Fields v. Clayton homes/oxford Homes

The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner W. Joey Barnes. The appealing party has shown good ground to reconsider the evidence. The Full Commission reverses the Deputy Commissioner's Opinion and Award and enters the following Opinion and Award.

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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing as:

STIPULATIONS

1. At the time of the alleged injury by accident giving rise hereto, the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act with defendant-employer regularly employing three or more employees, one of whom was plaintiff.

2. CNA Insurance Companies provided workers' compensation coverage for defendant-employer at the time of the alleged injury by accident.

3. The parties stipulated into evidence a Form 22 marked as Stipulated Exhibit 2 for purposes of calculating plaintiff's average weekly wage.

4. A packet of medical records numbered pages 1 through 36 was stipulated into evidence by the parties, marked as Stipulated Exhibit 1.

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The Full Commission rejects the findings of fact found by the Deputy Commissioner and finds as follows:

FINDINGS OF FACT

1. Plaintiff began working with the defendant, Oxford Homes, in September 1993. Prior to this he had worked for another local industry, Alpine Structures, for eight years.

2. The plaintiff was employed as an electrical tester with Oxford Homes which required him to check electrical circuits during the production process. In this position, the plaintiff checked electrical circuits and performed certain wiring in the mobile homes as one of the final stages of manufacturing. After the plaintiff completed testing and installation and lighting was available in the mobile homes, finish crews could complete their work.

3. Before October 18, 1993 the plaintiff was able to perform his job and stay well ahead of the finishing crew. Paul Juday, the plant manager, was not aware of any complaints about the quality or pace of the plaintiff's work prior to the injury date.

4. On October 18, 1993 the plaintiff was working outside of a mobile home on a ladder approximately four feet above the ground. As he worked, the ladder began to slide out from under him. To avoid injuring himself, the plaintiff jumped backwards from the ladder to the ground. In doing so, he landed in a scissors-like position with his weight distributed more on the left leg and jamming the left leg and hip as he fell on his side.

5. Thereafter, the plaintiff experienced a painful sensation in his left hip which worsened over the day. After the fall, the plaintiff reported the incident to a supervisor, Earl Bumpass, on the same day. The plaintiff also reported the incident and his discomfort to his wife upon returning home that night.

6. Plaintiff talked with the front office the following day and on October 20 he was first seen by Dr. Vu, the defendant's company doctor. At that time Dr. Vu observed that the plaintiff had a left hip contusion although x-rays of the hip and leg area were normal. His findings significantly included tenderness over the left sciatic notch and severe pain.

7. On subsequent visits on October 22 and October 26, 1993 plaintiff complained of more pain in his left hip.

8. On October 26, 1993 plaintiff returned to work. Plaintiff worked from October 26, 1993 until November 16, 1993 when he resigned due to intolerable pain and his inability to keep up with production. During the interval, the plaintiff testified that he had difficulty in performing the work and that his pace slowed. Co-worker, Lonnie Anderson, who was with the finish crew, testified that where the plaintiff had worked well ahead of the trim crews before his injury, he could not keep up after his return to work. Anderson also noted that the plaintiff complained of left hip and back pain on occasions after his return to work.

9. Former manager, Paul Juday, reported that the week before the plaintiff's resignation on November 16, the line supervisor had reported that the plaintiff was holding up the line. According to Juday, the plaintiff stated that he could not perform the job unless a second man was assigned to help him and chose to resign because of "too much pressure."

10. After leaving Oxford Homes, the plaintiff sought care through his personal physicians at the Beckford Clinic in early December 1993. Notes from that Clinic document the plaintiff's left hip-leg pain and include the diagnosis of lumbar-sacral sprain. From the Beckford Clinic, plaintiff was evaluated by Dr. Stuart Schwartzburg, surgeon, and the Maria Parham Hospital Rehabilitation Department. The plaintiff's left hip and leg symptoms were related to his back condition. Possible L-5, S-1 disc involvement were noted following functional evaluation testing at Maria Parham.

11. Plaintiff was referred to a neurosurgeon on December 30, 1993. However, because neurosurgical evaluation was not approved by the carrier, this evaluation did not occur. Neither an MRI nor a CAT scan was performed.

12. The plaintiff was seen by Dr. J. Lawrence Frank on June 7, 1994. An MRI confirmed the existence of a herniated disc and Dr. Frank performed a hemilaminectomy on October 14, 1994 resulting in almost complete resolution of hip and leg symptoms.

13. Dr. Frank's testimony was that plaintiff suffered from a herniated disc, and that in his opinion plaintiff's herniated disc resulted from the work injury of October 18, 1993. Also, Dr. Frank testified that plaintiff's symptoms, as reported to various doctors following the accident, were consistent with the ultimate surgical finding of a herniated disc.

14. Dr. Frank further relied upon the medical records from the Beckford Avenue Medical Center and Dr. Stuart Schwartzburg. Dr. Frank was of the opinion that the medical records from Beckford Avenue Medical Center and Dr. Stuart Schwartzburg were consistent with his surgical finding of a herniated disc.

15. The Full Commission finds that based upon the testimony and the evidence in the record, plaintiff does, in fact, suffer from a herniated disc.

16. As the result of his herniated disc which was caused by his employment with defendant-employer, plaintiff has been unable to earn wages in his former position with defendant-employer or in any other position from October 18, 1993 and continuing thereafter through the present.

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Based upon the findings of fact, The Full Commission concludes as follows:

CONCLUSIONS OF LAW

1. On October 18, 1993 plaintiff sustained an injury by accident arising out of and in the course of his employment resulting in a herniated disc. N.C.G.S. § 97-2(6).

2. Plaintiff is entitled to temporary total disability benefits from October 18, 1993 and continuing at a rate of $195.98 per week so long as he remains temporary totally disabled, subject to a change of condition, medical or employment. N.C.G.S. § 97-29.

3. The defendant shall pay all medical expenses incurred or to be incurred by plaintiff as a result of the injury by accident giving rise hereto. N.C.G.S. § 97-25.

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Based on the foregoing findings of fact and conclusions of law, the Full Commission reverses the holding of the Deputy Commissioner and enters the following:

AWARD

1. Plaintiff's claim for workers' compensation benefits for his injury by accident which occurred on October 18, 1993 must, under the law, be and is hereby GRANTED.

2. Plaintiff is entitled to temporary total disability benefits from October 18, 1993 and continuing at a rate of $195.98 per week so long as he remains temporary totally disabled, subject to a change of condition, medical or employment.

3. The defendant shall pay all medical expenses incurred or to be incurred by plaintiff as a result of the injury by accident giving rise hereto.

4. At this time a reasonable attorney fee in the amount of twenty-five percent of the accrued compensation benefits due under the above award is hereby approved for plaintiff's counsel, which shall be deducted from the same and forwarded directly thereto. For the balance of his fee, defendant-employer shall forward every fourth check due directly to plaintiff's counsel.

5. Defendants shall bear all costs.

FOR THE FULL COMMISSION

S/ ________________________ COY M. VANCE COMMISSIONER

CONCURRING:

S/ ________________________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/ ________________________ DIANNE C. SELLERS COMMISSIONER

CMV/cnp/mj 5/17/96

I respectfully dissent from the majority Opinion and Award in this case which reverses the Opinion and Award of the Deputy Commissioner. I would vote to affirm the Deputy Commissioner's denial in this case on the grounds of plaintiff's lack of credibility and a failure to prove causation.

Although the Workers' Compensation Act vests the Full Commission with authority to review a Deputy Commissioner's credibility findings, even the North Carolina Court of Appeals acknowledges "that the hearing officer is the best judge of credibility of witnesses because he is a firsthand observer of witnesses whose testimony he must weigh and accept or reject."Pollard v. Krispy Waffle, 63 N.C. App. 354, 308 S.E.2d 762 (1983). Therefore, I am of the opinion that Commissioners sitting as the Full Commission should exercise great restraint when tempted to replace the evaluation of the deputy, who was actually present to observe the witnesses, with the opinion of the Commissioner, who has reviewed only a cold record and the brief arguments of the party or their counsel.

In the case at hand, plaintiff's statements were inconsistent with those of other witnesses, and most importantly, his own statements were contradictory. Plaintiff was ambiguous and vague regarding the alleged accident and could not explain or describe it in details. In addition, even though plaintiff worked on an assembly line and other workers were in the vicinity, there were no witnesses to the alleged accident thereby making the question of plaintiff's credibility crucial in this case. The inconsistencies and lack of credibility in plaintiff's statements continue beyond the initial alleged accident. After the alleged accident, plaintiff was diagnosed with a contusion and thereafter returned to full work on 26 October 1993. Although plaintiff claims that he continued to suffer pain, no credible witnesses could confirm his complaints. In fact, several witnesses testified that plaintiff continued his normal duties with no complaints or problems. Furthermore, the circumstances surrounding plaintiff's departure from his employ with defendant-employer are less than clear. Although plaintiff claims he left his job with defendant-employer due to pain, he had not sought medical treatment for any complaints and had not notified his co-employees or supervisors of any problems. In fact, plaintiff's Employee Separation Report which plaintiff signed shows his reason for leaving was voluntary and due to "too much pressure". When confronted with this report at the hearing, plaintiff again changed his story claiming he was forced to sign the form and that he needed to leave to take his medication.

Besides giving inconsistent statements regarding the incident and his reasons for leaving defendant-employer, plaintiff also gave contradictory and less than accurate information to Dr. Frank. Plaintiff's reports to Dr. Frank in June of 1994 contradict those he gave to Dr. Vu shortly after the alleged incident in October 1993. Further, plaintiff gave an inaccurate history of his back pain to Dr. Frank and stated that he had been out of work since the alleged accident when he actually had returned to full duty shortly thereafter.

Although plaintiff's claim should be denied on credibility, plaintiff's claim also fails because there is insufficient medical evidence of record to prove causation by the greater weight of the evidence. Dr. Frank testified regarding the causal relation between plaintiff's alleged accident and his complaints; however, the testimony of Dr. Frank is speculative and insufficient to prove causation because the information and history on which Dr. Frank based his opinions, as related by the plaintiff, was inaccurate and not credible.

Based upon these reasons, I respectfully dissent from the majority's decision in this matter and would adopt the Deputy Commissioner's decision in full.

S/ ________________________ DIANNE C. SELLERS COMMISSIONER