All opinions are subject to modification and
technical correction prior to official publication in the
NO. COA08-711
Filed:
17 February 2009
GLORIA COOPER,
Employee,
Plaintiff,
v.
I.C.
File No. 319476
BHT ENTERPRISES,
Employer,
Self-Insured,
and
KEY RISK MANAGEMENT
SERVICES,
Servicing Agent,
Defendants.
Appeal
by plaintiff from Opinion and Award entered 13 February 2007 and order
entered 25 March 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 1 December
2008.
Morrison Law Firm,
P.L.L.C., by B. Perry Morrison, Jr., Thomas & Farris, P.A., by Albert S.
Thomas, Jr., and Rose, Rand Attorneys, by Paul N. Blake, III, for
plaintiff-appellant.
Cranfill, Sumner
& Hartzog LLP, by J. Gregory Newton, and Meredith Taylor Berard, for
defendants-appellees.
MARTIN,
Chief Judge.
Plaintiff
Gloria Cooper appeals from an Opinion and Award by the North Carolina
Industrial Commission (“Commission”), which limited the benefits awarded to her
by the deputy commissioner’s Opinion and Award, and from an order denying her
motions to amend and reconsider the Full Commission’s Opinion and Award. We affirm.
The
parties stipulated that an employment relationship existed between plaintiff
and defendant-employer BHT Enterprises at the time of the 7 March 2003
accident, and that plaintiff “suffered a compensable injury by accident
involving her lower back arising out of and in the course of her employment”
with defendant-employer. The Full
Commission’s unchallenged and, therefore, binding findings of fact, see Johnson
v. Herbie’s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118
(concluding that, where a party failed to assign error to the Industrial
Commission’s findings of fact, those findings are “presumed to be supported by
competent evidence” and are, thus, “conclusively established on appeal”), disc.
review denied, 357 N.C. 460, 585 S.E.2d 760 (2003), are as
follows:
1. At the time of the hearing before the
Deputy Commissioner, plaintiff was a 47 year-old female with a high school
education.
2. At the time of her admittedly
compensable low back injury on March 7, 2003, plaintiff had worked for
defendant for approximately 14 years as a meat cook in a McDonald’s
restaurant.
3. Prior to March 7, 2003, plaintiff did
not have any health problems that prevented her from working.
4. While at work on March 7, 2003,
plaintiff entered a walk-in freezer to shelve some bagels. While exiting the freezer, plaintiff slipped
on some ice and fell to the floor.
5. Plaintiff continued to work immediately
following the accident, but presented to Nash Urgent Care with complaints of
lower back pain later the same day.
Plaintiff did not complain of or report any cervical or neck symptoms. X-rays of plaintiff’s lumbar and thoracic
spine were negative. Plaintiff was
released to return to light-duty work; however, defendant informed plaintiff
that no light-duty work was available.
. . . .
7. On April 14, 2003, plaintiff
presented to Dr. Grieg McAvoy for an orthopaedic evaluation. Dr. McAvoy interpreted x-rays of plaintiff’s
thoracic and lumbar spine to be within normal limits. Dr. McAvoy diagnosed plaintiff with low back
pain with no signs of nerve deficits or nerve irritation, recommended a home
exercise program, and released plaintiff to return to regular duty work without
restrictions.
8. Plaintiff delivered a full duty release
note to defendant, however she did not return to work due to her belief that
she was unable to work. Larry Thomas
Winbourne, director of operations for defendant, testified that he was aware of
plaintiff’s April 14, 2003 full-duty release by Dr. McAvoy. He testified that plaintiff’s position was
held open for her, and that defendant was “hoping she’s come back to work.” Mr. Winbourne further testified that
plaintiff was considered to be on “medical leave” and was “never terminated.”
9. On June 16, 2003, plaintiff
returned to Dr. McAvoy for re-evaluation.
At this visit, she complained of both lower back and neck pain[, the
description of which was recorded in Dr. McAvoy’s medical notes as “a catch in
her neck”]. Dr. McAvoy ordered another
lumbar MRI but did not order a cervical MRI.
The lumbar MRI was performed on July 3, 2003 and revealed slight
osteoarthritic changes but no disc extrusion or stenosis. On the basis of this MRI, Dr. McAvoy, on
July 3, 2003, deemed plaintiff to have reached maximum medical
improvement, assigned a permanent partial disability rating of 0% to plaintiff’s
back, and advised plaintiff to “continue with normal activities without
restrictions.”
10. Plaintiff began overlapping treatment
with her primary care physician, Dr. Samuel Wesonga, at the Boice-Willis Clinic
on April 24, 2003. Plaintiff
initially reported only lower back pain to Dr. Wesonga, and made no mention of
cervical or neck pain. It was not until
September 24, 2003, over six months after the March 7, 2003 injury by
accident that plaintiff reported both lower back/extremity pain and
neck/shoulder pain to Dr. Wesonga.
11. Dr. Wesonga ordered a cervical MRI for the
first time since plaintiff’s accident at work.
The MRI revealed disc herniations superimposed on severe circumferential
spinal stenosis at C5-C6 and C6-C7. As a
result, Dr. Wesonga referred plaintiff for neurosurgical evaluation.
12. On December 16, 2003, plaintiff
presented to Dr. Lucas J. Martinez, a neurosurgeon at Rocky Mount Neurosurgical
and Spine Consultants. Dr. Martinez
diagnosed plaintiff with herniated disks in the neck at C6-C7 on the left and
C5-C6 on the right.
13. On February 5, 2004, Dr. Martinez
performed cervical surgery that consisted of an anterior cervical
microdiscectomy and anterior interbody fusion at C6-C7.
14. Following her surgery, plaintiff
continued to treat with Dr. Martinez, including a regimen of physical therapy from
which she was discharged on August 12, 2004. Plaintiff last saw Dr. Martinez on
August 25, 2004, but continued to treat with Dr. Wesonga for chronic pain
as of the date of hearing before the Deputy Commissioner.
The Commission also
found that plaintiff “failed to show disability beyond her release to return to
work on April 14, 2003.” Plaintiff
did not challenge this finding.
After
receiving evidence, the deputy commissioner filed an Opinion and Award on
9 May 2006, which concluded that plaintiff was entitled to (1) ”total
disability compensation at the [stipulated] rate of $111.96 per week from
March 8, 2003 and continuing until plaintiff returns to work or until
further order of the Commission,” and (2) ”payment of medical expenses
incurred or to be incurred as a result of her compensable upper and lower
back conditions as may reasonably be required to effect a cure, provide
relief, or lessen the period of disability.”
(Emphasis added.)
Defendant-employer and its third-party administrator Key Risk Management
Services (collectively “defendants”) appealed to the Full Commission on
11 May 2006. On 13 February
2007, the Full Commission entered an Opinion and Award affirming in part, and
reversing in part, the deputy commissioner’s decision. The Full Commission concluded that plaintiff
was entitled to (1) ”total disability compensation at the [stipulated]
rate of $111.96 per week from March 8, 2003, through April 14,
2003, the date she was released to return to full-duty work,” and (2) ”payment
of medical expenses incurred or to be incurred [only] as a result of her
low back condition as may reasonably be required to effect a cure, provide
relief, or lessen the period of disability.”
(Emphasis added.) Plaintiff filed
a Motion to Amend the Opinion and Award pursuant to Rule 59 of the North
Carolina Rules of Civil Procedure, and a Motion to Reconsider the Opinion and
Award pursuant to Workers’ Compensation Rule 701, both dated
22 February 2007, on the grounds that “the evidence before the Commission
[wa]s insufficient to justify its decision.”
On 9 March 2007, defendants filed Responses to Plaintiff’s Motion
to Amend and Motion to Reconsider. On
25 March 2008, the Full Commission denied plaintiff’s motions, finding
that “plaintiff has not shown good grounds for the Full Commission to amend,
reconsider, or make additional findings in this matter.” Plaintiff appealed to this Court from the
Commission’s 13 February 2007 Opinion and Award and its 25 March 2008
order denying her motions.
_________________________
We
first address plaintiff’s contention that the Commission erred by hearing
defendants’ appeal from the deputy commissioner’s Opinion and Award. Plaintiff asserts that defendants failed to
file a Form 44 pursuant to Workers’ Compensation Rule 701(2), which
defendants do not dispute. Although
defendants properly filed a brief with the Commission after giving notice of
their appeal, as also required by Rule 701(2), plaintiff argues that
defendants’ mere failure to file a Form 44 constitutes an abandonment of
defendants’ grounds for appeal to the Full Commission. We disagree.
Workers’
Compensation Rule 701(2) of the North Carolina Industrial Commission
provides that, after giving sufficient notice of appeal to the Full Commission,
an appellant must complete a Form 44 Application for Review, which is
supplied by the Commission, stating the grounds for its appeal “with
particularity.” Workers’ Comp. R. of
N.C. Indus. Comm’n 701(2), 2009 Ann. R. (N.C.) 1006. The appellant must then file and serve the completed
Form 44 and an accompanying brief within the specified time limitations “unless
the Industrial Commission, in its discretion, waives the use of the
Form 44.” See id.
Like
defendants in the present case, in Roberts v. Wal-Mart Stores, Inc.,
173 N.C. App. 740, 619 S.E.2d 907 (2005), the plaintiff did not file
a Form 44 after giving notice of her appeal to the Full Commission. See id. at 742, 619 S.E.2d
at 909. However, unlike defendants in
the present case, the Roberts plaintiff also failed to file a brief or “any
other document with the Full Commission setting forth grounds for appeal with
particularity.” See id.
at 744, 619 S.E.2d at 910.
While we recognized then, as we do now, that the Commission may waive
the use of Form 44, we also recognized that Rule 701(2) “specifically
requires that grounds for appeal be set forth with particularity.” See id. (internal quotation marks
omitted). Accordingly, in Roberts,
we concluded that “the portion of Rule 701 requiring appellant to state
with particularity the grounds for appeal may not be waived by the Full
Commission . . . [because, w]ithout notice of the grounds for appeal,
an appellee has no notice of what will be addressed by the Full Commission.”
However,
unlike the appealing plaintiff in Roberts, defendants in the present
case complied with Rule 701(2)’s requirement to state the grounds for
appeal with particularity by timely filing their brief after giving notice of
their appeal to the Full Commission.
Additionally, plaintiff does not argue that she did not have adequate
notice of defendants’ grounds for appeal.
Plaintiff asserts only that defendants’ failure to file a Form 44
should have been deemed an abandonment of defendants’ appeal. Since both this Court and the plain language
of the Industrial Commission’s rules have recognized the Commission’s
discretion to waive the filing requirement of an appellant’s Form 44 where
the appealing party has stated its grounds for appeal with particularity in a
brief or other document filed with the Full Commission, we overrule these
assignments of error.
_________________________
“The
Industrial Commission and the appellate courts have distinct responsibilities
when reviewing workers’ compensation claims.”
Billings v. General Parts, Inc., 187 N.C. App. 580, 584,
654 S.E.2d 254, 257 (2007) (citing Deese v. Champion Int’l Corp.,
352 N.C. 109, 114, 530 S.E.2d 549, 552 (2000)), disc. review
denied, 362 N.C. 175, 659 S.E.2d 435 (2008). The Industrial Commission is “‘the fact
finding body,’” Adams v. AVX Corp., 349 N.C. 676, 680,
509 S.E.2d 411, 413 (1998) (quoting Brewer v. Powers Trucking Co.,
256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)), reh’g denied,
350 N.C. 108, 532 S.E.2d 522 (1999), and is “‘the sole judge of the
credibility of the witnesses and the weight to be given their testimony.’”
This
Court, on the other hand, “‘does not have the right to weigh the evidence and
decide the issue on the basis of its weight.’”
Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting
Instead,
“appellate courts must examine ‘whether any competent evidence supports the
Commission’s findings of fact and whether [those] findings . . .
support the Commission’s conclusions of law.’”
McRae v. Toastmaster, Inc., 358 N.C. 488, 496,
597 S.E.2d 695, 700 (2004) (alteration and omission in original) (quoting Deese,
352 N.C. at 116, 530 S.E.2d at 553).
If the findings of fact are supported by competent evidence, those
findings are conclusive on appeal “‘even though there be evidence that would
support findings to the contrary.’” See
Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Jones v.
Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633
(1965)). While we recognize that “[t]he
evidence tending to support plaintiff’s claim is to be viewed in the light most
favorable to plaintiff, and plaintiff is entitled to the benefit of every
reasonable inference to be drawn from the evidence,” id. (citing Doggett
v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937)),
this Court’s “‘duty goes no further than to determine whether the record
contains any evidence tending to support the finding[s made by the Industrial
Commission].’”
I.
Plaintiff
first contends there was no competent evidence to support the Commission’s
Findings of Fact 6, 15, 16, or 17, and contends these findings do not
support its conclusion that plaintiff “failed to show that her cervical back
condition[—i.e., her neck problem—]was proximately caused by the March 7,
2003 injury by accident.” Plaintiff
argues that the Commission erroneously “disregarded” the stipulated medical
records, plaintiff’s own testimony, and the expert medical testimony. We disagree.
A.
In its
Finding of Fact 6, the Commission found that “[p]laintiff continued to
treat with Nash Urgent Care for lower back pain on March 12, 17 and 27,
2003[, but] . . . did not complain of or report any cervical or neck
symptoms during these visits.” It also
found that, at her 2 April 2003 appointment, plaintiff “reported lower
back pain, with pain radiating into her upper back and neck, and was referred
for an orthopaedic evaluation.” “This
visit was the first that plaintiff reported any neck pain, and plaintiff did
not report any neck pain to any of her medical providers until
September 24, 2003, over six months after the March 7, 2003 injury by
accident.”
Plaintiff
asserts that the Commission erred in making this finding since the reason her
low back pain was her “chief complaint” was not because she had no neck pain
during those six months, but simply because she chose to “consistently focus[
only] on what hurt the most” at each of her medical visits. Plaintiff also testified that, when she
complained of “back pain,” she meant that her entire back was hurting,
including her neck. However, since “[t]he
Commission is not required to accept the testimony of a witness, even if the
testimony is uncontradicted,” see Hassell v. Onslow County Bd. of
Educ., 362 N.C. 299, 307, 661 S.E.2d 709, 715 (2008), and is “‘the
sole judge of the credibility of the witnesses and the weight to be given their
testimony,’” see Adams, 349 N.C. at 680, 509 S.E.2d at 413 (quoting
Anderson, 265 N.C. at 433-34, 144 S.E.2d at 274), we cannot
conclude that the Commission erred when it did not find plaintiff’s testimony
as fact.
Plaintiff
next asserts that the Commission erred in making this finding because plaintiff
claims that she did complain of neck pain at medical visits prior to her
24 September 2003 visit with Dr. Wesonga. In support of this assertion, plaintiff
directs this Court’s attention to the stipulated medical records from
16 June 2003, where she states that she complained to Dr. McAvoy of her
ongoing neck pain. However, the chart
notation from 16 June reflects only that plaintiff complained of symptoms
that the treating physician recorded as, simply, “a catch in her neck.” As further support that she regularly complained
of neck pain prior to 24 September, plaintiff attempts to rely on a
9 May 2003 chart notation, which indicated that “[s]he does have some mild
increased pain with full forward flexion and hyperextension.” However, a careful reading of the 9 May
chart note in its entirety shows that plaintiff presented at this visit only “for
evaluation of her low back and left lower extremity pain,” and that the
excerpted phrase was made in relation to both plaintiff’s neck and back.
After
a thorough review of the stipulated medical records, the only evidence that
plaintiff complained of neck pain prior to 24 September 2003—other than
the 2 April 2003 visit, recognized but dismissed by the Commission as an “isolated
instance of neck pain” in this challenged finding of fact—is the 16 June
reference to her complaint of “a catch in her neck.” Instead, our review found that the references
to plaintiff’s neck in the medical records prior to 24 September—for
example, on 30 April 2003, 3 May 2003, 5 May 2003, and
1 July 2003—did not show any complaints from plaintiff regarding ongoing
pain, but rather only reflected post-examination assessments by plaintiff’s
health care providers, who determined that her neck had “[n]o muscle stiffness,”
and was “non-tender” with painless range of movement, “supple,” and “[s]oft,
supple” with “[n]o lymphadenopathy.”
Therefore,
we conclude that there was competent evidence to support the Commission’s
finding that plaintiff did not begin to make regular complaints of neck pain to
her medical providers until 24 September 2003, “over six months after the
March 7, 2003 injury by accident,” and that there was “insufficient
evidence” to support a finding that plaintiff’s report of an “isolated instance
of neck pain” on 2 April 2003 “was proximately related to her later
treatment for cervical disc herniation by Dr. Martinez.”
B.
“In
evaluating the causation issue, this Court can do no more than examine the
record to determine whether any competent evidence exists to support the
Commission’s findings as to causation . . . .” Peagler v. Tyson Foods, Inc.,
138 N.C. App. 593, 598, 532 S.E.2d 207, 210 (2000) (omission in
original) (internal quotation marks omitted).
“[W]hen conflicting evidence is presented, the Commission’s finding of
causal connection between the accident and the disability is conclusive [and
binding on the reviewing court].”
However,
“[i]n a case where the threshold question is the cause of a controversial
medical condition, the maxim of ‘post hoc, ergo propter hoc,’ is not
competent evidence of causation.” Young
v.
In its
Findings of Fact 15, 16, and 17, the Commission found that Drs.
Wesonga and
Our
review of the record reveals that Dr. Wesonga initially testified that it was
his opinion within a reasonable degree of medical certainty that plaintiff’s
neck problem was related to her fall on 7 March 2003. He testified, “It’s not unusual for folks to
be involved in an injury and not have any symptoms in one part of the body, and
then later on develop symptoms down the road,” and that “you could make a very
reasonable assumption that, you know, if somebody’s injured they may be focused
in on one part of their body and not pay attention to the rest of their body.” However, Dr. Wesonga also testified that, if
plaintiff had not developed any cervical symptoms until six months after her
fall, he could not say to any reasonable degree of medical certainty that
plaintiff’s fall “more than likely caused her cervical problem.” He further testified:
Q. And you can’t say with any degree of
medical certainty that her fall at work on March 7th, 2003 calls for [sic] a
cervical condition?
A. Yes, you can. Yes, you can.
I mean, she again from the fact that she never had a problem before and
now she has a problem cause and effect look as though it’s an issue of a
time—time frame, you know.
Q. Okay.
So your opinion is based simply on the fact that she didn’t have these
problems before and that sometime afterward, even if it’s six months afterwards
she developed these problems. That’s the
basis for your opinion?
A. Exactly.
Similarly, Dr.
Martinez initially testified that it was his opinion within a reasonable degree
of medical certainty that plaintiff’s neck problem was caused by her
work-related fall. However, he later
testified that, “[i]f it is true” that plaintiff did not have any cervical
symptoms until six months after her fall, it “would be correct” that he could
not state that her condition was related to that fall within a reasonable
degree of medical certainty.
Since
we have already concluded that there was competent evidence to support the
Commission’s finding that plaintiff did not report having ongoing neck pain
during the six months following her work-related fall, we must also conclude
that there was competent evidence to support the Commission’s determination
that the testimony of Drs. Wesonga and Martinez could not support a finding,
within a reasonable degree of medical certainty, that plaintiff’s cervical back
condition was causally related to her work-related fall. Therefore, we hold that the Commission
correctly determined that plaintiff “failed to show” that her cervical back
condition was proximately caused by her work-related fall. Accordingly, these assignments of error are
overruled.
II.
Plaintiff
next contends the Commission erred by concluding as a matter of law that she “failed
to show” that she was entitled to compensation for medical expenses incurred as
a result of her cervical back condition.
“For
an injury to be compensable under the terms of the Workmen’s Compensation Act,
it must be proximately caused by an accident arising out of and suffered in the
course of employment.” Click v. Pilot Freight Carriers, Inc.,
300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Therefore, our decision to affirm the
Commission’s conclusion that plaintiff failed to show that her cervical back
condition was proximately caused by her 7 March 2003 work-related fall
renders it unnecessary to address this assignment of error.
III.
Finally,
plaintiff contends the Commission erred when it concluded that she was entitled
to disability compensation only through 14 April 2003, which was the date
she was “released to return to full-duty work.”
Plaintiff argues that she presented sufficient evidence to satisfy her
burden of proving her continuing disability under Russell v. Lowes Product
Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), and
claims that she is entitled to continuing temporary total disability
compensation.
“‘Disability,’
within the North Carolina Workers’ Compensation Act, 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.”
Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 493
(2005) (internal quotation marks omitted); see also Cross v. Falk
Integrated Technologies, Inc., __ N.C. App. __, __, 661 S.E.2d
249, 255 (2008) (“‘Disability’ is defined by a diminished capacity to earn
wages, not by physical impairment.”). “In
order to obtain compensation under the Workers’ Compensation Act, the claimant
has the burden of proving the existence of h[er] disability and its extent.” Hendrix v. Linn-Corriher Corp.,
317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). To prove her disability, the claimant has the
burden of proving that, after her work-related injury, she was incapable of
earning the same wages she had earned before her injury in either the same or
any other employment, and that her incapacity to earn was caused by her
compensable injury. See Hilliard v.
Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683
(1982). Unless the claimant is entitled
to a presumption of disability in her favor based on one of three limited
circumstances, see Johnson v. Southern Tire Sales & Serv.,
358 N.C. 701, 706, 599 S.E.2d 508, 512 (2004), the claimant may meet
the burden of proving her disability in one of four ways:
(1) the production of medical evidence that
[s]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 [s]he is
capable of some work, but that [s]he has, after a reasonable effort on [her]
part, been unsuccessful in [her] effort to obtain employment,
(3) the production of evidence that [s]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 [s]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).
It is only after the claimant has met this initial burden of proving her
disability that the burden will then shift to a defendant who claims that the
claimant-employee is capable of earning wages.
See Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24,
32-33, 398 S.E.2d 677, 682 (1990).
If a defendant makes such a claim, then that defendant “must come
forward with evidence to show not only that suitable jobs are available, but
also that the [claimant-employee] is capable of getting one, taking into
account both physical and vocational limitations.” See id. at 33, 398 S.E.2d 682.
In the
present case, “[s]ince there was neither a previous award of continuing
disability nor a Form 21 or Form 26 agreement, plaintiff could not
rely upon a presumption of disability and was required to meet [her] burden of
proof under Russell.” See Ramsey
v. Southern Indus. Constructors Inc., 178 N.C. App. 25, 42,
630 S.E.2d 681, 692, disc. review denied, 361 N.C. 168,
639 S.E.2d 652 (2006). Plaintiff
appears to contend that she has satisfied her burden to establish her
disability under either of Russell’s first or second methods of
proof. We disagree.
In
support of her contention that she was still “incapable of work in any
employment” after 14 April 2003, see Russell, 108 N.C.
App. at 765, 425 S.E.2d at 457, plaintiff directs this Court’s attention
to two medical excuse notes signed by Dr. Wesonga and one note signed by Dr.
Wesonga’s physician’s assistant, which state that plaintiff was unable to work
on 30 April, 1 May, 2 May, 5 May, and 1 July 2003 due
to her “current medical problems” and “low back pain injury.” Plaintiff also refers to Dr. Wesonga’s
testimony in which he stated that, as of the date of his deposition on
12 May 2005, he had still not returned plaintiff to work.
However,
a further review of Dr. Wesonga’s testimony shows that, aside from plaintiff’s
complaints of some pain, Dr. Wesonga could not cite any objective medical
reason to keep plaintiff from returning to work with respect to her compensable
back injury:
Q. And would it be fair to say that when
you were examining [plaintiff] from the April 24, 2003—December 24,
2003—that was respect [sic] to her back, her physical examinations were
objectively normal?
A. Yes.
Q. So basically the only thing you had to
go on were [plaintiff’s] subjective complaints with respect to her back?
A. Yes.
Q. You couldn’t—you couldn’t corroborate or
verify her subjective complaints with any objective findings?
A. Correct.
Q. So when you were—when you did take [plaintiff]
out of work during that period of time that was based completely on her
subjective complaints?
A. Yes.
Q. There were no objective findings to keep
her out of work; is that correct?
A. Correct.
This testimony is
consistent with the Commission’s unchallenged finding that, at her
14 April 2003 visit with Dr. McAvoy at the
Plaintiff
seems to alternatively argue that she has proven her continuing disability
under the Russell second method of proof, see Russell,
108 N.C. App. at 765, 425 S.E.2d at 457, offering testimony that she
was capable of some work but that, in the month that followed her injury, on
the several occasions she sought light duty work with her employer, she was
told there was none available. However,
plaintiff offered no other evidence to prove that she made a “reasonable”
effort to obtain employment. As the
record contains no indication that plaintiff made any other attempts to obtain
employment, we cannot conclude that she proved her disability under the second
prong of Russell. Cf. Perkins
v. U.S. Airways, 177 N.C. App. 205, 214, 628 S.E.2d 402, 408
(2006) (“Ms. Perkins alternatively argues that because she contacted U.S.
Airways about a light duty position and they did not offer her one, the
Commission erred by not concluding she was disabled under the second option [of
Russell] . . . . Ms. Perkins cites to no authority—and we
know of none—that would have required U.S. Airways to offer Ms. Perkins such a
position. The record contains no
indication that Ms. Perkins made any other attempts to obtain employment. The Commission was free to decide, as it did,
that Ms. Perkins’ single contact with U.S. Airways was insufficient to
establish she had made a reasonable effort to obtain employment under the
second Russell option.”), disc. review denied, 361 N.C. 356,
644 S.E.2d 231 (2007).
Therefore,
we conclude that plaintiff has failed to prove that she was disabled after Dr.
McAvoy released her to full-duty work on 14 April 2003. Accordingly, we hold that the Commission
correctly concluded that plaintiff was entitled to disability compensation only
until 14 April 2003, and affirm the Commission’s Opinion and Award and its
order denying plaintiff’s motions to amend and reconsider its Opinion and
Award.
Affirmed.
Judges
WYNN and STEPHENS concur.