Gonzalez v. Tidy Maids, Inc.

• Decision Date: 03 March 2015
• Docket Number: No. COA14–18.,COA14–18.
• Citation: 239 N.C.App. 469,768 S.E.2d 886
• Court: North Carolina Court of Appeals
• Parties: Prisila GONZALEZ, Employee, Plaintiff, v. TIDY MAIDS, INC., Employer, Erie Insurance Group, Carrier, Defendants.

239 N.C.App. 469

768 S.E.2d 886

Prisila GONZALEZ, Employee, Plaintiff,

v. TIDY MAIDS, INC., Employer,Erie Insurance Group, Carrier, Defendants.

No. COA14–18.

Court of Appeals of North Carolina.

March 3, 2015.

The Bricio Law Firm, P.L.L.C., by Francisco J. Bricio, for plaintiff-appellee.

McAngus, Goudelock & Courie, PLLC, Raleigh, by Laura Carter and Cassie M. Keen, for defendants-appellants.

GEER, Judge.

Defendants Tidy Maids, Inc. and its workers' compensation insurance carrier, Erie Insurance Group, appeal an opinion and award of the Full Commission reinstating disability compensation to plaintiff Prisila Gonzalez retroactively from 1 August 2011 and granting plaintiff's request for compensation for medical treatment related to pain in her back and her shoulder. Defendants primarily argue that they successfully rebutted the evidentiary presumption under Parsons v. Pantry, Inc., 126 N.C.App. 540, 485 S.E.2d 867 (1997), which provides that a plaintiff is entitled to a presumption that her current discomfort and related medical treatment are directly related to her compensable injuries ("the Parsons presumption").

Because, however, defendants presented no evidence suggesting that the pain and discomfort for which plaintiff now seeks compensation is unrelated to injuries the defendants accepted as compensable in 2010, we hold that defendants have failed to rebut the Parsons presumption. We find defendants' remaining arguments equally unpersuasive and affirm the opinion and award.

Facts

The following facts are undisputed. Plaintiff was born 13 January 1963 and has a sixth grade education received in Mexico. She speaks only a little English. Prior to her employment as a housekeeper with Tidy Maids, plaintiff worked as a housekeeper in hotels, homes, and offices and in the kitchen of a Bojangles.

On 10 September 2010, plaintiff was involved in a car accident while traveling from Tidy Maids' office to a job site. She sustained injuries to her head, neck, back, and right shoulder, and she suffered headaches and vertigo. On 29 September 2010, plaintiff gave notice of her injuries to her employer by filing a Form 18 "Notice of Accident." On 13 October 2010, defendants filed a Form 63, "Notice to Employee of Payment of Compensation Without Prejudice." Defendants commenced paying compensation at $155.00 per week beginning 13 September 2010. Plaintiff has not worked since the accident.

On 1 August 2011, defendants filed a Form 24, "Application to Terminate or Suspend Payment of Compensation," alleging that "plaintiff is no longer disabled ... as she has no restrictions on her ability to work at this time." On 7 November 2011, a special deputy commissioner granted defendants' Form 24 request, and defendants immediately ceased payments to plaintiff. On 10 January 2012, plaintiff filed a Form 33, "Request that Claim be Assigned for Hearing." On 19 January 2012, defendants filed a Form 33R, "Response to Request that Claim be Assigned for Hearing," arguing that plaintiff's claim should not be heard because the Form 33 request was untimely. Nonetheless, plaintiff's claim was heard before a deputy commissioner on 3 April 2012.

On 16 July 2012, plaintiff filed a Form 23, "Application for Reinstatement of Disability Compensation." The deputy commissioner granted defendants' Form 24 request and denied plaintiff's Form 23 request in an opinion and award filed 15 February 2013. Plaintiff appealed the deputy commissioner's decision to the Full Commission.

The Full Commission entered an opinion and award reversing the deputy commissioner's decision and entering an award in plaintiff's favor. The Full Commission's opinion and award made the following findings of fact. Plaintiff was injured in a car accident "while on the job" for defendant Tidy Maids on 10 September 2010.

Plaintiff first sought treatment, in September 2010, from Dr. Jeffrey Gerdes, a chiropractor, for neck pain, right shoulder pain with numbness to the right elbow, mid and low back pain, and headaches. Subsequently, in October 2010, she began receiving treatment from Dr. Kapil Rawal, a neurologist, upon referral from the defendant carrier. At that time, plaintiff complained of neck pain, back pain, pain from the shoulder down into the right arm, pain in the right leg, and headaches associated with stabbing pain, nausea, and vomiting on occasions. Dr. Rawal diagnosed plaintiff with neck sprain /strain, lumbar sprain /strain, post traumatic headache, dizziness, insomnia, and thoracic sprain /strain.

On 13 October 2010, defendants filed a Form 63 and began making payments to plaintiff without prejudice for the September 2010 accident, acknowledging that plaintiff's injuries included " ‘neck, back, headache, vertigo, [and] rt [sic] shoulder.’ " However, defendants subsequently failed to file a Form 61 denying the compensability of plaintiff's claim. As a result, the Commission found, plaintiff's claim "is deemed accepted."

Between 13 October 2010 and 1 August 2011, plaintiff not only saw Dr. Rawal for her back pain, but also, in May 2011, she was evaluated by Dr. Gary Smoot at Cary Orthopedics for lumbar pain. Dr. Smoot performed a physical exam and diagnosed plaintiff as having lumbar sprain and possible discogenic pain. Dr. Rawal kept plaintiff out of work from 27 October 2010 to mid-December 2010, and then from 19 January 2011 to mid-February 2011.

For problems with her shoulder, plaintiff received treatment from Dr. Brian Szura beginning in March 2011. Dr. Szura diagnosed plaintiff with having a "right rotator cuff strain with a possible tear[,]" as well as "some AC joint arthritis." Dr. Szura restricted plaintiff's use of her right arm but, in June 2011, he noted "maximum medical improvement" and released her to full duty work with respect to her shoulder.

On 12 May 2011, when plaintiff saw Dr. Rawal, he took her out of work for another week and restricted her to light duty work of "lifting no more than five (5) pounds ... for a period of six (6) weeks[,]" beginning 23 May 2011. Dr. Rawal testified at his deposition that these light duty work restrictions were not intended to be indefinite.

Dr. Smoot did not treat plaintiff or impose work restrictions because he did not have enough information " ‘to figure out what was going on.’ " Although plaintiff went to a follow-up appointment with Dr. Smoot on 8 June 2011, plaintiff and a nurse had a disagreement, and plaintiff left without seeing Dr. Smoot. Plaintiff did not see Dr. Smoot again after that appointment.

Plaintiff saw Dr. Rawal again on 10 May 2012, complaining of "severe low back pain, headaches, and right arm pain." Dr. Rawal diagnosed plaintiff with "lumbar sprain /strain, neck sprain /strain, post-traumatic stress headache, and dizziness" and kept plaintiff out of work for at least six weeks. The Full Commission further found that Dr. Rawal had testified that plaintiff's continuing back pain was caused by one of three possible conditions: "(1) the L1–2 floating disc herniation, (2) the L5–S1 disc bulge, or (3) the back sprain." In addition, the Commission found, Dr. Rawal expressed his opinion that given the mechanism of injury and findings from an MRI scan, there were likely two underlying pathologies of the pain: (1) the lumbar sprain, and (2) the radiculopathy because of an eccentric disc bulge.

The Commission then concluded that plaintiff was entitled, under Parsons, to a presumption that her current back and shoulder conditions were causally related to her compensable injury. The Commission further concluded that defendants had failed to offer any competent medical evidence that plaintiff's present back and shoulder pain were unrelated to her compensable injury and, therefore, defendants had failed to rebut the presumption that her current conditions were related to her compensable accident. Accordingly, the Commission determined that plaintiff was entitled to further medical treatment for her current back and shoulder conditions. With respect to plaintiff's right shoulder, the Commission also granted plaintiff's request for a second opinion.

Further, the Full Commission found sufficient evidence under Russell v. Lowes Prod. Distribution, 108 N.C.App. 762, 425 S.E.2d 454 (1993), that plaintiff was disabled from 1 August 2011 through 9 May 2012 and that "Plaintiff ... conducted a reasonable job search but was unsuccessful in finding employment...." According to the Commission, plaintiff also met her burden under Russell of showing that she had been disabled since 10 May 2012 because "Plaintiff has been completely written out of work since May 10, 2012 by Dr. Rawal." The Commission noted further that "Defendants offered no evidence to contradict Dr. Rawal's opinion that Plaintiff was unable to work as of May 10, 2012."

The Full Commission, therefore, concluded (1) that the special deputy commissioner had improvidently granted defendants' Form 24 request, (2) that plaintiff was entitled "to receive medical treatment [for her current conditions] that may reasonably be required to effect a cure, give relief, or tend to lessen Plaintiff's period of disability[,]" (3) that plaintiff was "entitled to a second opinion regarding her ongoing right shoulder pain [,]" and (4) that plaintiff was entitled to reinstatement of her disability compensation, including compensation from 1 August 2011 and continuing until plaintiff returns to work or further order of the Commission. Defendants timely appealed to this Court.

Discussion

" ‘Appellate review of an order and award of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal conclusions of the Commission.’ " Allred v. Exceptional Landscapes, Inc., ––– N.C.App. ––––, ––––, 743 S.E.2d 48, 51 (2013) (quoting Simon v. Triangle Materials, Inc., 106 N.C.App. 39, 41, 415 S.E.2d 105, 106 (1992) ). The Industrial Commission "is the sole judge of the credibility of the...