Genna v. Duke University Medical Center
I.C. NO. 890102.
| N.C. Indus. Comm. | Apr 28, 2011Background
- On Jan. 11, 2008, plaintiff-employee was rear-ended in a motor-vehicle accident while employed by defendant, an employer who is self-insured, establishing a Workers' Compensation claim under North Carolina law.
- The Employer admitted compensability and liability for the January 11, 2008 accident via Form 60.
- Plaintiff’s average weekly wage was $851.14, yielding a compensation rate of $567.46; TTD began after a seven-day waiting period and plaintiff returned to work on January 24, 2008.
- Plaintiff stopped working around March 3, 2008; defendant reinstated TTD under Form 62, and plaintiff has remained out of work with ongoing TTD.
- The industrial commission ordered vocational rehabilitation; plaintiff’s cooperation has been limited and noncompliant, with acting careers developing as a focus during the relevant period.
- The record contains extensive medical evaluations (ophthalmology, neurology, neuro-ophthalmology, neuropsychiatry) with no objective brain injury; double vision is found to be legitimate but exaggerated, and overall ability to work is increasingly supported by physicians.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is plaintiff still disabled from the January 11, 2008 accident? | Plaintiff remains disabled due to lingering symptoms and vision problems. | Medical evidence shows capability to return to work; ongoing disability is not supported. | Plaintiff is no longer disabled; capable of returning to prior work. |
| Did plaintiff properly comply with vocational rehabilitation ordered by the Commission? | Plaintiff attempted to comply but faced barriers and limited cooperation. | Plaintiff willfully failed to cooperate, refused suitable employment, and avoided training. | Plaintiff’s benefits suspended for noncompliance with vocational rehabilitation. |
| What injuries and symptoms are attributable to the accident? | Plaintiff’s diplopia and related symptoms are due to the accident. | Objective tests fail to show significant CNS injury; diplopia is small and often non-measurable. | No major cranial nerve or brain injury; diplopia exists but is minor and not evidence of significant impairment. |
| Should defendant receive a credit or offset related to overpayments due to noncompliance? | N/A (not beneficial to defendant) | Credit for TTD payments during noncompliance is appropriate. | A credit for total disability payments during noncompliance is allowed; suspend future TTD. |
| Should plaintiff face sanctions for failing to disclose wages on Form 90? | N/A | Sanctions are warranted for willful nondisclosure. | Sanctions contemplated; court may impose penalties under Rule 802. |
Key Cases Cited
- Watson v. Winston-Salem Transit Authority, 92 N.C. App. 473, 374 S.E.2d 483 (N.C. Ct. App. 1988) (disability duration and eligibility considerations in workers’ compensation)
- Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 542 S.E.2d 277 (N.C. Ct. App. 2001) (standards for awarding/continuing total disability benefits)
- Collins v. Speedway MotorSports Corp., 165 N.C. App. 113, 598 S.E.2d 185 (N.C. Ct. App. 2004) (vocational rehabilitation as part of medical compensation)
- Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577 (N.C. Ct. App. 2000) (definition of suitable employment balancing capabilities and vocational skills)
- Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (N.C. 2003) (standards for medical causation and impairment in workers’ compensation)