{ "id": 4155520, "name": "EDDIE R. KYLE, Employee-Plaintiff v. HOLSTON GROUP, Employer-Defendant, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier-Defendant", "name_abbreviation": "Kyle v. Holston Group", "decision_date": "2008-02-19", "docket_number": "No. COA07-364", "first_page": "686", "last_page": "700", "citations": [ { "type": "official", "cite": "188 N.C. App. 686" } ], "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": "643 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638078 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/643/0407-01" ] }, { "cite": "621 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634408, 12634406, 12634407 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/621/0876-03", "/se2d/621/0876-01", "/se2d/621/0876-02" ] }, { "cite": "612 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632814 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "349" }, { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0345-01" ] }, { "cite": "473 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "344 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867700 ], "year": 1996, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0031-01" ] }, { "cite": "N.C. 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App.", "case_ids": [ 11919081 ], "year": 1996, "pin_cites": [ { "page": "600", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0598-01" ] }, { "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", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] } ], "analysis": { "cardinality": 1176, "char_count": 36147, "ocr_confidence": 0.75, "pagerank": { "raw": 9.47065849088836e-08, "percentile": 0.5177326940682642 }, "sha256": "89c21e334aedb4b42b76db0d6880351f070d0581c4033cda08292e5b19460070", "simhash": "1:7b3165e8663f6f96", "word_count": 5668 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ARROWOOD concur." ], "parties": [ "EDDIE R. KYLE, Employee-Plaintiff v. HOLSTON GROUP, Employer-Defendant, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier-Defendant" ], "opinions": [ { "text": "STEPHENS, Judge.\nI. FACTS and PROCEDURE\nPlaintiff Eddie R. Kyle suffered a work-related back injury on 6 August 2001 while employed as a truck driver by Defendant Holston Group. He was 46 years old at the time and his average weekly wages were $838.53. Defendant accepted responsibility for the injury, and Plaintiff did not retain legal counsel.\nFollowing the injury, Plaintiff received medical treatment, including lumbar spinal fusion surgery performed 31 October 2001. Based on the results of a functional capacity evaluation performed 22 October 2002, Plaintiff was provided permanent, light-duty work restrictions which precluded his return to work as a truck driver, and the permanent partial impairment to his back was estimated to be 25 percent.\nOn or about 31 October 2003, Defendant Liberty Mutual Insurance Company, the Holston Group\u2019s insurance carrier, sent Plaintiff a letter offering $24,480.10 to settle the case. This sum represented permanent partial disability benefits based on a 10 percent rating to Plaintiffs back; three months\u2019 temporary total disability benefits; and $1,000 for future medical expenses. Plaintiff had sustained an earlier injury to his back with a different employer that also required surgical treatment, and he received a 15 percent permanent partial disability rating for that injury. Plaintiff\u2019s previous employer was also insured by Liberty Mutual, and Plaintiff negotiated a settlement of that earlier claim pro se. Plaintiff told Liberty Mutual, however, that he did not want to settle this case for anything less than the value of the full 25 percent rating.\nOn 17 August 2004, Amanda Price, an insurance adjuster assigned to Plaintiff\u2019s case, had telephone contact with Plaintiff. Claim file notes indicate that Ms. Price gave Plaintiff \u201cspecific information about [temporary partial disability] benefits remaining to him.\u201d Plaintiff testified he was advised by Ms. Price that he was entitled to receive a maximum of 300 weeks of benefits, and that at the time of their conversation, there were approximately 140 of those weeks remaining. Total disability benefits were never discussed.\nPlaintiff contacted Ms. Price on 23 August 2004 to review temporary partial disability benefit calculations again. Plaintiff testified that Ms. Price offered to have someone meet with him for vocational testing, but no vocational services were ever initiated.\nUltimately, Plaintiff offered to settle for $63,000, basing this offer on work in a part-time capacity earning $100-$ 140 per week for the remaining weeks of temporary partial disability benefits. Ms. Price counter-offered with $60,000, and Plaintiff accepted.\nA Compromise Settlement Agreement (\u201cAgreement\u201d) was then drafted, signed, notarized, and submitted to Special Deputy Commissioner Maddox (\u201cSDC Maddox\u201d) for approval. After reviewing the Agreement, SDC Maddox sent a memo to the parties requesting \u201cdocumentation of any vocational rehabilitation efforts or a description of [Plaintiff\u2019s] work, educational or vocational training history.\u201d SDC Maddox also asked for clarification regarding Plaintiff\u2019s permanent partial disability rating, and asked that an addendum to the Agreement be drawn up to include social security disability offset language.\nDefense counsel faxed a memo back to SDC Maddox stating that there were no vocational rehabilitation records because Plaintiff \u201cdecided to settle his claim and pursue future job placement on his own when he feels he is ready to do so.\u201d The memo also stated that Plaintiff graduated from high school in 1973 and had worked in farming or as a truck driver ever since, and clarified Plaintiffs permanent partial disability rating. Defense counsel subsequently drafted an addendum, which Plaintiff signed and had notarized, regarding the social security disability offset, and submitted it to SDC Maddox.\nPlaintiff testified that defense counsel contacted him regarding the memo from the Industrial Commission and told him that there were going to be some revisions to the Agreement. Although Plaintiff-received the Addendum, he testified he never saw the memo defense counsel submitted to SDC Maddox.\nSDC Maddox did not verify with Plaintiff the information contained in defense counsel\u2019s memo, and neither the memo, nor the information contained therein, was incorporated into the Addendum or the Agreement. An Order Approving Compromise Settlement Agreement was entered on 8 December 2004. .\nShortly thereafter, Plaintiff sought legal representation for a social security disability claim he had filed. Upon discussing the case with his attorney, Plaintiff learned that he might have been mistaken about the benefits he was entitled to receive under the Workers\u2019 Compensation Act. He also learned that the Agreement submitted to the Industrial Commission may have lacked certain information required by Industrial Commission Rule 502 when it was approved.\nUpon learning this, Plaintiff filed a claim with the Industrial Commission seeking to set aside the Agreement and to vacate the order approving the Agreement. .After a hearing on 19 July 2005, Deputy Commissioner Myra L. Griffin entered an Opinion and Award denying Plaintiff\u2019s claim. Plaintiff appealed to the Full Commission and on 10 January 2007, the Full Commission entered an Opinion and Award affirming Deputy Commissioner Griffin\u2019s decision. From the Opinion and Award of the Full Commission, Plaintiff appeals.\nII. DISCUSSION\nAppellate review of an Industrial Commission Opinion and Award is limited to a determination of whether the Full Commission\u2019s findings of fact are supported by any competent evidence, and whether those findings support the Full Commission\u2019s legal conclusions. Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). \u201cFindings of fact not supported by competent evidence are not conclusive and will be set aside on appeal.\u201d Johnson v. Charles Keck Logging, 121 N.C. App. 598, 600, 468 S.E.2d 420, 422, disc. review denied, 343 N.C. 306, 471 S.E.2d 71 (1996) (quotation marks and citation omitted). The Full Commission\u2019s conclusions of law are reviewable de novo. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778 (2003).\nA. Compliance with Industrial Commission Rule 502\n[1 ] Plaintiff first argues that the Full Commission erred by not setting aside the Agreement for failure to comply with Industrial Commission Rule 502. We agree.\nIndustrial Commission Rule 502 reads in relevant part:\n(2) No compromise agreement will be approved unless it contains the following language or its equivalent:\n(h) Where the employee has not returned to a job or position at the same or a greater average weekly wage as was being earned prior to the injury or occupational disease, the agreement shall summarize the employee\u2019s age, educational level, past vocational training, [and] past work experience .... This subsection of the Rule shall not apply ... if the employee is not represented by counsel, where the employee certifies that total wage loss due to an injury or occupational disease is not being claimed.\nI.C. Rule 602(2)(h) (2000).\nIn Smythe v. Waffle House, 170 N.C. App. 361, 612 S.E.2d 345, disc. review denied, 360 N.C. 66, 621 S.E.2d 876 (2005), appeal after remand, 182 N.C. App. 754, 643 S.E.2d 407 (2007), a compromise settlement agreement between the parties indicated that the plaintiff, who was not represented by counsel, had not returned to work when she entered into the agreement. However, the settlement agreement contained no mention of the plaintiff\u2019s age, educational level, past vocational training, or past work experience, as required under Rule 502(2)(h). This Court concluded that \u201cit was statutorily impermissible for the Commission [] to approve the settlement agreement without the required biographical and vocational information, and the Commission should have set aside its order of approval.\u201d Id. at 366, 612 S.E.2d at 349.\nLikewise, here, Plaintiff had not returned to work and was unrepresented at the time he entered into the Agreement on 1 November 2004. Thus, the more specific requirements of Rule 502(2)(h) applied to the Agreement. However, as Defendants admit, \u201cthe [Agreement itself did not contain this information.\u201d It contained no mention of Plaintiff\u2019s age, educational level, past vocational training, or past work experience, nor did it contain a certification that Plaintiff was not claiming total wage loss due to his injury. Thus, as in Smythe, it was statutorily impermissible for the Commission to approve the Agreement without the required biographical and vocational information, and the Commission should have set aside its order of approval.\nDefendants contend, however, that because SDC Maddox requested and received information regarding Plaintiff\u2019s age, education, vocational training, and past work experience prior to approving the Agreement, this was sufficient to comply with Rule 502 since \u201cthe purpose of the Rule is to make sure the Industrial Commission is privy to the information required by the Rule\u201d and \u201call of the information required to approve an agreement was in the Industrial Commission file prior to the Order of Approval being entered.\u201d We do not find Defendants\u2019 argument persuasive.\nWhile one purpose of Rule 502(2)(h) may be, as Defendants contend, \u201cto make sure the Industrial Commission is privy to the information required by the Rule[,]\u201d the Rule undoubtably also serves to ensure that, as SDC Maddox testified, \u201can injured worker [] understand^] what he or she is signing off on and agreeing to.\u201d Furthermore, according to the rules of statutory construction, \u201c]w]hen the language of a statute is clear and unambiguous, it must be given effect and its clear meaning may not be evaded by an administrative body or a court under the guise of construction.\u201d Taylor v. J.P. Stevens Co., 307 N.C. 392, 396, 298 S.E.2d 681, 683 (1983) (quotation marks and citations omitted). \u201c[I]t is a cardinal rule of statutory construction that significance and effect should ... be accorded every part of the [statute], including every section, paragraph, sentence or clause, phrase, and word.\u201d State v. Williams, 286 N.C. 422, 432, 212 S.E.2d 113, 120 (1975) (quotation marks and citation omitted). Our Supreme Court has applied the rules of statutory construction to administrative regulations as well as statutes. See States\u2019 Rights Democratic Party v. State Bd. of Elections, 229 N.C. 179, 49 S.E.2d 379 (1948) and State ex rel. Comm\u2019r of Ins. v. N.C. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980) (applying rules of statutory construction to regulations in both cases).\nHere, the language of Rule 502(2) (h) clearly and unambiguously states that \u201c[n]o compromise agreement will be approved unless it contains the following language or its equivalent: . . . the agreement shall summarize the employee\u2019s age, educational level, past vocational training, [and] past work experience . . . .\u201d (Emphasis added). Thus, according to the plain meaning of the regulation, the required terms must be in the agreement itself in order for the agreement to be approved by the Commission. Had the Industrial Commission intended that the specified information simply be submitted by defense counsel to the Commission prior to the approval of an agreement, as was the case here, the regulation would have been drafted similarly to Rule 502(3) which states: \u201cAll medical, vocational, and rehabilitation reports known to exist. . . must be submitted with the agreement to the Industrial Commission by the employer . . . .\u201d Accordingly, as SDC Maddox correctly testified, since Rule 502 \u201cdoes say that the agreement shall summarize\u201d the factors identified in the Rule, the memo she received from defense counsel \u201cwouldn\u2019t necessarily meet the specific requirements of that rule.\u201d\nFurthermore, SDC Maddox did not have all the information required by Rule 502(2)(h) before approving the Agreement. While SDC Maddox requested the required information from the parties and received a reply memo from defense counsel, SDC Maddox did not receive a reply from Plaintiff and did not verify with Plaintiff the information contained in defense counsel\u2019s memo before approving the Agreement.\nIn the memo, defense counsel stated that \u201c[t]here are no vocational rehabilitation reports. [Plaintiff] decided to settle his claim and pursue future job placement on his own when he feels ready to do so.\u201d However, Plaintiff testified that, contrary to defense counsel\u2019s assertions, he never told anyone that he would look for work on his own or that he thought he would be able to work after he settled his case. Although defense counsel sent Plaintiff the Addendum with the social security offset language, there is no competent evidence in the record before us that she sent Plaintiff a copy of the memo she faxed to SDC Maddox. Further, it is undisputed that defense counsel did not incorporate the information from the memo into the Addendum, and did not revise the Agreement itself to incorporate the information contained therein. Consequently, neither Plaintiff nor SDC Maddox knew that the information SDC Maddox received contradicted Plaintiffs contentions.\nAccordingly, as Plaintiff\u2019s and defense counsel\u2019s responses regarding Plaintiff\u2019s vocational activities differed, and since SDC Maddox possessed only defense counsel\u2019s response, it cannot be accurately asserted that \u201c[SDC] Maddox had every piece of information required by the Rules in front of her prior to her making the determination that the [Agreement should be approved.\u201d\nNevertheless, the Commission could have approved the Agreement without the language concerning Plaintiff\u2019s biographical and vocational information had Plaintiff certified in the Agreement that he was not claiming total wage loss due to his injury. However, neither party disputes that the Agreement contained no such certification.\nTherefore, because the Agreement did not contain all the terms required by Rule 502(2)(h), the Commission erred by not setting aside the Agreement.\nPlaintiff further contends that the Commission erred by not setting aside the Agreement for failure to comply with Industrial Commission Rule 502(3)(a). Pursuant to Rule 502(3)(a), \u201c[n]o compromise agreement will be considered unless ... all medical, vocational, and rehabilitation reports known to exist. . . [are] submitted with the agreement to the Industrial Commission . . . .\u201d I.C. Rule 502(3)(a) (2000). Since we hold that the Agreement should have been set aside because it did not contain all of the terms required by Industrial Commission Rule 502(2) (h), we need not determine whether the Agreement should have been set aside because medical records were omitted.\nB. Full Investigation\nPlaintiff next argues that the Agreement should have been set aside because the Full Commission failed to undertake a full investigation to determine if the Agreement was fair and just, as required by N.C. Gen. Stat. \u00a7 97-17. Under the circumstances, we agree.\nAll settlement agreements must be filed with and approved by the Commission. N.C. Gen. Stat. \u00a7 97-17(a) (2003). \u201cThe Commission shall not approve a settlement agreement . . . unless . . . [t]he settlement agreement is deemed by the Commission to be fair and just . . . .\u201d N.C. Gen. Stat. \u00a7 97-17(b)(1) (2003). The Commission is required to undertake a \u201cfull investigation\u201d to determine that a settlement agreement is fair and just \u201cin order to assure that the settlement is in accord with the intent and purpose of the Act that an injured employee receive the disability benefits to which he is entitled . . . .\u201d Vernon, 336 N.C. at 432, 444 S.E.2d at 195; accord Smythe, 170 N.C. App. at 364, 612 S.E.2d at 348.\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. The employee is allowed to select the more favorable remedy.\nEffingham v. Kroger Co., 149 N.C. App. 105, 113-14, 561 S.E.2d 287, 293 (2002) (internal citations omitted).\nIn Vernon, the Supreme Court held that the Industrial Commission failed to conduct a full investigation to determine the fairness of a Form 26 compensation agreement. The plaintiff sustained a compensable back injury and received temporary total disability benefits. Upon reaching maximum medical improvement, the plaintiff\u2019s physician rated the plaintiff as having a 15 percent permanent disability to his back, but stated that he did not think the plaintiff could return to work. Vernon, 336 N.C. 425, 444 S.E.2d 191.\nThe defendant\u2019s insurance adjuster sent the plaintiff a Form 26 compensation agreement stating that the plaintiff was entitled to 45 weeks of compensation under N.C. Gen. Stat. \u00a7 97-31. The plaintiff, unrepresented and unaware at the time that he had any other choice, signed the agreement. Defendant submitted the agreement to the Commission for approval. An employee in the claims department compared the rating listed on the form against the physician\u2019s report attached thereto, verified the payment information, and approved the agreement. Our Supreme Court stated that the Commission employee \u201capparently assumed, rather than determined, that [the] plaintiff was knowledgeable about workers\u2019 compensation benefits, and, particularly, his right to claim permanent total disability compensation under section 97-29 rather than permanent partial disability compensation under section 97-31.\u201d Id. at 434, 444 S.E.2d at 195-96. Thus, the Court held that, in approving the agreement, the Commission did not, as the statute requires, act in a judicial capacity to determine the fairness of the agreement. Vernon, 336 N.C. 425, 444 S.E.2d 191.\nHere, as in Vernon, Plaintiff was unrepresented and unaware at the time of settling his case that, under the law, he was entitled to the most favorable remedy available to him, including total disability benefits if he was totally disabled. At the time of Ms. Price\u2019s conversation with Plaintiff regarding settlement of his claim, claim file notes indicated the following: the minimum settlement value of the claim was $18,448.65, representing the 10 percent permanent partial disability rating to Plaintiffs back; Plaintiff could be entitled to 300 weeks of temporary partial disability benefits, with approximately 143 weeks remaining; Plaintiff had not been vocationally rehabilitated; and \u201cif [Plaintiff] fails vocational] rehab [ilitation] he could potentially receive lifetime benefits\u201d valued at approximately $811,069.74. Plaintiff testified that Ms. Price advised him he was entitled to receive a maximum of 300 weeks of benefits, and that at the time of their conversation, there were only approximately 140 of those weeks remaining. Although Plaintiff had not returned to work, Ms. Price\u2019s settlement figure of $60,000 was based on an anticipated earning capacity in part-time work at minimum wage for those estimated remaining weeks. At no point did Ms. Price indicate to Plaintiff that he would be entitled to benefits beyond 300 weeks under N.C. Gen. Stat. \u00a7 97-29 if he were unable to earn any wages as a result of his injury. Plaintiff, obviously unaware that he potentially had other remedies under the law, agreed to settle his claim based on the limited information provided by Ms. Price.\nFurthermore, similar to Vernon, SDC Maddox apparently assumed, rather than determined, that Plaintiff was knowledgeable about workers\u2019 compensation benefits, and, particularly, his potential right to claim ongoing total disability benefits during the vocational rehabilitation process even beyond 300 weeks, or permanent total disability compensation under N.C. Gen. Stat. \u00a7 97-29 if he were never able to return to suitable employment.\nSDC Maddox testified as follows:\nQ. . . . Would you have approved this compromise settlement agreement, Ms. Maddox, for the amount paid if you had known that [Plaintiff] was unaware of his right to 97-29 benefits?\nA. Probably not.\nQ. And why is that?\nA. I would have wanted to see, before I could have approved that \u2014 with that knowledge, specific knowledge, I would have wanted to see what his lifetime benefits would have been on that and get a present value on this agreement.\nQ. . . . [I]f that lifetime benefit would yield $851,000, do you feel that this compromise settlement agreement for $60,000, assuming that he would never be able to return to work, is fair and just?\nA. Assuming that, it probably wouldn\u2019t be. But that wasn\u2019t my understanding of what was happening.\nWhile it is not incumbent upon an insurance adjuster to explain the law to an unwitting claimant, the Industrial Commission must stand by to assure fair dealing in any voluntary settlement. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777 (1953). Thus, in this case, a full investigation to determine that the Agreement was fair and just required SDC Maddox to determine, rather than assume, that Plaintiff was aware of his remedies under the law.\nFurthermore, \u201cin order to assure that ... an injured employee receive[sj the disability benefits to which he is entitled,\u201d Vernon, 336 N.C. at 432, 444 S.E.2d at 195, the Commission must scrutinize carefully a settlement agreement that provides for a claimant to accept the lesser of two remedies for which he may qualify. Here, since the Agreement stated that Plaintiff had not returned to work, SDC Maddox requested from the parties \u201cinformation that would show what the likelihood was that [Plaintiff] would be able to [work] at some point in the future; and, if so, when.\u201d She received defense counsel\u2019s memo which indicated to her that Plaintiff \u201cdid not wish to participate in vocational rehabilitation[,]\u201d and that Plaintiff felt he was capable of finding work in another occupation on his own. However, SDC Maddox did not contact Plaintiff to confirm defense counsel\u2019s information or her own assumptions based on that information. Since \u201cthe criterion for compensation in cases covered by G.S. 97-29 or -30 is the extent of the claimant\u2019s \u2018incapacity for work[,]\u2019 \u201d Little v. Anson Cty. Sch. Food Serv., 295 N.C. 527, 533, 246 S.E.2d 743, 747 (1978), a full investigation into the fairness of'the Agreement necessarily required SDC Maddox to verify defense counsel\u2019s assertions regarding Plaintiff\u2019s position on vocational rehabilitation and ability to return to work.\nAlthough Defendants contend that there is no evidence, other than Plaintiff\u2019s contentions regarding his inability to work, that Plaintiff is totally disabled, the undisputed evidence establishes the following: Plaintiff had not returned to work when he entered into the Agreement on 1 November 2004, approximately three years and three months after his compensable injury. Defendant Holston Group was unable to hold Plaintiff\u2019s truck driving position open, and terminated Plaintiff as an employee on 9 April 2002. A functional capacity evaluation performed 22 October 2002 indicated that Plaintiff\u2019s overall level of work capability was \u201clight\u201d and that \u201cif is difficult to predict whether [Plaintiff] is capable of sustaining the Light level of work for an 8-hour day.\u201d The evaluation further indicated that Plaintiff \u201cmay be able to return to work if\u2019 he can avoid squatting, kneeling, and lifting more than 20 pounds, and if his work schedule is modified through shorter shifts. Although Pl\u00e1intiff was released by his treating physician, Dr. Daubert, to return to work under the permanent restrictions identified by the evaluation, Dr. Daubert stated it was \u201cunlikely that [Plaintiff] can return to work as he did prior driving a truck.\u201d Before his injury, Plaintiff had worked only as a farmer and a truck driver.\nOn 9 September 2003, Dr. Daubert assigned a 25 percent permanent partial disability rating to Plaintiff\u2019s back. However, in light of Plaintiff\u2019s continued pain and inability to drive a car for any period of time, Dr. Daubert also recommended further surgery to remove the hardware in Plaintiff\u2019s back. Plaintiff was taking Ambien to help him sleep, Hydrocodone for his pain, and Celebrex and Bextra for inflammation. Although Plaintiff had researched jobs that he may have been qualified to do, including working at Wal-Mart or as a grocery store deli worker, because of his narcotic pain medication, he was worried about finding work where drug testing was required, and \u201cmany\u201d employers he had contacted for work told him he was not eligible for employment with them because of his use of narcotic medication.\nDefendant Liberty Mutual sent a field investigator to observe Plaintiff several times under the guise of completing a \u201c[y] early activity check to verify [Plaintiff] is alive and receiving benefits checks.\u201d The field investigator\u2019s report from his visit to Plaintiff\u2019s residence on 24 March 2004 stated:\nIn observing [Plaintiff] he appears to be walking very slowly and with a slight limp. On 2 occasions during our m\u00e9eting he went back to his bedroom to get his medications to show me and on coming back to the living room appeared winded from the short walk down the hall. I could find no evidence that [Plaintiff] is currently active and no recommendations at this time.\nNo red flag indicators found.\nThis evidence raises questions as to whether Plaintiff may have been entitled to total disability benefits under N.C. Gen. Stat. \u00a7 97-29 instead of benefits under N.C. Gen. Stat. \u00a7\u00a7 97-30 or 97-31. While SDC Maddox testified that \u201cthe amount [of the Agreement] seemed to be a fair amount to cover a scheduled injury[,]\u201d a full investigation into the fairness of this Agreement necessarily required SDC Maddox to inquire into the possibility that this case was a total disability case rather than a scheduled injury or partial disability case. This she could have accomplished by seeking to verify with Plaintiff the information in defense counsel\u2019s memo, particularly given the fact that the memo contains no indication it had been sent to Plaintiff.\nAccordingly, we hold that the Full Commission\u2019s determination that \u201cSpecial Deputy Commissioner Maddox acted in a judicial capacity and made a full investigation in reviewing the Agreement submitted by the parties\u201d is not supported by competent evidence. We conclude that it was statutorily impermissible for the Commission here to approve the Agreement, and the Commission should have set aside its order of approval.\nFor the above-stated reasons, we reverse and remand to the Full Commission to enter an order vacating the approval of the settlement agreement, and for further proceedings as necessary.\nREVERSED.\nJudges CALABRIA and ARROWOOD concur.\n. On cross-examination, defense counsel asked Plaintiff questions tending to suggest that his insistence he never received a copy of the memo was not credible. It is well settled, however, that \u201cquestions asked by an attorney are not evidence.\u201d State v. Taylor, 344 N.C. 31, 41, 473 S.E.2d 596, 602 (1996). Here, the record contains no evidence to contradict Plaintiff\u2019s consistent and repeated testimony that he did not receive a copy of the memo, and that he \u201cdidn\u2019t talk to [defense counsel] about hunting [a] job.\u201d Morever, we note that, unlike the memo that SDC Maddox sent to the parties, which specifically shows a \u201ccc\u201d to Plaintiff at his mailing address, the memo faxed to SDC Maddox by defense counsel contains no indication of any kind that a copy had been sent by any means to Plaintiff.\n. It cannot be credibly contended that the representation made in defense counsel\u2019s memo was insignificant to SDC Maddox\u2019s decision to approve the Agreement. She testified that such information \u201cindicated to me that [Plaintiff] had made a decision to settle his claim . . . and that therefore it was time to close the claim.\u201d Likewise, it is undisputed that the information in defense counsel\u2019s memo caused SDC Maddox to believe that Plaintiff \u201cwas not interested in participating in vocational rehabilitation.\u201d This belief is belied not only by Plaintiff\u2019s testimony, but also by Liberty Mutual\u2019s claim file notes, admitted into evidence at the hearing, which document that (1) upon initially being advised by a Liberty Mutual adjuster that someone would be sent to meet with him for vocational testing, Plaintiff invited that person to come to his home for the meeting, and (2) during Ms. Price\u2019s discussions with Plaintiff regarding settlement, he told her he was still trying to decide if he should settle or \u201ctry voc.\u201d This was in late August 2004 when Ms. Price described Plaintiff as being \u201cstill very confused and concerned. ...\u201d Ms. Price told Plaintiff he \u201cneed[ed] to make a choice ... before September is out.\u201d When she next spoke with Plaintiff on 13 September 2004, he was \u201cstill trying to do some \u2018figuring\u2019 to come up with a number to give [her].\u201d He also told her that \u201cmany of the places he was interested in working\u201d had told him he would not be able to work in \u201cthose fields\u201d because of his narcotic medication. This evidence does not support SDC Maddox\u2019s belief, formed on the basis of the representation in defense counsel\u2019s memo, that Plaintiff had no interest in vocational rehabilitation.\n. It is likely that Plaintiff would have so certified because, based on his review of the Industrial Commission\u2019s website and his discussions with Ms. Price, he believed he was only entitled to the remaining weeks available for temporary partial disability. As he testified, \u201c[A]fter 300 weeks [from the date of injury], I was through with it. . . . That was all. . . . [T]he total thing.\u201d\n. Effective 1 August 2006, Rule 502(3)(a) was modified as follows: \u201cThe material medical, vocational, and rehabilitation reports known to exist. . . must be submitted with the agreement to the Industrial Commission by the employer . . . .\u201d However, as the Agreement was signed 1 November 2004 and approved 8 December 2004, the previous version of Rule 502(3)(a) applies.\n. Pursuant to N.C. Gen. Stat. \u00a7\u00a7 97-17 and 97-82, the Commission recognizes two forms of voluntary settlement agreements, namely, the compensation agreement in uncontested cases, and the compromise or \u201cclincher\u201d agreement in contested or disputed cases. Vernon v. Steven L. Mabe Builders, 336 N.C. 425, 444 S.E.2d 191 (1994).\n. Apparently, neither Ms. Price nor Plaintiff questioned whether a part-time job paying $100-$140 per week to a man who was earning more than $800 per week when he was injured would legally constitute suitable employment.\n. When aslced whether she was \u201cpretty much looking at [Plaintiffs] case as a scheduled injury case versus a permanent and total disability case,\u201d SDC Maddox replied, \u201cUh-huh (yes). Yes.\u201d\n. During testing, Plaintiff \u201crequired frequent rest periods due to increased radicular pain symptoms.\u201d Although rest initially decreased his symptoms, \u201cwith increased activity, [Plaintiff was] unable to resolve symptoms.\u201d\n. The memo did, however, provide Plaintiff\u2019s telephone number if SDC Maddox \u201cwould like to speak with him directly.\u201d", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Maynard & Harris, PLLC, by Celeste M. Harris, for Plaintiff", "Davis and Hamrick, L.L.P., by Shannon Warf Beach, for Defendants." ], "corrections": "", "head_matter": "EDDIE R. KYLE, Employee-Plaintiff v. HOLSTON GROUP, Employer-Defendant, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier-Defendant\nNo. COA07-364\n(Filed 19 February 2008)\n1. Workers\u2019 Compensation\u2014 settlement agreement \u2014 failure to include required biographical and vocational information\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to set aside a compromise settlement agreement based on a failure to comply with Industrial Commission Rule 502, and the case is reversed and remanded to the full Commission to enter an order vacating the approval of the agreement and for further proceedings as necessary, because: (1) plaintiff had not returned to work and was unrepresented at the time he entered into the agreement on 1 November 2004, and thus, the more specific requirements of Rule 502(2)(h) applied to the agreement; (2) defendants admit the agreement did not contain the required information including plaintiff\u2019s age, educational level, past vocational training, or past work experience, nor did it contain a certification that plaintiff was not claiming total wage loss due to his injury; (3) it was statutorily impermissible for the Commission to approve the agreement without the required biographical and vocational information when the statute states the required terms must be in the agreement itself in order to be approved; (4) while one purpose of Rule 502(2)(h) may be, as defendants contend, to make sure the Industrial Commission is privy to the information required by the rule, the rule also serves to ensure that an injured worker understands what he is signing off on and agreeing to; (5) the special deputy commissioner did not have all the information required by Rule 502(h)(2) when she did not receive a reply from plaintiff and did not verify with plaintiff the information contained in defense counsel\u2019s memo before approving the agreement; and (6) although the Commission could have approved the agreement without the language concerning plaintiff\u2019s biographical and vocational information had plaintiff certified in the agreement that he was not claiming total wage loss due to his injury, neither party disputed that the agreement contained no such certification. Further, the Court of Appeals did not need to determine whether the agreement should have been set aside under Rule 502(3) (a) based on the omission of medical records since the agreement should have been set aside for failure to contain all of the requirements of Rule 502(2)(h).\n2. Workers\u2019 Compensation\u2014 settlement agreement \u2014 Commission\u2019s failure to undertake full investigation to determine fairness\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to set aside a compromise settlement agreement based on the full Commission\u2019s failure to undertake a full investigation to determine if it was fair and just as required by N.C.G.S. \u00a7 97-17, and the case is reversed and remanded to the full Commission to enter an order vacating the approval of the agreement and for further proceedings as necessary, because: (1) plaintiff was unrepresented and unaware at the time of settling of his case that, under the law, he was entitled to the most favorable remedy available to him including total disability benefits if he was totally disabled; (2) the special deputy commissioner assumed, rather than determined, that plaintiff was knowledgeable about workers\u2019 compensation benefits, and particularly, his potential right to claim ongoing total disability benefits during the vocational rehabilitation process even beyond the 300 weeks or permanent total disability compensation under N.C.G.S. \u00a7 97-29 if he were never able to return to suitable employment; (3) while it is not incumbent upon an insurance adjuster to explain the law to an unwitting claimant, the Industrial Commission must stand by to assure fair dealing in any voluntary settlement; (4) a full investigation into the fairness of the agreement necessarily required the special deputy commissioner to verify defense counsel\u2019s assertions regarding plaintiff\u2019s position on vocational rehabilitation and ability to return to work since the criterion for compensation in cases covered by N.C.G.S. \u00a7\u00a7 97-29 or 97-30 is the extent of the claimant\u2019s incapacity for work; and (5) although defendants contend there was no evidence that plaintiff is totally disabled other than plaintiff\u2019s contentions regarding his inability to work, the evidence revealed otherwise.\nAppeal by Plaintiff from Opinion and Award entered 10 January 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 October 2007.\nMaynard & Harris, PLLC, by Celeste M. Harris, for Plaintiff\nDavis and Hamrick, L.L.P., by Shannon Warf Beach, for Defendants." }, "file_name": "0686-01", "first_page_order": 716, "last_page_order": 730 }