CELIA A. BELL, Employee, Plaintiff,
GOODYEAR TIRE AND RUBBER COMPANY, Employer, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants.
in the Court of Appeals 26 April 2016.
by defendants and cross-appeal by plaintiff from opinion and
award entered 3 September 2015 by the North Carolina
Industrial Commission I.C. No. 890382
Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for
plaintiff-appellee and cross-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J.
Ledwith and M. Duane Jones, for defendant-appellants and
defendants failed to rebut the presumption that
plaintiff's 2013 shoulder injury was causally related to
her compensable 2007 shoulder injury, we affirm the
Industrial Commission's conclusion and award of
disability compensation. Where defendants failed to reinstate
plaintiff's temporary total benefits following
defendants' admission of plaintiff's right to
compensation and notice of her unsuccessful trial return to
work and where defendants further failed to file with the
Industrial Commission a request to terminate plaintiff's
disability compensation, defendants are subject to a ten
percent penalty for payments due to plaintiff following her
unsuccessful trial return to work. Where the Commission acted
within its discretion by denying plaintiff an award of
attorney fees and costs, we affirm the denial of
May 2007, plaintiff Celia A. Bell was employed by
defendant-employer Goodyear Tire and Rubber Company as a tire
builder. When pulling and twisting a tire carcass, she felt a
"pop" in her right shoulder. Plaintiff was examined
by Dr. Christopher Barnes, who "performed an
arthroscopic subacromial decompression and arthroscopic
superior labrum anterior and posterior (SLAP) lesion
repair" to her right shoulder. Plaintiff filed a Form
18, Notice of Accident to Employer and Claim of Employee
regarding the injury to her right shoulder. Defendant entered
a Form 26A, Employer's Admission of Employee's Right
to Permanent Disability which was approved by the Commission
on 21 December 2008. After defendant filed three Form 60s,
Employer's Admission of Employee's Right to
Compensation, altering the compensation amount and the body
part injured, Deputy Commissioner Chrystal Redding Stanback
filed an Opinion and Award in which she concluded that
plaintiff sustained a "compensable injury to her
right shoulder pursuant to N.C. Gen. Stat. §
97-2(6), and concluded Plaintiff was entitled to payment of
future necessary medical compensation for her compensable
injury pursuant to N.C. Gen. Stat. § 97-25.1."
January 2010, plaintiff again injured her right shoulder at
work. The parties entered into a Consent Order approved by
the Industrial Commission, wherein "the parties agree[d]
that the . . . right shoulder exacerbation injury [was] a
continuance of the admittedly compensable right shoulder
injury sustained on May 12, 2007."
the 2010 incident, plaintiff was examined by Dr. Robert
Carroll, a physician board certified in orthopedics,
specializing in shoulder treatment.
Dr. Carroll . . . probed the biceps tendon and noted a suture
anchor which had grasped tissue from the middle glenohumeral
ligament. Dr. Carroll then debrided the scar tissue at the
suture site, released the glenohumeral ligament and removed
the suture material. Dr. Carroll testified that
Plaintiff's symptoms were likely coming from the
acromioclavicular joint and the rotator cuff but it was also
possible her pain was due to the biceps tendon.
March 2012, Dr. Carroll noted that plaintiff had achieved
maximum medical improvement (MMI) and assigned her permanent
physical restrictions to avoid carrying over 45 pounds,
lifting more than 25 pounds from waist to shoulder, and over
40 pounds from waist to floor. However, when defendant could
not provide plaintiff a job within those physical
restrictions, plaintiff did not return to work.
December 2012, plaintiff reported to Dr. Carroll after she
felt pain in her right shoulder while raking her yard.
"Dr. Carroll assessed right shoulder pain and possible
proximal biceps tendinitis." He prescribed a steroid
taper and pain medication.
August 2013, plaintiff returned to work in a position that
defendant described as within her permanent physical
restrictions. On 6 September, plaintiff was performing heavy
lifting when, again, she felt a "pop" in her right
shoulder. Plaintiff sought treatment at a clinic later that
day. On 9 September, plaintiff was seen by Dr. Carroll.
"Dr. Carroll found limited and uncomfortable internal
rotation and relative weakness of the rotator cuff."
Plaintiff was assigned restrictions of no lifting or carrying
over 5 pounds and no pulling or pushing over 10 pounds. But
because defendants could not accommodate these restrictions,
plaintiff did not return to work until 3 October 2013, when
Dr. Carroll assigned new physical restrictions: "no
lifting or carrying over 20 pounds, no pulling or pushing
over 30 pounds, no work over shoulder height, and the ability
to take 10-minute breaks every two hours."
12 September 2013, defendant filed a Form 28T, Notice of
Termination of Compensation by Reason of Trial Return to
Work, which indicated that payments of temporary total
disability benefits to plaintiff were terminated on 18 August
2013 due to plaintiff's trial return to work on 19 August
2013. On 16 September 2013, defendant filed a Form 62, Notice
of Reinstatement or Modification of Compensation. However,
defendant "pulled and destroyed" the form and
failed to reinstate plaintiff's disability compensation.
returned to work on 3 October and continued through 23
October 2013, when she again returned to Dr. Carroll with
complaints of shoulder pain.
was diagnosed with "proximal biceps tendinitis" in
her right shoulder. Given new work restrictions, which
defendant was unable to accommodate, plaintiff did not return
to work after 23 October 2013 and remained out of work
through 27 May 2015 (the date this matter was heard before
the North Carolina Industrial Commission).
October 2013, plaintiff filed a motion with the Industrial
Commission to request reinstatement of temporary total
disability compensation. Defendants challenged whether
"[p]laintiff's current complaints resulting in work
restrictions [were] causally related to the accepted May 12,
2007 injury or to the documented lifting incident without
accident of September 6, 2012."
matter came before a deputy commissioner who concluded that
"[t]he medical opinion testimony in this case [was]
insufficient to establish that [p]laintiff's biceps
tendon is causally related to Plaintiff's original right
shoulder injury in 2007 or subsequent re-injury in 2010[,
]" and denied plaintiff's claim for additional
temporary total disability compensation benefits stemming
from the 6 September 2013 incident. Plaintiff appealed to the
Full Commission ("the Commission").
September 2015, the Commission filed an Opinion and Award
reversing the opinion and award of the deputy commissioner.
In its findings of fact, the Commission noted testimony from
three physicians (Drs. Kevin Speer, Christopher Barnes, and
Carroll) that was equivocal as to whether plaintiff's 6
September 2013 injury to her biceps tendon was causally
related to her admittedly compensable 12 May 2007 right
shoulder injury. However, the Commission noted that due to
the Parsons presumption, a rebuttable presumption
that additional medical treatment is related to an initial
compensable injury (as discussed in Parsons v.
Pantry, 126 N.C.App. 540, 485 S.E.2d 867 (1997)),
defendants had the burden of proof to show that the September
2013 injury and treatment was not directly related to the
2007 compensable injury. The Commission concluded defendants
failed to rebut the presumption. The Commission thus
determined that plaintiff's attempted trial return to
work was unsuccessful due to her 12 May 2007 injury.
Defendants Goodyear Tire and Rubber Company and ...