Nettles v. Wake Medical Center

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

3. At all times relevant, the defendant was a duly qualified self-insured with Key Risk Management Services as the servicing agent.

4. The parties stipulated that the date of plaintiff's occupational injury was October 29, 1999.

5. The parties stipulated that the plaintiff's average weekly wage was $293.58, yielding a compensation rate of $195.72.

6. The parties stipulated to the plaintiff's medical records from Concentra Medical Center, Carolina Back Institute, Blue Ridge Family Practice, Carolina Rehabilitation Services, Cedar Healthcare, Dhillon Orthopaedics, Raleigh Associated Medical Specialists, Wake Medical Center, and Joel D. Krakauer, M.D.

7. The issues presented are:

a) Whether the plaintiff contracted an occupational disease arising out of the course of her employment with the defendant-employer?

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

2. The plaintiff-employee began working for the defendant-employer in February 1999 as a Dietary Aide. Her job duties included repetitive lifting of food trays and plates, scooping foods with large ladles and spoons, gripping food items with tongs, pushing heavy food carts, mopping and sweeping.

3. During late summer and early fall of 1999, the plaintiff-employee began to develop pain and numbness in her left hand, wrist and arm. The plaintiff-employee reported her problem to her supervisor in October 1999. The plaintiff-employee sought medical treatment with Dr. James Fulghum, orthopaedist, in December 1999 who took the plaintiff-employee off of her full duties with the defendant-employer and restricted the plaintiff-employee's work.

4. Upon plaintiff-employee's attempted return to work, the defendant-employer placed the plaintiff-employee in a job specially tailored to fit plaintiff-employee's restriction. The plaintiff-employee continued to experience problems performing even this modified job. The defendant-employer reprimanded the plaintiff-employee for not working right up to the limits of her restrictions.

5. Dr. Fulghum took the plaintiff-employee out of work on June 9, 2000 pending left carpel tunnel release surgery. The defendant-employer terminated the plaintiff-employee in late June 2000 while she was out of work per Dr. Fulghum's restrictions after surgery. The plaintiff-employee has been out of work since her termination.

6. The plaintiff-employee's condition initially improved after surgery but then worsened. The defendant-employer referred the plaintiff-employee to Dr. Henry Adomonis, a family practitioner, who diagnosed the plaintiff-employee with carpal tunnel syndrome, but did not relate the plaintiff-employee's diagnosis to her work for the defendant-employer.

7. The plaintiff-employee also presented to Dr. Paul Schricker, orthopaedic surgeon, complaining of hand problems. Dr. Schricker diagnosed recurrent symptoms of carpal tunnel release in the left and possibly an incomplete release. Dr. Schricker performed a repeat carpal tunnel release on February 22, 2001.

8. Dr. Schricker opined that the plaintiff-employee's job duties with the defendant-employer placed her at an increased risk for developing carpal tunnel syndrome as compared to members of the general public and that her job duties with the defendant-employer were a contributing factor in the development of her carpal tunnel syndrome. Furthermore, Dr. Schricker opined to a reasonable degree of medical certainty that the plaintiff-employee's job duties with the defendant-employer aggravated, accelerated or exacerbated any pre-existing non-disability carpal tunnel syndrome experienced by the plaintiff-employee.

9. Dr. Fulghum opined that the plaintiff-employee's job duties with the defendant-employer placed her at an increased risk for developing carpal tunnel syndrome and that her duties were a substantial contributing factor in the development of her symptoms.

10. The undersigned gives greater weight to the testimony of Drs. Schricker and Fulghum, both orthopaedic surgeons, over Dr. Adomonis, a family practitioner, who provided no treatment plan for the plaintiff-employee and no extended medical care for the plaintiff-employee during which he could discern or monitor the plaintiff-employee's true course of treatment or improvement.

11. At the hearing, the plaintiff-employee testified that she continues to experience pain, numbness and weakness in her left wrist and arm and has problems in her right arm from overuse. The plaintiff-employee further testified that she has sought employment at malls, grocery stores and on the Internet.

12. The competent evidence in the record establishes that the plaintiff-employee contracted bilateral carpal tunnel syndrome in her arms, hands and wrists arising out of the course of her employment with the defendant-employer.

2. The plaintiff contracted bilateral carpal tunnel syndrome, which was due to causes and conditions characteristic of and peculiar to her particular employment with the defendant-employer and which is not an ordinary disease of life to which the general public is equally exposed. N.C. GEN. STAT. § 97-53 (13).

3. As a result of the plaintiff's bilateral carpal tunnel syndrome, the plaintiff is entitled to compensation for temporary total disability benefits at a rate of $195.72 per week beginning June 9, 2000 and continuing until the plaintiff returns to work or until further Order of the Industrial Commission. N.C. GEN. STAT. § 97-29; N.C. GEN. STAT. § 97-2(9).

4. The plaintiff is entitled to have the defendant-employer pay for the plaintiff's medical expenses incurred or to be incurred regarding her bilateral carpal tunnel syndrome including vocational rehabilitation, as a result of the plaintiff's compensable injury by accident, 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. N.C. GEN. STAT. § 97-25; N.C. GEN. STAT. § 97-2(19).

5. The defendant-employer is entitled to a credit for unemployment compensation benefits received by the plaintiff. N.C. GEN. STAT. §97-42.1.

2. Defendants shall pay for all of the plaintiff's medical expenses incurred or to be incurred regarding her bilateral carpal tunnel syndrome, including vocational rehabilitation as a result of plaintiff's compensable injury by accident, 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. As the plaintiff has not yet reached the end of the healing period for her hands, this Opinion and Award does not address this issue. However, in the event that the parties should be unable to agree on the amount of compensation for permanent partial impairment, if any, to her hands, which may be due, either party may request a hearing from the Industrial Commission to resolve this issue.

4 A reasonable attorney's fee of 25% of the compensation awarded to plaintiff under Paragraphs 1 and 2 of this Award is hereby approved to be 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 are entitled to a credit for unemployment compensation benefits received by the plaintiff.

6. The defendant shall pay the costs, including expert witness fees of $200.00 to Dr. Fulghum, $489.00 to Dr. Schricker and $220.00 to Dr. Adomonis.

This the ___ day of April 2002.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/______________ RENE C. RIGGSBEE COMMISSIONER

In my opinion, plaintiff has failed to prove that her right handed carpal tunnel syndrome is an occupational disease under the Act. Even if she has shown that her condition constituted an occupational disease, she has failed to show any disability after recovering from the successful second surgery by Dr. Schricker.

I agree with the majority in affording greater weight to Dr. Schricker's testimony than to that of Dr. Adomonis. I do not agree, however, that Dr. Fulghum and Dr. Schricker are consistent in supporting plaintiff's occupational disease claim. Dr. Schricker is the most qualified expert in this case and his opinion should be afforded great weight.

It is true that Dr. Fulghum provides affirmative answers to plaintiff's counsel's increased risk and causation questions. If that is all that is considered in deciding this case, if the majority wishes to rely on Dr. Fulghum's testimony alone, then there is evidence to support the conclusion that plaintiff's carpel tunnel syndrome qualifies as a occupational disease.

I do not, however, believe that we should rely upon Dr. Fulghum's testimony, particularly in light of Dr. Schricker's testimony. First, Dr. Fulghum had already "gone on the record," i.e., had stated early on in his medical records, that he believed plaintiff's injury was work-related, and this statement was based solely on information from plaintiff that pushing and pulling heavy food carts caused hand pain. He admitted that he had no independent knowledge of her job duties. It is not surprising, therefore, that a loaded description of plaintiff's job duties, as provided in plaintiff's counsel's hypothetical question¹ elicited an affirmative response from Dr. Fulghum: he had already drawn that conclusion based on little information. In addition, his file contained a "repetitive motion questionnaire,"² which he had signed and which, coincidentally, included all the legal language needed to prove an occupational disease. Affirming those same responses, after being asked a hypothetical question containing additional information, might be intended to lend more credence to Dr. Fulghum's opinion, but particularly in light of Dr. Schricker's stronger testimony, I do not find Dr. Fulghum's bald opinions to be persuasive.

Dr. Schricker is an orthopaedic surgeon with Dhillon Orthopaedic and Sports Medicine Center, P.A., a practice whose physicians have exceptional knowledge regarding employment-related injuries. (Dr. Fulghum is a neurosurgeon with Carolina Back Institute.) Dr. Schricker is board certified in orthopaedic surgery and has specific training and qualification in hand surgery. He successfully treated plaintiff's carpal tunnel syndrome. Dr. Schricker is the more knowledgeable expert on causation and increased risk with respect to carpal tunnel syndrome. A reading of his deposition demonstrates his knowledge as well as a thoughtful, thorough analysis of the issues to be decided in this case.

When plaintiff's counsel asked Dr. Schricker the hypothetical question as posed to Dr. Fulghum, Dr. Schricker provided opinions which do not support the conclusion that plaintiff sustained an occupational disease:

"Q: [plaintiff's counsel]: . . . [B]ased on these facts, do you have an opinion satisfactory to yourself and to a reasonable degree of medical certainly regarding whether, more likely than not, Ms. Nettles' job duties as a dietary aide placed her at an increased risk for developing the symptoms you've diagnosed as compared to members of the public general who are not so involved in such work?

A: It seems reasonable that that is a factor. . . . It seems reasonable that this is one of the factors that could be . . . have caused her carpal tunnel syndrome.

. . .

Q: . . . And would that contribution be significant?

A: It's unclear.

Q: Would it be more than insignificant?

A: Yes."

(Schriker depo. pp 16-17.) The foregoing testimony does not suffice to prove that plaintiff's employment as a dietary aide significantly contributed to the development of her right-sided carpal tunnel syndromeand does not prove that her employment placed her at an increased riskof developing carpal tunnel syndrome. Further, I find no significance to Dr. Schricker's testimony acknowledging that, according to the "repetitive motion questionnaire" in Dr. Fulghum's file, Dr. Fulghum has a different opinion. Dr. Schricker appropriately declined to disparage another physician's opinion.

Dr. Schricker, the most qualified expert to testify in this case, acknowledges that plaintiff's job had a role in the development of her condition; such, however, does not suffice to prove an "occupational disease" under the Act.

To prove an occupational disease, not specifically enumerated under the Act, an employee must show that the disease is "due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment." G.S. § 97-53(13); Rutledge v. Tultex Corp., 308 N.C. 85, (1983).

Rutledge provides guidance to the factors to be considered in deciding whether the disease in question meets the statutory test. To show that the employment significantly contributed to the development of the disease, the Commission may consider, in additional to expert testimony, "(1) the extent of the worker's exposure . . . during employment; (2) the extent of other non-work-related, but contributing, exposures and components; and (3) the manner in which the disease developed with reference to the claimant's work history." 308 N.C. at 105, citingBooker v. Duke Medical Center, 297 N.C. 458, 476, 256 S.E.2d 189, 200 (1979).

In explaining the meaning of significant exposure, the Rutledge court stated:

"The factual inquiry, in other words, should be whether the occupational exposure was such a significant factor in the disease's development that without it the disease would not have developed to such an extent that it caused the physical disability which resulted in claimant's incapacity for work."

308 N.C. at 102. Thus, aggravation of a preexisting disposition, without more, is insufficient.

The question, therefore, is not whether plaintiff's job aggravated or contributed to the development of her left-handed carpal tunnel syndrome. The question is whether such evidence creates an occupational disease.

The evidence in this case is that plaintiff had had left carpal tunnel syndrome years prior to her employment with defendant, which indicates her propensity for developing the disease. Dr. Schricker acknowledges the interrelatedness of the two. Plaintiff also had borderline diabetes and was obese, additional contributing factors. The evidence, further, is plaintiff did push heavy carts during part of her work day for a few months when she first became employed with defendant in February 1999. Pushing the carts was the only complaint plaintiff made to Dr. Fulghum in late 1999. By July 1999, however, the dietary aides were no longer pushing the heavy carts but used lighter carts. In addition, her job duties varied. She also had duties on the food line. These duties rotated. While on a particular food line, several trays might go by without requiring food from the particular station she was attending. There is no evidence that scooping out food on the food line was strenuous. No other dietary aide developed carpal tunnel syndrome, which is at least some evidence that the condition cannot in and of itself be identified with the vocation. Finally, plaintiff was out of work, for an unrelated medical condition, four to six weeks (September 28, 1999 — October 26, 1999) prior to seeking medical attention for hand pain and numbness on October 26, 1999.

There is no expert testimony that, absent the occupational exposure, plaintiff's carpal tunnel syndrome would not have developed to the extent that it did, and the foregoing facts indicate to the contrary.

Finally, there is no evidence that plaintiff was totally disabled, at least after her second, successful carpal tunnel surgery. She has looked only for non-dietary aid positions, which eliminates available jobs for which she is qualified by history. Her decision to seek some other type of employment is a personal decision not related to her medical condition. In fact, before she had the successful surgery with Dr. Schricker, plaintiff had already advised defendant that she was going to quit her job. Dr. Schricker did not state that she could no longer do dietary aide work; in fact, his opinion was that she had no rating, would not need pain medication in the future, and was not at increased risk for developing carpal tunnel syndrome in the future. Dr. Fulghum's previous restrictions, upon which plaintiff relies, are no longer applicable and should carry no weight. At his deposition, Dr. Fulghum had no opinion as to whether plaintiff could return to work as a dietary aide. Further, although plaintiff testified at the hearing before the deputy commissioner (April 2, 2001) that Dr. Schricker had not released her to return to work, Dr. Schricker testified on May 29, 2001, that plaintiff's carpal tunnel problems had resolved and that she had no permanent impairment. Any continuing problems related to her out of work status had to do with non-related medical conditions or personal and family problems.

In conclusion, plaintiff had left-handed carpal tunnel syndrome that was related to her job as a dietary aide. I do not view this case as turning on plaintiff's credibility. Her job probably aggravated her preexisting propensity for the condition and was one of the causes. Such evidence, however, does not prove an occupational disease under the Act. Workers' compensation is not general health insurance and covers only those injuries that meet the definition of injury by accident or occupational disease. Weaver v. Swedish Imports Maintenance, 319 N.C. 243,354 S.E.2d 477 (1987). In addition, there is no evidence of continuing total disability in this case.

For the foregoing reasons, I respectfully dissent.

S/______________ RENE C. RIGGSBEE COMMISSIONER

¹ Regarding the hypothetical question, the question uses the term "repetitive," and describes constant gripping of tongs, spoons, and ladles, gripping trays and plates, a broom or mop, and washing dishes (actually, using a dishwasher), pushing and pulling carts, and continuous flexion and extension of the wrists. There is no evidence, however, that the gripping required in plaintiff's job is any more stressful on the wrist or more constant than most other jobs which require using the hands. For example, serving food with a spoon or ladle involves "gripping," but not a gripping that is any other stressful than many jobs; lifting food trays involves gripping the trays with the hands, but the trays were not heavy and did not involve a constant gripping motion more than is ordinarily involved in lifting items, such as a book. Furthermore, the job did not involve the same motion and activity sustained over a period of time, but involved varied duties and breaks.

² Dr. Fulghum filled out a "repetitive motion" questionnaire without any more information than that plaintiff was a dietary aid and pushed heavy carts. He had no facts that her job was "repetitive" in the ergonomic sense of the word; she simply used her hands, as is common with many employments. Plaintiff's job is no more repetitive than any cafeteria worker position requiring the handling of food and trays. Pushing the tray carts at times during the day is not repetitive or constant. Plaintiff is not a production worker in a factory; she does not use vibrating tools and equipment; she does not constantly hold a gripping, pinching, or flexion/extension position with her hands. She simply uses her hands in her job, as is common with many jobs. A hypothetical question which provides the conclusion that the job involves repetitive motion begs an affirmative answer.