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Bishop v. Ingles Mkts., Inc.

Court of Appeals of North Carolina

April 15, 2014

DAVITA BISHOP, Employee, Plaintiff,

Heard in the Court of Appeals March 17, 2014.

Page 116

North Carolina Industrial Commission. I.C. No. 884899.

Law Office of Gary A. Dodd, by Gary A. Dodd, for plaintiff-appellee.

Northup, McConnell & Sizemore PLLC, by Steven W. Sizemore, for defendant-appellant.

MARTIN, Chief Judge. Judges McGEE and CALABRIA concur.


Page 117

Appeal by defendant-employer from Opinion and Award entered 12 July 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 March 2014.

MARTIN, Chief Judge.

Defendant-employer Ingles Markets, Inc. appeals from an Opinion and Award of the Full Commission of the North Carolina Industrial Commission awarding workers' compensation benefits, attorney's fees, and costs to plaintiff-employee Davita Bishop. For the reasons stated herein, we affirm.

On 30 January 2008, plaintiff slipped and fell on a recently waxed floor while working in the Ingles deli. After reporting the fall to the store manager, plaintiff sought medical treatment at OneBeacon Healthcare. She explained that she fell and hit her head, and that she was experiencing dizziness as well as pain to her head, lower back, and hip. Plaintiff was diagnosed as having a lower back sprain and a mild concussion. She was also given a note excusing her from work until 5 February 2008.

However, plaintiff's condition did not improve, and she went to Sisters of Mercy Urgent Care on 9 February 2008, complaining of pain in her left hip and lower back. Plaintiff was given a note excusing her from work until 13 February 2008. Plaintiff returned to Sisters of Mercy Urgent Care three times in February, and results of an MRI scan revealed " a slight anterolisthesis at L4-5, degenerative disc disease, spondylosis, facet arthrosis and annular bulging at L4-5 and L5-S1."

After the MRI, it was recommended that plaintiff begin physical therapy and that she return to work with the following restrictions: working for no more than four hours a day; no lifting of anything over ten pounds; and no standing, walking, or sitting for more than twenty minutes at a time. On 11 March 2008, plaintiff returned to work pursuant to these restrictions.

Plaintiff was referred to Dr. Richard Broadhurst and saw him on 29 May 2008 for an evaluation and treatment. On 14 July 2008, plaintiff saw Dr. Broadhurst again because she felt she was being asked to perform tasks at work that she was not physically capable of performing. In response, Dr. Broadhurst issued several work restrictions including, " lifting [no] more than ten pounds, no ladder climbing, no repetitive bending or twisting or forward reaching and to stand and walk to control the pain." On 28 August 2008, Dr. Broadhurst again issued work restrictions for plaintiff. Also in August 2008, plaintiff began taking classes, on days she did not have to work, in a Masters of Divinity program at Gardner-Webb University.

On 26 September 2008, plaintiff returned to OneBeacon and complained of " blackout spells," stating that she had fainted at work the day before. Plaintiff underwent an electroencephalogram (" EEG" ) which suggested that plaintiff might have partial epilepsy. As a result, plaintiff was referred to Dr. Duff Rardin, who diagnosed plaintiff as possibly having epilepsy. On 5 November 2008, a coworker witnessed plaintiff have a blackout spell. Following this incident, plaintiff underwent an MRI that showed an abnormal signal.

While plaintiff's seizure condition was ongoing, Dr. Broadhurst, on 15 December 2008, determined that plaintiff had reached maximum medical improvement and assigned plaintiff permanent work restrictions. On 30 December 2008, however, Dr. Broadhurst

Page 118

asked Dr. Rardin if plaintiff's 30 January 2008 fall caused plaintiff's seizures. Dr. Rardin responded that he did not think that the fall caused plaintiff's seizures.

Plaintiff continued to suffer from seizures, so Dr. Rardin completed the medical section of plaintiff's Family Medical Leave (" FMAL" ) application, noting that plaintiff should not work due to her seizure activity. Dr. Rardin also recommended that plaintiff stop taking classes at Gardner-Webb due to her seizures. Plaintiff stopped working on 15 July 2009 when her FMAL application was approved.

On 29 July 2009, plaintiff was admitted to Mission Hospital for epilepsy monitoring, and the staff was able to observe one of plaintiff's seizures. It was determined that plaintiff's seizures were nonepileptic. Plaintiff, nonetheless, continued to have seizures. Dr. Rardin testified that stressors in a person's life can cause nonepileptic seizures, but he did not state an opinion about whether plaintiff suffered from such stressors. Also, while at Mission Hospital, Dr. C. Britt Peterson, a psychiatrist, saw plaintiff and diagnosed her with " a major depressive disorder or a possible adjustment disorder with depressed mood and possible conversion disorder."

Eventually, Dr. Rardin recommended that plaintiff see Karen Katz a licensed clinical social worker with a master's degree in social work and psychology from Syracuse University. During the first meeting, Ms. Katz took plaintiff's family history and conducted a clinical assessment. Ms. Katz used anxiety and depression screening tools to diagnose plaintiff with an anxiety disorder and chronic depression that Ms. Katz believed began early in ...

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