All opinions are subject to modification
and technical correction prior to official publication in the
NO. COA07-1188
Filed: 2 December
2008
ROBERT CAREY,
Employee,
Plaintiff,
v.
I.C.
File No. 488669
NORMENT SECURITY INDUSTRIES,
Employer,
SELF-INSURED (GALLAGHER
BASSETT SERVICES, Servicing Agent)
Defendant.
Appeal
by defendant from judgment entered 28 June 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 18 March 2008.
Scudder &
Hendrick, by April D. Sequin and Samuel A. Scudder, for plaintiff-appellee.
Hendrick, Gardner,
Kinchelo & Garofalo, L.L.P., by Vachelle Willis and Dana C. Moody, for
defendant-appellants.
BRYANT,
Judge.
Defendant
Norment Security Industries appeals from an Opinion and Award entered 28 June
2007 by the Industrial Commission (the Commission) awarding Plaintiff Robert
Carey temporary total disability compensation at the rate of $495.72 per week
from 15 February 2005 until 8 July 2005 and for sporadic days plaintiff missed
work due to medical treatment. For the
reasons stated below, we reverse and remand the Opinion and Award.
Facts
During
April 2004, plaintiff worked for defendant as a field engineer. On 30 April 2004, plaintiff was standing on a
ladder approximately three feet above an acoustical tile ceiling installing
magnetic locks when his ladder shifted and plaintiff fell. Plaintiff caught his arms on the ceiling
grid, landed on his feet, and at the moment noted only bruised arms. But, a week later, plaintiff experienced
severe mid back pain.
On 10
May 2004, plaintiff’s Urgent Care physician referred him to Raleigh Orthopaedic
Rehabilitation Specialist (Raleigh Orthopaedic) for evaluation and treatment of
pain in the central and thoracic spine area.
Plaintiff’s initial evaluation at Raleigh Orthopaedic stated “[p]atient
complains of interrupted sleep, very minimal pain during the day, pain is
always central in location and thoracic spine levels. . . . It’s worthy to note this patient also is
complaining of some upper extremity numbness or tingling when questioned about
the presence of this.” Raleigh
Orthopaedic treated plaintiff from 10 June 2004 until December 2004 when he was
referred to the Carolina Back Institute.
Throughout this time, plaintiff continued to work.
Plaintiff’s
initial evaluation at Carolina Back Institute by Dr. Catherine Duncan stated “[t]horacic
and lumbar plain films and MRI studies had been done with continued complaints
of, principally, mid to low thoracic pain which has been midline. [Plaintiff]
has had, also, other areas of pain involving the neck, lower back, right leg
and right foot that have been variously present . . . .” The impression made upon his treating
physicians was that plaintiff suffered from some type of thoracic muscle tear.
Plaintiff
underwent therapy at Carolina Back Institute from 5 January 2005 until 10 March
2005. After four sessions, Dr. Duncan
declared plaintiff’s “[t]horacic and lumbar strain/sprain, totally resolved . .
. [and plaintiff] at maximal medical improvement with complete resolution of
the above problem. [Plaintiff] has no restrictions for his thoracic or lumbar
spine. He has no permanent partial
impairment.” Later, Dr. Duncan testified
that there were indications noted on in-house forms that plaintiff suffered
from neck pain. However, there was
nothing from the insurance carrier that directed her towards “doing anything
with the cervical spine.”
On 19
February 2005, plaintiff experienced and later described to his medical case
manager, Betty Riddle, what felt like a “pop” in his neck. During her deposition, Ms. Riddle testified
as follows:
Riddle: This
was a telephone conference with him on 2/21/05, and I recall that he states
that he was – he was just sitting there in his home when he just turned his
head to speak to someone and felt a pop and that, you know, it had been
bothering him since then.
After
the “pop,” plaintiff was seen by Rena Hodges at Knightdale Primary Care who, on
22 February 2005, excused plaintiff from work and referred him to Dr. Timothy
Garner, a neurosurgeon at Capital Neurosurgery, Inc. Dr. Garner excused plaintiff from work for “neck
problems” until further notice.
Dr.
Garner diagnosed plaintiff as suffering from a soft cervical disc herniation at
C6-7. In a letter to Rena Hodges, Dr.
Garner indicated that he was aware of plaintiff’s fall and plaintiff’s bruises
and scratches, aches and pains as a result of that fall. However, his impression was that plaintiff’s
trouble with his lower back was related to plaintiff’s neck problems. Therapy sessions at Carolina Back Institute
helped with plaintiff’s lower back ailment but failed to alleviate off-and-on
neck pain, numbness, and tingling down plaintiff’s left arm, all of which
occurred only after plaintiff’s fall.
Dr. Garner treated plaintiff for the cervical disc herniation and, on 23
May 2005, noted “[plaintiff’s] doing great.
He has no arm pain.”
During
his deposition, Dr. Garner testified that to a reasonable degree of medical
certainty the fall was the likely cause of plaintiff’s herniated disk at C6-7. However, on cross-examination, defense
counsel presented Dr. Garner with Betty Riddle’s report that on 19 February
2005 plaintiff experienced a “pop” in his neck.
Counsel: From that scenario . . . could that
situation cause the herniation that you subsequently diagnosed?
Garner: Yes.
Absolutely.
Counsel: Just for further clarification, would
you say to a reasonable degree of medical certainty that the scenario that you
just read into the record could have caused the disk herniation at C6-7
that you diagnosed [plaintiff] as having?
Garner: Yes. Could have.
Before
Deputy Commissioner Philip A. Baddour, III, plaintiff testified that by 23 May
2005 he had minimal arm pain and that Dr. Garner released him to return to
work. Plaintiff further testified that
he “[didn’t] recall [Dr. Garner] indicating one way or the other whether
[plaintiff] ha[d] any restrictions or not.”
After
receiving his medical release to return to work, Plaintiff first informed his
attorney of his status.
I wasn’t completely back to normal but I
was ready to go back to work because I couldn’t afford to keep staying out, and
[my attorney] instructed me to wait until I heard from him, and then we went
through mediation, and then they told me that I needed to go back to work. And,
therefore, that day when I got out of mediation, I called Norment to find out
if I could come back to work, and they told me the position was no longer
available.
In the
interim, plaintiff made “about three or four hundred bucks” doing “odd-and-end
stuff here and there” for Carolina Auto Sales.
When plaintiff contacted defendant on 24 June 2005, thirty-two days
after receiving his medical release, defendant informed plaintiff that his job
was no longer available. Two or three
weeks later, plaintiff accepted a position at Carolina Wiring Service setting
up home automation and installing security, surround sound, phone systems,
cable, and networking. And, as of
October 2005, plaintiff accepted employment with Southern Security Group doing “the
same line of work as Norment . . . the same type of stuff.”
On 11
March 2005, plaintiff filed with the Industrial Commission a Form 33 - Request
that claim be assigned for hearing – alleging that “Defendant[] [has] not paid
proper compensation.” Defendant filed a
Form 33R - Response to request that claim be assigned for hearing – alleging
that “Employee-Plaintiff has received all benefits he is entitled to under the
North Carolina Workers’ Compensation Act; Employee-Plaintiff’s cervical
spine/neck problems are not related to this compensable injury . . . .” The case was heard on 26 October 2005 before
Deputy Commissioner Baddour.
Deputy
Commissioner Baddour filed an Opinion and Award 12 April 2006 which denied
plaintiff’s claim for workers’ compensation benefits related to his cervical
disc herniation. On 27 April 2006,
plaintiff filed a Form 44 - Application for review – to appeal to the Full
Commission.
The
matter was reviewed by Commissioners Laura Mavretic, Buck Lattimore, and Diane
Sellers, on 18 January 2007. After
reviewing the prior Opinion and Award, the briefs, and the arguments made
before Deputy Commissioner Baddour, the Commission reversed the prior Opinion
and Award with a split decision.
The
Commission majority concluded that “[o]n April 30, 2004, plaintiff sustained an
admittedly compensable injury by accident arising out of and in the course of
his employment with defendant-employer.
N.C. Gen. Stat. §97-2(6). As the
result of the compensable injury by accident, plaintiff sustained injuries to
his cervical, thoracic and lumbar spine.”
The Commission awarded plaintiff temporary total disability compensation
“from February 15, 2005 until July 8, 2005 and for the sporadic days plaintiff
missed due to his medical treatment.”
Commissioner
Lattimore dissented stating plaintiff had not “met his burden of demonstrating
that his cervical disc herniation resulted from his compensable workplace
injury.”
Defendant
appeals.
______________________________________________
On
appeal, defendant raises three issues by asserting that: (I) the Commission
erred by concluding plaintiff’s cervical condition was caused by his fall at
work on 30 April 2004; (II) assuming plaintiff’s cervical condition was
compensable, plaintiff was not entitled to disability benefits; and (III)
assuming the Full Commission’s award of temporary total disability benefits is
upheld, defendant is entitled to a credit for short-term disability benefits
paid to plaintiff. Additionally,
plaintiff requests that this Court award plaintiff attorney’s fees.
I
Defendant
first argues the Full Commission erred by concluding plaintiff’s cervical
condition was caused by his fall on 30 April 2004 where competent medical
testimony fails to support such a finding and conclusion. Specifically, defendant asserts that Dr.
Garner’s diagnosis that plaintiff’s fall caused his cervical condition was
based on an incomplete medical history which failed to include the occurrence
of a “pop” in plaintiff’s neck on 19 February 2005. We disagree.
“Under
our Workers’ Compensation Act, the Commission is the fact finding body. The Commission is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.” Adams v. AVX Corp., 349 N.C. 676, 680,
509 S.E.2d 411, 413 (1998) (citations and quotations omitted).
[T]he findings of fact of the Industrial
Commission are conclusive on appeal when supported by competent evidence, even
though there be evidence that would support findings to the contrary. The 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.
In Holley,
our Supreme Court reversed the Opinion and Award of the Commission where an
expert testified that though a causal relationship between the employee’s
accident and her current medical condition was possible he could not say to a
reasonable degree of medical probability that such a relationship existed.
In Holley,
the doctor could not opine to any degree of medical certainty as to the
causation of the plaintiff’s condition, especially where the plaintiff’s age
and medical history suggested other causes.
During
his deposition and on direct examination, Dr. Garner testified as follows:
Attorney: Based on your 20 years of experience,
based on looking at the MRI films, based on your examination and treatment of
[plaintiff], do you have an opinion to a reasonable degree of medical certainty
or medical probability that the fall described to you by [plaintiff], and then
redescribed to you today, was the likely cause of his herniated disk at C6-7?
.
. .
Garner: Yes
Attorney: And what is your opinion?
Garner: Yes, it was.
After
reviewing the prior Opinion and Award issued by the Deputy Commissioner and the
briefs and arguments made to the Commission, the Commission made the following
pertinent finding:
Based on Dr. Garner’s 20 years of
experience, the MRI findings, and his examination and treatment of plaintiff,
it was Dr. Garner’s expert opinion to a reasonable degree of medical certainty
and the Commission finds that the fall from the ladder was a likely cause of
plaintiff’s herniated disc at C6-7.
While
the record provides evidence of another potential cause of plaintiff’s cervical
disc herniation, “the findings of fact of the Industrial Commission are
conclusive on appeal when supported by competent evidence, even though there be
evidence that would support findings to the contrary.”
II
Defendant
next argues that even assuming plaintiff’s cervical condition was compensable,
plaintiff was not entitled to disability benefits. We agree in part.
“The
standard of review on appeal to this Court of a workers’ compensation case is
whether there is any competent evidence in the record to support the Commission’s
findings of fact, and whether these findings support the conclusions of the
Commission.” Russell v. Lowe’s Prod.
Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (citation
omitted).
The Commission may not wholly disregard
competent evidence; however, as the sole judge of witness credibility and the
weight to be given to witness testimony, the Commission may believe all or a
part or none of any witness’s testimony.
The Commission is not required to accept the testimony of a witness,
even if the testimony is uncontradicted. Nor is the Commission required to
offer reasons for its credibility determinations.
Hassell v. Onslow
County Bd. of Educ., 362
N.C. 299, 306-07, 661 S.E.2d 709, 715 (2008) (citations and quotations
omitted).
Under
the North Carolina Workers’ Compensation Act (the Act), codified under Chapter
97 of our General Statutes, “[t]he term ‘disability’ 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.”
N.C. Gen. Stat. §97-2(9) (2007).
Thus, under the Act, disability is the “impairment of the injured
employee’s earning capacity rather than physical disablement.” Russell, 108 N.C. App. at 765, 425
S.E.2d at 457 (citation omitted). “The
burden is on the employee 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.”
“Under
N.C. Gen. Stat. §§97-29 and 97-30, an injured employee who suffers a loss of
wage-earning capacity is generally entitled to collect compensation for as long
as he or she remains disabled.” Collins
v. Speedway Motor Sports Corp., 165 N.C. App. 113, 119, 598 S.E.2d 185, 190
(2004). “An employer may rebut the
continuing presumption of total disability either by showing the employee’s
capacity to earn the same wages as before the injury or by showing the employee’s
capacity to earn lesser wages than before the injury.” Brown v. S & N Commc’ns, Inc., 124
N.C. App. 320, 330, 477 S.E.2d 197, 202 (1996) (citation omitted).
If the employer offers sufficient
evidence to rebut the continuing presumption of disability, the process is not
concluded. The burden then switches back to the employee to offer evidence in
support of a continuing disability or evidence to prove a permanent partial
disability under G.S. 97-30. The employee can prove a continuing total
disability by showing either that no jobs are available, no suitable jobs are
available, or that he has unsuccessfully sought employment with the employer.
If the employee meets this burden, he is entitled to continuing total
disability benefits.
If the employee fails to meet this
burden, he continues to be disabled but the disability changes from a total
disability to a partial disability under N.C.G.S. 97-30.
Here,
the parties stipulated that “[p]laintiff has an average weekly wage of $743.54,
and a resulting compensation rate of $495.72.”
The record indicates that on 22 February 2005 Rena Hodges of Knightdale
Primary Care issued a medical excuse note for plaintiff’s absence from work due
to concerns over plaintiff’s cervical condition. On 7 March 2005, Dr. Garner issued a note
stating that plaintiff was under his care for a “neck problem” and was to be
excused from work until further notice.
On 23
May 2005, Dr. Garner recorded his last visit with plaintiff. Plaintiff testified that by 23 May 2005 he
had minimal arm pain and Dr. Garner released him to return to work. Plaintiff further testified that he “[didn’t]
recall [Dr. Garner] indicating one way or the other whether [plaintiff] ha[d]
any restrictions or not.” However,
plaintiff testified that he first contacted defendant about coming back to work
24 June 2005.
Defendant
presented evidence that on 23 May 2005, when plaintiff received his release to
return to work authorization from Dr. Garner, plaintiff’s position at Norment
Security was open and available to him; however, by 24 June 2005, that position
was unavailable.
After
learning defendant no longer had a position available, plaintiff accepted a
permanent position at Carolina Wiring Service.
And, at the time he testified before Deputy Commissioner Baddour,
plaintiff worked for Southern Security Group doing “the same line of work as
Norment . . . the same type of stuff.”
The
Commission made the following finding:
19. As the result of the admittedly
compensable injury by accident on April 30, 2004, plaintiff sustained injuries
to his cervical, thoracic and lumbar spine and was temporarily totally disabled
from any employment from February 15, 2005 until July 8, 2005.
“The
Commission may not wholly disregard competent evidence . . . .” Hassell, 362 N.C. at 306, 661 S.E.2d
at 715 (citations and quotations omitted).
On these facts, we hold the Commission erred in finding “plaintiff . . .
was temporarily totally disabled from any employment from February 15, 2005
until July 8, 2005.” In the light most
favorable to plaintiff, the record supports a finding of temporary total
disability from 22 February through 23 May 2005, but does not support a finding
that plaintiff was temporarily totally disabled between 23 May 2005 and 8 July
2005. Accordingly, we reverse the
Commission’s conclusion that “plaintiff was temporarily totally disabled from
any employment and is entitled to payment by defendant of temporary total
disability compensation . . . from February 15, 2005 until July 8, 2005.” Additionally, the Commission failed to make
findings of fact as to what sporadic dates plaintiff was out of work due to medical
treatment prior to 15 February 2005.
Therefore, we reverse the Commission’s award and remand the matter for
further findings of fact with regard to “sporadic days plaintiff missed due to
his medical treatment” and the status of plaintiff’s disability between 23 May
2005 and 8 July 2005.
III
Defendant
last argues that in the event the Commission’s award of temporary total
disability benefits is upheld, defendant is entitled to a credit for short-term
disability benefits paid to plaintiff.
However,
while defendant assigns error to the Commission’s temporary total disability
award, there is no indication in the record that the issue of credit for short-term
disability benefits paid to plaintiff was presented to the Commission; thus,
defendant raises this issue for the first time here on appeal. Under our North Carolina Rules of Appellate
Procedure, Rule 10(b)(1), “[i]n order to preserve a question for appellate
review, a party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent from the
context.” N.C. R. App. P. 10(b)(1)
(2008). Defendant’s failure to raise the
issue below resulted in a waiver of the issue.
Accordingly, defendant’s argument is dismissed.
Last,
plaintiff argues he should be awarded his costs and attorney’s fees for the
time spent on the appeal. In our
discretion, we decline to do so. See
N.C. Gen. Stat. §97-88 (2007).
Reversed
and remanded.
Judge
JACKSON concurs.
Judge
WYNN concurs in part and dissents in part.
NO.
COA07-1188
Filed: 2 December
2008
ROBERT CAREY,
Employee,
Plaintiff,
v.
I.C.
File No. 488669
NORMENT SECURITY INDUSTRIES,
Employer,
SELF-INSURED (GALLAGHER
BASSETT SERVICES, Servicing Agent)
Defendant.
WYNN,
Judge, concurring in part and dissenting in part.
I
disagree with that part of the majority’s decision that remands this matter
because “the Commission failed to make findings of fact as to what sporadic
dates plaintiff was out of work due to medical treatment prior to 15 February
2005.” In my view, the Commission’s
Opinion and Award contains adequate findings of fact regarding the days the
plaintiff missed because of medical treatment.
The
Commission’s Opinion and Award contains the following relevant findings of
fact:
5. Plaintiff was initially treated on May
10, 2004 . . .
6. On June 10, 2004, Plaintiff began
treating with Dr. Cara Siegel . . .
10. On October 28, 2004 an MRI of plaintiff’s
lumbar spine showed a disc bulge and herniation. On December 14, 2004, plaintiff was treated
by Dr. James Fulghum . . .
11. On December 17, 2004, plaintiff was seen
by Dr. Duncan with primary complaints of thoracic and low back pain. Plaintiff underwent a series of prolotherapy
injections that were administered on January 5, January 19, February 2, and
February 16, 2005.
Furthermore, the
Commission ordered the parties “to confer and stipulate based upon the payroll
and medical records as to the days or partial days for which plaintiff is due
compensation.” These findings of fact in
the Commission’s Opinion are sufficient to determine what sporadic dates
plaintiff was out of work due to medical treatment prior to 15 February
2005. Accordingly, I respectfully
dissent from the portion of the majority’s opinion that orders a remand.