Harrison v. Lucent Technologies

This matter was reviewed by the Full Commission based upon the record of the proceedings before Deputy Commissioner Morgan S. Chapman, 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.

***********The Full Commission finds as fact and concludes as matters of law the following, which were entered by the parties at the hearing on 20 July 2000 as:

STIPULATIONS1. The employee is Rebecca C. Harrison.

2. The employer is Lucent Technologies.

3. The servicing agent for the self-insured employer is Lucent Technologies Disability Benefits.

4. At all relevant times, defendant-employer regularly employed three or more employees and was bound by the North Carolina Workers' Compensation Act. The employer and the employee relationship existed between the employer and the employee on or about August 19, 1999, the date of the alleged compensable injury reflected on I.C. File Number 970192, and on May 21, 1999, the date of the alleged compensable injury IC File Number 970196.

5. A Form 22 is stipulated to by the parties that demonstrates an average weekly wage of $656.89 and a weekly compensation rate of $437.93

In addition, the parties stipulated into evidence the following:

1. Medical records marked as Defendants Exhibit 1, except that plaintiff objected to medical records that were too remote on relevancy grounds.

2. Exhibits 2, 3, 4 and 5 in the folder labeled Other Exhibits.

3. A packet of additional medical records.

The pre-trial agreement dated June 12, 2000, which was submitted by the parties is incorporated by reference.

***********Based upon the evidence of record, the Full Commission enters the following:

FINDINGS OF FACT1. Plaintiff, who was born January 4, 1949 and who is a high school graduate, began working for defendant's predecessor in December 1969. After working in the manufacturing area and then as an operator for a number of years, she took a secretarial position in 1988 and worked as a secretary until the time of the incidents giving rise to this claim. Her last position was secretary for Dale Posny, who worked in Human Resources. She started in that position in approximately November 1996. Her job involved typing, copying, recording attendance information, picking up and delivering mail, making travel reservations, handling telephone calls, shipping and receiving packages, ordering supplies, and storing the supplies in a cabinet. Some of her duties required her to leave her desk and go to other areas of the building.

2. Up until the spring of 1999, plaintiff and Ms. Posny had a good working relationship. However, Ms. Posny could not locate plaintiff for approximately three hours on a workday in April. There was no known reason for plaintiff to be away from her desk for so long, and Ms. Posny decided to impose a fifteen-minute time limit for errands and to monitor her more closely. Since there were some tasks that plaintiff could not complete within fifteen minutes, the restriction and monitoring activities led to resentment on her part. Ms. Posny also placed restrictions on the supplies that she could order. Their relationship became increasingly strained.

3. On May 21, 1999 plaintiff had to put some office supplies into the supply cabinet. When she lifted a box of manila envelopes and walked a few steps, she noted a twinge of pain in the area of her neck and left shoulder. She had had previous problems with her neck and shoulder, and had missed work on April 29 due to shoulder pain that she attributed to holding and caring for her grandchild. Shortly following the incident on May 21, 1999, she saw the company nurse and reported worse neck pain since lifting the box.

4. On May 26, 1999 plaintiff went to her regular medical practice and saw Margie Trent, the physician's assistant, for complaints of severe neck pain. She advised Ms. Trent that she had felt the twinge when lifting the box but did not develop severe pain until she went home that evening. Since she was also complaining of some numbness in her left arm, Ms. Trent ordered an MRI of her cervical spine and subsequently advised her to stay out of work from May 31 until June 7. Defendant then sent plaintiff to Dr. Wilcockson, the company doctor, who examined her on June 1, 1999 and concluded that she could return to work the next day with restrictions of no lifting, pushing or pulling more than five pounds. Consequently, she reported to work on June 2, 1999.

5. The MRI revealed narrowing and degenerative changes at C5-6 but no evidence of disk herniation or spinal cord compression. When plaintiff returned to Dr. Wilcockson on June 7, 1999, she indicated that she was significantly improved and only had a slight heavy feeling in her left arm. He then raised her restrictions to ten pounds.

6. Plaintiff continued working and did not seek further medical care until August 9, 1999 when she returned to Dr. Wilcockson and advised that, although she was much improved, she still had some left shoulder pain with extremes of motion plus some restriction of motion and weakness. Consequently, he continued her restrictions on a permanent basis. On August 11, 1999 she saw Ms. Trent for multiple complaints, including persistent pain in her left shoulder. Ms. Trent was concerned that she might have rotator cuff syndrome and ordered an x-ray before making a decision regarding whether she should be referred to an orthopedic surgeon. Apparently plaintiff continued to work with the ten-pound weight restriction throughout this time.

7. On August 19, 1999 Ms. Posny was advised that an office had to be cleaned out by noon because movers were coming to get the furniture at that time. She was unable to find plaintiff and began cleaning the office herself. There were a number of bound volumes that had to be emptied and removed. The binders varied in size but some were several inches thick. When plaintiff returned to her desk, Ms. Posny instructed her to help empty the binders and discard the contents. Consequently, plaintiff began opening them, removing the papers and then determining which bin the papers had to be placed in, since proprietary documents were kept in a separate container. She made several trips down the hall to take the papers to the appropriate containers. On each occasion she chose how much paper to carry and did not know the weights she was lifting. By the time the job was complete, her left shoulder was bothering her more, but she did not complain of any problems to Ms. Posny. However, on August 23, 1999 she went to Dr. Wilcockson and said that she had developed soreness in her left shoulder while emptying the binders on August 19.

8. Dr. Wilcockson referred plaintiff to Dr. Gramig, an orthopedic surgeon who was apparently under contract to render services to defendant's employees. Dr. Gramig examined her on August 26, 1999. She advised him that she was unable to raise her left arm at that time. He diagnosed her with adhesive capsulitis of the left shoulder and ordered an MRI of the shoulder. Defendant, however, then denied liability for the claim and Dr. Gramig did not accept her health insurance coverage, so he could not continue to treat her. Consequently, plaintiff returned to Ms. Trent on September 21 and was referred to Dr. Riggin, another orthopedic surgeon. Dr. Riggin saw her on September 27, 1999 and agreed that she had adhesive capsulitis. He treated her with a procedure where her shoulder was manipulated under anesthesia in order to break the adhesions. She then underwent aggressive physical therapy so that the scar tissue would not reform.

9. The condition of plaintiff's left shoulder improved significantly with Dr. Riggin's treatment. However, she experienced considerable stress associated with a conflict between Dr. Riggin's instructions to stay out of work and Dr. Wilcockson's insistence that she was able to work. It was not clear from the evidence why Dr. Wilcockson considered himself to be in as good a position as plaintiff's treating orthopedic surgeon to make such a determination and his actions appeared to have been inappropriate. Plaintiff continued to have considerable pain in the left shoulder, and the therapy that she had to undergo was quite painful. Dr. Riggin chastised her employer for applying pressure for her to return to work and advised them that she was not able to return to work.

10. Plaintiff went to Ms. Trent on December 14, 1999 with symptoms of anxiety and depression and with suicidal threats. Consequently, Ms. Trent referred her to Forsyth Medical Center where Dr. Williams, a psychiatrist, evaluated her. He determined that she had experienced a life-threatening incident as a twelve-year old when her father had accidentally run over her with a car causing severe injuries, that she experienced symptoms of rapid heart-beat, anxiety and panic over the years without recognizing that she had a problem, and that the shoulder injury along with the associated hospitalization and conflict with her employer had caused her symptoms to be aggravated to the point that she had developed a post-traumatic stress disorder with associated depression and panic disorder. He hospitalized her for treatment with medication and various forms of therapy, and she remained in the hospital until December 31, 1999.

11. Plaintiff's shoulder continued to improve and by February 2000 was doing well. Dr. Riggin released her to return to work beginning March 1, 2000 with respect to her shoulder condition. However, she continued to have serious psychiatric problems and was hospitalized a second time in March 2000. Dr. Williams had not released her to return to work with respect to her psychiatric condition as of the day his deposition was taken on August 30, 2000.

12. Claims have been filed for both the May 21 and the August 19, 1999 incidents. Although defendant initially provided medical treatment for each injury, liability was ultimately denied for both workers' compensation claims. Nevertheless, defendant authorized treatment by Dr. Wilcockson and by Dr. Gramig prior to notifying the doctors that the claim was being denied.

13. On May 21, 1999 plaintiff lifted a box of manila envelopes in a normal manner. There was nothing unusual about the weight of the box or the circumstances when she lifted it. She routinely lifted and carried boxes of envelopes as part of her regular job duties of placing office supplies in the supply cabinet. This event constitutes a specific traumatic incident of the work assigned and she did sustain a neck injury as a result of the incident, which constitutes a compensable injury by accident arising out of and in the course of employment.

14. As a result of the neck injury on May 21, 1999, plaintiff was unable to work for only two days. She was then able to earn her regular wages while working in a light duty capacity. No medical treatment was provided for the neck problem after June 1999 and there was no evidence presented indicating that she sustained any permanent partial disability as a result of the neck injury.

15. On August 19, 1999 when plaintiff emptied the binders, she was performing one of her regular job duties. There was nothing unusual or out of the ordinary in the manner that she removed the papers from the binders or carried them to the bins on that occasion. She did not prove that she lifted an unusual or excessive amount of weight on that date. Consequently, she did not sustain a compensable injury to her left shoulder on August 19, 1999.

***********Based upon the foregoing findings of fact, the Full Commission concludes as follows:

CONCLUSIONS OF LAW1. (I.C. NO. 970196) On May 21, 1999 plaintiff sustained an injury by accident arising out of and in the course of her employment with defendant in that she sustained a cervical injury as the result of a specific traumatic incident of the work assigned. G.S. § 97-2 (6).

2. (I.C. NO. 970196) Having been disabled for only two days as a result of that injury, plaintiff's disability did not exceed the seven-day waiting period and she is not entitled to compensation for temporary total disability. G.S. § 97-28.

3. (I.C. NO. 970196) To the extent that plaintiff received treatment for a neck condition, plaintiff is entitled to have defendants provide all medical compensation arising from this injury by accident. G.S. § 97-2 (19); G.S. § 97-25.

4. (I.C. NO. 970196) However, a shoulder injury must meet the standards of an injury by accident in order to be compensable. An "accident" must involve more than merely carrying on the usual and customary duties in the usual way, but rather involves the interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences. Harding v. Thomas and HowardCompany, 256 N.C. 427 (1963).

5. (I.C. NO. 970196) On May 21, 1999, plaintiff did not sustain a compensable injury by accident to her shoulder arising out of and in the course of her employment with defendant-employer. G.S. § 97-2 (6).

6. (I.C. NO. 970196) Plaintiff is not entitled to benefits under the Workers' Compensation Act for her shoulder injury, except for the medical treatment authorized by defendant. G.S. § 97-2 et seq.

7. (I.C. NO. 970192) On August 19, 1999 plaintiff did not sustain an injury by accident to her left shoulder arising out of and in the course of her employment with defendant-employer. G.S. § 97-2(6). Consequently, plaintiff is not entitled to benefits under the Workers' Compensation Act for her shoulder injury or the subsequent psychiatric problems related to her shoulder injury. G.S. § 97-2 et seq.

8. (I.C. NO. 970192) However, because defendant authorized the treatment by Dr. Wilcockson and Dr. Gramig, defendant is liable for payment to those providers. G.S. § 97-90(e).

***********Based upon the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:

AWARD1. (I.C. NO. 970196) To the extent plaintiff injured her neck, this claim is compensable. However, the claim is denied with respect to any shoulder injury.

2. (I.C. NO. 970196) Defendant shall pay all medical expenses incurred by plaintiff as a result of this injury by accident to the extent the treatment was rendered for her neck injury.

3. (I.C. NO. 970192) This claim, arising from plaintiff's alleged psychological difficulties subsequent to the August 19, 1999 shoulder incident, must, under the law, be and it is hereby denied.

4. (I.C. NO. 970192) However, defendant shall pay all medical expenses arising from the treatment by Dr. Wilcockson and Dr. Gramig, which defendant authorized.

5. (I.C. NO. 970196) Defendant shall pay the costs of this appeal.

6. (I.C. NO. 970192) Each side shall pay its own costs of this appeal.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING IN PART AND DISSENTING IN PART:

S/______________ RENE C. RIGGSBEE COMMISSIONER

I agree with the majority Opinion in this case to the extent that it addresses plaintiff's alleged physical injuries. Plaintiff has failed to establish that she sustained an injury on May 21, 1999 or August 19, 1999, that resulted from an accident or some untoward event. The evidence concerning plaintiff's physical injuries is that they occurred in the normal course of her work activities. Plaintiff's injuries to her shoulder, therefore, are not the result of an "accident" and thereby are not compensable under the North Carolina Workers' Compensation Act. N.C.G.S. § 97-2(6); See Davis v. Raleigh Rental Center,58 N.C. App. 113, 292 S.E.2d 763 (1982) (injury must involve more than the performance of normal duties). Plaintiff, however, also asserts a claim for a back injury, specifically an injury to the neck, which is treated differently under the Act. Plaintiff has established that she sustained an injury to her neck which resulted as a direct result of a specific traumatic incident of assigned work. The neck injury is compensable pursuant to the second sentence of Section 97-2(6) of the Act. See Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 799 (1989). The evidence, however, established that plaintiff has sustained only two days of disability from her neck injury; therefore, no compensation is currently owed for this condition. N.C.G.S. § 27-28 (establishing a 7 day waiting period).

I disagree with the majority concerning plaintiff's claim(s) for psychological injuries discussed in Finding of Fact 16 of the majority Opinion and Findings of Fact 16 and 17 of the Deputy Commissioner's Opinion. The majority Opinion in this case and the Deputy Commissioner's Opinion differ in that the Deputy Commissioner expressly found that plaintiff's psychological problems stemmed from her shoulder injury in August and not from her neck injury in May. See Opinion Award,Chapman at FOF 16. Although this factual finding was removed from the majority Opinion in this case, it is impliedly found in Conclusion of Law 8 wherein the majority states:

"Consequently, plaintiff is not entitled to benefits under the Workers' Compensation Act for her shoulder injury or the subsequent psychiatric problems related to her shoulder injury. G.S. § 97-2 et seq."

I agree with the now omitted Finding of Fact 16 from the Deputy Commissioner's Opinion and the majority's Conclusion of Law 7. I disagree, however, with the majority's Finding of Fact 16 which would tend to indicate that a claim for psychological injury may be pending and was not before the Commission at this time. I believe that the plaintiff's claims for psychological injuries were before the Full Commission and as explained herein should be denied.

I first note that the Form 44 filed by plaintiff complained of the Deputy Commissioner's Findings of Facts 16 and 17¹ because they were allegedly incorrect on the evidence and because the parties' pre-trial agreement included the issue of whether plaintiff had sustained a compensable psychological injury, either as a new occupational disease or as stemming from her claims for accidental injuries on May 21, 1999 and August 19, 1999. In particular, the pre-trial agreement executed by all parties to this action states:

"C. Whether the chronic pain along with the harassment, whether perceived or real at work, subsequent to her work related injuries, resulted in either a new occupational disease or stems from the prior alleged injuries, and manifested itself as a major depressive disorder and post traumatic stress syndrome?"

I agree with plaintiff that the issue of psychological injury, including injury by occupational disease, was before the Deputy Commissioner and thereby that the Deputy Commissioner erred in failing to address this claim. Further, because the issue of psychological injury was also brought to the Full Commission in Plaintiff's Form 44, Brief, and oral argument, the majority errs in failing to address the question of psychological injury by occupational disease.

PSYCHOLOGICAL INJURYThe Plaintiff alleges that she has sustained a psychological injury, identified as major depressive disorder and post traumatic stress syndrome, either as a consequence of her specific accidental or traumatic injuries of May 21 or August 19, 1999, or alternatively, as an occupational disease. As addressed above, and in the majority Opinion, plaintiff's claim for psychological injury arising from the May 21 or August 19, 1999, injuries has been denied in this claim. Plaintiff suggests that she sustained psychological injury when Dr. Gramig performed manipulation without sedation on plaintiff's arm for her shoulder injury. Plaintiff contends and defendants agree² that Dr. Williams testified that plaintiff's psychological diagnosis of PTSD and major depressive syndrome would not have occurred without the alleged re-injury of plaintiff's shoulder in August 1999. This agreement of the parties is further borne by the deposition testimony of Dr. Williams wherein he testified that absent plaintiff's re-injury to her shoulder (the August 1999 claim) plaintiff would have been able to handle the stresses of work and would not have become suicidal and sustained psychological injury sufficient to achieve the diagnosis of PTSD and depression. (Williams depo. p. 70-85)

The majority Opinion is correct in finding that plaintiff's claim for psychological injury arising from her August 19, 1999, injury is not compensable. (Conclusion of Law 8). The May 21 and August 19, 1999, injuries to the shoulder are not compensable because these injuries were not accidental. N.C.G.S. § 97-2(6). The evidence is that these injuries were sustained in the normal course of plaintiff's activities and there was no evidence of an untoward event. Thus, the shoulder injuries are not compensable. Psychological problems caused or exacerbated by a compensable injury may be compensable. See Toler v.Black Decker, 134 N.C. App. 695, 518 S.E.2d 547, 551 (1999). In this case, however, the underlying injury is not compensable, therefore, the alleged psychological injury resulting from the non-compensable physical injury likewise is not compensable.

Where I disagree with the majority Opinion is the failure to address plaintiff's separate claim for psychological injury resulting from an alleged occupational disease. Plaintiff alleges that she sustained an occupational disease at work caused by a strained working relationship with her supervisor, Dale Posny, which resulted in plaintiff's request to change supervisors and a job performance meeting with John Langerman, Jerry Kracht, Wendy Neely, and Dale Posny. The majority Opinion addresses the evidence concerning plaintiff's psychological injury, in part, at Finding of Facts 2, 10, and 11. In addition to these findings, plaintiff suggests that she was placed in a hostile work environment which was due, at least in part, from her work injur(ies). These issues are before the Commission and should be addressed.

Viewing plaintiff's contentions in the best light possible (and without weighing whether they are supported by the greater weight of the competent evidence), plaintiff has failed to establish a compensable claim for an occupational disease under the Workers' Compensation Act. First, the evidence fails to establish that plaintiff's psychological conditions are characteristic of and peculiar to her employment and that plaintiff's employment placed her at an increased risk of developing PTSD and depression. N.C.G.S. § 97-53(13). Second, stress caused by job performance generally is not compensable under the Workers' Compensation Act. Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 409 S.E.2d 103 (1991). Third, injury for retaliatory discrimination, including discrimination for asserting workers' compensation rights, and other employment torts generally are not covered under the Workers' Compensation Act and are not precluded by the exclusive remedy of workers' compensation. See Busher v. Southern Food Service,73 F. Supp.2d 556 (M.D.N.C. 1999) (claim for emotional distress arising from termination and denial of FMLA not precluded by Act); Harrison v.Edison Brothers Apparel Stores, Inc., 724 F. Supp. 1185 (M.D.N.C. 1989) (emotional damage claim based on acts not in the normal course of employment not precluded by Act); Hogan v. Forsyth Country Club,79 N.C. App. 482, 340 S.E.2d 116, disc. review denied, 317 N.C. 334,346 S.E.2d 140 (1986) (Act does not preclude action for civil wrongs which are outside the scope of the Act); N.C.G.S. § 95-241 et seq. (actions for employment torts). Workers' compensation is not intended to cover all injuries sustained at work and in particular does not cover all of the emotional stresses and strains of the workplace. If it did, there would be no need for Employment Practice Liability Insurance policies and the employment torts which have been created by the state and federal legislatures. Further, the Commission's opinion concerning the validity of the employment claims is immaterial because the claims are not within the jurisdiction of the Commission. See Abels v. Renfro Corp.,108 N.C. App. 135, 423 S.E.2d 479 (1992) (Commission's findings concerning compensability of injury irrelevant to § 97-6.1 claim). Therefore, nothing in this decision precludes plaintiff from prosecuting these claims, if any, in the proper forum.

For the reasons stated above, there is no reason to hold this claim open for further hearing on plaintiff's claims for psychological injury. I respectfully dissent to Finding of Fact 16 of the majority Opinion and would find that plaintiff has not established a claim for psychological injury resulting from the May 21 or August 19, 1999, accidental injuries and has not established an occupational disease stress claim.

Signed this ___ day of October, 2001

S/______________ RENE C. RIGGSBEE COMMISSIONER

¹ The Deputy Commissioner's Finding of Fact 16 reads:

"The psychiatric problems for which plaintiff was subsequently treated stemmed from the shoulder injury in August and not from the neck injury in May."

This finding is not included in the majority Full Commission Opinion. Rather, the majority Opinion in Finding of Fact 16 adopts the Deputy Commissioner's Finding of Fact 17 which reads:

"If a separate claim has been filed alleging that plaintiff's psychiatric difficulties constituted an occupational disease, such claim was not presented at the hearing for determination. Findings have only been made with respect to the two claims set for hearing which alleged that she sustained compensable injuries on May 21 and August 19, 1999."

² Defendant's Brief to Full Commission at p. 15.