Cannon v. Goodyear Tire Rubber Co.

The undersigned respectfully dissents from the Opinion and Award awarding plaintiff workers' compensation benefits as the greater weight of the evidence in this case clearly shows that plaintiff did not suffer an injury by accident or specific traumatic incident in the course and scope of his employment on April 6, 2001 or subsequent aggravation of any work injury and/or exacerbation of his preexisting kyphotic deformity as a result of his April 18, 2001 automobile accident.

On April 6, 2001, plaintiff reported to the plant nurse lower back pain and bilateral leg numbness following an incident at work where he experienced a sharp pain at or about his waist and "tingling numbness" in his legs and feet while changing a tire drum that had been hooked to a hoist. However, at first report, plaintiff did not indicate to the plant nurse that these complaints were the result of anything he had done at work. Plaintiff had, in fact, experienced these symptoms at least two weeks prior to his alleged workplace incident as evidenced by plaintiff's medical history and his own testimony.

During this initial visit with the plant nurse, plaintiff falsely reported no history of prior back pain even though he had visited his chiropractor, Dr. Jeffrey Baldwin, just seven days previously on March 30, 2001 and had been treating with him since 1998 for chronic back pain. Furthermore, plaintiff also failed to report to the plant nurse that he had experienced bilateral leg numbness for the past two months for which he had sought treatment from his regular physician, Dr. Christopher Moore, on March 22, 2001.

Even more revealing is plaintiff's admission that he did not seek additional treatment for his alleged injury after his employer referred April 7, 2001 visit with Primary Care Plus where he was diagnosed with low back strain and told to return to work the same day with light duty restrictions and given a follow-up appointment on April 13, 2001 which he did not attend. Plaintiff also failed to return to the plant nurse as instructed on April 9, 2001.

On April 12, 2001, plaintiff visited another physician, Dr. Meltzer, at Doctors Urgent Care for bilateral leg numbness and on April 17, 2001, plaintiff again visited his chiropractor, Dr. Baldwin. Plaintiff did not complain of any symptoms due to his alleged recent workplace injury to either physician. Dr. Baldwin also testified that plaintiff's presentation did not change from March 21, 2001 through April 17, 2001. Plaintiff also did not report a workplace injury when he treated with neurologist, Dr. Rangas Ramachandran or neurosurgeon, Dr. Robert Allen.

Plaintiff's credibility regarding the actual occurrence of his alleged work injury on April 6, 2001 is very weak given the fact that he did not seek any further medical treatment for his alleged workplace incident after April 7, 2001, complained of no lower back discomfort to his supervisor and missed no work, and failed to report an on the job injury to either of his four physicians after April 7, 2001. These factors combined with the fact that plaintiff's Form 18 Notice of Accident to Employer was not sent to the Industrial Commission until August 31, 2001, when plaintiff's attorney completed the form on his behalf, leads to the overwhelming conclusion that plaintiff suffered no disabling injury by accident or specific traumatic incident on April 6, 2001.

Plaintiff's automobile accident on April 18, 2001 is completely unrelated to his workers' compensation claim. Dr. Moore, plaintiff's family practitioner, referred plaintiff on March 22, 2001 for the appointment with neurologist Dr. Ramachandran that plaintiff was traveling to at the time of his automobile accident. Contrary to the majority's assertion, plaintiff's appointment with the neurologist was not made by anyone associated with defendant-employer in conjunction with his alleged work injury on April 6, 2001. As such, plaintiff is entitled to no workers' compensation benefits unless he suffered a work injury on April 6, 2001 that was later determined to be aggravated by the automobile accident. It is also important to note that plaintiff has filed a claim against the automobile insurance provider for the other driver involved in the April 18, 2001 automobile accident for injuries he sustained to his cervical spine and related medical treatment which is the exact treatment for which plaintiff is seeking recovery in this workers' compensation claim.

In summary, plaintiff's complaints all regarded a lower back injury on April 6, 2001. Not one of four doctors deposed in this case indicated that plaintiff's lower lumbar pain allegedly experienced on April 6, 2001 definitely caused or aggravated a pre-existing condition in plaintiff's cervical spine. Plaintiff's neurosurgeon, Dr. Allen, testified that plaintiff's long-standing kyphotic deformity, or angular spine, impinging upon plaintiff's spinal cord was his major problem and said, "Whether some incident pushed it over the edge, I think is less clear."

Based upon plaintiff's failure to provide credible evidence that he even suffered a work injury or aggravation of a pre-existing condition on April 6, 2001 and conflicting medical evidence that his subsequent cervical surgery was necessitated or exacerbated by his alleged work injury or automobile accident, I feel that the greater weight of the totality of the lay and medical evidence militates against any award of benefits to plaintiff.

This the 6th day of October 2003.

S/____________ BUCK LATTIMORE CHAIRMAN

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

3. Liberty Mutual Insurance Company provided defendant-employer with workers' compensation coverage at all relevant times herein.

4. Plaintiff's wages were sufficient to generate the maximum compensation rate for 2001 of $620.00 per week.

5. Plaintiff received sickness and accident benefits pursuant to a fully employer funded plan for 31 weeks in the amount of $300.74 per week for a total of $9,322.94, for the period from 23 April 2001 through 25 November 2001.

2. On 6 April 2001, plaintiff was working his regular job as a stage 1 tire builder, which involved building the carcass of the tire. Plaintiff was changing a drum which had been hooked to a hoist. When plaintiff pulled on the lever to activate the hoist and lift the drum, he experienced a sharp pain at or about his waist and a little lower and a "tingling numbness" in his legs and feet.

3. Plaintiff reported this incident to his supervisor, Harold Brock, who filled out an accident report and sent plaintiff to the dispensary. Plaintiff complained of low back pain, and was given two Tylenols that morning and two ibuprofen and heat that afternoon. On the following morning plaintiff again reported to the dispensary due to continuing back pain with numbness bilaterally from his knees down to both feet. He was given a heat cream for his back and two ibuprofen and sent to Primary Care Plus for treatment.

4. Plaintiff presented to Primary Care Plus on 7 April 2001. He gave a history of a back injury while at work on 6 April 2001. Plaintiff was diagnosed with a "low back/SI strain with no evidence of disc disease at present." Plaintiff was given a prescription for pain and released to return to light duty for the next three days, with restrictions of no lifting more that 20 pounds, from floor to waist or from waist to shoulder.

5. On 12 April 2001, plaintiff presented to Doctor's Urgent Care Center with complaints of numbness from the waist down. Plaintiff had scheduled an appointment with a neurologist on 18 April 2001, and was seeking an out-of-work note until that time.

6. On 18 April 2001, plaintiff was involved in an automobile accident while enroute to the neurologist. He sustained injuries to his back and neck. Plaintiff presented to the emergency room of Cumberland County Hospital and was diagnosed with thoracic, lumbar and cervical spine strain. He was treated with medication and discharged home. He was also written out of work for two days and given light duty for an additional five days.

7. On 23 April 2001, plaintiff presented to Dr. Rangas Ramachandran, a neurologist at Health South, with complaints of low back pain, neck pain, and aches and pains below the waist bilaterally. He was treated conservatively and instructed not to push, pull or lift weights over 15 pounds.

8. On 3 May 2001, plaintiff returned to Dr. Ramachandran with complaints of blurring vision and numbness in his legs. MRIs of plaintiff's lumbar and cervical spine and his brain were performed on 10 May 2001. The brain scan showed evidence of sinusitis and the lumbar scan revealed degenerative disc disease at T12-L1, L1-L2 and L2-L3, with loss of normal signal intensity to the intervertebral discs. The degenerative changes were most pronounced at L2-L3. The cervical scan showed a lack of disc space between C4-C5, which Dr. Ramachandran opined may be the result of a partial bony fusion between the C4 and C5 vertebra. At C5-C6 there was "advanced discogenic disease present with marked disc space narrowing and degenerative end plate bony osteophytosis." Dr. Ramachandran opined this may be the result of previous trauma.

9. On 22 June 2001, Dr. Ramachandran performed a nerve conduction velocity study which showed no abnormalities. Plaintiff continued to complain of numbness and tingling in his lower extremities up to his chest level. After examining the various test results, Dr. Ramachandran noted that he was not able to find any clinical reason for plaintiff's numbness and tingling.

10. On 18 May 2001, plaintiff was seen and treated by Dr. Robert Lee Allen, a neurosurgeon. Dr. Allen reviewed plaintiff's MRI scans and diagnosed plaintiff's condition as a kyphotic deformity. He indicated that this is a condition in which plaintiff had a "severe angulation of the spine with at least some partial fusion, an abnormal shape to some of the vertebral bodies the most common causes would be either post-traumatic or there would be some congenital causes." Dr. Allen opined that the condition had been developing for some years and could have been the result of a car accident plaintiff was involved in when he was 16 years old. However, Dr. Allen expressed some surprise at the degree of problems plaintiff was currently having, given that his chronic condition had been going on for so long without symptoms.

11. Dr. Allen opined that the accident at work could have been an exacerbating or aggravating factor in the onset of plaintiff's cervical myelopathy. He further opined that plaintiff's kyphotic deformity caused plaintiff to be more susceptible to injury after a specific traumatic incident. Dr. Allen opined that given the long-standing kyphotic deformity, any trauma such as the work-related injury or the car accident of 18 April 2001 could have been sufficient to create plaintiff's current symptoms. Dr. Allen was unable to apportion plaintiff's current condition between the automobile accident when plaintiff was 16, the work-related accident of 6 April 2001, and the auto accident on 18 April 2001.

12. Plaintiff's pre-existing condition of kyphotic deformity was materially aggravated and/or exacerbated by the work-related specific traumatic incident of 6 April 2001. Plaintiff's back condition was further materially aggravated and/or exacerbated by the automobile accident of 18 April 2001.

13. On 27 July 2001, Dr. Allen performed surgery removing the C4 and C5 verebral bodies and replacing them with a strut from C3 to C6. Plaintiff remained hospitalized for five days and was eventually released to return to work on 26 November 2001, and he returned to work at that time.

14. On the date of his deposition, 20 May 2002, Dr. Allen opined that plaintiff should be rated with a 20% permanent partial disability to his back and that he had reached maximum medical improvement.

15. Plaintiff's average weekly wage was sufficient to yield the maximum compensation rate in 2001 of $620.00 per week.

16. Plaintiff received sickness and accident benefits pursuant to a fully employer funded plan for 31 weeks in the amount of $300.74 per week for a total of $9,322.94, for the period from 23 April 2001 through 25 November 2001.

2. On 18 April 2001, plaintiff was in an automobile accident which materially aggravated and/or exacerbated his work-related injury and his pre-existing condition of kyphotic deformity. The aggravation of an injury is compensable if the primary injury arose out of and in the course of employment, and the subsequent aggravation of that injury is a direct and natural consequence that flows from the primary injury. Heatherly v.Montgomery Components, Inc., 71 N.C. App. 377, 379, 323 S.E.2d 29, 30 (1984). Unless the subsequent aggravation is the result of an independent intervening cause attributable to claimant's own intentional conduct, the subsequent aggravation of the primary injury is also compensable. Roperv. J.P. Stevens Co., 65 N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983). In the instant case, the subsequent aggravation of plaintiff's condition was not due to an intervening cause attributable to plaintiff's own intentional conduct. Rather, it occurred while plaintiff was on his way to receive treatment for his compensable work-related injury of 6 April 2001; therefore, the aggravation of plaintiff's condition was a direct and natural result of plaintiff's compensable injury. N.C. Gen. Stat. § 97-25.

3. As a result of the injuries plaintiff sustained by accident while in the course and scope of employment with defendant-employer, plaintiff is entitled to reasonable and necessary medical care for such conditions so long as such care is reasonably necessary to effect a cure, give relief or lessen disability. N.C. Gen. Stat. § 97-25.

4. Plaintiff's average weekly wage was sufficient to yield the maximum compensation rate for 2001 of $620.00 per week. Plaintiff is entitled to weekly compensation in the amount of $620.00 from 23 April 2001 through 25 November 2001, a period of 31 weeks, due to his inability to earn wages as a result of his injuries by accident while in the scope and course of employment with defendant-employer. N.C. Gen. Stat. § 97-29.

5. "Where a claimant suffers an injury that results in temporary total disability followed by a specific disability compensable under N.C. Gen. Stat. § 97-31, compensation for the specific disability is payable in addition to that awarded for temporary total disability." Watkins v.Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971); Loflin v. Loflin,13 N.C. App. 574, 186 S.E.2d 660 (1972). Accordingly, plaintiff is entitled to compensation in the weekly amount of $620.00 for 60 weeks for the 20% permanent partial disability rating to his back received 20 May 2002. N.C. Gen. Stat. § 97-31(23).

6. Defendants are entitled to a credit for sickness and accident benefits paid in the amount of $9,322.94. N.C. Gen. Stat. § 97-42.

2. Subject to attorney's fees hereinafter approved, defendants shall pay plaintiff permanent partial disability benefits at the rate of $620.00 per week for 60 weeks for the 20% permanent partial disability rating plaintiff has received to his back. These benefits have accrued and shall be paid in a lump sum.

3. Defendants shall receive a credit in the amount of $9,322.94 for sickness and accident benefits paid to plaintiff during the period of his disability.

4. Defendants shall pay for all medical expenses incurred or to be incurred by plaintiff as a result of the compensable injury when bills for same have been submitted to and approved by the Industrial Commission, for so long as such evaluations, treatments and examinations may reasonably be required to effect a cure, give relief and/or lessen plaintiff's period of disability.

5. A reasonable attorney's fee of 25% of the compensation awarded to plaintiff in Paragraphs 1 and 2 is approved for plaintiff's counsel. One fourth of the lump sums due to plaintiff shall be deducted and paid directly to his counsel.

6. Defendants shall pay the costs of this action.

This the ___ day of August, 2003.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/____________ BUCK LATTIMORE CHAIRMAN