Carey v. Norment Security Industries

2. Defendant is a duly qualified self-insured, with Gallagher Bassett Services as the servicing agent.

3. An employee-employer relationship existed between the parties at all relevant times.

4. On April 30, 2004, plaintiff suffered an injury by accident when he fell from a ladder at work during the course and scope of his employment with defendant.

5. Defendant accepted the compensability of plaintiff's thoracic and lumbar spine conditions by filing a Form 60 on April 26, 2005. Defendant denies the compensability of plaintiff's cervical spine condition.

6. Plaintiff has an average weekly wage of $743.54, and a resulting compensation rate of $495.72.

7. The following exhibits were admitted into evidence:

(a)Stipulated Exhibit 1: Pre-Trial Agreement

(b)Stipulated Exhibit 2: Medical Records

(c)Stipulated Exhibit 3: Employment and Payroll Records

(d) Stipulated Exhibit 4: Discovery Requests and Responses.

8. The issue before the Commission is whether plaintiff's cervical disc herniation is causally related to his admittedly compensable injury by accident.

2. Plaintiff began working for defendant-employer as a field technician in 2003. As a field technician, plaintiff installed and maintained electronic hardware for security systems at various facilities.

3. On April 30, 2004, plaintiff was working at a mental health facility in Raleigh installing magnetic locks on doors. He was standing on a ladder, working on electrical wiring in the ceiling. Plaintiff's upper body was approximately three feet into the ceiling when the ladder shifted. He fell through the ceiling, his arms caught on the ceiling grids, and he fell eight feet to the floor, landing on his feet. Due to pain, plaintiff left work for the remainder of the day.

4. The following day plaintiff returned to work and showed the bruises on his arms to his supervisor, Jack Bauer. Although plaintiff experienced severe pain in his mid-back, he continued to work after the accident. On May 10, 2004, plaintiff told Norman Ryan, Mr. Bauer's supervisor, about the accident and his pain. Mr. Ryan suggested plaintiff should go to Urgent Care.

5. Plaintiff was initially treated on May 10, 2004 at Doctors Urgent Care Center, with complaints of thoracic and lumbar spine pain. Urgent Care referred plaintiff to Raleigh Orthopaedic Clinic.

6. On June 10, 2004, plaintiff began treating with Dr. Cara Siegel, of Raleigh Orthopaedic Clinic, with complaints of mid-thoracic back pain. Plaintiff was diagnosed with rhomboid strain and truncal myalgia. Dr. Siegel released plaintiff to return to work without restrictions but referred him to physical therapy which continued over the next few months. *Page 4

7. On his first physical therapy appointment on June 16, 2004, plaintiff complained of upper extremity numbness and tingling. He continued to experience hand and arm numbness and described these symptoms to Betty Riddle, his medical case manager, in September, October, and November 2004. Plaintiff complained of neck pain to his medical case manager on repeated occasions from November 2004 through March 2005.

8. On December 30, 2004, plaintiff, through counsel, filed a Form 18 alleging an April 30, 2004 injury to his spine, right foot, right arm, and left arm.

9. On April 26, 2005, defendants accepted plaintiff's claim by filing a Form 60, accepting injuries to the lumbar spine only and denying compensability of any alleged cervical spine and bilateral arm and feet claims.

10. On October 28, 2004 an MRI of plaintiff's lumbar spine showed a disc bulge and herniation. On December 14, 2004, plaintiff was treated by Dr. James Fulghum of Carolina Back Institute with chief complaints of mid to low thoracic pain with pain in other areas involving the neck, lower back, right leg, and right foot. Dr. Fulghum referred plaintiff to Dr. Catherine Duncan, a specialist in pain management, for further evaluation.

11. On December 17, 2004, plaintiff was seen by Dr. Duncan with primary complaints of thoracic and low back pain. Plaintiff underwent a series of prolotherapy injections that were administered on January 5, January 19, February 2, and February 16, 2005. Although Dr. Duncan did not take plaintiff out of work following these injections, she indicated that the more active the patient, the more the pain at the injection sites would limit his abilities. Dr. Duncan prescribed narcotic pain medications for plaintiff's use after the injections. After the first injections, plaintiff experienced pain and discomfort and was unable to return to work for *Page 5 two to three days. With subsequent injections, he was able to return to work more quickly. Plaintiff missed some work due to his medical treatment.

12. On March 10, 2005, Dr. Duncan released plaintiff at maximum medical improvement, with no restrictions for the thoracic or lumbar spine, and no permanent partial impairment. The form plaintiff completed for the visit to Dr. Duncan makes reference to neck pain. Although Dr. Duncan testified at her deposition that she was aware of plaintiff's neck pain, she did not treat his neck because it was not part of Dr. Fulghum's referral and the insurance carrier had not authorized such treatment.

13. On February 21, 2005, plaintiff reported to the assigned nurse case manager, Ms. Riddle, a February 19, 2005 onset of cervical pain and resulting pain and tingling in the left hand, which began when plaintiff turned his head to speak to someone and experienced a pop in the left side of his neck. Plaintiff further stated he was not able to work due to the resulting pain and tingling in the left hand. Ms. Riddle acknowledged in her deposition that this was not the first time plaintiff complained to her of neck pain. Ms. Riddle recommended that defendant authorize further evaluation for the ongoing cervical complaints, but the carrier refused.

14. Plaintiff was last able to work a full day on February 15, 2005. His last prolotherapy shots were on February 16, 2005. Plaintiff saw his family doctor at Knightdale Primary Care on February 22, 2005, with complaints of neck pain. Plaintiff was diagnosed as having a herniated cervical disc and taken out of work until he could see a neurosurgeon.

15. On March 7, 2005, plaintiff began treating with Dr. Timothy Garner of Capitol Neurosurgery. After review of the cervical MRI, Dr. Garner diagnosed plaintiff with a soft disc herniation at C6-7 on the left. Beginning March 7, 2005, plaintiff was written out of work by Dr. Garner due to his cervical disc herniation. Plaintiff treated conservatively with Dr. Garner and *Page 6 was found to be at maximum medical improvement and released to return to work without restrictions on May 23, 2005. Dr. Garner assigned plaintiff a five percent permanent partial disability rating to his neck.

16. Once plaintiff was released to return to work, he contacted defendant-employer seeking to return to his job. On June 24, 2005 he was informed by defendant-employer that he no longer had a job. Thereafter, plaintiff looked for work and found work two weeks later on July 8, 2005. As of the Deputy Commissioner's hearing, plaintiff continued to be employed at wages equal to or greater than his pre-injury wages.

17. Plaintiff gave a history to Dr. Garner that his neck symptoms began when he fell from a ladder through the ceiling on April 30, 2004. Dr. Garner found no other possible causes of the herniated disc. Based on Dr. Garner's 20 years of experience, the MRI findings, and his examination and treatment of plaintiff, it was Dr. Garner's expert opinion to a reasonable degree of medical certainty and the Commission finds that the fall from the ladder was a likely cause of plaintiff's herniated disc at C6-7.

18. There is no evidence of record or in Dr. Garner's deposition that when he expressed his causation opinion he was unaware of plaintiff's February 19, 2005 incident where plaintiff turned his head and experienced a pop in his neck.

19. As the result of the admittedly compensable injury by accident on April 30, 2004, plaintiff sustained injuries to his cervical, thoracic and lumbar spine and was temporarily totally disabled from any employment from February 15, 2005 until July 8, 2005. In addition, plaintiff was disabled and missed days or parts of days while he continued to work for defendant-employer. Although after the arguments before the Full Commission the parties submitted some *Page 7 documentation concerning the specific dates of missed work, the Commission is unable to determine such dates with any certainty.

2. As the result of his compensable injury by accident, plaintiff was temporarily totally disabled from any employment and is entitled to payment by defendant of temporary total disability compensation at the rate of $495.72 per week from February 15, 2005 until July 8, 2005. Plaintiff is also entitled to payment of compensation for sporadic days missed from work for medical treatment. N.C. Gen. Stat. § 97-29.

3. As the result of his compensable injury by accident, plaintiff sustained a five percent permanent functional impairment to his cervical spine for which he is entitled to permanent partial disability compensation at the rate of $495.72 per week for 15 weeks. N.C. Gen. Stat. § 97-31(23).

4. As the result of his compensable injury by accident, plaintiff is entitled to have defendant pay for all related medical expenses incurred or to be incurred. The approved medical expenses include treatment by Dr. Garner and Knightdale Primary Care. N.C. Gen. Stat. §§ 97-25,97-25.1. *Page 8

2. Defendant shall pay plaintiff permanent partial disability compensation for the five percent permanent functional impairment to his cervical spine at the rate of $495.72 per week for 15 weeks. This amount shall be paid in a lump sum, subject to the attorney's fee awarded below.

3. Defendant shall pay for all related medical expenses incurred or to be incurred by plaintiff as the result of his compensable injury by accident.

4. A reasonable attorney's fee of 25% of the compensation awarded in paragraphs 1 and 2 of this Award is approved for plaintiff's counsel. This fee shall be deducted from the amounts due plaintiff and paid directly to counsel for plaintiff.

5. Defendant shall pay the costs.

This 3rd day of May, 2007.

S/____________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/____________________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/____________________ BUCK LATTIMORE CHAIRMAN

I respectfully dissent from the Opinion and Award of the majority because I do not believe plaintiff has met his burden under Holley v.ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003), of proving a causal relation between his cervical disc herniation and his April 30, 2004, compensable injury by accident.

Dr. Garner made clear in his deposition testimony that the cause of a cervical disc herniation is rarely relevant to his treatment of the disc herniation, and that he generally does not care about the particular cause of injury for a particular patient:

The mechanism for injury in a cervical disc herniation is really not very important to me. It's not nearly as important as the mechanism of an injury for a head injury or a broken neck or a — a broken back.

I don't — it doesn't — it bears little or no significance to what I'm going to do to help that patient. So I don't really get into the details of how things happen. It's not because I'm lazy or not complete. It's just not important.

In fact, a cervical disc herniation can be the result of nearly any activity:

Oh, gosh, you name it, it can happen. I've had people rupture discs rolling over in the bed to answer the phone. I've had people rupture a disc picking up the newspaper.

I've had people in motor vehicle crashes in which they're thrown 150 feet that didn't rupture a disc. It's a fascinating spectrum of things.

Dr. Garner explained that, in the present action, his expert medical opinion that plaintiff's April 30, 2004, workplace fall was, "to a reasonable degree of medical certainty," a "likely cause" of *Page 11 the herniated cervical disc for which Dr. Garner began treating plaintiff on March 7, 2005, was based exclusively on plaintiff's statements to Dr. Garner that plaintiff had had no trouble with his neck prior to his fall, and that plaintiff had consistently had neck trouble following his fall:

Quite honestly, most of the time we don't know what causes a ruptured disc. It turns out that these contests that we're having today are — come down to what the temporal relationship was of the onset of pain.

There's been one case in my career in which I can definitively say that a patient ruptured a disc in their neck in a motor vehicle crash. One case. Specific trauma, specific injury. And that was a lady that I operated on at Raleigh Community Hospital for a cervical disc. Took her cervical disc out.

The next morning she got up, got in the car with her husband and promptly got hit on Wake Forrest Road right in front of the hospital.

Turned right back around, went back into the emergency room and had an emergency MRI scan, and had a huge disc rupture at a different level than the one I had just operated on.

Now, that patient, I testified, had a ruptured disc as a direct result of her motor vehicle crash. Other than that, I can't tell you.

When [plaintiff's counsel] asked me my question of certainty, so forth and so on, whatever that was, that's based on the fact that this guy told me, "Doc, I didn't have any trouble with my neck before this, and I've had trouble with my neck since." So, it comes down to a temporal relationship with the onset of pain.

So when you ask me, well, you know, couldn't he have done this some other way? Yes. Couldn't it have been there before he fell through the attic? Yes. Could he have done it after he fell through the attic? Yes.

But the fact of the matter is, he comes to me — and unlike the law, you know, in medicine, we kind of assume they're telling us exactly the truth. You know, in law, you kind of have to be a little — a little more skittish, okay? But in medicine, we figure they're telling us exactly what happened.

And when they come and tell me, yes, he did — [plaintiff] came and told me, you know, "I didn't have any trouble with my neck; I've had trouble since then," you know.

Thus, Dr. Garner's expert medical opinion causally linking plaintiff's workplace fall to his cervical disc herniation is based on (a) the fact that plaintiff's fall could have caused the disc herniation ultimately treated by Dr. Garner, and (b) Dr. Garner's understanding, based on what he was told by plaintiff, that plaintiff did not have symptoms of a cervical disc herniation prior to his workplace fall, and that the symptoms of the cervical disc herniation ultimately treated by Dr. Garner first appeared immediately following plaintiff's workplace fall.

However, the medical evidence of record demonstrates that plaintiff's statements to Dr. Garner concerning the history of his neck condition were not an accurate representation of plaintiff's actual medical history. Accordingly, I believe that Dr. Garner's expert medical opinion in the present action is not supported by the evidence of record, and is therefore insufficient to establish a causal relationship underHolley between plaintiff's workplace fall and his cervical disc herniation.

When Dr. Garner was asked in his deposition to describe the history he took from plaintiff prior to treating plaintiff's herniated cervical disc, Dr. Garner testified simply, "He told me that he fell through an attic, about a year before he came to see me." Dr. Garner did not relate any further history he had been given by plaintiff and, in fact, specifically testified that he had been told of no other possiblecauses of plaintiff's cervical disc herniation in the history he received from plaintiff. However, after reading Ms. Riddle's medical case management note on plaintiff's description of the February 19, 2005, "pop" in the left side of plaintiff's neck, which was followed immediately by cervical pain and by pain and tingling in plaintiff's left hand, Dr. Garner was asked: *Page 13

Q. From that scenario that is in that note, could that situation cause the herniation that you subsequently diagnosed?

A. Yes. Absolutely.

Q. Just for further clarification, would you say to a reasonable degree of medical certainty that the scenario that you just read into the record could have caused the disc herniation at C6-7 that you diagnosed [plaintiff] as having?

A. Yes. Could have.

Because Dr. Garner clearly testified that the February 19, 2005, pop in plaintiff's neck was a possible cause of plaintiff's cervical disc herniation, it necessarily follows that the February 19, 2005, incident must not have been a part of the medical history Dr. Garner had previously received from plaintiff, and upon which Dr. Garner expressly based his expert medical opinion. To the extent that the majority has found that there is no evidence that Dr. Garner was unaware of the February 19, 2005, neck pop incident at the time he expressed his causation opinion, I believe the majority's finding to be inconsistent with Dr. Garner's actual deposition testimony.

Furthermore, the medical evidence of record is inconsistent with plaintiff's apparent report to Dr. Garner that he had experienced symptoms of a left-sided C6-7 cervical disc herniation ever since the time of his workplace fall. Dr. Garner testified that the typical symptoms of a herniated disc at C6-7 include neck, shoulder, and arm pain, with a predominance of shoulder and arm pain and not very much neck pain. Dr. Garner explained that the disc herniation itself does not cause much neck pain, but will instead cause numbness, tingling, pain, and weakness in the arm on the affected side. "The basic problem with a disc herniation is that the nerve that's trying to go out from the spinal cord to the shoulder and arm is pinched by a piece of disc right in the space where it's trying to go out. So anything that increases that pinching increases the pain" in the shoulder and arm, such as turning the head to one side, *Page 14 coughing or sneezing, raising one's arms above the head, or otherwise doing anything strenuous. Finally, Dr. Garner testified that a C6-7 disc herniation is typically easy to diagnose, something "that a medical student — a good third-or fourth-year medical student should be able to diagnose without an MRI."

Plaintiff's medical records prior to February 19, 2005, however, include no reports of any left arm or shoulder pain. While the medical records do indicate sporadic complaints by plaintiff of numbness and tingling in his hands beginning as early as June 16, 2004, those complaints were consistently of bilateral numbness and tingling, and were not restricted to the left arm as would have resulted from the left-sided cervical disc herniation diagnosed and treated by Dr. Garner. Furthermore, the tingling and numbness reported by plaintiff was described as appearing with sleep, not with exertion or strain, as would have been expected had it been a symptom of a herniated cervical disc at C6-7.

The first mention of neck stiffness or discomfort in plaintiff's medical records prior to February 19, 2005, appears in Ms. Riddle's medical case management report of November 29, 2004, some seven months after plaintiff's workplace fall. That medical case management report described plaintiff's ongoing treatment for thoracic back pain, and mentioned additional complaints of lumbar back pain and some cervical discomfort and stiffness. Dr. Fulghum's notes shortly thereafter from his December 14, 2004, examination of plaintiff show that plaintiff's principal complaint at the time was of mid to low thoracic pain, but that "other areas of pain involving the neck, lower back, right leg and right foot . . . have been variously present, but he has continued to work." Dr. Fulghum diagnosed plaintiff with a thoracic muscular tear injury, and dismissed the remainder of plaintiff's non-thoracic pain symptoms, including his neck pain, as follows: "Some of his symptoms appear to be recruited simply because of this thoracic *Page 15 imbalance and I do not believe the other symptoms are of physiologic importance." Dr. Fulghum's notes do not include any suggestion of a possible cervical disc herniation, despite Dr. Garner's testimony that such a condition, had it existed at the time, should have been easily diagnosed.

In significant contrast with plaintiff's prior medical symptoms, Ms. Riddle's medical case management note of February 21, 2005, provides:

[Plaintiff] requests authorization for evaluation of cervical pain with onset since Saturday 2/19/05 when he was at home turned his head to speak to someone and experienced "a pop" in left side of his neck. He states he was not able to work as result of consistent pain and tingling in left hand.

Plaintiff was apparently unable to return to work at all after February 19, 2005, due to this onset of neck and left arm pain. Dr. Garner's notes regarding his first examination of plaintiff on March 7, 2005, describe "`locking' episodes in which [plaintiff] would have terrible pain and pain, numbness, and tingling down his left arm." For the first time since his April 30, 2004, workplace fall, plaintiff's medical symptoms rendered him unable to continue working, and he was written out of work by Dr. Garner from March 7, 2005, until his release from care on May 23, 2005.

The record of evidence in the present case therefore clearly indicates that plaintiff's symptoms of a left-sided cervical disc herniation at C6-7 did not appear immediately following plaintiff's April 30, 2004, workplace fall, but instead appeared only after the February 19, 2005, neck pop incident that plaintiff described to Ms. Riddle. Because Dr. Garner has acknowledged that the February 19, 2005, neck pop "absolutely" could have caused plaintiff's cervical disc herniation, and because the medical evidence of record is inconsistent with the sole remaining basis for Dr. Garner's expert medical opinion-that the symptoms of plaintiff's cervical disc *Page 16 herniation first appeared immediately following the April 30, 2004, workplace fall — I believe that Dr. Garner's causation opinion in the present action is insufficient under Holley to provide the necessary foundation for the majority's relevant findings and conclusions of law.

Because I do not believe that plaintiff has met his burden of demonstrating that his cervical disc herniation resulted from his compensable workplace injury, I respectfully dissent from the majority's Opinion and Award.

This the __ day of June, 2007.

S/____________________ BUCK LATTIMORE CHAIRMAN