             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA16-910

                                Filed: 2 May 2017

North Carolina Industrial Commission, I.C. No. X43019

CAPEN TRUCER CARL ANDERS, II, Employee, Plaintiff,

            v.

UNIVERSAL LEAF NORTH AMERICA, Employer, and ESIS, Carrier, Defendants.


      Appeal by plaintiff from opinion and award entered 5 July 2016 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 8 February 2017.


      Kellum Law Firm, by J. Kevin Jones, for plaintiff-appellant.

      Wilson & Ratledge, PLLC, by James E. R. Ratledge and Scott J. Lasso, for
      defendants-appellees.


      ZACHARY, Judge.


      Plaintiff-employee Capen Trucer Carl Anders, II (Anders) appeals from an

Opinion and Award of the Industrial Commission denying his claims for additional

medical and indemnity benefits related to bilateral hernias allegedly caused by an

earlier, compensable hernia injury that plaintiff suffered while employed by

defendant-employer Universal Leaf North America (Universal Leaf).         Anders’

primary argument on appeal is that the Commission erred in concluding that the

subsequent bilateral hernias that Anders suffered after Universal Leaf terminated

his employment were not causally related to his prior compensable hernia injury.

Anders also challenges the Commission’s conclusion that his claim for additional
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                  Opinion of the Court



medical treatment related to the subsequent bilateral hernias was time-barred by

N.C. Gen. Stat. § 97-25.1. For the reasons that follow, although the Commission

committed an error in its causation analysis, we conclude that no remand is necessary

in this case, and that the Commission’s Opinion and Award should be affirmed.

                                  I. Background

      This case arises out of an admittedly compensable bilateral inguinal hernia

injury that Anders suffered while employed as a seasonal employee by Universal

Leaf. At the time of the work-related accident, which occurred on 20 November 2010,

Anders was working on the “blending line” removing wires from bales of tobacco.

After a tobacco-bale wire became stuck, Anders “yanked on the wire and felt a pain

in his groin.” On 22 November 2010, Universal Leaf sent Anders to Carolina Quick

Care, where he was diagnosed with an inguinal hernia and referred to a surgeon.

However, defendants refused to authorize a surgeon’s visit at that time. Anders

worked under light-duty restrictions for several days.

      On 28 November 2010, Anders sought treatment for his hernia in the

emergency department at Halifax Regional Medical Center, where he was again

diagnosed with an inguinal hernia and referred to a surgeon. When Anders returned

to work on 29 November 2010, he learned that he had been fired for violating

Universal Leaf’s attendance policy. The record reveals that a specific absentee policy

applied to Anders’ position and that Universal Leaf had an established process for



                                         -2-
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



handling workers’ compensation claims. According to Universal Leaf’s absentee

policy, a seasonal worker could be terminated for accruing six “occurrences”— i.e., “a

day out of work, an early leave, or a late entry into work”—in a twelve-month period.

Anders had accumulated at least six occurrences between 17 September 2010 and 29

October 2010. When Anders sought medical treatment on 28 November 2010, his

absence from work counted as an occurrence because Anders did not contact

Universal Leaf’s first aid office and receive authorization for the hospital visit.

      Shortly after Universal Leaf terminated Anders, he found work at a local

Waffle House. On 22 March 2011, Dr. Robert Vire performed a bilateral inguinal

repair surgery on Anders. That same day, Anders was discharged from the hospital

with the temporary restriction that he not lift more than 10 pounds. Although Anders

returned to Dr. Vire on 7 April 2011 with “soreness” at the incision site, Dr. Vire

found no evidence of any hernia. Dr. Vire released Anders to full-duty work and

instructed him to report for further treatment as needed. Anders then returned to

his position at Waffle House.

      In late May 2011, Anders experienced ongoing pain in his right groin and he

returned to Dr. Vire, who ordered that Anders undergo an ultrasound and CT scan of

the abdomen, pelvis, and chest. The ultrasound was performed on 8 June 2011 and

Anders underwent CT scans on 20 June 2011 and 7 July 2011. Dr. Vire found no

evidence of a recurring hernia, but the ultrasound revealed that Anders suffered from



                                          -3-
                        ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                       Opinion of the Court



a “small right hydrocele with superficial edema around the right scrotum.” It does

not appear that the CT scans revealed any further concerns.

       Anders’ original claim for workers’ compensation benefits related to the work-

related hernia was accepted by defendants’ filing a Form 60 on 13 May 2011. That

same day, defendants also filed a Form 28 Return to Work report, which indicated

that Anders was released to work on 15 April 2011,1 and a Form 28B, which reported

that Anders had received medical compensation and 2.2 weeks of temporary total

disability benefits for the period from 29 March 2011 until 14 April 2011. The Form

28B established that Anders received his last disability payment on 8 April 2011.

Anders received his last medical compensation payment on 19 January 2012; that

payment covered the ultrasound and the CT scans ordered by Dr. Vire.

       Based on the results from the June 2011 ultrasound, Dr. Vire referred Anders

to Dr. Fred Williams, a surgeon at ECU Physicians. Dr. Williams examined Anders

on 11 August 2011 and found no recurrent hernias, but Dr. Williams did “appreciate[]

a small hydrocele, with tenderness in the . . . ilioinguinal nerve.” As a result, Anders

was prescribed the medication Neurontin for nerve pain. Anders began working for

Hardee’s in August 2011.




       1  Although the Form 28 indicated that Anders returned to work for Universal Leaf on 15 April
2011, it is clear that Anders returned to work at Waffle House, as Anders was terminated from his
employment with Universal Leaf in November 2010.

                                               -4-
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                  Opinion of the Court



       When Anders sought treatment for bilateral groin pain in May 2013, he was

referred to general surgeon Dr. James Ketoff, who diagnosed a small, recurrent right

inguinal hernia. Dr. Ketoff surgically repaired this hernia on 6 June 2013, and he

ordered Anders out work until 9 July 2013. Between July 2013 and August 2014,

Anders sporadically sought medical treatment for groin pain.

       On 27 January 2014, Anders initiated the present action by filing a Form 33

request for hearing, seeking medical and indemnity compensation for his recurring

hernias. Following defendants’ Form 33R response, which asserted that Anders had

received all benefits to which he was entitled, the matter was heard before Deputy

Commissioner Theresa Stephenson on 10 September 2014. On 9 April 2015, Deputy

Commissioner Stephenson filed an Opinion and Award that, inter alia, concluded

that Anders’ subsequent recurring hernias were not related to his November 2010

work-related injury, awarded certain indemnity compensation to Anders, and denied

other indemnity compensation and any medical compensation.

       Anders reported to Dr. Ketoff, who diagnosed a left-sided, recurrent hernia on

21 August 2014.     Dr. Ketoff surgically repaired Anders’ left-sided hernia on 24

September 2014. Dr. Ketoff ordered Anders out of work from the date of the surgery

until 9 December 2014, when Anders was released to work and instructed to ease into

full activity.




                                         -5-
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                 Opinion of the Court



      Anders appealed Deputy Commissioner Stephenson’s decision to the Full

Commission. After hearing the matter in September 2015, the Commission entered

an Opinion and Award on 5 July 2016 and found, inter alia, that Anders’ work-related

hernia had “fully healed” after it was repaired on 22 March 2011; that defendants’

last payments of indemnity and medical payments occurred on 8 April 2011 and 19

January 2012, respectively; that Anders did not request additional medical

compensation until 27 January 2014; that Anders had not suffered any permanent

damage to any organs or body parts as a result of the work-related injury; and that

Anders failed to produce evidence of his earnings from the work he performed after

Universal Leaf terminated him, which included positions at Waffle House, Hardee’s,

and landscaping and construction work.

      Based on these findings, the Commission concluded that Anders had failed to

prove that his November 2010 work-related injury was causally related to his

subsequent recurring hernias, and that Anders’ request for additional medical

compensation was time-barred by N.C. Gen. Stat. § 97-25.1. Because Anders had

failed to prove that he was “disabled” as defined by the Workers’ Compensation Act

during the period following his termination, the Commission further concluded that

Anders was not entitled to additional indemnity compensation for his subsequent

recurrent hernias. Consequently, Anders’ claims for additional compensation were

denied. Anders now appeals the Commission’s Opinion and Award.



                                         -6-
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



                              II. Standard of Review

      “Appellate review of an award from the Industrial Commission is generally

limited to two issues: (1) whether the findings of fact are supported by competent

evidence, and (2) whether the conclusions of law are justified by the findings of fact.”

Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). The “ ‘Commission

is the sole judge of the credibility of the witnesses and the [evidentiary] weight to be

given their testimony.’ ” Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413

(1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d

272, 274 (1965)). “Thus, if the totality of the evidence, viewed in the light most

favorable to the complainant, tends directly or by reasonable inference to support the

Commission’s findings, these findings are conclusive on appeal even though there

may be plenary evidence to support findings to the contrary.” Click v. Pilot Freight

Carriers, Inc., 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980). The Commission’s

conclusions of law are subject to de novo review. Boney v. Winn Dixie, Inc., 163 N.C.

App. 330, 331, 593 S.E.2d 93, 95 (2004).

                                   III. Discussion

      On appeal, Anders’ primary argument is that the Commission improperly

decided the causation issue.      Anders contends that the Commission erred in

determining that his subsequent bilateral hernias were not compensable as natural

and direct results of the earlier compensable bilateral hernia he suffered while



                                           -7-
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



employed by Universal Leaf. However, the Commission’s Opinion and Award also

contains conclusions of law that present separate and distinct bars—which are

unaffected by the causation issue—to Anders’ claims for additional medical and

indemnity benefits.      Accordingly, we begin by addressing the Commission’s

conclusions that Anders’ claim for medical benefits was time-barred, and that his

claim for indemnity benefits should be denied because he failed to prove that he was

“disabled” as defined by the Workers’ Compensation Act during the period following

his termination from employment by Universal Leaf.

      A. Overview

      In 1929, the legislature created our Workers’ Compensation Act, “[t]he

underlying purpose of [which] is to provide compensation for work[ers] who suffer

disability by accident arising out of and in the course of their employment.” Henry v.

A.C. Lawrence Leather Co., 234 N.C. 126, 127, 66 S.E.2d 693, 694 (1951). As the plan

is designed, “[a]n award under the Act has two distinct components: (1) payment of

‘medical compensation’ pursuant to G.S. § 97-25 for expenses incurred as a direct

result of the work-related injury, and (2) payment of general ‘compensation’ pursuant

to G.S. §§ 97-29 through 97-31 for financial loss suffered as a direct result of the work-

related injury.” Collins v. Speedway Motor Sports Corp., 165 N.C. App. 113, 118, 598

S.E.2d 185, 189 (2004) (emphasis added and citations omitted); see Cash v. Lincare

Holdings, 181 N.C. App. 259, 264, 639 S.E.2d 9, 14 (2007) (recognizing that “the



                                          -8-
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                  Opinion of the Court



legislature always has provided for, and continues to provide for, [these] two distinct

components of an award under the Workers’ Compensation Act”) (citation and

internal quotation marks omitted).

      The term medical compensation is defined as

             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 artificial 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.

N.C. Gen. Stat. § 97-2(19) (2015).        In contrast, indemnity benefits (general

compensation) may be awarded to address “financial loss other than medical

expenses.” Hyler v. GTE Prod. Co., 333 N.C. 258, 267, 425 S.E.2d 698, 704 (1993),

superseded in part on other grounds by statute as recognized by Lunsford v. Mills, 367

N.C. 618, 623, 766 S.E.2d 297, 301 (2014). Because “the Commission’s determination

that an employer must pay an injured employee medical compensation pursuant to

N.C.G.S. § 97-25 is a separate determination from whether an employer owes

[general] compensation as a result of an employee’s disability[,] . . . [n]either




                                         -9-
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                 Opinion of the Court



determination is a necessary prerequisite for the other.” Cash, 181 N.C. App. at 264,

639 S.E.2d at 14.

      With this statutory scheme in mind, we turn to Anders’ claim for additional

medical compensation.

      B. Limitations Period on Anders’ Claim for Medical Compensation

      As noted above, the Commission concluded that Anders’ claim for additional

medical compensation for treatment related to his subsequent recurrent hernias was

time-barred pursuant to the provisions of N.C. Gen. Stat. § 97-25.1.             The

Commission’s conclusion cited to this Court’s decisions in Busque v. Mid-Am.

Apartment Communities, 209 N.C. App. 696, 707 S.E.2d 692 (2011) and Harrison v.

Gemma Power Systems, LLC, 234 N.C. App. 664, 763 S.E.2d 17, 2014 WL 2993853

(2014) (unpublished), and was based on the following findings:

             15.   A    Form     28B,   Report    of   Employer    or
             Carrier/Administrator of Compensation and Medical
             Compensation Paid and Notice of Right to Additional
             Medical Compensation, was filed by Defendants on May 16,
             2011, reflecting indemnity compensation payments from
             March 29, 2011 through April 14, 2011, with the last
             compensation check forwarded on April 8, 2011.

             16. The Form 28B further reflected that the last payment
             of medical compensation was paid on May 5, 2011.
             However, Defendants’ claims payment history reflects that
             the actual last payment by Defendants of medical
             compensation was made on January 19, 2012, for the
             ultrasound and CT scans performed in June and July 2011.
             ...



                                        - 10 -
                   ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                 Opinion of the Court



            19. . . . [T]he last payment of medical compensation made
            by Defendants was January 19, 2012.

            20. Plaintiff did not seek any medical treatment from
            March 15, 2012 until May 18, 2013. There is no evidence
            Plaintiff sought authorization for medical treatment from
            Defendants during this time period. Plaintiff did not file a
            request to the Commission for additional medical
            compensation until January 27, 2014, when he filed a Form
            33, Request that Claim be Assigned for Hearing. This
            request was made more than two years following the last
            payment of indemnity and medical compensation.

      Section 97-25.1 imposes a limitation period upon an injured employee’s right

to seek medical compensation:

            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
            Commission, or (ii) the Commission on its own motion
            orders additional medical compensation.

      In Busque, this Court applied section 97-25.1 in a “straight-forward” manner,

holding that the plaintiff’s right to medical compensation for an ankle injury was

barred because her 2007 application for additional medical treatment was filed more

than two years after the defendants’ last payment of medical compensation in 2003.

209 N.C. App. at 707, 707 S.E.2d at 700.

      Here, the Commission’s unchallenged findings establish that Anders’ 27

January 2014 request for additional medical compensation was filed more than two



                                        - 11 -
                      ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                     Opinion of the Court



years after defendants’ last payments of indemnity and medical compensation, which

occurred, respectively, on 8 April 2011 and 19 January 2012.               Accordingly, the

Commission properly concluded that section 97-25.1 stands as a bar to plaintiff’s

claims for additional medical treatment.

       Nevertheless, Anders argues that if the “Commission [had] properly considered

the evidence and the law controlling that evidence, there would have been, at

minimum, an indemnity award for [the period during which defendant was allegedly

disabled], which would in turn render defendants’ [section] 97-25.1 defense

inapplicable as the indemnity benefits would restart the clock on said statute’s

limitations period.” This argument utilizes the notion of a “hypothetical” indemnity

award to prevent section 97-25.1 from barring Anders’ claim for additional medical

treatment. However, this Court recently rejected a similar contention in Harrison.

       The Harrison Court relied on Busque 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 N.C. Gen. Stat. § 97-25.1.” Harrison,

2014 WL 2993853, at *4. Even so, the Harrison Court addressed the plaintiff’s

argument that 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.’ ”              Id.    “Stated differently,” the Court



                                            - 12 -
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



explained, “[the p]laintiff argues that the two-year statute of limitations period found

in N.C. Gen. Stat. § 97-25.1 has not yet begun and will not begin until [the p]laintiff

receives a payment from [the d]efendant for indemnity benefits.” Id. In rejecting this

argument, the Court explained:

             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. . . .” N.C. Gen. Stat. §
             97-25.1 (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
             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.

Id. (emphasis added). Although clearly not controlling, we find Harrison’s reasoning

persuasive and apply it to the instant case.

      Harrison makes it clear that the “last” payments referred to in section 97-25.1

denote the most recent, “actual” payments of medical or indemnity benefits, not

hypothetical payments the Commission might award in the future. Harrison, 214



                                          - 13 -
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



WL 2993853, at *4. At the time when the Commission issued its Opinion and Award

in the present case, the last actual payment of indemnity compensation was made on

8 April 2011. Anders received his last actual payment of medical compensation on

19 January 2012. Consequently, defendants had not made any indemnity or medical

payments within two years of Anders’ request for additional medical compensation,

which occurred when Anders filed the Form 33 on 27 January 2014. The evidence,

therefore, supports the Commission’s findings and the findings support the

Commission’s conclusion that section 97-25.1 bars Anders’ request for additional

medical compensation.

      C. Indemnity Compensation

      Separate from Anders’ claim for medical compensation is his claim for

indemnity benefits for periods of disability allegedly caused by his original,

compensable hernia injury. “An employee seeking indemnity benefits pursuant to

the Workers’ Compensation Act has, at the outset, two very general options.” Knight

v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 10, 562 S.E.2d 434, 441 (2002), aff’d, 357

N.C. 44, 577 S.E.2d 620 (2003). First, an injured employee may seek indemnity

benefits by showing either a total disability pursuant to N.C. Gen. Stat. § 97-29 (2015)

or a partial disability pursuant to N.C. Gen. Stat. § 97-30 (2015). “[D]isability is

defined by a diminished capacity to earn wages, not by physical infirmity.” Saums v.

Raleigh Community Hospital, 346 N.C. 760, 764, 487 S.E.2d 746, 750 (1997); N.C.



                                          - 14 -
                       ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                       Opinion of the Court



Gen. Stat. § 97-2(9) (2015) (“The term ‘disability’ means incapacity because of injury

to earn the wages which the employee was receiving at the time of injury in the same

or any other employment.”). “The second option available to an employee seeking

indemnity benefits is to show that the employee has a specific physical impairment

that falls under the schedule set forth in N.C. Gen. Stat. § 97-31 [(2015)], regardless

of whether the employee has, in fact, suffered” a partial or total disability. Knight,

149 N.C. App. at 11, 562 S.E.2d at 442.2 Particularly relevant here, an employee is

entitled to compensation under N.C. Gen. Stat. § 97-31(24) if “he [produces] . . .

medical evidence that he has loss of or permanent injury to an important external or

internal organ or part of his body for which no compensation is payable under any

other subdivision of [N.C. Gen. Stat. §] 97-31.” Porterfield v. RPC Corp., 47 N.C. App.

140, 142-43, 266 S.E.2d 760, 762 (1980).

       1. Disability Benefits Pursuant to N.C. Gen. Stat. §§ 97-29 and 30

       As to Anders’ right to total and temporary disability benefits under sections

97-29 and 97-30 following his termination, Universal Leaf was required to

demonstrate initially that: (1) Anders was terminated for misconduct or other fault;

(2) a nondisabled employee would have been terminated for the same misconduct or

fault; and (3) the termination was unrelated to Anders’ compensable injury.


       2  If an employee is either partially or totally disabled and also has a specific physical
impairment that falls under N.C. Gen. Stat. § 97-31, the employee may pursue benefits under the
statutory section which affords the most favorable remedy. Whitley v. Columbia Lumber Mfg. Co., 318
N.C. 89, 90, 348 S.E.2d 336, 340 (1986).

                                              - 15 -
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                  Opinion of the Court



Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 234, 472 S.E.2d 397, 401

(1996).

      The Commission addressed the circumstances of Anders’ termination in the

following unchallenged findings of fact:

             6. When Plaintiff began working for Defendant-Employer
             in 2010, he was provided an employee handbook and
             underwent an orientation process. Plaintiff was instructed
             on how workers’ compensation claims would be handled
             and was instructed on the absentee policy for seasonal
             employees. Plaintiff was aware of the absentee policy and
             that, as a seasonal employee, he could be terminated if he
             accrued six occurrences within a 12-month period.

             7. From September 17, 2010 through October 29, 2010,
             Plaintiff had missed six work shifts. For three of those
             shifts, Plaintiff failed to report to work or notify the
             employer. Plaintiff missed one shift for personal business
             and the remaining shifts were missed due to illness and
             occurred prior to his November 20, 2010 incident. Plaintiff
             received warnings from his supervisor as he accumulated
             occurrences.
             ...

             34. Based upon a preponderance of the competent, credible
             evidence, Defendant terminated Plaintiff for misconduct
             and the reason for Plaintiff’s termination was a reason for
             which a non-disabled employee would be terminated.
             While Plaintiff’s last absence which led to his termination
             was due to medical treatment he sought for his hernia
             condition, Plaintiff did not obtain proper authorization for
             his absence, despite knowledge of the attendance policy,
             knowledge of the proper procedure for requesting medical
             treatment and time off for his work-related injury, and
             knowledge that he had accumulated occurrences and was
             on warning for his excessive absences.



                                           - 16 -
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



These unchallenged findings support the Commission’s conclusion that defendants

met their initial burden of showing that the first three elements of the Seagraves test

were satisfied.

      “An employer’s successful demonstration of . . . evidence [that satisfies the

initial part of the Seagraves test] is ‘deemed to constitute a constructive refusal’ by

the employee to perform suitable work, a circumstance that would bar benefits for

lost earnings, ‘unless the employee is then able to show that his or her inability to

find or hold other employment . . . at a wage comparable to that earned prior to the

injury[ ] is due to the work-related disability.’ ” McRae v. Toastmaster, Inc., 358 N.C.

488, 493-94, 597 S.E.2d 695, 699 (2004) (quoting Seagraves, 123 N.C. App. at 234,

472 S.E.2d at 401). In other words, “the burden shift[ed] to [Anders] to re-establish

that he suffer[ed] from a disability” during the time periods in question. Williams v.

Pee Dee Electric Membership Corp., 130 N.C. App. 298, 303, 502 S.E.2d 645, 648

(1998). An employee must prove all three of the following factual elements in order

to support a conclusion of disability:

             (1) that plaintiff was incapable after his injury of earning
             the same wages he had earned before his injury in the same
             employment, (2) that plaintiff was incapable after his
             injury of earning the same wages he had earned before his
             injury in any other employment, and (3) that this
             individual’s incapacity to earn was caused by plaintiff’s
             injury.




                                          - 17 -
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                  Opinion of the Court



Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).

Therefore, “[t]he burden is on the employee to show that he is unable to earn the same

wages he had earned before the injury, either in the same employment or in other

employment.” Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d

454, 457 (1993). As recognized by our Supreme Court in Medlin v. Weaver Cooke

Constr., LLC, 367 N.C. 414, 422, 760 S.E.2d 732, 737 (2014), the first two elements

announced in Hilliard may be proven in one of four ways:

             (1) the production of medical evidence that he is physically
             or mentally, as a consequence of the work related injury,
             incapable of work in any employment; (2) the production of
             evidence that he is capable of some work, but that he has,
             after a reasonable effort on his part, been unsuccessful in
             his effort to obtain employment; (3) the production of
             evidence that he is capable of some work but that it would
             be futile because of preexisting conditions, i.e., age,
             inexperience, lack of education, to seek other employment;
             or (4) the production of evidence that he has obtained other
             employment at a wage less than that earned prior to the
             injury.

Russell, 108 N.C. App. at 765, 425 S.E.2d at 457 (citations omitted). “[A] claimant

must also satisfy the third element, as articulated in Hilliard, by proving that his

inability to obtain equally well-paying work is because of his work-related injury.”

Medlin, 367 N.C. at 422, 760 S.E.2d at 737.

      The Commission found the following facts as to whether Anders had satisfied

any of Russell’s prongs:

             35.   Except for the short period of time following his


                                         - 18 -
       ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                     Opinion of the Court



surgeries, Plaintiff has failed to produce evidence that he
was unable to work due to his injuries, that he conducted a
reasonable job search, or that it would have been futile for
him to look for work, after November 28, 2010. While
Plaintiff returned to work at Waffle House, earning a lower
hourly rate than that earned with Defendant-Employer,
Plaintiff has failed to produce competent evidence that he
earned less than his average weekly wage at any point
during his employment with Waffle House or Hardee’s.
Plaintiff also failed to produce evidence that any partial
incapacity to work or any decrease in earnings was a result
of his November 20, 2010 injuries and any subsequent
physical impairments.
...

37. Plaintiff quit his job at Hardee’s in October 2011 due
to lack of hours. From approximately October 2011
through May 2013, Plaintiff mainly performed landscaping
and construction work in the form of framing houses and
was paid in cash. Plaintiff did not present evidence of his
earnings from his work performed with Waffle House or
Hardee’s, or his jobs in landscaping and construction.

38. According to his sworn discovery answers served on
July 21, 2014, since the date of his injury, Plaintiff sought
work at Coca-Cola, Lowe’s, Smithfield Genetics, and
Georgia Pacific. Plaintiff indicated he also sought work
through the Employment Security Commission but did not
provide any further details as to the number or types of
positions for which he applied.

39. At the evidentiary hearing held on September 10, 2014,
Plaintiff presented a one-page job search log detailing
contact with various employers from August 2014 through
September 2014. Given the manner in which it was
completed and Plaintiff’s failure to explain the unusual
format, it is likely that Plaintiff constructed this sheet at
one time rather than over the period of one month as
alleged. The timing of this job search documentation is
suspect since the calendar for setting the hearing in this


                            - 19 -
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                  Opinion of the Court



            matter would have been sent out the first of August, 2014.
            Plaintiff testified, and there is no evidence to the contrary,
            that he is physically able to perform all the positions to
            which he applied.

            40. Plaintiff has not conducted a reasonable job search.
            The records do not reflect the types of positions for which
            Plaintiff applied and whether he met any necessary
            qualifications for the positions. Furthermore, the evidence
            reveals Plaintiff contacted approximately 12 employers
            total over a three-year period in an effort to obtain suitable
            employment.

      These unchallenged findings support the Commission’s conclusion that Anders

failed to meet his burden of establishing that he was “disabled as defined by the

[Workers’ Compensation] Act, except for [the] period from March 22, 2011 through

April 7, 2011[,]” during which time defendants did pay indemnity benefits.

      2. Indemnity Compensation Pursuant to N.C. Gen. Stat. § 97-31(24)

      As to Anders’ right to indemnity compensation pursuant to section 97-31(24),

the Commission found:

            28. . . . Dr. Williams testified he treated Plaintiff for nerve-
            type pain in his right groin and Plaintiff got better.
            Further, Dr. Williams could not provide the opinion that
            Plaintiff suffered an injury to a nerve.
            ...

            30. Dr. Ketoff indicated there was no permanent damage
            to the muscles making up Plaintiffs abdominal muscular
            floor or to Plaintiff's spermatic blood vessels or cord. Dr.
            Ketoff opined that the right-sided numbness Plaintiff is
            experiencing is from the inguinal nerve and is probably
            permanent. As to the left side, Dr. Ketoff could not provide
            an opinion on whether Plaintiff would have permanent


                                         - 20 -
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



             numbness.     Dr. Ketoff did not provide evidence or
             testimony of the importance of the inguinal nerve to the
             body’s general health and well-being.

These unchallenged findings support the Commission’s conclusions that Anders

“failed to establish through competent medical evidence that he suffered loss or

permanent damage to any important organs or body parts[,] and that it would be

“[im]proper to issue an award under N.C. Gen. Stat. § 97-31(24).”

      3. Application

      We are mindful that the Commission’s causation analysis, which is discussed

in more detail below, was a component of its decision to deny Anders’ claim for

additional indemnity compensation. However, as demonstrated in Section III. C. 1.

above, Anders failed to produce evidence of how his earning capacity following his

termination was impaired in any way. Without establishing wage loss in the first

instance, there was no way for Anders to prove that any wage loss was connected to

the work-related, compensable injury. See Medlin v. Weaver Cooke Const., LLC, 229

N.C. App. 393, 396, 748 S.E.2d 343, 346 (2013) (“The purpose of the four-pronged

Russell test is to provide channels through which an injured employee may

demonstrate the required ‘link between wage loss and the work-related injury.’ ”)

(citing Fletcher v. Dana Corp., 119 N.C. App. 491, 494-99, 459 S.E.2d 31, 34-36

(1995)), aff’d, 367 N.C. 414, 760 S.E.2d 732 (2014). Because this required link was

not established, Anders failed to prove that he was partially or totally disabled during



                                          - 21 -
                         ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                         Opinion of the Court



the periods for which he seeks compensation. Furthermore, Anders failed to establish

that he suffered permanent loss or injury to an important organ or body part.

Accordingly, based on the analysis above, and the crucial fact that Anders does not

challenge the Commission’s findings or conclusions concerning the periods of

disability he allegedly suffered as a result of the work-related accident, the

Commission’s ultimate conclusion that Anders was not “entitled to any additional

indemnity compensation under N.C. Gen. Stat. §§ 97-29, 30, or 31” remains

undisturbed.

        D. The Commission’s Causation Analysis and the Parsons Presumption

        On appeal, Anders’ primary arguments are that the facts of Bondurant v. Estes

Express Lines, Inc., 167 N.C. App. 259, 606 S.E.2d 345 (2004)3 are distinguishable


        3  In Bondurant, the plaintiff suffered three compensable hernias, two of which were surgically
repaired. 167 N.C. App. at 261, 606 S.E.2d at 346-47. The plaintiff later suffered three additional
hernias while he was no longer in the employ of the defendant. Id. at 261-62, 606 S.E.2d at 347. On
appeal to this Court, the plaintiff challenged the Commission’s conclusion that his three subsequent
hernias were not compensable because they were not causally related to the prior compensable hernias
and were therefore governed by the statutory test for the compensability of hernias. Id. at 265, 606
S.E.2d at 349; see N.C. Gen. Stat. § 97-2(18) (requiring, inter alia, that a hernia be the immediate and
direct result of a work-related accident or specific traumatic incident of work assigned by the
defendant-employer). This Court rejected the plaintiff’s argument that the Commission erred by
applying the test set out in section 97-2(18) instead of applying the rule recognized in Heatherly v.
Montgomery Components, Inc., 71 N.C. App. 377, 379, 323 S.E.2d 29, 30 (1984) (“When the primary
injury is shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury arises out of the employment, unless it is the result of an independent intervening
cause attributable to claimant’s own intentional conduct.”) (citation omitted), reasoning that “even if
[we] . . . were to conclude that Heatherly controls, plaintiff’s argument nevertheless fails as [expert
medical testimony established] that just because a person has undergone a hernia repair, it does not
necessarily follow that the person will have another hernia.” Bondurant, 167 N.C. App. at 266, 606
S.E.2d at 350.




                                                 - 22 -
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                   Opinion of the Court



from this case, and that the Commission erred in relying on Bondurant to support its

conclusion that Anders’ subsequent bilateral hernias were not compensable because

they were not the direct and natural result of the earlier, compensable hernia that he

sustained while employed by Universal Leaf. Anders supplements these arguments

with his assertion that the Commission erroneously placed on him the burden of

proving that his subsequent recurrent hernias were causally related to his

compensable 20 November 2010 injury. According to Anders, the Commission failed

to give him the benefit of the evidentiary presumption enunciated in Parsons v.

Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997).

      The Commission found that Dr. Vire “determined that Plaintiff’s bilateral

hernias caused by the November 22, 2010 [compensable] injury would have been fully

healed by May 18, 2013[,]” and that “Dr. Ketoff agreed that the medical records from

Dr. Vire and Dr. Williams indicated that Plaintiff has recovered from his March 22,

2011 hernia repairs.” Based on these and other findings, and applying “the reasoning

in Bondurant” and “the statutory test enumerated in [section] 97-2(18)[,]” the

Commission concluded that because “[t]he competent, credible evidence establishes

that Plaintiff had fully healed from his initial hernia surgery with Dr. Vire [on] March

22, 2011 when he subsequently sustained acute injuries to his bilateral groin in 2013

and 2014,” Anders’ recurrent hernias were not compensable.




                                          - 23 -
                     ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                  Opinion of the Court



       It is well established that an employee who seeks workers’ compensation

benefits must prove that a causal relationship exists between the injury suffered and

the work-related accident. Hedges v. Wake Cty. Pub. Sch. Sys., 206 N.C. App. 732,

734, 699 S.E.2d 124, 126 (2010), disc. review denied, 365 N.C. 77, 705 S.E.2d 746

(2011). But in Parsons, this Court held that where the Commission has determined

that an employee has suffered a compensable injury, a rebuttable presumption arises

that additional medical treatment is causally related to the original injury. 126 N.C.

App. at 542, 485 S.E.2d at 869. In this context, the burden of proof is shifted from

the employee to the employer “to prove the original finding of compensable injury is

unrelated to [the employee’s] present discomfort.” Id. If the employer, however,

“rebuts the Parsons presumption, the burden of proof shifts back to the [the

employee].” Miller v. Mission Hosp., Inc., 234 N.C. App. 514, 519, 760 S.E.2d 31, 35

(2014) (citation omitted).

       In the present case, Anders sought additional medical treatment for recurring

hernias allegedly caused by his 2010 work-related injury. By filing a Form 60,

defendants admitted the compensability of the 2010 injury.         See Perez v. Am.

Airlines/AMR Corp., 174 N.C. App. 128, 136, 620 S.E.2d 288, 293 (2005) (holding

that   the Parsons    presumption applies when an employer has admitted

compensability of the original injury by filing a Form 60). As a result, the burden

had shifted to defendants on the issue of whether Anders was entitled to additional



                                         - 24 -
                    ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                 Opinion of the Court



compensation.   Deputy Commissioner Stephenson correctly applied the Parsons

presumption in her Opinion and Award before concluding that defendants had

“successfully rebutted Plaintiff’s presumption that the recurrent hernias are related

to the original compensable hernias.” The Commission, however, clearly failed to give

Anders the benefit of the Parsons presumption.

      Ordinarily, the Commission’s error would require us to reverse its

determination of causation and remand for a new hearing on that issue. See, e.g.,

King v. Kelly Springfield Tire Co., 159 N.C. App. 466, 583 S.E.2d 426 (2003)

(remanding for new findings where the Commission failed to place the burden on the

defendant to prove that the additional medical treatment sought by the plaintiff was

not related to his original compensable injury); Reinninger v. Prestige Fabricators,

Inc., 136 N.C. App. 255, 260, 523 S.E.2d 720, 724 (1999) (“[T]he Commission[’s

findings indicate that it] failed to give Plaintiff the benefit of the [Parsons]

presumption that his medical treatment now sought was causally related to his 1995

compensable injury. . . . Because Plaintiff was entitled to such a presumption, we

remand this case to the Commission for a new determination of causation.”). But

that is not necessary in this case because Anders’ claim for medical compensation is

barred by the provisions of section 97-25.1, and the Commission’s conclusion that

Anders is not entitled to any additional indemnity compensation due to his failure to

prove that he suffered any period of “disability” following his termination from



                                        - 25 -
                   ANDERS V. UNIVERSAL LEAF NORTH AMERICA

                                 Opinion of the Court



employment with Universal Leaf remains undisturbed. Accordingly, Anders’ claims

for medical and indemnity compensation are barred for reasons independent of the

causation issue.

                                 IV. Conclusion

      Anders’ claim for additional medical compensation is barred by the provisions

of N.C. Gen. Stat. § 97-25.1. In addition, because Universal Leaf met its initial

burden of showing that Anders’ termination satisfied the Seagraves test, the burden

shifted to Anders to prove that he was incapable of earning his pre-injury wages in

the same employment or any other employment and that the inability to earn such

wages was linked to his November 2010, work-related injury. Hilliard, 305 N.C. at

595, 290 S.E.2d at 683. Because Anders failed to produce evidence establishing that

his pre-injury earning capacity was affected, it is inconsequential whether his

subsequent recurring hernias were caused by the original compensable hernia.

Although the Commission failed to give Anders the benefit of the Parsons

presumption, a reversal on that issue would not change the outcome for Anders, so

we need not reach this issue or remand for a new causation determination. As a

result, the Commission’s Opinion and Award is affirmed.

      AFFIRMED.

      Judges ELMORE and DILLON concur.




                                        - 26 -
