Erickson v. Siegler

• Decision Date: 03 March 2009
• Docket Number: No. COA07-1420.,COA07-1420.
• Citation: 672 S.E.2d 772
• Parties: James M. ERICKSON, Employee, Plaintiff, v. Lear SIEGLER, Employer, American Motorist Insurance, Carrier, Defendants.
• Court: North Carolina Court of Appeals

672 S.E.2d 772

James M. ERICKSON, Employee, Plaintiff, v. Lear SIEGLER, Employer American Motorist Insurance, Carrier, Defendants.

No. COA07-1420.

Court of Appeals of North Carolina.

March 3, 2009.

Appeal by defendants from opinion and award entered 24 August 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 April 2008.

Brumbaugh, Mu & King, P.A., by Maggie S. Bennington, Jacksonville, for plaintiff-appellee.

Wilson & Ratledge, PLLC, by Kristine L. Prati, Raleigh, for defendants-appellants.

GEER, Judge.

Defendants Lear Siegler and American Motorist Insurance appeal the opinion and award of the Full Commission concluding that plaintiff James M. Erickson's cervical spine condition was a compensable injury. Defendants have not disputed that plaintiff suffered a compensable back injury, but contend that any workers' compensation benefits should be limited to disability and medical expenses arising out of plaintiff's lower back condition rather than his cervical spine condition. We find unpersuasive defendants' contention that the Commission's jurisdiction was timely invoked only as to a lumbar spine condition and not as to a cervical spine condition. Since, in addition, the record contains competent expert testimony supporting the Commission's determination that the compensable workplace accident caused the cervical spine condition, we affirm the Commission's opinion and award as to the cervical spine condition. We must, however, remand for further findings of fact regarding plaintiff's average weekly wage.

Facts

At the time of the hearing before the deputy commissioner, plaintiff was 57 years old. Plaintiff had served in the United States Army for 26 years, retiring in 1993. In November 1999, plaintiff was hired by defendant Lear Siegler as a mechanic. After working with Lear Siegler for two years, plaintiff was assigned to repair military vehicles.

On 6 June 2002, plaintiff was working on a water trailer and needed to change the axle. Plaintiff first removed the 150-pound wheel and hub and then removed the lug nuts and axle. After removing the axle, plaintiff stood up and turned to the right. As he turned, he felt a "pop" in his back and collapsed on the floor. Eventually, plaintiff stood back up, put away his tools, and went home for the day. The next morning, plaintiff could not get out of bed. He called Lear Siegler, told them what had happened the day before, and explained that he could not get out of bed.

Plaintiff experienced pain from his "neck on down," including pain in his arms and legs. Plaintiff made an attempt to go to work the following Monday, 10 June 2002, but his supervisor informed him that he needed a note from a doctor before returning to work. Lear Siegler did not, however, refer plaintiff to any doctor for medical treatment.

Plaintiff sought treatment at the Veterans Administration Hospital ("VA Hospital") on 11 June 2002. He was diagnosed with an exacerbation of lumbar disc disease and was referred for an MRI. An MRI was not, however, performed at that time. On 14 June 2002, plaintiff returned to the VA Hospital for re-evaluation of his lower back pain. He was prescribed 500 milligrams of Naproxen, and seven days of bed rest was recommended. Plaintiff returned again to the VA Hospital on 24 June 2002, complaining of lower back pain and pain radiating in his arms and legs. During the course of his treatment at the VA Hospital, the medical providers never gave plaintiff a release to return to work. Plaintiff has not, in fact, worked at Lear Siegler since 6 June 2002.

On 27 June 2002, defendants filed a Form 19 with the Industrial Commission. On 10 July 2002, defendants completed a Form 63—Notice to Employee of Payment of Compensation Without Prejudice—acknowledging (1) plaintiff's "claim" for "injury on 06/06/2002" and (2) that defendant-employer had "actual notice of employee's injury" on 7 June 2002. Defendants stated in the Form 63 that plaintiff's disability began on 7 June 2002 and that the first payment had been made to him on 27 June 2002. After filing the Form 63, defendants did not subsequently deny the claim within the time specified by N.C. Gen.Stat. § 97-18(d) (2007) (providing, upon payment without prejudice, that "[i]f the employer or insurer does not contest the compensability of the claim or its liability therefor within 90 days from the date it first has written or actual notice of the injury or death, or within such additional period as may be granted by the Commission, it waives the right to contest the compensability of and its liability for the claim under this Article").

Defendants began directing plaintiff's medical treatment by arranging for plaintiff to be seen by Dr. Timothy R. Detamore at Carolina Neurosurgical Services, P.A. on 14 August 2002. Dr. Detamore, however, noted that there were no MRIs or x-rays of plaintiff's spine and requested that these tests be completed prior to his examination of plaintiff. On 12 September 2002, plaintiff returned to Dr. Detamore's office for a complete evaluation, complaining primarily of back and leg pain. Following the examination, Dr. Detamore diagnosed plaintiff as having cervical myelopathy, cervical radiculopathy, and lumbar radiculopathy. He ordered a myelogram and took plaintiff out of work until 4 October 2002, the date of plaintiff's next scheduled visit to Dr. Detamore's office.

On 16 September 2002, plaintiff underwent pre-myelogram studies. The studies revealed degenerative disc disease at L5-S1, mild degenerative disc disease at C4-5 and C6-7, and a prior fusion at C5-6. Plaintiff's myelogram on 23 September 2002 revealed a prior fusion at C5-6 with unremarkable findings; broad disc bulges at C3-4, C4-5, and C6-7; and broad based disc bulges at L3-4, L4-5, and L5-S1. Defendants paid for these tests.

When plaintiff returned to Dr. Detamore's office on 3 October 2002, the doctor recommended that plaintiff undergo an anterior cervical diskectomy, spondylectomy, osteophytectomy, bilateral foraminotomy, and partial corpectomy at the C3-4 and C4-5 levels. Dr. Detamore performed the surgery on 24 October 2002. At the time of plaintiff's surgery, defendants had not denied liability for plaintiff's neck condition. At some point after the surgery, however, defendants refused to cover the cost of the procedure.

Dr. Detamore ultimately expressed the opinion that the workplace incident necessitated the surgery he performed. He explained:

What [plaintiff] came to me for was complaints of pain which he said was in his low back and leg. The complaints of pain in my medical opinion was [sic] a combination of cervical myelopathy, cervical radiculopathy, spinal cord compression, and nerve root irritation which was brought on at the time of the lifting of this heavy weight. That's what caused those symptoms to become present even though he had the pre-existing condition of degenerative osteoarthritis.

He added that when he examined plaintiff, plaintiff "did come to me with this complaint of a lumbar radicular complaint only. And yet on my examination, I found not as much of a problem with a[sic] lumbar radicular symptoms and signs on his examination. I found more of cervical both myelopathy and radiculopathy and that his focus was primarily on a[sic] lumbar radicular symptoms."

Dr. Detamore retired after plaintiff's surgery and transferred plaintiff's care to Dr. Carol Wadon, another doctor from Carolina Neurosurgical Services. When Dr. Wadon initially examined plaintiff on 7 November 2002, plaintiff complained of numbness in his arms and difficulty turning his head. Dr. Wadon recommended a cervical MRI that revealed evidence of post-operative changes at C3-4 and C4-5 with some persistent stenosis. Dr. Wadon recommended that plaintiff undergo further cervical surgery that was performed on 27 November 2002.

On 17 January 2003, Dr. Wadon ordered an MRI that indicated mild multilevel spondylosis and degenerative disc disease most prominent at the L4-5 and L5-S1 levels. On 27 February 2003, Dr. Wadon determined that plaintiff had reached maximum medical improvement and assigned a 10% permanent partial impairment rating to his low back. Rather than recommend additional surgery, Dr. Wadon referred plaintiff to pain management. Dr. Wadon concluded that plaintiff's cervical problems were the result of degenerative changes. Defendants did not pay for the 27 November 2002 surgery, but they did pay for treatment provided by Dr. Wadon on 27 February 2003 as well as the 17 January 2003 diagnostic tests.

Dr. Wadon referred plaintiff to Dr. Toni Harris at Eastern Carolina Pain Management for his low back and bilateral extremity pain. Dr. Harris diagnosed plaintiff with low back and bilateral lower extremity pain related to his workplace injury and neck and shoulder pain secondary to his fusion surgery. Dr. Harris treated plaintiff with epidural steroid injections for his back and a referral to physical therapy. Plaintiff was released from Dr. Harris' care on 15 October 2003. Dr. Harris determined that plaintiff had reached maximum medical improvement, and plaintiff was assigned a 5% permanent partial impairment rating to his low back. He recommended that plaintiff undergo a functional capacity evaluation.

On 28 July 2004, plaintiff filed a Form 18, reporting an injury to his back and legs as a result of the incident on 6 June 2002. On 4 October 2004, the functional capacity evaluation recommended by Dr. Harris was performed. The results of that evaluation indicated that plaintiff was capable of performing sedentary work. On 21 October 2004, plaintiff filed a Form 33, Request for Hearing, alleging injury to his upper, middle, and lower back.

Defendants filed a Form 33R and amended Forms 33R in response to plaintiff's request for hearing on 7 January, 11 January, and 9 March 2005 in which they notified the Commission that they refused to pay for plaintiff's neck treatment. In addition, on...