Capps v. Gaston Memorial Hosp.

The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Edward Garner Jr., and the briefs and arguments on appeal. The appealing party has shown good ground to reconsider the evidence. Having reconsidered the evidence of record, the Full Commission reverses the Deputy Commissioners holding and enters the following Opinion and Award.

2. An employer-employee relationship existed between plaintiff and defendant-employer.

3. Plaintiffs average weekly wage is as set forth on the Form 22 (Wage Chart).

4. Plaintiff is alleging an injury by accident or a specific traumatic incident that occurred on 12 March 1997, resulting in an injury to her neck.

5. Defendants have denied liability.

6. The issues before the Commission are: whether plaintiff sustained an injury by accident or a specific traumatic incident; whether proper notice was given by plaintiff, and; to what benefits, if any, is plaintiff entitled to receive.

2. Plaintiff began work for defendant-employer on 14 June 1976 as a registered nurse and continued working in that capacity until 20 July 1998. Plaintiff last worked for defendant-employer in its maternity unit, where she served approximately twelve (12) years. As a nurse, plaintiff assisted doctors with child deliveries, Caesarean sections, tubal ligations and hysterectomies. As part of her work, plaintiff had been trained in performing the McDonalds procedure, which is a technique for child delivery involving application of pressure directly to the mothers symphysis pubis.

3. In 1992, plaintiff began working as a charge nurse in addition to her regular duties for defendant-employer as a staff nurse. Plaintiff worked as a charge nurse once every week. As the charge nurse, plaintiff supervised the nursing staff during her shift.

4. Plaintiffs duties as a charge nurse included receiving reports of work related injuries and making certain that incident reports were completed as part of defendant-employers procedures for work place injuries. These procedures require employees who are injured to report the occurrence and to complete an incident report, and are maintained in a manual which is accessible to all employees. The fact that plaintiff had dealt with incident reports prior to 12 March 1997 is not determinative as to whether the delay in her giving written notice to defendants of her injury is reasonably excused.

5. On 12 March 1997, plaintiff was assisting with a patient who was experiencing difficulty in her delivery. After a period with the patient in labor, Dr. Eileen Sales, the treating obstetrician, performed a vacuum extraction, which involves attaching a suction cup to the baby's head and pulling them along the birth canal. With the use of this procedure, the baby's head was delivered, but the shoulders became stuck. This presented an emergency situation in that the baby was asphyxiating. At this point, Dr. Sales instructed plaintiff to perform the McDonalds procedure which involved pushing on the mothers symphysis pubis, where the baby's shoulders were stuck. As plaintiff was pushing with her arms extended and in a thrusting manner, she felt a pull in her right shoulder, but continued with the procedure and delivery.

6. The delivery plaintiff assisted with on 12 March 1997 was a particularly difficult one and involved a severe instance of the baby being stuck at the shoulders. Furthermore, although plaintiff had performed the McDonalds procedure previously, it normally does not include the use of a thrusting motion.

7. Throughout the remainder of her shift on 12 March 1997, plaintiff continued to experience pain in her shoulder. The following morning, Dr. Sales observed plaintiff to be in discomfort and inquired as to her condition. Plaintiff informed Dr. Sales that she believed she had pulled a muscle during the delivery the prior day. At that time, plaintiff believed that the pain would resolve and did not suspect that the problem was serious. Plaintiff did not report the incident immediately to her direct supervisor, Montrice Chapman, who was working with plaintiff with the delivery on the date in question, again because she did not believe it to be serious at that time.

8. The Full Commission finds plaintiffs testimony regarding the incident involving the delivery on 12 March 1997 to be credible.

9. Subsequently, plaintiff continued to work while experiencing pain in her shoulder through 14 April 1997. On that date, plaintiff was examined at the office of her family physician and was informed that her condition was degenerative and was due to aging. With this information, plaintiff still had no reason to believe that her condition was serious.

10. With her condition not improving after taking medication and undergoing physical therapy, plaintiff was referred to Dr. Steve Gudeman, a neurosurgeon. Dr. Gudemans records indicate that plaintiff reported a work place injury and that she had been involved in a particularly difficult delivery. Following an MRI ordered by Dr. Gudeman, he diagnosed plaintiff with cervical degenerative disc disease at C5-6, with spondylosis causing foraminal encroachment and recommended surgery. It was not until receiving this diagnosis that plaintiff knew the extent and seriousness of her injury. She then immediately reported it to her supervisor and completed a written incident report on 17 June 1997.

11. Following plaintiffs ultimate diagnosis, Dr. Sales wrote counsel for plaintiff a letter on 19 December 1997, at plaintiffs request, which documented and corroborated her recollection of the events in the delivery room on 12 March 1997.

12. On 2 July 1997, Dr. Gudeman performed a cervical fusion surgery on plaintiff. As the result of her condition and surgery, plaintiff was unable to work in any capacity from 30 May 1997 to 25 August 1997 when she was released to return to light duty work. Despite her restrictions, defendant-employer returned plaintiff to her pre-injury, heavy duty job. After her shift, plaintiff knew that she was unable to perform her duties and Dr. Gudeman again removed her from work.

13. Dr. Gudeman opined that plaintiffs degenerative disc disease was aggravated by any trauma she experienced on 12 March 1997. Dr. Gudeman further opined that because plaintiff had been asymptomatic prior to any traumatic incident occurring on 12 March 1997, that any flare-ups or ongoing symptoms would be causally related to that incident.

14. Plaintiff again attempted to return to her full duties on 22 September 1997. After a shift in which plaintiff experienced a setback involving the lifting of a patient, plaintiff was assigned part-time duties. Plaintiff worked in a part-time position for defendant-employer from 17 October 1997 to 13 April 1998 when she returned to full-time duties and full wages.

15. On 2 April 1998, Dr. Gudeman released plaintiff with a five percent (5%) permanent partial disability rating to her back.

16. Plaintiffs failure to provide defendant with written notice of her work related injury and claim for compensation pursuant to the terms of G.S. 97-22 is reasonably excused given that she did not immediately know the severity of her injury. Once plaintiff had knowledge of the seriousness of her condition, she promptly notified her employer and filed a written report. Furthermore, plaintiffs delay in providing written notification of her injury in no way prejudiced defendants in either the investigation of the claim, in that all witnesses to the incident were readily available, or with the ability to provide medical treatment given that appropriate treatment was immediately provided when plaintiffs condition was correctly diagnosed.

17. The incident occurring on 12 March 1997 involved the introduction of unusual circumstances in plaintiffs work routine and constituted an injury by accident arising out of and in the course of her employment with defendant-employer.

18. In the alternative, on 12 March 1997 plaintiff sustained an injury by accident arising out of and in the course of her employment with defendant-employer in the form of a specific traumatic of the work assigned.

19. As the result of her 12 March 1997 injury by accident, plaintiff was unable to earn wages in her former position with defendant-employer or in any other employment for the periods of 30 May 1997 through 24 August 1997 and from 26 August 1997 to 22 September 1997. Plaintiff worked one full day during this period on 25 August 1997.

20. As the result of her 12 March 1997 injury by accident, plaintiff was only capable of earning reduced wages for the period of 17 October 1997 to 13 April 1998.

21. As the result of her 12 March 1997 injury by accident, plaintiff sustained a five percent (5%) permanent partial disability rating to her back.

22. Defendants paid plaintiff short term disability for eight (8) weeks and one (1) day.

23. Although the parties stipulated that plaintiffs average weekly wage would be determined by an Industrial Commission Form 22 Wage Chart, the data on the form submitted is inconsistent with other evidence relating to plaintiffs wages and is not accepted as an indication of her true wage earnings.

24. Plaintiffs average weekly wage on 12 March 1997 was $989.27, yielding the maximum compensation rate for 1997 of $512.00.

2. On 12 March 1997, plaintiff sustained an injury by accident arising out of and in the course of her employment with defendant-employer. G.S.97-2(6).

3. In the alternative, on 12 March 1997, plaintiff sustained an injury by accident arising out of and in the course of her employment with defendant-employer in the form of a specific traumatic incident of the work assigned. Id.

4. Plaintiffs claim is not barred given that the delay in her giving written notification to defendants of her injury on 12 March 1997 was reasonably excused and that defendants were in no way prejudiced by this delay. G.S. 97-22.

5. As the result of her 12 March 1997 injury by accident, plaintiff is entitled to be paid by defendants temporary total disability compensation at a weekly rate of $512.00 for the periods of 30 May 1997 through 24 August 1997 and from 26 August 1997 to 22 September 1997. G.S. 97-29. Plaintiff worked one full day during this period on 25 August 1997. Id.

6. As the result of her 12 March 1997 injury by accident, plaintiff is entitled to an election of remedies between being paid by defendant temporary partial disability compensation at the weekly rate of two-thirds (2/3) the difference between her average weekly wage at the time of injury and the reduced wages she was able to earn for the period of 17 October 1997 to 13 April 1998 or permanent partial disability compensation at a weekly rate of $512.00 for fifteen (15) weeks for the five percent (5%) disability rating to her back. G.S. 97-30; G.S.97-31(23).

7. As the result of her 12 March 1997 injury by accident, plaintiff is entitled to have defendants pay for all medical expenses incurred. G.S.97-25.

8. Defendants are entitled to a credit for eight (8) weeks and one (1) day of the short-term disability benefits paid to plaintiff. G.S. 97-42.

2. Once plaintiff has made her election of benefits, defendants shall pay to her either temporary partial disability compensation at the weekly rate of two-thirds (2/3) the difference between her average weekly wage at the time of injury and the reduced wages she was able to earn for the period of 17 October 1997 to 13 April 1998 or permanent partial disability compensation at a weekly rate of $512.00 for fifteen (15) weeks for the five percent (5%) disability rating to her back. Having accrued, the compensation selected shall be paid to plaintiff in a lump sum. This compensation is subject to the credit in defendants favor and the attorneys fee approved herein.

3. Defendants shall pay for all medical expenses incurred by plaintiff as the result of her 12 March 1997 injury by accident.

4. Defendants are entitled to a credit for eight (8) weeks and one (1) day of the short-term disability benefits paid to plaintiff.

5. A reasonable attorneys fee in the amount of twenty-five percent (25%) of the compensation awarded herein is approved for counsel for plaintiff. From the compensation having accrued, this fee shall be deducted from the amounts owed to plaintiff and paid directly to counsel for plaintiff.

6. Defendant-employers shall pay the costs, including an expert witness fee of $300.00 to Dr. Sales.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

I must respectfully dissent from the majority in this matter and would vote to adopt the Deputy Commissioners Opinion and Award denying benefits in this case. The greater weight of the evidence indicates that plaintiff did not suffer a compensable injury by accident or a specific traumatic incident on March 12, 1997, resulting in an injury to her neck. Furthermore, according to the greater weight of the medical evidence of record, any incident occurring on March 12, 1997 did not result in any appreciable consequences.

Plaintiff contends she injured her neck at work on March 12, 1997, while performing the McDonalds procedure during a delivery when she allegedly felt something "like I pulled a muscle in my [right] shoulder. According to plaintiff, she felt almost constant pain from that day forward. Nevertheless, she failed to report any incident to her supervisor who was actually present at the time of the alleged injury. In fact, plaintiff was assisted by her direct supervisor, Montrice Chapman during her performance of the McDonalds procedure. Significantly, plaintiff did not mention any incident to Ms. Chapman on March 12, 1997 or at any other time.

Nevertheless, plaintiff knew the proper procedure to follow. As the charge nurse, plaintiff supervised the nursing staff assigned to her shift. Her duties included receiving reports of work related injuries or illnesses from employees she supervised. She completed incident reports for injured workers, or directed them in the completion of such forms. Prior to March 12, 1997, she had taken reports from other workers for strained muscles and related problems. Significantly, as the charge nurse, plaintiff had been instructed regarding the employers procedures for workplace injuries. These procedures require any employee who is injured, or feels she may be injured on the job, to report the occurrence and complete an incident report. The procedures are maintained in a manual, which is accessible to all employees. Plaintiff acknowledged that the correct procedure to follow for a work injury was to complete an incident report. Furthermore, it is evident that plaintiff knew the procedure for reporting injuries since, prior to the March 12, 1997 alleged incident, plaintiff had completed incident reports on two occasions for exposure to blood. Plaintiff finally first notified her employer of her alleged injury on June 17, 1997, when she called Ms. Beeson, the manager of Womens Health Services at Gaston Memorial Hospital. Although Dr. Sales, who plaintiff was assisting at the time of the alleged injury, wrote plaintiffs attorney a letter on December 19, 1997, at plaintiffs request, documenting her recollection of the events in the delivery room on March 12, 1997, Dr. Sales version differs significantly from that of plaintiff and is therefore given little weight.

Plaintiffs failure to promptly notify the employer of her alleged injury prevented the employer from having plaintiff immediately evaluated by the employers Medical Director or an emergency room physician. Medical treatment is available at Gaston Memorial to any employee injured on the job. The employer did not have an opportunity to offer plaintiff light duty, which may have prevented surgery. Plaintiffs conduct was prejudicial to the employer and raises questions regarding plaintiffs credibility.

Not only did plaintiff fail to promptly report any incident to her supervisor she also failed to promptly report any incident or injury to her medical providers. This is significant in particular since plaintiff is a nurse and is well aware of the importance of providing an accurate medical history to ensure proper diagnosis and treatment. On April 9, 1997, plaintiff presented to the employers employee health nurse for her annual physical examination. As part of the annual physical, each employee is given a sheet to review and sign, which specifically details the procedures for reporting work-related injuries and filing workers compensation claims. Importantly, plaintiff did not mention any work-related injury. Shortly thereafter, plaintiff first sought medical treatment on April 14, 1997, at Gaston Internal Medicine, where she saw Carl Stowe, a physicians assistant. Mr. Stowe specifically questioned plaintiff about the onset and duration of her neck pain. Nevertheless, plaintiff failed to mention an injury of any type. In fact, she did not mention her job at all during her conversations with Mr. Stowe. At that time, plaintiffs x-ray revealed degenerative disc disease of the cervical spine. Thereafter, plaintiff reported to the Rehab Department at Gaston Memorial Hospital on April 17, 1997, for physical therapy, at which time she came under the care of Baker Leigh. She completed an intake sheet wherein she described a 30-day history of pain in her right arm, shoulder, and neck. Once again plaintiff failed to mention an injury occurring at work. In fact, plaintiff marked through the space on the form for indicating the date and time of any "accident or whether there was an injury at work. Furthermore, Mr. Leigh obtained a history from plaintiff that she had been experiencing neck pain for about a month and that she had degenerative disc disease at C5-7. His history indicated that plaintiff never reported injuring herself in the delivery room. The next time plaintiff sought medical treatment was May 23, 1997, when she consulted Dr. David Thomas. Once again plaintiff failed to provide a history of a work-related injury. It was not until plaintiff was seen by Dr. Gudeman on May 29, 1997, for neck and arm pain that she finally reported developing neck shoulder pain after a lifting or pushing event three months earlier.

Next, considering plaintiffs lack of reporting, questionable credibility as well as the totality of the medical evidence of record, plaintiffs cervical degenerative disc disease at C5-6, with spondylosis causing foraminal encroachment is not causally related to any work-related incident. Her condition is a chronic condition associated with aging that develops over time. Furthermore, plaintiff did not have diagnostic evidence of trauma of her cervical spine. Degenerative disc disease is progressive and can become symptomatic without trauma. It can produce pain in the neck and upper extremities. In fact, plaintiffs symptoms were consistent with her level of cervical pathology, without a history of trauma.

A claimant seeking compensation under the Act has the burden of proving that her injury was caused by an accident resulting in disability.Gallimore v. Marilyns Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977); N.C. Gen. Stat. 97-2(6). In the instant case, plaintiff has failed to meet her burden of proof including that of medical causation. Finally, plaintiffs claim should be barred by N.C. Gen. Stat. 97-22 for failure to provide timely notice or a reasonable excuse for the failure to do so which resulted in prejudice to the employer.

S/_______________ DIANNE C. SELLERS COMMISSIONER