Heaffner v. Firestone Fibers Textiles

The Full Commission finds as fact and concludes as matters of law the following which were entered into by the parties at the deputy commissioner hearing as:

2. The parties submitted the entire evidentiary record in I.C. No. 017637, which shall constitute the official evidentiary record in this proceeding.

3. The date of plaintiff's alleged injury by accident is August 17, 1999.

4. At the time of plaintiff's alleged injury, the parties were bound by and subject to the provisions of the North Carolina Workers' Compensation Act. The employer was a duly qualified self-insurer under the provisions of the Act, and Gallagher Bassett Services, Inc. was the servicing agent.

5. Plaintiff's average weekly wage at the time of his alleged injury was $503.37, which yields a compensation rate of $335.60.

6. As set forth in the Pretrial Agreement, the issues for determination are:

(a) Whether plaintiff sustained a compensable injury by accident arising out of and in the course of his employment with the employer on August 17, 1999?

(b) If so, what benefits is plaintiff entitled to recover from defendants?

2. Plaintiff began employment with defendant employer on August 5, 1996, as a team member, which required him to perform a variety of tasks. The employer manufactures tire cord. On August 17, 1999, plaintiff was employed as a direct cable operator.

3. Plaintiff filed a claim in I.C. No. 017637, for an alleged injury by accident on April 25, 1999, involving his neck. In an Opinion and Award filed on June 12, 2002, the Full Commission denied plaintiff's claim for an injury by accident alleged to have occurred on April 25, 1999. The Full Commission Opinion and Award in I.C. No. 017637 is fully incorporated herein.

4. In July 1999, plaintiff had spinal surgery on his neck by Dr. Henegar. Plaintiff was released to return to work on August 5, 1999. Dr. Henegar took plaintiff out of work on August 19, 1999, for three weeks, then, on September 9, 1999, scheduled a second surgery to address the medial portion of the disk which he could not address in the first, posterior surgery.

5. Plaintiff did not report an alleged injury to his employer on or about August 17, 1999. Defendant did not learn about plaintiff's alleged work-related injury until after he filed a Form 18 on January 12, 2001.

6. Having failed to prove an injury by accident on April 25, 1999, plaintiff now alleges that, on or about August 17, 1999, when he returned to work following surgery, he sustained an injury by accident which materially aggravated his preexisting non-work-related injury (i.e., that he aggravated the neck problem which was the subject of the April 25, 1991, claim).

7. As was the case with his April 25, 1991, claim, plaintiff did not give Dr. Henegar a history of a specific incident at work or a specific injury on or about August 17, 1999. Rather, plaintiff told Dr. Henegar that his neck pain recurred upon his return to work. Although Dr. Henegar testified that plaintiff's work activities aggravated his postoperative symptoms (the symptoms resulting from the alleged April 25 injury), that testimony fails to prove by the greater weight either that plaintiff sustained an injury as a result of a specific traumatic incident on or about August 17, 1999, or that any subsequent surgery was necessitated by an incident or injury on or about August 17, 1999. Rather, the Commission finds that plaintiff's symptoms gradually worsened following his first surgery and return to work. Subsequent surgeries were performed to address portions of plaintiff's bulging disc which could not be addressed in the initial, posterior surgery. Furthermore, on accident and sickness forms submitted to Dr. Henegar, plaintiff continued to deny that his neck problems were work-related, consistent with the forms submitted when plaintiff originally presented to Dr. Henegar.

2. Plaintiff is not entitled to benefits under the Act.

The parties shall pay their respective costs.

S/______________ RENE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

It is well settled that the aggravation or acceleration of a preexisting medical condition is compensable under the Workers' Compensation Act. See Anderson v. Northwestern Motor Co., 64 S.E.2d 265 (N.C. 1951). Moreover, an employer accepts an employee "as is," and is responsible for the entire disability resulting from the aggravation or acceleration of the employee's medical condition. Anderson v. A.M. SmyreMfg. Co., 283 S.E.2d 433 (N.C.App. 1954). No apportionment is made between the preexisting condition and the contribution of the new injury. Id.

In this case before the Commission, plaintiff sustained an injury to his neck on or about April 25, 1999, which was found not to be related to his employment with defendant in an Opinion and Award issued by this Commission on June 12, 2002 (I.C. No. 017637). Dr. Martin Henegar, a neurosurgeon and plaintiffs physician, performed a posterior discectomy at C5-6 on July 16, 1999, and took plaintiff out of work until August 5, 1999. (Henegar Dep. p. 5-6). On a follow-up visit with plaintiff on August 3, 1999, Dr. Henegar noted that plaintiff was "recovering well" from surgery and was cleared to return to work. (Henegar Dep. p. 10). However, the work given to plaintiff by defendant upon his return to work caused him to suffer additional neck pain as well as numbness and tingling down his arm. (Tr. p. 24).

Although the majority stated that plaintiff did not report an alleged injury to his employer on or about August 17, 1999, the record shows that plaintiff, within the first two days of his return to work, did indeed report his pain to management while accompanied by his union representative, Eura Crocker. (Tr. p. 23-25). Mr. Crocker corroborated plaintiffs account and testified to the same. (Tr. p. 108-109). Plaintiff returned to Dr. Henegar on August 19, 1999. According to Dr. Henegar, plaintiff "reported that he had been doing well, but, after going back to work, he developed a recurrence of his shoulder and neck pain." (Henegar Dep. at 10). Dr. Henegar testified that plaintiff's symptoms were consistent with muscle inflammation or irritation. Additionally, Dr. Henegar opined that: "Based on my records it did appear that the activity [plaintiff] was performing at work did, in fact, cause an exacerbation of his symptoms and thereby . . . worsened his postoperative condition." (Henegar Dep. p. 33).

Consequently, the majority has erred in failing to compensate plaintiff for the work-related aggravation of plaintiffs preexisting medical condition as permitted under the Workers' Compensation Act. Defendant, having knowledge of plaintiffs preexisting neck condition. accepted plaintiff "as is" by offering him return employment after his neck surgery. Thus, defendant should pay compensation to plaintiff for any resulting work-related aggravation to plaintiffs neck. For these reasons, I must respectfully dissent from the majority's Opinion and Award.

S/_____________ THOMAS J. BOLCH COMMISSIONER