             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-893

                              Filed: 5 December 2017

North Carolina Industrial Commission, I.C. No. 764008

APRIL HAWKINS, Employee, Plaintiff,

            v.

WILKES REGIONAL MEDICAL CENTER, Employer, and KEY RISK INSURANCE
COMPANY, Carrier, Defendants.


      Appeal by plaintiff from opinion and award entered on or about 31 May 2016

by the Full Commission. Heard in the Court of Appeals 6 February 2017.


      The Law Offices of Timothy D. Welborn, P.A., by Timothy D. Welborn, for
      plaintiff-appellant.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Tonya D.
      Davis, for defendant-appellee.


      STROUD, Judge.


      Plaintiff appeals from an opinion and award denying her additional

compensation because she failed to file a claim against her employer’s insurance

company. Because plaintiff timely filed her claim for her back injury against her

employer, the Industrial Commission erred in denying her claim due to her failure to

file a claim against a specific insurance company. Plaintiff’s claim is against her

employer; her employer has the statutory obligation to maintain workers’

compensation insurance and is responsible for work-related compensable injuries.
                             HAWKINS V. WILKES REG’L MED. CTR.

                                         Opinion of the Court



Any dispute plaintiff’s employer may have with its insurers is not relevant to the

validity of plaintiff’s claim against her employer. We therefore reverse and remand

for further proceedings.

                                            I.       Background

        Plaintiff sustained a lower back injury while working for defendant-employer

as a nurse in 2007; plaintiff filed a workers’ compensation claim, and defendant-

employer admitted plaintiff’s right to compensation. In 2008, plaintiff filed Form 28B

and requested additional compensation for her 2007 injury. Over the course of the

next five years, plaintiff had several other incidents at work which exacerbated her

back injury, with no dispute as to whether these were compensable injuries, and

defendant-employer continued to provide medical compensation, until plaintiff

eventually returned to full duty work.1 During this five year period, defendant-

employer’s insurance company changed at least twice. In January of 2012, plaintiff

again “sustained another injury” to her back at work and “was diagnosed with

recurrent lumbar pain[.]”          Plaintiff returned to Dr. Maxy, who had treated her

starting in 2007 for her lower back injury. As the Commission found,

                Dr. Maxy examined Plaintiff, and given that she had failed

        1 Plaintiff also reported and was treated for a work-related incident which injured her neck
and shoulders at work on 7 August 2010, and she was in an automobile accident in December 2010
which mildly increased her neck pain. In 2012, “Plaintiff entered into a full and final settlement
agreement with Synergy Coverage Solutions [,the employer’s insurance carrier in 2010,] regarding the
August 7, 2010 incident.” According to the Commission’s findings, the 2012 incident in question in this
appeal involved her low back, just as the 2007 back injury did. In 2015, plaintiff also sustained another
work-related injury to her neck which is the subject of another workers’ compensation claim not at
issue before us.

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                                   Opinion of the Court



             conservative treatment, he referred her for a new MRI.
             Plaintiff had been out of work, and he continued light duty
             work until she could be re-evaluated.

                   38. Plaintiff was out of work from January 14
             through February 9, 2012 due to the January 12, 2012
             accident and injury.

                   39.    After Dr. Maxy referred Plaintiff for a lumbar
             MRI on February 3, 2012, Plaintiff requested that Synergy
             authorize the MRI. Upon Synergy’s refusal to authorize the
             MRI and treatment, Plaintiff filed a Motion to compel
             authorization, to which Synergy responded in opposition.
             Synergy pointed out that Plaintiff was required to file a
             new claim against United Heartland considering that she
             had sustained an injury to her low back on January 12,
             2012.

                  40.    Plaintiff never underwent the               MRI
             recommended by Dr. Maxy on February 3, 2012.

      In September of 2014, defendants filed a Form 33 requesting that plaintiff’s

claim be assigned for hearing because they “dispute[d] that Plaintiff’s low back

condition since January 12, 2012 is causally related to the accident and injury of April

10, 2007[;]” defendants did not contest that plaintiff was injured in 2012 but rather

whether the 2012 injury was related to her 2007 injury. In response, on 15 September

2014, plaintiff filed a Form 33R stating that “Plaintiff contends that her back

condition since January 12, 2012 is causally related to the accident and injury of April

10, 2007.”

      In 2007, defendant-employer’s insurance company was defendant Key Risk

Insurance Company, the named defendant-insurer in this appeal.            But in 2012,


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                                    Opinion of the Court



defendant-employer’s    insurance     company      was     United   Wisconsin   Insurance

Company/United Heartland Insurance Company (“United Heartland”) which is not a

party on appeal. Thus, defendants argued that United Heartland was not liable for

plaintiff’s 2012 injury because it was a new injury, not related to the 2007 injury, and

defendant Key Risk was not the insurer at the time of the 2012 injury.

      Thereafter, in November of 2014, defendant Key Risk moved to add United

Heartland as a party-defendant because “Plaintiff had long ago recovered by the time

the January 2012 incident occurred[,]” and therefore United Heartland was the

proper named insurer for the new 2012 injury.              In December of 2014, United

Heartland responded to defendant Key Risk’s motion and requested it be denied

because plaintiff had not filed for compensation against United Heartland within two

years of the 2012 injury, and under North Carolina General Statute § 97-24, her

“right to compensation expire[d]” for want of jurisdiction.

      To be clear, United Heartland did not contest that plaintiff had filed a proper

claim for her 2012 injury with defendant-employer, but rather contended that

plaintiff was required to name United Heartland specifically as the insurer within

the two-year period to file a valid claim. The Commission denied defendant Key

Risk’s motion to add United Heartland as a party. The order did not give any

rationale for the denial but stated only: “IT IS HEREBY ORDERED that Key Risk

Insurance Company’s Motion to Add United Wisconsin Insurance Company/United



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                                  Opinion of the Court



Heartland Insurance Company is DENIED at this time. NO COSTS are assessed at

this time.” This order is not before us on appeal.

      On 31 May 2016, the Full Commission of the North Carolina Industrial

Commission entered an opinion and award regarding plaintiff’s workers’

compensation claim, addressing only plaintiff’s request for additional compensation

arising from her 2007 injury. The issue to be determined, as stated in the opinion

and award, was “[w]hether Plaintiff's current low back condition is causally related

to the low back injury she sustained on April 10, 2007 such that Key Risk Insurance

Company has ongoing liability?” The Full Commission made many findings of the

history of plaintiff’s injuries and treatment since 2007 and seven conclusions of law

which demonstrate the Full Commission determined plaintiff sustained a work-

related injury in January of 2012, but it did not determine that the 2012 injury “was

caused by her” April 2007 injury.     The Full Commission ultimately determined

“Plaintiff’s current back condition was caused by her January 12, 2012 injury, not her

April 10, 2007 injury.” The Commission concluded,

             The preponderance of the evidence in view of the entire
             record shows that Plaintiff's current back condition is
             related to the January 12, 2012 accident that materially
             aggravated a preexisting back condition. Defendant Key
             Risk was not the carrier for Employer-Defendant on this
             date. When an employee with a preexisting condition
             suffers an injury by accident arising out of and in the
             course of her employment, and the injury materially
             accelerates or aggravates the preexisting infirmity and
             thus proximately contributes to the disability of the


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                                      Opinion of the Court



             employee, the injury is compensable. Anderson v.
             Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265
             (1951). The January 12, 2012 accident was a separate
             accident that materially aggravated Plaintiff's preexisting
             back condition, and she could have filed a new workers’
             compensation claim against United Heartland, who was
             Employer-Defendant’s workers’ compensation insurance
             carrier on January 12, 2012. Plaintiff’s current back
             condition was caused by her January 12, 2012 injury, not
             her April 10, 2007 injury. Therefore, Key Risk is not liable
             for disability compensation or medical expenses related to
             Plaintiff’s current back condition. Id.

      The Full Commission ultimately concluded that plaintiff’s claim for further

compensation failed because

             [t]he right to compensation under the North Carolina
             Workers’ Compensation Act is forever barred unless a
             claim is filed with the Commission or the employee is paid
             compensation within two years after the accident. N.C.
             Gen. Stat § 97-24. Plaintiff had two years from January 12,
             2012, or through January 12, 2014, to file a claim against
             United Heartland. Plaintiff failed to file a claim and is thus
             barred. N.C. Gen. Stat. § 97-24.

(Emphasis added.) Thus, the Commission ultimately determined plaintiff’s claim

was barred because she had not brought a timely claim against the insurer, United

Heartland. Plaintiff appeals.

                                II.       Named Insurer

      On appeal, plaintiff argues she timely filed her claim against her employer and

was not required to name a specific insurance company. There is no real dispute

about the relevant facts of plaintiff’s injuries, and as framed by the Commission, the



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                                   Opinion of the Court



issue of whether plaintiff was required by statute to specifically name the proper

insurance company of her employer is a question of law, which we review de novo.

See Moore v. City of Raleigh, 135 N.C. App. 332, 334, 520 S.E.2d 133, 136 (1999)

(citation and quotation marks omitted) (“The Industrial Commission’s conclusions of

law are reviewable de novo by this Court.”)

      Since this case presents a question of law, we note first that neither the

Commission’s opinion and award nor defendants’ brief cited any law to support the

proposition that the employee must bring a workers’ compensation claim against a

specific insurance carrier, nor can we find any such law. The Commission’s findings

and defendants’ arguments focus throughout on the identity of the insurance carrier

for defendant-employer on the various dates of plaintiff’s back injuries and treatment.

But North Carolina General Statute § 97-97 clearly places the responsibility for

compensation for work-related injuries on the employer and provides that notice to

the employer is notice to the carrier:

                     All policies insuring the payment of compensation
             under this Article must contain a clause to the effect that,
             as between the employer and the insurer the notice to or
             acknowledgment of the occurrence of the injury on the part
             of the insured employer shall be deemed notice or knowledge
             as the case may be, on the part of the insurer; that
             jurisdiction of the insured for the purposes of this Article
             shall be jurisdiction of the insurer, that the insurer shall in
             all things be bound by and subject to the awards,
             judgments, or decrees rendered against such insured
             employer, and that insolvency or bankruptcy of the
             employer and/or discharge therein shall not relieve the


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             insurer from the payment of compensation for disability or
             death sustained by an employee during the life of such
             policy or contract.

N.C. Gen. Stat. § 97-97 (2007) (emphasis added). In Collins v. Garber, our Court

stated that “[p]ursuant to 97-97, notice to or acknowledgment of the occurrence of the

injury on the part of the insured employer shall be deemed notice or knowledge as

the case may be, on the part of the insurer; that jurisdiction of the insured shall be

jurisdiction of the insurer.” 72 N.C. App. 652, 656, 325 S.E.2d 21, 23 (1985) (ellipses

omitted).

      North Carolina General Statute § 97-22 provides that

             [e]very injured employee or his representative shall
             immediately on the occurrence of an accident, or as soon
             thereafter as practicable, give or cause to be given to the
             employer a written notice of the accident, and the employee
             shall not be entitled to physician’s fees nor to any
             compensation which may have accrued under the terms of
             this Article prior to the giving of such notice . . . .

N.C. Gen. Stat. § 97-22 (2007) (emphasis added). There is no question that plaintiff

timely gave notice of “the occurrence” of her back injury in 2012 to defendant-

employer, even if she identified the wrong insurance carrier. Id. Whether the 2012

injury was a new injury or an exacerbation of her prior 2007 injury, her employer was

the same at all times, and her employer was provided prompt notice of each and every

incident.

      Since we can find no cases addressing this point beyond Collins, 72 N.C. App.



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                                 Opinion of the Court



at 656, 325 S.E.2d at 23, we turn to the Industrial Commission’s own standard forms

and find they also reflect the necessity for the employee to notify the employer of a

claim, but place the burden of identification of the proper insurance carrier on the

employer and Industrial Commission. For example, Form 18 requires the employee

to name the employer, but the instructions accompanying the form, the “General

Information on the Form 18” note the following:

             4. What if I do not know who my employer’s insurance
             carrier is?

             If you do not know who the employer’s insurance carrier is
             you may either ask your employer for the information, call
             the Industrial Commission’s Claims Administration
             Section at (800) 688-8349 then press “1” after the prompt,
             or simply leave the line blank.

The employee’s correct identification of the employer’s insurance carrier is not a

jurisdictional requirement of a workers’ compensation claim.

      Defendants argue that “Plaintiff misconstrues the case law on specific

traumatic incident” and notes that

             [t]he Workers’ Compensation Act treats back injuries
             differently than other injuries. While most injuries must
             occur as a result of an accident,
                    [w]ith respect to back injuries, however,
                    where injury to the back arises out of and in
                    the course of the employment and is the direct
                    result of a specific traumatic incident of the
                    work assigned, “injury by accident” shall be
                    construed to include any disabling physical
                    injury to the back arising out of and causally
                    related to such incident.


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                                 Opinion of the Court



            N.C. Gen. Stat. § 97-2(6) (2016). This Court has confirmed
            that that (sic) a specific traumatic incident which
            aggravates a pre-existing condition is compensable.
            Goforth v. K-mart Corp., 167 N.C. App. 618, 622-23, 605
            S.E.2d 709, 713 (2004). Our legislature has already
            liberalized the Act to include an aggravation of a pre-
            existing back injury without the need of an accident. As
            such, an employee may suffer several continuous
            compensable injuries merely by successively aggravating
            one original injury, whether or not that original injury was
            compensable.
                   Once a successive back injury occurs which
            aggravates the pre-existing injury, the employer becomes
            responsible both for any new injury and the aggravation of
            the previous injury.

(Emphasis added.)

      Defendants then note that plaintiff sustained a back injury on 7 August 2010

and filed a Form 18 which listed Builders Insurance/Synergy as the insurer, and

Builders Insurance admitted liability for the back injury; this admission would have

included “acceptance of the aggravation of any previous back injuries[;]” but the

Commission did not make this finding. The Full Commission found that plaintiff

settled her claim for the 2010 injury, but also found that the 2010 incident also

involved her neck and shoulders, not only her back. In any event, the Commission

did not determine that plaintiff had entered into a full and final settlement with

Builders Insurance/Synergy which would have barred her from any claim for

exacerbation of her lower back condition; the Commission simply determined that

plaintiff brought her claim against the wrong insurance carrier since it determined



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                                  Opinion of the Court



that she sustained a new back injury in 2012.

      But ultimately we agree with defendants’ assertion that “[o]nce a successive

back injury occurs which aggravates the pre-existing injury, the employer becomes

responsible both for any new injury and the aggravation of the previous injury[;]” the

employer is responsible either way. The Commission’s findings support plaintiff’s

claim that she sustained a compensable back injury in 2012 and the defendant-

employer had immediate notice of this injury. The defendant-employer is responsible

for compensation for the plaintiff’s back injury and plaintiff need only notify her

employer under North Carolina General Statute § 97-97. See N.C. Gen. Stat. § 97-

97. Any dispute defendant-employer may have with its insurance carriers as to

coverage of its liability for plaintiff’s injury is beyond the scope of this appeal.

Because portions of the Commission’s order were based upon an error of law, we

reverse and remand.

                                  III.   Conclusion

      For the foregoing reasons, we reverse and remand for further proceedings.

      REVERSED and REMANDED.

      Chief Judge McGEE and Judge TYSON concur.




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