Opinion
I.C. NO. 150598.
Filed 15 July 2010.
The Full Commission reviewed this matter on March 9, 2010, upon appeal by plaintiff and defendants from an Opinion and Award by Deputy Commissioner John B. Deluca filed on July 17, 2009. This matter was originally heard by Deputy Commissioner Deluca on February 24, 2009 in Dobson, North Carolina.
Plaintiff: Law Office of Kathleen G. Sumner, Attorneys at Law, Greensboro, North Carolina; Kathleen Sumner, appearing.
Defendants: Rudisill, White, Kaplan, PLLC; Attorneys at Law, Charlotte, North Carolina, Stephen Kushner, appearing.
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The Full Commission reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Deluca and the briefs and oral arguments before the Full Commission. The appealing party has not shown good grounds to reconsider the evidence, receive further evidence, or rehear the parties and their representatives. Accordingly, the Full Commission affirms with modifications the Opinion and Award of Deputy Commissioner Deluca.
*********** EVIDENTIARY MATTERS
On November 12, 2009, defendants filed a motion to admit additional evidence. On November 25, 2009, Commissioner Bernadine S. Ballance held defendants' motion to admit additional evidence in abeyance. In the discretion of the Full Commission defendants' motion to admit additional evidence is DENIED. N.C.I.C. Rule 701(6).
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The Full Commission finds as a fact and concludes as a matter of law the following, which were entered into by the parties as:
STIPULATIONS
1. At all relevant times, the parties were properly before the Industrial Commission, the Commission has jurisdiction of the parties and of the subject matter, and the parties were subject to and were bound by the provisions of the North Carolina Workers' Compensation Act.
2. The employer-employee relationship existed between the employer and the employee on or about May 21, 2001, the date of the admittedly compensable injury by accident to plaintiff's low back, left hip, and left leg.
3. Plaintiff's average weekly wage was $692.00, yielding a compensation rate of $461.36.
4. Plaintiff has been totally disabled and paid indemnity benefits from April 28, 2004 through October 25, 2004, and from October 13, 2008, through the present and continuing.
5. At the hearing before the Deputy Commissioner the parties stipulated to the following:
a. Stipulated 1: Pre Trial Agreement
b. Stipulated 2: I.C. Filings and Orders
c. Stipulated 3: Job Search May 27, 2005 to May 30, 2008
d. Stipulated 4: Job Search October 20, 2008 to February 20, 2009
e. Stipulated 5: Defendants' Response to Plaintiff's Motion dated July 14, 2006 and Plaintiff's Motion to Reinstate dated August 10, 2006
f. Stipulated 6: Plaintiff's May 1, 2008 Motion
g. Stipulated 7: Defendants' Response to Plaintiff's May 1, 2008 Motion
h. Stipulated 8: Response to Plaintiff's May 1, 2008 Motion, Response to Defendants' Response May 26, 2008, Memorandum from Executive Secretary's Office
i. Stipulated 9: Plaintiff's Motion to Reinstate October 21, 2008
j. Stipulated 10: Order December 4, 2008 and Appeal Documents
k. Stipulated 11: Centerpoint Job Description
l. Stipulated 12: Gould Lamb MSA
m. Stipulated 13: ESC File
n. Stipulated 14: Resume
o. Stipulated 15: Medical Bill Chart
p. Stipulated 16: CD Surveillance
q. Stipulated 17: Reports on Surveillance.
6. Plaintiff contends the issues to be heard are:
a. Whether plaintiff is entitled to temporary total disability benefits for the period from June 9, 2006 until October 13, 2008, during which period she was complying with vocational rehabilitation;
b. Whether defendants must comply with the Opinion and Award of the Full Commission and pay for the medical treatment for her admittedly compensable back injury;
c. Whether plaintiff is entitled to a treating physician of her choice; and
d. Whether defendants have to show cause why they should not be held in contempt for failure to comply with the Opinion and Award of the Full Commission and provide medical treatment for her admittedly compensable back injury.
7. Defendants contend the issues to be heard are:
a. Whether plaintiff has reached maximum medical improvement from her compensable injury;
b. Whether plaintiff is disabled within the meaning of N.C. Gen. Stat. § 97-2(9);
c. Whether plaintiff is in compliance with vocational rehabilitation; and
d. Whether the Executive Secretary erred in reinstating plaintiff's temporary total disability benefits effective October 13, 2008.
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Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following:
FINDINGS OF FACT
1. Plaintiff was born on January 24, 1949 and is sixty-one years old. She earned a Bachelor's Degree from Shaw University in 1970 and a Masters of Education from Winthrop University in 1976.
2. Plaintiff has an extensive work history as a teacher and social worker, having worked in an elementary school as early as the 1970s. Plaintiff also worked for the North Carolina Department of Health and Human Services in Winston-Salem, and during that employment she received additional post-graduate training through East Carolina University, Appalachian State University, and the University of North Carolina at Chapel Hill. Plaintiff was required to take a number of exams on various topics, including medical issues, educational research, and mental health.
3. Plaintiff resigned from her position with the North Carolina Department of Health and Human Services due to her mother's passing. Shortly thereafter she began work as a substitute teacher in the school system where she worked with middle and junior high school students. Plaintiff was hired by defendant-employer as a clinical therapist in September 2000. She was a Human Services Clinician III. In this position, she worked with families of juvenile delinquents in performing case management services. She often was responsible for transporting these juvenile delinquents in her company car and offered counseling services to them.
4. On or about May 21, 2001, plaintiff sustained an admittedly compensable injury to her back while employed by defendant-employer.
5. On October 25, 2004, plaintiff's former attorney Roderick T. McIver informed Carl Carter at Southern Rehabilitation Network, Inc. that plaintiff would no longer participate in vocational rehabilitation. Plaintiff subsequently discharged that particular attorney and hired her present counsel, who notified the Commission on or about June 9, 2006, that Plaintiff was ready and willing to cooperate with vocational rehabilitation.
6. Pursuant to a June 2, 2006 Full Commission Opinion and Award, plaintiff's temporary total disability benefits were suspended for noncompliance with vocational rehabilitation effective August 22, 2003 through April 28, 2004, and from October 25, 2004 and continuing until plaintiff shows that she is compliant with vocational rehabilitation. Plaintiff appealed that decision to the Court of Appeals, and filed a Petition for Discretionary Review with the Supreme Court. Ultimately the June 2, 2006 Full Commission Opinion and Award was affirmed. The June 2, 2006 Full Commission Opinion and Award is incorporated by reference into this Opinion and Award. The Full Commission Opinion and Award ordered defendants to reinstate temporary total disability benefits when plaintiff demonstrates that she is compliant with vocational rehabilitation.
7. While plaintiff's appeal before the Court of Appeals was pending, Plaintiff moved that the Commission reinstate her temporary total disability benefits, alleging that she was now compliant with vocational rehabilitation. The Commission refused to grant the motion, as it lacked jurisdiction to do so while the matter was on appeal.
8. Plaintiff began vocational rehabilitation in June 2006, and worked with Ms. Sonya Ellington, a vocational counselor for approximately 20 months, through February 2008. During that time Ms. Ellington met with plaintiff and plaintiff's attorney, Ms. Sumner, on a weekly or biweekly basis, always at plaintiff's counsel's office. Ms. Ellington provided job leads to Plaintiff on a weekly basis, and Plaintiff was required to keep a job search log. Ms. Ellington indicated Plaintiff presented to every meeting with a cane, and specifically requested that the use of the cane be included in her vocational plan. According to Ms. Ellington, Plaintiff kept her appointments relatively faithfully, and provided documentation indicating that she was looking for work. Ms. Ellington's company has a policy against calling potential employers to follow up on alleged applications, and thus Ms. Ellington did not undertake to do that in this case.
9. Plaintiff provided handwritten notes of her job search and testified that she contacted more than 300 employers. However, it appears from Plaintiff's submission that she sent out exactly one resume per week by mail without a cover letter and did not follow up on the submission. After originally testifying that the job search documents detailed her efforts in full, Plaintiff amended her testimony and indicated that there were additional notes she made of telephonic follow ups to her resume submissions, but that they were not included in the materials she submitted. Plaintiff claimed she did not know that she was supposed include them.
10. Plaintiff called the city of Winston-Salem each week. The City maintains a telephonic message that lists potential jobs. Plaintiff testified there are 18-20 listings every week. Although plaintiff called every week, she has not applied for any of the jobs that have been offered through that service, asserting that none of the jobs were appropriate for her.
11. Plaintiff listed a number of medications she is taking for a variety of problems, including back pain, high blood pressure, and depression. Plaintiff contended these medications were started by Dr. O'Keefe, although refills have been allowed by Dr. Copper. Plaintiff described the side effects from the medication, including but not necessarily limited to, lethargy and sleepiness. She also indicated she believes she has some memory loss, but was unable to quantify such loss with any specificity. 12. Plaintiff testified that she has more problems in the morning, and is then able to move around better in the afternoon. Plaintiff described this as a process by which her joints loosen up after she has been moving around, leaving her most stiff in the morning after she has been sleeping. She indicated she always had her vocational rehabilitation meetings in the morning, and as such was sleepy during those meetings. Plaintiff testified that she rarely leaves her house during the morning and does her grocery shopping in the afternoon. Plaintiff acknowledged that she does not use her cane while she is grocery shopping. She also indicated she goes to church at least three weeks out of the month.
13. Despite her claim that she has difficulty functioning during the morning, plaintiff never requested that her vocational rehabilitation meetings be moved to the afternoon, even though she had to drive to get to the meetings.
14. According to Ms. Ellington, plaintiff put up barriers to the vocational rehabilitation process. Although she attended appointments, plaintiff had a variety of excuses for why she did not follow through with various suggestions made by Ms. Ellington. She indicated sometimes she did not have stamps to mail résumés. She indicated she had no computer skills, and thus could not search for work over the internet. When Ms. Ellington suggested that plaintiff utilize community resources such as the library, plaintiff indicated she did not have money for gas to get there. At one point plaintiff contended she did not have appropriate clothing for interviews, but refused to meet Ms. Ellington at Goodwill to participate in a program designed to assist individuals in that circumstance. Ms. Ellington felt that plaintiff relied on her to lead the process, and that plaintiff was not developing job leads on her own.
15. On or about February 22, 2008, Ms. Ellington made the decision to end plaintiff's vocational rehabilitation, as she did not feel she could find work for plaintiff under the present circumstances. She felt that plaintiff's vocational rehabilitation efforts had plateaued, and that they were not effecting change in plaintiff's situation. Accordingly, Ms. Ellington has not met with plaintiff since February 2008. She indicated plaintiff has a number of skills that would be useful to an employer, including quite a bit of education and relevant work experience. Defendants have not provided vocational rehabilitation services to plaintiff since February 2008.
16. The greater weight of the evidence shows that plaintiff misrepresented her true physical capacity to Ms. Ellington, specifically with respect to her need to use a cane.
17. Plaintiff's mere attendance at meetings does not constitute full compliance with vocational rehabilitation. Although plaintiff claims to have done everything asked of her, based on the greater weight of the credible evidence, she has failed to make a genuine effort to locate employment and to fully comply with vocational rehabilitation.
18. These findings are further supported by the surveillance materials and the testimony of Cheryl Hendrickson, the most recent private investigator to work plaintiff's case. Ms. Hendrickson conducted surveillance of plaintiff in February 2009. She also had the opportunity to observe plaintiff in the courtroom on the morning of the hearing before the Deputy Commissioner and indicated her demeanor at the hearing differed from her demeanor during surveillance. According to Ms. Hendrickson and the video documentation, plaintiff moved without any apparent difficulty on a shopping trip that lasted more than three hours and did not use the cane at all during that excursion.
19. The Full Commission finds based upon the greater weight of the evidence that plaintiff has failed to make a reasonable effort to fully comply with vocational rehabilitation efforts provided by defendants.
20. As defendants have not provided medical treatment for plaintiff to the extent contemplated in the prior June 2, 2006 Full Commission Opinion and Award, plaintiff has not reached maximum medical improvement.
21. Plaintiff has made a reasonable request that defendants assign a new authorized treating physician.
22. Plaintiff received some medical treatment from Downtown Health Plaza and Forsyth Medical Center which has not been paid for by defendants.
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Based upon the foregoing Stipulations and Findings of Fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
1. Plaintiff has the burden of proving disability, defined as a loss of wage earning capacity. Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). In order to meet the burden of proving disability, plaintiff must prove that she was incapable of earning pre-injury wages in either the same or in any other employment and that the incapacity to earn pre-injury wages was caused by plaintiff's injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). Plaintiff may meet the initial burden of production by producing one of the following: (1) medical evidence that she is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that she is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that she is capable of some work, but that it would be futile because of preexisting conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that she has obtained other employment at wages less than her pre-injury wages . Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 545 S.E.2d 485 (2001); Russell v. Lowes Product Distribution, supra.
2. As plaintiff has not put forth a reasonable effort to fully comply with vocational rehabilitation plaintiff is prohibited from receiving temporary total disability benefits through February 22, 2008, the day in which defendants were no longer providing vocational rehabilitation. N.C. Gen. Stat. § 97-25; Russell v. Lowes Product Distribution, supra. However, as defendants have not provided vocational rehabilitation to plaintiff since February 22, 2008, plaintiff is entitled to temporary total disability benefits from February 23, 2008 and continuing at the rate of $461.36 per week. N.C. Gen. Stat. § 97-29.
3. Plaintiff is not at Maximum Medical Improvement. N.C. Gen. Stat. § 97-25.
4. Plaintiff is entitled to receive medical treatment for her compensable injury that is reasonably necessary to effect a cure or provide relief or lessen the period of disability. N.C. Gen. Stat. § 97-25.
5. Plaintiff is entitled to a change of treating physician. N.C. Gen. Stat. § 97-25. Plaintiff shall designate a board-certified neurosurgeon or pain management physician of her choosing to provide medical treatment for her compensable injuries to her back, left hip, and left leg. Id.
6. Defendants shall provide to plaintiff and plaintiff shall fully comply with vocational rehabilitation. N.C. Gen. Stat. § 97-25.
7. Plaintiff's request for an order requiring defendants to appear and show cause why they should not be held in contempt is denied.
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Based upon the foregoing Stipulations, Findings of Fact, and Conclusions of Law, the Full Commission enters the following:
AWARD
1. Subject to an attorney's fee approved herein, defendants shall reinstate plaintiff's temporary total disability compensation at the rate of $461.36, beginning February 23, 2008 and continuing until otherwise ordered by the Industrial Commission. The amounts that have accrued shall be paid in one lump sum.
2. An attorney's fee is approved for plaintiff's counsel in the amount of 25% of the accrued and ongoing temporary total disability benefits paid to plaintiff as a result of this Opinion and Award.
3. Plaintiff is not at maximum medical improvement.
4. Defendants shall be responsible for all medical expenses incurred or to be incurred for treatment of plaintiff's compensable injury which is reasonably necessary to effect a cure, provide relief or lessen the period of disability. Plaintiff shall designate a board-certified neurosurgeon or pain management physician of her choosing to provide medical treatment for her compensable injuries to her back, left hip, and left leg. All medical treatment prescribed by the approved treating physician shall be approved without delay.
5. Defendants shall provide to plaintiff and plaintiff shall fully comply with all vocational rehabilitation.
6. Plaintiff's request for an order requiring defendants to appear and show cause why they should not be held in contempt is denied.
7. Defendants shall pay the costs.
This the 28th day of April 2010.
S/___________________ STACI T. MEYER COMMISSIONER
CONCURRING:
S/___________________ DIANNE C. SELLERS COMMISSIONER
DISSENTING:
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
I respectfully dissent from the majority Opinion and Award, herein, on the issue of whether Plaintiff met her burden of demonstrating that she is entitled to a reinstatement of her workers' compensation benefits as of June 22, 2006, based upon her willingness to cooperate and demonstrated compliance with Defendants' vocational rehabilitation efforts.
On June 2, 2006, the Full Commission suspended Plaintiff's temporary total disability compensation for refusal to cooperate with vocational rehabilitation provided by Defendants, but further ordered Defendants to reinstate temporary total disability compensation to Plaintiff when she demonstrated compliance with vocational rehabilitation. Although Plaintiff appealed to the North Carolina Court of Appeals, she also immediately took affirmative steps to get her vocational rehabilitation services restored.
On June 12, 2006, Plaintiff's current counsel, Ms. Kathleen Sumner, attempted to arrange a vocational rehabilitation appointment for Plaintiff for June 15, 2006 with Mr. Carl Carter, the vocational rehabilitation counselor previously assigned to Plaintiff's claim. On June 13, 2006, Plaintiff's counsel left messages for Mr. Carter reminding him of the appointment and requesting acknowledgement of his availability. On June 14, 2006, Ms. Adele Doering from Southern Rehabilitation called and advised that Mr. Carter was out on medical leave and that the June 15, 2006 vocational rehabilitation appointment would not go forward due to Defendants' request that Plaintiff's rehabilitation file be closed. On June 15, 2006, Plaintiff's counsel called Defendants' counsel to inquire as to the status of vocational rehabilitation for Plaintiff, and also sent Defendants' counsel correspondence stating that Plaintiff was ready, willing, and able to meet with the vocational rehabilitation case manager and was attempting to comply with vocational rehabilitation, but Defendants were refusing to assign a vocational rehabilitation counselor to Plaintiff.
On June 19, 2006, Plaintiff's counsel again called Defendants' counsel and left a voice message stating that Plaintiff was trying to comply with the June 2, 2006 Full Commission Opinion and Award, and again requested assignment of a vocational rehabilitation counselor to Plaintiff. Later the same day, Plaintiff's counsel received a facsimile from Defendants' counsel stating that Defendants were in the process of reinstituting vocational rehabilitation.
On June 21, 2006, Defendants' counsel called Plaintiff's counsel to advise that Ms. Sonja Ellington would be assigned as Plaintiff's vocational rehabilitation counselor. Defendants further advised (according to representations made in Plaintiff's May 1, 2008 Motion to Reinstate Benefits) that they would not voluntarily reinstate Plaintiff's temporary total disability compensation, without a further Order from the Full Commission, regardless of her compliance with vocational rehabilitation. After receiving this call from Defendants' counsel, Plaintiff's counsel called Ms. Ellington to set up an initial vocational rehabilitation conference with Plaintiff at the office of Plaintiff's counsel. Ms. Ellington set up the initial vocational rehabilitation meeting with Plaintiff on June 22, 2006. Plaintiff attended this meeting. When Plaintiff took the affirmative step of meeting with Ms. Ellington for their first vocational conference on June 22, 2006, she demonstrated sufficiently that her refusal to cooperate with vocational rehabilitation services provided by Defendants had ended.
The greater weight of the evidence establishes that Plaintiff participated in vocational rehabilitation conferences and performed the vocational and job search activities assigned by Ms. Ellington from June 22, 2006 through February 22, 2008, when Defendants terminated Plaintiff's vocational rehabilitation services. When asked by the Deputy Commissioner whether Plaintiff was cooperative in the job search process, Ms Ellington stated, "I think she followed up on the leads that I provided her but I feel that in many aspects of the rehab process, she was very dependent on me leading that process." Ms. Ellington was also specifically asked whether Plaintiff was "uncooperative" and replied that she did not use that word, but it was a fair statement to say Plaintiff was not "very assertive" in her work search efforts.
Ms. Ellington also testified that there were barriers to the vocational rehabilitation process, which appears to be a fair statement based upon the evidence. However, the majority herein appears to have unfairly placed all the blame for the barriers to the rehabilitation process on Plaintiff. To the contrary, the evidence establishes that Defendants refused to provide Plaintiff with the resources to which she was entitled under the Workers' Compensation Act and under the prior June 2, 2006 Opinion and Award of the Full Commission to aid her in maximizing her job search efforts. Defendants refused to provide the continuing medical treatment awarded by the Opinion and Award of the Full Commission and refused to reinstate temporary total disability compensation, even after Plaintiff, again and again, over the next 20 months, demonstrated she was complying with vocational rehabilitation services, and even after the North Carolina Court of Appeals on May 15, 2007 affirmed the Full Commission Opinion and Award which ordered Defendants to reinstate temporary total disability compensation to Plaintiff when she demonstrated compliance with vocational rehabilitation.
The barriers Plaintiff may have created in the rehabilitation process that Ms. Ellington mentioned in her testimony, were primarily related to statements Plaintiff made about not having money to buy stamps and newspapers, to send faxes, to pay for long distance calls and to buy gasoline to travel to places such as the library to use the internet. Lack of money was a genuine problem for Plaintiff and there is no evidence that these statements were untruthful. Plaintiff's only income was approximately $1,000.00 per month, which she received in Social Security Disability benefits, and she had a house mortgage to pay. Plaintiff was living largely upon the gratuity of friends and family, and she also received substantial assistance in carrying out the requirements of vocational rehabilitation from her current attorney.
At the first meeting with Ms Ellington, Plaintiff requested transportation reimbursement for vocational rehabilitation meetings and for job searching because she was not financially able to pay for gasoline. In an e-mail dated June 27, 2006 Defendants stated they would not approve transportation. Plaintiff's attorney asked that Plaintiff be authorized to undergo another functional capacity evaluation since Plaintiff's last work restrictions were given in 2003, when Defendants last authorized medical treatment for Plaintiff. This request was not approved, either.
Following this initial meeting, Plaintiff continued to meet with Ms. Ellington regularly to participate in vocational rehabilitation, and she also conducted independent employment searches. Despite Plaintiff's compliance with the vocational services provided, Ms. Ellington was unable to find suitable employment for Plaintiff. The record does not support the majority's findings that Plaintiff sent out only one resume per week without a cover letter and that Plaintiff misrepresented her true physical capacity to Ms. Ellington, specifically with respect to her need for use of a cane.
Defendants began surveillance on Plaintiff in July 2006, approximately a month after they assigned Ms. Ellington to provide vocational rehabilitation services. Despite numerous hours of surveillance in July, August, October, and November 2006, the surveillance videos seldom documented Plaintiff leaving her home, except to go to church several times and to her attorney's office a couple of times. Subsequent surveillance videos did not show Plaintiff performing any activities outside her restrictions. Plaintiff's testimony that she needed her cane in the morning more than the afternoon due to her pain levels is not contradicted by the surveillance videos.
It is well-settled in North Carolina that when a plaintiff's benefits are suspended for refusal to cooperate with medical or rehabilitative efforts, they are "entitled to a resumption of . . . benefits `upon a proper showing by [the employee] that [s]he is willing to cooperate with defendants' rehabilitative efforts.'" Scurlock v. Durham County General Hospital, 136 N.C. App. 144, 148, 523 S.E.2d 439, 441 (1999), citing, Sanhueza v. Liberty Steel Erectors, 122 N.C. App. 603, 608, 471 S.E.2d 92, 95 (1996), disc. review denied, 345 N.C. 347, 483 S.E.2d 177 (1997). In Scurlock, the North Carolina Court of Appeals held that in cases where a plaintiff is seeking reinstatement of workers' compensation benefits, "the relevant legal standard . . . [is] that plaintiff must meet the threshold burden of demonstrating she is now willing to cooperate before she is entitled to have her payments resumed . . . [by] affirmatively establish[ing] her present willingness to cooperate." Scurlock, 136 N.C. App. 144, 151, 523 S.E.2d 439, 443 (1999).
Thus, the proper legal standard to be applied to Plaintiff is the presentation of competent, credible evidence affirmatively establishing her present willingness to cooperate with Defendants' vocational rehabilitation efforts. Id. In the current case, Plaintiff demonstrated by June 22, 2006 she was willing to participate with Defendants' vocational rehabilitation efforts and she immediately took affirmative steps to comply. Therefore, Defendants had an obligation to reinstate temporary total disability compensation to Plaintiff as of June 22, 2006. Defendants' position that they were not going to reinstate compensation without an Order of the Industrial Commission violates the prior Opinion and Award of the Full Commission, which the North Carolina Court of Appeals affirmed, holding that Defendants shall reinstate temporary total disability compensation to Plaintiff when she demonstrates compliance with vocational rehabilitation. Plaintiff demonstrated compliance over and over again during the next 20 months. Instead of reinstating benefits, Defendants attempted to gather evidence to avoid reinstating compensation. If Defendants had reinstated compensation immediately, they could have still filed a Form 24 application to suspend benefits at any time it appeared Plaintiff was refusing to cooperate with vocational rehabilitation.
Evidence of past non-compliance or refusal is not a bar to reinstatement of compensation. The applicable law requires no more than the demonstration of a present willingness to cooperate. Scurlock, 136 N.C. App. 144, 151, 523 S.E.2d 439, 443 (1999). Additionally, neither "genuine efforts," which are too subjective to reliably measure, nor "full compliance" is required by the case law. In Sykes v. Moss Trucking Company, Inc., the Court of Appeals agreed with the language in the Full Commission Opinion and Award requiring that the plaintiff must make "a good faith effort to comply" with vocational rehabilitative efforts, and held that "substantial compliance" with the Opinion and Award was sufficient to reinstate workers' compensation benefits, but then went on to hold that the Plaintiff's conduct constituted neither a "good faith effort to comply" nor "substantial compliance." Sykes v. Moss Trucking Company, Inc., ___ N.C. App. ___, 685 S.E.2d 1, 5, appeal dismissed, review allowed by, 363 N.C. 748, 689 S.E.2d 378 (2009).
Despite some of the statements attributed to Plaintiff by Defendants, the evidence establishes that Plaintiff did substantially, if not wholly, comply with her vocational rehabilitation counselor's requests. She followed up on job leads provided, even though some of the leads were for jobs Plaintiff had no realistic chance of getting, and performed some independent job searches of her own. There is no evidence that Plaintiff's statements, which Defendants interpreted as barriers to the vocational rehabilitation process, interfered with her job search efforts, or that but for the statements at issue, Plaintiff would have obtained suitable employment. Plaintiff's cooperation should be measured by her deeds, not by her statements to the vocational rehabilitation counselor, who was supposed to be her advocate.
In Brooks v. Capstar Corporation, the Court of Appeals held that competent evidence existed to uphold the Full Commission's conclusion that the plaintiff's workers' compensation benefits should be reinstated, although there was contrary evidence tending to show that the plaintiff "could have presented herself more favorably" at interviews with potential employers. Brooks v. Capstar Corporation, 168 N.C. App. 23, 29, 606 S.E.2d 696, 700 (2005). The Brooks Court found relevant the fact that the plaintiff did not do anything to intentionally sabotage her rehabilitative efforts, and that she attended every meeting with her vocational rehabilitation counselor, followed up on all employment leads suggested by the rehabilitation counselor, and was otherwise cooperative with the defendants' vocational rehabilitation efforts. Brooks, 168 N.C. App. 23, 28, 606 S.E.2d 696, 699 (2005). Further, the Brooks Court concluded that there was no evidence that the plaintiff "failed to keep appointments for job interviews or that she had `balky behavior' at her job interviews." Brooks, 168 N.C. App. 23, 29, 606 S.E.2d 696, 700 (2005). Plaintiff, herein, kept all of her appointments with Ms. Ellington, except when she had a scheduled doctor's appointment and a scheduled family trip, and Plaintiff arrived early to all of her appointments. After Plaintiff's appointments with Ms. Ellington were over, she worked on the computer in her attorney's office to follow up on job leads and obtained assistance in mailing and faxing resumes and job applications. Plaintiff also made weekly calls to check on prospective employment through a job services line. There is no evidence that Plaintiff intentionally sabotaged her vocational rehabilitative efforts. Additionally, Plaintiff continued to search for work independently even after Defendants terminated her vocational rehabilitation services, submitting approximately 170 employment applications or resumes after February 22, 2008. I believe the majority misapplied the legal standards set forth in Scurlock and Sanhueza, in that they required Plaintiff to demonstrate "full compliance" and a "genuine effort" with respect to Defendants' vocational rehabilitation efforts, which are higher standards than required by the applicable law. Scurlock, 136 N.C. App. 144, 148, 523 S.E.2d 439, 441 (1999); Sanhueza, 122 N.C. App. 603, 608, 471 S.E.2d 92, 95 (1996), disc. review denied, 345 N.C. 347, 483 S.E.2d 177 (1997).
The greater weight of the evidence demonstrates that Plaintiff cooperated and substantially complied with Defendants' vocational rehabilitation efforts. I therefore respectfully dissent from the majority opinion. I would hold that Plaintiff met her burden of proving that she is entitled to a reinstatement of her workers' compensation benefits based upon her willingness to cooperate and her substantial compliance with Defendants' vocational rehabilitation efforts as of June 22, 2006.