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Bell v. Goodyear Tire and Rubber Co.

Court of Appeals of North Carolina

March 21, 2017

CELIA A. BELL, Employee, Plaintiff,

          Heard in the Court of Appeals 26 April 2016.

         Appeal 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

          Law 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 cross-appellees.

          BRYANT, Judge

         Where 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 plaintiff's request.

         On 12 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." (Emphasis added).

         On 9 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."

         Following 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.

         On 14 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.

         On 21 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.

         On 19 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."

         Back on 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.

         Plaintiff returned to work on 3 October and continued through 23 October 2013, when she again returned to Dr. Carroll with complaints of shoulder pain.

         Plaintiff 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).

         On 14 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."

         The 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").

         On 3 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 ...

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