North Carolina Lawyers Weekly
Even if plaintiff’s full medical record was not available to the deputy commissioner who approved the parties’ compromise settlement agreement, the deputy commissioner had enough information available to him to determine that the agreement was fair and just.
We affirm the Industrial Commission’s refusal to set aside the compromise settlement agreement (CSA) and its grant of the non-party state’s motion to quash plaintiff’s subpoena of Deputy Commissioner (DC) James Gillen.
Facts
Plaintiff, a Mexican farm worker, fractured his ankle while on the job. The fracture required surgery.
Six weeks after the injury, plaintiff’s visa was expiring, so he needed to return home. His doctor, Dr. Lawrence Larabee Jr., warned that there could be complications but estimated a three to five percent permanent disability if all went as planned.
Based on Dr. Larabee’s opinion, the parties entered into a CSA in the amount of $20,000, which DC Gillen approved. Four years later, plaintiff sought to set aside the CSA.
Medical Records
Industrial Commission Rule 502(3)(a) requires consideration of a claimant’s “material medical . . . records” before a CSA can be approved.
Even though, four years after the parties entered into the CSA, plaintiff’s full medical records could not be found in his Industrial Commission file, the undisputed evidence establishes that plaintiff thoroughly reviewed the CSA with an interpreter and defense counsel Trula Mitchell (whose involvement in plaintiff’s claim was limited to drafting the CSA, meeting with plaintiff to execute the CSA, and submitting the CSA to the Commission for approval) prior to signing, and he did not object to the CSA’s summary of the medical record. Moreover, there is evidence that defendants did supply plaintiff’s medical records to the deputy commissioner.
The Commission found that “even assuming [DC] Gillen did not have available to him the medical record from Dr. Larabee’s and [physician’s assistant Karma] Kristufek’s 28 October 2010 evaluation of Plaintiff, [DC] Gillen had available to him in the [CSA] and the attached medical records sufficient information to determine the rights of the parties, and that the agreement was fair and just.”
Although the evidence of its submission was conflicting, the Commission’s findings as to the medical record and its effect on DC Gillen’s order approving the CSA are supported by at least some competent evidence, and the findings in turn support the Commission’s conclusion that the CSA satisfied the requirements of Rule 502. The Commission did not err in failing to set aside DC Gillen’s order approving the CSA based on defendants’ alleged noncompliance with Industrial Commission Rule 502(3)(a).
Mistake
Plaintiff seems to argue that DC Gillen erroneously approved the CSA based on misleading information in the CSA’s summary of the medical record, which plaintiff himself reviewed and approved prior to its submission.
However, at the time of settlement negotiations, plaintiff was well aware of his treatment plan and prognosis as well as the risks of complications, having met with his treating physician just one day prior to executing the CSA. Plaintiff reviewed the CSA with an interpreter and Mitchell prior to its execution, and he did not object to the CSA’s summary of the medical record. DC Gillen was informed that plaintiff might experience complications from his injury, but he concluded that the CSA was nevertheless fair and just based on the information available at the time.
The Commission’s findings are supported by competent evidence and in turn support its conclusion that there was no error due to misrepresentation.
Full Investigation
Plaintiff argues that, without the medical record, DC Gillen lacked basic information needed to establish the CSA’s fairness and that DC Gillen failed to verify that plaintiff was knowledgeable about his rights under the Workers’ Compensation Act.
However, no permanent restrictions for plaintiff were available at the time of settlement negotiations because he was only six weeks removed from his injury, had not completed the healing process, and had not had a functional capacity evaluation performed. Both plaintiff and DC Gillen were aware there could be complications from plaintiff’s injury, but nevertheless determined – based on the information available at the time – that the CSA was fair and just under the circumstances. Finally, plaintiff signed the CSA, which included a provision whereby plaintiff certified that he was aware of his rights under the Act and that he voluntarily chose to waive them.
DC Gillen had all the information he needed to determine the CSA’s fairness, and no further investigation was required.
Subpoena
In his appeal to the full Commission, plaintiff alleged that DC Gillen did not perform a full investigation into the CSA’s fairness. However, there is no specific procedure for deciding what is fair and just under G.S. § 97-17(b), and the extent of an investigation into the same is determined – in the deputy commissioner’s discretion – on a case-by-case basis.
Questioning DC Gillen about his subjective actions is both irrelevant to the Commission’s conclusion that the CSA is fair and just as well as impermissible given DC Gillen’s status as a quasi-judicial officer performing a judicial function. Accordingly, the Commission did not err in granting the state’s nonparty motion to quash the subpoena of DC Gillen.
Deposition
Dr. Larabee did not draft the CSA, was not present at the time the CSA was executed, and was not a party to the CSA; thus, his testimony was wholly irrelevant to the issues of defendants’ alleged misrepresentation and failure to submit a material medical report to the Commission. Because Dr. Larabee’s deposition testimony was not necessary to a determination of whether the CSA should be set aside four years after its approval, the Commission properly exercised its discretion pursuant to G.S. § 97-80 to tax plaintiff with the costs of the deposition.
Affirmed.
Ramirez v. Stuart Pierce Farms, Inc. (Lawyers Weekly No. 012-089-18, 26 pp.) (Rick Elmore, J.) Appealed from the Industrial Commission. Katherine Bricio and Francisco Bricio for plaintiff; Jack Holmes, Emily Anne Smith and Trula Mitchell for defendants. N.C. App. Unpub.
