Jones-Bailey v. Carlisle Plastics

I must respectfully dissent from the majority decision in this matter and would affirm the Opinion and Award of the Deputy Commissioner. The testimony of the lay witnesses, the medical documentation and testimony as well as the objective medical evidence do not support plaintiff's claim as credible that her back injury was the result of a compensable work-related injury by accident on June 28, 1999.

Plaintiff was seen by her family physician, Dr. Sirisena, the day following the alleged injury by accident. There is no mention in the records of plaintiff discussing back pain or an injury that occurred at work the previous day. Dr. Sirisena had been treating plaintiff for intermittent back pain since 1986.

On July 5, 1999, plaintiff sought emergency room treatment where she complained that she had been suffering from back pain for two days. Plaintiff made no mention of an at work incident and reported a different onset date of symptoms than described in her testimony. At the time of the visit, plaintiff had not worked since July 1, 1999 as the plant had been closed due to the holiday.

On July 12, 1999 and July 23, 1999 plaintiff returned to Dr. Sirisena complaining of back pain that she had been suffering from since July 4, 1999. There was no mention of an at-work incident at either visit.

Dr. Sirisena then referred plaintiff to a neurologist, Dr. Macedo, whom plaintiff saw July 30, 1999, August 12, 1999 and August 26, 1999. Plaintiff did not mention an at-work incident or incident occurring in June of 1999 at any of these visits. It is not until her fourth visit on October 14, 1999 that plaintiff mentions to Dr. Macedo the at-work incident in June of 1999.

The long delay in reporting that her symptoms were the result of an at-work incident calls into question the credibility of plaintiff's testimony. Plaintiff received treatment on eight visits from three separate doctors over a period of four months and failed to report that her pain stemmed from a lifting incident at work. The dates of the onset of pain in her medical records contradict plaintiff's testimony.

Plaintiff testified that she reported the incident to her supervisor, Michael Dixon, immediately after the incident occurred on June 28, 1999. Plaintiff had suffered two compensable injuries in the past and was aware of the process that required the supervisor to complete an accident report with the injured employee and file it with the shift manager. Dixon testified that plaintiff never mentioned the June 28, 1999 incident to him. When plaintiff had been injured at work in the past, he had immediately completed the accident report and filed it with the shift manager. No form was ever completed for an alleged incident involving plaintiff in June, 1999.

It is clear from the objective medical testimony, reports and the testimony that plaintiff did not suffer an at work injury by accident in June of 1999. Therefore, the Opinion and Award of the Deputy Commissioner should be affirmed and plaintiff's claim should be denied.

S/_______________ DIANNE C. SELLERS COMMISSIONER

2. The plaintiff was an employee of the defendant, Carlisle Plastics, Inc., and Sedgwick CMS was the third-party administrator for the employer.

3. The plaintiff alleges that she sustained an at-work back injury on June 28, 1999.

4. The plaintiff has not returned to work for Carlisle Plastics, Inc., or any other employer.

2. On June 28, 1999, plaintiff was working a twelve hour shift and had to lift a heavy box. When she lifted the box, she felt a pull in her back. She reported the incident to Mike Dixon, her section leader, and he laughed, saying, "You're falling apart." Mr. Dixon was the only person. to whom she was supposed to report her back injury because he was her section leader. An employee was supposed to report her injury to her immediate supervisor (her section leader). The section leader is responsible for reporting the injury to the supervisor (shift manager). Although Dixon testified 2 years after the incident that he did not recall plaintiff telling him, he did not deny that she did. His testimony that if plaintiff had told him about the incident he would have filled out an incident report is found not credible. David Michael Bailey's testimony concerning plaintiff's 1995 back claim is not relevant except to show that when his lower-level supervisor filled out a report concerning the 1995 claim, the report came to him. Mr. Bailey was a shift manager.

3. After lifting the box and injuring her back, plaintiff asked Mike Dixon to give her some help with her work but he did not. So, she returned to her job as Mr. Dixon had told her to do. Plaintiff continued to work, although she was in pain. She did not stay out of work because she was afraid of losing her job. When she got home on June 28, 1999, her back was hurting so badly that her husband had to put ice packs on it. Plaintiff worked on June 29 and 30, 1999. Evidence of a medical report of Dr. Omatta M. Sirisena, dated the day after the specific traumatic incident, does not impeach plaintiff's credibility. That report merely reflects the results of an echo Doppler study ordered earlier and contains no information from plaintiff. Evidence of a back injury in 1993 for which the 1995 claim was filed also does not impeach plaintiff's testimony.

4. Following her injury on June 28, 1999, plaintiff continued working as scheduled until July 5, 1999, when she first sought medical treatment for her back injury at an emergency room. She went to the emergency room because she reported her injury to defendant employer as she was supposed to do and no one did anything. When she went to the emergency room, she reported that she had injured her back at work. Thereafter, she sought treatment from her family physician, Dr. Sirisena.

5. Dr. Sirisena examined plaintiff on July 8, 1999. At that time, plaintiff was experiencing low back pain, with pain radiating into her left leg. During a follow-up examination on July 12, 1999, Dr. Sirisena excused plaintiff from work and ordered an MRI.

6. Based upon the results of the MRI, which revealed a herniated disc at L3-L4, Dr. Sirisena referred plaintiff to Dr. Macedo. Dr. Macedo treated plaintiff conservatively. However, the conservative treatment failed to improve plaintiff's symptoms and she eventually came under the care of Dr. David Miller.

7. Ultimately, Dr. Miller performed lumbar fusion surgery at L3-L4. As of October 16, 2001, plaintiff continued to have neurological symptoms in her left leg and occasional symptoms in her right leg. She walked using a cane. As of that date, plaintiff was incapable of earning wages in any employment.

8. Plaintiffs herniated disc at L3-L4 was caused by the lifting incident on June 28, 1999. As a result of that incident, plaintiff was rendered incapable of earning wages from any employer from July 5, 1999, through the date of the hearing before the deputy commissioner.

2. As a result of her injury on June 28, 1999, plaintiff is entitled to payment of total disability compensation at the rate of 66 2/3% of her average weekly wage as of the date of her injury. Such compensation shall be paid from July 5, 1999, and continuing thereafter until plaintiff returns to work or until Order of the Industrial Commission allowing defendants to cease payments of total disability compensation. N.C. Gen. Stat. § 97-29.

3. Plaintiff is entitled to payment of all medical expenses incurred for treatment of her June 28, 1999, injury, including expenses incurred for treatment ordered or provided by Drs. Sirisena, Macedo and Miller. N.C. Gen. Stat. § 97-25.

2. Defendants shall pay all medical expenses incurred by plaintiff as a result of her June 28, 1999, injury, including expenses incurred for treatment provided or ordered by Drs. Sirisena, Macedo and Miller.

3. A reasonable attorney's fee of 25% of the compensation due plaintiff in paragraph I is approved for plaintiffs counsel and shall be paid as follows: 25% of the lump sum due plaintiff shall be deducted from that amount and be paid directly to plaintiff's attorney. Thereafter, defendants shall pay plaintiff's counsel, as an attorney's fee, every fourth payment that shall become due to plaintiff.

4. Defendants shall pay the costs.

This 26th day of September 2002.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER