I.C. NO. 744427North Carolina Industrial Commission
Filed 24 August 2000.
OPINION AND AWARD for the Full Commission by CHRISTOPHER SCOTT, Commissioner, and DISSENT by THOMAS J. BOLCH, Commissioner.
This matter was reviewed by the Full Commission on 14 April 2000 upon the appeal of plaintiff from the Opinion and Award of Morgan S. Chapman, filed 2 September 1999. Deputy Commissioner Chapman initially heard this case on 23 July 1998.
APPEARANCES
Plaintiff: Jeannette Griffith Congdon, Attorney, Angier, North Carolina appearing.
Defendants: Lewis Roberts, Attorneys, Raleigh, North Carolina, John A. Ruocchio appearing.
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The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Morgan S. Chapman and the briefs and oral arguments on appeal. The appealing party has not shown good ground to receive further evidence or to amend the prior holding. Accordingly, the Full Commission affirms the decision of the Deputy Commissioner 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 on 23 July 1998 as:
STIPULATIONS
1. On 22 May 1997 plaintiff was an employee of the above named employer within the meaning of the Workers Compensation Act, and the parties were bound by and subject to the North Carolina Workers Compensation Act.
2. On such date, the employer was insured by USFG Insurance Company.
3. The average weekly wage will be determined by a Wage Form 22 provided by defendant-employer.
In addition, the parties stipulated into evidence seventy pages of documents including Industrial Commission forms, discovery responses, a transcript of a recorded statement and medical reports. A Pre-Trial Agreement dated 23 July 1998 is incorporated herein by reference.
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Based upon the entire evidence of record, the Full Commission enters the following:
FINDINGS OF FACT
1. Plaintiff, who is fifty-six years old and who has a tenth grade education, began working for defendant-employer in September 1994 as a mechanic. His job duties included working on heavy equipment, lawn mowers and any other equipment owned and used by the company. Plaintiff worked considerable overtime hours and, at the time in question, was earning an average weekly wage of $1,342.55.
2. On 22 May 1997 plaintiff was instructed to re-deck a carryall trailer, which was a flat bed trailer used to haul equipment. The trailer had large boards, which were approximately eighteen feet long and weighed approximately one hundred and fifty pounds. It was these boards which plaintiff had to replace. Prior to 22 May 1997, plaintiff had never performed the task of re-decking the trailer. Plaintiff performed these tasks, which were not part of his normal work routine, without the assistance of a co-worker, which meant that he performed these tasks in an unusual manner as well. Additionally, plaintiffs work of maneuvering the boards on and off the trailer was difficult and awkward due to the length of the boards. While performing these duties, plaintiff injured his shoulder, experiencing the onset of pain.
3. The incident which occurred on 22 May 1997 and which resulted in the injury too plaintiffs shoulder constituted an injury by accident arising out of and in the course of his employment with defendant-employer.
4. Plaintiff continued working the remainder of the day on 22 May 1997 despite the pain in his shoulder. Before leaving, plaintiff advised his supervisor, Mr. Bennie Medlin, that his shoulder was bothering him. Plaintiff worked two more days that week, through Saturday, but only worked two hours on Tuesday 27 May 1997 before advising Mr. Medlin that he was leaving to go to the doctor. Mr. Medlin did not inquire about the reason and plaintiff did not tell him that the doctors visit was related to an incident at work because the company had an incentive program which provided bonuses to employees after they had worked certain number of hours without an injury. Plaintiff was close to the number of hours he needed for a $500.00 bonus, so he preferred to pay the co-payment for the doctors appointment since he anticipated that the problem would not be significant.
5. Dr. Moore, plaintiffs family doctor, saw him on 27 May 1997 and opined that plaintiff had strained his shoulder and was experiencing tendinitis of the bicep tendon. The doctor kept plaintiff out of work in order to rest the shoulder. Plaintiff continued to experience persistent symptoms so on 10 June 1997 the shoulder was injected with a cortisone solution and he was given steroidal anti-inflammatory medication. Plaintiff subsequently developed some pain at the elbow so Dr. Moore placed him in a sling. Since the shoulder symptoms did not improve, plaintiff was sent for an ultrasound and then was referred to Dr. Krakauer, an orthopedic and hand surgeon.
6. Dr. Krakauer first examined plaintiff on 22 July 1997. Plaintiffs complaints were confined to the shoulder area and, in Dr. Krakauers opinion, his symptoms were likely due to rotator cuff tendinitis. The doctor injected plaintiffs shoulder and advised him to continue with the medications and exercises previously recommended. The injection gave plaintiff relief for several days, but on 29 July 1997 he returned to the doctor in considerable discomfort. Dr. Krakauer ordered an MRI which revealed findings consistent with an impingement syndrome of the shoulder. Consequently Dr. Krakauer referred plaintiff to Dr. Kobs, the shoulder specialist at the office.
7. Dr. Kobs saw plaintiff on 19 August 1997 and reviewed the MRI. In view of the history of relief from the cortisone injections and the strongly positive impingement testing, it was clear that plaintiff was experiencing symptoms from impingement of the rotator cuff in his right shoulder. Since plaintiffs condition had not improved with conservative treatment, Dr. Kobs recommended arthroscopic surgery. On 24 September 1997, Dr. Kobs performed surgery to decompress the subacromial space in the shoulder. The doctor then followed plaintiffs recovery.
8. On 28 October 1997 plaintiff advised Dr. Kobs that he was experiencing some mild sensory changes in the outer portion of his right arm and that he had been seeing a chiropractor for adjustments. With these new complaints, Dr. Kobs ordered x-rays of plaintiffs cervical spine which revealed moderate to significant degenerative disc disease. Consequently, the order for physical therapy to the shoulder was modified to also include treatment for a cervical spine condition. Dr. Kobs subsequently referred plaintiff to Dr. Albright, the offices spine specialist, for evaluation.
9. Plaintiff saw Dr. Albright on 24 November 1997 and told the doctor he had been having neck pain since his injury in May, which was not true. In fact, plaintiff had not had neck pain until October. After conducting an examination and reviewing the x-rays, Dr. Albright was of the impression that plaintiff had a cervical radiculopathy, so he was sent for a myelogram/CT scan. The tests revealed spinal stenosis at C6-7, which was consistent with his symptoms. Dr. Albright was of the impression that surgery would be advisable, and on 10 December 1997 he operated to decompress and fuse the C6-7 interspace.
10. Following the surgery, plaintiff continued to complain of arm pain and by 27 January 1998 the pain had become severe. Plaintiff was also showing signs of depression, so Dr. Albright prescribed an anti-depressant for him. When plaintiff next returned on 24 February 1998, the pain in his arm was continuing. Dr. Albright ordered a myelogram/CT scan to determine if there was a problem causing the arm pain which could be corrected by another operation. The myelogram was performed 25 February 1998 and did not show any evidence of nerve root compression to explain the symptoms. However, during the night after the myelogram, plaintiff began acting strangely. Ultimately, he became delirious so his wife took him to the emergency room and called Dr. Albright. Dr. Albright examined him at the hospital and called in a neurologist, Dr. Konanc.
11. Plaintiff was seriously ill and was admitted to the hospital. Testing indicated that he was suffering from meningitis, but the treating physicians were not able to determine whether the condition was bacterial, viral or chemical in origin. Regardless of the offending agent, the meningitis did appear to be causally related to the myelogram procedure plaintiff had undergone. Plaintiffs condition improved with treatment and he was ultimately discharged from the hospital. However, when Dr. Moore saw him on 18 March 1998, plaintiff was still disheveled, agitated and rambling, and subsequent testing revealed that his sedimentation rate was significantly elevated. His condition continued to improve but Dr. Moore ordered an MRI of his head at the next follow-up appointment on 24 March 1998. Apparently the test was not performed and plaintiff did not return to Dr. Moore at that time.
12. When plaintiff next saw Dr. Albright on 26 March 1998, his symptoms of cervical radiculopathy were completely gone, which was a surprising development. However, he complained of generalized aches and pains. Dr. Konanc, who saw him on 1 April 1998, was of the opinion that the current symptoms were due to resolving meningeal irritation and he prescribed medication to address the problem. Both doctors continued to follow plaintiffs recovery and recommended that he be evaluated by a psychiatrist regarding his depression and attention difficulties and by a rheumatologist for his complaints of joint pain. Apparently in September 1998 he did see a rheumatologist, Dr. Sinclair, who diagnosed him with left rotator cuff tendinitis but who found no evidence of an underlying arthritic condition. Dr. Sinclair was of the impression that plaintiff might have myofascical pain syndrome but that he did not have fibromyalgia.
13. Plaintiff continued to complain of aches and pains. After discontinuing one of plaintiffs medications, he developed recurrent headaches, low back and leg pain. Consequently he returned to Dr. Konanc, who renewed the prescription. In April 1999 when he returned, plaintiff was still complaining of pain in his legs. At that time Dr. Konanc did not know whether the leg pain was related to the meningitis he had suffered from the previous year.
14. Except for helping his son with the sons construction business, plaintiff did not return to work after 27 May 1997. Defendant-employer terminated his employment in October 1997 because his physicians would not complete certain forms required by the company. At no time prior to his termination did the company offer him light work. In fact, the company insisted that he be released to full duty work before they would allow him to return to work.
15. On 22 May 1997 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer. The fact that he had to lift and maneuver one hundred and fifty-pound boards onto and off of a trailer without assistance constituted an unusual occurrence which interrupted his regular work routine. He had never before performed this task.
16. As a result of the injury by accident on 22 May 1997, plaintiff injured his right shoulder such that he developed an impingement syndrome and ultimately required surgery to the shoulder joint.
17. The radicular symptoms which plaintiff developed in October 1997 and the cervical spine condition for which he was subsequently treated were not a proximate result of his injury at work. Before October 1997 his symptoms were specific for the impingement syndrome of the shoulder and none of his treating physicians, when presented with the correct facts and the medical reports, were of the opinion that the neck problem was causally related to the accident.
18. The meningitis plaintiff developed in February 1998 was also not a result of the accident. Rather, it arose from diagnostic tests performed for the unrelated cervical spine condition.
19. Plaintiff was unable to work in his regular job for defendant-employer as a result of his shoulder injury during the period between 27 May 1997 and 18 November 1997 when he was being treated for his right shoulder injury, and defendant-employer did not offer work to him which was suitable to his capacity on the occasions during the healing period when he was capable of performing light work. As of 18 November 1997, he was still not capable of performing the heavy lifting required by his regular job due to persistent symptoms in the shoulder. However, his cervical spine condition had become more of a factor in his total disability by that date. The cervical spine condition subsequently became increasingly more significant regarding his inability to work while his right shoulder condition continued to heal and become less of a factor.
20. Dr. Kobs last treated plaintiff for his shoulder on 18 November 1997. Plaintiff had not reached maximum medical improvement as of that date and was supposed to return to Dr. Kobs in two to three months when Dr. Kobs anticipated that he would reach maximum medical improvement. In view of the health problems plaintiff developed during the next several months, there was certainly reason for him not to return to Dr. Kobs at that time. However, he did not go back to see the doctor at any time before the date of hearing. The medical records from his other treating physicians revealed minimal problems with the right shoulder on the few occasions when that shoulder was mentioned. In fact, his left shoulder became a problem by late in the summer of 1998, and that condition was also unrelated to his May 1997 injury at work.
21. Plaintiff reached maximum medical improvement with respect to this injury by accident and his right shoulder condition by 18 February 1998. He has proven disability through that date in that limitations from the shoulder problem prevented him from performing the heavy work duties of his job as a mechanic for defendant-employer. However, the medical evidence did not establish an ongoing disability related to his shoulder condition after that date. Rather, he was unable to work after 18 February 1998 due to his cervical spine condition and meningitis, which conditions were totally incapacitating. However, those conditions were not a proximate result of his injury at work but developed subsequently to and independently of the injury. In view of the lack of medical evidence establishing ongoing disability due to the right shoulder problem after he reached maximum medical improvement on 18 February 1998, plaintiff did not prove that he remained unable to earn wages in the same amount as his pre-injury earnings due to the injury by accident giving rise to this claim. Since plaintiff had not returned to Dr. Kobs for a final evaluation, he had not been rated for permanent partial impairment. Consequently, no finding is made regarding that issue.
22. Defendants raised a notice issue for the first time in the contentions submitted in this case. The issue was not raised in the Form 33R nor was it listed as an issue in the Pre-Trial Agreement. Consequently, it was not raised on a timely basis and no findings are made regarding the issue.
23. On 18 January 2000, the Summit County Support Enforcement Agency of Akron, Ohio, filed a notice that plaintiff was under court order to pay $275.00 per month in child support to that agency. This notice was forwarded to the North Carolina Industrial Commission and is made part of the record of evidence.
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Based upon the foregoing findings of fact, the Full Commission concludes as follows:
CONCLUSIONS OF LAW
1. On 22 May 1997 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer. G.S. 97-2 (6).
2. Plaintiff had the burden of proving the existence and degree of his disability for all periods up through the date of hearing Hilliard v. Apex Cabinet Company, 305 N.C. 593 (1982). As the result of his injury by accident on 22 May 1997, plaintiff is entitled to temporary total disability compensation at the rate of $512.00 per week for thirty-eight and 1/7th weeks. G.S. 97-29. Plaintiffs entitlement to this compensation is subject to his legal obligation to pay child support in the amount of $275.00 per month to the Summit County Support Enforcement Agency of Akron, Ohio.
3. Plaintiff is entitled to have defendants provide all medical compensation arising from this injury by accident. G.S. 97-2(19); G.S. 97-25; G.S. 97-25.1.
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Based upon the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:
AWARD
1. Defendants shall pay compensation to plaintiff at the rate of $512.00 per week for thirty-eight and 1/7th weeks for his temporary total disability. This compensation has accrued and shall be paid in a lump sum subject to the attorneys fee hereinafter approved. This compensation is also subject to plaintiffs legal obligation to pay child support in the amount of $275.00 per month to the Summit County Support Enforcement Agency of Akron, Ohio.
2. Defendants shall deduct from the amount of accrued compensation due plaintiff the appropriate amounts which shall then be forwarded to the Summit County Support Enforcement Agency of Akron, Ohio at P.O. Box. 3672, Akron, Ohio 44309-3672.
3. Defendants shall pay all medical expenses incurred by plaintiff as a result of this injury by accident.
4. An attorneys fee in the amount of twenty-five percent of the compensation awarded herein, prior to the deduction of amounts related to plaintiffs support obligations in Ohio, is hereby approved for plaintiffs counsel, which fee shall be deducted from the aforesaid award and paid directly to plaintiffs counsel.
5. Defendants shall pay the costs.
IT IS FURTHERMORE ORDERED:
Defendants shall provide a final evaluation of plaintiff by Dr. Kobs for a permanent partial disability rating.
S/_______________ CHRISTOPHER SCOTT COMMISSIONER
CONCURRING:
S/_______________ DIANNE C. SELLERS COMMISSIONER
DISSENTING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
THOMAS J. BOLCH, COMMISSIONER, DISSENTING.
My quarrel with the Opinion and Award of the majority is that it does not go far enough. Plaintiff proved that his cervical problems and chemical meningitis also resulted from his compensable injury. The combination of all of the problems resulting from the injury has left him unable to be gainfully employed without retraining. He is entitled to continuing disability pay until he is retrained to re-enter the work force. Prior to the accident he was able and did work full time. After the accident he was unable to work without retraining. I would modify and affirm rather than merely affirming.
Five days after the accidental injury plaintiff reported to Dr. Moore excessive pain in his right shoulder but denied any numbness or tingling — just pain radiating down along the lateral border of the biceps. On follow-up on June 19, 1997, plaintiff reported considerable pain in his right shoulder as well as in the medial aspect of his right arm; tenderness along the bicipital groove with range of motion and tenderness all along the right medial eipcondylar area. By June 26 he reported pain radiating along the posterior aspect of his right shoulder as well as radiating down to his biceps area without numbness or weakness. On June 30 an ultrasound of the right shoulder was obtained for a reported history of painful shoulders bilaterally, right worse than left and to evaluate for rotator cuff tear. An MRI was obtained to rule out rotator cuff tear. The MRI showed some degree of impingement but no evidence of rotator cuff tear. A small amount of fluid suggested possible bursitis.
On September 24, 1997, Dr. Kobs did outpatient surgery on plaintiffs right shoulder. At deposition following the surgery Dr. Kobs testified that in addition to impingement of the shoulder cup, plaintiff had a superior labral tear from anterior to posterior on the inside of the ball and cup joint which surrounds the entire region of the shoulder, which did not show up on the MRI. He also testified that no specific physical exam could test for that condition.
In October 1997 x-rays of the cervical spine were obtained which reflected significant degeneration at C5-6, moderate at C6-7 and moderate at C4-5. Dr. Kobs evaluated for cervical traction and home traction and cervical spine stretching exercises. Dr. Kobs referred plaintiff to Dr. Albright.
At his first visit with Dr. Albright plaintiff reported that he had been having pain from the neck down the right arm into the dorsum of the hand and thumb ever since he performed a lot of heavy work in May. The history taken by Dr. Albright showed no problems before May and that all symptoms had been present since May. The neck problems led to an anterior cervical diskectomy with fusion and iliac crest bone graft on December 10, 1997. In follow-up on February 24, 1998, Dr. Albright found persistent right cervical radiculopathy, depression, anxiety and work issues, as plaintiff had not worked in many months. Dr. Albright strongly recommended a psychologist or psychiatrist to help with plaintiff’s emotional troubles since the antidepressant medication was not sufficient.
The deputy commissioner and the majority erred in finding and concluding that the plaintiff’s cervical spine condition did not result from the injury by accident of May 22, 1997. The symptoms of a cervical injury and radicular symptoms were present at the initial office visit to Dr. Moore following the accident and persisted even after the cervical surgery. Even though there may have been degenerative changes in the neck prior to the accident, such problems were not apparent and were not disabling. The accident caused substantial aggravation to a prior non-disabling condition, made it disabling and is compensable.
Cervical radiculopathy involves the first eight nerves of the spinal column. These nerves travel through the cervical region down the shoulder through the elbow to the hand. Damage to one side of the body can cause pain to travel through the nerves to the other side, and pain beginning in the neck may travel down both arms.
The cervical injury was result of the injury sustained during the accident as evidenced by the progression in the intensity of the pain and the increase in radiation of symptoms. This is well documented by the medical records.
Plaintiff emphasized to Dr. Moore during his initial visit on May 27, 1997, following the injury by accident, that he had severe pain in his right shoulder as well as pain radiating along the lateral border of his biceps. Consequently, Dr. Moore, who is not a specialist but rather a family physician, focused only on plaintiff’s right shoulder and diagnosed the most common of shoulder injuries, a rotator cuff tear. Dr. Moore referred plaintiff to Dr. Krakauer. Dr. Krakauer treated and then referred plaintiff to Dr. Kobs, a shoulder specialist. Dr. Kobs performed shoulder surgery and then referred plaintiff to Dr. Albright, who found the neck problems that had been bothering plaintiff ever since the accident but had not been found by the other physicians. The cervical injury was there all along, as evidenced by the medical records, but went undiagnosed and untreated until Dr. Albright.
Plaintiffs chemical meningitis was also a natural consequence of the injury by accident. The meningitis resulted from the CT Myelogram ordered in treatment of the injuries sustained in the work-related accident. After the first surgery (the decompression of the right shoulder) when plaintiff continued to complain of symptoms in the right upper extremity, Dr. Albright ordered a CT Myelogram to determine whether plants problems were coming from his shoulder or from the cervical area. The deputy commissioner correctly found as a fact that the meningitis resulted from the myelogram. However, the deputy erred in failing to find that this was part of the chain of events stemming from plaintiff’s work-related accident.
The Deputy Commissioner and the majority only awarded compensation for the times plaintiff was out of work due to the shoulder injury. They should also have awarded compensation for the times plaintiff was out of work because of his neck problems and the chemical meningitis.
This 9th day of August 2000.
S/_____________ THOMAS J. BOLCH COMMISSIONER