DAVIS, Judge.
Johnnie Wilkes ("Plaintiff") appeals from the Opinion and Award of the North Carolina Industrial Commission ("the Commission") determining that he (1) failed to demonstrate that his anxiety and depression were causally related to his work-related accident; and (2) was no longer entitled to temporary total disability benefits. After careful review, we reverse in part, vacate in part, and remand for further proceedings.
Plaintiff is a 62-year-old man who, at the time of his accident, had been employed by the City of Greenville ("Defendant") for approximately nine years. On 21 April 2010, Plaintiff was driving one of Defendant's trucks when a third party ran a red light and collided into the truck. The force of the accident caused the truck to collide with a tree, breaking the windshield and deploying the airbags. Plaintiff was transported to Pitt County Memorial Hospital, where he was treated for an abrasion on his head, broken ribs, and various injuries to his neck, back, pelvis, and left hip. At the hospital, Plaintiff underwent a brain MRI, which appeared "negative for acute infarction but ... showed mild paranasal sinus disease resulting from a concussion." Plaintiff was discharged from the hospital the next day.
On 22 April 2010, Defendant filed a Form 19, reporting to the Commission that Plaintiff had in the course of performing his duties as a landscaper for the Recreation and Parks Department sustained injuries in a multi-vehicle accident. One week later, on 29 April 2010, Defendant filed a Form 60, admitting Plaintiff's entitlement to compensation for his injury by accident.
In January 2011, both parties filed a Form 33 requesting that the claim be assigned for hearing. Defendant's Form 33 stated that the "[p]arties disagree about the totality of plaintiff's complaints related to his compensable injury and need for additional medical evaluations." Plaintiff's Form 33 alleged that Plaintiff "is in need of additional medical treatment ... specifically an evaluation by a neurosurgeon." On 4 February 2011, Deputy Commissioner Theresa B. Stephenson entered an order requiring Defendant to "send Plaintiff for a one time evaluation to a neurosurgeon of their choosing. If that neurosurgeon recommends additional neurological or neuropsychological treatment, Defendant shall provide this and direct treatment."
On 21 September 2011, a hearing was held before Deputy Commissioner Mary C. Vilas on Defendant's Form 33 Request for Hearing. The record was closed on 18 July 2012 and then reopened by order on 10 January
Defendants appealed to the Full Commission, and the Commission heard the matter on 4 November 2013. On 9 April 2014, the Commission entered its Opinion and Award reversing Deputy Commissioner Vilas' decision. Specifically, the Commission concluded that (1) Plaintiff failed to meet his burden of demonstrating that his anxiety and depression were caused by his work-related accident; and (2) Plaintiff was no longer entitled to total temporary disability benefits because he "presented insufficient evidence that a job search would be futile." The Commission found that Plaintiff's tinnitus, however, was causally related to his 21 April 2010 accident and therefore ordered Defendant to pay all of Plaintiff's past and future medical expenses "that are reasonably required to effect a cure, provide relief or lessen any disability" related to his tinnitus. Plaintiff filed a timely appeal to this Court.
Appellate review of an opinion and award of the Industrial Commission is "limited to consideration of whether competent evidence supports the Commission's findings of fact and whether the findings support the Commission's conclusions of law." Philbeck v. Univ. of Mich., ___ N.C.App. ___, ___, 761 S.E.2d 668, 671 (2014) (citation and quotation marks omitted). "The findings of fact made by the Commission are conclusive on appeal if supported by competent evidence even if there is also evidence that would support a contrary finding. The Commission's conclusions of law, however, are reviewed de novo." Morgan v. Morgan Motor Co. of Albemarle, ___ N.C.App. ___, ___, 752 S.E.2d 677, 680 (2013) (internal citation omitted), aff'd per curiam, 368 N.C. 69, 772 S.E.2d 238 (2015).
Here, Plaintiff makes two primary arguments on appeal. First, he contends that the Commission misapplied the law when considering whether he was entitled to medical compensation for his anxiety and depression. Second, he argues that the Commission erred in concluding that he was not entitled to disability benefits because he "has not presented evidence of a reasonable job search and has presented insufficient evidence that a job search would be futile." We address each of these arguments in turn.
Plaintiff first argues that the Commission erred by failing to apply the presumption arising from our decision in Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), to his request for additional medical treatment and compensation for his complaints of anxiety and depression. We agree.
Pursuant to N.C. Gen.Stat. § 97-25, an employer must provide medical compensation for the treatment of compensable injuries, which includes "additional medical treatment... directly related to the compensable injury" that is designed to effect a cure, provide relief, or lessen the period of disability. Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 135, 620 S.E.2d 288, 292 (2005), disc. review improvidently allowed, 360 N.C. 587, 634 S.E.2d 887 (2006); N.C. Gen.Stat. § 97-25 (2013) (explaining that "[m]edical compensation shall be provided by the employer" for treatment of compensable injuries and employer's responsibility for such compensation includes any changes in treatment so long as "the change is reasonably
It is well established that an employee seeking compensation for an injury bears the burden of demonstrating that the injury suffered is causally related to the work-related accident. Hedges v. Wake Cty. Pub. Sch. Sys., 206 N.C. App. 732, 734, 699 S.E.2d 124, 126 (2010), disc. review denied, 365 N.C. 77, 705 S.E.2d 746 (2011). Once the employee meets this initial burden, however, a presumption arises — often referred to as the Parsons presumption — that "additional medical treatment is directly related to the compensable injury." Perez, 174 N.C.App. at 135, 620 S.E.2d at 292; see also Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 182, 565 S.E.2d 209, 216-17 (2002) ("When additional medical treatment is required, there is a rebuttable presumption that it is directly related to the original compensable injury and the employer has the burden of producing evidence showing the treatment is not directly related to the compensable injury.").
In Parsons, the plaintiff worked as an assistant manager at one of the defendant's stores and was injured when two men entered the store and assaulted her, striking her in the forehead and shooting her four times with a stun gun. Parsons, 126 N.C.App. at 540, 485 S.E.2d at 868. The plaintiff sought workers' compensation benefits, and the Industrial Commission entered an opinion and award determining that she had suffered compensable injuries as a result of this work-related incident and ordering the defendant to pay her medical expenses for these injuries, which consisted primarily of frequent headaches. Id. at 540-41, 485 S.E.2d at 868. Neither party appealed from this opinion and award. Eight months later, the plaintiff sought medical compensation for the treatment of her headaches. Id. at 541, 485 S.E.2d at 868. The Commission denied the plaintiff's request for medical compensation, ruling that the plaintiff "`ha[d] not introduced any evidence of causation between her injury and her headache complaints at the time of the hearing' and ... `failed to meet her burden of proof for showing the necessity of continued or additional medical treatment.'" Id. at 541, 485 S.E.2d at 869.
The plaintiff appealed to this Court, arguing that the Commission had erred in placing the burden on her to prove that her current headaches were caused by the employment-related assault. Id. at 541, 485 S.E.2d at 868. We agreed, explaining that
Id. at 542, 485 S.E.2d at 869 (internal citation omitted).
This Court has applied the Parsons presumption to additional medical treatment not only when the initial determination of compensability is made by the Commission in an opinion and award, see id., but also when the employer makes an admission of compensability by filing a Form 60, see Perez, 174 N.C.App. at 136, 620 S.E.2d at 293 ("As the payment of compensation pursuant to a Form 60 amounts to a determination of compensability, we conclude that the Parsons presumption applies in this context.").
Plaintiff asserts that because Defendant filed a Form 60, which admitted that he had suffered a compensable injury by accident, he was entitled to the presumption that the additional medical treatment he sought for
This Court addressed this same issue in Perez. The plaintiff in Perez was employed as a flight attendant and slipped and fell while carrying luggage down a stairway. Perez, 174 N.C.App. at 129, 620 S.E.2d at 289. The plaintiff immediately felt pain in her leg, hip, and lower back, and the defendant-employer filed a Form 60 shortly after the incident admitting the compensability of her injury, which was described on the Form 60 as a "Sprain, Strain Lower Back." Id. at 129, 137 n. 1, 620 S.E.2d at 289, 293 n. 1. The plaintiff returned to work as a flight attendant for several years before changing careers. Id. at 130, 620 S.E.2d at 289.
Approximately four years after the injury, the plaintiff's lower back pain "started to intensify again," and she sought medical treatment for her symptoms. Id. The plaintiff sought medical compensation for this treatment from the defendant, which the Commission awarded. Id. The defendant-employer appealed, arguing that the plaintiff was not entitled to additional medical compensation because she failed to produce evidence that her current symptoms were causally related to the compensable injury that had occurred four years earlier. Id. at 130-31, 620 S.E.2d at 290. Specifically, the defendant-employer contended that the Parsons presumption did not apply to the plaintiff because the plaintiff's "herniated disc was a different injury from the injury stated on the Form 60 and, therefore, the admission of compensability does not cover this later and distinct injury." Id. at 136 n. 1, 620 S.E.2d at 293 n. 1. We rejected this argument, explaining that
Id. at 137 n. 1, 620 S.E.2d at 293 n. 1 (emphasis added).
In the present case, Plaintiff requested additional medical treatment for his anxiety and depression, which he alleged was the result of the 21 April 2010 accident. Plaintiff has been evaluated by several medical and psychological professionals, who expressed differing opinions both as to Plaintiff's veracity in reporting these symptoms and as to whether the psychological complaints were, in fact, causally linked to the 21 April 2010 accident. In its Opinion and Award, the Commission denied Plaintiff additional medical compensation for his anxiety and depression, stating that based on the conflicting testimony of the physicians and psychologists who evaluated him, "Plaintiff has not met his burden of showing that his alleged depression and anxiety is a result of the 21 April 2010 work-related accident."
Thus, it is evident from the Opinion and Award that the Commission did not apply the rebuttable presumption under Parsons to Plaintiff's psychological symptoms and instead kept the burden on Plaintiff to demonstrate causation despite Defendant's prior admission of compensability in the Form 60. Based on our Court's decisions in Parsons, Perez, and Carr, we hold that doing so was a misapplication of the law. Consequently, we remand this matter to the Commission so
We express no opinion on the question of whether the evidence of record is sufficient to rebut the presumption that Plaintiff's current complaints are directly related to his initial compensable injury. On remand, it is the role of the Commission to make this determination by evaluating the applicable evidence in order to determine whether the presumption has, in fact, been rebutted. See Miller v. Mission Hosp., Inc., ___ N.C.App. ___, ___, 760 S.E.2d. 31, 35 (2014) ("The employer may rebut the presumption with evidence that the medical treatment is not directly related to the compensable injury. If the defendant rebuts the Parsons presumption, the burden of proof shifts back to the plaintiff." (internal citations and quotation marks omitted)).
Plaintiff next argues that the Commission erred in concluding that he was no longer entitled to temporary total disability benefits. We agree.
"`Disability,' within the meaning of the North Carolina Workers' Compensation Act, is defined as incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 264, 545 S.E.2d 485, 489 (citation and quotation marks omitted), aff'd per curiam, 354 N.C. 355, 554 S.E.2d 337 (2001). Thus, in order for the Commission to conclude that a plaintiff is entitled to disability benefits to compensate him for the loss in wage-earning capacity, it must find
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
A plaintiff seeking to demonstrate disability may prove these first two elements of disability through several methods, including
Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted); see Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 422, 760 S.E.2d 732, 737 (2014) ("[The plaintiff] may prove the first two elements [under Hilliard] through any of the four methods articulated in Russell, but these methods are neither statutory nor exhaustive. In addition, a claimant must also satisfy the third element, as articulated in Hilliard, by proving that his inability to obtain equally well-paying work is because of his work-related injury.").
Here, the Commission concluded as a matter of law that Plaintiff, who was receiving total disability benefits from Defendant since the date of the 21 April 2010 accident, was no longer entitled to such benefits as of 18 January 2011, the date Defendant filed its Form 33 challenging the totality of Plaintiff's physical complaints related to his compensable injury. The Commission concluded that Plaintiff had failed to prove disability because he did not demonstrate that he had engaged in a reasonable job search and "presented insufficient evidence that a job search would be futile."
It is well established that "[t]he determination of whether a disability exists is a conclusion of law that must be based upon findings of fact supported by competent evidence." Parker v. Wal-Mart Stores, Inc., 156 N.C. App. 209, 212, 576 S.E.2d 112, 113 (2003). In its Opinion and Award, the Commission cited the testimony of Dr. Kurt Voos ("Dr. Voos"), an orthopedic surgeon who examined Plaintiff and — after several follow-up appointments — "authorized Plaintiff to return to work at sedentary duty with permanent restrictions including lifting up to 10 lbs with occasional walking and standing" and then made a factual finding that Plaintiff was "incapable of returning to his previous job but is capable of working in sedentary employment."
However, the Commission also took note of several of Plaintiff's personal characteristics that relate to his employability. Specifically, the Commission found that Plaintiff (1) was 60 years old at the time of the hearing; (2) had been employed as a landscaper with Defendant since 2001; (3) had been employed in medium and heavy labor positions throughout his entire adult life; (4) attended school until the tenth grade; (5) was physically incapable of performing his former job as a landscaper/laborer; (6) has "difficulty reading and comprehending" written material as evidenced during his evaluation with Dr. Peter Schulz; and (7) has "an IQ of 65, putting him in the impaired range."
Plaintiff asserts that this uncontroverted evidence, which the Commission found as fact, was sufficient to meet his initial burden of showing that he was incapable of earning his pre-injury wages because his preexisting personal characteristics made it futile for him to seek sedentary employment — the only type of employment within his physical restrictions. We agree.
As our Supreme Court explained in Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986),
Id. at 441, 342 S.E.2d at 808.
We find our decision in Johnson v. City of Winston-Salem, 188 N.C. App. 383, 656 S.E.2d 608, aff'd per curiam, 362 N.C. 676, 669 S.E.2d 319 (2008), instructive on this issue. In Johnson, the plaintiff was a 38-year-old high school graduate who worked for the defendant as a custodian for approximately 15 years before his physician excused him from work after diagnosing him with bilateral carpal tunnel syndrome. Id. at 384-85, 656 S.E.2d at 611. In its opinion and award, the Commission concluded that the plaintiff had suffered a compensable injury and demonstrated disability under the first prong of Russell by showing he was physically incapable of work in any employment. Id. at 389, 656 S.E.2d at 613. The defendant appealed to this Court, and "[w]hile we agree[d] with the Full Commission's ultimate conclusion that [p]laintiff [was] totally disabled and entitled to temporary total disability benefits," we concluded that the plaintiff had met his burden of proving disability under the third — rather than the first — prong of Russell. Id. That is, we concluded that although the plaintiff was capable of performing some work, his preexisting personal characteristics made a job search futile.
While the defendant argued that the plaintiff had failed to prove that engaging in a job search would be futile, we disagreed, first noting that "the fact that [p]laintiff can perform light-duty work does not in itself preclude the Full Commission from making an award of total disability if the evidence shows that, because of preexisting limitations, [p]laintiff is not qualified to perform the kind of light-duty jobs that might be available in the marketplace" and then explaining that
Id. at 391-92, 656 S.E.2d at 615.
The circumstances of the present case — specifically the fact that Plaintiff has an IQ in the "impaired range" coupled with limited education and training and has been employed for his entire working life in a line of work he is no longer physically capable of performing — are analogous to those in Johnson. As we clarified in that case, when determining whether disability exists, "the relevant inquiry is whether Plaintiff himself is capable of working and earning wages, not whether all or some persons with Plaintiff's degree of injury have such capacity." Id. at 391, 656 S.E.2d at 614 (emphasis added). Thus, the question before the Commission was whether Plaintiff — who is in his sixties and has intellectual limitations, difficulties with reading, and no other job experience outside of physical labor — would be able to obtain a position in sedentary employment.
We conclude that by introducing evidence of these preexisting facts, Plaintiff offered sufficient evidence that engaging in such a job search would be futile so as to shift the burden to his employer "to show that suitable jobs are available and that [he was] capable of obtaining a suitable job taking into account both physical and vocational limitations." Thompson, 223 N.C.App. at 360, 734 S.E.2d at 129 (holding that plaintiff met initial burden concerning futility by producing evidence that he had only completed high school, his work experience was limited to heavy labor jobs, he still suffered substantial pain from his injury, and his work restrictions foreclosed the possibility of performing manual labor); see also Weatherford v. Am. Nat'l Can Co., 168 N.C. App. 377, 383, 607 S.E.2d 348, 352-53 (2005) (concluding that plaintiff established futility based on evidence
Thus, because Plaintiff demonstrated the futility of engaging in a job search and Defendant made no attempt to show that suitable jobs were available to Plaintiff, the Commission erred in ruling that Plaintiff was not temporarily totally disabled. The Commission's conclusions of law reaching the opposite result were not supported by the findings of fact contained within its Opinion and Award. See White v. Weyerhaeuser Co., 167 N.C. App. 658, 670, 606 S.E.2d 389, 398 (2005) (explaining that conclusions concerning existence and extent of disability "must be based upon findings of fact supported by competent evidence").
Defendant attempts to rely on our recent decision in Fields v. H & E Equip. Servs., LLC, ___ N.C.App. ___, 771 S.E.2d 791 (2015), in arguing for a contrary result on this issue. In Fields, the plaintiff was employed as a mechanic for the defendant for 11 years when he sustained a back injury at work. Id. at ___, 771 S.E.2d at 792. The Commission concluded the plaintiff was temporarily totally disabled because "it has been and continues to be futile for him to seek competitive employment that comports with the work restrictions [his doctor] has placed on him." Id. at ___, 771 S.E.2d at 794. This Court reversed, holding that the plaintiff did not demonstrate that engaging in a job search would be futile because he "failed to provide competent evidence through expert testimony of his inability to find any other work as a result of his work-related injury...." Id. at ___, 771 S.E.2d at 792 (emphasis added).
Specifically, we stated that the plaintiff
Id. at ___, 771 S.E.2d at 795.
While we believe Fields is distinguishable from the present case on its facts — given that Plaintiff here lacks transferable skills such as computer proficiency and offered evidence from medical, psychological, and neuropsychological professionals that he is intellectually impaired with a full-scale IQ of 65, a 2.6 grade reading level, borderline nonverbal reasoning skills, and impaired verbal comprehension and processing speed — we take this opportunity to note that our prior caselaw has made clear that "a plaintiff is not required to present medical evidence or the testimony of a vocational expert on the issue of futility." Thompson, 223 N.C.App. at 358, 734 S.E.2d at 129 (emphasis added). Therefore, to the extent that the above-quoted language in Fields can be read to conflict with our Court's opinions in Johnson, Thompson, and Weatherford concerning futility, we are obligated to follow these earlier cases. See Respess v. Respess, ___ N.C.App. ___, ___, 754 S.E.2d 691, 701 (2014) ("[W]here there is a conflicting line of cases, a panel of this Court should follow the older of those two lines." (citation and quotation marks omitted)).
Accordingly, we conclude that the evidence establishing Plaintiff's cognitive limitations, in combination with his age and lack of any other training, adequately demonstrates that searching for employment within his physical restrictions would be futile. See Peoples, 316 N.C. at 444, 342 S.E.2d at 809 ("Where ... an employee's effort to obtain employment would be futile because of age, inexperience, lack of education or other preexisting factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist.").
For the reasons stated above, we reverse the Commission's termination of Plaintiff's total temporary disability benefits, vacate the portion of the Opinion and Award concerning Plaintiff's request for additional treatment for anxiety and depression, and remand for further proceedings consistent with this opinion.
REVERSED IN PART; VACATED AND REMANDED IN PART.
Judges BRYANT and INMAN concur.