             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA16-740

                               Filed: 18 July 2017

Industrial Commission, I.C. No. 577995

ANGELA BROWN, Next of Kin of DONALD L. BROWN, Deceased Employee,
Plaintiff,

            v.

N.C. DEPARTMENT OF PUBLIC SAFETY, Employer, SELF-INSURED (CORVEL
CORPORATION, Third-Party Administrator), Defendant.


      Appeal by Plaintiff from opinion and award of the North Carolina Industrial

Commission entered 22 April 2016. Heard in the Court of Appeals 20 February 2017.


      Campbell & Associates, by Bradley H. Smith, for Plaintiff-Appellant.

      Attorney General Joshua H. Stein, by Assistant Attorney General Ryan C.
      Zellar, for Defendant-Appellee.


      McGEE, Chief Judge.


      Angela Brown (“Plaintiff”) appeals from opinion and award of the North

Carolina Industrial Commission (“the Commission”) dismissing Plaintiff’s claim for

next-of-kin death benefits under the North Carolina Workers’ Compensation Act. We

affirm.

                                  I. Background

      Plaintiff’s father, Donald L. Brown (hereinafter, “Brown” or “Decedent”), was

employed as a correctional officer for the North Carolina Department of Correction
                          BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                       Opinion of the Court



(“Defendant”), at Foothills Correctional Institution in Morganton, when he was

injured during a work-related training exercise on 25 August 2005 (“the accident”).

The accident occurred while Brown was participating in a training exercise during

which Brown alleged he injured himself in a fall.                 Defendant filed a Form 19

“Employer’s Report of Employee’s Injury” that stated Defendant first became aware

of the accident on 19 November 2005. Brown alleged he injured his lower back, left

hip, and leg in the accident, but that Brown had not felt injured until the following

day, and had not received any medical treatment for the alleged injuries.1 Brown

filed a Form 18 “Notice of Accident to Employer” dated 13 December 2005, but this

form was file stamped by the Commission on 27 December 2005. In this Form 18,

Brown gave notice, “as required by law, that [he] sustained an injury[,]” and

“[d]escribe[d] the injury . . ., including the specific body part involved (e.g., right hand,

left hand)” as follows: “[l]ower [b]ack.”

       Defendant submitted a Form 61 “Denial of Workers’ Compensation Claim,”

dated 4 January 2006, stating it was “without sufficient information to admit

[Brown’s] right to compensation.” However, Defendant subsequently filed a Form 60

“Employer’s Admission of Employee’s Right to Compensation,” dated 23 March 2006,

in which Defendant “admit[ted Brown’s] right to compensation for an injury by



       1  The record copy of this Form 19 is not signed by any representative of Defendant, does not
include a date in the section labeled “Date Completed,” nor does it include any file stamp. Assuming
it was sent to the Commission as required, there is no record indication of when that occurred.

                                               -2-
                          BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                       Opinion of the Court



accident on 8/25/2005[.]” This Form 60 indicated that the “description of the injury

. . . is: low back strain[,]” and calculated a weekly compensation rate of $378.11. The

Form 60 did not include any alleged injuries to Brown’s hip or leg. Defendant

compensated Brown for his medical treatment related to his back injury while Brown

continued to work full-time in 2005 and 2006. Brown underwent surgery for his

compensable back injury in December 2007.

       Brown filed a second Form 18 on 15 May 2007, again alleging he injured his

back on 25 August 2005 when he “was participating in a training exercise[.]” Once

again, in this second Form 18, Brown made no claim that he had sustained injuries

to his left hip or leg as a result of the accident. Defendant “initiated payment of

temporary total disability . . . benefits to [Brown] in June 2008 in relation to his

compensable back injury.” These payments continued until Brown’s death. Brown

was “assessed at maximum medical improvement” on 10 February 2009, and was

“assigned a 15% permanent partial impairment rating to [his] back, and [was] written

out of work on a permanent basis” due to his ongoing “chronic back pain.”

       Brown submitted a third Form 18, “Amended Notice of Accident to Employer,”

dated 7 October 2010, alleging for the first time that, as a result of the accident, he

sustained injuries “[i]ncluding, but not limited to, [his] back and left hip and leg.”2



       2 We note that some of the documentation is file stamped, whereas other documentation, such
as this amended Form 18, is not. Because Defendant does not argue otherwise, we presume all record
documentation was correctly filed on or near the dates, if any, included on that documentation.

                                              -3-
                       BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                  Opinion of the Court



(emphasis added).     In addition to the “Amended Notice of Accident,” Brown

apparently filed a Form 33 “Request that Claim be Assigned for Hearing,” also dated

7 October 2010, in which he alleged that he had “sustained a compensable injury to

his left hip [during the 25 August 2005 exercise] which [was] being denied by []

Defendant[].” (emphasis added). We note that there is no record evidence that Brown

ever claimed he had sustained a compensable injury to his left hip prior to this

amended Form 18 that was apparently filed concurrently with his Form 33

requesting a hearing related to his alleged compensable hip injury. A hearing on the

matter was set for 5 May 2011.

       Two days before the hearing date, Brown filed a request that the matter be

“postponed indefinitely as there are currently no issues in dispute between the

parties” in order to allow the parties “to try to mediate [Brown’s] claim[.]” Pursuant

to Brown’s request, a deputy commissioner filed an order on 9 May 2011 removing

the matter from the “May 5, 2011 hearing calendar and the active hearing docket as

there [were] no issues currently in dispute.” The matter was referred to mediation.

The Commission’s opinion and award stated: “The parties reached an impasse in

settlement discussions at mediation. However, [Brown] did not file a new Form 33

request for hearing on the denied claim of left hip injury at any point during his

lifetime.”




                                         -4-
                        BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                  Opinion of the Court



      The Commission found that Brown “received significant medical treatment for

his left hip from 2007 until his death[.]” This treatment included a total left hip

replacement in 2008, “at which time [Brown] denied to the medical provider any

specific injury to [his] hip.”     Brown underwent multiple additional surgical

procedures related to his left hip replacement that were complicated by persistent

infections. However, “Defendant did not authorize, direct, or pay for any left hip

medical treatment[.]”

      Temporary total disability benefits related to Brown’s back injury, totaling

$105,233.12, continued until Brown’s death on 1 January 2014.            Total medical

benefits paid for Brown’s compensable back injury amounted to $40,198.87. Brown’s

death certificate listed alcoholic cirrhosis as the immediate cause of death, and noted

             underlying causes of death as hepatic encephalopathy [–
             altered mental state resulting from alcoholic cirrhosis of
             the liver R62 –] for a period of weeks prior to death and
             chronic left hip and psoas muscle abscess refractory to
             antibiotics [– infection resistant to antibiotics resulting in
             abscess of hip and associated muscle, likely resultant of
             Brown’s 2008 left hip replacement –] for approximately six
             years prior to the date of death.

      Plaintiff, as Brown’s next of kin, submitted a Form 33 “Request that Claim be

Assigned for Hearing” dated 21 August 2014, in which she sought death benefits

pursuant to N.C. Gen. Stat. § 97-38. In Plaintiff’s Form 33, she claimed that the parts

of Decedent’s body that had been injured in the 25 August 2005 accident were his

“[b]ack and hip.”   Defendant mailed a response to Plaintiff’s Form 33, dated 9


                                         -5-
                       BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                  Opinion of the Court



December 2014, in which it stated: “Decedent sustained a compensable low back

injury on August 25, 2005 during a training exercise. Defendant accepted [P]laintiff’s

claim as compensable and has paid all benefits to which [D]ecedent [was] entitled for

his compensable [lower back] injury. Defendant denies that the August 25, 2005

injury proximately caused [D]ecedent’s death.” Defendant again identified the only

compensable injury suffered by Decedent as “low back strain.” The matter was set

for a hearing before a deputy commissioner on 21 April 2015, but Plaintiff and

Defendant agreed to proceed without a hearing, and the record in this matter was

closed on 14 September 2015 after the deputy commissioner received depositions,

briefs, and other materials. The deputy commissioner entered an opinion and award

on 21 October 2015, in which he concluded, inter alia, that Plaintiff was entitled to

payment of death benefits pursuant to N.C. Gen. Stat. § 97-38, and ordered

Defendant to pay Plaintiff said benefits.

      Defendant appealed the deputy commissioner’s order to the Commission.

Following a hearing on 8 March 2016, the Commission entered an opinion and award

dismissing with prejudice Plaintiff’s claims for (1) medical compensation related to

Decedent’s alleged hip injury, and (2) death benefits pursuant to N.C.G.S. § 97-38.

The Commission concluded, inter alia, that (1) Decedent’s cause of death was

“unrelated to his compensable back injury[;]” and (2) Plaintiff’s claim for death




                                            -6-
                         BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                   Opinion of the Court



benefits based on Decedent’s denied hip injury was time-barred under N.C.G.S. § 97-

38. Plaintiff appeals.

                                     II. Argument

      Plaintiff’s sole argument on appeal is that the Commission erred by dismissing

her claim for death benefits based on its conclusion that the claim was time-barred

pursuant to N.C.G.S. § 97-38. We disagree.

                                A. Standard of Review

      “The standard of review for an opinion and award of the North Carolina

Industrial Commission is (1) whether any competent evidence in the record supports

the Commission’s findings of fact, and (2) whether such findings of fact support the

Commission’s conclusions of law.” Cox v. City of Winston-Salem, 171 N.C. App. 112,

114, 613 S.E.2d 746, 747 (2005) (citation and internal quotation marks omitted).

Plaintiff does not challenge the Commission’s findings of fact; therefore, they are

binding on appeal. Hill v. Fed. Express Corp., 234 N.C. App. 488, 490, 760 S.E.2d 70,

73 (2014) (citation and internal quotation marks omitted).            “The Industrial

Commission’s conclusions of law are reviewable de novo by this Court.” Moore v. City

of Raleigh, 135 N.C. App. 332, 334, 520 S.E.2d 133, 136 (1999) (citation omitted).

Plaintiff’s appeal also raises questions of statutory interpretation, which this Court

considers de novo. See In re Foreclosure of Vogler Realty, Inc., 365 N.C. 389, 392, 722

S.E.2d 459, 462 (2012).



                                          -7-
                       BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                   Opinion of the Court



                                      B. Analysis

      Plaintiff’s claim for death benefits is based upon N.C.G.S. § 97-38, which states

in relevant part:

             If death [of an employee] results proximately from a
             compensable injury . . . and within six years thereafter, or
             within two years of the final determination of disability,
             whichever is later, the employer shall pay or cause to be
             paid, subject to the provisions of other sections of this
             Article, weekly payments of compensation equal to sixty-
             six and two-thirds percent (66 2/3 %) of the average weekly
             wages of the deceased employee at the time of the accident,
             . . . and burial expenses not exceeding ten thousand dollars
             ($10,000), to the person or persons entitled thereto[.]

N.C. Gen. Stat. § 97-38 (2015). N.C.G.S. § 97-38 confers a right to receive death

benefits upon “beneficiaries of an injured worker whose death results from a

compensable injury[.]” Pait v. SE Gen. Hosp., 219 N.C. App. 403, 413, 724 S.E.2d

618, 626 (2012). “[T]he [beneficiary’s] right to compensation is ‘an original right

. . . enforceable only after (the employee’s) death.’” Booker v. Duke Med. Ctr., 297

N.C. 458, 466, 256 S.E.2d 189, 195 (1979) (citations omitted). Therefore, Brown’s

actions or inactions related to his potential compensation claims had no impact on

Plaintiff’s “original right” to recover pursuant to N.C.G.S. § 97-38.

             [A] death benefits claim [is] a distinct claim of the
             beneficiaries . . . . Specifically, our Supreme Court [has]
             stated:

                [D]uring [the injured employee’s] lifetime his
                [beneficiaries] were not parties in interest to the
                proceeding he brought for the enforcement of his claim.


                                          -8-
                       BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                   Opinion of the Court



                 Their right to compensation did not arise until his death
                 and their cause of action was not affected by anything
                 he did[.] . . . The basis of their claim was an original
                 right which was enforceable only after his death.

             Accordingly . . . a death benefits claim under the Workers’
             Compensation Act is a distinct claim to those beneficiaries
             upon the death of the injured [employee]. Notably, because
             the death benefits claim does not arise until the injured
             employee’s death . . . the rights of the beneficiaries under
             the Act are not implicated until the injured employee's
             death.

Pait, 219 N.C. App. at 414, 724 S.E.2d at 626–27 (citations omitted).

      In addition to the requirements of compensability and proximate causation,

N.C.G.S. § 97-38 “imposes express time limitations on the accrual of death benefits

claims.” Pait, 219 N.C. App. at 413, 724 S.E.2d at 626. Specifically, N.C.G.S. § 97-

38 requires payment of death benefits only “[i]f [the employee’s] death results

proximately from a compensable injury . . . and within six years thereafter, or within

two years of the final determination of disability, whichever is later[.]” N.C.G.S. § 97-

38 (2015) (emphasis added).

      The accident occurred on 25 August 2005. Decedent died on 1 January 2014,

and Plaintiff filed her Form 33 seeking death benefits pursuant to N.C.G.S. § 97-38

on 21 August 2014. Plaintiff acknowledges that Decedent did not die “within six

years” of the accident and therefore her claim was not timely under that prong of the

statute of limitations. However, Plaintiff argues that, because no final determination

of disability was ever made, the second prong of the statute of limitations – the “final


                                          -9-
                       BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                   Opinion of the Court



determination of disability” prong – renders her claim timely. See N.C.G.S. § 97-38

(providing that a claim is timely “[i]f death [of the employee] results proximately from

a compensable injury . . . within two years of the final determination of disability”).

      This Court has held that, where there has been no final determination of

disability with respect to a compensable injury, a claim for death benefits is not time-

barred by the statute of limitations as set forth in N.C.G.S. § 97-38. Shaw v. U.S.

Airways, Inc., 217 N.C. App. 539, 543, 720 S.E.2d 688, 691 (2011). In Shaw, the

Commission awarded death benefits to the plaintiff, the widow of a deceased

employee. Id. at 540-41, 720 S.E.2d at 689-90. The employee had suffered a work-

related back injury, and died eight years later. Id. at 540, 720 S.E.2d at 689. Prior

to the employee’s death, the employer admitted the compensability of the work-

related back injury by filing a “Form 60, Employer's Admission of Employee’s Right

to Compensation Pursuant to N.C. Gen. Stat. § 97–18(b).”           Id.   Following the

employee’s death, the plaintiff filed a Form 33 requesting a hearing on her right to

death benefits pursuant to N.C. Gen. Stat. § 97-38, and death benefits were granted.

Shaw, 217 N.C. App. at 540–41, 720 S.E.2d at 689–90. In Shaw, the defendants

appealed, arguing that the plaintiff’s N.C.G.S. § 97-38 claim was barred by the statute

of limitations. Shaw, 217 N.C. App. at 542, 720 S.E.2d at 690. Because it was

undisputed that the compensable injury in Shaw occurred more than six years prior




                                          - 10 -
                           BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                        Opinion of the Court



to the employee’s death, this Court analyzed the “final determination of disability”

prong of the statute of limitations to determine the timeliness of the plaintiff’s claim:

               As noted by the Commission in the opinion and award
               entered 17 December 2010, defendants paid temporary
               total disability to [the employee] pursuant to a Form 60 and
               subsequent Form 62. Entry of these forms raises only a
               presumption of disability, not a final determination.

                   Under the Workers’ Compensation Act, disability
                   is defined by a diminished capacity to earn
                   wages, not by physical infirmity. Thus, the
                   employee has the burden “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.”

               There is nothing in the record to indicate that [the
               employee] was paid anything other than temporary total
               benefits pursuant to Forms 60 and 62.

               Therefore, as there was no determination of [the
               employee]’s final determination of disability prior to the
               Commission’s 17 December 2010 opinion and award
               determining that his death was the proximate result of his
               12 July 2000 compensable injury, [the plaintiff’s] 8 April
               2009 claim for death benefits was not untimely and not
               barred by the statute of limitations under N.C. Gen. Stat.
               § 97–38.3

Shaw, 217 N.C. App. at 542–43, 720 S.E.2d at 690–91 (citations omitted).




       3  We note that the relevant inquiry is whether the employee’s death occurred within two years
of the final determination of disability. Because no final determination of disability was ever made,
this Court in Shaw determined that the two-year limitations period of this prong had never started to
run and, therefore, it could not serve to bar the plaintiff’s claim.

                                               - 11 -
                        BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                   Opinion of the Court



      Plaintiff contends, relying on Shaw, that because “there [had been] no final

determination of disability [with respect to Decedent’s compensable back injury] at

the time of [Decedent’s] death,” Plaintiff’s death benefits claim, based on Decedent’s

alleged hip injury, could be “filed more than six years from the date of accident

regardless of the injury that form[ed] the basis of the . . . claim.” (emphasis added). In

other words, Plaintiff argues that because Decedent had a compensable back injury

for which no final determination of disability was ever made, she was free to bring

her N.C.G.S. § 97-38 claim based on Decedent’s hip injury at any time – that, on the

facts before us, no limitations period applied to her claim.

      However, this Court in Shaw held that, because the employee’s compensable

back injury had proximately caused his death and that because there had been no

“final determination of disability” with respect to that compensable back injury, the

plaintiff’s claim for death benefits was not untimely pursuant to N.C.G.S. § 97-38.

Id. at 541, 720 S.E.2d at 690-91. Nothing in Shaw suggests that failure to make a

final determination of disability for a compensable injury that was not a proximate

cause of an employee’s death tolls the N.C. Gen. Stat. § 97-38 statute of limitations.

      In the present case, Brown filed a Form 18, “Notice of Accident,” on 20

February 2006, claiming that on 25 August 2005 he sustained a work-related accident

to his lower back. Defendant filed a Form 60 on 23 March 2006, admitting Brown’s

right to compensation for the “low back strain” resulting from his 25 August 2005



                                          - 12 -
                       BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                  Opinion of the Court



“injury by accident.” Defendant never filed a Form 60 admitting compensability for

any injury to Brown’s left hip, nor did the Commission ever make a determination

that the hip injury was a compensable work-related injury.

      In its opinion and award, the Commission recognized the difference between

the facts of Shaw and those in the present case, finding that “[P]laintiff [was] not

entitled to use [D]ecedent’s disability status resulting from his compensable back

injury to pursue her claim of benefits for death proximately resulting from

[D]ecedent’s denied left hip injury using the two-year statute of limitations provision

[in N.C. Gen. Stat. § 97-38].” (emphasis added). We reject Plaintiff’s argument that,

in the absence of a final determination of disability with respect to Decedent’s

compensable back injury, Plaintiff’s claim for death benefits based on Decedent’s hip

injury, which was never determined to be compensable, was per se timely under

N.C.G.S. § 97-38.

      Under the Workers’ Compensation Act, “compensability” and “disability” are

distinct concepts, involving different elements of proof. Clark v. Wal-Mart, 360 N.C.

41, 43, 619 S.E.2d 491, 492-93 (2005). Thus, an employee must prove that he has a

compensable injury before there can be any “determination of disability.” Id. at 44,

619 S.E.2d at 493 (“[D]efendants fully admitted the compensability of the

[employee’s] injury, leaving her only to prove her disability in order to receive

continued compensation.     [T]he law in North Carolina is well settled that an



                                         - 13 -
                        BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                     Opinion of the Court



employer’s admission of the ‘compensability’ of a workers’ compensation claim does

not give rise to a presumption of ‘disability’ in favor of the employee.”).

      We hold that the phrase “final determination of disability,” as used in N.C.G.S.

§ 97-38, is limited to the final determination of disability for the compensable injury

that is specifically alleged to have proximately caused the employee’s death. N.C.G.S.

§ 97-38 (“[i]f death results proximately from a compensable injury . . . within two years

of the final determination of disability, . . . the employer shall pay . . . weekly

payments of compensation”) (emphasis added). The final determination of disability

for a compensable injury cannot be made unless the compensability of such injury has

already been established.     We note that N.C.G.S. § 97-38 refers to “the final

determination of disability,” not “a final determination of disability.” This supports

our interpretation that the statute contemplates a determination of disability with

respect to the specific injury which forms the basis of the claim for death benefits. See

N.C. Dept. of Correction v. N.C. Medical Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649

(2009) (“Because the actual words of the legislature are the clearest manifestation of

its intent, we give every word of the statute effect, presuming that the legislature

carefully chose each word used.”).

      This Court has previously rejected interpretations of N.C.G.S. § 97-38 that

“would lead to absurd results, contrary to the manifest purpose of our Legislature[.]”

Pait, 219 N.C. App. at 415, 724 S.E.2d at 627. As the Commission in the present case



                                            - 14 -
                        BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                   Opinion of the Court



concluded, “[t]o accept [Plaintiff’s] argument would allow an individual to delay

pursuing a claim of benefits for death proximately resulting from a denied injury on

an indefinite basis and would subvert the overriding purpose of having a statute of

limitations, which is to prevent the litigation of stale claims.” See, e.g., Trexler v.

Pollock, 135 N.C. App. 601, 606-07, 522 S.E.2d 84, 88 (1999) (rejecting interpretation

of statute that “would result in a virtually unlimited statute of limitations” for certain

claims, and noting that “[s]tatutes of limitations exist for a reason – to afford security

against stale claims.”).

        We recognize that the application of any statute of limitations may result in

hardship to a plaintiff. As our Supreme Court has acknowledged,

             application of [N.C. Gen. Stat. §] 97-38 may sometimes
             have the effect of barring an otherwise valid and provable
             claim simply because the employee did not die within the
             requisite period of time. . . . The remedy for any inequities
             arising from the statute, however, lies not with the courts
             but with the legislature.

Booker v. Duke Medical Center, 297 N.C. 458, 483-84, 256 S.E.2d 189, 205 (1979); see

also Joyner v. J.P. Stevens & Co., 71 N.C. App. 625, 627, 322 S.E.2d 636, 637-38

(denying plaintiff’s claim for benefits as untimely under the version of N.C.G.S. § 97-

38 in effect at the time of employee’s death, and noting that “[the] holding [was] a

harsh but necessary result of the statutory scheme”). However, we do not believe the

General Assembly intended the absurd result of excluding from any statute of

limitations claims under N.C.G.S. § 97-38 based upon injuries that had never been


                                          - 15 -
                       BROWN V. N.C. DEPT. OF PUBLIC SAFETY

                                  Opinion of the Court



found to be compensable, simply because some different injury – not a proximate

cause of the employee’s death – had been found compensable, but no final

determination of disability for that injury had been made.

                                   III. Conclusion

      For the reasons stated above, we hold the Commission did not err in denying

Plaintiff’s claim for death benefits as time-barred pursuant to N.C.G.S. § 97-38.

      AFFIRMED.

      Judges DAVIS and TYSON concur.




                                         - 16 -
