Horsey v. Goodyear Tire & Rubber Co.
| Docket Number | COA23-107 |
| Decision Date | 16 January 2024 |
| Parties | LAYMAN L. HORSEY, Employee, Plaintiff, v. GOODYEAR TIRE & RUBBER COMPANY, Employer, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 20 September 2023.
Appeal by Defendants from judgment entered 1 November 2022 by the N.C. Industrial Commission, No. 14-009286
Lennon, Camak & Bertics, PLLC, by Michael W. Bertics, for the Plaintiff-Appellee.
Hedrick, Gardner, Kincheloe & Garofalo, LLP, by M. Duane Jones and Matthew J. Ledwith for the Defendant-Appellant.
Goodyear Tire & Rubber Company ("Employer") and Liberty Mutual Insurance Company ("Carrier") (collectively "Defendants") appeal from an opinion and award of the North Carolina Industrial Commission ("the Commission") affirming Layman L. Horsey's ("Plaintiff") claim and concluding Plaintiff was entitled to change his treating physician and receive temporary disability benefits. After careful review, we affirm the Commission's Opinion and Award.
After serving in the United States military and working for the City of Fayetteville, Plaintiff obtained a job with Employer's predecessor, Kelly Tires, in 1996. On 6 March 2014, Plaintiff injured his neck and right shoulder while working as a tread booker.
Plaintiff was initially treated at Employer's onsite medical clinic and was placed on light duty for thirty days. When his condition did not improve, Plaintiff was scheduled for an MRI on his shoulder and referred to Dr. Szura, a board-certified orthopedist with a subspecialty in sports medicine. Dr. Szura began treating Plaintiff on 9 January 2015. Although Dr. Szura practices "general orthopedics," forty percent of his practice is devoted to shoulder injuries and resulting conditions. In total, Dr. Szura performed three surgeries on Plaintiff's shoulders. Specifically, Dr. Szura performed a right shoulder open rotator cuff repair, debridement, synovectomy, distal clavicle resection, and subacromial decompression on 25 February 2015.
On 6 March 2015, Defendants filed a Form 60 Employer's Admission of Employee's Right to Compensation for a 6 March 2014 compensable injury to Plaintiff's "right side neck & shoulder." Defendants accepted the compensability of Plaintiff's injury and, when he became disabled due to the injury, commenced disability payments effective 25 February 2015. On 20 March 2015, Defendants amended Form 60 to reflect Plaintiff's correct average weekly wage and compensation rate and described the compensable conditions as "Strain to Right Side of Neck and Shoulder." On 16 September 2015, Dr. Szura performed a synovectomy, debridement, bursectomy, and manipulation on Plaintiff's right shoulder and later performed a left shoulder open rotator cuff repair, debridement, synovectomy, distal clavicle resection, and subacromial decompression on 28 September 2016. Plaintiff participated in physical therapy following each surgery.
On 7 March 2017, Dr. Szura ordered a functional capacity evaluation ("FCE") to determine Plaintiff's permanent work restrictions. On 22 March 2017, Plaintiff underwent an FCE performed by Frank Murray, ("Mr. Murray") a physical therapist, who provides physical therapy for work injuries, develops functional job descriptions, performs FCEs, and return to work evaluations for Defendant Employer.
However, the FCE indicated Plaintiff "does not have the physical ability to return to his regular job as a tread booker" but has "the physical ability to perform a number of other jobs in the plant." The FCE recommended that a "job match should be performed using the associate as a guideline in determining which of the available jobs at the [Employer's] plant will match [Plaintiff's] current level of function."
On 11 April 2017, Dr. Szura determined, at a follow-up appointment for the FCE review, that Plaintiff had reached maximum medical improvement ("MMI") for both his right and left shoulders and that permanent work restrictions should be provided for Plaintiff consistent with the FCE. On 4 May 2017, Dr. Szura assigned permanent impairment ratings of seventeen percent to Plaintiff's right arm and fifteen percent to his left arm.
Defendants performed a job match for Plaintiff based upon the permanent work restrictions. In August 2017, Plaintiff initially returned to work in a position operating a forklift, but he was unable to perform that job due to substantial pain and went out of work again. On 12 March 2018, Plaintiff successfully completed the test for the Repair Green Tire and Stock ("green tire") position and returned to work in that position on 18 March 2018. This position involved "transferring skids of scrap material from the tire fabrication machines to a different part of the facility using a fork truck." The written job description for the green tire position does not list any job demands outside of the restrictions of Plaintiff's FCE.
After Plaintiff returned to work in the green tire position, Employer consolidated a variety of other jobs in the tire room, which required a different set of employees to stack the scrap material Plaintiff was responsible for transporting. According to Plaintiff, as a result of these changes, the materials were not properly stacked on the skids. Plaintiff's supervisor, Mr. Smith, instructed Plaintiff to pull apart stuck rubber and properly stack the scrap material on the skids, which required actions outside of Plaintiff's job restrictions. Plaintiff alleged Mr. Smith refused to eliminate such duties from Plaintiff's job responsibilities as Plaintiff was told to "[e]ither do the job or go home," so Plaintiff complied with his supervisor's orders.
On 20 August 2018, Plaintiff visited Employer's onsite medical clinic and reported pain in both shoulders resulting from Employer adding "a new duty to [his] job description." The medical note from the appointment indicates Plaintiff reported the additional tasks outside of his restrictions to Mr. Murray and Plaintiff's managers.
On 10 October 2018, Plaintiff requested Employer's onsite clinic set up an appointment with Dr. Szura due to "sharp pains" in both shoulders. Plaintiff continued to report that he was performing work outside his job restrictions and had spoken to Mr. Murry "about it again and he was going to talk to the department, but nothing has changed." According to Mr. Murray, on an unknown date, he spoke with Mr. Sariff, Defendant's Business Center Manager, about Plaintiff's concerns that his work was outside his restrictions and that the issue needed to be corrected to avoid the risk of additional injury. In another instance, Mr. Murray alleged Plaintiff was instructed by Mr. Sariff not to do anything he "wasn't supposed to be doing" concerning his job description.
On 29 March 2019, Plaintiff returned to Dr. Szura who noted Plaintiff complained of bilateral shoulder pain radiating into his upper arm, intermittent numbness and tingling to his right hand, painful popping in both shoulders, limited overhead range of motion in both shoulders, and had difficulty "turning a steering wheel at times." However, Dr. Szura's medical notes indicated Plaintiff's shoulder x-ray showed no significant evidence of degeneration since the 2016 surgery and Plaintiff reported his belief that his work did not exceed the restrictions in place. After Plaintiff's examination, Dr. Szura indicated there had been no progressive degeneration or arthropathy in either shoulder, but Plaintiff would likely continue to experience discomfort in both shoulders with prolonged use due to his history of shoulder surgeries. Dr. Szura's medical notes stated Plaintiff's work restrictions should remain the same, and Dr. Szura offered no additional orthopedic treatments to Plaintiff.
On 27 August 2019, Plaintiff, on his own initiative, received a second opinion from Dr. Wilson to address his complaints of shoulder pain, neck pain, and numbness in his hand. Dr. Wilson examined Plaintiff, noting 10 degrees of limitation of forward flexion and 10 degrees of limitation of external motion of Plaintiff's right arm, as well as some weakness with rotator cuff testing. Following the examination, Dr. Wilson's medical notes stated, "I believe the current issues he is having [are] related to the original work comp injury that happened." He recommended MRIs of Plaintiff's neck and right shoulder but did not suggest any job restrictions.
On 3 February 2020, the parties entered into a Consent Order where Defendants authorized the MRI evaluations and a corticosteroid injection recommended by Dr. Wilson. The Consent Order explicitly stated that the "authorization is made without prejudice and does not constitute a formal selection of [Dr. Wilson] as the authorized treating physician for [P]laintiff's compensable conditions." The Consent Order also indicated that after the procedures were completed, "if the parties are unable to reach an agreement regarding the course of [...
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