in the Court of Appeals 4 April 2018.
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
Law Offices, P.A., by James F. Jordan and Sarah C. Blount,
for defendant-appellees Reese's Transit, Inc. and Ronald
Defense Group, by Joy H. Brewer and Kenneth E. Menzel, for
defendant-appellant Riverport Insurance Company.
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.
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.
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.
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
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.
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
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.
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
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."
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.
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.
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 ...