Morris v. R.J. Reynolds

Upon review of the competent evidence of record, and finding no good grounds to receive further evidence or rehear the parties or their representatives, the Full Commission, upon reconsideration of the evidence, affirms the Opinion and Award of the Deputy Commissioner, with minor modifications.

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:

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

3. R. J. Reynolds was a qualified, self-insured employer, administered by Kemper Insurance under the terms and provisions of the Act.

4. The employee-employer relationship existed between plaintiff and defendant-employer at the time of the alleged injury.

5. Plaintiff is a fifty-six year old male with a twelfth grade education.

6. Plaintiff's average weekly wage is $890.80, yielding a maximum compensation rate of $492.00.

7. Plaintiff received 100 percent of his salary from 7 July 1996 through 17 April 1997. Plaintiff received 50 percent of his salary of $1,928.34 per month from 19 April 1997 through present. These benefits are provided by and paid for by RJR.

The Pre-Trial Stipulations dated 12 February 1998 submitted by the parties at the hearing are incorporated by reference.

In addition, the parties stipulated into evidence the following:

1. Form 19 Employer's Report of Injury to Employee, dated 8 May 1996.

2. Reimbursement agreement, dated 9 October 1996.

3. 103 pages of medical records and employment records which were submitted after the hearing.

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Based upon all of the competent evidence in the record, the Full Commission makes the following additional:

2. On 11 April 1996, plaintiff drove his truck to pick up a load of cigarettes. A conveyor system began loading the truck automatically, but there was some sort of malfunction after only half of the cigarettes had been loaded. Consequently, plaintiff stepped up unto a small platform to check the problem. When plaintiff came back down, he slipped on an oil spot and hit his left upper torso and left knee on the pavement. After plaintiff's fall, a nurse in defendant's medical department saw him for complaints of pain behind his left knee and in his left upper posterior rib cage area. The nurse gave plaintiff ibuprofen to relieve his pain and directed plaintiff to return to the medical department the next day.

3. When plaintiff returned to the company nurse on 12 April 1996, he complained of pain in his mid-lumbar region, in addition to the areas mentioned the day before. However, the pain was not severe, and he was able to continue working in his regular job. Plaintiff was treated with medication and on 25 April 1996, and he was referred for two weeks of physical therapy.

4. Hubert Bonfili, M.D., the company doctor, examined plaintiff on 14 May 1996. Plaintiff complained of some low back discomfort at night, especially when turning, and some stiffness in the mornings, but indicated that he had no problems as the day progressed. Plaintiff reported his left knee pain had resolved. Dr. Bonfili advised plaintiff that he probably had some degenerative arthritis.

5. On 18 May 1996, plaintiff went to Daniel J. Hurst, M.D., at Winston-Salem Health Care with complaints of right shoulder and low back pain. Plaintiff reported to Dr. Hurst that he had fallen at work approximately three weeks before. Dr. Hurst prescribed pain mediation for plaintiff on that visit. On 24 May 1996, plaintiff saw Gerald B. Hogsette, Jr., M.D., his regular treating physician. Plaintiff informed Dr. Hogsette of his fall in late March, which injured his left flank and low back. Plaintiff further stated that the pain had resolved within two weeks of the fall, and that he had subsequently developed pain in his right shoulder which had progressed to include his entire arm. Dr. Hogsette diagnosed plaintiff with a cervical radiculopathy and treated him conservatively with medication and a cervical collar. Physical therapy was ordered, but plaintiff did not follow through with that recommendation.

6. Plaintiff remained symptomatic and asked to be referred to Louis Pikula, M.D., a neurosurgeon. Dr. Hogsette ordered an MRI, which revealed a disc protrusion at C4-5 with associated spinal cord abutment. Dr. Hogsette then referred plaintiff to Dr. Pikula, who examined plaintiff on 12 June 1996. Dr. Pikula continued conservative treatment for a couple of weeks, but then scheduled surgery because plaintiff's symptoms were progressing. On 2 July 1996, plaintiff underwent surgery to decompress and fuse the C4-5 interspace.

7. Dr. Pikula reported that plaintiff did very well following the operation. On 4 September 1996, plaintiff was released to return to work without restrictions. However, plaintiff needed the approval of Dr. Bonfili to return to work for defendant. When plaintiff saw Dr. Bonfili on 12 September 1996, he indicated that he still had pain in his neck and right arm. Plaintiff was also on intermittent pain medication, which had some drowsiness side effects. Consequently, Dr. Bonfili would not allow plaintiff to return to work as a truck driver for defendant. Defendant did not offer plaintiff another position, and plaintiff did not return to work at any time prior to the date of hearing before the deputy commissioner. Plaintiff did not look for employment elsewhere.

8. Dr. Bonfili recommended that plaintiff apply for long-term disability and wrote to Aetna, the insurance company, with his recommendation. Because of the lack of restrictions from the treating surgeon, plaintiff was sent by Aetna to neurologist Carlo P. Yuson, M.D., for another opinion. Dr. Yuson examined plaintiff on 27 January 1997 and noted inconsistencies on examination. He did not find any neurologic abnormality to explain plaintiff `s continuing complaints of symptoms and indicated that there appeared to be a disparity between the objective findings and the subjective complaints. Dr. Yuson saw no reason why plaintiff could not return to his former job as a truck driver. Nevertheless, Dr. Bonfili still did not release plaintiff to return to his former employment.

9. Plaintiff did not see Dr. Pikula between 4 September 1996 and 12 May 1997. Plaintiff was treated in the interim by Dr. Hogsette for new complaints of pain at the junction of the thoracic and lumbar spine. On 12 May 1997, plaintiff returned to Dr. Pikula with complaints of burning and tingling in both arms, some neck pain, burning in both legs, and low back pain. An MRI of his cervical spine was within normal limits. Since plaintiff's complaints were not in a true neurologic distribution, Dr. Pikula considered that plaintiff might have a peripheral neuropathy. Plaintiff's ongoing reported symptoms were not attributed to a cervical disc problem.

10. On 11 April 1996, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant. The fact that he slipped and fell constituted an unusual occurrence which interrupted his regular work routine.

11. As a result of this injury by accident, plaintiff injured his left knee and the area of his left upper torso at the posterior ribcage. The pain plaintiff experienced in those areas was not disabling and resolved with conservative treatment in the next few weeks.

12. Plaintiff did not develop pain in his right shoulder, neck, or arm until one month or more following his injury. Plaintiff reported previous difficulties in his neck and trapezius muscles when he had undergone a physical by Dr. Hogsette on 2 October 1995. Consequently, the causal relationship between plaintiff's work injury and the cervical disc rupture for which he underwent surgery was questionable, and expert medical evidence on the issue of causation was required. Neither party obtained a causation opinion from Dr. Pikula, the treating surgeon. Plaintiff offered the opinion of Dr. Hogsette, who would not state, to a reasonable degree of medical certainty, that plaintiff's cervical disc condition resulted from the accident. Dr. Bonfili expressed his opinion that, although a causal relationship was possible, it was not likely. Consequently, plaintiff has not proven that the cervical spine condition for which he ultimately underwent surgery was a proximate result of his 11 April 1996 injury by accident.

13. Plaintiff did not sustain any temporary total or permanent partial disability as a result of his 11 April 1996 injury at work. Plaintiff continued working after the injury until the end of June, when he had neck surgery.

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Based upon the foregoing stipulations and findings of fact, the Full Commission makes the following:

2. The cervical spine condition, for which plaintiff was treated beginning in May 1996, was not a proximate result of the injury by accident of 11 April 1996, and he is not entitled to compensation under the Act for that condition. G.S. § 97-2 etseq.; Click v. Pilot Freight Carriers, Inc., 300 N.C. 164,265 S.E.2d 389 (1980).

3. Plaintiff did not sustain any temporary total or permanent partial disability as a result of his injury by accident on 11 April 1996 and, therefore, is not entitled to compensation for disability. G.S. § 97-29; G.S. § 97-31.

4. Plaintiff is entitled to have defendants provide all medical compensation arising from his injury by accident, as may be reasonably required to effect a cure or give relief, excluding treatment for the cervical condition. G.S. § 97-2(19); G.S. § 97-25.

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

2. Plaintiff is not entitled to compensation under the Act for his cervical spine condition.

3. Defendants shall pay the costs.

S/_____________ RENEE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_____________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

This is a difficult case in which all of the physicians, including the defendant's own in-house physician, have said that they cannot state, to a reasonable degree of medical certainty, whether plaintiff's 11 April 1996 slip and fall was the proximate cause of plaintiff's cervical disc rupture. However, there is nothing in the record to suggest any intervening accident or trauma which may have precipitated plaintiff's condition. In fact, all of the physicians have said that there could be a causal relationship between the slip and fall and plaintiff's condition. North Carolina courts have held that testimony by an expert using the words "could" or "might" refer to probability and not mere possibility and are competent, as the expert opinion is based on the reasonable probabilities known to the expert from scientific learning and experience. Lockwood v. McCaskill, 262 N.C. 663,138 S.E.2d 541 (1964). See also Lee v. Regan, 47 N.C. App. 544,267 S.E.2d 909 (1980).

Defendants argue that because they are able to later rephrase the question and elicit a different answer from Dr. Hogsette, that the plaintiff has failed to prove causation. This conflict in the testimony of the physicians should be resolved in the plaintiff's favor, especially in light of the fact that plaintiff had not experienced disabling back problems prior to the fall. Our Supreme Court has said on many occasions that "our Workers' Compensation Act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow, and strict construction." Hollman v. City of Raleigh,273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968).

Plaintiff, following his cervical disc surgery, was released to return to work; however, prior to doing so, he visited Dr. Bonfili, the company doctor, for approval. Dr. Bonfili refused to certify plaintiff to return to work because plaintiff had only limited use of his neck. In a letter to Kathy Holbrook, who is with R.J. Reynolds employee benefits division, Dr. Bonfili wrote: "I feel that driving a truck, with the vibration and the repetitive action of the upper extremities in driving a truck, getting in and out of the truck, would exaggerate his problems. In addition, in order to control his symptomatology with the increased activity, he takes medication and I would not want him driving a truck while on this type of medication."

Plaintiff testified that no other work, such as sedentary work, had been offered to him by the company. Dr. Bonfili also testified that, "we don't have any sedentary jobs available with his — he's a truck driver. That's his training. That's his experience for over 30 years. And we just don't have — I mean, they told me — personnel told me they don't have anything available that they could place him in."

Based on the aforementioned testimony of Dr. Bonfili and the fact that plaintiff is of the age and education level that he would be unable to find other employment to replace the wages lost at his job with R.J. Reynolds, plaintiff is disabled. Under the Workers' Compensation Act, an employee is disabled when an injury makes him unable to earn wages he was receiving at the time of the injury in the same or other employment. N.C. Gen. Stat. § 97-2(9). Plaintiff's testimony was that he was a 56-year-old man who had worked for the defendant for 37 years at the time of the accident. He had completed the 12th grade and attended Forsyth Technical College for six months. He has never held a sedentary position.

The defendant's own in-house Doctor testified that the plaintiff is incapable of earning pre-injury wages in the same employment. Given plaintiff's average weekly wage with the defendant, which works out to approximately $11.13 per hour, as well as his age, education and work experience, the plaintiff will be incapable of earning pre-injury wages in any other employment. This inability to earn pre-injury wages in either the same or other employment was caused by plaintiff's injury and should support a conclusion of disability under Hilliard v. Apex CabinetCo., 305 N.C. 593, 290 S.E.2d 682 (1982).

Based on the foregoing and the fact that the Courts construe the Workers' Compensation Act liberally in favor of compensability, Chandler v. Nello L. Teer Co., 53 N.C. App. 766,281 S.E.2d 718 (1981), aff'd., 305 N.C. 292, 287 S.E.2d 890 (1982); and the provisions of the Act are to be construed liberally and in favor of the employee, Dayal v. Provident Life Accident Ins. Co., 71 N.C. App. 131, 321 S.E.2d 452 (1984); the majority should find plaintiff's condition compensable within the meaning of the Workers' Compensation Act.

This 25th day of August 1999.

S/_____________ THOMAS J. BOLCH COMMISSIONER