Yeary v. Ermc

2. The employer-employee relationship existed between plaintiff and defendant-employer.

3. Defendant-employer employed three or more employees.

4. Defendant-employer is insured by Broadspire Services.

5. Plaintiff's average weekly wage is $217.01, yielding a compensation rate of $144.68.

6. Plaintiff's medical records, as stipulated at the hearing, are made part of the record herein.

2. Prior to the start of her employment with defendant-employer in October, 2001, plaintiff worked as a hotel housekeeper, a waitress, and as a temporary laborer.

3. At the hearing, plaintiff testified that she worked for defendant-employer as a custodian. The areas for which she was responsible included common areas in the Asheville Mall, such as the food court and some bathrooms. Plaintiff testified that on the evening of Saturday, March 27, 2004, she was lifting a trash bag estimated to weigh between 50 and 75 pounds overhead to place it in a large trash container when her back popped. She felt immediate pain, which she compared to a "throbbing tooth ache." She further testified that she told a co-worker that she was in pain and that she telephoned her husband to report the incident. She stated that she worked the following day, although in considerable pain. She indicated that she reported the incident to Mr. Shelton, a supervisor, on March 29, 2004. Plaintiff reported being in substantial pain from March 27, 2004 through the date of hearing. She last worked for defendant-employer on or about April 7, 2004. Defendant-employer was unable to accommodate her restrictions when she was released to work light duty in June, 2004. Lastly, plaintiff testified that she worked three or four days folding laundry at Days Inn in or around August, 2004, but had to quit that job because of her back pain and has otherwise not worked since April 7, 2004.

4. Mr. Yeary, plaintiff's husband, testified that plaintiff called him on the evening of Sunday, March 28, 2004 to report an injury at work.

5. Mr. Shelton testified that on March 30, 2004, plaintiff reported to him that she had begun to experience back pain on March 29, 2004.

6. Medical records reflect that plaintiff had received treatment for back strain in January,1998, and February, 2001, and that she was examined for back pain on March 19, 2004. Plaintiff did not specifically recall these occurrences.

7. On March 30, 2004, plaintiff was seen for low back pain radiating down to her buttocks and up to her neck by Dr. Adcock, a second year resident at Mountain Area Health Education Center. Dr. Adcock recorded that Plaintiff had suffered back pain for three months. The notes also indicated that no precipitating trauma was mentioned, but the notes also included a reference that plaintiff had to do heavy lifting at work. Dr. Adcock diagnosed possible skeletal misalignment.

8. On April 19, 2004, plaintiff presented with back pain, as well as head ache and congestion, to Dr. Hicks. Dr. Hicks indicated that plaintiff had not attributed her back pain to a specific cause. Dr. Hicks diagnosed muscle strain.

9. On April 29, 2004, plaintiff saw Dr. Gillis for low back pain. Dr. Gillis testified that plaintiff stated she had started to experience back pain after carrying trash but had not mentioned a specific lifting incident. Dr. Gillis diagnosed muscle strain or sprain. She testified that plaintiff's condition was consistent with a lifting incident and with many other potential causes as well.

10. On May 4, 2004, Dr. Goebel, a board-certified orthopedic surgeon, saw plaintiff for back pain and neck pain. Dr. Goebel testified plaintiff had told him that she began experiencing back pain the day after "pulling trash" at work. He said plaintiff reported her pain as a ten on a scale of one to ten, but Dr. Goebel's impression was that plaintiff moved without apparent discomfort. Dr. Goebel noted that plaintiff had one leg approximately one-half inch longer than the other. He diagnosed lumbar strain. However, he told plaintiff that he could not necessarily relate her back condition to her work.

11. Plaintiff saw Dr. Hayes for back pain on June 15, 2004. Dr. Hayes recalled that plaintiff indicated that she was injured at work but otherwise had provided no specific mechanism for the injury. Dr. Hayes released plaintiff to return to work with a ten-pound lifting restriction. Over the next four months, plaintiff's back condition remained the same. However, on October 25, 2004, plaintiff reported that she had been involved in a motor vehicle accident and that her back was worse. Lastly, Dr. Hayes testified to a reasonable degree of medical certainty that one could sustain the kind of injury plaintiff had suffered from lifting a heavy object or in many other ways.

12. The information presented by plaintiff both to medical personnel and at hearing is inconsistent and is not deemed by the Full Commission as credible. Plaintiff related different accounts of her injury to her doctors without attributing her pain to a specific cause.

13. Based on the greater weight of the evidence, plaintiff has failed to meet her burden of proving that a specific traumatic incident occurred on March 27, 2004. Even assuming arguendo that a specific traumatic incident had occurred, the medical evidence offered by plaintiff fails to prove that plaintiff's back condition was caused or significantly aggravated by an alleged specific traumatic incident at work on or around March 27, 2004.

2. Plaintiff has failed to prove by the greater weight of the competent evidence that on or about March 27, 2004, she sustained an injury by accident or specific traumatic incident arising out of and in the course of her employment with defendant-employer which caused injury to her back; therefore, plaintiff's claim must be denied. N.C. Gen. Stat. § 97-2(6).

2. Defendants shall bear the costs.

This the 7th day of March, 2006.

S/____________________ BUCK LATTIMORE CHAIRMAN

CONCURRING:

S/________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

DISSENTING:

S/______________________ THOMAS J. BOLCH COMMISSIONER

Because I believe that the evidence presented by plaintiff supports the finding of a work-related specific traumatic incident resulting in a back injury and warranting a commensurate award of medical and disability compensation, I respectfully dissent from the majority's opinion and award.

The majority has found as fact that plaintiff presented inconsistent information both to medical personnel and at the hearing before the Deputy Commissioner. However, the evidence presented by plaintiff consistently supports her allegation of a back injury occurring on or about May 27, 2004, while plaintiff was performing her work-related trash-collecting duties. Plaintiff testified before the Deputy Commissioner that she experienced a "popping" in her back while lifting a heavy trash bag at work late on Saturday, March 27, 2004, and that she experienced considerable pain over the next several days, ultimately preventing her from continuing to work. Plaintiff further testified that she informed her supervisor of her injury as soon as he returned to work. Plaintiff's supervisor confirmed in testimony before the Deputy Commissioner that, upon his return to work on Tuesday, March 30, 2004, plaintiff informed him she had strained her back while working three days before on March 27.

The medical records presented in the case are also consistent with plaintiff's testimony concerning a work-related back injury occurring on or about March 27, 2004. Dr. Adkin's medical note from March 30, 2004, while suggesting that plaintiff's back pain began three months before the visit (instead of three days before, as plaintiff testified she told Dr. Adkins), notes that plaintiff's back pain was "exacerbated" by lifting trash bags at work. Dr. Hicks's April 19, 2004, medical note includes the following "diagnosis": "back pain (WC: pull trash @ work(?) on 3/26)." Dr. Gillis testified that she recalled plaintiff telling her in April of 2004 that plaintiff "had been carting a cart, or garbage can, at work and had pain in her lower back." Dr. Goebel's May 4, 2004, medical note states that plaintiff "felt that she sustained an injury at work while pulling some trash at the Asheville Mall Food Court on March 26, 2004." Dr. Hayes testified that, when she saw plaintiff on June 15, 2004, plaintiff told her she had injured her back at work in March of 2004.

Although the medical records do not necessarily reflect that plaintiff specifically informed her physicians that she felt a "popping" sensation on March 27, 2004, they consistently demonstrate that plaintiff reported an onset of back pain on or around March 27, 2004, while performing her trash-related work duties. Because a plaintiff need only "point to a series of contemporaneous events that could have caused [her] injury,"Richards v. Town of Valdese, 92 N.C.App. 222, 225,374 S.E.2d 116, 119 (1988), disc. review denied, 324 N.C. 337,378 S.E.2d 799 (1989), in order to establish a compensable injury by specific traumatic event, I believe plaintiff has met her burden under the Workers' Compensation Act by consistently reporting and testifying that she injured her back on or around March 27, 2004, while performing her job of collecting and disposing of trash.

For these reasons, I respectfully dissent.

This 28^th day of June, 2006.

S/____________________ THOMAS J. BOLCH COMMISSIONER