hAll opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NO. COA03-1134
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
TAMMY BARBOUR,
Employee,
Plaintiff
v. North Carolina Industrial Commission
I.C. File No. 840857
REGIS CORP.,
Employer;
EMPLOYERS INSURANCE
OF WAUSAU,
Carrier,
Defendants
Appeal by defendants from an opinion and award entered 30 April 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 August 2004.
Law
Offices of George W. Lennon, by George W. Lennon and W. Bain Jones, Jr., for
plaintiff-appellee.
Hedrick
& Morton, L.L.P., by G. Grady Richardson, Jr. and P. Scott Hedrick, for
defendant-appellants.
HUNTER,
Judge.
By
this appeal, Regis Corporation and Employers Insurance of Wausau
(“defendants”), challenge the Industrial Commission’s opinion and award of
temporary total disability compensation and medical expenses to Tammy Barbour
(“plaintiff”). Specifically, defendants contend (I) plaintiff’s cervical
condition is not causally related to her original injury by accident and
therefore not compensable; (II) plaintiff is not disabled under the North
Carolina’s Workers’ Compensation Act and therefore she is not entitled to
ongoing disability benefits; and (III) defendants are not estopped from denying
plaintiff’s cervical injury claim. After careful review, we affirm the
Commission’s opinion and award.
On
1 June 1998, plaintiff was a hair salon manager working for Smart Style Regis
in Smithfield, North Carolina. Her duties included monitoring inventory, hiring
personnel, making bank deposits and hair styling. On 1 June 1998, plaintiff was
removing hair rollers from a customer’s hair. After she finished one side of
the customer’s hair, she started walking around the chair to the other side of
the customer to work on that side of the customer’s hair. As she was walking,
plaintiff’s feet slid out from under her and she landed on her left shoulder
and neck. After falling, she finished working on her customer and went home to
rest because of pain.
Later
that evening, plaintiff sought treatment with Johnston Memorial Hospital
because the pain had not dissipated. She advised the hospital that she was
suffering from neck and left shoulder pain. She was prescribed pain medication,
ordered not to work for two days and was advised to follow up with Dr. Richard
John Alioto.
On
5 June 1998, plaintiff had her initial visit with Dr. Alioto. She informed Dr.
Alioto that she fell landing on her left shoulder and neck at work and that she
was still experiencing pain and numbness in her left arm. Dr. Alioto diagnosed
plaintiff with left AC joint sprain, probably grade 1 or 2. After a few
follow-up visits, plaintiff did not receive any treatment from Dr. Alioto from
25 June 1998 until 7 January 1999.
After
plaintiff returned to work at the end of June 1998, she continued to experience
pain. However, she endured the pain because the salon was “short-staffed.” At
the beginning of the new year, she returned to Dr. Alioto complaining of pain
radiating up into her neck, the shoulder area, and in her arm. Dr. Alioto
diagnosed her with rotator cuff tendinitis and AC joint arthritis. After her
follow-up visit on 26 January 1999, Dr. Alioto diagnosed her with a cervical
strain. After several more visits, plaintiff underwent surgery on 15 March
1999.
Immediately
after the surgery, plaintiff remained out of work for four weeks. During this
time period, plaintiff returned to Dr. Alioto for a post-surgery visit on 25
March 1999. At that time, Dr. Alioto reported plaintiff was doing well.
Thereafter, she returned to work on light duty which consisted of scheduling,
greeting customers, ordering inventory, and making bank deposits. Approximately
two months after the surgery, in May, plaintiff resumed hairstyling for four
hours a day. After she resumed hairstyling, plaintiff felt pain in the left
side of her neck, shoulder and arm. Plaintiff discussed her pain with Dr.
Alioto during her doctor’s visits at the end of April, in May and in June. On 1
July 1999, Dr. Alioto suspected that her cervical problems were aggravated by
her fall. However, during his deposition, Dr. Alioto stated that his suspicions
were speculative and could not state to a reasonable degree of medical
certainty that plaintiff’s work-related fall caused or aggravated her cervical
condition.
On
1 July 1999, Dr. Alioto also gave plaintiff a referral for a neurosurgical
evaluation. On 28 September 1999, plaintiff had her first appointment with Dr.
William S. Lestini, an orthopaedic surgeon. During the course of his treatment,
Dr. Lestini conducted several diagnostic tests, prescribed medications and
physical therapy, and performed a nerve root block in plaintiff’s upper neck.
Dr. Lestini testified to a reasonable degree of medical certainty that
plaintiff’s neck pain was either caused or aggravated by her 1 June 1998
injury.
Finally,
plaintiff was referred to Dr. James S. Fulghum, III, a neurosurgeon for a
review and assessment of plaintiff’s condition. He agreed with the finding that
plaintiff had degenerative disc disease in her cervical area and opined that
falling as plaintiff did could have caused an acceleration of degenerative disc
disease. Dr. Fulghum also stated to a reasonable degree of medical certainty
that if plaintiff fell, suffered an injury, and experienced pain symptoms
afterwards without having experienced pain prior to the fall, plaintiff’s pain
was caused by the fall. However, he also testified that if she had no
complaints of neck pain for a year and then only complained of neck pain after
her shoulder had been worked on, then it would be very unlikely that the injury
had anything to do with the neck pain.
After
plaintiff suffered her work-related injury on 1 June 1998, defendants filed a
Form 60 on 16 June 1998, admitting plaintiff’s right to compensation describing
her injury as “MPRT,” pain in multiple body parts, and began receiving
temporary total disability benefits. After one year of treatment and surgery,
plaintiff was terminated from her employment with Smart Style Regis in June
1999. The next year, Dr. Lestini opined that plaintiff was at maximum medical
improvement for her neck and Dr. Alioto opined that plaintiff was at maximum
medical improvement on 2 March 2000 and assigned a fourteen percent (14%)
permanent partial impairment of the left upper extremity.
In
July 2000, plaintiff was given work restrictions and began working with Benson
Chiropractic as a receptionist. However, on 24 August 2000, plaintiff resigned
from her employment due to severe neck pain. In November 2000, defendants filed
a Form 33 request for hearing seeking to terminate benefits on the grounds that
plaintiff was no longer disabled. On 28 February 2002, the deputy commissioner
found and concluded plaintiff’s “cervical stenosis, degenerative disc disease
and accompanying pain were not caused by, aggravated by or accelerated by
plaintiff’s June 1, 1998 injury by accident.” The deputy commissioner concluded
plaintiff’s “pain which prevented [her] from continuing her employment” was
“not caused by or contributed to by her June 1, 1998 compensable injury.” After
appeal before the Full Commission, on 30 April 2003, the Commission reversed
the deputy commissioner and determined that plaintiff’s cervical condition and
degenerative disc disease were aggravated or accelerated by the 1 June 1998
fall, that plaintiff has not reached maximum medical improvement for her
cervical neck condition, and that plaintiff was disabled and unable to earn
wages in her regular employment or in any other employment after 24 August
2000. Accordingly, the Commission ordered defendants to pay all medical
expenses incurred or to be incurred as a result of the injury by accident,
including treatment of plaintiff’s cervical condition. Defendants appeal.
Defendants
first contend the Commission’s findings of fact determining plaintiff’s
cervical condition was causally related to her work-related fall on 1 June 1998
“completely lacked competent evidence to support them” and were “based on
nothing more than mere speculation and conjecture in violation of the law.”
However, we do not reach defendants’ contentions because they have admitted
liability and compensability for plaintiff’s neck injury. On 16 June 1998, defendants filed a Form
60 “Employer’s Admission of Employee’s Right to Compensation Pursuant to N.C.
Gen. Stat. §97-18(b)” in which defendants describe plaintiff’s injury as “Pain
MPRT,” or pain in multiple body parts, which resulted from an injury occurring
on 1 June 1998. As explained in Sims v. Charmes/Arby’s Roast Beef, 142
N.C. App. 154, 159-60, 542 S.E.2d 277, 281-82 (2001), an employer who files a
Form 60 pursuant to N.C. Gen. Stat. §97-18(b) will be deemed to have admitted
liability and compensability.[Note 1]
Nonetheless,
defendants argue they should be allowed to contest the compensability of
plaintiff’s cervical condition because the condition was non-work related.
Defendants contend that “[t]o hold otherwise would be unfair to the employer as
a declaration against its interest even when the plaintiff does not have a
valid claim.” We decline to address defendants’ contentions because the
Commission correctly concluded plaintiff’s cervical condition was either caused
or aggravated by her 1 June 1998 work-related fall.
In
its Opinion and Award, the Commission found: “34. Plaintiff’s cervical stenosis
and degenerative disc disease were aggravated or accelerated by the June 1,
1998 injury by accident.”
In challenging this finding, defendants
reference the dissenting opinion of Commissioner Renee Riggsbee which stated a
finding that a causal relationship exists between plaintiff’s neck condition
and the fall would result from a “strained reading of the totality of the
medical depositions.” Commissioner Riggsbee further stated “[m]edical causation
should be based on competent medical opinion and not speculation and
conjecture.” After careful review of the transcript, depositions and the record
below, we affirm the Commission’s finding of a causal relationship between
plaintiff’s work-related injury and her cervical condition.
In
reviewing an Opinion and Award from the Industrial Commission:
“The findings of fact by the
Industrial Commission are conclusive on appeal if supported by any competent
evidence.” Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d
529, 531 (1977). Thus, on appeal, this Court “does not have the right to weigh
the evidence and decide the issue on the basis of its weight. The court’s duty
goes no further than to determine whether the record contains any evidence
tending to support the finding.” Anderson [v. Lincoln Constr. Co.],
265 N.C. [431,] 434, 144 S.E.2d [272,] 274 [(1965)].
N.C.G.S. §97-86 provides that “an
award of the Commission upon such review, as provided in G.S. 97-85, shall be
conclusive and binding as to all questions of fact.” N.C.G.S. §97-86 (1991). As
we stated in Jones v. Myrtle Desk Co., 264 N.C. 401, 141 S.E.2d 632
(1965), “[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.” Id. at 402, 141 S.E.2d at 633.
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. Doggett v. South Atl.
Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937).
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998).
While
in this case Dr. Alioto testified that his 1 July 1999 statement that
plaintiff’s cervical stenosis was aggravated by her 1 June 1998 work-related
fall was speculative, Dr. Lestini testified to a reasonable degree of medical
certainty that a causal connection existed between plaintiff’s neck condition
and her work-related injury. Specifically, Dr. Lestini testified as follows:
[Q.] If
you will, for just a moment, assume that Tammy Barbour experienced no neck pain
-- as we submit she’s testified earlier live in a hearing in this cause --
before her fall on 6-1-98; assuming further, if you will, that she had neck
pain in the aftermath of her 6-1-98 work fall as she has said she did; assume
further that she complained of neck pain throughout her medical appointments
with Dr. Alioto, an initial treating physician who, in fact, did surgery on her
shoulder.
If you make those assumptions and
based upon those assumptions, do you have an opinion satisfactory to yourself
as to a reasonable degree of medical certainty as to whether her neck pain
could have been proximally caused by the 6-1-98 fall?
. . . .
A. Given
those assumptions, I have no reason to doubt that the current symptoms are not
related to the initial injury as described.
Shortly thereafter, Dr. Lestini testified
as follows:
[Q.] I
understand you to say that to a reasonable degree of medical certainty the
injury then proximately caused the neck -- the fall proximately caused the neck
injury?
. . . .
A. I
believe we’re saying the same thing and once again I believe, yes, that’s the
-- I agree with that.
Moreover, Dr. Lestini opined that the 1
June 1998 fall would have aggravated any preexisting neck condition.
Q. Okay.
Now, given the -- if you make the same assumptions that I gave you earlier,
would it not be fair to say also as to a reasonable degree of medical certainty
that if there were preexisting degenerative diseases, that such a fall may have
aggravated the condition of her neck and caused her neck pain?
. . . .
A. I
believe that’s true.
Dr. Fulghum also testified to a
relationship between plaintiff’s fall and an acceleration of plaintiff’s
degenerative disc condition.
Q. .
. . a fall such as was described to you, her falling on a floor and on her left
side and on her neck could have caused an acceleration of a degeneration or
disc disease; is that correct?
A. Yes,
sir.
In each of the hypotheticals, the doctors
were told to assume plaintiff complained of neck pain after the fall. Our
review of the record indicates plaintiff complained of neck pain immediately
after the fall. Indeed, she stated she had left side neck pain when she
reported to Johnston Memorial Hospital and, during her initial visit with Dr.
Alioto, the doctor reported she appeared uncomfortable in the neck area. Thus,
we conclude the Commission’s finding that plaintiff’s 1 June 1998 work-related
fall aggravated or accelerated her cervical stenosis and degenerative disc
disease was supported by competent evidence. Even though Dr. Alioto testified
that his opinion that there was a causal relationship was based upon mere
speculation, “‘the Commission is the fact finding body’“ and “‘is the sole
judge of the credibility of the witnesses and the weight to be given their
testimony.’“ Adams, 349 N.C. at 680, 509 S.E.2d at 413 (citations
omitted). As stated, “on appeal, this Court ‘does not have the right to weigh
the evidence and decide the issue on the basis of its weight. The court’s duty
goes no further than to determine whether the record contains any evidence
tending to support the finding.’“ Id. at 681, 509 S.E.2d at 414
(citation omitted).
Defendants
next contend plaintiff is not entitled to ongoing disability benefits from 24
August 2000, the last date worked, because she is neither disabled as defined
by the Workers’ Compensation Act nor is her cervical condition compensable
because it is a non-work related condition. As stated in Sims,
admitting
compensability and liability, whether through notification of the Commission by
the use of a Form 60 or through paying benefits beyond the statutory period
provided for in G.S. §97-18(d), does not create a presumption of continuing
disability as does a Form 21 agreement entered into between the employer and
the employee.
Sims, 142 N.C. App. at 159-60, 542 S.E.2d at 281-82. Thus,
“[t]he burden of proving disability . . . remains with plaintiff.” Id.
at 160, 542 S.E.2d at 282.
The
Workers’ Compensation Act compensates an employee for work related injuries
which prevent him from making the equivalent amount of wages he made before the
injury. Watson v. Winston-Salem Transit Authority, 92 N.C. App. 473,
475, 374 S.E.2d 483, 485 (1988). In order to receive disability compensation
under the Act, the mere fact of an on the job injury is not sufficient. The
injury must have impaired the worker’s earning capacity. Id.; Ashley
v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).
N.C.
Gen. Stat. §97-2(9) (2003) defines disability as “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.” In order to find a worker disabled under the
Act, the Commission must find:
(1)
that plaintiff was incapable after his injury of earning the same wages he had
earned before his injury in the same employment, (2) that plaintiff was
incapable after his injury of earning the same wages he had earned before his
injury in any other employment, and (3) that this individual’s incapacity to
earn was caused by plaintiff’s injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683
(1982). Initially, the claimant must prove both the extent and the degree of
his disability. Watson v. Winston-Salem Transit Authority, 92 N.C. App.
at 475, 374 S.E.2d at 485. However, once the disability is proven, “there is a
presumption that it continues until ‘the employee returns to work at wages
equal to those he was receiving at the time his injury occurred.’“ Watson,
92 N.C. App. at 476, 374 S.E.2d at 485 (quoting Watkins v. Motor Lines,
279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971)). That presumption of disability
continues until the defendant offers evidence to rebut the presumption. At that
point, the burden shifts to the employer to show that the worker is employable.
Radica v. Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190
(1994). 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. Franklin v. Broyhill Furniture Industries, 123 N.C. App.
200, 209, 472 S.E.2d 382, 388 (1996) (Walker, J., concurring). To rebut the
presumption of continuing disability, the employer must produce evidence that:
(1) suitable jobs are available for the employee;
(2) that the employee is capable of getting
said job taking into account the employee’s physical and vocational
limitations;
(3) and that the job would enable the
employee to earn some wages.
Id. At any time, the employer may rebut the presumption of
disability by showing that the employee has unjustifiably refused suitable
employment. N.C. Gen. Stat. §97-32 (2003); id.
In
this case, defendants’ argument that plaintiff is not entitled to ongoing
disability benefits is based upon their contention that plaintiff’s cervical
condition was non-work related and that plaintiff has not sought treatment for
her left shoulder or left AC joint since 1 July 1999. However, as previously
discussed, competent evidence supports the Commission’s finding that plaintiff’s
cervical condition is compensable and work-related. Furthermore, defendants
concede in their brief that “the only evidence Plaintiff has provided to
support her claim of ongoing disability is in regards to her cervical
condition.” As plaintiff has presented evidence of ongoing disability, the
burden shifted to defendants to show that plaintiff refused suitable employment
or that suitable jobs were available to plaintiff which plaintiff was capable
of acquiring given her physical and vocational limitations and would have paid
her some wages. See id. On appeal, defendants do not argue suitable
employment was available or that plaintiff refused suitable employment.
Furthermore, defendants do not contend that the following conclusion of law was
unsupported by sufficient findings of fact based upon competent evidence:
5. .
. . Plaintiff met her burden of proving that she is physically, as a result of
the work-related injury, incapable of any work. . . . Defendants
have not shown that suitable jobs are available to plaintiff and that plaintiff
is capable of obtaining a suitable job, taking into account both physical and
vocation limitations.
Accordingly, we overrule this assignment
of error.[Note 2]
Finally,
defendants contend they are not estopped to deny plaintiff’s unrelated and
non-compensable cervical injury claim because they filed a Form 60, paid
compensation and did not deny plaintiff’s claim within ninety days of filing
the Form 60. As we have affirmed the Commission’s findings and conclusions
determining plaintiff’s cervical condition was work-related and that plaintiff
is entitled to ongoing disability benefits, we decline to address this
assignment of error.
Affirmed.
Judges
TIMMONS-GOODSON and McCULLOUGH concur.
1. “G.S. §97-82(b) specifically states that payment pursuant to G.S. §97-18(b) (a Form 60 Payment) ‘shall constitute an award of the Commission on the question of compensability of and the insurer’s liability for the injury for which payment was made.’ Moreover, Form 60 states only ‘[y]our employer admits your right to compensation for an injury by accident on (date) . . . .’ Below this acknowledgment of liability is a section provided for a description of the accident, the average weekly wage and resulting compensation rate, and the date which disability begins and ends. The section is captioned, in bold print and capital letters: ‘ THE FOLLOWING IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE AN AGREEMENT.’
In
contrast, the North Carolina Industrial Commission Form 21, which constitutes
an award of the Commission as to both compensability and amount when properly
approved states explicitly that the parties agree and stipulate not only as to
compensability but also to the employee’s average weekly wage. ‘Once the Form
21 agreement [is] reached and approved “no party . . . [can] thereafter be
heard to deny the truth of the matters therein set forth . . . .”’” Watts v.
Hemlock Homes of the Highlands, Inc., 141 N.C. App. 725, 728, 544 S.E.2d
1,3 (2001) (citations omitted) (emphasis omitted).
2. Defendants also reference plaintiff’s
failure to file a Form 28U after leaving her employment with Benson
Chiropractic on 24 August 2000. The failure to complete a Form 28U, “Employee’s
Request that Compensation be Reinstated After Unsuccessful Trial Return to
Work,” does not preclude plaintiff from receiving ongoing disability benefits. See
Jenkins v. Public Service Co. of N.C., 134 N.C. App. 405, 412, 518 S.E.2d
6, 10 (1999), reversed in part on other grounds by, 351 N.C. 341, 524 S.E.2d
805 (2000) (indicating a Form 28U would merely reinstate compensation pending
the Commission’s determination on whether the return to work was a failed
return to work due to a compensable work-related injury).