Baucom v. Titan Homes

I respectfully dissent from the majority decision to deny defendants' Motion for Reconsideration, and in light of the allegations presented therein, I also dissent from the majority's decision in its Amended Opinion and Award to afford the opinions of Dr. Grubb regarding plaintiff's permanent partial disability rating greater weight than those of Dr. Gwinn.

The evidence shows that subsequent to plaintiff's injury of 3 July 1993, he presented to Dr. Gwinn who had been treating plaintiff for back problems since an earlier injury in 1991. In 1991 Dr. Gwinn had diagnosed plaintiff with degenerative disk disease based on the results of an MRI. He gave plaintiff a 3% permanent partial disability rating and released him to return to work with lifting restrictions of fifty pounds.

After plaintiff's 1993 injury, Dr. Gwinn ordered another MRI to compare with the one from 1991. Finding no significant differences in plaintiff's condition, he again gave plaintiff a rating of 3% permanent partial disability to his back.

After plaintiff's 1995 injury he refused to return to Dr. Gwinn and instead presented to Dr. Grubb. Without reviewing any of plaintiff's prior medical history, Dr. Grubb gave plaintiff a 30% permanent partial disability rating for the 1993 incident. Not only is this rating excessive under the Industrial Commission Guidelines, there is no medically sound reason for giving Dr. Grubb's opinion in this regard greater weight than that of Dr. Gwinn, the physician who treated plaintiff at that time.

Further, Dr. Grubb gave plaintiff an additional 10% disability for the 1995 injury. Upon subsequent review by Dr. Gwinn of Dr. Grubb's records, Dr. Gwinn found that again there was no significant change in plaintiff's condition between 1991 and 1995. Accordingly, it was Dr. Gwinn's opinion that plaintiff's permanent partial disability rating should have remained at 3%. As Dr. Gwinn was plaintiff's treating physician throughout his history of back injuries, and there is evidence that he used the Industrial Commission Guidelines in arriving at the rating he gave plaintiff (evidence which is lacking in Dr. Grubb's testimony), I would give Dr. Gwinn's opinion regarding plaintiff's disability rating greater weight than that of Dr. Grubb.

For these reasons, I would vote to allow defendants' Motion for Reconsideration on the issue of plaintiff's disability rating, and give greater weight to the opinion of Dr. Gwinn in that regard.

This the ___ day of January, 1999.

S/_________________________ DIANNE C. SELLERS COMMISSIONER

Regarding Defendants' Motion for Reconsideration, the Opinion and Award has been amended in Finding of Fact (11) to clarify that Dr. Grubb's opinions regarding plaintiff's permanent partial disability rating were given more weight than those of Dr. Gwinn, which were also considered. Otherwise, Defendants, Motion is DENIED, with the remainder of the Full Commission's Opinion and Award being unchanged.

2. On said date, an employer-employee relationship existed between the parties.

3. As of said date, Aetna Insurance Company provided the coverage to the employer as provided under said Act.

4. Plaintiff sustained an injury by accident arising out of and in the course of the employment with defendant-employer on 3 July 1993.

5. An alleged injury giving rise to plaintiff's claim occurred on 10 November 1995.

6. On said dates plaintiff was earning an average weekly wage of $391.90.

7. That the issues to be determined in this case are:

a. Did plaintiff sustain an injury by accident arising out of and in the course of his employment with the defendant-employer on 10 November 1995; and,

b. If so, are the injuries of which plaintiff complains caused by the said accident; and,

c. If so, to what compensation, if any, is plaintiff entitled under the Act.

8. The parties stipulate that the following documents are authentic and genuine and may be received into the record without further identification or verification:

a. Copies of medical records and reports of plaintiff's various health care providers produced to the parties;

b. Copies of the discovery, and responses thereto;

c. Copies of documents filed with the Industrial Commission pertaining to this matter;

d. Plaintiff's employment file;

e. Recorded statement of plaintiff;

f. Recorded statement of Grady Chambers;

g. Medical records of Dr. Briggs; and,

h. Other reports and a video.

9. At the hearing on 18 February 1997, the parties introduced into the record the following exhibits and documentation which have been considered by the Full Commission in ruling in this matter and with respect to which all Motions and Objections have been duly considered under the applicable law and rules of evidence:

a. The deposition of Dr. Michael D. Gwinn dated 3 October 1996, to which plaintiff objects.

b. The deposition of Dr. Stephen Grubb dated 1 October 1996.

c. Plaintiff's Exhibit 1, marked P1, consisting of report of Stephen D. Carpenter dated 23 October 1996, to which defendants object.

d. Defendants' Exhibit 1, marked D1, consisting of Plaintiff's Answers to First Set of Defendants' Interrogatories.

e. Defendants' Exhibit 2, marked D2, consisting of New Employee Safety Procedures.

f. Defendants' Exhibit 3 and 3a, marked D3 and D3a, consisting of a transcript of interview and a microcassette tape of plaintiff from January 1996.

g. Defendants' Exhibit 4, marked D4, consisting of medical records of Dr. John L. Briggs.

h. Defendants' Exhibit 5, marked D5, consisting of a video tape to which plaintiff objects.

i. Defendants' Exhibit 6, marked D6, consisting of a video tape to which plaintiff objects.

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

2. Prior to the incident on 10 November 1995, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer on 3 July 1993. This injury by accident exacerbated plaintiff's pre-existing degenerative disk disease.

3. Subsequent to 3 July 1993, plaintiff was placed on light duty work with and was restricted from lifting in excess of twenty-five pounds and from repetitive bending or twisting motions.

4. Except for one week beginning on 23 January 1995, from 3 July 1993 to 10 November 1995 plaintiff was able work in a suitable position for defendant employer. In this position plaintiff performed ceramic tile work and the construction of small tables.

5. On 10 November 1995, as plaintiff was leaving a trailer where he had been looking for ceramic tile, he caught his right foot in an air hose which was lying on the floor in front of the doorway. Plaintiff tripped and fell out the doorway of the trailer and down the steps, landing on his hands and knees. Following this incident, plaintiff experienced the onset of increased pain in his lower back.

6. On the same date, plaintiff reported the incident and his increased back pain to his supervisor and was given permission to go home and seek medical care and treatment.

7. Upon his examination of plaintiff following the 10 November 1995 incident, Dr. Steven Grubb found that plaintiff's multilevel degenerative disc disease had been aggravated. This condition causes plaintiff to experience debilitating pain in his back and legs. Plaintiff was not a surgical candidate so Dr. Grubb instituted a conservative course of treatment.

8. The incident on 10 November 1995 was an interruption of plaintiff's normal work routine and, therefore, constituted an injury by accident arising out of and in the course of the employment with defendant-employer.

9. Plaintiff's injury by accident on 10 November 1995 substantially aggravated his back condition as it existed after his 3 July 1993 injury by accident and with his degenerative disk disease.

10. Based on the opinions of Dr. Grubb, plaintiff reached maximum medical improvement on 1 October 1996. As of that date, plaintiff's conservative treatment was no longer going to improve his condition which, in fact, would continue to grow worse over time. Plaintiff has sustained a forty percent (40%) permanent partial disability of the back, thirty percent (30%) as the result of his injury by accident on 3 July 1993, and ten percent (10%) as the result of his injury by accident on 10 November 1995.

11. Having considered all of the relevant evidence, the Full Commission gives greater weight to the opinions of Dr. Grubb regarding plaintiff's permanent partial disability ratings than the opinions of Dr. Gwinn, who only assigned a three percent (3%) rating.

12. In his Opinion and Award, the Deputy Commissioner did not make definitive findings on the issue of plaintiff's credibility. Nonetheless, based on a surveillance tape, he did make findings regarding plaintiff's activities following his 10 November 1995 injury by accident which tend to support a finding that plaintiff's testimony was not credible. After reviewing the entire evidence of record, the Full Commission finds that plaintiff's testimony was credible and that the activities portrayed in the video tape are consistent with someone attempting to perform a normal day's routine.

13. As the result of his injury by accident on 3 July 1993, plaintiff was unable to earn wages in his former position with defendant-employer or in any other employment from 23 January 1995 through 30 January 1995.

14. As the result of his injury by accident on 10 November 1995, plaintiff has been unable to earn wages in his former position with defendant-employer or in any other employment since that date.

15. Plaintiff was earning an average weekly wage of $391.90 on 3 July 1993 and on 10 November 1995, which yields a compensation rate $261.40.

16. At the hearing on 18 February 1997, plaintiff moved to strike the deposition evidence of Dr. Michael D. Gwinn, taken on 3 October 1996 for nonconsensual ex-parte communications. However, there is no evidence that the ex-parte communications between defendants and Dr. Michael D. Gwinn were nonconsensual.

2. On 3 July 1993, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer which materially aggravated his degenerative disk disease. G.S. § 97-2(6).

3. As the result of his 3 July 1993 injury by accident, plaintiff is entitled to be paid by defendants temporary total disability compensation at the rate of $261.40 per week for the period of 23 January 1995 through 30 January 1995. G.S. §97-29.

4. On 10 November 1995, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer which materially aggravated his degenerative disk disease. G.S. § 97-2(6).

5. As the result of his 10 November 1995 injury by accident, plaintiff is entitled to be paid by defendants temporary total disability compensation at the rate of $261.40 per week for the period of 10 November 1995 through the present and continuing until plaintiff returns to work or until further order of the Commission. G.S. § 97-29.

6. There being no evidence that the ex-parte communications between defendants and Dr. Michael D. Gwinn were nonconsensual, Dr. Gwinn's deposition has been properly admitted into the record. Salaam vs. Department of Transportation,122 N.C. App. 83 (1996).

7. Plaintiff is entitled to have defendants pay for all medical expenses incurred as the result of his 3 July 1993 injury by accident and his 10 November 1995 injury by accident. G.S. § 97-25.

2. Defendants shall pay all medical expenses incurred as the result of plaintiff's 3 July 1993 injury by accident and his 10 November 1995 injury by accident.

3. A reasonable attorney's fee of twenty-five percent (25%) of the compensation awarded herein is hereby approved for counsel for plaintiff. From the amount of compensation which has accrued, this fee shall be deducted from the amounts owed to plaintiff and paid directly to counsel for plaintiff with counsel for plaintiff receiving every fourth check thereafter.

4. Defendants shall pay the costs.

S/_________________________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/______________________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/______________________ DIANNE C. SELLERS COMMISSIONER