Boles v. US Air, Inc.
| Decision Date | 05 February 2002 |
| Docket Number | No. COA01-61.,COA01-61. |
| Citation | 560 S.E.2d 809,148 NC App. 493 |
| Court | North Carolina Court of Appeals |
| Parties | Carolyn BOLES, Plaintiff, v. U.S. AIR, INC., Defendant. Self-Insured (Alexis, Inc., Servicing Agent). |
Walden & Walden, by Daniel S. Walden and Margaret D. Walden, Winston-Salem, for plaintiff-appellee.
Brooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr., and Kimberley A. D'Arruda, Cary, for defendant-appellant.
Defendant appeals from an opinion and award of the North Carolina Industrial Commission (hereinafter "Commission") awarding plaintiff continuing benefits. Evidence before the Commission tended to show that plaintiff, Carolyn Boles, was employed by defendant, U.S. Air, Inc. (now U.S. Airways, Inc.) as a reservation sales agent (reservationist), providing booking and flight information to the public by telephone. Her job required her to sit at a computer keyboard throughout the workday keying in the necessary information. This work not only physically required her to use both hands repetitively, but cognitively required concentration, memory, and attention to detail. On 7 March 1991, plaintiff tripped and fell on a curb outside her office building as she was going into work. From the fall, plaintiff sustained a back injury manifested by chronic incapacitating neck, left shoulder, and left arm pain. Because plaintiff's symptoms did not significantly improve with conservative treatment (cervical traction, anti-inflammatory medications, and physical therapy), on 21 May 1992, she was examined by Dr. Curling, a neurosurgeon. Dr. Curling testified that an MRI revealed a large spur and associated disk bulge at C5-C6 and that he advised plaintiff to undergo a cervical discectomy at C5-C6 and an iliac crest interbody fusion at C5-C6. Dr. Curling performed this surgical procedure on 17 June 1992 and released plaintiff, without restrictions, on 24 September 1992 to return to work at U.S. Air, Inc., starting on half days for the first two weeks and then working up to whole days.
At the end of September 1992 the Commission approved the parties' Form 21 "Agreement for Compensation for Disability" wherein defendant accepted plaintiff's injury by accident resulting in an "HNP [at] C5-C6." Additionally, the Commission approved several Form 26 Agreements for temporary total disability of various weeks (not continuous) in 1991 and 1992. In December 1992, Dr. Curling found plaintiff at maximum medical improvement (MMI) and rated her at approximately 10 percent permanent partial disability and released her from his care. Dr. Curling noted that plaintiff was having minimal neck discomfort but that plaintiff had returned to work and doing her usual job without significant difficulty. On 25 February 1993, the Commission approved the parties' Form 26 "Supplemental Memorandum of Agreement as to Payment of Compensation" for a 10 percent permanent partial disability to the back (for 30 weeks of benefits at the rate of $306.42 per week from 10 December 1992 pursuant to G.S. § 97-31).
On 10 February 1993, plaintiff was again seen by Dr. Curling, complaining of recurrent pain in the neck and left arm. Dr. Curling stated in a letter to plaintiff that her pain was caused by nerve injury and recommended that plaintiff take Elavil for her recurrent neck and arm pain. On 23 August 1993, plaintiff called Dr. Curling indicating that she was having problems with depression and was feeling suicidal and asked that he write a letter giving her permission to stay out of work for two to three weeks so that she could "get her act together." Dr. Curling recommended that plaintiff go to the emergency room and undergo a psychiatric evaluation, contact her family physician, or schedule an appointment with a psychiatrist as soon as possible.
On 23 September 1993, plaintiff's psychiatrist, Dr. Branham, diagnosed plaintiff with major depression and wrote, "[a]t the present time I feel that it would be totally necessary for [plaintiff] to have the least amount of stress possible and since work is a major stress on her life I think she should be held out of work until further notice." Dr. Branham noted that since 7 March 1991, plaintiff had a history of feeling futile, hopeless, and tearful about her chronic pain. Dr. Branham also noted that she had problems sleeping, concentration and memory difficulties, and a loss of interest in daily and family activities. He prescribed chemotherapeutic intervention with anti-depressant medication. Following this diagnosis, plaintiff regularly returned to Dr. Branham for treatment.
On 19 July 1994, Dr. Branham indicated in a letter to defendant that "[d]ue to depression, the concentration, physical stamina, memory, and ability to withstand stress have all been eroded to such a degree that [plaintiff] is unable to work." During Dr. Branham's 1995 deposition, he stated that plaintiff could not return to work because of her pain, her memory and concentration deficits, which he noted were two symptoms of depression, and her difficulty relating to other people. During his 1998 deposition, Dr. Branham testified that he had never considered return to work as a goal, but that plaintiff no longer suffered from impaired memory or cognitive abilities, nor did she have difficulty with interpersonal relations. In the 1998 deposition, Dr. Branham testified that he thought that plaintiff was unable to return to work because she suffers from chronic pain syndrome and intermittent depression.
On 15 March 1994, plaintiff filed a motion pursuant to G.S. § 97-47, alleging she had a change in condition, and moved for additional compensation. She alleged that as a result of increased neck pain and depression, she had been unable to work since 28 September 1993. She also moved, pursuant to G.S. § 97-25, for approval of further medical treatment by Dr. Branham.
On 28 June 1994, after reviewing the results of a functional capacity evaluation, Dr. Curling indicated that plaintiff could return to work on a light-demand level. Additionally, Dr. Curling stated that in his opinion plaintiff was capable of returning to work as a reservations agent.
Plaintiff was sent by defendant for a second opinion and psychological testing to clinical psychologist John F. Warren, III. In September 1994, Dr. Warren tested plaintiff's memory and concentration using the Wechsler Memory Scale Revised and found that her general memory and verbal memory scores fell within the Superior range. In addition, plaintiff's visual memory, attention/concentration, and delayed recall index scores fell within the Average range. From these test results, Dr. Warren indicated there were no signs of severe memory problems that would cause plaintiff difficulty in terms of trying to attend to the affairs of daily living or work. Plaintiff was also administered the Booklet Category Test (BCT), which is a comprehensive, cognitive screening test designed to evaluate for the presence of cerebral dysfunction. Plaintiff performed within the Average range which suggests "that her non-verbal abstract reasoning and logical analysis skills are adequate for making most decisions required for organized planning and practical, everyday living and working situations." Dr. Warren recommended limited mental health intervention with goals and plans, as opposed to a more traditional, open-ended analytic or dynamic mental health treatment.
In February 1997, Dr. Jones evaluated plaintiff upon defendant's request that he provide a second opinion to clarify plaintiff's psychiatric condition, as well as make recommendations regarding her ability to return to work. At the time of the evaluation, Dr. Jones felt that plaintiff's depressive disorder was in remission. Dr. Jones did not find any impairments that would keep plaintiff from being capable of performing tasks required in the reservationist position. Dr. Jones opined that treatment with specific benchmarks would be more appropriate than Dr. Branham's open-ended treatment program.
During the hearing, plaintiff admitted that she was aware that Dr. Branham was the only physician that she had seen since 1993 who is continuing to excuse her from work as a reservationist. Plaintiff also testified that she did not feel that she was capable of performing her job as reservationist because she was in so much pain that it caused her to have impaired memory and cognitive ability. Plaintiff further testified that she has not attempted to perform the actual job of reservationist since September 1993.
On 25 January 1995 a deputy commissioner heard plaintiff's G.S. § 97-47 motion to reopen her claim by reason of a change in condition for the worse, and her G.S. § 97-25 motion for Commission approval of Dr. Branham and Dr. Rauck. On 5 May 1995, the deputy commissioner ruled that plaintiff had sustained a substantial change for the worse in her condition from the 7 March 1991 back injury resulting in her becoming totally disabled by the same injury on 24 September 1993. Plaintiff was awarded compensation at a rate of $306.42 per week from 24 September 1993 to the scheduled hearing date and continuing thereafter at the same rate for so long as she remains totally disabled. The deputy commissioner also ruled that defendant shall pay all reasonable and necessary medical expenses incurred by plaintiff as a result of her substantial change of condition, including continued psychiatric treatment provided by Dr. Branham and any other treatment he may reasonably recommend that would tend to reduce her chronic incapacitating pain such as a return to the pain clinic. Neither party appealed from the deputy commissioner's opinion and award.
On 7 April 1997, defendant filed a Form 24 "Application to Terminate Payment of Compensation", alleging that plaintiff had unjustifiably refused the employer's offer of suitable employment (as reservations agent) on 14 March 1997. The matter was heard by a deputy commissioner who ruled that plaintiff was...
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...own testimony as to pain and ability to work is competent evidence as to the employee's abilityto work." Boles v. U.S. Air, Inc., 148 N.C. App. 493, 499, 560 S.E.2d 809, 813 (2002); see also Matthews v. Petroleum Tank Serv., Inc., 108 N.C. App. 259, 423 S.E.2d 532 (1992); Niple v. Seawell R......
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...of obtaining employment. Our Courts have recognized that physical pain is evidence of a disability. See Boles v. U.S. Air, Inc., 148 N.C. App. 493, 499, 560 S.E.2d 809, 813 (2002) (holding that "[t]his Court has previously held that an employee's own testimony as to pain and ability to work......
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