McCollum v. Atlanta Motor Lines

I respectfully dissent from the majority decision to reverse the Deputy Commissioner's Opinion and Award and would vote to affirm on the grounds that the greater weight of the medical evidence supports the position taken by Drs. Powell and Dupuy regarding whether plaintiff reached maximum medical improvement and was able to return to work.

Dr. E. Neal Powell, an orthopedic surgeon, initially examined plaintiff on 18 September 1995, three days after he suffered an admittedly compensable injury to his lower back. Lumbar spine x-rays revealed no evidence of fracture, abnormalities, or degenerative changes. Dr. Powell diagnosed plaintiff with a lumbar back strain and recommended a physical rehabilitation program. When plaintiff returned to Dr. Powell on 24 October 1995, he complained of continuing pain despite being able to get on and off the exam table without difficulty, and perform a toe and heel walk satisfactorily. Dr. Powell told plaintiff that he had no explanation for plaintiff's degree of difficulties, and he noted that plaintiff presented several Waddell's signs for inappropriate pain behavior.

Dr. Powell examined plaintiff on 26 December 1995, and found plaintiff to have definitely improved. He released plaintiff and recommended that he return to work. Dr. Powell saw plaintiff twice in January 1996, and noted that plaintiff continued to allege various "bizarre" complaints which were not medically related to his lumbar condition. An MRI revealed that plaintiff had some degenerative disk protrusions, but Dr. Powell stated that it was unlikely that these were causally related to his compensable injury.

On 7 February 1996, plaintiff began seeing orthopedic surgeon Dr. David Dupuy. Dr. Dupuy examined plaintiff's MRI, and noted the degenerative disk changes seen by Dr. Powell. Dr. Dupuy categorized the disk changes as indicative of "general wear and tear," but acknowledged that there was no real way to tell whether they occurred gradually or as a result of plaintiff's traumatic incident.

Dr. Dupuy testified that the average back sprain begins getting well at ten days, and is well at six weeks. Two thirds of the cases are well at about three months. Plaintiff's continuing complaints of pain at six or seven months after the injury placed him in the realm of five percent of patients with lower back sprain injuries. When plaintiff failed to improve by 30 April 1996, it placed him in the last two or three percent of those recovering from back sprains. On 3 April 1996, Dr. Dupuy gave plaintiff a permanent partial disability rating of three percent. He testified that physical therapy would have its maximum effect during the first six weeks following the injury; therefore, he believed plaintiff had reached maximum medical improvement in December 1995 when Dr. Powell released him to return to work. Having no medical basis for plaintiff's allegations of continuing pain, Dr. Dupuy offered the recommendation that plaintiff enroll in a pain management program. However, he noted that this would not change plaintiff's rating, but would be limited in benefit to assisting plaintiff in learning to live with his condition.

It is important to note that the sole basis for Dr. Dupuy's belief that plaintiff continued to suffer any disability from his compensable injury were plaintiff's own allegations of continuing pain. Dr. Dupuy found no medical basis to support plaintiff's supposed condition, and could offer no medical treatment beyond management therapy.

On 1 May 1996, plaintiff presented to orthopedist Dr. Richard Avioli, seeking a second opinion regarding his permanent disability rating. Dr. Avioli reviewed the notes of Drs. Powell and Dupuy, and examined plaintiff. Dr. Avioli did not observe any Waddell's signs during the physical exam; therefore he took plaintiff's allegations of pain as true and determined that plaintiff's disability continued. He ordered a CT myelogram which failed to show any medical basis for plaintiff's complaints, and performed a neurological exam which produced normal responses. Dr. Avioli recommended that plaintiff participate in a reasonable back rehabilitation program, but admitted that he did not know anything about the therapy plaintiff received while under the care of Dr. Powell. Again, it is noted that Dr. Avioli based his diagnosis of plaintiff solely upon plaintiff's complaints, without any medical evidence to support the alleged condition.

It is the opinion of the undersigned that the medical testimony synopsized above does not support the conclusion that plaintiff remains disabled as a result of his compensable injury. The majority has chosen to discount the opinions of Drs. Powell and Dupuy, and give greater weight to that of Dr. Avioli. In finding of fact 3, the majority attaches some significance to the allegation that Dr. Powell only released plaintiff to return to work at plaintiff's own request, making it appear that Dr. Powell reached no conclusions of his own regarding plaintiff's status. However, Dr. Powell's testimony clearly states that based on his examination of plaintiff and the physical therapy report, he "thought [plaintiff] could return to his job." In finding of fact 12, the majority has discarded Dr. Dupuy's evaluation of plaintiff's maximum medical improvement and ability to return to work because "his opinions were offered despite having not retracted his earlier recommendation that plaintiff enter a pain management program," apparently suggesting that the two statements are contradictory. In doing so, the majority disregards Dr. Dupuy's conclusion that the sole benefit to be gained from the pain management program would be plaintiff's learning to live with his condition, rather than attaining any level of rehabilitation.

Lastly, I would point out that Dr. Avioli admitted that plaintiff's subjective complaints were the sole basis for his opinions. In placing all credibility on the conclusions of Dr. Avioli, the majority has de facto found that plaintiff's own contention of continuing pain, supported only by the testimony of his wife, was credible. The Deputy Commissioner, who had the opportunity to observe both witnesses during the compensation hearing, implicitly found the testimony of plaintiff and his wife not to be credible. The majority Opinion and Award offers nothing to rebut this finding.

For these reasons, I would affirm the Deputy Commissioner's denial of benefits.

S/ ______________ DIANNE C. SELLERS COMMISSIONER

The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Lorrie L. Dollar and the briefs and oral arguments on appeal. The appealing party has shown good grounds to reconsider the evidence. Upon reconsideration of the evidence, the Full Commission reverses the prior Opinion and Award and enters the following Opinion and Award.

2. Liberty Mutual Insurance Company was the carrier on the risk.

3. An employee-employer relationship existed between the parties at all relevant times.

4. Plaintiff sustained an admittedly compensable injury on 16 September 1995 as a result of which the parties entered into a Form 21 Agreement for Compensation.

5. Plaintiff's average weekly wage was $625.00, which yields a compensation rate of $416.69 per week.

6. The issues for determination are:

a. Whether plaintiff is entitled to additional medical treatment as the result of the admittedly compensable injury;

b. Whether plaintiff is entitled to additional temporary total disability compensation as the result of the admittedly compensable injury.

7. The parties also stipulated thirty-five pages of medical reports and a 4 January 1996 letter from defendants, marked as Stipulated Exhibit (1), into the record.

2. On 15 September 1995, plaintiff sustained an admittedly compensable injury by accident when he slipped and fell from his tractor trailer truck, falling approximately four feet and landing on his back on concrete. In addition to his back injury, plaintiff also injured his right hand in the fall.

3. Plaintiff was initially treated by Dr. E. Neal Powell, an orthopaedist with Rock Hill Orthopaedic Clinic, from 18 September 1995 through 20 February 1996. Dr. Powell diagnosed plaintiff has having sustained a low back strain and a probable fracture of the metacarpal joint in his right ring finger. Plaintiff was next referred to Catawba Rehabilitation Services, where he received physical therapy until 22 December 1995. On 26 December 1995, Dr. Powell released plaintiff to return to his regular duties at plaintiff's request.

4. On 3 January 1996, plaintiff drove from his home in York, South Carolina, to the employer's location in Charlotte, North Carolina. When he arrived at work, plaintiff was experiencing severe low back pain to such an extent that he was physically unable to perform the duties of his truck driver position. Due to his pain and being unable to perform his duties, plaintiff left work after four hours.

5. Plaintiff's inability to perform his duties on 3 January 1996 was directly related to his compensable injury of 15 September 1995. His former position as a tractor trailer truck driver was not a suitable position given his physical condition.

6. On 4 January 1996, plaintiff received a letter from the defendant-employer informing him that if he did not return to work within 72 hours he would be terminated. Defendant-employer subsequently terminated plaintiff due to his failure to return to work.

7. Following his failed attempt to return to work, plaintiff was examined by Dr. Powell on 9 January 1996. Dr. Powell again removed plaintiff from work and recommended an MRI. The MRI scan revealed degenerative changes but no evidence of disc herniation. On 23 January 1996, Dr. Powell referred plaintiff to a spine specialist, Dr. Brigham at The Miller Orthopaedic Clinic.

8. On 7 February 1996, defendants referred plaintiff to an orthopaedic specialist, Dr. David M. Dupuy, who administered epidural injections to plaintiff. Plaintiff's condition did not improve with the injections, so Dr. Dupuy recommended that he enter a pain management program. However, defendants did not approve of the pain management program.

9. Despite defendants' refusal to provide the treatment he recommended, Dr. Dupuy found that plaintiff had reached maximum medical improvement on 3 April 1996 and assigned a 3% permanent partial disability rating to his back. As of 3 April 1996, Dr. Dupuy opined that plaintiff was unable to return to work as a truck driver. However, Dr. Dupuy released plaintiff to full duty on 30 April 1996.

10. Plaintiff then requested a second opinion and was referred to Dr. Richard C. Avioli, an orthopaedic specialists in Gastonia. On 1 May 1996, Dr. Avioli examined plaintiff and found that he had not reached maximum medical improvement and ordered a CT myelogram, which revealed nothing substantial.

11. On 7 August 1996, Dr. Avioli noted that plaintiff was experiencing continued mechanical low back problems and recommended a formal back rehabilitation program. Dr. Avioli opined that plaintiff was unable to return to former position with defendant-employer as of that date. Subsequently, plaintiff relocated to Atlanta, Georgia.

12. The opinions of Dr. Dupuy regarding whether plaintiff had reached maximum medical improvement and was able to return to work were given after defendants refused to provide the treatment he had recommended. However, his opinions were offered despite having not retracted his earlier recommendation that plaintiff enter a pain management program. Therefore, The Full Commission places greater weight on the medical opinions of Dr. Avioli regarding whether plaintiff had reached maximum medical improvement and was able to return to work than those of Dr. Dupuy.

13. Plaintiff testified at his hearing that his back condition had not improved since the date of his accident. He also testified that he continued to experience debilitating back pain. His testimony was corroborated by plaintiff's wife who testified that she noticed him in constant pain and that he was unable to perform physical activities that he had previously been able to perform. Both plaintiff and plaintiff's wife testified that plaintiff had not suffered from back problems before 15 September 1995. In the prior Opinion and Award, the Deputy Commission did not make any explicit findings regarding the credibility of plaintiff or his wife. Nonetheless, the Full Commission finds plaintiff's testimony, and that of his wife, to be credible.

14. Since 7 August 1996, defendants have not provided medical treatment to plaintiff and have not offered plaintiff any suitable positions or any assistance in locating suitable work. Further, defendants have failed to offer sufficient evidence from which the Full Commission could find that plaintiff has the ability to earn the same or similar wages as he earned in his former employment or at any other employment.

15. As the result of his injury by accident on 15 September 1995, plaintiff has been unable to earn wages in his former position with defendants or in any other position from that date through the present and continuing.

16. Plaintiff has not reached maximum medical improvement and would benefit from continued medical treatment.

2. The Form 21 Agreement for Compensation created a presumption of continued disability in plaintiff's favor. Kisiahv. W.R. Kisiah Plumbing, 124 N.C. App. 72 (1996); G.S. § 97-29. Plaintiff's unsuccessful one day attempt to return to work did not end this presumption and defendants have failed to rebut it otherwise. Id.

3. Absent a definitive, versus an implicit, finding by the Deputy Commissioner on the credibility of witnesses, the Full Commission is not required to address its reasoning for its credibility findings. Sanders v. Broyhill Furniture Industries,124 N.C. App. 637, 478 S.E.2d 223 (1996).

4. As the result of his 15 September 1995 injury by accident, plaintiff is entitled to have defendants pay temporary total disability compensation at the rate of $416.69 per week for the period of 3 January 1996 through the present and continuing until plaintiff returns to work or until further order of the Commission. G.S. § 97-29.

Defendants are entitled to a credit for any payments previously made for this period. Id.

5. As the result of his 15 September 1995 injury by accident, plaintiff is entitled to have defendants pay for all related medical expenses. G.S. § 97-25; G.S. § 97-25.1.

2. Defendants shall pay all medical expenses incurred by plaintiff as a result of the injury by accident given rise hereto.

3. A reasonable attorney's fee in the amount of twenty-five percent (25%) of the compensation awarded to plaintiff above is approved for counsel for plaintiff. From the amounts having accrued, the fee shall be deducted and paid directly to counsel for plaintiff, with counsel for plaintiff receiving every fourth check payable to plaintiff thereafter.

4. Defendants shall pay the costs, including the expert witness fees of:

$240.00 to Dr. David Dupuy;

$240.00 to Dr. E. Neal Powell; and,

$240.00 to Dr. Richard Avioli.

S/ ______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/ ____________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/ ______________ DIANNE C. SELLERS COMMISSIONER