State News : North Carolina

Mary Frances Powe sustained a compensable injury to her low back and left hip in 2001 for which she received weekly indemnity benefits and vocational rehabilitation provided by Defendants. In 2005, those benefits were suspended due to non-compliance with vocational rehabilitation, a decision which was affirmed by the Full Commission and Court of Appeals (Powe I). Defendants continued to provide vocational rehabilitation through February 22, 2008, when the vocational case manager terminated those services. Although Powe attended vocational meetings, she consistently failed to follow through on the case manager’s suggestions and recommendations.

At a hearing in 2009, the Deputy Commissioner determined that Powe continued to be non-compliant with vocational rehabilitation, but held that since Defendants had stopped offering vocational rehabilitation, Powe was entitled to reinstatement of her indemnity benefits. On appeal, the Full Commission concluded that Powe had not "fully complied" with vocational rehabilitation, but affirmed the Deputy Commissioner’s Order to reinstate Powe’s indemnity benefits as of the date vocational services ceased. Both parties appealed and the Court of Appeals remanded the case to the Full Commission for further findings regarding whether Powe was substantially compliant, and not significantly interfering with, the vocational case manager’s efforts to assist her in returning to suitable employment (Powe II). (See Risk Alert Vol. 13, No. 9, Oct. 2011) The Court also directed the Full Commission to address in more detail why vocational rehabilitation was not being provided.

On remand, the Full Commission found that Powe misrepresented her true physical capacity to the vocational case manager; her attendance at vocational meetings, alone, was insufficient to constitute substantial compliance with vocational rehabilitation; Powe failed to make a genuine effort to locate employment and comply with vocational rehabilitation; she interfered with her case manager’s efforts to assist her and willfully refused vocational rehabilitation through February 22, 2008; the cessation of vocational rehabilitation was not entirely the result of Powe’s failure to comply; Powe would have benefitted from continued vocational rehabilitation which Defendants should have provided; and Powe’s failure to comply with vocational rehabilitation ceased when those services stopped in February 2008. As a result, the Full Commission reinstated Powe’s indemnity benefits as of that date. Both parties appealed.

On April 2, 2013 in Powe v. Centerpoint Human Services (Powe III), the Court of Appeals affirmed in part the Full Commission’s decision and again remanded for further findings of fact on the issue of Powe’s disability. The Court noted that while the Commission is not required to make findings as to each fact presented by the evidence, it must make specific findings as to crucial facts on which the injured worker’s right to compensation depends. Because Powe’s disability affected her right to compensation, the Court held that the Commission was required to make specific findings as to both the existence and extent of her disability.

The Court also held the Full Commission did not err in reinstating Powe’s benefits as of February 22, 2008. It is well established in North Carolina that an appellate court is bound by the Full Commission’s findings of fact so long as there is any credible evidence to support them, even when the record contains evidence to the contrary and even though the Court disagrees with the Commission’s findings. Therefore, although the evidence Powe presented was minimal, at best, it was competent to support the Commission’s finding that vocational rehabilitation was ended prematurely and due, at least in part, to factors other than Powe’s noncompliance.

Risk Handling Hint:

Powe III cautions risk managers to carefully consider ending vocational rehabilitation efforts when the injured worker retains some wage earning capacity and the cessation of services is, even in part, for reasons other than the injured worker’s noncompliance.