Cromartie v. Goodyear Tire & Rubber Co.
| Citation | 284 N.C.App. 605,877 S.E.2d 308 |
| Decision Date | 02 August 2022 |
| Docket Number | COA21-236 |
| Parties | Geraldine M. CROMARTIE, Employee, Plaintiff, v. GOODYEAR TIRE & RUBBER COMPANY, INC., Employer, Liberty Mutual Insurance Company, Carrier, Defendants. |
| Court | North Carolina Court of Appeals |
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, Greensboro, and David P. Stewart, and Jay A. Gervasi, Jr., Greensboro, for Plaintiff-Appellee.
Young Moore and Henderson, P.A., Raleigh, by Angela Farag Craddock, for Defendants-Appellants.
¶ 1 A tire manufacturing company and its insurance carrier (collectively, "Defendants") appeal from an order of the Full Commission of the North Carolina Industrial Commission (the "Full Commission") denying their application to terminate compensation payments to an employee after paying her temporary disability over the last eight years because she sustained an injury to her hand in the course of her employment. Defendants argue the Full Commission: (1) failed to address whether the employee presented competent evidence to support a finding of total disability as a result of her work injury; and (2) erred in concluding the alternative position was not suitable employment for the employee. After careful review of the record and our precedent, we remand the opinion and award of the Full Commission for additional findings.
¶ 2 The record below discloses the following:
¶ 3 Plaintiff-Appellee Geraldine M. Cromartie ("Ms. Cromartie") had worked for Defendant-Appellant Goodyear Tire and Rubber Co. ("Goodyear") for over 16 years as a machine operator in Goodyear's tire production facility in Fayetteville, North Carolina when she injured her hand on 30 May 2014. While performing her duties as a machine operator, Ms. Cromartie sustained a severe laceration to her right hand, requiring sutures. She developed a painful raised scar that did not heal.
¶ 4 Ms. Cromartie initially received a medical recommendation to refrain from work until 11 July 2014, so she was placed off-duty and began receiving temporary total disability payments of $904.00 per week. Before her injury, Ms. Cromartie had worked up to 42 hours per week and earned an average weekly wage of $1,413.33. Ms. Cromartie returned to work in her machine operator position on schedule, with no restrictions.
¶ 5 After returning to work, Ms. Cromartie complained of continued pain and swelling from her scar. Goodyear sent Ms. Cromartie to Doctor James Post ("Dr. Post"). Dr. Post noted Ms. Cromartie experienced "knifelike pain" in the back of her right hand when she attempted to grip anything with that hand. He determined Ms. Cromartie had a "right thumb symptomatic hypertrophic scar with distal neuroma formation of the branch of the radial sensory nerve." Dr. Post recommended Ms. Cromartie return to work with restrictions—no lifting anything greater than five pounds and no forceful gripping for four weeks. On 21 July 2014, Goodyear placed Ms. Cromartie out of work because Goodyear could not accommodate her work restrictions. Goodyear reinstated Ms. Cromartie's temporary disability compensation at that time.
¶ 6 Ms. Cromartie returned to Dr. Post for treatment several times in August and September and on 11 September 2014, Dr. Post performed a scar revision with excision procedure on Ms. Cromartie's right hand. Dr. Post recommended different work restrictions: no lifting anything greater than five pounds and no pushing or pulling greater than 40 pounds.
¶ 7 On 14 October 2014, Ms. Cromartie returned to a restricted duty assignment teaching safety courses at Goodyear to accommodate her work restrictions. On 3 December 2014, Dr. Post modified her work restrictions once more: no lifting greater than 15 pounds and no pushing or pulling greater than 40 pounds. He also ordered that Ms. Cromartie attend physical therapy sessions through 5 January 2015. Ms. Cromartie returned to work light duty on 3 February 2015. As of 3 March 2015, Dr. Post detected no significant improvement in Ms. Cromartie's symptoms, noted a diagnosis of "neuroma," and ordered she complete a functional capacity evaluation ("FCE").
¶ 8 On 14 April 2015, Lauri Jugan, PT, ("Ms. Jugan") conducted an FCE on Ms. Cromartie but was unable to determine Ms. Cromartie's functional capabilities because she had "failed to give maximum voluntary effort." On 21 April 2015, Dr. Post determined Ms. Cromartie had reached maximum medical improvement and rated her right upper extremity seven percent permanent partial disability. Noting the inconclusive FCE, Dr. Post assigned Ms. Cromartie permanent work restrictions of no lifting greater than 20 pounds and no repetitive forceful gripping or grasping. Ms. Cromartie continued working in the light duty position, and Goodyear did not offer her a different permanent position.
¶ 9 In May 2015, Goodyear and Ms. Cromartie entered into a Consent Agreement, approved by the Deputy Commissioner, authorizing a one-time evaluation with plastic surgeon Doctor Anthony DeFranzo ("Dr. DeFranzo") and requiring Ms. Cromartie to engage in a repeat FCE of her hand. Per the agreement, Defendants acknowledged Ms. Cromartie "sustained a compensable injury by accident to her right hand pursuant to [N.C. Gen. Stat. §] 97-18(b)." In August 2015, Dr. DeFranzo evaluated Ms. Cromartie, diagnosed her with complex regional pain syndrome, and suggested sedentary work with no lifting over 10 pounds.
¶ 10 On 30 September 2015, Ms. Jugan repeated the FCE on Ms. Cromartie, and determined, among other things, that Ms. Cromartie's right hand was limited to 20 pounds lifting, 30 pounds pulling, 39 pounds pushing, and 12.5 pounds lifting above the shoulder, demonstrating her capacity for a "[m]edium demand vocation."
¶ 11 On 3 November 2015, Goodyear sent Ms. Cromartie for an independent medical evaluation with Doctor Richard Ramos ("Dr. Ramos"). Dr. Ramos diagnosed her with neuropathic pain of her right hand and symptoms of complex regional pain syndrome and suggested she would benefit from pain management medication. Goodyear reinstated temporary total disability compensation on 10 November 2015.
¶ 12 Ms. Cromartie continued treatment with Dr. Ramos and Dr. Post over the next two years. In June 2017, Dr. Post reaffirmed he could not offer Ms. Cromartie further medical treatment and maintained the same permanent work restrictions he had previously prescribed. In the same month, Dr. Ramos determined Ms. Cromartie was at maximum medical improvement and released her from his care.
¶ 13 Goodyear's job-matching contractor identified a position in compliance with Dr. Ramos's work restrictions for Ms. Cromartie: "Production Service Truck Carcasses" ("Carcass Trucker"). The position primarily consisted of driving a truck to deliver parts of tires, referred to as "carcasses," to and from building stations and storage over a 12-hour shift. In particular, the position required driving the truck for 12 hours, rarely lifting up to 25 pounds when carcasses fell from the trailer, and 30 pounds of force, which can be split between each hand by 15 pounds lifting and 15 pounds pushing, to replace the truck's battery.
¶ 14 In February 2018, Goodyear requested Dr. Ramos review and approve the position if he agreed the position was within Ms. Cromartie's work restrictions. On 1 March 2018, Dr. Ramos approved the position for Ms. Cromartie, and on 6 March 2018, Goodyear formally offered Ms. Cromartie a job as Carcass Trucker. She refused the offer. On 16 March 2018, Defendants filed a "Form 24 Application to Terminate or Suspend Payment of Compensation" with the Industrial Commission, asserting Ms. Cromartie unjustifiably refused suitable employment.
¶ 15 On 29 March 2018, Ms. Cromartie returned to Dr. DeFranzo, the plastic surgeon who had evaluated her three years earlier, with a Workers’ Compensation Medical Status Questionnaire. Dr. DeFranzo assigned permanent restrictions of "light duty" and "sedentary" work that required Ms. Cromartie not to lift more than 10 pounds. On 26 April 2018, the Special Deputy Commissioner denied Defendants’ Form 24 application, concluding Ms. Cromartie was justified in refusing the Carcass Trucker position in part because it did not fall within the sedentary work limitations assigned by Dr. DeFranzo. Defendants appealed the order denying suspension of Ms. Cromartie's benefits and contested Ms. Cromartie's disability.
¶ 16 Upon Goodyear's request, on 26 September 2018, Ms. Cromartie underwent an additional examination with Doctor Marshall Kuremsky ("Dr. Kuremsky"). Dr. Kuremsky "subjectively" believed Ms. Cromartie could return to work without restrictions after confirmation from a third FCE and that she could perform the Carcass Trucker position. Based on Dr. Kuremsky's recommendation, Goodyear again offered Ms. Cromartie the position of Carcass Trucker on 2 October 2018. Ms. Cromartie again refused the position.
¶ 17 One month later, on 5 November 2018, Goodyear approved Ms. Cromartie's application for medical retirement. Ms. Cromartie was eligible for medical retirement because she had already qualified for Social Security Disability.
¶ 18 In February 2019, Defendants’ appeal of the Special Deputy Commissioner's order came before the Deputy Commissioner for an evidentiary hearing. The Deputy Commissioner filed an opinion and award on 10 January 2020, concluding that Ms. Cromartie was disabled following her receipt of Social Security Disability benefits and Goodyear's negotiated pension disability plan. The Deputy Commissioner gave "great weight" to the medical opinion of Dr. DeFranzo, compared to the opinions of the other medical experts, and his recommendation that Ms. Cromartie should be limited to sedentary work and concluded the Carcass Trucker position was not suitable employment for Ms. Cromartie. Defendants appealed to the Full Commission.
¶ 19 Following a hearing on 16 June 2020, the Full Commission filed its opinion and award on 24 November 2020. The Full...
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