Everett v. Well Care & Nursing Services

• Decision Date: 21 November 2006
• Docket Number: No. COA06-103.,COA06-103.
• Citation: 636 S.E.2d 824
• Court: North Carolina Court of Appeals
• Parties: Charlene EVERETT, Employee, Plaintiff v. WELL CARE & NURSING SERVICES, Employer, Discovery Insurance Company, Carrier, Defendants.

636 S.E.2d 824

Charlene EVERETT, Employee, Plaintiff v. WELL CARE & NURSING SERVICES, Employer, Discovery Insurance Company, Carrier, Defendants.

No. COA06-103.

Court of Appeals of North Carolina.

November 21, 2006.

Appeal by defendants from opinion and award entered 5 October 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 September 2006.

Peter Grear Wilmington, for plaintiff-appellee.

Cranfill, Sumner & Hartzog, L.L.P., by Cameron D. Simmons and Meredith T. Black, Raleigh, for defendants-appellants.

MARTIN, Chief Judge.

Defendants appeal from an opinion and award of the North Carolina Industrial Commission awarding plaintiff ongoing temporary total disability compensation. Plaintiff suffered an admittedly compensable injury to her right wrist when she was involved in a car accident on 12 December 2000 while driving as part of her job as a social worker with defendant Well Care & Nursing Services ("Well Care"). After the accident, plaintiff experienced right wrist pain, and x-rays revealed no fracture. A subsequent MR arthrogram of plaintiff's wrist revealed a partial TFC tear with no evidence of major ligamentous injury. Initial treatment involved splinting and injection therapy. When those treatments were unsuccessful, plaintiff underwent arthroscopic surgery on her right wrist on 3 May 2001. Well Care and its carrier, Discovery Insurance Company, filed a Form 60 admitting compensability of plaintiff's injury to her right wrist. Defendants paid plaintiff temporary total disability while she was unable to work. Plaintiff received treatment for the injury to her right wrist until 14 December 2001, when she was found to have reached maximum medical improvement with a ten percent permanent partial impairment rating on the right wrist. Her physician stated that her wrist injury did not impair her ability to perform her job as a social worker.

On 23 July 2001, eleven weeks after her wrist surgery, plaintiff was leaving her house when she slipped on her back steps and fell, fracturing her left ankle. Plaintiff contends that she was unable to break her fall because of the injury to her right wrist. She testified that "when I realized I was slipping, I think my natural instinct kicked in. I didn't have strength in my hand to grab the [door]knob or the security bar.... As a result, to keep from re-injuring this hand, I just let it go, and I fell on my left side." Her left ankle fracture was addressed by two surgical procedures. Plaintiff continued to see her physician for her left ankle injury until July 2002 when she reached maximum medical improvement.

On 26 June 2002, plaintiff filed a request for hearing with the Industrial Commission seeking continuing temporary total disability compensation for her right wrist and alleging that the injury to her left ankle from the fall at home was causally related to the earlier injury to her right wrist and, therefore, was compensable. She contended that she was unable to work in any capacity. At the hearing before the deputy commissioner, plaintiff testified as follows:

THE COURT: ... [A]fter you finished your physical therapy, ... you're saying you never asked either the physical therapist or your doctor whether you could return to work or, you know, what work restrictions you would have. You also— you didn't contact, I'm assuming, your employer to see at that point if they would be willing to have you return to work; is that right?

THE WITNESS: Sir, I was not physically able to work.

THE COURT: But how do you know? I guess what my question is if you never asked the doctor, work restrictions have never been addressed, how is it that you determined that you are not able to work at all?

THE WITNESS: Because of the constant pain level and my movement. My job required me to do a lot of physical driving from county to county. Not only that, I was in and out of my truck or car, in and out, in and out. I was barely able to move, sir.

....

THE COURT: ... [H]ave you thought about other types of jobs that you might be able to do with your current condition?

THE WITNESS: I have thought about it, sir. But with my physical being the way it is and my pain and my conversations back and forth and going still back and forth to the doctor—I'm currently in physical therapy trying to get this ankle and leg to some type of normalcy where I'll be able to function like I did before I was injured. So, no, I had not inquired about it and neither had the doctor said anything to me about it.

Plaintiff offered no evidence from her doctors, chiropractor, or occupational therapist indicating that she was unable to work in any capacity.

The deputy commissioner denied compensability of the left ankle injury and awarded permanent partial disability compensation to plaintiff for the ten percent impairment rating on her right wrist. Plaintiff appealed the opinion and award to the Full Commission.

The Full Commission reversed, awarding plaintiff temporary total disability compensation for both the right wrist and the left ankle. Specifically, the Commission found that "but for the plaintiff's lack of use of her right hand due to her compensable injury by accident, she would have not fallen in the manner in which she fell and likely would not have fractured her left ankle." The Commission found that the slip and fall was work related because it was a direct and natural consequence of the compensable right wrist injury. The Commission also found that "[f]ollowing her slip and fall at home on July 23, 2001, the plaintiff was unable to work due to her fractured left ankle" and found that she had been temporarily and totally disabled since 23 July 2001, notwithstanding its finding that she had reached maximum medical improvement for her left ankle injury in July 2002. The Commission concluded that although plaintiff was entitled to permanent partial disability compensation for the ten percent disability to her right wrist, "her greater remedy at the present time" was to receive compensation for temporary total disability pursuant to N.C.G.S. § 97-29. Thus, the Commission awarded plaintiff continuing compensation for temporary total disability until "further order of the Commission," as well as medical treatment for her left ankle and right wrist.

Defendants appealed the Commission's determination that plaintiff's left ankle injury is compensable as arising out of and in the course of her employment, as well as its determination that she is entitled to ongoing compensation for temporary total disability.

Defendants make two arguments on appeal. First, defendants argue that the Commission erred in finding that plaintiff's left ankle injury was causally related to her right wrist injury because such findings were not supported by competent evidence and the findings did not support the conclusions of law that the injury was compensable. Second, defendants argue that the Commission erred in finding that plaintiff was and continues to be disabled as a result of her right wrist and left ankle injuries because the findings are not supported by competent evidence and do not support the conclusions of law that plaintiff is entitled to temporary total disability beginning on 23 July 2002 and continuing.

We first consider the issue of causation. Defendants argue that the Commission's finding of fact that the left ankle injury was causally related to the right wrist injury is not supported by any competent evidence and therefore the Commission erred in awarding compensation. An injury is only compensable if it "aris[es] out of and in the course of the employment." N.C. Gen.Stat. § 97-2(6) (2005). "`[A]rising out of' refers to the origin or causal connection of the accidental injury to the employment." Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). The plaintiff bears the burden of proving each element of compensability, including causation, by "a preponderance of the evidence." Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 234, 581 S.E.2d 750, 752, 754 (2003). Upon review, however, if there is any competent evidence to support the Commission's findings of fact, this Court must accept them as true. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).

Finding of fact 10 addresses causation where it states: "The Full Commission finds that, but for the plaintiff's lack of use of her right hand due to her compensable injury by accident, she would have not fallen in the manner in which she fell and likely would not have fractured her left ankle." Plaintiff testified:

A: Well, when I realized I was slipping, I think my natural instinct kicked in. I didn't have strength in my hand to grab the knob or the security bar here in the picture. As a result, to keep from re-injuring this hand, I just let it go, and I fell on my left side.

....

A: ......