An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                    NO. COA13-1410
                           NORTH CAROLINA COURT OF APPEALS

                                   Filed: 1 July 2014


MARY FRANCES POWE,
     Employer,
     Plaintiff,

      v.                                        North Carolina
                                                Industrial Commission
CENTERPOINT HUMAN SERVICES,                     I.C. No. 150598
     Employer,

BRENTWOOD SERVICES,
     Carrier,
     Defendants.


      Appeal    by     Plaintiff      from     Opinion    and    Award    entered    1

November     2013     by    the    North   Carolina      Industrial      Commission.

Heard in the Court of Appeals 10 April 2014.


      Law Offices of Kathleen G. Sumner by Kathleen G. Sumner,
      for plaintiff-appellant.

      Rudisill White & Kaplan, P.L.L.C. by Stephen Kushner, for
      defendants-appellees.


      STROUD, Judge.


      Mary Powe (“plaintiff”) appeals from an order and award

entered    by   the    Full       Commission   concluding       that   she   was   not
                                            -2-
disabled and denying her temporary total disability benefits. We

affirm.

                           I.      Procedural History

       This case is now on its fourth trip to this Court. The

factual      background    to    the    case       and    its        procedural       history

through 2013 have been more than adequately discussed in the

prior three opinions:           Powe v. Centerpoint Human Services, 183

N.C.    App.    300,     644    S.E.2d       269,        2007        WL    1412447     (2007)

(unpublished), disc. rev. denied, 362 N.C. 237, 659 S.E.2d 738

(2008), Powe v. Centerpoint Human Services (Powe II), 215 N.C.

App. 395, 715 S.E.2d 296 (2011), disc. rev. denied, ___ N.C.

___,   721     S.E.2d   230     (2012),      and    Powe        v.    Centerpoint       Human

Services (Powe III), ___ N.C. App. ___, 742 S.E.2d 218 (2013).

       In Powe III, we remanded to allow the Commission to make

findings      and    conclusions       on   whether       plaintiff          was     disabled

during the relevant time periods. Powe III, ___ N.C. App. at

___, 742 S.E.2d at 223. On remand, the Commission made a number

of   relevant       findings    concerning        plaintiff’s             medical    history,

vocational efforts, and treatment. It found that plaintiff is

capable of at least some work, but has failed to conduct a

reasonable job search.            Based on these findings, it concluded

that plaintiff failed to show that she was disabled and denied
                                 -3-
her an award of temporary total disability benefits.       Plaintiff

timely appealed to this Court.

                          II.    Disability

     Plaintiff argues that the Full Commission erred in denying

her temporary total disability benefits because it impermissibly

shifted the burden to her to show that she was disabled. She

further argues that the Commission erred by readdressing the

issue of vocational rehabilitation in violation of this Court’s

mandate. We disagree.

A.   Standard of Review

         Review of an opinion and award of the
         Industrial    Commission     is    limited   to
         consideration of whether competent evidence
         supports the Commission’s findings of fact
         and   whether    the   findings   support   the
         Commission’s    conclusions    of   law.   This
         Court’s duty goes no further than to
         determine whether the record contains any
         evidence tending to support the finding. If
         supported    by    competent    evidence,   the
         Commission’s findings are conclusive, even
         if the evidence might also support contrary
         findings. The Commission is the sole judge
         of the credibility of the witnesses and the
         weight to be given their testimony. The
         Commission’s conclusions of law are reviewed
         de novo.

Powe III, ___ N.C. App. at ___, 742 S.E.2d at 221 (citations,

quotation marks, and brackets omitted).

B.   Analysis
                                      -4-
      First,    plaintiff    argues    that    the     Commission    erred     by

requiring her to prove that she was disabled when there was a

prior   order     awarding   disability       compensation    that     was     not

appealed. She contends that when the Full Commission affirmed

the   Deputy    Commissioner’s   order      awarding   her   temporary       total

disability compensation from 29 April 2004 to 25 October 2004,

it implicitly found that she was disabled. She reasons that she

is therefore entitled to a presumption of disability.

           [A] presumption of disability in favor of an
           employee     arises      only     in     limited
           circumstances.    First,    the   employer   and
           employee may execute a Form 21, Agreement
           for   Compensation    for    Disability,    that
           stipulates to a continuing disability and is
           subsequently approved by the Industrial
           Commission.    Second,     the   employer    and
           employee may execute a Form 26, Supplemental
           Agreement as to Payment of Compensation,
           that stipulates to a continuing disability
           and is later approved by the Commission.
           Third,   an   employee    may   prove   to   the
           Industrial Commission the existence of a
           disability.

Johnson v. Southern Tire Sales and Service, 358 N.C. 701, 706,

599 S.E.2d 508, 512 (2004) (citations omitted).

      A plaintiff is only entitled to a presumption of disability

under   the     third   circumstance     “[a]fter      plaintiff     meets     her

initial burden.” Radica v. Carolina Mills, 113 N.C. App. 440,

447, 439 S.E.2d 185, 190 (1994). Thus, it is only “once the
                                        -5-
disability     is    proven    [that]   there       is   a   presumption    that   it

continues . . . .” Watson v. Winston-Salem Transit Authority, 92

N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988) (emphasis added).

        Defendants     filed    a   Form      60,    admitting     a   compensable

injury. But filing a Form 60 and paying disability benefits

pursuant thereto does not admit that plaintiff was or remains

disabled. Powe III, ___ N.C. App. at ___, 742 S.E.2d at 222.

Filing a Form 60 and paying benefits therefore does not create a

presumption of disability.          Id.       Although the Full Commission,

by its 2006 Order and Award, required defendants to reinstate

disability benefits for a discrete time period, they did so on

the basis of the Form 60, not on a finding of disability—which

had not been contested at that point. Plaintiff has never proven

disability and the burden of proof remains hers.

      Indeed, this Court specifically held in Powe III that “once

the continuing status of Plaintiff’s disability was disputed, it

became Plaintiff’s burden to prove that she remained disabled.”

Id.     Thus, this Court has already considered the burden issue

under the facts of this case and held that it is plaintiff’s

burden to prove disability. That holding is binding on us both

as the law of the case and as the published decision of another

panel    of   this    Court.    North   Carolina         Nat.   Bank   v.   Virginia
                                            -6-
Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983)

(“Once an appellate court has ruled on a question, that decision

becomes the law of the case and governs the question not only on

remand at trial, but on a subsequent appeal of the same case.”);

In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)

(“Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the

same    court   is    bound    by    that    precedent,     unless   it   has   been

overturned by a higher court.”).

       Plaintiff asserts that “any statement by the Powe III Court

indicating that the burden remains upon Ms. Powe to prove her

disability is clearly obiter dictum.” As discussed above, this

Court’s holding in        Powe III          directly addressed the issue of

which party should bear the burden of proof. We held that the

Commission erred in assuming disability because no presumption

arose   from    the   filing    of    a     Form   60.   This   determination    was

necessary to the Court’s disposition of the case. It was not, in

any sense, obiter dictum. The Court’s central holding in Powe

III therefore remains binding. The Commission did not err by

following the holding of this Court and placing the burden of

proving disability on plaintiff.
                                         -7-
       Plaintiff next asks this Court to vacate the present Order

and Award because the Full Commission “deleted” various findings

of fact from prior orders and modified others in the present

order. She contends that by making various findings relating to

vocational rehabilitation at variance with its prior findings on

those issues that we have upheld, the Full Commission violated

the law of the case doctrine.

       Plaintiff ignores that the only issue to be considered on

remand    was       disability,        not     compliance       with      vocational

rehabilitation. The Full Commission properly limited itself to

addressing    the    disability     issue      rather    than   readdressing       the

issue of plaintiff’s compliance with rehabilitation. We noted in

Powe III that “[i]f the Commission determines that Plaintiff has

not met her burden of proving disability during the contested

periods, then the issues regarding Plaintiff’s cooperation with

vocational rehabilitation efforts will be moot.” Powe III, ___

N.C.   App.   at    ___,   742    S.E.2d     at   223.   On     remand,    the   Full

Commission concluded, with one dissent, that plaintiff was not

disabled, so its findings on vocational rehabilitation efforts

were   irrelevant.         See   id.     Rather    than     ignoring      the    prior

opinions of this Court or the law of the case, the Industrial
                                    -8-
Commission scrupulously followed our instructions in Powe III.

Therefore, plaintiff’s second argument is without merit.

                    III. Constitutional Arguments

    Plaintiff also raises a number of constitutional arguments

related to the Industrial Commission’s decision to split costs

between her and defendant. She contends that forcing her to pay

$110 in costs violated her rights to substantive and procedural

due process, and to equal protection under the United States

Constitution. She argues that the Worker’s Compensation statutes

are constitutionally inadequate because they do not provide a

mechanism   by   which   indigent   claimants   can    proceed   in   forma

pauperis or by which costs may be waived. There is absolutely no

evidence in the record that plaintiff has ever raised this issue

before   the   Industrial   Commission.1   We   have   held   innumerable

times, including in Powe II, that “a constitutional question

which is not raised and passed upon in the trial court will not

ordinarily be considered on appeal.” Powe II, 215 N.C. App. at



1
  Admittedly, the lack of a transcript in the record makes it
difficult to say with certainty that this issue has never been
raised. But it is the appellant’s burden to show that the record
reflects that she has properly preserved the issues raised on
appeal. See Hill v. Hill, 173 N.C. App. 309, 322, 622 S.E.2d
503, 512 (2005) (noting that “an appellant has the duty to
ensure the record and complete transcript are properly prepared
and transmitted to this Court” and holding that an issue was not
preserved where preservation was not apparent from the record).
                                   -9-
412 n.3, 715 S.E.2d at 307 n.3 (citation and quotation marks

omitted). Plaintiff has not preserved this issue for our review

and we will not address it.

                            IV.    Conclusion

      For the foregoing reasons, we hold that the Commission did

not err in concluding that plaintiff has failed to prove that

she   is   disabled.   Plaintiff   did   not    preserve   her   arguments

concerning the fees, so we do not address them. As a result, we

affirm the 1 November 2013 Order and Award in full.

      AFFIRMED.

      Judges HUNTER, JR., Robert N. and DILLON concur.

      Report per Rule 30(e).
