{ "id": 4172540, "name": "CLAUDETTE FONVILLE, Employee, Plaintiff-appellant v. GENERAL MOTORS CORP., d/b/a GMAC, Employer, SELF-INSURED (SEDGWICK CLAIM MANAGEMENT SERVICE, Servicing Agent), Defendant-appellee", "name_abbreviation": "Fonville v. General Motors Corp.", "decision_date": "2009-10-06", "docket_number": "No. COA09-120", "first_page": "267", "last_page": "275", "citations": [ { "type": "official", "cite": "200 N.C. App. 267" } ], "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": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "492" }, { "page": "492" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "485 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "869", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11711886 ], "year": 1997, "pin_cites": [ { "page": "541-42", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0540-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(d)" }, { "page": "(b)" }, { "page": "42" }, { "page": "(g)" }, { "page": "(g)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2007, "pin_cites": [ { "page": "(b)" }, { "page": "(c)", "parenthetical": "emphasis added" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 9748.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-82", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 9748", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "581 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188153 ], "year": 2003, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0480-01" ] }, { "cite": "334 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "394", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520740 ], "year": 1985, "pin_cites": [ { "page": "121", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0117-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] } ], "analysis": { "cardinality": 691, "char_count": 18462, "ocr_confidence": 0.756, "pagerank": { "raw": 6.6948720086966e-08, "percentile": 0.4068860771419492 }, "sha256": "772ce15e43074e64d2664c173b9b4287a4217abf806b657c2bdb926505b7c09e", "simhash": "1:9c8a2e02fc2b7ff2", "word_count": 2885 }, "last_updated": "2023-07-14T15:34:12.558956+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "CLAUDETTE FONVILLE, Employee, Plaintiff-appellant v. GENERAL MOTORS CORP., d/b/a GMAC, Employer, SELF-INSURED (SEDGWICK CLAIM MANAGEMENT SERVICE, Servicing Agent), Defendant-appellee" ], "opinions": [ { "text": "CALABRIA, Judge.\nClaudette Fonville (\u201cplaintiff\u2019) appeals from an Opinion and Award entered by the North Carolina Industrial Commission (\u201cthe Commission\u201d) denying plaintiff\u2019s claim for temporary total disability and medical benefits. We affirm in part and reverse and remand in part.\nI. Facts\nOn 13 July 2005, plaintiff, an employee of General Motors Corp., d/b/a GMAC (\u201cdefendant\u201d), was injured while attending an employee appreciation luncheon. Plaintiff was struck in the head by the end of a tent pole. Defendant admitted compensability of the injury by filing a Form 60 with the Commission on 13 October 2005.\nPlaintiff received medical treatment for her injury from a variety of medical providers from 13 July 2005 until 12 October 2005, when Dr. Alvin Lue (\u201cDr. Lue\u201d), her family physician, released her to work for twenty hours per week or four hours per day. After two days of work, plaintiff complained that looking at her computer caused pain in her head and left eye. Dr. Lue removed plaintiff from work and advised her to see an ophthalmologist. On 31 October 2005, after plaintiffs visit to an ophthalmologist, Dr. Lue released plaintiff to return to work two hours per day.\nOn 2 November 2005, plaintiff returned to Dr. Lue complaining of persistent headaches that made it impossible for her to work. Dr. Lue referred plaintiff to Dr. Carlo Yuson (\u201cDr. Yuson\u201d), a neurologist. Dr. Yuson determined that plaintiffs headaches were the result of uncontrolled high blood pressure. On 29 November 2005, Dr. Yuson released plaintiff to return to work beginning 2 January 2006, with the belief that she would reach maximum medical improvement (\u201cMMI\u201d) at that time.\nOn 22 November 2005, plaintiff was terminated by defendant for reasons unrelated to the injury she sustained. Defendant unilaterally discontinued plaintiffs total disability compensation payments at the end of January 2006. Defendant did not file any form or otherwise inform the Commission of their decision to terminate plaintiffs benefits. Plaintiff made no attempt to seek new employment from 2 January 2006 until September 2006. On 5 September 2006, plaintiff, through a temporary agency, found a job as a purchasing specialist, earning her pre-injury average weekly wage.\nOn 11 July 2006, plaintiff filed a request for hearing with the Commission. On 13 December 2007, an Opinion and Award was filed by Deputy Commissioner Chrystal Redding Stanback denying plaintiffs claim for additional compensation for disability as a result of the 13 July 2005 accident. On appeal, the Full Commission (with Commissioner Christopher Scott dissenting) affirmed the Opinion and Award. Plaintiff appeals.\nII. Standard of Review\nThis Court reviews an award from the Commission to determine: \u201c(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact.\u201d Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). The \u201cCommission is the sole judge of the credibility of the witnesses and the [evidentiary] weight to be given their testimony[;]\u201d however, \u201cfindings of fact by the Commission may be set aside on appeal when 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) (citations and internal quotation marks omitted). \u201cThe Commission\u2019s findings of fact are conclusive on appeal if supported by competent evidence. This is so even if there is evidence which would support a finding to the contrary.\u201d Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 121, 334 S.E.2d 392, 394 (1985) (citation omitted). The Commission\u2019s conclusions of law are reviewed de novo. Griggs v. Eastern Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).\nIII. Cessation of Disability Payments\nPlaintiff argues that the Commission erred by concluding as a matter of law that plaintiff was not entitled to payment of disability compensation through the date plaintiff returned to work on 5 September 2006. We agree.\nIt is undisputed that defendant, pursuant to N.C. Gen. Stat. \u00a7 9748(b), filed a Form 60, \u201cEmployer\u2019s Admission of Employee\u2019s Right to Compensation,\u201d and initiated payments of temporary total disability compensation to plaintiff. Under N.C. Gen. Stat. \u00a7 97-82(b),\nPayment pursuant to G.S. 9748(b), or payment pursuant to G.S. 9748(d) when compensability and liability are not contested prior to expiration of the period for payment without prejudice, shall constitute an award of the Commission on the question of compensability of and the insurer\u2019s liability for the injury for which payment was made. Compensation paid in these circumstances shall constitute payment of compensation pursuant to an award under this Article.\nN.C. Gen. Stat. \u00a7 97-82(b) (2007). Thus, defendant\u2019s payment of compensation pursuant to a Form 60 constitutes payment pursuant to an award of the Commission. \u201cPayments of compensation pursuant to an award of the Commission shall continue until the terms of the award have been fully satisfied.\u201d N.C. Gen. Stat. \u00a7 9748.1(a) (2007).\nOnce the payment of compensation under an award of the Commission have been commenced, payments can only be terminated under certain circumstances and after following specific procedures. \u201cAn employer may terminate payment of compensation for total disability . . . when the employee has returned to work for the same or a different employer ... or when the employer contests a claim pursuant to G.S. 9748(d) within the time allowed thereunder.\u201d N.C. Gen. Stat. \u00a7 97-18.1(b) (2007). Otherwise,\nAn employer seeking to terminate or suspend compensation. . . for a reason other than those specified in subsection (b) of this section shall notify the employee and the employee\u2019s attorney of record in writing of its intent to do so on a form prescribed by the Commission. A copy of the notice shall be filed with the Commission. This form shall contain the reasons for the proposed termination or suspension of compensation, be supported by available documentation, and inform the employee of the employee\u2019s right to contest the termination or suspension by filing an objection in writing with the Commission within 14 days of the date the employer\u2019s notice is filed with the Commission or within such additional reasonable time as the Commission may allow.\nN.C. Gen. Stat. \u00a7 97-18.1(c) (2007) (emphasis added).\nIn the instant case, defendant\u2019s termination of plaintiff\u2019s compensation was not due to plaintiff\u2019s return to work or a claim by defendant pursuant to N.C. Gen. Stat. \u00a7 97-18(d). Therefore, defendant was required to follow the procedure delineated in N.C. Gen. Stat. \u00a7 97-18.1(c) in order to terminate plaintiff\u2019s compensation.\nRule 404 of the Industrial Commission sets out the procedure for terminating compensation pursuant to 97-18.1(c). Rule 404 states, in relevant part:\n[T]he employer or carrier/administrator shall notify the employee and the employee\u2019s attorney of record, if any, on Form 24, \u201cApplication to Stop Payment of Compensation.\u201d The employer or carrier/administrator shall specify the legal grounds and the alleged facts supporting the application^]\nIf the employee or the employee\u2019s attorney of record, if any, objects by the date inserted on the employer\u2019s Form 24, or within such additional reasonable time as the Industrial Commission may allow, the Industrial Commission shall set the case for an informal hearing, unless waived by the parties in favor of a formal hearing.\nWorkers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 404(2), 2009 Ann. R. N.C. 761-62. The procedure delineated in Rule 404 ensures that an injured worker receives due process before ongoing compensation payments are terminated. This procedure was not followed by defendant in this case, and therefore defendant was not permitted to suspend payments to plaintiff until it either followed the requirements of N.C. Gen. Stat. \u00a7 97-18.1(c) and Rule 404(2) or until one of the requirements for termination under N.C. Gen. Stat. \u00a7 97-18.1(b) were met. Plaintiff returned to work on 5 September 2006 and it is on that date that defendant\u2019s obligation to make compensation payments terminated, pursuant to N.C. Gen. Stat. \u00a7 97-18.1(b) (2007).\nDefendant argues that the Supreme Court\u2019s decision in Clark v. Wal-Mart, 360 N.C. 41, 619 S.E.2d 491 (2005), requires that plaintiff still prove \u201cdisability\u201d in order to receive continued payments, even if defendant has admitted the \u201ccompensability\u201d of plaintiff\u2019s injury. Clark is inapplicable to the instant case. In Clark, the employer admitted the injured employee\u2019s right to receive compensation pursuant to N.C. Gen. Stat. \u00a7 97-18(b), but disputed the permanent nature of the injury. Id. at 42, 619 S.E.2d at 492. Following the procedures established by the Workers\u2019 Compensation Act (\u201cthe Act\u201d) and the rules of the Commmission, the employer filed a request for hearing on that issue. Id. The Clark Court held that when \u201cdisability\u201d is disputed, the employer\u2019s admission of \u201ccompensability\u201d of an injury does not create a presumption of continued disability for the employee. Id. at 44, 619 S.E.2d at 493. In the instant case, defendant never requested a hearing to formally dispute the permanent nature of plaintiff\u2019s disability. If defendant had followed the law and requested a hearing, it would have been plaintiff\u2019s burden to prove continued disability. Instead, defendant determined unilaterally that it could terminate, without due process, plaintiff\u2019s compensation payments, in violation of the Act and the established rules and procedures of the Commission.\nDefendant argues that interpreting the Act in this way would allow plaintiff to receive disability compensation even though she was not, in fact, disabled, resulting in an unintended windfall for plaintiff. This argument ignores the fact that defendant\u2019s desired outcome could have easily been obtained by simply following the procedures delineated by the Act and the rules of the Commission. Even if defendant had filed, pursuant to Rule 404, a Form 24 several months after it believed plaintiff was no longer disabled, it would still be entitled to \u201cretroactive termination or suspension of compensation to a date preceding the filing of a Form 24 ... as a result of a formal hearing.\u201d Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 404(8), 2009 Ann. R. N.C. 762. The \u201cabsurd result\u201d complained of by defendant does not result from our interpretation of the Act, but rather from defendant\u2019s failure to follow the Commission\u2019s clearly delineated procedures. Plaintiff is only entitled to compensation payments during the disputed period because defendant, after initiating payments pursuant to an award of the Commission, felt it could unilaterally suspend payments without regard to the Act, the rules of the Commission, or plaintiff\u2019s due process rights. Defendant cannot use a later determination that plaintiff was not disabled to justify its clear circumvention of established Commission procedures and plaintiff\u2019s due process rights. That portion of the Commission\u2019s Opinion and Award denying plaintiff compensation payments from 2 January 2006 through 5 September 2006 is hereby reversed and the matter remanded for a determination of the amount defendant owes plaintiff during that period.\nIV. Late Payment Penalty\nUnder N.C. Gen. Stat. \u00a7 97-18(g):\nIf any installment of compensation is not paid within 14 days after it becomes due, there shall be added to such unpaid installment an amount equal to ten per centum (10%) thereof, which shall be paid at the same time as, but in addition to, such installment, unless such nonpayment is excused by the Commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.\nN.C. Gen. Stat. \u00a7 97-18(g) (2007). In the instant case, defendant unilaterally suspended payments that were due to plaintiff while a valid award of the Commission was still in effect. Defendant made no showing that these payments were not made due to conditions over which defendant had no control. Therefore, that portion of the Commission\u2019s Opinion and Award denying plaintiff a 10% late payment penalty for payments not paid by defendants when due between 2 January 2006 and 5 September 2006 is reversed and the matter remanded for a determination of the amount of late fees due to plaintiff as a result of defendant\u2019s failure to make timely payments.\nV. Maximum Medical Improvement\nPlaintiff argues that the Commission erred by concluding that plaintiff reached MMI on 2 January 2006. We disagree.\nIn its Opinion and Award, the Commission found as fact and concluded as a matter of law that plaintiff reached MMI on 2 January 2006. The Commission\u2019s finding of fact was fully supported by competent evidence. Plaintiff was seen by Dr. Yuson on 29 November 2005, at which time he wrote a letter stating that plaintiff was unable to return to work until 2 January 2006. Dr. Yuson\u2019s letter stated: \u201cAt this point I think that the patient is on the mend and I believe that she will be expected to be at MMI in (sic) January 2, 2006. At that point, she is released to full time duty.\u201d There is no medical evidence in the record that contradicts Dr. Yuson\u2019s conclusion or otherwise suggests plaintiff required additional treatment for her injury. The Commission also found as fact, undisputed by plaintiff, that plaintiff\u2019s testimony regarding her continuing symptoms was not credible and that plaintiff failed to seek any additional medical treatment after seeing Dr. Yuson on- 29 November 2005. This evidence sufficiently supports the Commission\u2019s conclusion that plaintiff reached MMI on 2 January 2006. This assignment of error is overruled.\nVI. Additional Medical Compensation\nPlaintiff argues that the Commission erred by concluding that plaintiff did not need and was not entitled to any additional medical treatment resulting from her injury. We disagree.\nAn employee may seek compensation under N.C. Gen. Stat. \u00a7 97-25 for additional medical treatment when such treatment \u201clessens the period of disability, effects a cure or gives relief.\u201d Parsons v. Pantry, Inc., 126 N.C. App. 540, 541-42, 485 S.E.2d 867, 869 (1997) (citation omitted). Any claim for additional medical compensation must be made within \u201ctwo years after the employer\u2019s last payment of medical or indemnity compensation\u201d unless the employee, prior to the expiration of the two-year period, files a claim for additional medical compensation, or the Commission orders additional medical compensation on its own motion. N.C. Gen. Stat. \u00a7 97-25.1 (2007).\nIn the instant case, the Commission found as fact, supported by competent evidence, that plaintiff reached MMI on 2 January 2006. The Commission also found, supported by competent evidence, that no medical evidence existed that showed plaintiff either required any additional medical treatment after that date or that plaintiff suffered any permanent injury. Since the evidence indicated that plaintiff had reached MMI, there could be no medical treatment that would lessen the period of plaintiff\u2019s disability, effect a cure or otherwise give plaintiff relief. The Commission correctly concluded that plaintiff did not need and was not entitled to any additional medical treatment under N.C. Gen. Stat. \u00a7 97-25. Contrary to plaintiffs assertions, there is nothing in the Commission\u2019s conclusion that would foreclose plaintiff from requesting additional treatment pursuant to N.C. Gen. Stat. \u00a7 97-25.1 if such treatment became necessary before the applicable statute of limitations ran. This assignment of error is overruled.\nVIL Conclusion\nThe portions of the Commission\u2019s Opinion and Award denying plaintiff compensation payments and late payment penalties from 2 January 2006 through 5 September 2006 are reversed and remanded for a determination of the amount owed to plaintiff by defendant. The remaining portions of the Opinion and Award are affirmed.\nAffirmed in part, reversed in part, and remanded.\nJudges BRYANT and ELMORE concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Prather Law Firm, by J.D. Prather, for plaintiff-appellant.", "Rudisill, White & Kaplan, by Bradley H. Smith, for defendantappellee." ], "corrections": "", "head_matter": "CLAUDETTE FONVILLE, Employee, Plaintiff-appellant v. GENERAL MOTORS CORP., d/b/a GMAC, Employer, SELF-INSURED (SEDGWICK CLAIM MANAGEMENT SERVICE, Servicing Agent), Defendant-appellee\nNo. COA09-120\n(Filed 6 October 2009)\n1. Workers\u2019 Compensation\u2014 disability payments \u2014 unilateral termination\nThe Industrial Commission erred in a workers\u2019 compensation case by determining that plaintiff was not entitled to disability compensation through the date she returned to work where defendant had been making payments pursuant to a Form 60 but unilaterally stopped payments without informing the Commission. Payment of compensation pursuant to a Form 60 constitutes payment pursuant to an award of the Commission, and once compensation under an award of the Commission begins, payments can only be stopped under certain circumstances and after following specific procedures.\n2. Workers\u2019 Compensation\u2014 late penalty \u2014 unilateral termination of benefits\nThe portion of an Industrial Commission award denying a workers\u2019 compensation plaintiff a late payment penalty was remanded for a determination of the amount of late fees due where defendant unilaterally suspended payments that were due to plaintiff while a valid award of the Commission was still in effect.\n3. Workers\u2019 Compensation\u2014 maximum medical improvement \u2014 evidence sufficient\nThe Industrial Commission did not err in a workers\u2019 compensation case in its determination of when maximum medical improvement was reached where the finding was fully supported by competent evidence.\n4. Workers\u2019 Compensation\u2014 additional compensation denied \u2014 maximum medical improvement\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff was not entitled to additional medical treatment under N.C.G.S. \u00a7 97-25 where the evidence indicated that plaintiff had reached maximum medical improvement. There is nothing in the Commission\u2019s conclusion that would foreclose plaintiff from requesting additional treatment pursuant to N.C.G.S. \u00a7 97-25.1 before the statute of limitations runs.\nAppeal by plaintiff from Opinion .and Award entered 10 September 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 20 August 2009.\nPrather Law Firm, by J.D. Prather, for plaintiff-appellant.\nRudisill, White & Kaplan, by Bradley H. Smith, for defendantappellee." }, "file_name": "0267-01", "first_page_order": 293, "last_page_order": 301 }