Bragg v. Ameristeel

This matter was reviewed by the Full Commission based upon the record of the proceedings before Deputy Commissioner Pamela T. Young, along with the briefs and arguments on appeal. The appealing party has not shown good ground to receive further evidence or to amend the prior Opinion and Award. Accordingly, the Full Commission adopts and affirms the Deputy Commissioner's holding and enters the following Opinion and Award.

2. An employment relationship existed between the plaintiff-employee and defendant-employer at all relevant times herein.

3. Liberty Mutual Insurance Company was the carrier on the risk at all relevant times herein.

4. The date of the alleged specific traumatic incident to the plaintiff's back was April 2, 1999.

5. At all relevant times herein, the plaintiff's average weekly wage totaled $918.06, yielding a maximum compensation rate of $560.00.

6. The plaintiff received both short-term and long-term disability benefits from the defendant-employer.

7. The parties stipulated to the plaintiff's medical records from University Family Physicians, Charlotte Orthopedic Specialists, Nalle Clinic, University Hospital, Mercy Hospital, Presbyterian Orthopedic Hospital, and Charlotte Cardiothoracic Surgical Associates.

8. The parties stipulated to the following:

a) Plaintiff's job description;

b) Plaintiff's recorded statement dated April 21, 1999;

c) Supervisor's Occupational Injury/Illness investigation report dated April 2, 1999 with attached statements of co-workers;

d) Workers' Compensation First Report of Injury or Illness.

9. The issues presented are:

a) Whether the plaintiff sustained an injury by accident arising out of the scope of his employment and as a direct result of a specific traumatic incident of the work assigned on April 2, 1999 or otherwise aggravated a pre-existing back condition such that he is entitled to benefits under the North Carolina Workers' Compensation Act?

b) Whether the plaintiff is entitled to any benefits under the North Carolina Workers' Compensation Act?

2. As a part of his job duties assigned, the plaintiff-employee used a jackhammer on a regular basis to dislodge solidified steel from the nozzles on the ladles. These are designed to hold as much as 50 tons of steel and it can take 10 to 15 minutes or more of continuous use of a jackhammer to dislodge a nozzle that restricts the flow of molten liquid metal. The plaintiff-employee used the jackhammer two to four times a day in his job as a ladle tender.

3. The plaintiff-employee has sustained two previous compensable work-related injuries for this defendant-employer, one to his left knee and one a hernia. Following each of these injuries, plaintiff-employee was released to return to work without restrictions to the ladle tender position. Although he was capable of performing his regular job duties, the plaintiff-employee continued to experience and complain of occasional left leg and hip pain as a result of his job related knee injury.

4. After the plaintiff-employee had knee surgery in 1996, he complained to Dr. Laxer of back pain and an MRI of June 1997 indicated that the plaintiff-employee had degenerative disc disease and a small herniated disc at L4-5.

5. Plaintiff-employee suffered a claudication or total occlusion of the left iliac artery in his left leg and on July 24, 1998, he underwent a bypass procedure by Dr. Charles Harr. Dr. Harr released the plaintiff-employee to return to work with the defendant-employer with no restrictions on September 21, 1998.

6. From September 21, 1998 until after April 2, 1999, the plaintiff-employee did not miss any scheduled workday. In fact, the plaintiff-employee worked a substantial amount of overtime hours during this entire period up to April 2, 1999. Although the plaintiff-employee experienced occasional episodic pain in his left thigh and low back, he was able to perform the duties and tasks assigned to him as ladle tender without difficulty. He complained about pain in his left hip, leg and back to co-workers on March 29, 1999; however, he was able to perform his full work duties on that date.

7. During the week of April 2, 1999, the plaintiff-employee completed his regular shift of 36 hours by working 12 hours per day on Monday, Tuesday and Wednesday. He was scheduled by the defendant-employer to perform overtime work on April 2, 1999 and agreed on April 1, 1999 to work in the place of another co-worker for Saturday, April 3, 1999.

8. On April 2, 1999, the plaintiff-employee reported for work on the evening shift at 6:50 p.m. At approximately 8:20 p.m., the plaintiff-employee had to change a nozzle on a ladle. The plaintiff-employee picked up a jackhammer and began to dig vigorously and continuously for fifteen minutes in an effort to clear the nozzle. During this particular process, the plaintiff-employee had to exert all his strength against the nozzle in an upward direction. At such time, the jackhammer was vibrating against the sides of the opening.

9. After digging the nozzle out, the plaintiff-employee, still holding the jackhammer, turned sideways and suddenly felt sharp pains in his back and down his legs. The plaintiff-employee immediately dropped the jackhammer without returning it to its regular location.

10. Following the incident, the plaintiff-employee was barely able to walk into the caster shack where he located his foreman, Bill Baker. The plaintiff-employee reported his injury to Mr. Baker. Due to the pain in his low back, legs and feet, the plaintiff-employee had to stop work and sit down. The plaintiff-employee experienced numbness in his feet and sharp pains down into his left and right ankles. Because the plaintiff-employee was unable to continue to perform his job duties, Mr. Baker went to the plaintiff-employee's job station and completed the necessary job duties.

11. Plaintiff-employee asked Mr. Baker if he could go to the company doctor and Mr. Baker told him he could not. At 9:30 p.m., the plaintiff-employee requested to go home because of his pain and then walked slowly to the parking lot. This activity usually took four to five minutes, but on this occasion, plaintiff-employee testified that it took him fifteen minutes to make it to his car.

12. On Saturday, April 3, 1999, the plaintiff-employee's wife called Dr. Cardwell's office to schedule an appointment. Dr. Cardwell was not immediately available; however, an appointment was scheduled for April 7, 1999.

13. On April 7, 1999, the plaintiff-employee presented to Dr. Cardwell who noted that the plaintiff-employee was at work when he noticed a sudden onset of severe left posterior hip pain which radiated into his thighs at a sufficiently severe level that plaintiff-employee was unable to continue his job.

14. On April 7, 1999, Dr. Cardwell kept the plaintiff-employee out of work, continued pain medication and referred the plaintiff-employee to Dr. Robert M. McBride, Jr.

15. On April 21, 1999, plaintiff-employee presented to Dr. McBride who indicated that he had not seen the plaintiff-employee since the plaintiff-employee underwent left iliac artery bypass surgery by Dr. Charles Harr in July 1998. Dr. McBride's office note of April 21, 1999 documents that the plaintiff-employee was "basically doing ok until April 2, 1999 when he was moving a jackhammer at work and felt severe onset of pain in his back and shooting down his legs. Left worse to the right, to the inside of his ankle with associated numb sensation." Dr. McBride rendered a diagnosis of moderate degenerative disease, L5-S1, left sciatica, and lumbar strain and gave the plaintiff-employee lifting restrictions of no more than 20 pounds and no use of the jackhammer.

16. Dr. McBride's restrictions given April 21, 1999 prevented the plaintiff-employee from performing his job as a ladle tender and the defendant-employer had no light duty job available.

17. From April 21, 1999 through December 15, 1999, the plaintiff-employee received conservative treatment from Dr. McBride, including a series of three epidural steroid injections; however, this treatment did not give the plaintiff-employee relief. He continued under the same work restrictions given on April 21, 1999 and the defendant-employer remained unwilling or incapable of providing suitable light duty employment.

18. After conservative measures of treatment failed, Dr. McBride performed an anterior discectomy and BAK fusion at L4-5 and L5-S1 of the plaintiff-employee's back on December 15, 1999.

19. Plaintiff-employee has been unable to work in his position as a ladle tender for the defendant-employer since April 2, 1999 as a result of continued weakness, pain and the risk of re-injury to his spine as well as the restrictions given by Dr. McBride.

20. Dr. McBride opined that the plaintiff-employee's jackhammer work aggravated his pre-existing degenerative disk disease.

21. On April 9, 1999, plaintiff-employee sustained an injury by accident arising out of and in the course of his employment with the defendant-employer as a direct result of a specific traumatic incident of the work assigned and which resulted in aggravating and exacerbating the plaintiff-employee's pre-existing condition.

2. As a result of plaintiff's compensable injury by accident, plaintiff is entitled to receive temporary total disability compensation benefits at the rate of $560.00 beginning April 2, 1999 and continuing until he is able to return to gainful employment or until further Order of the Industrial Commission. N.C. GEN. STAT. § 97-29.

3. As a result of this compensable injury by accident, plaintiff is entitled to have the defendants pay for all medical expenses incurred or to be incurred, as a result of his injury by accident of April 7, 1999, for so long as such examinations, evaluations and treatment may reasonably be required to effect a cure, provide relief or lessen the plaintiff's disability. N.C. GEN. STAT. § 97-25; N.C. GEN. STAT. § 97-2(19).

4. Defendants are entitled to a credit for the short-term and long-term disability payments the plaintiff received during this period. N.C. GEN. STAT. § 97-30; N.C. GEN. STAT. § 97-42.

2. Defendants shall pay all of plaintiff's medical expenses incurred or to be incurred as a result of his compensable injury by accident of April 7, 1999, for so long as such evaluations, examinations and treatments may reasonably be required to effect a cure, give relief, and will tend to lessen the period of plaintiff's disability.

3. Defendants shall be entitled to a credit for short-term and long-term disability payments received by plaintiff and not refunded by plaintiff under an employer-funded disability policy.

4. A reasonable attorney's fee of 25% of the compensation due plaintiff under Paragraph 1 of this Award is approved for plaintiff's counsel. Twenty-five percent of the compensation due plaintiff shall be deducted from that sum and paid directly to plaintiff's counsel. Thereafter, every fourth compensation check shall be deducted from the sum due plaintiff and paid directly to plaintiff's counsel. Consideration and designation of this attorney's fee contemplates that the counsel for the plaintiff shall continue and is hereby ORDERED to monitor the submission of medical expenses to the defendant-employer.

5. The defendants shall pay the costs, including expert witness fee to Dr. McBride in the amount of $235.00.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/____________________ THOMAS JEFFERSON BOLCH COMMISSIONER

DISSENTING:

S/______________ RENE C. RIGGSBEE COMMISSIONER

Based on the competent evidence of record, I respectfully dissent from the majority opinion in this claim and recommend that benefits be denied.

The essential issue in this case is whether plaintiff sustained an injury on April 2, 1999. A review of the medical depositions, medical records, Industrial Commission filings, and hearing testimony, discloses that plaintiff failed to prove that he sustained an injury on April 2, 1999.

This case presents medical issues where the exact nature and probable genesis of the particular type of injury involves complicated medical questions far removed from the ordinary experience of laymen; therefore, competent expert opinion is necessary to properly evaluate the claim.See Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000); Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980). In this case, the only expert medical opinion was presented by Robert B. McBride, Jr., M.D., plaintiff's treating orthopaedic surgeon, and his testimony does not support plaintiff's claim for an accidental injury.

Plaintiff was under the care of Dr. McBride for the spinal condition made the basis of this claim before the alleged April 2, 1999, injury. Plaintiff first saw Dr. McBride on May 26, 1998, when he was diagnosed with severe degenerative disc disease with left-sided sciatica. Dr. McBride again saw plaintiff on June 9, 1998. At that time Dr. McBride had received a 1997 MRI report which revealed a small central herniation of the disc at L4-5. Dr. McBride explained that the physical condition of plaintiff's spine was essentially unchanged from when he first saw plaintiff in 1998 until the he performed surgery on plaintiff's L4-5 and L5-S1 discs. Dr. McBride testified that the herniated disc and degenerative disc disease that were the site of the spinal surgery pre-dated the alleged April 2, 1999, injury. What had changed, causing Dr. McBride to recommend surgery, was the degree of pain that plaintiff was experiencing from his pre-existing spinal abnormalities.

Given this history, the Commission's review of the evidence should not end with Dr. McBride's January 20, 2000, letter to plaintiff's counsel. Rather, the Commission must determine whether Dr. McBride's opinion is competent and supported by the evidence. The record is undisputed that on January 20, 2000, Dr. McBride wrote a letter to plaintiff's counsel expressing the opinion that the incident on April 2, 1999, aggravated plaintiff's pre-existing degenerative disc disease to the point that plaintiff needed the surgery that was subsequently performed. This letter was written by Dr. McBride in response to a letter from plaintiff's counsel which failed to include other pertinent medical information concerning plaintiff, in particular that plaintiff had a constant exacerbation of his back pain before April 2, 1999. At the time that Dr. McBride wrote his letter, he also did not have the benefit of medical records from Dr. Caldwell, including Dr. Caldwell's chart note dated April 1, 1999. In addition, Dr. McBride was not aware that plaintiff was having pain in his back, leg and hip for at least a week prior to April 2, 1999. Dr. McBride's January 20, 2000, letter, is not competent evidence because he did not have all of the necessary information to evaluate the cause of plaintiff's problem when he wrote the letter. Dr. McBride's assumption, based on history reported by plaintiff, that he was essentially pain-free prior to April 2, 1999, is false and, therefore, his opinion as to causation based on this assumption is invalid and not competent.

At his deposition in this case, Dr. McBride explained that he was not aware that plaintiff had seen Dr. Caldwell on April 1, 1999, with complaints of back pain that radiated from the buttocks into the left knee. Dr. McBride also was not aware that plaintiff had been complaining of radiating pain for at least a week before April 2, 1999. Dr. McBride testified that the physical condition for which he performed surgery existed prior to April 2, 1999, and that he had expressed the opinion that plaintiff's condition was aggravated by his employment based on the history provided by plaintiff that he was problem free prior to April 2, 1999. Dr. Caldwell's office note and the testimony of plaintiff's co-workers negate the history upon which Dr. McBride based his January 20, 2000 opinion. With the new evidence, Dr. McBride indicated that his opinion concerning causation would change. Dr. McBride explained that plaintiff's physical condition had not changed from 1998 to 1999 except for the degree of pain and that the nature of plaintiff's condition is that the pain tends to progressively get worse, even without a subsequent injury. Dr. McBride testified that if plaintiff was having the same symptoms a week before April 2, 1999, then his opinion concerning causation (expressed in the January 20, 2000, letter) would not be correct.

In reviewing the evidence, whether by physician testimony or medical records, it is necessary to determine whether the evidence is based on fact. Evidence which is based on speculation or possibility is not competent. See Young v. Hickory Business Furniture, 353 N.C. 227,538 S.E.2d 912 (2000); Dean v. Carolina Coach Co., 287 N.C. 515,215 S.E.2d 389 (1980). Similarly, evidence which is based on false or incomplete facts is not competent when the actual facts would lead to a contrary conclusion. As applied to this case, the opinion of Dr. McBride that plaintiff's condition had changed on April 2, 1999, which is directly contradicted by the medical records of Dr. Caldwell and the testimony of plaintiff's co-workers, is not competent evidence. In this circumstance, the majority errs in finding that there is some evidence to support an injury and thereby entering an award for plaintiff without determining whether the evidence is competent. The portion of the record that supports the position that plaintiff sustained an injury by accident on April 2, 1999, is not competent evidence and thereby is not evidence which can support an Award. The Commission's duty is not merely to search the record for favorable statements that support one party or another. Rather, we must determine whether the evidence is competent before it is accepted and weighed against other competent evidence.

The undisputed, competent evidence in this case is that plaintiff had the spinal abnormalities made the basis of this claim long before April 2, 1999, and that the pain from this condition which generated the recommendation for surgery also pre-dated the alleged April 2, 1999, date of injury. Thus, the spinal condition and resulting surgery made the basis of this claim are not compensable because this injury did not arise out of plaintiff's employment on April 2, 1999. N.C.G.S. § 97-2(6).

For these reasons, I suggest that there is no legal evidence to support the proposition that plaintiff sustained the alleged injury on April 2, 1999. See Young v. Hickory Business Furniture, 353 N.C. 227,538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); Seealso Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible). Whether the evidence is legally competent is a question of law and thereby is subject to review by the Court of Appeals.

S/______________ RENE C. RIGGSBEE COMMISSIONER