Miller v. Carolinas Medical Center

NO. COA13-1028

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

VICKIE MILLER,
Employee/Plaintiff

v. From the Industrial Commission
I.C. No. 675930
CAROLINAS MEDICAL CENTER—
NORTHEAST, Self-Insured Employer,
Defendant.

Appeal by Defendant from opinion and award entered 30 May

2013 by the North Carolina Industrial Commission. Heard in the

Court of Appeals 23 January 2014.

The Sumwalt Law Firm, by Vernon Sumwalt, for Plaintiff.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Jeffrey A.
Kadis, M. Duane Jones, and Melissa H. Grimes, for
Defendant.

DILLON, Judge.

Defendant Carolinas Medical Center — Northeast appeals from

an opinion and award of the Full Commission of the North

Carolina Industrial Commission reforming a Form 21 agreement

executed by Defendant and Plaintiff Vickie Miller and granting

Plaintiff’s claim for additional workers’ compensation benefits

relating to a previously determined compensable injury. For the
 -2-
following reasons, we affirm in part, vacate in part, and

reverse and modify in part.

I. Factual & Procedural Background

Plaintiff was thirty-two years old and had been employed by

Defendant as an emergency room nurse for more than eleven years

at the time of her hearing before the Full Commission. The

record evidence, as presented before the Full Commission, tends

to show the following: On 21 August 2006, Plaintiff sustained an

injury to her lower back while working within the scope of her

employment with Defendant. Defendant did not contest the

compensability of Plaintiff’s injury and paid for Plaintiff’s

medical treatment through 26 December 2006, when Plaintiff’s

physician, Dr. Michael Meighen, determined that Plaintiff had

reached maximum medical improvement and assigned her a five

percent permanent partial disability (PPD).

The parties signed a Form 21 agreement entitling Plaintiff

to five percent PPD as compensation for her 2006 injury

consistent with Dr. Meighen’s determination. The PPD award was

calculated based on an average weekly salary of $689.21 and

corresponding compensation of $459.50. The Form 21 agreement

was approved by the Full Commission on 29 November 2007.
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Plaintiff proceeded to perform her job duties and did not

seek further treatment for her back until 9 September 2008, when

she returned to Dr. Meighen reporting increased pain in her

lower back. Ultimately, Dr. Meighen opined that Plaintiff’s

“issues [were] unrelated to any work-related injury[,]”

speculating that Plaintiff might have contracted Lyme disease.

As a result of Dr. Meighen’s determination, Defendant filed a

Form 61 on 26 September 2008 denying Plaintiff further coverage

for medical treatment relating to her 2006 injury.

On 31 December 2008, Plaintiff presented for treatment with

Dr. Brian Rose, an orthopedic surgeon who specializes in

treating spinal injuries. Dr. Rose opined that Plaintiff’s back

issues “likely correspond[ed] to her original work injury.”

On 17 July 2009, Plaintiff presented for treatment with Dr.

Daniel Oberer, a board-certified neurosurgeon, who determined

that Plaintiff’s back injury required surgery. Dr. Oberer

performed three surgical procedures on Plaintiff. Although the

first two procedures failed to produce the desired results, the

third procedure, which was performed on 1 November 2010, proved

successful. Plaintiff thus returned to her full-time nursing

position with Defendant on 31 December 2010 and has continued

working in that capacity ever since.
 -4-
In November 2010, Plaintiff filed a Form 18M with the

Commission, seeking medical compensation for her 2006 injury in

addition to the coverage already provided under the Form 21

agreement that had been approved by the Full Commission in 2007.

On 29 August 2011, Plaintiff filed an Amended Form 18, alleging

that there had been a “change of condition” since she entered

into the Form 21 agreement. Plaintiff also requested that her

claim be assigned for hearing, asserting that Defendant had

underpaid her PPD benefits “based on [a] miscalculation of [her]

average weekly wage” in the Form 21 agreement. In response,

Defendant filed a Form 33R asserting that Plaintiff had “failed

to make her claim regarding a change of condition within 2 years

of the last payment of medical compensation” and that,

accordingly, her claim was barred under the applicable statute

of limitations.

On 17 November 2011, Plaintiff’s claim came on for hearing

before Deputy Commissioner James C. Gillen, who ultimately

entered an opinion and award favorable to Plaintiff. Defendant

appealed to the Full Commission, which, by opinion and award

entered 30 May 2013, affirmed with modifications the Deputy

Commissioner’s decision. The substance of the Full Commission’s

opinion and award, in pertinent part, was as follows:
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(1) The Form 21 agreement was reformed by
the Commission to reflect what it determined
to be the correct average weekly wage,
$691.11, instead of $689.21, to which the
parties had agreed in the original Form 21
agreement;

(2) Defendant was ordered to pay Plaintiff
$18.90, representing the deficiency owed to
Plaintiff as a result of the new computation
of the average weekly wage;

(3) Plaintiff’s claims for additional
benefits relating to the August 2006
accident were not time-barred;

(4) Defendant was ordered to pay Plaintiff
temporary total disability benefits in the
amount of $460.76 – an amount based on the
recalculated average weekly benefits – for
the periods between 2008 and 2010 that
Plaintiff missed work due to her injury; and

(5) Defendant was ordered to pay Plaintiff’s
medical bills incurred subsequent to the
Form 21 agreement relating to Plaintiff’s
back injury.

From this opinion and award, Defendant appeals.

II. Analysis

A. Standard of Review

Our standard of review is well-established:

Our review of an opinion and award by the
Commission is limited to two inquiries: (1)
whether there is any competent evidence in
the record to support the Commission’s
findings of fact; and (2) whether the
Commission’s conclusions of law are
justified by the findings of fact. If
supported by competent evidence, the
 -6-
Commission’s findings are conclusive even if
the evidence might also support contrary
findings. The Commission’s conclusions of
law are reviewable de novo.

Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442–43, 640

S.E.2d 744, 748 (2007) (internal citations omitted).

B. Reformation of the Form 21 Agreement

Defendant first contends that the Full Commission erred in

reforming the amount of the average weekly wage from the amount

contained in the Form 21 agreement that had been approved by the

Full Commission in 2007. We agree.

With respect to Plaintiff’s average weekly wage, the

parties agreed in the Form 21 agreement that “[t]he average

weekly wage of the employee at the time of the injury, including

overtime and allowances, was $689.21, subject to

verification[.]” It is unclear whether, in changing the average

weekly wage figure from $689.21 to $691.11, the Full Commission

was rescinding the “average weekly wage” provision in the Form

21 agreement pursuant to N.C. Gen. Stat. § 97-17, or whether the

Full Commission was simply enforcing the “average weekly wage”

provision, specifically, the phrase which provides that the

calculation was “subject to verification.” We believe, in

either case, that the Full Commission erred in changing the

agreed-upon figure for the reasons stated below.
 -7-
To the extent that the Full Commission’s “reformation”

constituted a rescission of the Form 21 agreement, we believe

that we are compelled under Swain v. C & N Evans Trucking Co.,

Inc., 126 N.C. App. 332, 484 S.E.2d 845 (1997), to conclude that

the Full Commission lacked the authority to change the

Plaintiff’s average weekly wage since any mistake by the parties

in its calculation was a mistake of law, not of fact and,

therefore, not subject to rescission.

Rescission of a workers’ compensation settlement agreement,

such as a Form 21, is governed by N.C. Gen. Stat. § 97-17, which

provides, in pertinent part, as follows:

No party to any agreement for compensation
approved by the Commission shall deny the
truth of the matters contained in the
settlement agreement, unless the party is
able to show to the satisfaction of the
Commission that there has been error due to
fraud, misrepresentation, undue influence or
mutual mistake, in which event the
Commission may set aside the agreement.
Except as provided in this subsection, the
decision of the Commission to approve a
settlement agreement is final and is not
subject to review or collateral attack.

N.C. Gen. Stat. § 97-17(a) (2011) (emphasis added). The

foregoing provision “provides the Commission with the authority

to set aside a Form 21 Agreement entered into upon a mutual

mistake of fact.” Foster v. Carolina Marble & Tile Co., Inc.,
 -8-
132 N.C. App. 505, 508-09, 513 S.E.2d 75, 78 (1999) (citing N.C.

Gen. Stat. § 97-17) (emphasis added). “A mistake of law,

however, unless accompanied by fraud, misrepresentation, undue

influence, or abuse of a confidential relationship, ‘does not

affect the validity of a contract.’” Id. at 509, 513 S.E.2d at

78 (citation omitted). In Swain, we addressed the issue of

whether the Commission should have set aside a Form 21 agreement

on grounds of an “alleged error in the Agreement relat[ing] to

the computation of the [claimant’s] ‘average weekly wages.’”

Swain, 126 N.C. App. at 335, 484 S.E.2d at 848. We held the

following:

The determination of the plaintiff’s
“average weekly wages” requires application
of the definition set forth in the Workers’
Compensation Act, N.C.G.S. § 97-2(5) (1991),
and the case law construing that statute and
thus raises an issue of law, not fact. See
Lawrence v. Tise, 107 N.C. App. 140, 145,
419 S.E.2d 176, 179 (1992) (legal issue
presented where resolution of issue requires
application of fixed rules of law); Craft v.
Bill Clark Construction Co., 123 N.C. App.
777, 780, 474 S.E.2d 808, 810-11 (not always
appropriate to deduct expenses incurred in
earning those wages in computing “average
weekly wages”), disc. rev. denied, 345 N.C.
179, 479 S.E.2d 203 (1996). Because there is
no evidence of fraud, misrepresentation,
undue influence or abuse of a confidential
relationship, any mistake made by either or
both of the parties to the Agreement in the
computation of the “average weekly wages” is
not a basis for setting it aside.
 -9-

Id. In Foster, we construed Swain as standing for the

proposition that where “the parties needed to look to the Act,

as well as the caselaw [sic] construing the Act, in order to

determine the correct amount of the plaintiff’s average weekly

wages, . . . the issue [was] one of law, not fact.” Foster, 132

N.C. App. at 509, 513 S.E.2d at 78.

Here, the Full Commission expressly found that the average

weekly wage figure of $689.21 set forth in the original Form 21

agreement had been calculated by (1) dividing Plaintiff’s

earnings for the prior 52 weeks by 365 and then (2) multiplying

the quotient by 7. The Commission further found that our

General Statutes – specifically, N.C. Gen. Stat. § 97-2(5) – do

not provide for the calculation of the average weekly wage to be

made in the manner that had been employed in the original Form

21 agreement, but instead require that the calculation be made

by dividing Plaintiff’s earnings for the previous 52 weeks by

52, which, in this case, would yield a quotient of $691.11.

Applying Swain, we conclude that the alleged error in

computing Plaintiff’s average weekly wages on the parties’ Form

21 agreement constituted an error of law, not of fact. As

reflected in the Commission findings, the Commission’s review of

the purported computational error, as well as the propriety of
 -10-
the method which had produced that error, required reference to,

and construction of, the provisions of our General Statutes.

The nature of this inquiry clearly reveals the asserted error as

one of law. Accordingly, we hold that based on the precedent of

this Court, the Commission erred in setting aside the original

Form 21 agreement. Swain, 126 N.C. App. at 335, 484 S.E.2d at

848; Foster, 132 N.C. App. at 509, 513 S.E.2d at 78.1

Plaintiff alternatively argues that the Full Commission was

not actually rescinding the parties’ agreement in Form 21

agreement concerning the average weekly wage figure, but rather

enforcing a contractual provision therein that provides that the

average weekly wage figure is “subject to verification.” To the

extent that the Full Commission was merely enforcing this

verification provision, we believe that our analysis in Swain

does not apply because, as we noted in Pruett v. Pruett Floor

Coverings, 2004 WL 383281 (N.C. App. 2004) (unpublished), after

1
We note that the Commission cites Bond, 139 N.C. App. 123, 532
S.E.2d 583 (2000), in its opinion and award as supportive of its
decision to reform the Form 21 agreement. The procedural
posture presented in Bond, however, renders that case
inapplicable. In Bond, the plaintiff appealed to this Court,
assigning error to the computational method used by the
Commission in its opinion and award from which the plaintiff was
appealing. Id. at 127, 532 S.E.2d at 586. Here, Plaintiff is
not appealing from an opinion and award in which the allegedly
erroneous computation was made; rather, Plaintiff has raised the
alleged error in order to invalidate the original Form 21
agreement.
 -11-
Swain was decided, the verification provision was not made part

of the standard Form 21 agreement until after Swain.2 In other

words, the standard Form 21 which was analyzed by this Court in

Swain did not contain the verification provision.

In the present case, Defendant essentially argues that the

parties do not have the right to seek verification of the

average weekly wage under the verification provision of the Form

21 agreement once the agreement has been approved by the Full

Commission.3 The Form 21 agreement does not specify any time by

which either party seeking verification of the average weekly

wage figure must request such verification. Our Supreme Court

has held that when a contract does not specify a time by which

some duty or right therein is to be performed or exercised, “a

reasonable time will be implied as a matter of law.” Colt v.

Kimball, 190 N.C. 169, 173, 129 S.E. 406, 409 (1925) (holding

that under a contract to deliver goods, and no time of delivery

2
The revised Form 21 also provides that the parties to an
agreement may agree to waive the “subject to verification”
language.
3
We note that in Pruett we held that the parties had the right
to request the Full Commission to “verify” the average weekly
wage figure contained in a Form 21 agreement. Pruett, 2004 WL
383281, at *5 (noting that “[t]he present printed Form 21
explicitly states that the listed wage is “subject to
verification”). However, it does not appear that either party
in that case raised the argument raised by Defendant in this
case, as we did not address the argument.
 -12-
is specified, delivery must be made within a “reasonable time”);

see also Trust Co. v. Ins. Co., 199 N.C. 465, 154 S.E. 743

(1930) (holding that where a policyholder had the right to seek

reinstatement of his policy, “[i]f no time for the performance

of an obligation is agreed upon by the parties, then the law

prescribes that the act must be performed within a reasonable

time”); Lewis v. Allred, 249 N.C. 486, 106 S.E.2d 689 (1959)

(holding that where a contract to sell land does not specify a

closing date, “the law implies that it will be done within a

reasonable time”). Following these principles, we hold that a

party to a Form 21 agreement which contains a verification

provision but no provision regarding the time by which

verification must be sought cannot assert a right to seek

verification once a “reasonable time” has passed.

In Colt, our Supreme Court stated that what constitutes a

“reasonable time” is “generally a mixed question of law and

fact, and, therefore, for the [fact-finder], but when the facts

are simple and admitted, and only one inference can be drawn, it

is a question of law.” 190 N.C. at 174, 129 S.E. at 409. The

Court, further stated that “[w]here the delay is so great as to

support only one inference in the minds of all reasonable
 -13-
persons, then it is clearly the duty of the [court] to declare

it unreasonable as a matter of law.” Id.

In the present case, the findings made by the Full

Commission – the finder of fact in this case – and the record on

appeal reveal that the parties entered into the Form 21

agreement; the Form 21 agreement was approved by the Full

Commission in November 2007; Defendant tendered and Plaintiff

accepted benefits based on the average weekly wage calculation

in the Form 21 agreement; and Plaintiff did not file any request

with the Full Commission seeking verification of the calculation

of her average weekly wage until her attorney filed an Amended

Form 18 in August 2011.

Generally, the determination as to what constitutes a

reasonable time would be a question to be resolved by the Full

Commission, as the finder of fact. However, in this case, we

believe that Plaintiff waited an unreasonable amount of time to

seek verification, as a matter of law. We believe that, under

the facts of this case, by August 2011 – being more than three

and one half years after the initial benefits had been tendered

and accepted and the Form 21 agreement had been approved by the

Full Commission - neither party had the right to seek

verification. Accordingly, we hold that, with respect to any
 -14-
claim for benefits arising out of the August 2006 accident,

Plaintiff’s average weekly wage is deemed to be $689.21 as

agreed upon by the parties in their Form 21 agreement.

C. Additional Medical Treatment

Defendant further argues that the Commission erred in

allowing Plaintiff’s claim for additional benefits relating to

her 2006 injury, contending that her claim for additional

benefits was time-barred by either N.C. Gen. Stat. § 97-25.1 or

N.C. Gen. Stat. § 97-47. We disagree.

N.C. Gen. Stat. § 97-25.1 imposes, in pertinent part, the

following limitation upon a claimant’s right to seek medical

compensation:

The right to medical compensation shall
terminate two years after the employer’s
last payment of medical or indemnity
compensation unless, prior to the expiration
of this period, . . . the employee files
with the Commission an application for
additional medical compensation which is
thereafter approved by the Commission[.]

N.C. Gen. Stat. § 97-25.1 (2011).

Moreover, although N.C. Gen. Stat. § 97-47 authorizes the

Commission to increase the amount of workers’ compensation

benefits previously awarded to a claimant where there is “a

change in condition” – which “[o]ur case law defines . . . as a

condition occurring after a final award of compensation that is
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‘different from those existent when the award was made’ [and

that] results in a substantial change in the physical capacity

to earn wages,” Pomeroy v. Tanner Masonry, 151 N.C. App. 171,

179, 565 S.E.2d 209, 215 (2002) (quoting Weaver v. Swedish

Imports Maintenance, Inc., 319 N.C. 243, 247, 354 S.E.2d 477,

480 (1987)) – the Commission’s authority to review an award for

a change of condition is expressly limited by the statute’s

mandate that “no such review shall be made after two years from

the date of the last payment of compensation pursuant to an

award . . . .” N.C. Gen. Stat. § 97-47 (2011).

The issues thus are (1) the date on which Defendant made

its last payment of medical or indemnity compensation on

Plaintiff’s behalf; and (2) whether Plaintiff filed her request

for additional medical benefits within two years of that date.

1. Defendant’s Last Medical or Indemnity Payment

The record reveals that Defendant made the last indemnity

payment on 6 December 2007, which was more than two years prior

to the date on which Plaintiff filed her claim for additional

benefits, in November 2010, when she filed her Form 18M. With

respect to Defendant’s last medical payment, the Commission’s

opinion and award includes the following pertinent finding of

fact and conclusion of law:
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[Finding of fact] 15. On January 20, 2009,
Defendant last paid $556.80 to Armstrong &
Armstrong, a rehabilitation company, for
rehabilitative services in Plaintiff’s
claim.

. . . .

[Conclusion of law] 7. Rehabilitation
services, including nurse case management
services, are a form of “medical
compensation” under the statutory definition
of that term. See N.C. Gen. Stat. § 97-
2(19).

Defendant does not dispute that it tendered a payment to

Armstrong & Armstrong, Inc. (A&A) on 20 January 2009 on

Plaintiff’s behalf. Rather, Defendant contends that, given the

nature of the services provided by A&A in connection with

Plaintiff’s claim, this payment did not constitute a payment of

“medical compensation” within the meaning of the North Carolina

Workers’ Compensation Act, and that the last medical payment was

in fact made on 11 November 2008, slightly more than two years

before Plaintiff filed her Form 18M with the Commission.

Defendant points to evidence presented before the Commission

indicating that A&A merely provided medical case management

services – as opposed to actual medical treatment or other

services that could be properly characterized as “effecting a

cure or giving relief” to Plaintiff’s medical condition – and

that, in the instant case, the “sole purpose” of A&A’s
 -17-
involvement was to schedule a single medical appointment on

Plaintiff’s behalf.

The relevant provision of our General Statutes defines

“medical compensation” as follows:

The term “medical compensation” means
medical, surgical, hospital, nursing, and
rehabilitative services, including, but not
limited to, attendant care services
prescribed by a health care provider
authorized by the employer or subsequently
by the Commission, vocational
rehabilitation, 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[.]

N.C. Gen. Stat. § 97-2(19) (2011). We note our General

Assembly’s employment of the language “but not limited to” as

indicative of its intent to set out a non-exhaustive list of

what might constitute “rehabilitative services” in this context

while affording some room for judicial augmentation. We also

note that a narrow construction of this provision would

undermine the oft-stated and axiomatic principle mandating that

the workers’ compensation provisions of our General Statutes be

construed liberally in the claimant’s favor. Hollin v. Johnston

County Council on Aging, 181 N.C. App. 77, 84, 639 S.E.2d 88, 93

(2007) (“It is well established in North Carolina that the
 -18-
Workers’ Compensation Act should be liberally construed and that

[w]here any reasonable relationship to employment exists, or

employment is a contributory cause, the court is justified in

upholding the award as arising out of employment.”). Bearing

these principles in mind, while every expense paid might not be

considered “medical compensation” under N.C. Gen. Stat. § 97-

2(19), we believe that the services provided by A&A in the

present case do fall within the statute’s ambit. While it is

true that A&A did not provide “treatment” or “rehabilitative

services” to Plaintiff in the conventional sense, its role as an

administrative intermediary was necessary to ensure that

Plaintiff received the treatment determined to be appropriate by

the Commission in order to “effect a cure or give relief for”

Plaintiff’s compensable back injury. N.C. Gen. Stat. § 97-

2(19). We, therefore, hold that Defendant last provided

“medical compensation” for Plaintiff’s 2006 injury when it

tendered its payment to A&A on 20 January 2009.

2. Plaintiff’s Request for Additional Benefits

The sole remaining issue is whether Plaintiff filed her

request for additional benefits within two years of 20 January

2009. The Commission found that Plaintiff filed her Form 18M on

6 October 2010. However, Defendant states in its brief that
 -19-
Plaintiff filed her Form 18M on 16 November 2010 and that it was

received by the Commission on 23 November 2010. In either

case, given our conclusion that Defendant’s 20 January 2009

payment to A&A constituted the last medical payment, we hold

that Plaintiff timely filed her claim for additional benefits.

In light of our resolution of the issue concerning the

Commission’s modification of the Form 21 agreement, however, we

modify the amount of temporary total disability due to Plaintiff

for the periods of her disability from 2008-2010 as set forth in

our Conclusion below.

III. Conclusion

We vacate paragraph 1 of the Full Commission’s 30 May 2013

opinion and award modifying the average weekly wage figure in

the Form 21 agreement from $689.21 to $691.11; vacate paragraph

2 of the Full Commission’s opinion and award directing Defendant

to pay Plaintiff an additional $18.90 for her initial period of

disability in 2006; and we reverse paragraph 4 of the Full

Commission’s opinion and award to the extent that it establishes

the amount of Plaintiff’s temporary total disability

compensation award for her periods of disability between 2008

and 2010 at $460.76 per week, a figure based on the “modified”

average weekly wage, and we modify this amount to $459.50 per
 -20-
week, the figure agreed upon by the parties in the original Form

21 agreement. We affirm the Full Commission’s opinion and award

in all other respects.

AFFIRMED IN PART; VACATED IN PART; REVERSED AND MODIFIED IN
PART.

Judges STROUD and HUNTER, JR. concur.