Miller v. Nucor Bearing Products

I respectfully dissent from the majority decision to reverse the Deputy Commissioner and would vote to affirm her denial since there is insufficient medical evidence to prove by the greater weight that plaintiff suffered an injury to his right eye during the 1 October 1992 explosion and, even assuming arguendo that plaintiff sustained a right eye injury, there is insufficient evidence to prove by the greater weight that it caused plaintiff a permanent impairment to his eye.

Plaintiff has a history of eye surgery in 1982 and 1983 for the removal of bilateral pterygia which usually produces scarring and in November of 1988 was treated for an abrasion of his right cornea. An ophthalmologist, Dr. Clark, operated and treated plaintiff for these conditions. On 6 October 1992, five days after the injury, Dr. Payne, an associate of Dr. Clark, noted scarring which he attributed to the earlier surgery but no foreign matter or new abrasion in plaintiff's eyes. On 11 November 1992, Dr. Clark attributed the scarring in both eyes to the prior surgery and the right corneal raised scar to a prior corneal abrasion in 1988. Dr. Anderson, an ophthalmologist who did not see plaintiff until three months later on 5 March 1993, had no explanation as to why the raised scar on plaintiff's right eye was present and could not attribute it to the explosion unless there was foreign matter in plaintiff's cornea resulting from the explosion. However, there is no evidence of record of any foreign matter being lodged in plaintiff's cornea as a result of the explosion other than plaintiff's testimony. Therefore, plaintiff's credibility is of utmost importance and, in fact, his testimony is contradicted by the medical evidence which is necessary to prove causation and by the testimony of a co-worker.

In addition, Dr. Anderson was of the opinion that an injury causing such a scar would result in immediate need for treatment. All three doctors agreed that such an injury would result in immediate pain, tearing, and redness. In the case at hand, plaintiff did not complain of pain, redness or tearing in his right eye and his right eye was not treated when he was seen at the emergency room directly after his accident. Furthermore, a co-employee who helped plaintiff's immediately after the accident did not notice anything with regard to plaintiff's right eye and plaintiff made no complaints to him with regard to his right eye. Therefore, the majority's reliance on the testimony of plaintiff that he immediately felt something in his right eye and that it itched, holds little weight since plaintiff's testimony is contradicted by the medical evidence, including the emergency room notes, and the testimony of his co-worker, Mr. Brown, which show that plaintiff did not have any foreign matter in his right eye and did not experience right eye problems immediately. Finally, it was not until one month later that plaintiff returned to Dr. Payne and complained of pain, redness, and tearing in his right eye which started a day earlier and was diagnosed as viral conjunctivitis unrelated to trauma. This sequence of events is contrary to the findings and conclusions of the majority.

Furthermore, after plaintiff's 1988 abrasion, his right eye was 20/40. At the time that Dr. Anderson examined him after his injury by accident, plaintiff's vision was 20/50 in his right eye. Due to the fluctuations in plaintiff's right visual acuity following the explosion and during the virus he suffered, and since Dr. Anderson did not know what plaintiff's visual acuity was prior to the explosion, there is insufficient evidence to determine by the greater weight that, even assuming arguendo that plaintiff sustained an injury to his right eye, the amount of permanent impairment to his right eye. In any event the most permanent partial disability to which plaintiff would be entitled is 7.1% [(20/50 = 23.5%) — (20/40 = 16.4%)] that is, 8.52 weeks.

Based on the foregoing, I and would vote to affirm the Deputy Commissioner.

S/ _________________ DIANNE C. SELLERS COMMISSIONER

The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before the deputy commissioner. The appealing party has shown good ground to reconsider the evidence. The Full Commission REVERSES the Opinion and Award of the deputy commissioner and enters the following Opinion and Award.

The Full Commission finds as facts and concludes as matters of law the following, which were agreed upon by the parties at the hearing as

STIPULATIONS

1. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

2. The employer-employee relationship existed between plaintiff and defendant-employer.

3. Wausau was the compensation carrier on the risk.

4. On 1 October 1992 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer.

5. The following documents concerning plaintiff are stipulated into evidence:

a. Industrial Commission Form 22;

b. Eight pages of employment records; and

c. Twenty-six pages of medical records.

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The Full Commission rejects the findings of fact of the deputy commissioner and finds as follows

FINDINGS OF FACT

1. Plaintiff was born in 1944 in Vietnam and is a naturalized U.S. citizen. He began working for defendant-employer in 1982 as an electronic technician. His responsibilities included maintenance of all of the machines in the plant.

2. Plaintiff has a prior history of eye surgery. In 1982 and 1983 Dr. Lee A. Clark, Jr., an ophthalmologist, operated on the cornea of both of plaintiff's eyes to remove bilateral pterygia. Pterygia surgery usually produces scarring, and this surgery left a scar in the upper inner aspect of the cornea of each eye. In November 1988 plaintiff received treatment from Dr. Clark for an abrasion on the right cornea.

3. Plaintiff has no prior history of back problems.

4. On 1 October 1992 plaintiff sustained an admittedly compensable injury by accident arising out of and in the course of his employment with defendant-employer when a furnace he was working on exploded throwing him from the top of the furnace to the concrete floor below, a distance of ten feet. Plaintiff landed on his back and the force of the explosion and resulting fall knocked the right lens completely out of the safety glasses he was wearing. When the furnace exploded dirt and rust in the furnace blew out into the room causing the room to fill with black smoke. Following the injury plaintiff was taken to the hospital emergency room.

5. At the emergency room plaintiff complained of pain in his right hip and pelvis area, back, and neck. Plaintiff also complained that he felt something in his right eye and that it was itching. Plaintiff was treated for right hip contusion and was told to follow up with an eye doctor. Two days after the accident plaintiff's eye became red, teary, painful and infected.

6. On 6 October 1992 plaintiff was seen by Dr. Kevin Payne, an optometrist and associate of Dr. Clark, for complaints of dizziness, headaches, and blurred vision in his right eye that had started two days earlier. Dr. Payne noted scarring on both eyes, right greater than left, which he attributed to the pterygium surgery 10 years earlier. He also noted decreased visual acuity in plaintiff's right eye. At this visit, however, Dr. Payne did not note any type of cut or abrasion in plaintiff's right eye. Dr. Payne referred plaintiff to Dr. Michael Kushner, a neurologist, for further evaluation of plaintiff's head trauma. Dr. Kushner's examination of plaintiff revealed no significant abnormalities.

7. Dr. Payne noted on plaintiff's 23 October 1992 visit that the visual acuity in plaintiff's right eye was decreased due to unknown causes but that his visual field was improving. On 2 November 1992 plaintiff reported that his right eye had been red, painful and tearing for one day. Dr. Payne diagnosed viral conjunctivitis of the right eye. Conjunctivitis is an inflammation of the lining of the inner surface of the eyelid. Prior to this visit, despite plaintiff's continued complaints, Dr. Payne did not offer plaintiff any treatment for his right eye. At this visit, however, Dr. Payne prescribed medicine to treat conjunctivitis. By 6 November 1993 the right eye had not improved. At that time, he referred plaintiff to Dr. Clark.

8. Plaintiff saw Dr. Clark on 11 November 1992. In his examination Dr. Clark noted that plaintiff had corneal lesions typical of a viral keratoconjunctivitis in addition to the previously diagnosed viral conjunctivitis and prescribed medication. Keratoconjunctivitis is an inflammation of the cornea as well as the conjunctiva. By 24 November 1992 the corneal lesions had healed, but plaintiff was complaining of seeing bright lights, black dots, and of delayed vision. Dr. Clark referred plaintiff to Dr. Jeff Taylor, a retinal specialist and associate of Dr. Clark, to examine the back of plaintiff's eye. According to Dr. Clark, Dr. Taylor did not find any abnormality in the back of plaintiff's eye.

9. Dr. Clark and plaintiff had problems understanding one another because of language difficulties. Dr. Clark noted that plaintiff had a difficult time with English and that although plaintiff tried to get his ideas across, it was difficult at times for Dr. Clark to understand plaintiff due to his heavy accent. Throughout the time Dr. Payne and Dr. Clark treated plaintiff, he continued to complain that his right eye hurt, that he could not see well out of it, and that it was not improving. In January 1993 due to plaintiff's continued complaints, Dr. Clark referred plaintiff to Dr. William Banks Anderson, Jr., an ophthalmologist at Duke University Medical Center, for further examination.

10. Plaintiff saw Dr. Anderson on 5 March 1993. At this visit plaintiff told Dr. Anderson of his injury by accident of October 1992 and reported that things looked funny and had tails on them, especially lights at night. Upon examination, plaintiff's best corrected vision was twenty/fifty (20/50) in the right eye with a plus two and a quarter minus two (+ 2.25-2) axis thirty-six (36) lens. Plaintiff's left eye vision was twenty/twenty (20/20). Dr. Anderson observed some haziness of the medial part of the cornea in each eye which he attributed to prior surgery for pterygium.

11. Dr. Anderson also found that plaintiff's right eye contained a raised scar or bump called a hypertrophic corneal scar. This hypertrophic scar was not a result of plaintiff's pterygium surgery because pterygium surgery does not produce hypertrophic scars. Pterygium surgery produces smooth scars. Dr. Anderson also noted that the pterygium scar was further down on the cornea than the hypertrophic scar.

12. Dr. Anderson opined that plaintiff's visual loss was due to the irregularity of the cornea due to the raised scar and that when the cornea is irregular or bumpy, it is typical to see tails around lights and distortions of objects viewed through that eye as described by plaintiff. He felt that plaintiff's hypertrophic scar was the result of either trauma or a chronic inflammation. He did not feel, however, that the viral infections in plaintiff's eye caused the hypertrophic scar.

13. According to Dr. Anderson, hypertrophic corneal scars can be seen following injuries to the cornea that break through the skin that line the cornea and damage the tissue underneath. Initial symptoms would be redness and tearing of the eye. He noted that in plaintiff's case, such an injury could have occurred if foreign material became stuck to the cornea after the explosion. He also noted that it could take between one and three months for this type of scar to appear.

14. Plaintiff has sustained permanent damage in his right eye and present surgery is not likely to improve plaintiff's vision. Dr. Anderson opined, however, that as medical technology progresses, keratorefractive surgery might become an option. Dr. Clark rated plaintiff's right eye impairment at twenty-three and one half percent (23 1/2%) due to the permanent loss of visual efficiency in that eye assuming plaintiff had twenty/twenty (20/20) vision. Although the medical records indicate that plaintiff had twenty/forty (20/40) vision in the right eye in 1988, there was also medical records reporting that plaintiff had twenty/twenty-five (20/25) vision in his right eye on 28 December 1992, approximately three months after the injury.

15. After the emergency room visit on the date of injury, plaintiff did not seek further treatment for his back until March 1994, when he came under the care of Dr. Chapman for complaints of low back, hip and neck pain which he attributed to the injury of 1 October 1992. Plaintiff had not had any injury to his back in the interim and despite daily back pain had not sought treatment because he was preoccupied with his visual problems. Plaintiff showed some improvement under Dr. Chapman's care from March to May 1994. The treatment Dr. Chapman rendered was casually related to plaintiff's 1 October 1992 injury and was reasonably necessary to give relief.

16. Plaintiff has not returned to Dr. Chapman for treatment since May 1994, and at the hearing he did not testify to continuing back problems which he felt required treatment.

17. As a result of the injury by accident on 1 October 1992 plaintiff sustained an injury to his right eye that caused a hypertrophic scar to form on his right cornea. This scar has affected plaintiff's ability to see out of his right eye and has caused permanent damage to that eye.

18. As a result of plaintiff's injury by accident on 1 October 1992 plaintiff has a twenty-three and one half percent (23 1/2%) permanent partial impairment to his right eye.

19. As a result of the injury by accident of 1 October 1992 plaintiff sustained a back sprain.

20. There is no evidence of record to find by its greater weight that plaintiff has any permanent impairment to his back as a result of the back sprain.

21. Plaintiff's work related injuries are compensable.

22. Plaintiff's average weekly wage was $933.88, yielding the maximum compensation rate in 1992 of $426.00.

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Based upon the foregoing stipulations and findings of fact, the Full Commission concludes as follows

CONCLUSIONS OF LAW

1. On 1 October 1992 plaintiff sustained an admittedly compensable injury to his right eye by accident arising out of and in the course of his employment with defendant-employer. N.C. Gen. Stat. § 97-2 (6).

2. On 1 October 1992 plaintiff sustained a compensable injury by accident to his back arising out of and in the course of his employment with defendant-employer. N.C. Gen. Stat. § 97-2 (6).

3. As a result of his admittedly compensable injury by accident plaintiff has sustained a twenty-three and one half percent (23 1/2%) permanent partial impairment to his right eye and is entitled to compensation. N.C. Gen. Stat. §§ 97-31 (16) and (19).

4. Plaintiff is entitled to payment by defendants of all medical expenses incurred or to be incurred as a result of his compensable eye and back injuries, for so long as such medical treatments, examinations and evaluations are reasonably required to effect a cure, provide relief and/or would tend to lessen his disability. N.C. Gen. Stat. § 97-25.

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Based upon the foregoing stipulations, findings of fact, and conclusions of law, the Full Commission enters the following

AWARD

1. Subject to an attorney fee, defendant shall pay to plaintiff in one lump sum, uncommuted, permanent partial disability compensation at the rate of $426.00 per week for 28.2 weeks for the permanent partial impairment to his right eye.

2. Defendant shall pay all medical expenses incurred or to be incurred by plaintiff as a result of his injury by accident when bills for same have been submitted and approved through procedures adopted by the Industrial Commission.

3. An attorney's fee in the amount of twenty-five percent (25%) of the award to plaintiff herein is hereby approved for plaintiff's counsel. Said amount shall be deducted from said award and paid directly to plaintiff's counsel.

4. Defendants shall pay an expert witness fee of $125.00 to Dr. Chapman and $250.00 to Dr. Clark.

5. Defendants shall pay the costs.

S/ _________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/ _________________ COY M. VANCE COMMISSIONER

DISSENTING:

S/ _________________ DIANNE C. SELLERS COMMISSIONER

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