Bentley v. Revlon, 110519 NCCA, COA18-1009

Docket Nº:COA18-1009
Opinion Judge:Hampson, Judge.
Party Name:MARY BENTLEY, Employee, Plaintiff v. REVLON, Employer, CNA INSURANCE COMPANY, Carrier, Defendants
Attorney:Lennon, Camak & Bertics, PLLC, by George W. Lennon and Michael W. Bertics, for plaintiff-appellant. Teague Campbell Dennis & Gorham, LLP, by Heather T. Baker, Bruce A. Hamilton, and Elizabeth P. Ligon, for defendants-appellees.
Judge Panel:Judges STROUD and BROOK concur.
Case Date:November 05, 2019
Court:Court of Appeals of North Carolina

MARY BENTLEY, Employee, Plaintiff


REVLON, Employer, CNA INSURANCE COMPANY, Carrier, Defendants

No. COA18-1009

Court of Appeals of North Carolina

November 5, 2019

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 22 May 2019.

Appeal by Plaintiff from Opinion and Award entered 21 June 2018 by the North Carolina Industrial Commission, I.C. No. 609188.

Lennon, Camak & Bertics, PLLC, by George W. Lennon and Michael W. Bertics, for plaintiff-appellant.

Teague Campbell Dennis & Gorham, LLP, by Heather T. Baker, Bruce A. Hamilton, and Elizabeth P. Ligon, for defendants-appellees.

Hampson, Judge.

Factual and Procedural Background

Mary Bentley (Plaintiff) appeals from an Opinion and Award of the Full Commission of the North Carolina Industrial Commission (Commission), denying her claims for additional indemnity compensation and medical compensation for a compensable right shoulder injury. Specifically, the Commission concluded Revlon and CNA Insurance Company (Defendants) rebutted the Parsons presumption and Plaintiff failed to prove her current treatment for her shoulder was related to a 1995 injury or that she sustained a change in condition. Relevant to this appeal, the Record tends to show the following:

Plaintiff was employed by Revlon, or its corporate predecessors, from 1983 to 2011. On 28 December 1995, Plaintiff sustained serious injuries to her face, nasal passage, head, neck, right shoulder, and right arm when a pressurized air hose struck her in the face and right side multiple times. Plaintiff sought numerous treatments from various doctors over the past two decades for her injuries, and the parties litigated her claims on multiple occasions before the Commission to determine issues of compensability and compensation.

In an Opinion and Award entered on 17 March 2003 (2003 Opinion and Award), the Commission concluded Plaintiff's injuries to her "face, nasal passage, head, neck, right shoulder and arm" were compensable injuries under the North Carolina Workers' Compensation Act (the Act) and ordered that Defendants pay all medical compensation necessitated by the 1995 injury. See N.C. Gen. Stat. § 97-2(6) (2017) (defining compensable injury for purposes of the Act). The 2003 Opinion and Award expressly left open the "issue of what, if any, permanent partial disability compensation shall be payable to [P]laintiff . . . until such time as [P]laintiff reaches maximum medical improvement." Neither party appealed the 2003 Opinion and Award.

In the 2003 Opinion and Award, the Commission found in January of 1996, Dr. Michael Soo (Dr. Soo), a neurologist at Durham Clinic, P.A., "examined [P]laintiff . . . for complaints of . . . shooting pain and numbness down her right arm" and that "[b]y March 1996, [P]laintiff was improving but continued to have pain in the . . . right shoulder[.]" In March of 1997, Plaintiff obtained a second opinion from Dr. Robert E. Price, Jr. (Dr. Price) "regarding her facial pain, right shoulder pain and right arm pain and numbness." After performing an electromyography (EMG) of Plaintiff's right arm, Dr. Price concluded there was no nerve damage. With Plaintiff still continuing to have "numbness in the right side of her face, pain in her right shoulder and numbness in the right arm and hand[, ] Defendants sent her to a chiropractor . . . for an evaluation." After receiving three treatments, "[D]efendant-carrier refused to pay for the treatments[, and] Plaintiff was forced to discontinue her treatment." Thereafter, Defendants referred Plaintiff for a second opinion to Dr. Barrie J. Hurwitz (Dr. Hurwitz), who recommended "it would be reasonable to repeat the EMG and NCV due to [P]laintiff's complaints of worsening symptoms over the past month." However, "Defendants denied authorization for these studies, stating that [P]laintiff's injuries were to her face and neck, and not to her arm." The Commission further found: "On May 24, 2000, [D]efendants accepted liability for [P]laintiff's arm condition . . . . Thus, [P]laintiff's arm condition is causally related to the December 28, 1995 injury by accident."

In January of 2011, Plaintiff filed an occupational disease claim, citing upper extremity conditions caused by the repetitive nature of her job duties, and on 28 August 2011, Plaintiff filed a Form 33 requesting payment of various compensation benefits related to the 1995 injury. After conducting a hearing, the Commission issued an Opinion and Award on 13 March 2013 (2013 Opinion and Award). In its 2013 Opinion and Award, the Commission, inter alia, denied Plaintiff's request for additional temporary partial or temporary total disability benefits relating to her 1995 injury and denied Plaintiff's occupational disease claim, concluding Plaintiff "failed to establish that she suffers from a compensable occupational disease within the meaning of N.C. Gen. Stat. § 97-53." Plaintiff appealed this 2013 Opinion and Award to our Court, which affirmed the Commission's decision. See Bentley v. Revlon, Inc., 233 N.C.App. 598, 758 S.E.2d 903 (15 April 2014) (unpublished).

On 16 May 2016, Plaintiff filed a Form 33 requesting her claim be assigned for hearing, alleging a change of condition, and seeking payment for additional medical treatments and expenses and for permanent partial and total disability. On 2 August 2016, Dr. Kevin P. Speer (Dr. Speer), an orthopedic surgeon, evaluated Plaintiff for ongoing right shoulder pain that was increasing over time. Dr. Speer ordered an MRI of her shoulder, which revealed "significant degenerative changes and a small full thickness tear of the supraspinatus tendon of the rotator cuff." On 10 November 2016, Dr. Matthew Boes (Dr. Boes) conducted an Independent Medical Examination of Plaintiff's right shoulder. Dr. Boes agreed with Dr. Speer's assessment of a partial thickness rotator cuff tear but did not recommend surgery. Both Drs. Speer and Boes were deposed in this case. In his deposition, Dr. Speer testified the Commission's prior finding that the shoulder injury was related to the 1995 injury was consistent with his own findings on examination. He further testified any attempt to relate any portion of Plaintiff's shoulder injury to a non-work injury "would be entirely speculative[.]"

On the other hand, Dr. Boes opined to a reasonable degree of medical certainty that Plaintiff's current shoulder injury was not related to the 1995 injury. Dr. Boes...

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