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Clawson v. Phil Cline Trucking1/18/2005
PUBLISHED
Phil Cline Trucking, Inc. ("Cline Trucking") and Key Risk Management Services ("Key Risk") (collectively "defendants") appeal an Opinion and Award by the North Carolina Industrial Commission ("Full Commission") invalidating a settlement agreement between Bobby H. Clawson ("plaintiff") and Key Risk for lack of medical documentation. Plaintiff cross appeals, arguing that the agreement should have been invalidated on grounds of fraud, misrepresentation, and/or undue influence. For the reasons stated herein, we affirm the Full Commission's Opinion and Award in part and remand in part for determination of a remaining issue.
The factual and procedural history of this case is as follows:
On 3 January 1995, plaintiff was employed as a long-distance truck driver for Cline Trucking, earning an average of $550 per week. Plaintiff sustained a compensable injury while making a delivery in Lawrence, Massachusetts, where plaintiff slipped on ice covering an asphalt parking lot and fell, injuring his lower back, tailbone and left foot. Shortly after plaintiff was injured, he and Cline Trucking entered into an Agreement for Compensation for Disability (a "Form 21 Agreement"). Under the terms of the Form 21 Agreement, Cline Trucking agreed to pay plaintiff temporary total disability ("TTD") benefits in the amount of $347.50 per week beginning 13 January 1995, and continuing for as long as necessary. On 17 March 1995, Key Risk Management Services, insurance carrier for Cline Trucking, notified plaintiff that his TTD benefits would be terminated on 1 May 1995, the day that plaintiff was due to return to work on a trial basis. Because plaintiff would be returning to work in a different capacity and at lower wages than he earned at the time of his injury, plaintiff was still entitled to compensation for partial disability.
On 16 July 1995, plaintiff stopped working due to pain from his injury. Key Risk reinstated plaintiff's TTD benefits, and plaintiff underwent physical therapy treatments for several months. In October, plaintiff underwent a functional capacity evaluation to determine if and in what capacity he would be able to work. In November, plaintiff was referred to a pain management clinic, and participated in a four-week inpatient pain management program in March 1996.
In March 1996, Key Risk enlisted CorVel Corporation to provide vocational rehabilitation to assist plaintiff in finding a job . After one year, plaintiff was still unable to obtain employment. CorVel ceased providing vocational rehabilitation services for plaintiff on 24 February 1997. At that time, CorVel vocation rehabilitation expert Lou Drumm sent plaintiff's case file to legal counsel for Key Risk. On 3 March 1997, Key Risk stopped paying plaintiff TTD benefits but failed to file an Application to Terminate or Suspend Payment of Compensation ("Form 24"). Key Risk claims adjuster Janice Sherrell testified that the payments ceased due to a computer error.
On 23 October 1997, plaintiff filed a request for a hearing (a "Form 33 request") with the Full Commission to address the "termination of temporary total benefits and disagreement over degree of disability." Sherrell later testified that she did not realize that plaintiff was no longer receiving TTD benefits until she received notice of the Form 33 request for a hearing. When Sherrell received notice of the request, she "was instructed by superiors to send it on to the defense counsel for representation, and not to issue a back check." Sherrell did not reinstate plaintiff's TTD benefits.
On 1 November 1999, plaintiff and Key Risk filed a Supplemental Agreement as to Payment of Compensation ("a Form 26 Agreeme
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