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Lewis v. Sonoco3/21/2000
Appeal by defendants from an opinion and award entered 13 November 1998 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 January 2000.
Sonoco Products Company, Home Insurance Company, and GAB Robins (collectively "defendants") terminated the temporary total disability workers' compensation benefits of Donna Lewis ("plaintiff") with the filing of North Carolina Industrial Commission ("Industrial Commission") Form 28T on the basis that plaintiff had returned to work. Plaintiff disputed that she had returned to work and requested a hearing on the matter. Both a deputy commissioner and the Full Industrial Commission ("Full Commission") found in her favor. Defendants appeal. We affirm on the basis that defendants never established that plaintiff had returned to work.
The evidence indicates that plaintiff was employed by Sonoco Products Company as a trimmer operator in August 1994. On 5 May 1995, plaintiff suffered an injury to her back when she picked up a can of strap rings while at work for employer. Plaintiff's treating physician indicated in his 12 October 1995 medical notes that plaintiff's back injury required fusion surgery. Defendants requested an independent medical examination by Dr. William Lestini, who, in his 1 January 1996 evaluation, agreed that plaintiff was a reasonable candidate for an instrumented two-level fusion and decompression surgery. Defendants requested a second independent medical evaulation. Dr. Robert W. Elkins examined plaintiff on 2 June 1996, and agreed that surgery was a serious option for plaintiff.
Plaintiff's injury was accepted as compensable per an Industrial Commission Form 21, entitled "Agreement for Compensation for Disability Pursuant to N.C. Gen. Stat. § 97-82" which was approved by the Industrial Commission on 10 January 1996. On 16 July 1996, defendants filed an Industrial Commission Form 28T, entitled "Notice of Termination of Compensation by Reason of Trial Return to Work Pursuant to N.C. Gen. Stat. § 97-18.1(b) and N.C. Gen. Stat. § 97-32.1." On the Form 28T, defendants explained: "Employee has returned to work for other employer and in self-employed capacity without employer's knowledge." With the filing of the Form 28T, plaintiff's benefits were terminated. In response, plaintiff requested a hearing on the matter.
The case was heard before Deputy Commissioner Edward Garner, Jr. on 23 January 1997. After the hearing, Garner recused himself and this case was reassigned to Deputy Commissioner George T. Glenn, II. Deputy Commissioner Glenn reviewed the transcript of the evidence and on 22 September 1997 filed an opinion and award concluding that defendants had failed to show that plaintiff had returned to gainful employment and therefore she was entitled to continue receiving temporary total disability compensation. Defendants appealed and the Full Commission affirmed the opinion and award of Deputy Commissioner Glenn on 13 November 1998. Defendants appeal.
Defendants first argue that "the Full Commission acted under a misapprehension of legal principles when it concluded that plaintiff-appellee was entitled to continue receiving temporary total disability benefits." On appeal, defendants contend that plaintiff's presumption of total disability was successfully rebutted by the demonstration that plaintiff had wage earning capacity, although they made no motion on this basis before the Industrial Commission.
Once a Form 21 agreement is entered into, the employer is deemed to have admitted liability and a presumption of disability attaches in favor of the plaintiff. Kisiah v. W. R. Kisiah Plumbing, 124 N.C. App. 72, 476 S.E.2d 434 (1996), disc. review denied, 345 N.C. 343
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