{ "id": 8353726, "name": "JOYCE BROWN McGHEE, Employee, Plaintiff v. BANK OF AMERICA CORPORATION, Employer, EBI/ROYAL AND SUNALLIANCE INSURANCE CO., Carrier, Defendants", "name_abbreviation": "McGhee v. Bank of America Corp.", "decision_date": "2005-09-20", "docket_number": "No. COA04-1428", "first_page": "422", "last_page": "429", "citations": [ { "type": "official", "cite": "173 N.C. App. 422" } ], "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": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "413" } ], "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": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(19)" }, { "page": "(11)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-24", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "opinion_index": 0 } ], "analysis": { "cardinality": 631, "char_count": 15625, "ocr_confidence": 0.762, "pagerank": { "raw": 6.724175978597107e-08, "percentile": 0.4082073896972372 }, "sha256": "012748550d93a4b81876bd7db4b732341c0db5756db154cec80c9df49f3b9dca", "simhash": "1:a4b14fab38a2162f", "word_count": 2329 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and STEELMAN concur." ], "parties": [ "JOYCE BROWN McGHEE, Employee, Plaintiff v. BANK OF AMERICA CORPORATION, Employer, EBI/ROYAL AND SUNALLIANCE INSURANCE CO., Carrier, Defendants" ], "opinions": [ { "text": "McCullough, Judge.\nDefendants appeal from an opinion and award of the North Carolina Industrial Commission (\u201cthe Commission\u201d) awarding plaintiff total disability compensation, medical expenses, and attorneys\u2019 fees. Defendants argue that plaintiffs claim was not timely filed, and that the Commission therefore lacked jurisdiction to hear the claim. Defendants further contend the Commission erred in concluding that plaintiff is totally disabled, and erred in awarding her medical expenses and attorneys\u2019 fees. We affirm the opinion and award of the Commission.\nThe facts of the instant case, as found by the Commission, are as follows: plaintiff was employed as an assistant vice-president in marketing and training by defendant Bank of America (\u201cBOA\u201d), where she had worked for nearly eighteen years. BOA\u2019s home office was located in Charlotte, North Carolina; however, plaintiff\u2019s place of employment was Richmond, Virginia, where she resided.\nOn 1 August 1998, plaintiff was returning to Richmond from a business trip to Florida. Plaintiff\u2019s manager had instructed her to drive her personal vehicle home and then fly back to Florida at defendants\u2019 expense. While driving from Florida to Richmond on 1 August, plaintiff sustained injuries to her head, neck, left shoulder, and ribs when her vehicle was \u201cT-boned\u201d with considerable force by another vehicle in Wilmington, North Carolina. Plaintiff received emergency care in Wilmington, where she was diagnosed with a head injury and multiple acute strain secondary to the motor vehicle accident. When she returned to Richmond, plaintiff continued to receive medical care over the next two years for a variety of conditions arising from the accident, including cerebral concussion with persistent post-concussive disorder, cervical whiplash, cognitive defects, attention problems, persistent chronic pain, a blind spot in her left eye, and neurosensory hearing loss in the left ear.\nBetween 1 August 1998 and 14 August 2000, plaintiff received either her full salary or short-term disability payments from defendants. While plaintiff received short-term disability she was not working. During the weeks plaintiff received her full salary, she worked between three to six hours per day performing menial, \u201cmake work\u201d tasks. The Commission found, and defendants have excepted, that these tasks did not constitute \u201cother employment\u201d pursuant to section 97-2(9) of the General Statutes.\nOn 5 September 2000, plaintiff attempted full-time employment at National Catalog in Martinsville, Virginia. Due to her chronic headaches, however, plaintiff was unable to perform her job duties, and National Catalog terminated her employment on 7 November 2000. Plaintiff received unemployment compensation benefits from the Virginia Employment Security Commission between 27 November 2000 and 15 May 2001 as a result of her termination by National Catalog.\nFollowing her move to Martinsville, Virginia, plaintiff continued to receive medical care for a variety of conditions arising from her 1 August 1998 injury, including chronic pain, major depression, post-traumatic stress disorder, and cognitive defects. Two of plaintiffs treating physicians testified that plaintiff remains incapable of employment.\nUpon presentation of the evidence, the Commission found and concluded that plaintiff was totally disabled and entered an award granting her total disability compensation, medical expenses, and attorneys\u2019 fees. From the opinion and award of the Commission, defendants appeal.\nDefendants argue the Industrial Commission erred by (1) concluding that plaintiffs claim was timely filed; (2) concluding that plaintiff is totally disabled; (3) finding that the part-time position offered to plaintiff did not constitute \u201cother employment\u201d as defined in section 97-2(9) of the General Statutes; (4) ordering defendants to pay for medical treatment for plaintiff; and (5) awarding plaintiff attorneys\u2019 fees. For the reasons stated herein, we affirm the opinion and award of the Commission.\nBy their first assignment of error, defendants contend the Commission erred in finding and concluding that plaintiff\u2019s claim was timely filed. Defendants correctly note that, pursuant to section 97-24 of our General Statutes, the right to workers\u2019 compensation for an injury by accident claim is \u201cforever barred\u201d unless the claimant files a claim with the Industrial Commission either (1) within two years of the accident or (2) \u201cwithin two years after the last payment of medical compensation when no other compensation has been paid and when the employer\u2019s liability has not otherwise been established.\u201d N.C. Gen. Stat. \u00a7 97-24 (2003). Defendants argue that plaintiff neither filed her claim within two years of the accident, nor within two years after the last payment of medical compensation by defendants. We disagree.\nPlaintiff\u2019s accident occurred on 1 August 1998. Plaintiff filed a Form 18 Notice of Accident with the North Carolina Industrial Commission on 9 August 2001. Thus, she did not file her claim within two years of the accident. However, the Commission found that defendants last paid medical compensation for plaintiffs compensable injuries in August of 2000. Plaintiff therefore filed her claim within the two-year period following the last payment of medical compensation by defendants. At that time, defendants had paid no other compensation pursuant to the Workers\u2019 Compensation Act, nor had their liability been otherwise established. Plaintiff\u2019s claim was thus timely filed. See N.C. Gen. Stat. \u00a7 97-24.\nDefendants assign error to the Commission\u2019s finding that they last paid medical compensation for plaintiff\u2019s injuries in August of 2000. Defendants argue that the payment at issue, $72,554.38 paid to \u25a0medical providers in Virginia, does not meet the statutory definition of \u201cmedical compensation\u201d under section 97-2(19) of the North Carolina General Statutes, because when defendants made the payment, they presumed that plaintiff would be filing a workers\u2019 compensation claim in Virginia, rather than North Carolina. We find no merit to defendants\u2019 argument.\nSection 97-2(19) of the North Carolina General Statutes defines medical compensation as\nmedical, surgical, hospital, nursing, and rehabilitative services, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability; and any original artificial members as may reasonably be necessary at the end of the healing period and the replacement of such artificial members when reasonably necessitated by ordinary use or medical circumstances.\nN.C. Gen. Stat. \u00a7 97-2(19) (2003). Nothing in the definition limits the geographical locale of the medical treatment to North Carolina, nor does the definition create exceptions based upon an employer\u2019s \u201cimpression\u201d of a \u201cpresumed claim\u201d in a foreign jurisdiction.\nIn their answers to plaintiff\u2019s second interrogatories, defendants responded to the following question: \u201cDid [defendants] pay for either medical, surgical, hospital, nursing, rehabilitative services, or medicine for injuries sustained by [plaintiff] on August 1, 1998?\u201d Defendants responded \u201cYes.\u201d Defendants also affirmed that they had made such payments through August of 2000. Thus, by their own admission, defendants paid medical compensation to plaintiff in August of 2000. The Commission did not err in finding that defendants last paid medical compensation to plaintiff in August of 2000.\nDefendants argue that plaintiff received \u201cother compensation\u201d in the form of short-term disability benefits such that the provisions of section 97-24 are inapplicable. We disagree. \u201cCompensation\u201d under the Workers\u2019 Compensation Act means \u201cthe money allowance payable to an employee or to his dependents as provided for in this Article, and includes funeral benefits provided herein.\u201d N.C. Gen. Stat. \u00a7 97-2(11) (2003) (emphasis added). Defendants concede that the short-term disability benefits paid to plaintiff were in lieu of workers\u2019 compensation benefits and not made payable to plaintiff pursuant to the Workers\u2019 Compensation Act. The short-term disability benefits therefore do not qualify as \u201cother compensation\u201d under section 97-24 of the General Statutes. We overrule defendants\u2019 assignment of error.\nDefendants next contend the Commission erred in concluding that plaintiff is totally disabled. Defendants argue plaintiff failed to produce evidence that she is incapable of work in any employment. Defendants\u2019 argument has no merit.\nThe Commission made numerous findings detailing plaintiff\u2019s medical history and her incapability for employment. Defendants failed to assign error to these findings and they are therefore binding upon appeal. For example, the Commission found that, due to her 1 August 1998 head trauma, plaintiff\nsuffers impairments for attention, recall, perception, construction in the visual channel, mild impairments for short-term memory, below average visual delayed memory, striking impairments on visual spatial construction, and markedly deteriorated intellectual functioning from pre-morbid functioning due to her reductions in both verbal and non-verbal functioning.\nTwo of plaintiff\u2019s treating physicians testified that she was \u201cincapable of sustaining competitive employment\u201d and was \u201ctotally disabled.\u201d\nThe findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413 (1998). \u201cThus, on appeal, this Court \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Id. (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). In the present case, the Commission based its finding that plaintiff was totally disabled on substantial competent evidence of record. We overrule this assignment of error.\nBy further assignment of error, defendants contend the Commission erred in finding that the part-time position offered to plaintiff did not constitute \u201cother employment\u201d as defined by section 97-2(9) of the General Statutes. Defendants argue plaintiff offered insufficient evidence that her part-time employment was not generally available on the market. Defendants also contend the Commission \u201capplied a standard that was not considered since plaintiff was working in Virginia and presumably pursuing a claim in Virginia.\u201d\nDefendants\u2019 presumptions aside, plaintiff offered substantial evidence that the position offered to her upon her return was \u201cmake work\u201d rather than \u201cother employment.\u201d Plaintiff testified when she returned to BOA on a part-time basis, her work consisted of\nhelping] . . . make copies, sort the copies. I would go to, maybe, the copying company and pick up copies for them and have them made. I\u2019d either, maybe, do their supplies, make sure they had their supplies, and most of the time I did \u2014 played games on the computer from the time \u2014 from the time that I got there. Usually, maybe they would let me work, maybe, just two hours sorting stuff or whatever, and the rest of the time I was just playing games on the computer.\nThis evidence supports the Commission\u2019s finding that plaintiff\u2019s part-time position was \u201cmake-work.\u201d We overrule this assignment of error.\nDefendants further argue the Commission erred in ordering defendants to pay for plaintiff\u2019s medical care after August of 2000. Defendants assert that the evidence tended to show that the medical care provided to plaintiff was ineffective in lessening her disability or providing relief. Defendants point to such notations by plaintiff\u2019s physicians that plaintiff \u201ccontinues to have pain\u201d and \u201cstill having increased anxiety and problems sleeping\u201d as proof that the medical care was ineffective. Defendants argue the Commission thus erred in concluding that the medical care provided to plaintiff since August of 2000 was \u201creasonably necessary to effect a cure and provide relief to plaintiff.\u201d We disagree.\nApparently, defendants believe that if a particular medication or treatment does not produce the precise desired result, an employer should not be responsible for payment of any of an injured worker\u2019s medical care for chronic pain arising from a compensable injury. There was substantial evidence of record that plaintiffs medical care was necessary to provide her with relief. We overrule this assignment of error.\nFinally, defendants argue the Commission erred in awarding attorneys\u2019 fees to plaintiff. The decision of whether to award attorneys\u2019 fees, however, is within the sound discretion of the Industrial Commission. Taylor v. J.P. Stevens Co., 307 N.C. 392, 397, 298 S.E.2d 681, 683 (1983). Defendants fail to demonstrate on what basis the Commission abused its discretion in awarding attorneys\u2019 fees, and we likewise have discerned none.\nThe opinion and award of the Industrial Commission is affirmed.\nAffirmed.\nJudges TIMMONS-GOODSON and STEELMAN concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Fred D. Smith, Jr., for plaintiff appellee.", "Wilson & Ratledge, PLLC, by Maura K. Gavigan and, Kristine L. Prati, for defendant appellants." ], "corrections": "", "head_matter": "JOYCE BROWN McGHEE, Employee, Plaintiff v. BANK OF AMERICA CORPORATION, Employer, EBI/ROYAL AND SUNALLIANCE INSURANCE CO., Carrier, Defendants\nNo. COA04-1428\n(Filed 20 September 2005)\n1. Workers\u2019 Compensation\u2014 timeliness of claim \u2014 last medical payment \u2014 foreign jurisdiction\nA workers\u2019 compensation claim was timely filed because it was within two years of the last medical compensation paid by defendants, even though the payment was to medical providers in Virginia. Nothing in the statutory definition of medical compensation limits the location to North Carolina, nor is there an exception for the employer\u2019s presumption that the claim will be in a foreign jurisdiction. N.C.G.S. \u00a7 97-24.\n2. Workers\u2019 Compensation\u2014 timeliness of claim \u2014 short-term disability payments \u2014 not \u201cother compensation\u201d\nShort-term disability benefits paid in lieu of workers\u2019 compensation were not paid pursuant to the Workers\u2019 Compensation Act, and did not qualify as \u201cother compensation\u201d for timeliness purposes under N.C.G.S. \u00a7 97-24.\n3. Workers\u2019 Compensation\u2014 appeal \u2014 failure to assign error \u2014 findings binding\nFailure to assign error in a workers\u2019 compensation case to findings about plaintiff\u2019s medical history and incapacity for employment meant that those findings were binding on appeal. The Industrial Commission\u2019s conclusion that plaintiff is totally disabled was upheld.\n4. Workers\u2019 Compensation\u2014 offered part-time employment\u2014 make-work\nThe evidence in a workers\u2019 compensation case supported the finding that a part-time position offered to plaintiff was make-work and did not constitute other employment as defined by N.C.G.S. \u00a7 97-2(9).\n5. Workers\u2019 Compensation\u2014 medical care \u2014 effectiveness\nThe Industrial Commission did not err in a workers\u2019 compensation case by ordering defendants to pay for medical care which defendants contended was ineffective. There was substantial evidence of record that plaintiff\u2019s care was necessary to provide relief.\n6. Workers\u2019 Compensation\u2014 attorney fees \u2014 no abuse of discretion\nThere was no abuse of discretion in the award of attorney fees in a workers\u2019 compensation action.\nAppeal by defendants from opinion and award entered 16 June 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 May 2005.\nFred D. Smith, Jr., for plaintiff appellee.\nWilson & Ratledge, PLLC, by Maura K. Gavigan and, Kristine L. Prati, for defendant appellants." }, "file_name": "0422-01", "first_page_order": 452, "last_page_order": 459 }