IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA16-69

                              Filed: 6 December 2016

From the North Carolina Industrial Commission, I.C. No. W28180

KELLY F. LEWIS, Employee, Plaintiff,

             v.

TRANSIT MANAGEMENT OF CHARLOTTE, Employer, SELF-INSURED
(COMPENSATION CLAIMS SOLUTIONS, Third-Party Administrator), Defendant.


      Appeals by plaintiff and defendant from Opinion and Award entered

20 November 2015 by the North Carolina Industrial Commission. Heard in the Court

of Appeals 9 June 2016.


      The Sumwalt Law Firm, by Vernon Sumwalt, Mark T. Sumwalt, and Lauren
      H. Walker, for the plaintiff-appellant.

      The Smith Law Firm, by John Brem Smith and Elizabeth N. Binion, for the
      defendant-appellant.


      McCULLOUGH, Judge.


      Kelly Lewis (“plaintiff”), an employee of Transit Management of Charlotte

(“defendant”), appeals from the opinion and award of the North Carolina Industrial

Commission (the “Commission”) denying his claim for additional medical

compensation. Defendant also appeals from the Commission’s opinion and award.

For the following reasons, we affirm.

                                 I.      Background
                       LEWIS V. TRANSIT MGMT. OF CHARLOTTE

                                   Opinion of the Court



      Plaintiff, a bus operator for defendant, suffered an admittedly compensable

injury on 15 June 2009 when an SUV rear-ended the bus plaintiff was driving.

Defendant completed a Form 19 dated 16 June 2009 reporting plaintiff’s injury to the

Commission.      Later that year, a physician completed a Form 25R dated

17 November 2009 indicating plaintiff was at maximum medical improvement and

suffered a 0% impairment to his back. A Form 28 dated 2 December 2009 reported

that plaintiff had returned to work as of that date and a Form 28B, completed at the

same time as the Form 28, indicated that plaintiff had received a total of $22,631.71

from defendant and administrator Compensation Claims Solutions as a result of his

injury – $13,875.84 in temporary total disability compensation and $8,755.87 in

medical compensation.

      Years later, plaintiff completed a Form 18 notice of accident to employer and

claim of employee dated 28 April 2014 related to the 15 June 2009 accident.

Following defendant’s denial of plaintiff’s claim based on the expiration of the statute

of limitations in a Form 61 dated 2 May 2014, plaintiff filed a Form 33 request that

his claim be assigned for hearing dated 5 May 2014. In the Form 33, plaintiff

indicated his claim was for additional temporary total disability compensation owed

due to defendant’s underpayment because of a miscalculation of plaintiff’s average

weekly wage, and for compensation for additional medical treatment of injuries.

Defendant responded by completing a Form 33R dated 19 May 2014, in which



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defendant elaborated on its assertion that plaintiff’s claim was barred by the statute

of limitations as follows: “The Form 28B was filed on December 2, 2009 showing the

last check being forwarded December 2, 2009. Accordingly, Plaintiff’s claim is barred

by Section 97-47 and Section 97-25.1.”

      Prior to the case coming on for hearing before a deputy commissioner, the

parties entered into a pre-trial agreement in which they stipulated to the above facts.

The parties also stipulated to the following:

             9.     . . . Although the Form 28B shows that the last
             medical compensation was paid on November 24, 2009, the
             claims payment history shows a payment by Defendant for
             “medical expense” on April 22, 2010, to “Electrostim Med
             Services” for $253.06 in Plaintiff’s workers’ compensation
             claim.

             10.    Plaintiff settled his third-party action and executed
             a release on April 14, 2010.

             11.    Defendant agreed to accept $11,500.00 in full
             satisfaction of its workers’ compensation subrogation lien
             under 

 and received a check in that
             amount dated April 14, 2010.

             ....

             13.    On Apri1 30, 2014, Plaintiff, through counsel, asked
             for a claims payment history and a payroll history from
             Defendant covering the 52 weeks before Plaintiff’s injury
             on June 15, 2009. Plaintiff received the claims payment
             history from Defendant on April 30, 2014.

             14.    As also shown on the Form 28B, Defendant’s claims
             payment history indicates payments [of] temporary total
             disability at a weekly compensation rate of $578.16 for a


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            period of twenty-four and 3/10 (24.3) weeks for a total of
            $13,875.84. The average weekly wage corresponding to
            this compensation rate is $867.24. As shown by the Form
            28B and the claims payment history, Defendant has not
            paid any temporary partial or permanent partial disability
            compensation to Plaintiff since he returned to his job at
            Defendant on December 2, 2009.

            15.   On 2 May 2014, Plaintiff received the wage
            information covering the 52 weeks before his injury on
            June 15, 2009, from Defendant.

            16.    Plaintiff's wage information with Defendant-
            Employer shows that Plaintiff’s average weekly wage was
            $906.83, resulting in a compensation rate of $607.58
            during the 52 weeks before his injury in this case. These
            figures indicate that Defendant has underpaid Plaintiff by
            $887.92 during the 24.3 weeks represented on the Form
            28B.

      The matter was submitted for consideration by a deputy commissioner on

stipulated facts and exhibits after the parties agreed to waive a hearing scheduled

for 28 October 2014. Pursuant to the pre-trial agreement, the deputy commissioner

considered only “the procedural issue of whether [p]laintiff [was] time-barred from

seeking additional benefits under 

 or § 97-47 or both.”

Deputy Commissioner Wanda Blanche Taylor filed her opinion and award in favor of

plaintiff on 8 April 2015.   Defendant gave notice of appeal from the deputy

commissioner’s opinion and award to the Full Commission on 13 April 2015 and then

completed a Form 44 application for review dated 21 April 2015.

      The matter was heard by the Full Commission on 11 August 2015 and the

Commission filed its opinion and award modifying the deputy commissioner’s opinion

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and award on 20 November 2015. The Commission concluded that “[p]laintiff is

entitled to payment by defendant of $714.90 to correct the underpayment of the

amount owed for temporary total disability benefits during the period from

16 June 2009 through 1 December 2009[,]” “[a]s the last payment of compensation

occurred on 22 April 2010, plaintiff’s right to additional medical treatment

terminated two years later, in 2012, and his request for additional medical treatment

filed 5 May 2014 is barred by the two-year statute of limitations contained in 

[,]” and “[t]here has not been a ‘final award’ in this case that would

trigger the limitations period contained in 

.” The Commission

also concluded that case law relied upon by defendant and the doctrines of estoppel

and laches did not apply in the present case. Based on its findings and conclusions,

the Commission issued the following award:

             1.     Defendant shall pay plaintiff $714.90 to correct the
             underpayment of the amount owed for temporary total
             disability benefits during the period from 16 June 2009
             through 1 December 2009.

             2.    Plaintiff’s claim for additional medical treatment is
             time-barred under 

.

      Plaintiff gave notice of appeal from the Commission’s opinion and award on

2 December 2015. Defendant gave notice of appeal from the Commission’s opinion

and award on 8 December 2015, after defendant issued a check to plaintiff for $714.90

dated 7 December 2015. Defendant’s records of the $714.90 payment list the payment



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                                 Opinion of the Court



type as “Indemnity TTD[,]” the claim status as “Open[,]” and indicate the check was

“Per Full Commission O&A 11-20-15[.]”

                                 II.    Discussion

      Review of an opinion and award of the Commission “is limited to consideration

of whether competent evidence supports the Commission’s findings of fact and

whether the findings support the Commission’s conclusions of law. This ‘[C]ourt’s

duty goes no further than to determine whether the record contains any evidence

tending to support the finding.’ ” Richardson v. Maxim Healthcare/Allegis Grp., 

, 660, 

, 584 (2008) (citation omitted) (quoting Anderson v.

Lincoln Constr. Co., 

, 434, 

, 274 (1965)).               The

Commission’s conclusions of law are reviewed de novo.        Busque v. Mid-America

Apartment Communities, 

, 706, 

, 699 (2011).

                                 Plaintiff’s Appeal

      As clearly stated in plaintiff’s brief, plaintiff “appeals the Full Commission’s

determination that the limitations period for more medical treatment expired before

5 May 2014, when he applied for that treatment.”            The period for medical

compensation is limited by 

, which provides as follows:

             The right to medical compensation shall terminate two
             years after the employer’s last payment of medical or
             indemnity compensation unless, prior to the expiration of
             this period, either: (i) the employee files with the
             Commission an application for additional medical
             compensation which is thereafter approved by the


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                                 Opinion of the Court



            Commission, or (ii) the Commission on its own motion
            orders additional medical compensation.          If the
            Commission determines that there is a substantial risk of
            the necessity of future medical compensation, the
            Commission shall provide by order for payment of future
            necessary medical compensation.

 (2015). Plaintiff now contends the Commission erred in

concluding that the two-year limitations period in 

 had

expired and that plaintiff was barred from seeking additional medical compensation.

This issue presents a question of law which we review de novo.

      Based on the stipulated facts, the Commission issued the following

unchallenged findings:

            1.    The Form       28B filed by      defendant on
            2 December 2009 reflects that temporary total disability
            compensation was paid from 16 June 2009 through
            1 December 2009, that the last compensation check was
            forwarded on 2 December 2009, and that this check
            represented final payment.

            2.     The Form 28B further reflects that the last medical
            compensation was paid on 24 November 2009, and that this
            payment represented final payment.           However, as
            stipulated by the parties, defendant’s claims payment
            history reflects that the actual last payment by defendant
            of medical compensation was made on 22 April 2010.

            3.     Because defendant paid plaintiff temporary total
            disability benefits based on an incorrect average weekly
            wage, plaintiff has been underpaid a total of $714.90 in
            temporary total disability benefits.

Plaintiff acknowledges the above findings of fact, and also that his request for

additional medical compensation was made in the Form 33 request for a hearing that

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was filed on 5 May 2014. Nevertheless, plaintiff contends that his application for

additional medical compensation was not barred by the two-year limitations period

because the “last” payment of medical or indemnity compensation occurred on

7 December 2015, almost a year and a half after plaintiff’s application, when

defendant paid plaintiff what it owed due to the underpayment of temporary total

disability compensation.    In support of his contention, plaintiff asserts various

arguments. Yet, just as the Commission identified, the critical inquiry in this case is

what constitutes the “last payment” under 

.               The

Commission relied on Busque, 

, 

, and Harrison v.

Gemma Power Systems, LLC, 

, 

, 

(July 2014) (unpub.). We, too, now look to those decisions for guidance.

      In Busque, the plaintiff suffered a compensable injury on 18 January 2003 and

was paid medical expenses for treatment received through 21 April 2013. Busque,

209 N.C. at 696-97, 

. The last check was issued to the plaintiff on

31 July 2003. 

, 

. Approximately four years later, on

18 July 2007, the plaintiff filed a Form 33 in which she sought additional medical

compensation. 

, 

. On appeal, this Court addressed

whether the plaintiff was barred from further recovery by the limitations period in

 and, based on a “straight-forward” reading of the statute,




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held that the plaintiff was barred. 

, 

. This Court

explained as follows:

             Applying the statute to the present case, the “last payment
             of medical or indemnity compensation” for the
             18 January 2003 fall was a check issued to [the plaintiff]
             dated 31 July 2003. [The plaintiff’s] application for
             additional medical compensation was not filed until
             18 July 2007-more than two years beyond 31 July 2003.
             Thus, [the plaintiff’s] right to medical compensation for
             that injury has terminated.

, 

. This Court further addressed the plaintiff’s argument

that “the term ‘last payment of . . . compensation’ can only refer to a ‘final award[,]’ ”

and disagreed with the plaintiff’s application of the statute, finding there was no

continuing denial of compensability in the case as the plaintiff filed her only request

for coverage on 18 July 2007, more than two years after the 31 July 2003 check. 

      In Harrison, the plaintiff suffered a compensable injury on 2 March 2001 and

received payments for medical treatment until 18 May 2009, the date of the last

recorded payment. Harrison, 

, at *1-3. On 25 January 2012, the

plaintiff filed a Form 33 “alleging that [the d]efendant ‘failed to authorize [the]

plaintiff's request for further treatment . . .’ and raised the issue of [the p]laintiff’s

right to indemnity benefits as a result of the 2 March 2001 injury.” Harrison, 

, at *3. Among the issues on appeal, this Court addressed whether the

Commission erred in denying the plaintiff additional medical compensation benefits

for medical expenses incurred after 18 May 2009. Harrison, 

, at *4.


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Relying on Busque, this Court again applied a straight-forward reading of the statute

and held that “because the last payment of medical compensation made by [the

d]efendant was more than two years prior to [the p]laintiff's current Form 33 filing,

. . . [the p]laintiff’s right to additional medical compensation [was] time-barred

pursuant to 

–25.1.” 

 Yet, in so holding, this Court addressed

the plaintiff’s argument that “ ‘the last payment of compensation in the claim has not

yet taken place’ because ‘[the p]laintiff is still owed payment for temporary total

disability and/or permanent partial impairment.’ ” 

 This Court explained that,

“[s]tated differently, [the p]laintiff argues that the two-year statute of limitations

period found in 

 has not yet begun and will not begin until

[the p]laintiff receives a payment from [the d]efendant for indemnity benefits.” 

This Court rejected that argument as misguided for the following reasons:

             First, [the p]laintiff’s argument ignores the plain language
             of the statute. “The right to medical compensation shall
             terminate two years after the employer’s last payment of
             medical or indemnity compensation . . . .” 

–25.1 (emphasis added). In context, the word “last”
             does not refer to a hypothetical future payment that [the
             p]laintiff may be entitled to receive after presenting a claim
             to the Industrial Commission. On its face, the “last”
             payment refers to the most recent payment of medical or
             indemnity benefits that has actually been paid. Second,
             [the p]laintiff’s argument assumes the certainty of a future
             indemnity payment before the right to such payment has
             been decided by the Industrial Commission.              Third,
             accepting Plaintiff’s interpretation of the statute would
             allow claimants seeking additional medical compensation
             to obviate the statute of limitations in any case by asserting


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             a valid claim for indemnity benefits alongside a claim for
             additional medical compensation. Such an expansive
             interpretation ignores the clear intent of our legislature to
             limit claims for additional medical compensation to a
             specified time period.

 Although the Harrison decision is unpublished, we find the Court’s analysis

persuasive and now adopt it as our own.

      As the Commission found in the present case based on the stipulations of the

parties, the last payment of temporary total disability compensation was paid on

2 December 2009 and the last payment of medical compensation was paid on

22 April 2010. Applying a straight-forward reading of 

, the

two-year limitations period for additional medical compensation expired two years

after 22 April 2010 and years before plaintiff filed his request for additional

compensation for medical treatment in the Form 33 on 5 May 2014.

      Plaintiff argues that the present case is distinguishable from both Busque and

Harrison because defendant’s payment on 7 December 2015 of the $714.90 that was

owed to plaintiff due to the underpayment of temporary total disability benefits was

an indemnity payment. Thus, plaintiff asserts the last payment for purposes of 

 was on 7 December 2015 and the two-year limitations period did

not begin to run until 7 December 2015, more than a year and a half after his request

for additional medical compensation.              Plaintiff further contends that the

Commission’s order is inconsistent because it orders the corrective payment by



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defendant but holds plaintiff’s claim for additional medical treatment is time-barred.

We are not convinced by plaintiff’s arguments.

      While the 7 December 2015 payment may be for the underpayment of

indemnity compensation, that corrective payment had not been made at the time of

the Commission’s decision and, therefore, could not have been the “last payment”

under a straight-forward application of 

. At the time the

Commission reviewed the evidence, made its findings, and issued its conclusions, the

last actual payment of medical or indemnity compensation was paid on 22 April 2010.

Thus, the evidence supports the Commission’s findings and the findings support the

Commission’s conclusions, which correctly apply 

.

      Although we hold the Commission did not err in denying plaintiff’s request for

additional medical compensation in its 20 November 2015 opinion and award, the

question remains whether plaintiff could seek additional medical benefits following

defendant’s payment of the amount of temporary total disability benefits owed to

plaintiff due to the miscalculation in the average weekly wage on 7 December 2015.

Stated differently, the issue is whether a payment to correct an earlier error in

medical or indemnity payments to make an employee whole restarts the limitations

period in 

. Defendant argues such a corrective payment is

not the type of medical or indemnity payment that would restart the statute of




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                                   Opinion of the Court



limitations because “[t]he check was not for any new compensation, medical or

indemnity, but rather to correct the underpayment that occurred four years ago.”

      When the corrective payment is considered in light of the purpose of the

limitations period explained in Harrison, plaintiff’s argument seems reasonable-for

as the Commission noted,

             applying plaintiff’s interpretation of “last payment” would
             thwart the legislatures’ intent in enacting 

 to limit claims for medical compensation to a
             specific time period recognized by the Court in Harrison, as
             well as the general aim of the Workers’ Compensation Act
             to provide not only a swift and certain remedy to injured
             workers, but also to ensure a limited and determinate
             liability for employers.

We further agree with the Commission that plaintiff’s interpretation could result in

increased litigation in cases where honest miscalculations resulting in indemnity

benefits could lead to a reset of the two-year limitations period and additional liability

in cases where the last medical or indemnity payment was otherwise made years

earlier. Yet, there is no such distinction between medical and indemnity payments

in the normal course of a workers’ compensation case and subsequent corrective

payments in the statute. Since we need not decide the issue in the present case

because the corrective payment had not yet been paid to restart the limitations

period, we simply note that 

 is not entirely clear as to how

such corrective payments are to be treated and leave the matter for the legislature to

address.


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                                 Defendant’s Appeal

      In defendant’s appeal, defendant contends the Commission “erred in holding

that [there is] a remedy at law under 

 and not applying the

equitable doctrine of laches to bar plaintiff’s claim.” In raising this issue, defendant

challenges the Commission’s order requiring the corrective payment of temporary

total disability compensation owed to plaintiff due to the miscalculation of plaintiff’s

average weekly wage. This issue, like the first issue, presents a question of law which

we review de novo.

      

 provides that “on the grounds of a change in condition,

the Industrial Commission may review any award, and on such review may make an

award ending, diminishing, or increasing the compensation previously awarded . . . .”

 (2015). Yet, similar to 

, 

 restricts the period of time during which the Commission’s review and

modification of an award may take place. It provides,

             [n]o such review shall affect such award as regards any
             moneys paid but no such review shall be made after two
             years from the date of the last payment of compensation
             pursuant to an award under this Article, except that in
             cases in which only medical or other treatment bills are
             paid, no such review shall be made after 12 months from
             the date of the last payment of bills for medical or other
             treatment, paid pursuant to this Article.

 (2015). Also limiting the application of 

-

47, “[o]ur case law defines a ‘change in condition’ under [N.C. Gen. Stat.] § 97-47 as


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                                   Opinion of the Court



a condition occurring after a final award of compensation that is ‘different from those

existent when the award was made’ and results in a substantial change in the

physical capacity to earn wages.” Pomeroy v. Tanner Masonry, 

,

179, 

, 215 (2002) (internal citations and alterations in original

omitted). Thus, 

 is not applicable when there has been no final

award. See Biddix v. Rex Mills, Inc., 

, 666, 

, 782 (1953).

      In the present case, the Commission relied on Biddix to reach the conclusion

that “[t]here has not been a ‘final award’ in this case that would trigger the limitations

period contained in 

.” The Commission further concluded that

“the equitable doctrines of estoppel and laches do not apply to bar plaintiff’s claim in

the instant matter as defendant has a remedy at law under 

-

25.1 and 97-47, namely, the ability to plead the affirmative defense of lapse of the

limitations periods set forth in these statutes.”

      Defendant does not challenge the Commission’s conclusion that the limitations

period in 

 had not been triggered, and even concedes that there

has not been a final award. Defendant instead claims the Commission’s conclusions

are inconsistent because the remedy at law under 

 would be

that the limitations period had run from a final award. Defendant asserts there can

be no remedy at law without a final award and contends equity should prevent

plaintiff’s claim from remaining open.       Defendant relies on Miller v. Carolinas



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Medical Center-Northeast, 

, 

 (2014) to support his

argument that waiting 4 years to challenge the average weekly wage is too long and

not within a “reasonable time.” We are not persuaded.

      While equitable doctrines are available in workers’ compensation cases, they

may not be applied where there is a remedy at law.             Daugherty v. Cherry

Hospital/N.C. Dept. of Health and Human Services, 

, 101-103, 

, 919-20 (2009). Upon review, it is clear that both 

-

25.1 and 97-47 supply remedies at law to bar claims where there has been a delay in

the case. Simply because the limitations period has not run in the present case to

bar plaintiff’s recovery of the underpaid amount of disability compensation owed to

him does not mean the doctrine of laches is available as an alternative. If that were

the case, any time a limitations period has not expired, the doctrine of laches may be

asserted as an alternative bar to recovery.         Furthermore, as the Commission

concluded, the Miller case, relied on by defendant for what is a “reasonable time,” is

distinguishable from the present case. In Miller, there was a Form 21 agreement at

issue in which the average weekly wage was recorded and the Court, based on

principles of contract law, held that “a party to a Form 21 agreement which contains

a verification provision but no provision regarding the time by which verification

must be sought cannot assert a right to seek verification once a ‘reasonable time’ has

passed.” 233 N.C. App. at 349, 756 S.E.2d at 59. In the present case, there was no



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agreement and, therefore, no requirement that plaintiff seek verification of the

average weekly wage within a reasonable time, as required in Miller.

      Where 

 and 97-47 provide remedies at law for the

delay in seeking benefits, the Commission did not err in rejecting the application of

the doctrine of laches in this case.

                                   III.   Conclusion

      For the reasons discussed, we affirm the opinion and award of the Commission.

      AFFIRMED.

      Judges STEPHENS and ZACHARY concur.




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