Euresti v. Watson Elec. Corp.

I must, respectfully, dissent.

1. Plaintiff, a 39-year-old Hispanic who has difficulty expressing himself, worked for defendant-employer for two years. He was an apprentice electrician and his duties included pulling wire through conduits, installing receptacles, lights and light switches, and occasionally digging so that wire could be installed underground. He was paid $8.00 an hour and usually worked 40 hours a week although occasionally he worked overtime.

2. Prior to July 1998 plaintiff had not had any trouble with his back and was able to work at heavy labor. He had been doing construction all of his working life and had previously worked as a plumber and as a carpenter.

3. In July 1998 defendant-employer was doing electrical construction work at North Carolina Weslyan College in Rocky Mount. On most wire pulls several men and a machine were used to push and pull the wire through the conduit. On this particular wire pull from the electrical panel in the building to the transformer on the utility pole, only two men were used and they did not have the help of the machine. Consequently, this constituted "an unlooked for and untoward event which is not expected or designed by the person who suffers the injury and an "interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Adams v. Burlington Industries,61 N.C. App. 258, 260, 300 S.E.2d 455, 456 (1983) Any resulting injury is an injury by accident under the Workers Compensation Act.

4. While doing the wire pull under these unusual circumstances, plaintiff felt a soreness in his back. He felt a similar soreness in his back when he and another worker installed 100 to 120 receptacles at locations 16 inches above the floor. Installing that many receptacles in one day was also an unusual occurrence. The pain hit when he bent over and then straightened up. Eventually the back pain ran down his right leg. While plaintiff was unable to pinpoint the exact date that these two incidents occurred, they both occurred on the Weslyan College job during a cognizable period of time. Both injuries qualified as injuries by accident within the course and scope of employment and as specific traumatic incidents of the work assigned.

5. Plaintiff reported the incidents and the pain to his co-worker and to his foreman.

He did not seek immediate medical treatment because he thought the pain would go away. However, the pain subsequently became so severe that he went to the emergency room on July 29 and on August 3.

6. Hospital personnel treated plaintiff for a back strain with medication and rest. He was subsequently referred to Dr. E.O. Marsigli, an orthopedic surgeon. Dr. Marsigli, who saw him on August 6, 1998, treated him conservatively with medication and physical therapy, but his symptoms persisted, so the doctor ordered an MRI. The scan revealed evidence of ruptured discs at L3-4 and L4-5. Dr. Marsigli gave plaintiff an out of work note for the 10 days beginning August 6.

7. After a discussion between plaintiff and Dr. Marsigli regarding surgical options, plaintiff elected, because the fusion procedure would take him out of work longer, to have a decompression of both interspaces without a fusion. Dr. Marsigli performed the operation on September 11, 1998. Plaintiff did not obtain a good result from the surgery and had only been released to return to work at light duty as of the date of hearing before the Deputy Commissioner. The work incidents at the Weslyan College job caused plaintiffs injuries.

8. Although the hypothetical question regarding causation which was posed to Dr. Marsigli contained some inaccuracies and incomplete facts, it is clear that Dr. Marsiglis response would have been the same had the hypothetical question been 100% accurate. Contrary to the assertions in the hypothetical question, plaintiff did not lift and carry "spools of wire and he did not install all 100 to 120 receptacles himself but did it with a co-worker. He did lift and carry wire that usually was left on the spool on a truck and usually was unwound from there. The lifting of the heavy wire and the bending down to install receptacles 16 inches from the floor were both present in the hypothetical question and in the facts.

9. Dr. Marsiglis testimony on causation included: "Well, if he never had any previous history of back pain or leg pain or anything like that, a healthy 38-year-old man, that he did not had any degenerative changes in the spine — in other words, the spine was, theoretically speaking, a healthy spine and he was having a lot of heavy work done and then he had pain in the back, the it could be a possibility that he hurt his desk at that time — ruptured it.

10. At the time to hearing before the Deputy Commissioner the plaintiff had not received a permanent partial disability rating. Because of the continuing pain after the first surgery, plaintiff is in need of further surgery, including fusion of the spine.

11. Plaintiff was capable of returning to light duty in the fall of 1998. He made an effort to find light duty work but was unable to do so. He called Ed Parker at Watson Electrical who told him that he did not have any work available for him. He was out of work a year and a half. He was employed at McDonalds at the time of the hearing at a rate of $5.75 per hour for a 36 hour week.

Based on the foregoing, the Conclusions of Law should be:

1. Plaintiff sustained injuries by accident and specific traumatic incidents on two occasions in July of 1998 while working in the course and scope of his employment with defendant-employer and which resulted in herniated disks at the L3-L4 and L4-L5 levels. N.C. Gen. Stat. 97-2(6);

2. In workers compensation cases, plaintiff has the initial burden of proving that he suffers from a disability as a result of a work-related injury. Harrington v. Adams-Robinson Enterprises, 128 N.C. App. 496,498, 495 S.E.2d 377, 379, revd on other grounds, 349 N.C. 218,504 S.E.2d 786 (1998). Here, plaintiff has met that burden by showing that he is only able to do light duty work due to his compensable injuries and was unable to find any for an 18-month period. He is entitled to compensation at the rate of $213.34 for 18 months and is entitled to 2/3 the difference between his average weekly wage of $320.00 and the average weekly wage he was able to earn at McDonalds. The issue of permanent partial disability is left open for later resolution.

3. "Disability is a technical term, meaning that because of a workplace injury the employee suffers from an "incapacity . . . to earn the wages which the employee was receiving at the time of the injury in the same or any other employment. N.C. Gen. Stat. 97-2(9). To support a conclusion of disability, the Commission must find facts indicating that plaintiff has met his initial burden of proving that: (1) he was incapable of earning pre-injury wages in the same employment, (2) he was incapable of earning pre-injury wages in any other employment, and (3) the incapacity to earn pre-injury wages in either the same or other employment was caused by plaintiffs injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595,290 S.E.2d 682, 683 (1982). Here, plaintiff has proven all three.

4. Once the employee has met his initial burden of proving "disability, the burden then shifts to the employer to produce evidence that suitable jobs are available for the employee and that the employee is capable of obtaining a job at pre-injury wages. Burwell v. Winn-DixieRaleigh, Inc., 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994). Here, defendants introduced no evidence to the above effect.

5. Plaintiff is entitled to payment of all medical expenses incurred, or to be incurred, as a result of his compensable injuries. N.C. Gen. Stat. 97-25.

Based upon the foregoing, my vote is to reverse the Opinion and Award of the Deputy Commissioner and order the defendants to pay to the plaintiff what he is surely owed.

S/_____________ THOMAS J. BOLCH COMMISSIONER

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.

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. Plaintiffs injury allegedly occurred on 25 July 1998.

3. The employer-employee relationship existed between defendant-employer and plaintiff-employee on 25 July 1998.

4. The employer was insured by Transcontinental Insurance Company on 25 July 1998.

In addition, the parties stipulated into evidence a packet of medical records.

The Pre-Trial Order dated 12 July 1999, which was submitted by the parties, is incorporated by reference.

2. In July 1998, defendant-employer was doing electrical construction work at North Carolina Weslyan College in Rocky Mount. Plaintiff was assigned to perform various tasks on that job. When the time came to run wire between the electrical panel in the building where the employees were working and the transformer on the light pole, the company decided not to send out the spool truck. Consequently, before going to the job site, plaintiff had to cut lengths of wire, curl them up, put them on a truck, and take them to the college. Plaintiff and a co-worker unloaded the wire and then used fishing line to pull the wire through the conduit between the light pole and the electrical panel.

3. The date that this occurred cannot be determined from the evidence, except that it happened sometime in the last two weeks of July. Plaintiff experienced some soreness in his back following the time that he pulled the wire through the conduit. He developed back pain the next morning, but the pain was not serious enough to warrant medical treatment, and he continued working his regular schedule.

4. On 25 July 1998, plaintiff and a co-worker installed approximately one hundred receptacles in the building. The receptacles were located sixteen inches from the floor, so plaintiff had to squat in order to install them. Plaintiff experienced increased back soreness by the end of that day. However, his symptoms were still not significant enough for him to seek medical treatment.

5. Plaintiff continued working the next week until 29 July 1998. He had continued to experience some soreness in his back. At some time on 29 July 1998, plaintiff suddenly developed severe back pain radiating down his leg. His activities prior to the onset of this severe pain were not disclosed by the evidence. Since he was having difficulty walking at that point, he reported the problem to his supervisor and went to the hospital for treatment.

6. Hospital personnel noted a date of injury as 29 July 1998. Plaintiff was treated for a back strain with medication and rest. He was subsequently referred to E. O. Marsigli, M.D., an orthopedic surgeon on 6 August 1998. Dr. Marsigli treated plaintiff conservatively with medication and physical therapy. However, plaintiffs symptoms persisted, so Dr. Marsigli ordered an MRI. The scan revealed evidence of ruptured discs at L3-4 and L4-5. After a discussion regarding surgical options, plaintiff elected to have a decompression of both interspaces without a fusion. Dr. Marsigli performed the operation on 11 September 1998. Plaintiff did not obtain a good result from the surgery and had only been released to return to work at light duty as of the date of hearing before the Deputy Commissioner.

7. Plaintiffs testimony before the Deputy Commissioner regarding the onset of his back soreness was somewhat confusing. Plaintiff described vague symptoms of back soreness which were not significant enough to warrant medical treatment until he experienced sudden severe back pain on 29 July 1998.

8. The hypothetical question regarding causation which was posed to Dr. Marsigli contained inaccuracies and incomplete facts. Contrary to the assertions in the hypothetical question, plaintiff did not lift and carry spools of wire and he installed about fifty receptacles, not one hundred and twenty. Furthermore, Dr. Marsigli was not advised that plaintiffs severe radiating pain developed suddenly many days after either of the work incidents described. Plaintiff did not explain either to Dr. Marsigli or to the Commission what he had been doing prior to the onset of his severe back pain. To the extent that Dr. Marsigli found plaintiffs back condition causally related to his job with defendant-employer, his opinion is not persuasive because he assumed facts not supported by the evidence regarding plaintiffs job duties and, more significantly, the onset of plaintiffs severe back pain.

9. The greater weight of the evidence fails to show that plaintiff sustained a back injury as the result of either a specific traumatic incident of the work assigned or an injury by accident arising out of and in the course of his employment with defendant-employer.

2. Plaintiff is not entitled to benefits under the Act. G.S. 97-2(6).

2. Each side shall pay its own costs.

S/______________ RENE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

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