Franklin v. Broyhill Furniture Indus. Inc.
| Decision Date | 06 September 2011 |
| Docket Number | NO. COA10-1334,COA10-1334 |
| Court | North Carolina Court of Appeals |
| Parties | JAMES ALLEN FRANKLIN, Plaintiff v. BROYHILL FURNITURE INDUSTRIES, INC., a Subsidiary of FURNITURE BRANDS, INTERNATIONAL, INC. Defendant |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
From the N.C. Industrial Commission
Appeal by defendant from Opinion and Award entered 9 July 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 22 March 2011.
Randy D. Duncan for Plaintiff-appellee.
Law Offices of Gary A. Scarzafava, by Gary A. Scarzafava, for Defendant-appellant.
Defendant Broyhill Furniture Industries, Inc., appeals from an Opinion and Award entered by the Industrial Commission awarding workers' compensation disability and medical benefits to Plaintiff James Franklin. On appeal, Defendant argues that the Commission erred by awarding Plaintiff temporary totaldisability, finding that Plaintiff is unable to work as a truck driver, and ordering that Dr. Stephen David periodically monitor Plaintiff's spinal condition. After careful consideration of Defendant's challenges to the Commission's order in light of the record and the applicable law, we conclude that, except for its determination that Plaintiff was disabled, which is not supported by sufficient factual findings and which must be reversed and the subject of further proceedings on remand, the Commission's order should be affirmed.
Plaintiff was born on 22 March 1944, left school after the tenth grade, and never obtained a general equivalency diploma. As of the date of the hearing held before the deputy commissioner in this case, Plaintiff was 65 years old and had worked as a truck driver for approximately forty years. In October 1983, Plaintiff began working for Defendant as a long distance truck driver, a position that required him to lift furniture.
On 4 October 2007, Plaintiff was making a delivery near Dallas, Texas, when he "just fell out of the trailer" and suffered an admittedly compensable back injury. Although Plaintiff immediately experienced back and hip pain, hecompleted the delivery job. However, Plaintiff was in pain throughout the remainder of the trip.
Upon returning from Texas, Plaintiff sought medical treatment for his injury. Between 8 October 2007 and 28 March 2008, Plaintiff was treated by Dr. David Abernathy, an internist, who diagnosed Plaintiff with lower back pain, prescribed pain medications, and released Plaintiff to return to work as a truck driver on 8 October 2007, subject to the restriction that he not load or unload trucks. Plaintiff's back pain did not, however, abate.
On 28 March 2008, Dr. Abernathy referred Plaintiff for an evaluation by Dr. James Stanislaw, an orthopedic surgeon, who diagnosed Plaintiff with degenerative disk disease, back pain, and right leg radiculitis. Dr. Stanislaw continued the medications previously prescribed by Dr. Abernathy, ordered an MRI, and released Plaintiff to return to work as a truck driver on the condition that he not do any lifting.
After the MRI was performed on 26 Apri1 2008, Dr. Stanislaw reported that it "revealed encroachment on the existing nerve root at L5-S1 predominantly by bony degenerative change and some disk desiccation as well as degenerative changes encroaching on the left neural exit foramen at L4-5 with multi-level degenerative disk disease." As a result, Dr. Stanislawrecommended that Plaintiff be treated with lumbar epidural steroid injections for pain management, continued Plaintiff's existing work restrictions in effect, and allowed Plaintiff to work as a long distance truck driver as long as he could do so safely while taking Tramadol, the narcotic-like pain reliever that had been prescribed for Plaintiff.
After having worked for Defendant for more than twenty-five years, Plaintiff was terminated from his employment on 29 May 2008 for failing to immediately report an accident, having had three accidents in eighteen months, allegedly tampering with the truck's speed governor, and leaving his truck in a disorderly condition. After his termination, Plaintiff continued to seek medical treatment for his back condition.
On 2 July 2008, Plaintiff was seen by Dr. Hans Hansen, a pain management specialist, who diagnosed Plaintiff as having degenerative disease of the lumbar spine accompanied by facet syndrome and recommended both a lumbar epidural and the use of hydrocodone and other pain relievers. On 23 July 2008, Dr. Hansen recommended that two devices, an RS-4i stimulator and an RS-LB Low Back Conductive Garment, be made available for Plaintiff's daily home therapy use; this recommendation was ultimately approved and implemented. In addition, Dr. Hansen administered three lumbar epidural steroid injections, whichprovided Plaintiff with some limited relief. Penny Mitchell, a nurse practitioner supervised by Dr. Hansen, ultimately concluded that "Plaintiff had [experienced] no significant improvement with conservative treatment" and referred him to Dr. Stanislaw. On 3 November 2008, Plaintiff was evaluated by Dr. Stanislaw, who recommended that an EMG and nerve conduction study be performed and released Plaintiff to return to work as long as he did not lift more than 40 pounds.
On 21 October 2008, Plaintiff received authorization to obtain a second opinion from Dr. Stephen David, an orthopedic surgeon with training in treating spinal disorders. On 20 January 2009, Dr. David determined that Plaintiff was a suitable candidate for L4/5 and L5/S1 decompression and stabilization surgery. However, Dr. David recommended a preliminary course of physical therapy followed by a spinal fusion if Plaintiff failed to improve. Dr. David did not believe that Plaintiff was able to perform his duties as a long distance truck driver, even subject to a "no loading" restriction, because he could not remain in a seated position for the required length of time. In Dr. David's opinion, Plaintiff's 4 October 2007 fall significantly exacerbated his underlying back condition. Subsequently, Dr. Stanislaw agreed to transfer Plaintiff's care to Dr. David.
On 30 March 2009, Plaintiff saw Dr. Laura Fleck, a neurologist, who diagnosed Plaintiff as having "lumbar radiculagia on the right side and potentially facet-mediated lumbar pain." According to Dr. Fleck, Plaintiff's symptoms stemmed from his 4 October 2007 injury. Dr. Fleck prescribed the RS-4i stimulator that had been recommended by Dr. Hansen and indicated that Plaintiff would need to use this stimulator for the remainder of his life. Dr. Fleck did not, however, recommend that Plaintiff undergo back surgery. On 29 June 2009, Dr. Fleck concluded that Plaintiff had reached maximum medical improvement. In addition:
. . . Dr. Fleck opined that Plaintiff is permanently restricted to light duty, which would include occasional lifting of up to twenty (20) pounds, frequent lifting of under eight (8) pounds, the ability to alternate sitting and standing every fifteen (15) to twenty (20) minutes, and no operation of heavy equipment. Dr. Fleck opined that Plaintiff would not be able to load or unload a tractor-trailer, due to the lifting restrictions. In addition, due to the requirement that Plaintiff alternate between sitting and standing every fifteen (15) to twenty (20) minutes, Dr. Fleck did not think it was realistic for Defendant to expect Plaintiff to be able to perform his duties as a long distance truck driver.
Plaintiff agreed that he would be unable to perform his job duties for Defendant without violating the restrictions to which he was subject.
After Plaintiff was terminated by Defendant, he sought other employment as a truck driver. At the hearing held before the deputy commissioner, Plaintiff produced a job search log indicating that he had contacted various companies on a weekly basis. However, Plaintiff stated that he had been unable to obtain suitable employment given his physical limitations.
On 30 May 2008, Plaintiff filed a Form 18 seeking workers' compensation benefits. On 17 September 2008, Defendant filed a Form 63 in which it accepted Plaintiff's claim for medical benefits without prejudice to its ability to deny the compensability of Plaintiff's claim at a later time. On 22 September 2008, Plaintiff filed a Form 33 in which he requested a hearing on his disability benefits claim. In response, Defendant filed a Form 33R in which it alleged that Plaintiff was not entitled to receive disability benefits because he had constructively refused suitable employment by violating company and federal regulations.
On 23 April 2009, a hearing was held concerning Plaintiff's claim before Deputy Commissioner Victoria M. Homick. On 14 December 2009, Deputy Commissioner Homick issued an order awarding Plaintiff temporary total disability compensation from 29 May 2008 until further order of the Commission, medicalbenefits, and attorneys' fees. Defendant noted an appeal from Deputy Commissioner Homick's order to the Commission. On 9 July 2010, the Commission filed an Opinion and Award by Commissioner Danny Lee McDonald, with the concurrence of Commissioner Staci T. Meyer and Chair Pamela T. Young, affirming Deputy Commissioner Homick's order. Defendant noted an appeal to this Court from the Commission's order.
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