IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-893
Filed: 5 December 2017
North Carolina Industrial Commission, I.C. No. 764008
APRIL HAWKINS, Employee, Plaintiff,
v.
WILKES REGIONAL MEDICAL CENTER, Employer, and KEY RISK INSURANCE
COMPANY, Carrier, Defendants.
Appeal by plaintiff from opinion and award entered on or about 31 May 2016
by the Full Commission. Heard in the Court of Appeals 6 February 2017.
The Law Offices of Timothy D. Welborn, P.A., by Timothy D. Welborn, for
plaintiff-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Tonya D.
Davis, for defendant-appellee.
STROUD, Judge.
Plaintiff appeals from an opinion and award denying her additional
compensation because she failed to file a claim against her employer’s insurance
company. Because plaintiff timely filed her claim for her back injury against her
employer, the Industrial Commission erred in denying her claim due to her failure to
file a claim against a specific insurance company. Plaintiff’s claim is against her
employer; her employer has the statutory obligation to maintain workers’
compensation insurance and is responsible for work-related compensable injuries.
HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
Any dispute plaintiff’s employer may have with its insurers is not relevant to the
validity of plaintiff’s claim against her employer. We therefore reverse and remand
for further proceedings.
I. Background
Plaintiff sustained a lower back injury while working for defendant-employer
as a nurse in 2007; plaintiff filed a workers’ compensation claim, and defendant-
employer admitted plaintiff’s right to compensation. In 2008, plaintiff filed Form 28B
and requested additional compensation for her 2007 injury. Over the course of the
next five years, plaintiff had several other incidents at work which exacerbated her
back injury, with no dispute as to whether these were compensable injuries, and
defendant-employer continued to provide medical compensation, until plaintiff
eventually returned to full duty work.1 During this five year period, defendant-
employer’s insurance company changed at least twice. In January of 2012, plaintiff
again “sustained another injury” to her back at work and “was diagnosed with
recurrent lumbar pain[.]” Plaintiff returned to Dr. Maxy, who had treated her
starting in 2007 for her lower back injury. As the Commission found,
Dr. Maxy examined Plaintiff, and given that she had failed
1 Plaintiff also reported and was treated for a work-related incident which injured her neck
and shoulders at work on 7 August 2010, and she was in an automobile accident in December 2010
which mildly increased her neck pain. In 2012, “Plaintiff entered into a full and final settlement
agreement with Synergy Coverage Solutions [,the employer’s insurance carrier in 2010,] regarding the
August 7, 2010 incident.” According to the Commission’s findings, the 2012 incident in question in this
appeal involved her low back, just as the 2007 back injury did. In 2015, plaintiff also sustained another
work-related injury to her neck which is the subject of another workers’ compensation claim not at
issue before us.
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
conservative treatment, he referred her for a new MRI.
Plaintiff had been out of work, and he continued light duty
work until she could be re-evaluated.
38. Plaintiff was out of work from January 14
through February 9, 2012 due to the January 12, 2012
accident and injury.
39. After Dr. Maxy referred Plaintiff for a lumbar
MRI on February 3, 2012, Plaintiff requested that Synergy
authorize the MRI. Upon Synergy’s refusal to authorize the
MRI and treatment, Plaintiff filed a Motion to compel
authorization, to which Synergy responded in opposition.
Synergy pointed out that Plaintiff was required to file a
new claim against United Heartland considering that she
had sustained an injury to her low back on January 12,
2012.
40. Plaintiff never underwent the MRI
recommended by Dr. Maxy on February 3, 2012.
In September of 2014, defendants filed a Form 33 requesting that plaintiff’s
claim be assigned for hearing because they “dispute[d] that Plaintiff’s low back
condition since January 12, 2012 is causally related to the accident and injury of April
10, 2007[;]” defendants did not contest that plaintiff was injured in 2012 but rather
whether the 2012 injury was related to her 2007 injury. In response, on 15 September
2014, plaintiff filed a Form 33R stating that “Plaintiff contends that her back
condition since January 12, 2012 is causally related to the accident and injury of April
10, 2007.”
In 2007, defendant-employer’s insurance company was defendant Key Risk
Insurance Company, the named defendant-insurer in this appeal. But in 2012,
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
defendant-employer’s insurance company was United Wisconsin Insurance
Company/United Heartland Insurance Company (“United Heartland”) which is not a
party on appeal. Thus, defendants argued that United Heartland was not liable for
plaintiff’s 2012 injury because it was a new injury, not related to the 2007 injury, and
defendant Key Risk was not the insurer at the time of the 2012 injury.
Thereafter, in November of 2014, defendant Key Risk moved to add United
Heartland as a party-defendant because “Plaintiff had long ago recovered by the time
the January 2012 incident occurred[,]” and therefore United Heartland was the
proper named insurer for the new 2012 injury. In December of 2014, United
Heartland responded to defendant Key Risk’s motion and requested it be denied
because plaintiff had not filed for compensation against United Heartland within two
years of the 2012 injury, and under North Carolina General Statute § 97-24, her
“right to compensation expire[d]” for want of jurisdiction.
To be clear, United Heartland did not contest that plaintiff had filed a proper
claim for her 2012 injury with defendant-employer, but rather contended that
plaintiff was required to name United Heartland specifically as the insurer within
the two-year period to file a valid claim. The Commission denied defendant Key
Risk’s motion to add United Heartland as a party. The order did not give any
rationale for the denial but stated only: “IT IS HEREBY ORDERED that Key Risk
Insurance Company’s Motion to Add United Wisconsin Insurance Company/United
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
Heartland Insurance Company is DENIED at this time. NO COSTS are assessed at
this time.” This order is not before us on appeal.
On 31 May 2016, the Full Commission of the North Carolina Industrial
Commission entered an opinion and award regarding plaintiff’s workers’
compensation claim, addressing only plaintiff’s request for additional compensation
arising from her 2007 injury. The issue to be determined, as stated in the opinion
and award, was “[w]hether Plaintiff's current low back condition is causally related
to the low back injury she sustained on April 10, 2007 such that Key Risk Insurance
Company has ongoing liability?” The Full Commission made many findings of the
history of plaintiff’s injuries and treatment since 2007 and seven conclusions of law
which demonstrate the Full Commission determined plaintiff sustained a work-
related injury in January of 2012, but it did not determine that the 2012 injury “was
caused by her” April 2007 injury. The Full Commission ultimately determined
“Plaintiff’s current back condition was caused by her January 12, 2012 injury, not her
April 10, 2007 injury.” The Commission concluded,
The preponderance of the evidence in view of the entire
record shows that Plaintiff's current back condition is
related to the January 12, 2012 accident that materially
aggravated a preexisting back condition. Defendant Key
Risk was not the carrier for Employer-Defendant on this
date. When an employee with a preexisting condition
suffers an injury by accident arising out of and in the
course of her employment, and the injury materially
accelerates or aggravates the preexisting infirmity and
thus proximately contributes to the disability of the
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
employee, the injury is compensable. Anderson v.
Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265
(1951). The January 12, 2012 accident was a separate
accident that materially aggravated Plaintiff's preexisting
back condition, and she could have filed a new workers’
compensation claim against United Heartland, who was
Employer-Defendant’s workers’ compensation insurance
carrier on January 12, 2012. Plaintiff’s current back
condition was caused by her January 12, 2012 injury, not
her April 10, 2007 injury. Therefore, Key Risk is not liable
for disability compensation or medical expenses related to
Plaintiff’s current back condition. Id.
The Full Commission ultimately concluded that plaintiff’s claim for further
compensation failed because
[t]he right to compensation under the North Carolina
Workers’ Compensation Act is forever barred unless a
claim is filed with the Commission or the employee is paid
compensation within two years after the accident. N.C.
Gen. Stat § 97-24. Plaintiff had two years from January 12,
2012, or through January 12, 2014, to file a claim against
United Heartland. Plaintiff failed to file a claim and is thus
barred. N.C. Gen. Stat. § 97-24.
(Emphasis added.) Thus, the Commission ultimately determined plaintiff’s claim
was barred because she had not brought a timely claim against the insurer, United
Heartland. Plaintiff appeals.
II. Named Insurer
On appeal, plaintiff argues she timely filed her claim against her employer and
was not required to name a specific insurance company. There is no real dispute
about the relevant facts of plaintiff’s injuries, and as framed by the Commission, the
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
issue of whether plaintiff was required by statute to specifically name the proper
insurance company of her employer is a question of law, which we review de novo.
See Moore v. City of Raleigh, 135 N.C. App. 332, 334, 520 S.E.2d 133, 136 (1999)
(citation and quotation marks omitted) (“The Industrial Commission’s conclusions of
law are reviewable de novo by this Court.”)
Since this case presents a question of law, we note first that neither the
Commission’s opinion and award nor defendants’ brief cited any law to support the
proposition that the employee must bring a workers’ compensation claim against a
specific insurance carrier, nor can we find any such law. The Commission’s findings
and defendants’ arguments focus throughout on the identity of the insurance carrier
for defendant-employer on the various dates of plaintiff’s back injuries and treatment.
But North Carolina General Statute § 97-97 clearly places the responsibility for
compensation for work-related injuries on the employer and provides that notice to
the employer is notice to the carrier:
All policies insuring the payment of compensation
under this Article must contain a clause to the effect that,
as between the employer and the insurer the notice to or
acknowledgment of the occurrence of the injury on the part
of the insured employer shall be deemed notice or knowledge
as the case may be, on the part of the insurer; that
jurisdiction of the insured for the purposes of this Article
shall be jurisdiction of the insurer, that the insurer shall in
all things be bound by and subject to the awards,
judgments, or decrees rendered against such insured
employer, and that insolvency or bankruptcy of the
employer and/or discharge therein shall not relieve the
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
insurer from the payment of compensation for disability or
death sustained by an employee during the life of such
policy or contract.
N.C. Gen. Stat. § 97-97 (2007) (emphasis added). In Collins v. Garber, our Court
stated that “[p]ursuant to 97-97, notice to or acknowledgment of the occurrence of the
injury on the part of the insured employer shall be deemed notice or knowledge as
the case may be, on the part of the insurer; that jurisdiction of the insured shall be
jurisdiction of the insurer.” 72 N.C. App. 652, 656, 325 S.E.2d 21, 23 (1985) (ellipses
omitted).
North Carolina General Statute § 97-22 provides that
[e]very injured employee or his representative shall
immediately on the occurrence of an accident, or as soon
thereafter as practicable, give or cause to be given to the
employer a written notice of the accident, and the employee
shall not be entitled to physician’s fees nor to any
compensation which may have accrued under the terms of
this Article prior to the giving of such notice . . . .
N.C. Gen. Stat. § 97-22 (2007) (emphasis added). There is no question that plaintiff
timely gave notice of “the occurrence” of her back injury in 2012 to defendant-
employer, even if she identified the wrong insurance carrier. Id. Whether the 2012
injury was a new injury or an exacerbation of her prior 2007 injury, her employer was
the same at all times, and her employer was provided prompt notice of each and every
incident.
Since we can find no cases addressing this point beyond Collins, 72 N.C. App.
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
at 656, 325 S.E.2d at 23, we turn to the Industrial Commission’s own standard forms
and find they also reflect the necessity for the employee to notify the employer of a
claim, but place the burden of identification of the proper insurance carrier on the
employer and Industrial Commission. For example, Form 18 requires the employee
to name the employer, but the instructions accompanying the form, the “General
Information on the Form 18” note the following:
4. What if I do not know who my employer’s insurance
carrier is?
If you do not know who the employer’s insurance carrier is
you may either ask your employer for the information, call
the Industrial Commission’s Claims Administration
Section at (800) 688-8349 then press “1” after the prompt,
or simply leave the line blank.
The employee’s correct identification of the employer’s insurance carrier is not a
jurisdictional requirement of a workers’ compensation claim.
Defendants argue that “Plaintiff misconstrues the case law on specific
traumatic incident” and notes that
[t]he Workers’ Compensation Act treats back injuries
differently than other injuries. While most injuries must
occur as a result of an accident,
[w]ith respect to back injuries, however,
where injury to the back arises out of and in
the course of the employment and is the direct
result of a specific traumatic incident of the
work assigned, “injury by accident” shall be
construed to include any disabling physical
injury to the back arising out of and causally
related to such incident.
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
N.C. Gen. Stat. § 97-2(6) (2016). This Court has confirmed
that that (sic) a specific traumatic incident which
aggravates a pre-existing condition is compensable.
Goforth v. K-mart Corp., 167 N.C. App. 618, 622-23, 605
S.E.2d 709, 713 (2004). Our legislature has already
liberalized the Act to include an aggravation of a pre-
existing back injury without the need of an accident. As
such, an employee may suffer several continuous
compensable injuries merely by successively aggravating
one original injury, whether or not that original injury was
compensable.
Once a successive back injury occurs which
aggravates the pre-existing injury, the employer becomes
responsible both for any new injury and the aggravation of
the previous injury.
(Emphasis added.)
Defendants then note that plaintiff sustained a back injury on 7 August 2010
and filed a Form 18 which listed Builders Insurance/Synergy as the insurer, and
Builders Insurance admitted liability for the back injury; this admission would have
included “acceptance of the aggravation of any previous back injuries[;]” but the
Commission did not make this finding. The Full Commission found that plaintiff
settled her claim for the 2010 injury, but also found that the 2010 incident also
involved her neck and shoulders, not only her back. In any event, the Commission
did not determine that plaintiff had entered into a full and final settlement with
Builders Insurance/Synergy which would have barred her from any claim for
exacerbation of her lower back condition; the Commission simply determined that
plaintiff brought her claim against the wrong insurance carrier since it determined
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HAWKINS V. WILKES REG’L MED. CTR.
Opinion of the Court
that she sustained a new back injury in 2012.
But ultimately we agree with defendants’ assertion that “[o]nce a successive
back injury occurs which aggravates the pre-existing injury, the employer becomes
responsible both for any new injury and the aggravation of the previous injury[;]” the
employer is responsible either way. The Commission’s findings support plaintiff’s
claim that she sustained a compensable back injury in 2012 and the defendant-
employer had immediate notice of this injury. The defendant-employer is responsible
for compensation for the plaintiff’s back injury and plaintiff need only notify her
employer under North Carolina General Statute § 97-97. See N.C. Gen. Stat. § 97-
97. Any dispute defendant-employer may have with its insurance carriers as to
coverage of its liability for plaintiff’s injury is beyond the scope of this appeal.
Because portions of the Commission’s order were based upon an error of law, we
reverse and remand.
III. Conclusion
For the foregoing reasons, we reverse and remand for further proceedings.
REVERSED and REMANDED.
Chief Judge McGEE and Judge TYSON concur.
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