Clark v Summit Contractors Group, Inc., et al 

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NO. COA14-698 NORTH CAROLINA COURT OF APPEALS Filed: 31 December 2014 CHARLES CLARK, Employee, Plaintiff, v. North Carolina Industrial Commission I.C. No. X79163 SUMMIT CONTRACTORS GROUP, INC., Employer, AMERICAN INTERSTATE INSURANCE COMPANY, Carrier, Defendants. Appeal by plaintiff from order entered 10 March 2014 by the North Carolina Industrial Commission. Heard in the Court of Appeals 3 November 2014. The Bollinger Law Firm, PC, by Bobby L. Bollinger, Jr. and W. Chad Winebarger, for plaintiff-appellant. Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch and Nicholas P. Valaoras, for defendants-appellees. HUNTER, Robert C., Judge. Plaintiff Charles Clark appeals from the order of the North Carolina Industrial Commission denying plaintiff’s claim for compensation based on his failure to timely file a claim in North Carolina under N.C. Gen. Stat. § 97-24(a). After careful review, based on McGhee v. Bank of America Corp., 173 N.C. App. 422, 618 S.E.2d 833 (2005), we reverse the -2Full Commission’s order because plaintiff timely filed his claim under section 97-24(a)(ii) and remand for further proceedings. Background The facts of this case are largely undisputed. is a resident of Florida, and Plaintiff defendant-employer Summit Contractors Group, Inc. (“Summit”) is a Florida company doing business in North Carolina. American Interstate Insurance Company (“AIIC”) is Summit’s carrier on the risk (collectively, Summit and AIIC are referred to as “defendants”). plaintiff was employed by Summit as a In 2009, superintendent to supervise the construction of apartment complexes in Greensboro, North Carolina. While on the job on 5 August 2009, plaintiff injured his shoulder; he reported his injury to defendants the next morning. Plaintiff initially received medical care from a chiropractor in Greensboro, and, sometime thereafter returned to his home in Florida treatment. Illness” he continued to receive medical On 12 August 2009, a “First Report of Injury or was Department where filed of Compensation. on behalf Financial Plaintiff of plaintiff Services received with Division indemnity the of benefits Florida Workers’ for his he was injury under Florida law until 25 August 2011. On 20 January 2012, more than two years after -3injured, plaintiff filed a Form 18 “Notice of Accident to Employer” with the North Carolina Industrial Commission for the 5 August 2009 injury. “Denial of Workers’ Defendants consequently filed a Form 61 Compensation Claim” on 1 March 2012, asserting that the North Carolina Industrial Commission did not have jurisdiction over the matter because plaintiff did not file his claim with the Commission within two years from the date of the alleged incident pursuant to N.C. Gen. Stat. § 97-24. The matter came on for hearing before the Full Commission on 9 December 2013. The Full Commission entered an order denying plaintiff’s claim for compensation based on his failure to timely file a claim in North Carolina. Specifically, the Full Commission concluded that because plaintiff failed to file a claim within two years after “the last payment of compensation ‘under this Article,’ i.e., Act[,]” the Compensation jurisdiction over his claim. the North Industrial Carolina Workers’ Commission lacked Plaintiff timely appealed. Standard of Review “Appellate Commission is review of limited to a decision reviewing by whether the any Industrial competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of -4law.” Heatherly v. The Hollingsworth Co., 211 N.C. App. 282, 285, 712 S.E.2d 345, 348-49 omitted). novo.” (2011) (internal quotation marks “The Commission's conclusions of law are reviewed de Id. at 285, 712 S.E.2d at 349. Analysis Appellant’s sole argument on appeal is that the Full Commission erred by concluding that plaintiff’s claim was not timely filed. We agree. “Dismissal of a claim is proper where there is an absence of evidence that the Industrial Commission acquired jurisdiction by the timely filing of a claim or by the submission of a voluntary settlement agreement[.]” Reinhardt v. Women's Pavilion, Inc., 102 N.C. App. 83, 86-87, 401 S.E.2d 138, 140 (1991). “[T]he timely filing of a claim for compensation is a condition precedent to the right to receive compensation and failure to file timely Industrial Commission.” is a jurisdictional bar for the Id. at 86, 401 S.E.2d at 140. N.C. Gen. Stat. § 97-24 (2013) establishes the timeframe within which a claim for compensation must be filed with the North Carolina Industrial Commission. Section 97-24(a) provides that [t]he right to compensation under [North Carolina’s Workers’ Compensation Act] shall -5be forever barred unless (i) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission or the employee is paid compensation as provided under this Article within two years after the accident or (ii) a claim or memorandum of agreement as provided in G.S. 97-82 is filed with the Commission within two years after the last payment of medical compensation when no other compensation has been paid and when the employer's liability has not otherwise been established under this Article. N.C. Gen. Stat. § 97-24(a). On appeal, plaintiff does not allege that he filed his claim in North Carolina within two years after the accident, as set out in subsection (i); instead, he contends that his claim was timely filed under subsection (ii) because he filed the North Carolina claim within two years after defendants last provided “medical compensation” in Florida. Under section 97-24(a)(ii), a plaintiff must show that: (1) his claim was filed within two years after the last payment of “medical compensation,” (2) no “other compensation” was paid, and (3) the employer’s established under the Act. liability Id. has not otherwise been Here, the record clearly shows that defendant’s liability had not otherwise been established under the Act because defendants had not been held liable for -6plaintiff’s compensation injuries pursuant claim; to defendants’ a North liability Carolina had workers’ only established under Florida’s workers’ compensation laws. the third element is satisfied. been Thus, Accordingly, whether plaintiff can satisfy the remaining two elements of N.C. Gen. Stat. § 9724(a)(ii) “medical turns on this compensation” contemplated within Court’s and the “other North understanding of compensation” Carolina as Workers’ the terms they are Compensation Act. A. “Medical Compensation” While it is clear that, pursuant to plaintiff’s Florida workers’ compensation claim, defendants made payments for his medical treatment in Florida, the issue is whether payments constituted “medical compensation” under the Act. N.C. Gen. Stat. § 97-2(19) states that: [t]he term “medical compensation” means medical, surgical, hospital, nursing, and rehabilitative services, including, but not limited to, attendant care services prescribed by a health care provider authorized by the employer or subsequently by the Commission, vocational rehabilitation, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability; and any original those -7artificial members as may reasonably be necessary at the end of the healing period and the replacement of such artificial members when reasonably necessitated by ordinary use or medical circumstances. Defendants payments were contend made ‘in that the “[n]one judgment of plaintiff’s of’ the North medical Carolina Industrial Commission or in a matter before the North Carolina Industrial Commission.” Thus, according to defendants, plaintiff did not receive any payments of “medical compensation” and subsection (ii) is inapplicable. In contrast, plaintiff contends that defendants’ last payment of “medical compensation” was on 14 November 2012, eleven months after he filed his Form 18; therefore, he satisfied section 97-24(a)(ii) because he filed his North Carolina claim within two years after that last payment. There is no basis for defendants’ contention that “medical compensation” only includes payments made in a matter pending before the North Carolina Industrial Commission. In contrast, our caselaw establishes that an employee’s claim is timely filed under section 97-24(a)(ii) if it is filed within two years after the defendant’s last payment of “medical compensation” to the plaintiff regardless of where the medical treatment occurs and regardless of whether that payment was ordered as a result of a -8pending workers’ compensation action in North Carolina. See McGhee v. Bank of America Corp., 173 N.C. App. 422, 427-27, 618 S.E.2d 833, 836 (2005). In McGhee, the plaintiff-employee lived and worked in Richmond, Virginia, and the employer’s home office was in North Carolina. Id. at 424, 618 S.E.2d at 835. While returning from a business trip, the plaintiff got into a car accident in Wilmington, North Carolina on 1 August 1998. Id. The plaintiff did not file a Form 18 with the North Carolina Industrial Commission until 9 August 2001, more than two years after the accident. Id. at 426, 618 S.E.2d at 836. However, the Full Commission concluded that plaintiff had timely filed a claim within two years after the last payment of medical compensation pursuant to N.C. Gen. Stat. § 97-24(a)(ii) because the employer paid medical providers in Virginia in August 2000 to treat the plaintiff’s result of the car accident. On appeal, this medical condition that arose as a Id. Court agreed, concluding that the employer’s payments to medical providers in Virginia constituted “medical compensation” under section 97-2(19). Id. Specifically, this Court noted that “[n]othing in the definition [of ‘medical compensation’] limits the geographical locale of the medical treatment to North Carolina[.]” Id. Furthermore, -9at the time those payments were made, the defendants “had paid no other compensation pursuant to the Workers’ Compensation Act, nor had their liability been otherwise established.” Id. There is no indication that the defendants’ payments to the Virginia medical providers were ordered by the Industrial Commission; in fact, the plaintiff’s Form 18 “Notice of Accident” had not been filed with the Industrial Commission at the time that “[the] defendants last paid medical compensation for [the] plaintiff’s compensable injuries[.]” Id. Consequently, defendants’ contention that “medical compensation” only includes payments for medical treatment “made pursuant to the judgment or umbrella of the North Carolina Industrial Commission” is without merit. Here, as in McGhee, defendants admitted, and the Full Commission found as fact, that they paid plaintiff’s out-ofstate medical expenses on 14 November 2012 plaintiff’s Florida workers’ compensation claim, plaintiff filed his Form 18 in North Carolina. pursuant to months after Furthermore, as in McGhee, those payments had not been ordered as a result of a pending workers’ Therefore, compensation defendants’ payment claim of in medical North Carolina. expenses in 14 November 2012 constituted “medical compensation” as set out in section 97-2(19). Since plaintiff filed his Form 18 before this -10last payment of “medical compensation,” he met the first element under section 97-24(a)(ii). B. “Other Compensation” The next issue is whether the benefits plaintiff received under Florida law constitute “other compensation” for purposes of section 97-24(a)(ii). If they do, plaintiff would be unable to satisfy the second element under section 97-24(a)(ii). “‘Compensation’ under the Workers’ Compensation Act means ‘the money allowance payable to an employee or to his dependents as provided for in this Article, and includes funeral benefits provided herein.’” McGhee, 173 N.C. App. at 427, 618 S.E.2d at 836 (citing N.C. Gen. Stat. § 97–2(11) (2003)) (emphasis added). In McGhee, this Court interpreted the term “other compensation” and determined that any benefits “paid . . . in lieu of workers’ compensation benefits and not made payable . . . pursuant to [North Carolina’s] Workers’ Compensation Act” did not qualify as “other compensation,” id., and we are bound by that definition, In re Civil (1989). Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 In McGhee, 173 N.C. App. At 427, 618 S.E.2d at 836, the plaintiff received employer. On appeal, the defendants argued that the short-term disability benefits short-term constituted disability “other benefits from compensation,” the making -11section 97-24(a)(ii) inapplicable. Id. disagreed, the benefits concluding were “paid that to because [the] However, this Court short-term plaintiff in lieu disability of workers’ compensation benefits and not made payable to [the] plaintiff pursuant to the Workers’ Compensation Act[,]” they did not quality as “other compensation” under section 97-24(a)(ii). Id. at 427, 618 S.E.2d at 836-37. Based on McGhee, since the workers’ compensation benefits plaintiff received in Florida were also “not made payable to [him] pursuant to [North Carolina’s] Workers’ Compensation Act,” id., they do not qualify as “compensation,” as defined in section 97-2(11) (2013), or “other compensation,” as defined in McGhee, for purposes of N.C. Gen. Stat. Accordingly, plaintiff has also satisfied § the 97-24(a)(ii). second element under section 97-24(a)(ii). Conclusion In sum, plaintiff timely filed his Form 18 because: (1) it was filed before defendants’ last compensation” in Florida; (2) based on payment of “medical McGhee, which we are bound by, see In re Civil Penalty, 342 N.C. at 384, 379 S.E.2d at 37, plaintiff has been paid no “other compensation” since the Florida workers’ compensation benefits do not qualify as “other -12compensation”; and (3) defendant’s liability has not otherwise been established under North Carolina’s Workers’ Compensation Act. Therefore, we reverse the Full Commission’s order denying plaintiff’s claim for compensation and remand proceedings. REVERSED. Chief Judge McGEE and Judge BELL concur. for further

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