Adams v. METALS USA

• Decision Date: 15 February 2005
• Docket Number: No. COA04-177.,COA04-177.
• Court: North Carolina Court of Appeals
• Parties: Sampie ADAMS, Employee, Plaintiff, v. METALS USA, Employer, American Home Assurance/AIG Claims Services, Inc., Carrier, Defendants.

608 S.E.2d 357

168 NC App. 469

Sampie ADAMS, Employee, Plaintiff, v. METALS USA, Employer, American Home Assurance/AIG Claims Services, Inc., Carrier, Defendants.

No. COA04-177.

Court of Appeals of North Carolina.

February 15, 2005.

R. Steve Bowden & Associates, by Jarvis T. Harris, Greensboro, for plaintiff-appellee.

Robinson & Lawing, L.L.P., by Jolinda J. Babcock, Winston-Salem, for defendants-appellants. BRYANT, Judge.

Metals USA (employer) and American Home Assurance / AIG Claims Services, INC. (carrier), collectively defendants, appeal an opinion and award of the Full Commission granting plaintiff temporary total disability benefits.

At the time of the hearing before the deputy commissioner, plaintiff, a married forty-seven-year old father of two children had a work history as a laborer. Plaintiff had worked for the defendant-employer as a truck loader since October 1995.

On 1 October 2000, after loading a truck with steel, plaintiff slipped while climbing down a ladder on the truck. Moisture on the bottom of his shoes and on the steps of the ladder caused him to slip and fall. Plaintiff testified at the hearing before the deputy commissioner that the trucks were kept outside and some were covered and others were uncovered. During his fall, plaintiff skinned his arm and fell on his hip as he attempted to catch himself. Immediately, after the fall, plaintiff felt some pain and discomfort in his legs, hips and foot; however, he continued to work notwithstanding the pain.

Plaintiff mentioned the fall to his co-worker, Corey Wiseman who was the punch press operator that evening. Corey Wiseman testified at the hearing that plaintiff told her that he fell off the ladder and showed her the scrapes on his arm.

Even though plaintiff minimized the injury, he reported the incident to Larry Mallotte, the lead man on the third shift, and showed Mallotte the abrasions on his arm because he thought he was supposed to tell someone in case the injury became more serious. Plaintiff testified that at the time he reported the injury to Mallotte, his arms were hurting and he felt like he bruised his hip.

Michael Wiseman, another co-worker, testified during his deposition that during a shift change on or about 1 October 2000, plaintiff told him that he had fallen down a ladder. Michael Wiseman asked plaintiff if he had reported the injury to Mallotte. Michael Wiseman testified that an employee is supposed to report an injury to who ever is in charge. Plaintiff indicated to Michael Wiseman that he had told Mallotte about the fall.

Mallotte testified at the hearing that plaintiff told him he slipped and fell. Mallotte testified that he remembered this conversation occurring on or about 1 October 2000. Mallotte testified that he is supposed to report an injury to the supervisor if an incident was reported to him, but that he did not complete an injury report because plaintiff did not indicate he was seriously injured.

Plaintiff did not seek medical treatment immediately following the injury. He continued to perform his regular job; however, he noticed an increase of pain and discomfort in his hip, leg and foot. He thought the problem was related to years of walking on cement floors.

On 18 January 2001, plaintiff sought medical treatment at White Oak Family Physicians from Dr. Robert B. Scott due to severe back pain. Plaintiff stated he could hardly walk and his left foot was going numb. Plaintiff could not recall a specific injury. Dr. Scott diagnosed plaintiff with substantial sciatica and noted that a disc herniation was suspected. Plaintiff was taken out of work for two weeks.

On or about 22 January 2001, plaintiff contacted defendant-employer regarding his back injury and out-of-work status. Plaintiff was referred to Scott Stafford, Regional Human Resources Manager for defendant-employer; and Stafford offered plaintiff some information regarding short-term disability benefits. Stafford did not complete an accident report at that time. Ultimately, plaintiff did not receive any short-term disability benefits due to the work-related nature of his complaints. Stafford testified that if an injury had been reported to a lead man, then the lead man was to go to the supervisor with that information, but such had not been done in this case. Following plaintiff's conversation with Stafford, Stafford made some inquiries of plaintiff's supervisor and others regarding the injury. Stafford also reported the injury to the workers' compensation servicing agent.

On 29 January 2001, plaintiff returned to White Oak Family Physicians for follow-up care of his back pain. Plaintiff stated he was doing better and was no longer having pain during rest; however, he would hurt when he had been up and about for a very long time. Plaintiff also stated that the drive to the doctor's office had caused a slight flare up in the pain. Dr. Scott continued plaintiff's out-of-work status and prescribed Decadron.

Plaintiff was eventually referred to Randleman Medical Center by the defendant-employer, and was seen there on 30 January 2001, for his back pain. Plaintiff reported he had fallen off a ladder and that the pain had really started bothering him. Plaintiff was prescribed 200 mg of Celebrex.

On 1 February 2001, plaintiff returned to Randleman Medical Center for follow-up care of his back pain. An MRI was requested of plaintiff's lumbar spine and the MRI was approved by Stafford and defendant-appellant. On 7 February 2001, plaintiff had an MRI at Southeastern Radiology, which showed that he had degenerative disc disease at L4-L5 and L5-S1. The MRI also showed a dominant finding of a "large leftward disc protrusion/extrusion with moderate to marked neutral neural encroachment."

On 22 February 2001, plaintiff returned to Randleman Medical Center for a follow-up of his back pain. Plaintiff, stating that his back pain was still intense, was referred to Dr. Henry Poole at Microneurosurgical Specialist of Central Carolina.

On 13 March 2001, Dr. Randy O. Kritzer saw plaintiff at Microneurosurgical Specialist. Plaintiff was being evaluated for left buttock, hip and leg pain with numbness and tingling. Plaintiff stated that he fell off a ladder at work. Dr. Kritzer noted that plaintiff's reflexes were absent at the knees, the right ankle, and the left ankle. Dr. Kritzer also noted that plaintiff had decreased sensation in the lateral aspect of the left foot. Dr. Kritzer reviewed the MRI scan, which showed a very large disc herniation at L5-S1 on the left. Dr. Kritzer scheduled surgery for later in the month in the event that plaintiff was not improving. On 29 March 2001, plaintiff returned to Dr. Kritzer, electing to proceed with surgery.

On 6 April 2001, plaintiff underwent a lumbar microdiskectomy performed by Drs. Kritzer and Poole. On 9 May 2001, three weeks following surgery, plaintiff was seen at Microneurosurgical Specialist by Dr. Kritzer. Dr. Kritzer noted that plaintiff was doing well and that most of his pre-operative pain had resolved. Plaintiff stated that he was walking a few miles daily without difficulty. Dr. Kritzer stated that he would see plaintiff back in three weeks, and hopefully release him to return to work at that time.

On 6 June 2001, plaintiff complained to Dr. Kritzer that his pains were worsening again. Dr. Kritzer recommended an MRI scan. On 7 June 2001, plaintiff returned to Dr. Kritzer to follow-up on the lumbar scan. Dr. Kritzer stated that his latest scan showed excellent disk removal and no evidence of neural compression. Dr. Kritzer recommended two epidural steroid shots.

On 25 July 2001, plaintiff returned to Dr. Kritzer after receiving two epidural steroid shots, which did not provide any relief. Dr. Kritzer recommended Elavil and planned to see plaintiff back in a month. On 27 August 2001, plaintiff returned to Dr. Kritzer without receiving much relief after taking the Elavil. Dr. Kritzer stated that plaintiff had reached maximum medical improvement, and he would return plaintiff to work in approximately ten days with some lifting limitations and that he would see him in the future on an as-needed basis. During his deposition, Dr. Kritzer indicated he assigned plaintiff an eleven percent (11%) permanent partial disability rating to his back.

On 13 December 2001, plaintiff was presented to Johnson Neurological Clinic by referral from Dr. Scott to be evaluated by Dr. Victor D. Freund. Plaintiff stated that he had done well for roughly one month following the surgery and then had a recurrence of symptoms. Plaintiff also stated that his leg pain had worsened progressively despite having a repeat MRI scan in June 2001, which showed no recurrent disc herniation; however, there was significant epidural scarring. After reviewing the MRI scans, previous medical history and conducting a physical examination, according to his medical notations, Dr. Freund could see no need for further neurosurgical intervention. Dr. Freund noted that the best option for improvement of living with the symptoms would be treatment through a chronic pain clinic.

This matter came for hearing before a deputy commissioner, and by order filed 30 August 2002, plaintiff's claim for benefits was denied. The deputy commissioner found that plaintiff continued to perform his normal job duties after the 1 October 2000 incident and failed to report any alleged back injury to his supervisors, co-workers, or the human resources manager; plaintiff did not seek medical treatment until three and one-half months after the alleged accident; and plaintiff's claim to Dr. Kritzer, that he suffered back and leg pain since 1 October 2000, was not corroborated by the other credible evidence. Based upon all of these facts, the deputy commissioner found that plaintiff suffered no back injury as a result of the 1 October 2000 fall and denied his claim for benefits. Plaintiff appealed to the Full Commission.

On review, the Full Commission, like the deputy...