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Neal v. Carolina Management

July 21, 1998


The opinion of the court was delivered by: Walker, Judge.

Appeal by plaintiff from an opinion and award entered 2 December 1996 by the North Carolina Industrial Commission. Heard in the Court of Appeals 3 December 1997.

The evidence before the Full Commission (the Commission) showed that plaintiff was a fifty-seven-year-old female whose employment history consisted mainly of assembly line labor and work as a waitress. She began working for defendant as a waitress in 1986. Prior to her beginning work for defendant, plaintiff suffered from a venous stasis ulcer in her left leg which resulted from a blood clot. This condition initially required surgery in 1976, but plaintiff continued working at various positions after that time.

On 30 April 1991, while working in defendant's employ, plaintiff sustained a compensable injury to her lower back while lifting a waffle iron. Plaintiff reported this injury to her employer and thereafter received treatment for this injury on 1 May 1991 at Carolina Urgent Care Center. At that time, she was diagnosed with a back strain and was treated with anti-inflammatory pain medications and physical therapy. After three weeks of treatment at Carolina Urgent Care Center, plaintiff was referred to Dr. Robert Appert, an orthopaedist. Dr. Appert examined plaintiff on 24 May 1991 and released her to return to work on the following day.

Plaintiff, however, continued to experience lower back pain and on 19 June 1991, a Form 21 agreement was approved by the Commission granting plaintiff temporary total disability benefits. Three months later, on 26 August 1991, plaintiff re-injured her back while lifting a heavy tray and she returned to Dr. Appert for treatment. After examining plaintiff, Dr. Appert noted that she had probably aggravated her prior back injury and he released plaintiff back to work on 28 August 1991 with no permanent disability. Thereafter, on 27 September 1991, plaintiff was examined by Dr. J. Thomas Bloem, an orthopaedist, who prescribed a different pain medication and additional physical therapy for plaintiff's back.

For approximately the next fifteen months, plaintiff was examined and treated for her chronic lower back and leg pain by Dr. David E. Tomaszek (a neurosurgeon), Dr. Garry S. McKain (a chiropractor), Dr. Rosario Guarino (a neurologist), Dr. Lucas J. Martinez (a neurosurgeon), Dr. William R. Deans (a neurologist) and Dr. Lee A. Whitehurst (an orthopaedic surgeon).

During the period between 12 April 1993 and 20 April 1993, plaintiff attempted to return to work for defendant as a hostess/cashier. This job required plaintiff to be on her feet for long periods of time and plaintiff quit her position after she experienced increased back and leg pain. On 28 April 1993, plaintiff began seeing Dr. T. Craig Derian, an orthopaedic surgeon, who initially diagnosed plaintiff as suffering from degenerative disc disease. In order to accurately diagnose plaintiff's condition, Dr. Derian ordered another MRI procedure, which was performed on 25 August 1993. The results of the MRI showed a disc degeneration and a herniated disc, which Dr. Derian determined could be corrected by surgery. However, it was his opinion that if plaintiff did not pursue surgical intervention to correct her problem, then she had reached maximum medical improvement of her back on 13 September 1993. Furthermore, in addressing plaintiff's potential for future employment, Dr. Derian stated that "[plaintiff] continues to be permanently and totally disabled from gainful employment. It is unlikely she will be able to work at even a sedentary type job requiring sitting due to the fact that this greatly increases her pain."

Thereafter, plaintiff's left leg venous stasis ulcer reopened and she sought treatment from Dr. George W. Paschal, III, a general surgeon. After conservative treatments failed to remedy plaintiff's condition, Dr. Paschal referred her to Dr. Glenn M. Davis, a plastic surgeon, who performed a skin graft on plaintiff's left leg on 23 November 1993. Both Dr. Paschal and Dr. Davis agreed that following this procedure, plaintiff could return to sedentary work under controlled circumstances that allowed plaintiff to elevate her leg on occasion.

In April of 1994, defendants engaged Page Rehabilitation Services, Inc. (Page Rehabilitation) to resume vocational rehabilitation services for plaintiff. George Page (Page), the owner of Page Rehabilitation and a rehabilitation counselor, conducted an interview of plaintiff and requested information from her doctors before preparing a detailed report on 28 April 1994. In this report, he noted plaintiff's physical limitations and implemented a survey of possible job opportunities in plaintiff's home town. In a subsequent report dated 14 June 1994, Page noted that he was "concerned that Dr. Derian has stated that [plaintiff] is unemployable. It is my opinion that Dr. Derian should probably give specific limitations, not try to determine the employability of an individual."

Thereafter, in August of 1994, Page located a job prospect for plaintiff with the Cystic Fibrosis Foundation in Wilson, North Carolina. The job required plaintiff to work four hours per day, four days per week, and entailed making phone calls to local residents seeking their help in fund raising activities for the Cystic Fibrosis Foundation. In addition, the job was sedentary and would allow for plaintiff to change positions as needed, as well as elevating her leg as needed. When plaintiff contacted the manager of the Cystic Fibrosis Foundation about this job opportunity, she stated she was not interested in a telemarketing position and then began detailing her past medical history. Plaintiff did not receive an offer for this job and all vocational services were suspended soon thereafter.

On 3 October 1994, plaintiff filed a request that her claim be assigned to hearing in order to determine whether she was entitled to permanent total disability benefits. The deputy commissioner found that plaintiff had suffered an injury by accident on 30 April 1991, which materially aggravated her pre-existing left leg venous stasis ulcer, and had reached maximum medical improvement of her back on 13 September 1993. From the deputy commissioner's opinion and award of temporary total disability benefits, both parties appealed to the Commission. Following a hearing, the Commission adopted the findings and Conclusions of the deputy commissioner that plaintiff was temporarily totally disabled and further ordered plaintiff to continue receiving vocational rehabilitation therapy.

On appeal, plaintiff contends the Commission erred by: (1) awarding plaintiff temporary total disability benefits after finding that she had reached maximum medical improvement; (2) failing to find plaintiff permanently and totally disabled; and, (3) requiring plaintiff to continue cooperating with vocational rehabilitation efforts. Plaintiff argues that since temporary total disability benefits are only available during the healing period, once she reached maximum medical improvement, the Commission should have found her to be permanently and totally disabled. On the other hand, defendant contends that since plaintiff's claim was heard after she had received only limited vocational rehabilitation therapy, defendant should be afforded an opportunity to rebut the presumption of continuing disability by providing further vocational rehabilitation for the plaintiff in an attempt to find suitable employment for her.

When considering an appeal from the Commission, its findings are binding if there is any competent evidence to support them, regardless of whether there is evidence which would support a contrary finding. Lowe v. BE&K Construction Co., 121 N.C. App. 570, 573, 468 S.E.2d 396, 397 (1996). Therefore, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission's findings, and (2) whether those findings justify its Conclusions of law. Id.

Plaintiff's first two assignments of error are intertwined; therefore, we will address them together. In order to recover for a work-related injury, a plaintiff has the initial burden of proving disability. Harrington v. Adams-Robinson Enterprises, ___ N.C. App. _____, _____, 495 S.E.2d 377, 379 (filed 3 February 1998). However, once there is a Form 21 agreement, the employee is entitled to a presumption of continuing disability. Id.

Thereafter, temporary total disability benefits under the N.C. Gen. Stat. § 97-31 schedule are available to an injured employee during the healing period. Carpenter v. Industrial Piping Co., 73 N.C. App. 309, 311, 326 S.E.2d 328, 329 (1985). The healing period has been described as the period of time during which the claimant is "unable to work because of [her] injury, is submitting to treatment . . . or is convalescing" and ends when, "after a course of treatment and observation, the injury is discovered to be permanent and that fact is duly established." Id. at 311, 326 S.E.2d at 329-330 ...

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