Harris v. Southern Commercial Glass
| Decision Date | 16 August 2016 |
| Docket Number | No. COA15–1363,COA15–1363 |
| Citation | 249 N.C.App. 26,789 S.E.2d 735 |
| Court | North Carolina Court of Appeals |
| Parties | Gurney B. HARRIS, Employee, Plaintiff, v. SOUTHERN COMMERCIAL GLASS, Employer, AUto Owners Insurance, Carrier, Defendants–Appellees, and Southeastern Installation Inc., Employer, Cincinnati Insurance Company, Carrier, Defendants–Appellants. |
Law Office of Michael A. Swann, P.A., Lexington, by Michael A. Swann, for plaintiff-appellee.
McAngus, Goudelock & Courie, P.L.L.C., Charlotte, by Viral V. Mehta and Carl M. Short III, for defendants-appellees.
Muller Law Firm, Raleigh, by Tara Davidson Muller, and Anders Newton PLLC, by Jonathan Anders and Ray H. "Tripp" Womble, III, for defendants-appellants.
Southeastern Installation, Inc. (defendant, with Cincinnati Insurance Company, defendants) appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission"), finding defendants solely liable for workers’ compensation medical and disability payments to Gurney Harris (plaintiff) that arose after 1 April 2014, as a result of plaintiff's injury on that date. On appeal, defendants argue that the Commission erred by failing to apportion liability for plaintiff's workers’ compensation benefits between defendants and plaintiff's previous employer, Southern Commercial Glass, Inc. (appellee, with Auto Owners Insurance Company, appellees). We conclude that the Commission did not err in its Opinion and Award.
The parties agree that plaintiff is entitled to workers’ compensation medical and disability benefits for injury to his back arising from and occurring in the course of his employment. The controversy between the parties concerns the question of whether the Commission properly determined the liability for plaintiff's workers’ compensation benefits.
On 13 July 2010, plaintiff suffered a back injury while working for appellee at a job site in Georgia. Appellees accepted plaintiff's claim as compensable, and plaintiff received workers’ compensation medical and disability benefits. After this injury, plaintiff returned to his home in Lexington, North Carolina, and on 30 November 2011, plaintiff and appellees agreed to a change of jurisdiction from Georgia to North Carolina. Upon his return to Lexington, plaintiff consulted his family physician for treatment of low back pain radiating into his left leg. Plaintiff's family doctor recommended an MRI, which showed a disc protrusion on the left at L4–L5. Plaintiff's family doctor referred plaintiff to Dr. Tadhg O'Gara, an orthopedist at Wake Forest Baptist Medical Center, for treatment of back pain. Plaintiff treated conservatively with Dr. O'Gara, undergoing physical therapy and an epidural steroid injection. However, plaintiff continued to experience low back pain and on 7 October 2010, Dr. Ishaq Syed performed a left L4–L5 microdiscectomy surgery on plaintiff.
Dr. Syed reviewed an MRI conducted on 1 February 2011, and after finding no recurrent disc herniation, he referred plaintiff back to Dr. O'Gara. Plaintiff's last appointment with Dr. O'Gara was on 28 June 2011, at which time plaintiff reported having symptoms that "come and go" and that decreased with the use of anti-inflammatory medications. At this visit, Dr. O'Gara assessed plaintiff at maximum medical improvement with a fifteen percent (15%) permanent partial impairment rating to the back and permanent restrictions of lifting up to seventy-five (75) pounds.
At some point after plaintiff's accident in July 2010, appellee terminated plaintiff's employment, although appellees continued to pay plaintiff workers’ compensation benefits. In January 2012, plaintiff began working for defendant, at which time plaintiff informed defendant about his July 2010 work-related injury and his resultant workers’ compensation claim. Plaintiff told defendant that he had undergone back surgery, that he might need another surgery, and that appellees were paying for all medical treatment related to his July 2010 injury. As of 17 July 2014, the date of the hearing on this matter, plaintiff was still employed by defendant, and appellee was no longer in business.
Dr. Max Cohen, an orthopedic surgeon in Greensboro, North Carolina, has been plaintiff's authorized treating physician since 4 May 2012. When plaintiff first consulted Dr. Cohen, he told Dr. Cohen about his prior injury and surgery, and reported that his post-operative pain, which he rated as a five on a scale of one to ten, was improving. At that meeting, Dr. Cohen noted that plaintiff's symptoms were "fairly mild" and that plaintiff could continue working full time. Plaintiff returned to Dr. Cohen on 25 July 2012, with complaints of back pain radiating into his left leg. Dr. Cohen ordered an MRI but continued plaintiff's release to work full time. A third MRI, obtained on 13 August 2012, showed evidence of the prior surgery at L4–L5 with recurrent/residual disc material protrusion abutting the traversing left L5 nerve root. Between September 2012 and April 2014, plaintiff was treated with pain medication, steroid injections, and medication patches. During this time, plaintiff experienced several instances of back pain that lasted for a day or more. However, plaintiff continued to work full time, sometimes as much as 70 hours a week, and continued to reject the suggestion of further surgery.
On 1 April 2014, while plaintiff was working in New York City on a job for defendant, he bent over slightly and then was unable to straighten his back. Plaintiff experienced acute pain, and testified that the severity of the pain was such that it was all he could do to walk to his hotel shower and back to bed. Plaintiff remained in bed for several days until he returned to North Carolina. Upon returning to North Carolina, plaintiff consulted with Dr. Cohen on 11 April 2014. Following this visit, Dr. Cohen placed plaintiff out of work, effective 1 April 2014. Plaintiff did not work from 1 April 2014 until the date of the hearing on this matter.
On 30 April 2014, Dr. Cohen requested authorization for plaintiff to undergo L4–L5 fusion surgery. On 5 May 2014, appellees confirmed that the surgery was authorized and that indemnity compensation would be paid from 1 April 2014. The surgery was scheduled for 19 May 2014; however, on 13 May 2014, appellees revoked their authorization and denied payment of compensation on the grounds that plaintiff had suffered a new injury on 1 April 2014, for which appellees were not liable. On 15 May 2014, plaintiff filed a motion seeking an order requiring appellees to pay for plaintiff's surgery. On 28 May 2014, former Deputy Commissioner Victoria Homick denied plaintiff's medical motion, and on 29 May 2014, former Deputy Commissioner Homick ordered that defendants be added as parties.
Appellees and defendants each filed an Industrial Commission Form 61 denying plaintiff's claim for workers’ compensation medical benefits related to his surgery. Defendants contended that plaintiff's need for surgery arose from the preexisting medical condition caused by his compensable injury in July 2010, and that appellees should be responsible for plaintiff's workers’ compensation benefits. Appellees asserted that plaintiff suffered a new injury on 1 April 2014, and that defendants were liable for workers’ compensation benefits related to the new injury. The case was heard on 17 July 2014 before Deputy Commissioner Chrystal Redding Stanback. On 18 March 2015, Deputy Commissioner Stanback issued a second amended opinion and award, holding that plaintiff did not suffer a compensable injury on 1 April 2014, that plaintiff's need for surgery was caused by his 13 July 2010 injury, and that appellees were solely liable for plaintiff's workers’ compensation medical and disability benefits.
Appellees appealed to the Full Commission, which heard the case on 5 August 2015. On 3 September 2015, the Commission, in an opinion and award issued by Commissioner Danny L. McDonald with the concurrence of Industrial Commission Chairman Andrew T. Heath and Commissioner Charlton L. Allen, reversed Deputy Commissioner Stanback's opinion and award. The Commission found that plaintiff suffered an injury by accident as a result of a specific traumatic incident occurring on 1 April 2014; that this accident materially aggravated his back condition; and that defendants were solely liable for plaintiff's workers’ compensation benefits. Defendants noted a timely appeal from the Commission's opinion and award to this Court.
It is long established that this Court reviews the opinions and awards of the Industrial Commission in order to determine "(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact." Clark v. Wal–Mart , 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (citation omitted). The " ‘[Industrial] Commission is the sole judge of the credibility of the witnesses and the [evidentiary] weight to be given their testimony.’ " Adams v. AVX Corp ., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Construction Co ., 265 N.C. 431, 433–34, 144 S.E.2d 272, 274 (1965) ). Freeman v. Rothrock , 202 N.C.App. 273, 275–76, 689 S.E.2d 569, 572 (2010) (). We review the Commission's conclusions of law de novo . Griggs v. Eastern Omni Constructors , 158 N.C.App. 480, 483, 581 S.E.2d 138, 141 (2003).
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