Phillips v. Donn Herr Construction Co.

***********The Full Commission reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Morgan S. Chapman and the briefs before the Full Commission and found that the appealing party has shown good ground to reconsider the evidence in this matter. Having reconsidered the evidence of record, the Full Commission reverses the Deputy Commissioner's Opinion and Award.

***********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:

STIPULATIONS1. Employee is James Phillips.

2. Employer is Don Herr Construction Company.

3. The carrier on the risk is Interstate Insurance Company.

4. Defendant-employer regularly employs three or more employees and is bound by the North Carolina Workers' Compensation Act. An employer/employee relationship existed between the employer and employee on January 28, 1999.

5. On January 25, 1999, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer.

In addition, the parties stipulated into evidence the following:

1. Form 22 dated October 22, 1999.

2. Packet of documents, including medical reports and statements, labeled exhibits 1 thru 8 and indexed.

The pre-trial agreement dated March 3, 2000, which was submitted by the parties, is incorporated by reference.

***********Based upon all of the competent evidence in the record, the Full Commission makes the following:

FINDINGS OF FACT1. Plaintiff, who was forty years old at the time of the hearing before the Deputy Commissioner and who has a ninth grade education, began working for defendant in October 1998 as a carpenter and carpenter's helper. Defendant performed residential construction work.

2. On January 5, 1999, plaintiff was putting up ceiling joists in a house under construction. While standing on a platform two to three feet above the floor and reaching up to hammer a nail into a ceiling joist, he lost his balance and fell backwards, landing on his buttocks on some scrap pieces of lumber. He immediately experienced pain in his groin and buttock region, right inguinal pain, and he subsequently developed pain in his right leg. Mr. Herr was standing nearby when he fell and was aware of the fall. Plaintiff advised that he was in pain, so he was sent out to the porch to rest for a while. He subsequently resumed his work activities but was working noticeably slower than normal.

3. Plaintiff did not ask for medical treatment on January 25 because he thought the symptoms would resolve. However, on January 28, 1999, he went to the Outer Banks Medical Center with complaints of pain and swelling in his right testicle and pain in his buttock and right leg. Dr. Hoidal examined him and found that his right testicle was hard and swollen. Plaintiff denied direct groin trauma. Since there were several possible diagnoses, Dr. Hoidal referred him to Dr. Alvarez, a urologist, for evaluation. Dr. Alvarez ordered a scrotal ultrasound, which was normal, and then examined plaintiff on February 3, 1999. At that time the testicle and scrotal exam was normal and Dr. Alvarez did not recommend further treatment.

4. On February 6, 1999, plaintiff returned to Outer Banks Medical Center complaining of rectal bleeding. He was noted to have had the problem for five days. He was subsequently referred to Dr. Levine for evaluation regarding that problem. Dr. Levine performed an endoscopy which revealed no lesions in the colon but several internal hemorrhoids. Plaintiff was treated with suppositories and his condition improved.

5. Plaintiff returned to the Outer Banks Medical Center on March 26, March 28, April 2, and April 10, 1999 with complaints of sacral and coccyx pain. There was some question as to whether he had a contusion or an occult fracture of his coccyx, so he was referred to an orthopedic surgeon. If he ever saw an orthopedist, the notes were not placed into evidence. No further medical evidence was offered regarding any spinal injury. However, plaintiff apparently went to a Dr. Phillips in April and those medical records were not placed into evidence either. Dr. Phillips referred him to Dr. Carter, a general surgeon, who examined him on April 27, 1999. Dr. Carter found a small inguinal hernia on the right side and recommended surgery. On May 25, 1999, Dr. Carter performed surgery to repair the hernia found. There is no evidence of plaintiff ever having a hernia prior to the injury on January 25, 1999.

6. The Full Commission finds as fact that on January 25, 1999 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant. The fact that he fell from the platform and landed on some lumber constituted an unusual occurrence which interrupted his regular work routine. As a result of the accident, he injured his right testicle and developed buttock and right leg pain as well as right inguinal pain that was found to be a hernia. However, the internal hemorrhoids for which he was subsequently treated were not proven to have been a proximate result of the accident.

7. Dr. Carter found a small inguinal hernia upon examining plaintiff. When asked if a hernia can result from a traumatic incident, Dr. Carter testified, and the Full Commission finds as fact, "absolutely." Neither Dr. Hoidal nor Dr. Alvarez found a hernia when they examined plaintiff shortly after the accident. Dr. Carter testified, and the Full Commission finds as fact, that "when someone has a traumatic injury, he could very well have a very small tear that resulted in a small hernia that might not be more — he might have had pain and symptoms, but on physical exam, he might not have been able to find it for months." Dr. Carter testified, and the Full Commission finds as fact, that a small tear resulting in a hernia is difficult to find on physical examination in comparison to a hernia that results in a bulge that is usually easy to see.

8. The stipulated Form 22 shows February 11 as the last day plaintiff worked. As a result of the January 25, 1999 injury by accident, plaintiff was unable to work from February 12 through September 14, 1999. Dr. Carter testified, and the Full Commission finds as fact, that plaintiff was released to full duty work with no restrictions following his appointment with Dr. Carter on September 14, 2001.

9. Plaintiff was clearly disabled for a period of time due to his hernia operation and that disability was proven to have been the result of his injury at work in January. Dr. Carter testified, and the Full Commission finds as fact, that the fall that occurred on January 25, 1999 "absolutely" could have caused the hernia which he had to repair surgically. Although Dr. Hoidal found no palpable hernia on examination, he testified that the hernia could have resulted from the injury plaintiff sustained on January 25, 1999 and testified that he was not surprised by Dr. Carter finding the hernia based on Dr. Carter's note indicating the hernia was very small.

10. The Form 22 shows an average weekly wage of $355.81, yielding a compensation rate of $237.22.

***********Based upon the foregoing stipulations and findings of fact, the Full Commission makes the following:

CONCLUSIONS OF LAW1. On January 25, 1999, plaintiff sustained an injury by accident arising out of and in the course of his employment which resulted in an injury to his right testicle and the onset of buttock and right leg pain. N.C. Gen. Stat. § 97-2 (6)

2. Plaintiff has proved that the injury by accident on January 25, 1999 resulted in a compensable hernia. N.C. Gen. Stat. § 97-2(18).

3. Plaintiff is entitled to temporary total disability compensation from February 12, 1999 through September 14, 1999. N.C. Gen. Stat. §97-29.

4. Plaintiff is entitled to have defendants provide all medical compensation arising from this injury by accident. However, defendants are not liable for treatment rendered for his internal hemorrhoids or his pre-existing gastrointestinal problems. Otherwise, the treatment provided at the Outer Banks Medical Center and by Dr. Alvarez is compensable. N.C. Gen. Stat. § 97-2(19); N.C. Gen. Stat. § 97-25.

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

AWARD1. This claim is compensable insofar as plaintiff has claimed benefits for testicle, buttock and right leg symptoms, and inguinal hernia.

2. Plaintiff's claim for benefits for his internal hemorrhoids is denied.

3. Defendants shall pay plaintiff temporary total disability benefits for February 12, 1999 through September 14, 1999, subject to an attorney's fee approved below. These amounts have accrued and shall be paid in a lump sum, subject to the attorney's fee approved below.

4. Defendants shall pay for all medical treatment arising from this injury by accident, including the treatment by the Outer Banks Medical Center and Dr. Alvarez except as to treatment rendered for the unrelated conditions.

5. An attorney's fee in the amount of twenty-five percent of the compensation awarded plaintiff is hereby approved and shall be deducted from the aforesaid award and paid directly to plaintiff's counsel.

6. Defendants shall pay the costs.

This 10th day of December 2001.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING IN PART AND CONCURRING IN PART:

S/______________ RENE C. RIGGSBEE COMMISSIONER

This case illustrates the problems with hernia claims, which is why the North Carolina legislature, as well as those of most states, enacted a specific provision for hernia claims. See N.C.G.S. § 97-2(18). Because hernias have been recognized as a common injury that could occur at work or elsewhere, the legislature has enacted a four point test for determining whether a hernia is compensable. In particular, Section97-2(18) of the North Carolina Workers' Compensation Act requires the injured employee to prove"

1. That there was an injury resulting in hernia or rupture;

2. That the hernia or rupture appeared suddenly;

3. That the hernia or rupture immediately followed an accident; Provided, however, a hernia shall be compensable if it arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assignment; and,

4. That the hernia or rupture did not exist prior to the accident for which compensation is claimed.

N.C.G.S. § 97-2(18). Acknowledging the intent of the "hernia" provision of the Act, and with specific acknowledgement to the four requirements set forth above, I am compelled to agree with the Deputy Commissioner and dissent from the majority opinion in this case. The evidence, without doubt, fails to establish the four elements necessary for a compensable hernia claim.

The majority in Finding of Fact 7 is correct in noting that Dr. Hoidal and Dr. Alvarez did not find a hernia when they examined the plaintiff. The alleged date of injury is January 25, 1999, and the examinations with Dr. Hoidal and Dr. Alvarez were in January and February 1999. This evidence is contrary to the second and third elements of a hernia claim.See N.C.G.S. § 97-6(18)(b)(d).

Further, Dr. Levine performed an endoscopy on February 6, 1999. An endoscopy is a procedure where a physician places a scope from the rectum into the large intestine. There is no report that a hernia was observed in the pre-endoscopy examination or that the examination was difficult because a portion of the intestine had herniated. Thus the endoscopy study further questions whether the hernia, first discovered on April 27, 1999, occurred suddenly and immediately followed a fall three months prior.

Dr. Carter, the treating surgeon, testified that the history given by plaintiff for the January 25, 1999, incident was "not a normal way to develop a hernia." [Depo. p. 12] He associated the hernia with the January 25, 1999, fall because plaintiff stated that the pain started at that time. [Depo. p. 12] Dr. Carter explained that most hernias are from strenuous activity (lifting), but that the fall could have caused a hernia. [Depo. p. 13] The fact that Dr. Alvarez did not find a hernia was consistent with plaintiff developing the hernia sometime after the fall and after he was examined by Dr. Alvarez. [Depo. p. 17] Dr. Carter's testimony does not establish that the hernia appeared suddenly and immediately after the injury.

Similarly, Dr. Hoidal testified that he did not find the right inguinal hernia when he examined plaintiff on January 28, 1999, for right testicular pain. [Depo. p. 8] In addition, Dr. Alvarez did not note a hernia in his examinations. When confronted with Dr. Carter's office and operative notes, Dr. Hoidal explains what may be a critical fact in this case:

"We did not appreciate a hernia on the visit in which I was involved in the care of the patient. But in reading Dr. Carter's note, as an experienced general surgeon, to indicate that it was `a very small right inguinal hernia' [sic] on his physical exam followed by an operative report that indicates some weakness of the floor, but the floor did not have an obvious hernia in it, I guess that doesn't surprise me."

[Depo. p. 11] Thus, the medical record does not establish that plaintiff suddenly and immediately presented with a hernia or rupture. Even when Dr. Carter performed the surgery, plaintiff had a "weakness of the floor" without an "obvious hernia."

The evidence further does not support a finding that this condition resulted from the January 25, 1999, fall at work. The majority, in attempting to find that plaintiff was disabled from the January 25, 1999, incident ignores plaintiff's testimony at page 23 of the Transcript wherein plaintiff states that he returned to work after seeing Dr. Alvarez and worked for three days, until February 11, 1999, when plaintiff lifted a bundle of studs and felt a pull in his groin. This incident, occurring after the examinations by Dr. Hoidal and Dr. Alvarez and before the examination by Dr. Carter, based on the testimony of Dr. Carter appears to be the more likely origin of plaintiff's inguinal "floor" problem.

The majority has failed to evaluate this claim in the context of the specific hernia provisions of Section 97-2(18). The majority's finding that the hernia was small and the inference that it might have increased or otherwise was reasonably not observed by Dr. Hoidal and Dr. Alvarez is contrary to the direct requirements of Section 97-2(18) that the hernia "appear" suddenly. N.C.G.S. § 97-2(18)(b). The Act requires that the hernia be observable shortly after the alleged injury event. Therefore, I respectfully dissent from the finding that plaintiff has sustained a compensable hernia on January 25, 1999[Note 1], and the resulting findings that plaintiff sustained disability from February 12, 1999[Note 2] through September 14, 1999, and that defendants are responsible for the medical treatment for the hernia.

I concur with the majority opinion that plaintiff sustained a compensable injury to his scrotum, including an injury to his testicle, and that the rectal bleeding was not related to the January 25, 1999, event. Consistent with the Deputy Commissioner's decision, the evidence in this case is that the scrotal injury did not produce disability.

Signed this ___ day of January, 2002.

S/______________ RENE C. RIGGSBEE COMMISSIONER

NOTES1. The question whether plaintiff has a compensable injury from February 11, 1999, is not before us in this claim.

2. I further note that the majority opinion grants disability from February 12, 1999, which is the date that plaintiff left work. There is, however, no competent evidence that plaintiff was found to be disabled by any health care provider, or that he was taken off from work, prior to the surgery for his hernia which occurred on May 25, 1999.