Howard v. Square-D Company

The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before former Deputy Commissioner Neill Fuleihan and the briefs and oral arguments before the Full Commission. The appealing party has not shown good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the 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 all times relevant to this claim, the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

2. At such times, the employee-employer relationship existed between plaintiff and defendant employer.

3. At such times, defendant employer was self-insured with James C. Green Company as servicing agent.

4. Plaintiff has not worked for defendant or for anyone else since 24 January 1992, at which time plaintiff earned $8.25 per hour.

5. A bound volume of medical records, collectively marked as Stipulated Exhibit #1, are received into evidence.

6. A series of employment records from plaintiff's personnel file with defendant employer, collectively marked as Stipulated Exhibit #2, are received into evidence.

7. A Form 19, dated 10 January 1991, marked as Stipulated Exhibit #3, is received into evidence.

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The Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:

FINDINGS OF FACT

1. Plaintiff is 49 years of age and has a high school diploma which she attained from Broughton High School following night high school course work. Plaintiff's prior employments consist of eleven years of employment as a production employee at Almay Cosmetics and employment as an assistant teacher in a day care center. Plaintiff began employment with defendant employer on 11 November 1987 and worked in various job capacities until 24 January 1992. Plaintiff's prior medical history is significant for right carpal tunnel syndrome while employed at Almay Cosmetics.

2. From the beginning of her employment with defendant employer plaintiff worked full time. She performed assembly work as a machine operator for the first year of her employment and then worked as a gluing operator until January of 1991. As a gluing operator, plaintiff would assemble parts by using her hands to handle and rotate small steel magnet-like parts in order to glue a shading coil onto them. Plaintiff would assemble 400 to 600 parts per eight-hour shift depending upon the size of the part.

3. In the summer of 1990, plaintiff began experiencing symptoms of pain in her left wrist after the end of her work shift, trouble lifting and grasping with her left hand which occurred primarily after work and while she was at home, and numbness and tingling in her left hand which occurred primarily after work and while she was at home, triggering of her left middle finger and right elbow pain.

4. Plaintiff first sought medical treatment for her left hand and wrist and right elbow symptoms in June of 1990. Between June of 1990 and 11 September 1990, plaintiff received regular, conservative medical treatment for her left hand and left wrist symptoms, including prescription of a left wrist splint, a Cortisone injection into her left wrist and, after providing a history of her assembly line work activities to her physician, restriction by her physician to light duty work avoiding repetitive activity.

5. On 11 September 1990, plaintiff had left carpal tunnel syndrome.

6. By 11 September 1990, plaintiff had been advised by competent medical authority that she had left carpal tunnel syndrome and that the same was work related.

7. From 11 September 1990 through 17 September 1990, plaintiff was unable to earn the wages she was earning on 11 September 1990 in the same or in any other employment as a result of her left carpal tunnel syndrome, during which time plaintiff took a leave-of-absence from her employment with defendant employer.

8. Plaintiff filed an Industrial Commission Form 18, Notice of Accident to Employer and Claim of Employee or his Personal Representative or Dependents, on 25 February 1993.

9. Plaintiff failed to file a claim for her left carpal tunnel syndrome both within two years of the date she was first advised by a competent medical authority that she had left carpal tunnel syndrome and that the same was work related, and within two years of the date on which she first became unable to earn the wages she was earning on 11 September 1990 in the same or in any other employment as a result of her left carpal tunnel syndrome.

10. There is insufficient evidence of record from which to determine by its greater weight that defendants induced plaintiff into any delay in filing a claim with the Industrial Commission within two years of being advised by a competent medical authority that she had left carpal tunnel syndrome and that the same was work related, and within two years of the date on which plaintiff first became unable to earn the wages she was earning on 11 September 1990 in the same or in any other employment as a result of her left carpal tunnel syndrome.

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

CONCLUSIONS OF LAW

1. Proper filing of a claim by the employee within two years of being advised by a competent medical authority that the employee has an occupational disease and within two years of the date the employee first becomes disabled as a result of the occupational disease, is a condition precedent to jurisdiction by the North Carolina Industrial Commission. G.S. § 97-58.

2. Since plaintiff did not file a claim with the North Carolina Industrial Commission within the two-year period prescribed by G.S. § 97-58 for an occupational disease, plaintiff is barred from receiving the right to compensation under the North Carolina Workers' Compensation Act for the same. G.S. § 97-58.

3. Defendant is not estopped to rely upon G.S. § 97-58 in bar of plaintiff's claim for occupational disease. G.S. § 97-58.

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

ORDER

1. Plaintiff's claim for compensation under the North Carolina Workers' Compensation Act for occupational disease must be, and the same is, DISMISSED for lack of jurisdiction.

2. Each side shall pay its own costs, except that defendant shall pay expert witness fees in the amount of $250.00 to Dr. A. Griswold Bevin and the previously authorized expert witness fee in the amount of $300.00 to Dr. Wallace F. Andrew.

S/ ________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/ __________________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/ __________________ BERNADINE S. BALLANCE COMMISSIONER

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I respectfully dissent from the majority Opinion and Award herein.

I agree with the finding of fact by the majority that plaintiff had been advised by competent medical authority in September, 1990 that she had left carpel tunnel syndrome caused by her repetitive work with defendant. The record also supports the majority's finding that plaintiff took a leave of absence from work from 11 September 1990 through 17 September 1990 due to carpal tunnel syndrome and other left extremity conditions. Plaintiff was paid disability benefits for three days under the company's disability plan. On 17 September 1990 plaintiff returned to work earning the same or greater wages and worked full time regular duties until 24 January 1992. Plaintiff was thereafter unable to earn wages due to carpal tunnel syndrome of the left upper extremity and tendinitis in the left middle finger.

The majority has decided that plaintiff's disability beginning 24 January 1992 is not a new claim but for jurisdictional purposes relates back to the September 1990 diagnosis of carpal tunnel syndrome. Consequently, the majority has decided that the Industrial Commission has no jurisdiction over plaintiff's 1992 workers' compensation claim filed 25 February 1993 because plaintiff did not file a claim within 2 years of the date she was diagnosed with carpal tunnel syndrome in 1990. I disagree with the majority's reasoning for a number of reasons. This reasoning appears to be based on the premise that an occupational disease cannot be cured or resolved and that any incapacity to earn wages in the future is somehow related to the first diagnosis of the condition. The impact of this decision is that every employee who has a work-related condition and misses a few days out of work must file a workers' compensation claim in case the problem reappears in the future. The Industrial Commission could predictably become flooded with "just in case" claims.

In the instant case, plaintiff's medical notes reveal that she complained of pain after she returned to work in the left middle finger on 30 October 1990 and 27 December 1990. Based upon the medical records in evidence plaintiff did not receive any medical treatment for carpal tunnel syndrome from 11 September 1990 through 31 December 1991 or for left middle finger pain from 27 December 1990 through 31 December 1991. During this period plaintiff worked full time. The doctor's note from Kaiser Permanente on 31 December 1991 refers to a "work re-injury." When plaintiff returned to work on 17 September 1990 at full wages with no permanent impairment plaintiff's period of disability legally ended. Neither party can contend that plaintiff's new claim for disability in January 1992 constituted a change of condition because the claim was not filed with the Industrial Commission and no award was previously made by the Industrial Commission.

The majority has also failed to consider that the aggravation of a pre-existing condition is compensable. Plaintiff's carpal tunnel syndrome (if not resolved) was not disabling after 17 September 1990. Plaintiff's disability beginning over a year later due to left carpal tunnel syndrome and tendinitis of the left middle finger was due to aggravation from cumulative repetitive trauma from the work place occurring after her return to work.

Additionally, defendant is estopped from asserting jurisdiction under Gen. Stat. § 97-24 as a bar to plaintiff's claim based upon defendant's conduct in this case. Defendant's disability program operates similarly, to the provisions of the workers' compensation act. Defendant's disability program directs medical care, manages return to work and vocational training and pays benefits during periods of disability. An employee would have no reason to believe that their rights are not being fully protected when all aspects of their claim have been treated as compensable.

A temporary leave of absence from work for six days due to pain in the left upper extremities caused by work duties does not satisfy the disability requirement of N.C. Gen. Stat. § 97-58. InTaylor v. J. P. Stevens Co., 300 N.C. 94, 265 S.E.2d 144 (1980) the North Carolina Supreme Court held that the two year period in which claims for benefits for an occupational disease must be filed begins running when an employee has suffered from injury from an occupational disease which renders the employee incapable of earning, at any job (emphasis added) the wages the employee was receiving at the time of the incapacity and the employee is informed by competent medical authority of the nature and work related cause of the disease. In the instant case plaintiff was told that diagnostic studies indicated that she probably had carpal tunnel syndrome. Plaintiff also had severe pain associated with her left trigger finger. A medical excuse taking plaintiff out of work for six days, however, is not evidence that plaintiff could not earn the same or greater wages on any job. It may at best be some evidence that plaintiff could not perform her regular job duties temporarily. The record indicates that defendant-employer had some one handed jobs and arguably plaintiff could have performed one-handed jobs during the six day period she was on medical leave. Consequently N.C. Gen. Stat. § 97-58 is not a bar to plaintiff's claim.

For the foregoing reasons I would conclude that the Industrial Commission has jurisdiction over plaintiff's claim and I dissent from the majority opinion.

S/ _____________________ BERNADINE S. BALLANCE COMMISSIONER