              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1299

                               Filed: 21 March 2017

North Carolina Industrial Commission, I.C. No. 890382

CELIA A. BELL, Employee, Plaintiff,

             v.

GOODYEAR TIRE AND RUBBER COMPANY, Employer, LIBERTY MUTUAL
INSURANCE COMPANY, Carrier, Defendants.


      Appeal by defendants and cross-appeal by plaintiff from opinion and award

entered 3 September 2015 by the North Carolina Industrial Commission. Heard in

the Court of Appeals 26 April 2016.


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

      Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J. Ledwith and M.
      Duane Jones, for defendant-appellants and cross-appellees.


      BRYANT, Judge.


      Where defendants failed to rebut the presumption that plaintiff’s 2013

shoulder injury was causally related to her compensable 2007 shoulder injury, we

affirm the Industrial Commission’s conclusion and award of disability compensation.

Where defendants failed to reinstate plaintiff’s temporary total benefits following

defendants’ admission of plaintiff’s right to compensation and notice of her

unsuccessful trial return to work and where defendants further failed to file with the

Industrial Commission a request to terminate plaintiff’s disability compensation,
                         BELL V. GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



defendants are subject to a ten percent penalty for payments due to plaintiff following

her unsuccessful trial return to work.      Where the Commission acted within its

discretion by denying plaintiff an award of attorney fees and costs, we affirm the

denial of plaintiff’s request.

       On 12 May 2007, plaintiff Celia A. Bell was employed by defendant-employer

Goodyear Tire and Rubber Company as a tire builder. When pulling and twisting a

tire carcass, she felt a “pop” in her right shoulder. Plaintiff was examined by Dr.

Christopher Barnes, who “performed an arthroscopic subacromial decompression and

arthroscopic superior labrum anterior and posterior (SLAP) lesion repair” to her right

shoulder. Plaintiff filed a Form 18, Notice of Accident to Employer and Claim of

Employee regarding the injury to her right shoulder. Defendant entered a Form 26A,

Employer’s Admission of Employee’s Right to Permanent Disability which was

approved by the Commission on 21 December 2008. After defendant filed three Form

60s, Employer’s Admission of Employee’s Right to Compensation, altering the

compensation amount and the body part injured, Deputy Commissioner Chrystal

Redding Stanback filed an Opinion and Award in which she concluded that plaintiff

sustained a “compensable injury to her right shoulder pursuant to N.C. Gen. Stat. §

97-2(6), and concluded Plaintiff was entitled to payment of future necessary medical

compensation for her compensable injury pursuant to N.C. Gen. Stat. § 97-25.1.”

(Emphasis added).



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                                   Opinion of the Court



      On 9 January 2010, plaintiff again injured her right shoulder at work. The

parties entered into a Consent Order approved by the Industrial Commission,

wherein “the parties agree[d] that the . . . right shoulder exacerbation injury [was] a

continuance of the admittedly compensable right shoulder injury sustained on May

12, 2007.”

      Following the 2010 incident, plaintiff was examined by Dr. Robert Carroll, a

physician board certified in orthopedics, specializing in shoulder treatment.

              Dr. Carroll . . . probed the biceps tendon and noted a suture
              anchor which had grasped tissue from the middle
              glenohumeral ligament. Dr. Carroll then debrided the scar
              tissue at the suture site, released the glenohumeral
              ligament and removed the suture material. Dr. Carroll
              testified that Plaintiff’s symptoms were likely coming from
              the acromioclavicular joint and the rotator cuff but it was
              also possible her pain was due to the biceps tendon.

On 14 March 2012, Dr. Carroll noted that plaintiff had achieved maximum medical

improvement (MMI) and assigned her permanent physical restrictions to avoid

carrying over 45 pounds, lifting more than 25 pounds from waist to shoulder, and

over 40 pounds from waist to floor. However, when defendant could not provide

plaintiff a job within those physical restrictions, plaintiff did not return to work.

      On 21 December 2012, plaintiff reported to Dr. Carroll after she felt pain in

her right shoulder while raking her yard. “Dr. Carroll assessed right shoulder pain

and possible proximal biceps tendinitis.” He prescribed a steroid taper and pain

medication.


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                                  Opinion of the Court



      On 19 August 2013, plaintiff returned to work in a position that defendant

described as within her permanent physical restrictions. On 6 September, plaintiff

was performing heavy lifting when, again, she felt a “pop” in her right shoulder.

Plaintiff sought treatment at a clinic later that day. On 9 September, plaintiff was

seen by Dr. Carroll. “Dr. Carroll found limited and uncomfortable internal rotation

and relative weakness of the rotator cuff.” Plaintiff was assigned restrictions of no

lifting or carrying over 5 pounds and no pulling or pushing over 10 pounds. But

because defendants could not accommodate these restrictions, plaintiff did not return

to work until 3 October 2013, when Dr. Carroll assigned new physical restrictions:

“no lifting or carrying over 20 pounds, no pulling or pushing over 30 pounds, no work

over shoulder height, and the ability to take 10-minute breaks every two hours.”

      Back on 12 September 2013, defendant filed a Form 28T, Notice of Termination

of Compensation by Reason of Trial Return to Work, which indicated that payments

of temporary total disability benefits to plaintiff were terminated on 18 August 2013

due to plaintiff’s trial return to work on 19 August 2013. On 16 September 2013,

defendant filed a Form 62, Notice of Reinstatement or Modification of Compensation.

However, defendant “pulled and destroyed” the form and failed to reinstate plaintiff’s

disability compensation.

      Plaintiff returned to work on 3 October and continued through 23 October

2013, when she again returned to Dr. Carroll with complaints of shoulder pain.



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                                   Opinion of the Court



Plaintiff was diagnosed with “proximal biceps tendinitis” in her right shoulder. Given

new work restrictions, which defendant was unable to accommodate, plaintiff did not

return to work after 23 October 2013 and remained out of work through 27 May 2015

(the date this matter was heard before the North Carolina Industrial Commission).

      On 14 October 2013, plaintiff filed a motion with the Industrial Commission to

request reinstatement of temporary total disability compensation.           Defendants

challenged whether “[p]laintiff’s current complaints resulting in work restrictions

[were] causally related to the accepted May 12, 2007 injury or to the documented

lifting incident without accident of September 6, 2012.”

      The matter came before a deputy commissioner who concluded that “[t]he

medical opinion testimony in this case [was] insufficient to establish that [p]laintiff’s

biceps tendon is causally related to Plaintiff’s original right shoulder injury in 2007

or subsequent re-injury in 2010[,]” and denied plaintiff’s claim for additional

temporary total disability compensation benefits stemming from the 6 September

2013 incident. Plaintiff appealed to the Full Commission (“the Commission”).

      On 3 September 2015, the Commission filed an Opinion and Award reversing

the opinion and award of the deputy commissioner.          In its findings of fact, the

Commission noted testimony from three physicians (Drs. Kevin Speer, Christopher

Barnes, and Carroll) that was equivocal as to whether plaintiff’s 6 September 2013

injury to her biceps tendon was causally related to her admittedly compensable 12



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                                   Opinion of the Court



May 2007 right shoulder injury. However, the Commission noted that due to the

Parsons presumption, a rebuttable presumption that additional medical treatment is

related to an initial compensable injury (as discussed in Parsons v. Pantry, 126 N.C.

App. 540, 485 S.E.2d 867 (1997)), defendants had the burden of proof to show that

the September 2013 injury and treatment was not directly related to the 2007

compensable injury.    The Commission concluded defendants failed to rebut the

presumption.    The Commission thus determined that plaintiff’s attempted trial

return to work was unsuccessful due to her 12 May 2007 injury.              Defendants

Goodyear Tire and Rubber Company and Liberty Mutual Insurance Company were

ordered to pay plaintiff temporary total disability benefits for the stated periods from

9 September to 5 October 2013 and from 24 October 2013 to the date of hearing, and

until plaintiff returned to work or otherwise ordered by the Commission.

      Defendants and plaintiff both appeal.

                    __________________________________________

      On appeal, (I) defendants argue the Commission erred by concluding plaintiff’s

shoulder injury was causally related to her compensable work injury. On cross-

appeal, plaintiff argues the Commission erred by failing to (II) conclude that

defendants were required to immediately reinstate compensation benefits upon

learning of plaintiff’s failed trial return to work and (III) assess a late penalty and

impose sanctions as a result.



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                       BELL V. GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



                                Standard of Review

      The Commission is the ultimate finder of fact in a workers’ compensation case.

Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998). This Court

reviews an award from the Commission to make two determinations: “(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) (citation omitted). On appeal, findings of fact may

be set aside if there is a complete lack of competent evidence to support them. Young

v. Hickory Bus. Furniture, 353 N.C. 227, 230 538 S.E.2d 912, 914 (2000). Even if

there is evidence to support a contrary finding, the Industrial Commission’s findings

of fact are conclusive on appeal if they are supported by competent evidence.

Sanderson v. Ne. Constr. Co., 77 N.C. App. 117, 121, 334 S.E.2d 392, 394 (1985)

(citation omitted). The Commission’s conclusions of law are reviewed de novo. Griggs

v. E. Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).

                                 Defendants’ appeal

                                           I

      Defendants argue that the Commission erred by concluding plaintiff’s shoulder

injury was causally related to her compensable 12 May 2007 work injury. Defendants

contend the injury sustained on 6 September 2013 was to the biceps tendon and assert

that it is a part of the body different from the superior labrum and rotator cuff



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                                   Opinion of the Court



plaintiff injured on 12 May 2007. Thus, defendants argue the Commission erred by

applying the Parsons presumption and, as a result, improperly shifted the burden of

proof to defendants to disprove the causal relationship between the injuries. We

disagree.

      “In a worker’s compensation claim, the employee has the burden of proving

that his claim is compensable. An injury is compensable as employment-related if

any reasonable relationship to employment exists.” Holley v. ACTS, Inc., 357 N.C.

228, 231, 581 S.E.2d 750, 752 (2003) (citations omitted). Once an employee has

established a causal relationship between a workplace accident and the injury, an

employer is required to pay future medical treatment directly related to the original

compensable injury. Parsons, 126 N.C. App. at 541–42, 485 S.E.2d at 869. “Where a

plaintiff's injury has been proven to be compensable, there is a presumption that the

additional medical treatment is directly related to the compensable injury. The

employer may rebut the presumption with evidence that the medical treatment is not

directly related to the compensable injury.” Perez v. Am. Airlines/AMR Corp., 174

N.C. App. 128, 135, 620 S.E.2d 288, 292 (2005) (citations omitted) (citing Parsons,

126 N.C. App. at 542, 485 S.E.2d at 869); see also id. at 136 n.1, 620 S.E.2d at 293 n.1

(“We can conceive of a situation where an employee seeks medical compensation for

symptoms completely unrelated to the compensable injury. But the burden of




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                                  Opinion of the Court



rebutting the presumption of compensability in this situation, although slight, would

still be upon the employer.”).

      Defendants accepted plaintiff’s 12 May 2007 right shoulder injury as

compensable, and on 28 October 2009, Deputy Commissioner Stanback issued an

opinion and award concluding there was a “substantial risk of the necessity of future

medical compensation for Plaintiff for her compensable injury.” Defendants argue

the Commission erred in applying the Parson’s presumption because plaintiff

sustained a new injury to a different body part. We disagree. Defendants accepted

the compensability of the injury to plaintiff’s right shoulder and will not be heard to

say now that the right bicep tendon, a part of the right shoulder complex, is not

connected to the right shoulder.       Defendants challenge to the Commission’s

application of the Parson’s presumption must fail, and defendants properly had the

burden of proof to rebut the presumption that a causal relationship existed between

the injuries.

      Before this Court, defendants contest the causal relationship between

plaintiff’s 12 May 2007 shoulder injury and the proximal biceps tendinitis diagnosed

after plaintiff’s 6 September 2013 incident. They assert that they have met the

burden of proof that plaintiff’s bicep injury is causally related to her 6 September

2013 incident, identifying proximal biceps tendinitis, and not causally related to the

compensable injury occurring 12 May 2007.



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                                           Opinion of the Court



        The Commission reviewed testimony from three physicians, each of whom

examined plaintiff: Dr. Carroll, Dr. Barnes, and Dr. Speer. After reviewing the

testimony of Dr. Barnes, a board-certified orthopedic surgeon specializing in

treatment of upper extremities, the Commission made the following unchallenged

finding of fact1:

                [Dr. Barnes testified that a] superior labral tear is repaired
                at the location where the biceps tendon attaches to the
                shoulder socket. Once the labrum is repaired, it is not as
                strong as it was prior to the tear, in part because it fills
                with scar tissue. The superior labral repair [conducted as
                a result of the 12 May 2007 injury] placed Plaintiff at a
                higher risk of having an injury to the biceps tendon.

And though defendants also challenge the Commission’s finding of fact regarding Dr.

Carroll’s testimony, in their brief to this Court, defendants acknowledge the

viewpoint expressed by both Drs. Speer and Barnes “that Dr. Carroll is the provider

in the best position to give an opinion as [to] the state of Plaintiff’s shoulder between

the 2011 surgery and the 6 September 2013 Urgent Care presentation.” We note in

pertinent part that the finding of fact based on Dr. Carroll’s testimony is consistent

with the Commission’s unchallenged finding of fact regarding Dr. Barnes’s testimony.

                [Dr. Carroll] went on to testify that the biceps tendon is
                part of the “complex,” that where the bicep[] attaches to the
                bone is where the anterior labrum is, and that the multiple
                shoulder surgeries Plaintiff had put her at risk for further
                injury, and there it is related. However, he ultimately

        1In support of this finding, the Commission cited Dr. Barnes testimony: “ ‘I think it’s going to
boil down to is I don’t know if she hurt it at work, . . .’ but the prior superior labral repair ‘places her
at a higher risk of subsequent injuries.’ ”

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             concluded that it was too speculative for anyone to say
             whether her pain is coming from the 2013 event, or all
             related back to May 12, 2007.

      Three physicians examined plaintiff, each board certified in orthopedics and

specializing in treatment of the shoulder or upper extremities. And each testified

that he could not say to a reasonable degree of medical certainty that plaintiff’s 2013

diagnosis of proximal biceps tendinitis was caused by her 12 May 2007 compensable

injury. Nevertheless, Drs. Barnes and Carroll each testified that the superior labral

repair plaintiff underwent in 2007 weakened the complex where her bicep attaches

to the shoulder socket and placed plaintiff at a higher risk for injury to the bicep

tendon.   Thus, this testimony lends support to the presumption that additional

medical treatment to plaintiff’s right shoulder complex is directly related to the 12

May 2007 compensable right shoulder injury. Perez, 174 N.C. App. at 135, 620 S.E.2d

at 292 (establishing a compensable injury raises a presumption that future medical

treatment is related to the compensable injury). Therefore, there was sufficient

evidence to support the Commission’s findings of fact and conclusions of law that the

medical treatment of plaintiff’s right shoulder proximal biceps tendinitis was causally

related to her 12 May 2007 compensable right shoulder injury. With the burden of

proof shifted, defendants failed to present evidence to disprove the causal connection.

See id. at 135, 620 S.E.2d at 292 (rebutting the presumption of a causal connection




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                                   Opinion of the Court



between a compensable injury and future medical treatment is initially the

employer’s burden). Accordingly, defendants’ argument is overruled.

                                Plaintiff’s cross-appeal

                                        II & III

      On cross-appeal, plaintiff argues that the Commission erred by failing to

conclude that defendants were required to immediately reinstate disability

compensation benefits upon notice that her trial return to work was unsuccessful

thus subjecting defendants to sanctions in the form of a late payment penalty,

attorney fees, and costs. We agree in part.

      Pursuant to the Workers’ Compensation Rules of the Industrial Commission,

“when compensation for total disability being paid pursuant to N.C. Gen. Stat. § 97-

29 is terminated because the employee has returned to work for the same or a

different employer, such termination is subject to the trial return to work provisions

of N.C. Gen. Stat. § 97-32.1.” Workers’ Comp. R. of N.C. Indus. Comm’n 404A(1),

2014 Ann. R. (N.C.) 1275, 1283. Pursuant to General Statutes, section 97-32.1,

             an employee may attempt a trial return to work for a period
             not to exceed nine months. . . . If the trial return to work is
             unsuccessful, the employee’s right to continuing
             compensation under G.S. 97-29 [(“Rates and duration of
             compensation for total incapacity”)] shall be unimpaired
             unless terminated or suspended thereafter pursuant to the
             provisions of [the Workers’ Compensation Act].




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                                   Opinion of the Court



N.C. Gen. Stat. § 97-32.1 (2015) (emphasis added); see also Burchette v. E. Coast

Millwork Distribs, Inc., 149 N.C. App. 802, 808–09, 562 S.E.2d 459, 463 (2002)

(discussing the statutory authority for ceasing and reinstating disability

compensation pursuant to N.C. Gen. Stat. §§ 97-18.1 and -32.1). “If during the trial

return to work period, the employee must stop working due to the injury for which

compensation had been paid, the employee should complete and file with the

Industrial Commission a Form 28U[, (‘Request that compensation be reinstated’)] . .

. .” Workers’ Comp. R. 404A(2). “If the employee fails to provide the required

certification of an authorized treating physician as specified in [Workers’ Comp. R.

404A(2)], . . . the employer or carrier/administrator shall not be required to resume

payment of compensation.” Id. 404A(3) (emphasis added). However, interpreting

N.C. Gen. Stat. § 97-32.1, this Court has held that “[t]hough an employee ‘should’ give

notice to an employer of an unsuccessful trial return to work via a Form 28U prior to

total disability compensation resuming, a Form 28U is not required for reinstatement

of compensation.” Davis v. Hospice & Palliative Care of Winston-Salem, 202 N.C.

App. 660, 668, 692 S.E.2d 631, 637 (2010) (emphasis added) (citing I.C. Rule 404A(3)

(2009); Burchette, 149 N.C. App. at 809, 562 S.E.2d at 463)); accord Jenkins v. Pub.

Serv. Co. of N.C., 134 N.C. App. 405, 411, 518 S.E.2d 6, 10 (1999) (“If [a] trial return

to work is unsuccessful, the employee’s right to continuing compensation under G.S.

97-29 [for total incapacity] shall be unimpaired . . . . To expedite reinstatement of an



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employee’s compensation pending a determination by the Commission of whether an

employee’s return to work was unsuccessful, the Commission’s rules provide that an

employee may file a Form 28U ‘Request that Compensation be Reinstated.’ . . . Upon

the filing of a properly completed Form 28U, the defendant-employer shall forthwith

resume payment of compensation for total disability.”                  (alterations in original)

(citations omitted)), rev’d in part on other grounds, 351 N.C. 341, 524 S.E.2d 805

(2000).

       To the extent that there is a contradiction between General Statutes, section

97-32.1 (stating where “the trial return to work is unsuccessful, the employee’s right

to continuing compensation . . . shall be unimpaired”) and Workers’ Compensation

Rule 404A(3) (stating where an employee fails to file a Form 28U with the Industrial

Commission “the employer or carrier/administrator shall not be required to resume

payment of compensation”), this Court has held that General Statutes, section 97-

32.1 controls.2 See Davis, 202 N.C. App. at 668, 692 S.E.2d at 637 (citing Burchette,

149 N.C. App. at 809, 562 S.E.2d at 463–64); see also id. at 669, 692 S.E.2d at 637

(“[E]mployers do not have the right to present evidence before reinstating disability

compensation following notice of an unsuccessful return to work. When an employer



       2  “To make its purpose that the North Carolina Workmen’s Compensation Act shall be
administered exclusively by the North Carolina Industrial Commission effective, the General
Assembly has empowered the said Industrial Commission to make rules, not inconsistent with this act,
for carrying out the provisions of the act . . . .” Chaisson v. Simpson, 195 N.C. App. 463, 473, 673
S.E.2d 149, 158 (2009) (quoting Winslow v. Carolina Conf. Ass'n, 211 N.C. 571, 579, 191 S.E. 403, 408
(1937) (internal quotation marks omitted)).

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                                   Opinion of the Court



receives notice, either through a Form 28U or other means of acquiring actual

knowledge, then disability compensation should be reinstated automatically.”).

      Here, the Commission made the following unchallenged finding of fact:

             21.     Defendants had notice in September 2013 that the
             trial return to work was unsuccessful; however, defendants
             took the position that the condition which rendered
             Plaintiff unable to work after September 9, 2013 and
             October 24, 2013 was not causally related to the injury she
             had sustained at work on May 12, 2007.

The Commission concluded that plaintiff had an unsuccessful trial return to work

and that

             it would be inconsistent with the policy and intent behind
             N.C. Gen. Stat. § 97-32.1 to conclude that Plaintiff is not
             entitled to further benefits . . . . Therefore, as a result to
             the injury of May 12, 2007, plaintiff was temporarily and
             totally disabled from September 9, 2013 to October 5, 2013,
             and again from October 24, 2013 to the present and
             ongoing.

      Plaintiff contends that the Commission “should have [further concluded] that

. . . defendants were obligated to reinstate [plaintiff]’s compensation immediately . . .

.” (Emphasis added). In accordance with General Statutes, section 97-32.1 and the

opinion issued by this Court in Davis, we agree. See N.C.G.S. § 97-32.1 (“If the trial

return to work is unsuccessful, the employee’s right to continuing compensation

under G.S. 97-29 shall be unimpaired . . . .”); Davis, 202 N.C. App. at 668, 692 S.E.2d

at 637 (“Total disability compensation must be reinstated under N.C. Gen. Stat. § 97-

32.1 . . . as soon as an employer has knowledge that an employee’s return to work has


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                                   Opinion of the Court



been unsuccessful.” (citation omitted)); cf. Jenkins, 134 N.C. App. at 411, 518 S.E.2d

at 10.

         Plaintiff further contends that because defendant failed to automatically

reinstate disability compensation after notice that plaintiff’s trial return to work was

unsuccessful, defendant was required to pay plaintiff an additional ten percent of the

outstanding total disability payments at the time of the 3 September 2015 Opinion

and Award.

         General Statutes, section 97-18, “[i]f any installment of compensation is not

paid within 14 days after it becomes due, there shall be added to such unpaid

installment an amount equal to ten per centum (10%) thereof, which shall be paid at

the same time as, but in addition to, such installment . . . .” N.C. Gen. Stat. § 97-

18(g) (2015).

         In Burchette, 149 N.C. App. 802, 562 S.E.2d 459, a panel of this Court

considered whether the Commission’s assessment of a ten percent penalty, pursuant

to section 97-18(g) was in error. The facts indicated that the employee suffered a

compensable injury, received disability benefits, and subsequently attempted a trial

return to work. However, the return to work was unsuccessful. The employer’s

contention on appeal was the employee’s failure to file a Form 28U “reliev[ed] the

employer of any responsibility to resume payment of disability compensation.” Id. at

808, 562 S.E.2d at 463. The Court panel disagreed.



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                 [O]nce [the defendant-employer] had knowledge that [the
                 plaintiff-employee]’s trial return to work was unsuccessful,
                 they were required to reinstate compensation pursuant to
                 the Form 21[3] . . . . At the time the trial return to work was
                 unsuccessful, the defendants did not qualify for the
                 exception listed in N.C.G.S. § 97-18.1(b.)[4] Defendants’
                 remedy at that point, if they felt plaintiff's refusal to work
                 was unjustified, was to file a Form 24 [(a request to
                 terminate benefits)] pursuant to N.C.G.S. § 97-18.1(c). As
                 a result of defendants’ failure to follow these procedures,
                 defendants are subject to the ten percent penalty pursuant
                 to N.C.G.S. § 97-18(g).

Id. at 809, 562 S.E.2d at 463–64.

       Here, in finding of fact 20, the Commission found that following plaintiff’s

unsuccessful trial return to work, “[d]efendants filed a Form 62, Notice of

Reinstatement or Modification of Compensation, indicating that payment of




       3

                 [A] Form 21 agreement (approved by the Commission) represents an
                 admission of liability by the employer for disability compensation
                 pursuant to the Workers' Compensation Act (the “Act”). [S]ee . . .
                 [Radica v. Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190
                 (1994)] (Form 21 agreement is an admission by employer of liability,
                 entitling employee to continuing presumption of disability).

Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 77, 476 S.E.2d 434, 436 (1996).

       4   As cited in Burchette, North Carolina General Statutes, section 97-18.1 states that

                 [a]n employer may terminate payment of compensation for total
                 disability being paid pursuant to G.S. 97-29 when the employee has
                 returned to work for the same or a different employer . . . . The
                 employer shall promptly notify the Commission and the employee, on
                 a form prescribed by the Commission, of the termination of
                 compensation . . . .

149 N.C. App. at 808, 562 S.E.2d at 463 (quoting N.C. Gen. Stat. § 97-18.1 (1999)).

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temporary total disability benefits would be reinstated on September 11, 2013” before

the form was “pulled and destroyed.” In finding of fact 21, the Commission made the

following unchallenged statement:

             21.     Defendants had notice in September 2013 that the
             trial return to work was unsuccessful; however, defendants
             took the position that the condition which rendered
             Plaintiff unable to work after September 9, 2013 and
             October 24, 2013 was not causally related to the injury she
             had sustained at work on May 12, 2007.

The record fails to reflect any action by defendants giving notice to plaintiff or the

Commission to contest plaintiff’s right to compensation in accordance with our

General Statutes, section 97-18(c) (“If the employer or insurer denies the employee's

right to compensation, the employer or insurer shall notify the Commission, on or

before the fourteenth day after it has written or actual notice of the injury . . ., or

within such reasonable additional time as the Commission may allow, and advise the

employee in writing of its refusal to pay compensation on a form prescribed by the

Commission.” N.C. Gen. Stat. § 97-18(c) (2015)). Defendants simply refused to

reinstate plaintiff’s disability compensation benefits following notice of plaintiff’s

unsuccessful trial return to work. Therefore, in consideration of the Commission’s

findings of fact, including the conclusion that plaintiff’s trial return to work was

unsuccessful due to her 7 May 2012 compensable injury, we hold that defendants are

subject to a penalty of ten percent (10%) on temporary total disability compensation

benefits not paid to plaintiff following the end of her trial return to work in accordance


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with General Statutes, section 97-18(g). We remand this matter to the Commission

for entry of an Opinion and Award consistent with this opinion.

      Plaintiff further contends that the Commission erred in failing to consider the

imposition of sanctions, including attorney fees and costs pursuant to N.C. Gen. Stat.

§ 97-88.1.

      “The decision whether to award or deny attorney’s fees rests within the sound

discretion of the Commission and will not be overturned absent a showing that the

decision was manifestly unsupported by reason.” Thompson v. Fed. Express Ground,

175 N.C. App. 564, 570, 623 S.E.2d 811, 815 (2006) (citation omitted). Under section

97-88.1, “[i]f the Industrial Commission shall determine that any hearing has been

brought, prosecuted, or defended without reasonable ground, it may assess the whole

cost of the proceedings including reasonable fees for defendant’s attorney or plaintiff’s

attorney upon the party who has brought or defended them.” N.C. Gen. Stat. § 97-

88.1 (2015).

      We note that in its Opinion and Award, the Commission reasoned that

“[d]efendants’ defense of this matter was not grounded in unfounded litigiousness

and Plaintiff is not entitled to attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.1.

Thus, the Commission considered the award of attorney fees and costs and denied

them, as was within its discretion. Accordingly, this argument is overruled.

      REVERSED IN PART AND REMANDED; AFFIRMED IN PART.



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              BELL V. GOODYEAR TIRE & RUBBER CO.

                       Opinion of the Court



Judges STROUD and DIETZ concur.




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