Workers\u2019 Compensation Rules. Defendant cannot complain when the Commission fulfills its warning and imposes sanctions for continuing noncompliance with the deputy commissioner\u2019s order spanning a period of almost three and a half months. We find no abuse of discretion.\nMoreover, we note defendant\u2019s arguments to this Court fail to assert the Commission abused its discretion in imposing sanctions. Rather, defendant merely presents on appeal the defenses expressly barred by the Commission as a result of the sanctions. These defenses include that the work on the vehicle cannot be considered part of the scope of his work, that plaintiff\u2019s testimony was contradictory, and that plaintiff had not provided medical records to defendant. Having concluded the Commission did not abuse its discretion by striking these defenses, we do not entertain them on appeal.\nII. Onset of Disability\nDefendant next asserts the conclusions of law made by the Commission regarding the onset of plaintiffs disability are not supported by the findings of fact, and the findings of fact are not supported by the evidence presented at the hearing. Specifically, defendant argues the Commission\u2019s conclusion, that plaintiff was entitled to total disability benefits from the date plaintiff was terminated, was not supported by findings of fact or competent evidence because plaintiff came to work the day he was terminated; therefore, defendant argues, plaintiff could not have been unable to work. Defendant additionally argues, in the alternative, that plaintiff was fired only because he violated personnel policy by failing to personally call in sick. We examine these contentions together.\nThe Commission found as fact that plaintiff had not worked since the date of his termination \u201cas a result of problems associated with his injury by [the] accident on July 6, 1998\u201d and concluded plaintiff was entitled to total disability benefits from that date. We are not persuaded that plaintiff is barred from benefits because defendant alleges plaintiff reported to work the day he was fired, that he disregarded the existing policy requiring employees to personally call in sick, and that such misconduct or fault could have been a constructive refusal to work. To determine entitlement to benefits following an employee\u2019s termination in situations analogous to the facts presented by the case at bar, we examine the evidence of the cause of the employee\u2019s diminution or loss of wages.\n[T]he test is whether the employee\u2019s loss of, or diminution in, wages is attributable to the wrongful act resulting in loss of employment, in which case benefits will be barred, or whether such loss or diminution in earning capacity is due to the employee\u2019s work-related disability, in which case the employee will be entitled to benefits for such disability.\nSeagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 234, 472 S.E.2d 397, 401 (1996). In the instant case, plaintiff expressly testified that his efforts to obtain subsequent employment were thwarted by his medical restrictions resulting from the accident and no one would consider him because of those restrictions. Although further competent evidence is not required, Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), we note plaintiffs testimony is fully supported by the medical records submitted to the Commission. Whether we would have reached a different result on the evidence is irrelevant, and more importantly, beyond the scope of our review. Id. Under our holding in Seagraves, we find there was competent evidence to support the findings and conclusions of the Commission.\nIII. Medical Expenses\nFinally, defendant argues there was insufficient evidence to find plaintiff is entitled to the payment of medical expenses incurred for the treatment of the injuries sustained or further treatment necessary to cure, give relief, or lessen plaintiffs period of disability. This argument fails for multiple reasons. First, defendant violated our rules of appellate procedure by failing to include any citations of authority upon which it relies. N.C. R. App. P. 28(b)(6) (2003). Second, we need not revisit defendant\u2019s recapitulation of defenses previously considered and found unavailable. Third, both the medical records and plaintiffs testimony are fully competent to support the Commission\u2019s findings that plaintiff suffered a compensable work-related injury by accident, and that finding supports the conclusion of law that plaintiff is entitled to workers\u2019 compensation benefits.\nDefendant has brought forward no argument for its assignments of error concerning the Commission\u2019s findings of fact that it \u201cengaged in stubborn and unfounded litigiousness during the course of defending this claim\u201d or the Commission\u2019s conclusions of law requiring defendant to pay plaintiff\u2019s attorneys\u2019 fees and the costs of the action. We deem these assignments of error abandoned. N.C. R. App. P. 28(b)(6) (2003). The opinion and award of the Commission is affirmed.\nAffirmed.\nJudges McGEE and HUNTER concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Brumbaugh, Mu & King, RA., by Kenneth W. King, Jr., for plaintiff-appellee.", "Bailey & Way, by John E. Way, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "GARLAND JOYNER, Employee-Plaintiff v. MABREY SMITH MOTOR COMPANY, Employer-Defendant and NON-INSURED, Carrier-Defendant\nNo. COA02-1733\n(Filed 4 November 2003)\n1. Workers\u2019 Compensation\u2014 sanctions \u2014 striking defenses\u2014 failure to answer interrogatories\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by sanctioning defendant employer and striking its defenses based on a failure to comply with an order compelling discovery, because: (1) defendant was warned for a period of three and a half months that it would be subject to sanctions expressly approved under Rule 37 as authorized by Rules 605 and 802 of the Workers\u2019 Compensation Rules for its continued noncompliance with the deputy commissioner\u2019s order; and (2) defendant merely presents on appeal the defenses expressly barred by the Commission as a result of the sanctions.\n2. Workers\u2019 Compensation\u2014 total disability benefits \u2014 findings of fact \u2014 conclusions of law\nThe Industrial Commission\u2019s findings of fact and conclusions of law concerning plaintiff\u2019s entitlement to total disability benefits from 19 September 2000 in a workers\u2019 compensation case were supported by competent evidence, because plaintiff\u2019s testimony that his efforts to obtain subsequent employment were thwarted by his medical restrictions resulting from the accident was supported by the medical records submitted to the Commission.\n3. Workers\u2019 Compensation\u2014 disability \u2014 medical expenses\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff employee was entitled to the payment of medical expenses incurred for the treatment of the injuries sustained or further treatment necessary to cure, give relief, or lessen plaintiffs period of disability, because: (1) defendant violated the rules of appellate procedure by failing to include any citations of authority upon which it relies as required by N.C. R. App. P. 28(b)(6); (2) defendant cannot rely on defenses that have previously been found unavailable; and (3) both the medical records and plaintiffs testimony are fully competent to support the Commission\u2019s findings that plaintiff suffered a com-pensable work-related injury by accident, and that finding supports the conclusion of law that plaintiff is entitled to workers\u2019 compensation benefits.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to present argument\nAlthough defendant contends the Industrial Commission erred in a workers\u2019 compensation case by its finding of fact that defendant engaged in stubborn and unfounded litigiousness and by its conclusions of law requiring defendant to pay plaintiff\u2019s attorney fees and the costs of the action, these assignments of error are abandoned because defendant failed to bring forward any argument for these assignments of error.\nAppeal by defendant from an opinion and award entered 16 August 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 October 2003.\nBrumbaugh, Mu & King, RA., by Kenneth W. King, Jr., for plaintiff-appellee.\nBailey & Way, by John E. Way, Jr., for defendant-appellant." }, "file_name": "0125-01", "first_page_order": 155, "last_page_order": 161 }