Opinion
I.C. No. 403184.
Filed 24 March 1998.
This matter was reviewed by the Full Commission on 10 December 1997 upon the appeal of Plaintiff from an Opinion and Award of Deputy Commissioner Chrystal Stanback filed on July 7, 1997. The case was heard before the Deputy Commissioner in Goldsboro, North Carolina on September 6, 1995.
Plaintiff: BARNES, BRASWELL HAITHCOCK, Attorneys, Goldsboro, North Carolina; W. Timothy Haithcock, Appearing.
Defendants: BROOKS, STEVENS POPE, Attorneys, Cary, North Carolina; Bob Welch, Appearing.***********
The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Chrystal Stanback. The appealing party has shown good ground to reconsider the evidence. The Full Commission reverses the Deputy Commissioner's Opinion and Award and enters the following Opinion and Award.
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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing as:
STIPULATIONS
At the time of the alleged injuries by accident on September 24, 1992, March 12, 1993, February 5, 1994 and July 4, 1994, the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act. The employer-employee relationship existed between plaintiff and defendant-employer on the dates of alleged injuries by accident. Georgia Pacific Corporation was self-insured on the dates of the alleged injuries by accident. Mr. Whaley was out of work and paid temporary total benefits for the following periods:
11/26/93 — 12/15/93
3/23/94 — 4/27/94
5/18/94 — 5/24/94
Mr. Whaley received 26 weeks of short-term disability, from 7/6/94 — 1/10/95, from a noncontributory plan.
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The Full Commission finds facts as follows:
FINDINGS OF FACT
1. The plaintiff was 35 years of age when he began his employment with Georgia Pacific. He was employed from March 27, 1984 until July 5, 1994. From 1989 until the end of his employment, he was employed as a log in-feed technician. He sat in a control booth and operated a series of controls separating logs. He had to climb about 70 steps. Whenever logs were stuck, he would have to go down to help move them and assist in cleaning up.
2. On September 24, 1992, the plaintiff suffered an admittedly compensable back injury. He was moving a box of flaker knives to a worktable and felt low back pain. He continued to work. The accident investigation report of Georgia Pacific stated "possibly lifted box incorrectly causing the injury. Employee was doing a task he rarely does." The parties further stipulated for the record that he received temporary total disability benefits from November 26, 1992 through December 15, 1992 for this back injury.
3. On March 12, 1993, the plaintiff was struck in the back by a door that vibrated off during a logjam. Again, he continued to work. After this he was paid temporary total disability benefits from March 23, 1993 through April 27, 1993, and the company related it to his September 24, 1992 injury.
4. On February 5, 1994, the plaintiff was shoveling fines out of the infeed dike when his right foot slipped and he fell, thus aggravating a previous injury to his lower back. According to the accident investigation report of Georgia Pacific, the "area was slippery due to hydraulic oil and rain water in the dike". Again, Mr. Whaley was paid temporary total benefits from May 15, 1994 through May 24, 1994, and it was related to his original September 24, 1992 injury.
5. All of the above times out of work were admitted as temporary total periods from a compensable injury in the records of Georgia Pacific.
6. Mr. Whaley first sought medical attention with Goshen Medical Center on November 23, 1993. Mr. David Reeves, a physician's assistant, diagnosed chronic low back pain and referred him to Dr. Ira Hardy. Dr. Hardy began to see him on December 13, 1993. An MRI scan revealed a broad-based disc protrusion predominantly right sided at the L4-L5 disc, which is the second disc from the bottom of the spine. Dr. Hardy also noted that on physical examination Mr. Whaley's back was straight. On March 23, 1994, he was seen again by Dr. Hardy because "he had slipped at work, and developed a recurrent right back and right hip pain". On exam, he noted that Mr. Whaley had lost his lumbar curve.
7. On April 25, 1994, Mr. Whaley was seen again by Dr. Hardy with back and right hip pain. Dr. Hardy thought he could return to work at light activity and he gave him a light duty job requirement form to return to non-labor work. On May 17, 1994, he was seen for low back pressure radiating into the buttocks. A myelogram on May 25, 1994, showed "rather marked degenerative disc disease at the L4-L5 level", which was the second disc from the bottom. His L5 vertebrae was sacralized, which means that what normally would be a moveable vertebrae was attached to his sacrum, so that the L4-L5 disc was the first movable disc. Dr. Hardy released him only to continue light duty non-physical labor.
8. On July 4, 1994, plaintiff was working a twelve (12) hour shift, which was the last day he worked. The infeed was closed down and plaintiff was working maintenance cleaning up, which was not his usual job, was heavier work that his usual job and he had been restricted by his treating physician to light duty. Plaintiff began work at 7 p.m. that night and he began to clean out underneath the swing saw. He put his hand up on the beam to pull himself up and felt a sharp feeling in the low part of his back. This constituted a specific traumatic incident of the work assigned and also was an injury by accident. (Defendant's evidence to the contrary is found not credible.) He told a co-worker, David Smith, that he hurt his back and that he was going to the supervisor's office. He talked to the supervisor, left to go home early before the shift was over, and got into a hot tub of water.
9. Dr. Hardy rendered an opinion, and the Full Commission finds as facts, that the various on-the-job traumas that he suffered as outlined above, including the July 4, 1994 incident, could have singularly or in combination have been a substantial factor in either causing his degenerative disc to become symptomatic or in aggravating his condition where it became symptomatic and impaired him from doing his normal job. He concurred with the opinion of Dr. Jack Drummed, which the Full Commission finds as a fact, that because of his degenerative disk disease exacerbated by on-the-job traumas including the one on July 4, 1996, plaintiff was likely never to return to work. Dr. Hardy's prior letter to Defendant's case manager and Defendant's other evidence to the contrary are found not credible in light of Dr. Hardy's later deposition testimony.
10. James Senters worked at Georgia Pacific on the night of July 4, 1994, and testified that Mr. Whaley left before the shift was over and that he saw Mr. Whaley talking to the supervisor, Leonard Byrd, in his office before he left. Another employee, David Smith, who was working at Georgia Pacific on July 4, 1994, testified that he and Mr. Whaley worked fairly close together on the clean-up job that night. He stated that he heard Mr. Whaley let out a couple of words, and that he himself asked plaintiff if he was all right, and saw plaintiff was holding his back. He stated that plaintiff's appearance was that he was obviously in pain and that he could tell that he was hurting. Michael Phillips, Safety Officer, testified that Mr. Whaley left between 2 a.m. and 4 a.m. on the morning of July 5, 1994, and that he received a call from Leonard Byrd stating plaintiff wanted to go home because it was unbearable for him to perform any more work and that he could not take it any more.
11. On July 6, 1994, plaintiff went to the office at Georgia Pacific and was told he would have to be cleared to return to work by Dr. Jack Drummond. A stipulated medical report from Dr. Jack Drummond, dated August 1, 1994, stated that the patient would never be able to return to work and gave a diagnosis of degenerative disc disease. Mr. Whaley never did return to Georgia Pacific.
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Based upon the findings of fact, The Full Commission concludes as follows:
CONCLUSIONS OF LAW
1. Plaintiff suffered both an injury by accident and a specific traumatic incident on July 4, 1996, which has left him unable to work. N.C. Gen. Stat. § 97-2 (6).
2. A pre-existing condition aggravated by a subsequent trauma resulting in disability is deemed compensable. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122 disc. rev. den. 317 N.C. 355, 346 S.E.2d 500 (1986).
3. Where Plaintiff's work-related accident contributed "in some reasonable degree" to his disability, then he is entitled to compensation. When industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable . . ." Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 258, 218 S.E.2d 876, 879 (1975), reversed on other grounds, 289 N.C. 254, 221 S.E.2d 355 (1976), quoting 2 A. Larson, Workmen's Compensation Law. Sec. 59.20, pp. 10-270-273 (1972).
4. Plaintiff is entitled to temporary total disability benefits from July 5, 1994 and continuing at a rate of $283.43 per week until further order of the Industrial Commission. N.C. Gen. Stat. § 97-29.
5. To the extent the same is reasonably designed to attempt to effect a cure of, provide needed relief from and or lessen the period of disability associated therewith, plaintiff is entitled to all reasonable and necessary medical expenses incurred or to be incurred in the future as a result of his back injuries. N.C. Gen. Stat. § 97-25.
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Based on the foregoing findings of fact and conclusions of law, the Full Commission reverses the holding of the Deputy Commissioner and enters the following:
AWARD
1. Defendant shall pay Plaintiff temporary total disability benefits from July 5, 1994 and continuing at a rate of $283.43 per week until further order of the Industrial Commission.
2. To the extent the same is reasonably designed to attempt to effect a cure of, provide needed relief from and or lessen the period of disability associated therewith, Defendants shall pay all reasonable and necessary medical expenses already incurred or to be incurred in the future by plaintiff as a result of his back injuries.
3. An attorney's fee of 25% is hereby approved for plaintiff's counsel. Defendants shall pay every fourth check to counsel. The accrued compensation shall be paid in one lump sum, including interest at the rate of 8 per cent per annum from September 6, 1995 until paid.
4. Defendants are entitled to a credit of benefits paid to plaintiff from July 6, 1994 to January 10, 1995 on a week-by-week basis.
5. Defendants shall pay the costs.
S/ ____________ THOMAS J. BOLCH COMMISSIONER
CONCURRING:
S/ _________________ CHRISTOPHER L. SCOTT COMMISSIONER
DISSENTING:
S/ _________________ RENEE C. RIGGSBEE COMMISSIONER
Filed Date: 3/24/98
I respectfully dissent from the majority's decision to reverse the Deputy Commissioner's denial of benefits. The Deputy Commissioner's Opinion and Award does require some modification (to clarify, for example, that Dr. Hardy ordered no new work restrictions in May 1994). Nevertheless, the Deputy Commissioner correctly concluded that any injury or disability sustained by plaintiff on or after 4 July 1994 was causally related to his degenerative disc disease and not to the alleged incident on that date.
Based on the history plaintiff relayed to Dr. Hardy in December 1993, Dr. Hardy initially believed that plaintiff's degenerative disc disease was made symptomatic by the 24 September 1992 incident in which plaintiff lifted a box of knives. The subsequent history of complaints and course of treatment cast serious doubt on that initial opinion, and Dr. Hardy withdrew it. In his June 1994 letter to the Georgia-Pacific claims examiner, Dr. Hardy stated his opinion that plaintiff's lumbar disc disease was a natural ongoing process which was long-standing and that his condition was not related to the lifting incident in 1992.
The greater weight of the evidence confirms Dr. Hardy's June 1994 opinion on causation. Plaintiff did not seek medical attention for the 24 September 1992 lifting incident until 23 November 1993, more than a year later, and missed no work until 26 November 1993. (The medical records also disclose low back complaints before September 1992.) Plaintiff also did not receive medical treatment nor did he miss work following the 12 March 1993 incident when he was struck in the back. Again, plaintiff did not receive medical treatment and did not miss time from work following the 5 February 1994 fall. The majority's findings to the contrary are not supported by the evidence. None of the work-related mishaps were significant enough to require medical treatment or cause plaintiff to miss time from work.
Dr. Hardy first treated plaintiff in mid-December 1993. Plaintiff did not seek medical attention again until he saw Dr. Hardy in March and May 1994. Dr. Hardy never found any evidence of neurological involvement, as confirmed by an MRI and myelogram. What he did find was degenerative disc disease, particularly in the L4-5 area, coupled with a sacralized L5 congenital condition. In response to a confusing hypothetical, Dr. Hardy agreed that plaintiff's various on-the-job incidents, either singularly or in combination, could have aggravated his preexisting condition to where it became symptomatic and impaired him from doing his "normal job." This proffered evidence of causation should carry little weight in light of Dr. Hardy's earlier opinion (which he did not withdraw), the fact that Dr. Hardy did not examine plaintiff after the 4 July 1994 incident, and the fact that Dr. Hardy repeatedly returned plaintiff to work with no restrictions until the restriction for light duty in May 1994. Significantly, plaintiff presented to Dr. Hardy on 17 May 1994 with complaints of "intense low back pain" that developed "while standing." Dr. Hardy restricted plaintiff to non-labor duty work at that time because of chronic back pain due to his degenerative and congenital condition, not because of a compensable job related injury. It could be said that plaintiff was unable to perform his "normal job" at that point.
The evidence does not support the majority's finding that Dr. Hardy agreed with Dr. Drummond's statement that plaintiff could not return to work because of a job-related disability. In fact, Dr. Dummond's report shows that he relied on Dr. Hardy's diagnosis of degenerative disc disease that was " not caused by an injury sustained on the job" (emphasis added). In short, the greater weight of the evidence does not show that plaintiff's allegedly disabling back pain is causally related to any work-related incident.
Plaintiff has also failed to prove disability. Russell v. Lowes Products Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). Given the failure to show causation, this issue need not be addressed further herein.
For the foregoing reasons, I believe that plaintiff has not met his burden of proving that he sustained a disabling injury caused by accident or specific traumatic incident of the work assigned. N.C. Gen. Stat. § 97-2 (6); Lettley v. Trash Removal Service, 91 N.C. App. 625, 372 S.E.2d 747 (1988). Accordingly, I respectfully dissent.
S/ _____________________ RENÉE C. RIGGSBEE COMMISSIONER