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Pollock v. Waspco Corp.2/5/2002
Appeal by employee-plaintiff from the North Carolina Industrial Commission's ("Commission") opinion and award entered 2 October 2000. Heard in the Court of Appeals 28 November 2001.
David Pollock ("plaintiff") appeals from an opinion and award of the Commission which (1) denied plaintiff's request for additional compensation based upon a change of condition, (2) relieved Waspco Corporation (employer "defendant") of its obligation to pay plaintiff based on a previous opinion and award dated 9 May 1997, (3) denied plaintiff's request for penalties pursuant to G.S. § 97-18(g), and (4) required defendant to pay plaintiff limited future medical treatments. We affirm the Commission's opinion and award in part and reverse and remand in part.
I. Facts
Defendant employed plaintiff as a drywall finisher. Plaintiff injured his back on 20 June 1994 while lifting a 50 to 70 pound bucket of drywall compound. Plaintiff's salary averaged $394.68 per week at the time of the injury .
On 27 June 1994, defendant filed Form 19, "Employer's Report of Injury to Employee," with the Commission reporting plaintiff's injury. On 7 December 1994, the Commission approved a Form 21, "Agreement for Compensation for Disability," whereby defendant agreed to pay plaintiff $236.01 per week for 13 weeks of total disability beginning 20 June 1994, subject to verification of wages. This amount was based on an erroneous average weekly wage of $354.00. The form also indicated that plaintiff had returned to work for defendant on 19 September 1994. Plaintiff visited many health care providers and worked for numerous employers after 1994.
Sometime after 22 June 1995, plaintiff filed Form 18, "Notice of Accident to Employer," with the Commission seeking further indemnity benefits. On 17 July 1995, defendant filed Form 61, "Denial of Workers' Compensation Claim," stating that plaintiff had "claimed a change of condition . . . . Employee [plaintiff] claims recurrence of pain while working June 23, 1995. Our denial is based on the fact that there was no change of condition but a new and separate incident . . . ." On 10 August and 6 October 1995, plaintiff filed two Form 33's, "Request that Claim be Assigned for Hearing." Plaintiff asserted that defendant denied his claim and requested compensation benefits from 20 June 1994 to the "current date."
Deputy Commissioner Lawrence B. Shuping, Jr. ("Deputy Shuping") conducted a hearing on 22 July 1996. Deputy Shuping filed an opinion and award on 9 May 1997. The award granted plaintiff compensation for (1) corrected "temporary total disability," (2) adjusted "temporary partial disability," (3) additional "temporary total disability," (4) "permanent partial disability," under G.S. § 97-30, (5) reasonable attorney fees, and (6) medical expenses.
First, the corrected "temporary total disability" required defendant to pay $27.12 per week covering periods 20 June 1994 through 18 September 1994 and 6 October 1994 through 16 October 1994. These amounts were ordered to correct the "underpayment of temporary total disability benefits based on an incorrect average weekly wage . . . ," which resulted from an incorrect average weekly wage reported on Form 21 filed 7 December 1994.
Second, the adjusted "temporary partial disability" award ordered defendant to pay compensation from 20 October 1994 to 26 December 1994 based on "two-thirds of the difference between the $394.68 average weekly wage that plaintiff earned at time of injury and the reduced average weekly wage that he was able to earn during that period . . . ." Deputy Shuping was unable to determine, however, how much plaintiff was earning at that time. He presumed th
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