{ "id": 8352628, "name": "LIONEL LEWIS, Employee, Plaintiff v. CRAVEN REGIONAL MEDICAL CENTER, Employee and VIRGINIA INSURANCE RECIPROCAL, Carrier, Defendants", "name_abbreviation": "Lewis v. Craven Regional Medical Center", "decision_date": "2005-11-15", "docket_number": "No. COA04-1656", "first_page": "561", "last_page": "567", "citations": [ { "type": "official", "cite": "174 N.C. App. 561" } ], "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": "472 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912507 ], "year": 1996, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0200-01" ] }, { "cite": "100 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628048 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0669-01" ] }, { "cite": "67 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "372", "parenthetical": "\"Compensation must be based upon loss of wage-earning power rather than the amount actually received\"" } ], "opinion_index": 0 }, { "cite": "234 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623071 ], "year": 1951, "pin_cites": [ { "page": "447-48", "parenthetical": "\"Compensation must be based upon loss of wage-earning power rather than the amount actually received\"" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0446-01" ] }, { "cite": "581 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "783" } ], "opinion_index": 0 }, { "cite": "158 N.C. 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Stat.", "weight": 3, "pin_cites": [ { "page": "and (2)" } ], "opinion_index": 0 }, { "cite": "468 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "274" }, { "page": "274" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916022 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "149" }, { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0143-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 14, "year": 2003, "pin_cites": [ { "page": "443" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 665, "char_count": 15190, "ocr_confidence": 0.751, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.751309825399087 }, "sha256": "b2f0fe80df86f167a93ad05289d497599aff4cf4a8d96062a4429cd53ded5ecb", "simhash": "1:a877bf54742b1f1e", "word_count": 2415 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STEELMAN concur." ], "parties": [ "LIONEL LEWIS, Employee, Plaintiff v. CRAVEN REGIONAL MEDICAL CENTER, Employee and VIRGINIA INSURANCE RECIPROCAL, Carrier, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nCraven Regional Medical Center and Virginia Insurance Reciprocal (collectively \u201cdefendants\u201d) appeal from an opinion and award of the North Carolina Industrial Commission (the \u201cCommission\u201d) setting aside the Commission\u2019s previous approval of a Form 26 agreement on the grounds that the benefits awarded thereunder were less favorable than those available under N.C. Gen. Stat. \u00a7 97-30 (2003). We affirm.\nLionel Lewis (\u201cplaintiff\u2019) suffered a herniated disc in his back on 23 February 1990 during the course and scope of his employment. Defendants admitted liability and paid plaintiff temporary total disability from 30 March 1990 through 28 January 1991 as provided by a Form 21 agreement approved by the Commission on 31 October 1991. Beginning on 28 January 1991 and continuing for a period of forty-five weeks, plaintiff received worker\u2019s compensation for a fifteen percent permanent partial disability to his back as provided for by N.C. Gen. Stat. \u00a7 97-31 pursuant to a Form 26 agreement approved by the Commission on 10 October 1991.\nOn 14 May 1992, plaintiff sought additional compensation on the grounds that he suffered a substantial change of condition. Both the deputy commissioner and the Commission rejected plaintiffs claim of a change in condition. In so doing, the Commission found as fact that, \u201c[d] espite his very limited education and his work history of manual labor, [plaintiff] has had wage earning capacity. . . . His allegation that he has been totally disabled is not accepted as credible.\u201d Plaintiff appealed, and this Court affirmed, holding the Commission\u2019s findings of fact supported its conclusion that there had been no change in plaintiffs condition. Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 149, 468 S.E.2d 269, 274 (1996) CLewis /\u201d). Although plaintiff argued to this Court that the Form 26 agreement was not fair and just, the Court declined to address the issue in the absence of a motion by plaintiff to the Commission to have the agreement set aside. Lewis I, 122 N.C. App. at 148, 468 S.E.2d at 274.\nOn 6 June 1996, plaintiff requested a hearing before the Commission to challenge the Form 26 agreement on the grounds that it was not fair to plaintiff at the time it was entered and was, therefore, improvidently approved by the Commission. The deputy commissioner rejected plaintiffs challenge to the Form 26 agreement, but the Full Commission reversed. Contrary to its earlier determination that plaintiff retained wage earning capacity, the Commission found plaintiff had been incapable of earning wages since 23 February 1990 and determined that plaintiff was qualified to receive benefits under N.C. Gen. Stat. \u00a7 97-29. Upon comparing the disability compensation provided under the Form 26 agreement with those calculated pursuant to N.C. Gen. Stat. \u00a7 97-29, the Commission concluded the Form 26 agreement did not provide plaintiff with the most favorable disability benefits to which he was entitled and, therefore, must be set aside. Accord Vernon v. Steven L. Mabe Builders, 336 N.C. 425, 432-33, 444 S.E.2d 191, 195 (1994).\nDefendant appealed and this Court reversed, holding (1) there was no competent evidence in the record to support the finding that plaintiff was incapable of earning wages with defendant-employer or in any other employment so as to be entitled to benefits under N.C. Gen. Stat. \u00a7 97-29 and (2) the Commission was collaterally estopped from finding plaintiff to be incapable of work on 10 October 1991 by virtue of its previous finding that plaintiff retained wage earning capacity at the time the Form 26 agreement was approved. Lewis v. Craven Reg\u2019l Med. Ctr., 134 N.C. App. 438, 442, 518 S.E.2d 1, 4 (1999), aff\u2019d per curiam, 352 N.C. 668, 535 S.E.2d 33 (2000) (\u201cLewis IT). The matter was remanded to the Commission for a determination of whether plaintiff would receive a greater benefit under N.C. Gen. Stat. \u00a7 97-30 than he received under the Form 26 agreement. Id. at 443, 518 S.E.2d at 4.\nOn remand, the Commission concluded that the compensation provided in the agreement was less favorable to plaintiff than that available under N.C. Gen. Stat. \u00a7 97-30 and again set aside the Form 26 agreement. Building on its initial opinion and award, which determined that plaintiff had retained wage-earning capacity since his injury, the Commission took judicial notice of the federal minimum wage in 1991 and inferred plaintiff\u2019s wage-earning capacity to be equal to the minimum wage. The Commission rejected the possibility that plaintiff could earn more than the minimum wage because \u201cthere [was] no indication in the record\u201d justifying the elevation of his wage-earning capacity above minimum wage. Based on the federal minimum wage in 1991, the Commission calculated plaintiff was entitled to the amount of $24,298.28 under N.C. Gen. Stat. \u00a7 97-30, which was greater than the $10,116.45 plaintiff received pursuant to the Form 26 agreement. The Commission made findings of fact and conclusions of law that plaintiff was not provided the most favorable remedy, set aside the Form 26 agreement, and awarded plaintiff $14,181.83, the difference between the benefits he had already received under the Form 26 agreement and the benefits as calculated under N.C. Gen. Stat. \u00a7 97-30. Defendants appeal.\nOur standard of review in reviewing an appeal from the Commission is well-established. We are to determine \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). The Commission\u2019s findings of fact \u201care conclusive on appeal when supported by competent evidence,\u201d irrespective of evidence supporting a contrary finding, Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only \u201cwhen there is a complete lack of competent evidence to support them[.]\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). The evidence is to be taken in the light most favorable to the plaintiff, who \u201cis entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Deese, 352 N.C. at 115, 530 S.E.2d at 553. The Commission\u2019s conclusions of law, however, are reviewable de novo. Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341, 348, 581 S.E.2d 778, 783 (2003).\nIn their first appellate contention, defendants assert the \u201cprovisions of N.C. Gen. Stat. \u00a7 97-30 do not account for the calculation of a wage differential when an employee is not earning a post-injury wage.\u201d Defendants argue the statutory provision \u201ccontemplates that benefits under this section may be awarded only when the employee has returned to some type of employment at which he or she earns wages after the injury.\u201d We reject defendants\u2019 interpretation of N.C. Gen. Stat. \u00a7 97-30 for three reasons.\nFirst, a calculation of compensation for partial incapacity is based on the difference in a claimant\u2019s \u201caverage weekly wages before the injury and the average weekly wages which he is able to earn thereafter . . . .\u201d N.C. Gen. Stat. '\u00a7 97-30 (emphasis added). By focusing the calculation on post-injury wage-earning capacity and not actual post-injury wages, the statutory provision accords with the overall structure of the Workers\u2019 Compensation Act. See Hill v. DuBose, 234 N.C. 446, 447-48, 67 S.E.2d 371, 372 (1951) (\u201cCompensation must be based upon loss of wage-earning power rather than the amount actually received\u201d); see also Evans v. Asheville Citizens Times Co., 246 N.C. 669, 100 S.E.2d 75 (1957). Second, it was well established in the previous two appeals that plaintiff had not returned to work. If defendants\u2019 theory was adopted and plaintiff could not qualify for benefits under N.C. Gen. Stat. \u00a7 97-30 due to his failure to return to work, our remand in Lewis II for determination of whether \u201c[p]laintiff would have been entitled to receive a greater benefit under section 97-30 than he received under the Form 26\u201d would have been meaningless. Lewis II, 134 N.C. App. at 443, 518 S.E.2d at 4. Third, we have previously held that an employee is not entitled to benefits under N.C. Gen. Stat. \u00a7 97-30 where an employer shows the employee unjustifiably refused employment suitable to his capacity. Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 206, 472 S.E.2d 382, 386 (1996). It stands to reason that an employee who does not return to work due to the lack of employment suitable to his capacity procured by his employer would not be barred from entitlement to benefits. Accordingly, we reject defendants\u2019 contention that the Commission cannot consider an employee\u2019s post-injury capacity to earn wages in calculating benefits for partial incapacity under N.C. Gen. Stat. \u00a7 97-30 where the employee does not actually return to work.\nBy their second argument, defendants contend there was no competent evidence before the Commission on the date the Form 26 was approved from which the Commission could have determined that N.C. Gen. Stat. \u00a7 97-30 provided a more favorable remedy than plaintiff received pursuant to N.C. Gen. Stat. \u00a7 97-31 under the Form 26 agreement. The Commission took judicial notice of the federal minimum wage in 1991, as it was entitled to do, in order to calculate plaintiffs compensation under N.C. Gen. Stat. \u00a7 97-30. Defendants contend the Commission\u2019s use of the federal minimum wage as plaintiff\u2019s earning capacity (had he been working at the time the Form 26 was entered into) was speculative and unsupported by competent evidence. We disagree.\nFollowing our remand in Lewis II for further consideration of plaintiff\u2019s entitlement to benefits under N.C. Gen. Stat. \u00a7 97-30 for partial incapacity, the Commission allowed the parties to submit new briefs. The Commission found as fact that defendants presented \u201c[n]o evidence of a single job plaintiff could obtain and keep within his restrictions\u201d at the various hearings in this case. Indeed, a medical record notation dated 28 November 1990 indicates that defendants would not let plaintiff return to limited duty work and that defendants subsequently discharged him by the time he was seen by his treating physician on 21 March 1991. The Commission went further and noted that there was \u201cno indication in the record that plaintiff could earn more than the federal minimum [wage].\u201d In addition, the Commission noted plaintiff had been rated as having a 15% permanent partial disability to his back. This permanent disability was considered by the Commission in conjunction with plaintiff\u2019s educational limitation of being functionally illiterate, plaintiff\u2019s work history and work restrictions, and his on-going pain. In light of these factors, all of which were proper for consideration by the Commission in determining plaintiff\u2019s wage-earning capacity, and the Commission\u2019s previous finding that plaintiff was not totally disabled, the Commission determined plaintiff\u2019s wage-earning capacity diminished to the fullest extent allowed by federal law. In so doing, the Commission performed its duty to review the record evidence and make a determination as to plaintiff\u2019s residual wage-earning capacity.\nDefendants argue that, viewing plaintiff\u2019s restrictions, plaintiff might have been capable of earning more than the minimum wage. Such an argument is little more than an invitation to this Court to review the record evidence of plaintiff\u2019s restrictions and limitations and make a determination different than that which was reached by the Commission, a task which is beyond our scope of review. We hold the Commission\u2019s determination, that plaintiff retained only minimal earning capacity, was supported by the relevant medical and record evidence and accords with this Court\u2019s mandate in Lewis II. This argument is overruled.\nDefendants additionally argue the Commission erroneously failed to give them a credit for temporary total disability benefits paid past the date plaintiff reached maximum medical improvement. However, defendants failed to assign error to the Commission\u2019s opinion and award on the basis that a credit was erroneously overlooked by the Commission; accordingly, this argument has not been properly preserved for appellate review and is overruled. N.C. R. App. P. 10(a) (\u201cExcept as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10\u201d). None of the assignments of error direct the attention of this Court to an alleged error regarding the credit, nor are there clear or specific record or transcript references included in the brief as required by N.C. R. App. P. 10(c)(1).\nWe have carefully considered defendants\u2019 remaining arguments and find them to be without merit. The opinion and award of the Commission is affirmed.\nAffirmed.\nJudges HUNTER and STEELMAN concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "The Law Offices of George W. Lennon, by George W. Lennon and S. Neal Camak, and Hugh D. Cox, for plaintiff-appellee.", "Sumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Jill Quattlebaum Byrum and B. Kyle Dickerson, for defendant-appellants." ], "corrections": "", "head_matter": "LIONEL LEWIS, Employee, Plaintiff v. CRAVEN REGIONAL MEDICAL CENTER, Employee and VIRGINIA INSURANCE RECIPROCAL, Carrier, Defendants\nNo. COA04-1656\n(Filed 15 November 2005)\n1. Workers\u2019 Compensation\u2014 partial incapacity \u2014 post-injury capacity to earn wages\nThe Industrial Commission did not err in a workers\u2019 compensation case by considering plaintiff employee\u2019s post-injury capacity to earn wages in calculating benefits for partial incapacity under N.C.G.S. \u00a7 97-30 where the employee has not actually returned to work.\n2. Workers\u2019 Compensation\u2014 Form 26 agreement \u2014 alternative favorable remedies\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding on the date the Form 26 was approved that N.C.G.S. \u00a7 97-30 provided a more favorable remedy than plaintiff received pursuant to N.C.G.S. \u00a7 97-31 under the Form 26 agreement based on the Commission\u2019s use of the federal minimum wage as plaintiff\u2019s earning capacity, because the determination was supported by relevant medical and record evidence.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error\nAlthough defendants contend the Industrial Commission erred in a workers\u2019 compensation case by failing to give defendants a credit for temporary total disability benefits paid past the date defendant reached maximum medical improvement, this argument is dismissed because: (1) defendants failed to assign error to the Commission\u2019s opinion and award on the basis that a credit was erroneously overlooked by the Commission as required by N.C. R. App. P. 10(a); and (2) none of the assignments of error direct the attention of the Court of Appeals to an alleged error regarding the credit, nor are there clear or specific record or transcript references included in the brief as required by N.C. R. App. P. 10(c)(1).\nAppeal by defendants from opinion and award entered 30 July 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 10 October 2005.\nThe Law Offices of George W. Lennon, by George W. Lennon and S. Neal Camak, and Hugh D. Cox, for plaintiff-appellee.\nSumrell, Sugg, Carmichael, Hicks & Hart, P.A., by Jill Quattlebaum Byrum and B. Kyle Dickerson, for defendant-appellants." }, "file_name": "0561-01", "first_page_order": 591, "last_page_order": 597 }