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Stippich v. Reese's Transit, Inc.

Court of Appeals of North Carolina

July 17, 2018

WARREN STIPPICH, Employee, Plaintiff,
REESE'S TRANSIT, INC., Employer, RIVERPORT INSURANCE COMPANY, Carrier (BERKLEY ASSIGNED RISK SERVICES, Third-Party Administrator), and RONALD EVANS, Individually, Defendants.

          Heard in the Court of Appeals 4 April 2018.

          Appeal by defendant from opinion and award entered 24 May 2017 by the North Carolina Industrial Commission I.C. Nos. 14-780510, 15-003172, and PH-4327.

          O'Malley Tunstall, PLLC, by Joseph P. Tunstall, III, for plaintiff-appellee.

          Jordan Law Offices, P.A., by James F. Jordan and Sarah C. Blount, for defendant-appellees Reese's Transit, Inc. and Ronald Evans.

          Brewer Defense Group, by Joy H. Brewer and Kenneth E. Menzel, for defendant-appellant Riverport Insurance Company.

          ELMORE, JUDGE.

         Defendant Riverport Insurance Company ("Riverport") appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission"), which concluded that Riverport is responsible for payment of all benefits due employee Warren Stippich ("plaintiff") for the injuries he sustained in a 6 October 2014 work-related automobile accident. On appeal, Riverport contends the Commission erred in finding and concluding (I) that plaintiff's current neck and lower back conditions are related to the 2014 accident and (II) that plaintiff established ongoing disability as a result of the 2014 accident. In the alternative, Riverport argues (III) that liability for plaintiff's medical treatment should be split equally between Riverport and plaintiff's employer, defendant-appellee Reese's Transit, Inc. ("Reese's"). For the reasons stated herein, we affirm in part and reverse in part.


         On 6 October 2014, plaintiff was injured in an automobile accident arising out of his employment with Reese's, which was insured by Riverport. On 15 January 2015, plaintiff was involved in a second automobile accident arising out of his employment with Reese's. However, at the time of the 2015 accident, Reese's had allowed its workers' compensation insurance coverage to lapse. Riverport thus denied a claim for plaintiff's 2015 accident on the grounds that Reese's lacked insurance coverage on that date, and it denied a claim for plaintiff's 2014 accident on the grounds that plaintiff's injuries were related only to the 2015 accident.

         Plaintiff filed two Form 33 Requests for Hearing based on Riverport's denial of the two claims. Both claims were heard before Deputy Commissioner Adrian Phillips ("DC Phillips") on 17 November 2015, and evidence presented at the hearing tended to show the following.

         Plaintiff was fifty-nine years old at the time of the 2014 accident and had various pre-existing conditions involving his shoulders, knees, left upper extremity, and back. Plaintiff testified to having a low level of chronic back pain since as early as 1989, but he had not received any treatment for back pain in the six months preceding the 2014 accident, and he had no neck pain prior to October 2014. In August 2014, plaintiff began working as a driver for Reese's, where his employment consisted of transporting children to and from school.

         On 6 October 2014, plaintiff was involved in a work-related accident when his vehicle was "T-boned" by another vehicle. Property damage was estimated at $10, 000.00 to $12, 000.00, and plaintiff's vehicle had to be towed from the scene. Plaintiff was treated at Johnston Medical Center the same day and reported pain in his neck, shoulders, right knee, and right hip.

         On 1 November 2014, plaintiff returned to Johnston Medical Center complaining of pain in his neck, shoulders, lower back, and lower right extremity. Plaintiff reported that the pain had become more severe since the day of the accident, so much so that plaintiff could no longer work through the pain or sleep at night. No diagnoses were made at that time as to plaintiff's lower back, but he was diagnosed with neck pain and right knee pain. The very next day, plaintiff presented at the WakeMed Emergency Room and reported pain in his neck, shoulders, and lower back. Upon examination, plaintiff was diagnosed with back pain, right foot pain, and gout.

         Plaintiff did not receive any further medical treatment from on or about 3 November 2014 through 7 January 2015. During that time, plaintiff drove for Reese's on a limited basis due to his debilitating pain levels as well as the children's winter break from school.

         On 8 January 2015, plaintiff presented at NextCare Urgent Care and reported having persistent neck pain since the 2014 accident. Plaintiff was diagnosed with cervicalgia and back pain, referred to an orthopaedist, and restricted from work for three days. Upon returning to work on 11 January 2015, plaintiff notified Reese's that he did not feel he could work through his pain any longer and thought he may become a danger to himself or the children if he continued to drive in his condition. Plaintiff agreed to temporarily continue his employment with Reese's until the company could locate a replacement driver.

         On 15 January 2015-four days after his return to work and notice of intent to cease driving-plaintiff was involved in a second work-related accident. Plaintiff was sitting in his parked Chevrolet Suburban when a Lexus sedan "slid on ice and side-swiped the driver's side rear corner of plaintiffs bumper." The accident was low-impact in nature and resulted in minimal damage to the two vehicles, including a dent in the Suburban's rear bumper, scratched paint, and a broken tail light, all of which cost approximately $1, 500.00 to repair. Plaintiff did not seek treatment for any injuries on the day of the second accident, which he described as a "fender-bender."

         On 16 January 2015, plaintiff presented to Paul Becton, PA-C, with Raleigh Orthopaedic Clinic ("ROC") pursuant to a previously-scheduled appointment to address his ongoing pain from the 2014 accident. At that appointment, Mr. Becton diagnosed plaintiff with neck and back pain and prescribed various medications; he also restricted plaintiff from work for three weeks, to be followed by a three-week period of "work as tolerated." However, plaintiff did not return to work.

         On 16 February 2015, plaintiff presented to Dr. Mark R. Mikles, an orthopaedic surgeon with ROC, who diagnosed plaintiff with cervical and lumbar spondylosis as well as acute-on-chronic neck and lower back pain. As to further treatment options, Dr. Mikles recommended plaintiff undergo a course of conservative treatment such as medication and physical therapy. A medical note from the February 2015 appointment indicates that Dr. Mikles restricted plaintiff from work "at this point" and instructed plaintiff to follow up with Dr. Mikles after he received the recommended conservative treatment. However, plaintiff never received that treatment, and he did not follow up with Dr. Mikles for approximately ten months. While Reese's continued paying plaintiff's salary from mid-January 2015 through May 2015, plaintiff did not return to work nor seek other employment at any time after the 2015 accident.

         In the meantime, plaintiff presented on 28 April 2015 to Dr. David Herzig, a neurosurgeon, and on 21 September 2015 to Dr. Hsiupei Chen, a pain management specialist. According to Dr. Herzig, plaintiff "basically declined" his offer for conservative treatment-which would have consisted of physical therapy, pain management, and medications-and seemed "infatuated" with having surgery. Dr. Chen likewise testified that plaintiff did not follow through with her recommendations for treatment, which would have included a lumbar discogram of his ...

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