Jean v. Miller Orthopaedic Clinic, Inc., No. COA08-1077 (N.C. App. 7/7/2009)
| Decision Date | 07 July 2009 |
| Docket Number | No. COA08-1077,COA08-1077 |
| Court | North Carolina Court of Appeals |
| Parties | CAROLYN JEAN "C.J." GESEL, Employee, Plaintiff, v. MILLER ORTHOPAEDIC CLINIC, INC., Employer, and SELECTIVE INSURANCE COMPANY, Carrier, Defendants. |
Rudisill, White & Kaplan, P.L.L.C., by Bradley H. Smith, for defendants.
The Sumwalt Law Firm, by Vernon Sumwalt and Mark T. Sumwalt, for plaintiff.
On 22 May 2002, C.J. Gesel (plaintiff) sustained an admittedly compensable injury while employed by Miller Orthopaedic Clinic (defendant Clinic; together with its insurer Selective Insurance Company, defendants). While lifting a paraplegic patient onto an x-ray table in her position as an x-ray technician for defendant Clinic, plaintiff sustained an injury to her back. As an x-ray technician, plaintiff earned an average weekly wage of $832.21. After her injury, she did not work again until 16 December 2002, when she returned to work for defendant Clinic as a coding specialist, earning $670.39 per week.
On 10 April 2003, plaintiff was terminated as a coding specialist after several doctors left defendant Clinic to start a new practice. Plaintiff eventually found new work as an insurance coordinator at Pathology Associates, where she began work on 7 August 2003 and earned a weekly wage of $452.03. The requirements of her new job required plaintiff to frequently "bend, squat, and stoop" in order to pick up boxes of documents, which caused plaintiff back and leg pain. She frequently had to enlist other employees to help her lift boxes and open filing cabinets. Plaintiff was working approximately thirty-two hours per week for Pathology Associates despite continued back pain, leg pain, and intolerance to over twenty different medications prescribed to treat the pain.
In 2004, plaintiff and defendants mediated portions of plaintiff's request for temporary partial disability payments from defendants. On 27 January 2005, a deputy commissioner issued an Opinion and Award settling the remaining disputes between plaintiff and defendants. The Opinion held, inter alia, that defendants' measurement of disability payments to plaintiff would be determined by plaintiff's wages as a coding specialist, rather than her lower wages as an insurance coordinator. Neither plaintiff nor defendants appealed this determination.
On 10 November 2005, Dr. Kern Carlton forbade plaintiff from working on account of plaintiff's worsening pain. Dr. Carlton suggested numerous treatment options, including lumbar fusion surgery, epidural steroid injections, aquatic therapy, a spinal cord stimulator implant, and a four-week comprehensive functional restoration program. However, Dr. Hunter Dyer and Dr. John Welshofer recommended against the lumbar fusion surgery because plaintiff's pain was neurogenic, not orthopedic, in origin. The epidural steroid injections caused pressure on plaintiff's nerve, resulting in her being bed-ridden for a week in January 2006. The aquatic therapy was equally inefficacious because it only relieved pain during the time that plaintiff was in the pool. As for the spinal cord stimulator implant, Dr. Carlton indicated that he could not find "any patients that had had success with it[,]" and plaintiff ultimately decided against that option. Plaintiff attempted to participate in the four-week restoration program, but after just two days, Dr. Carlton "excused [plaintiff] from the program because it did not appear that she would make the improvement that was expected."
On 16 May 2006, Dr. Carlton allowed plaintiff to seek employment but only on the stipulation that she not work more than two hours per day, five days per week, with the hope that she might eventually be able to work longer hours. That same day, plaintiff contacted Kim Bradley, her previous supervisor at Pathology Associates, about returning to work on a part-time basis. Bradley agreed to allow plaintiff to return to work on 22 May 2006 at reduced hours; however, plaintiff called Bradley three days later and informed her that she would not be taking the position after all. Plaintiff claimed that Bradley wanted her to return to full-time work within two weeks and that plaintiff was afraid that she would not be able to progress physically so as to meet that timeline and that she would just end up being terminated. Bradley testified that, while Pathology Associates would eventually have needed plaintiff to work full-time, she had not imposed any kind of timeline on plaintiff. Since then, plaintiff said that she has not worked any jobs because
physically [I] have reached the end of my rope. I'm not — I'm not scared of trying anything, doing anything. If there was a treatment out there, I would — I would do it. I worked years in pain. I have fought with the doctors to let me work. And it's just to a point now where I cannot tolerate it anymore. And I worry — I worry that — when I look back four years ago, and I could brush my teeth without any problem, and recently it's becoming a problem, now I worry what it's going to be like in a year, two years. I'm not old and — I'm sorry. I'm scared.
On 9 October 2006, defendants filed a hearing request with the Commission contending that, as a result of plaintiff's failure to accept the ten-hour-per-week job at Pathology Associates in May 2006, the temporary disability benefits that defendants had been paying to plaintiff since the 27 January 2005 Opinion and Award should be suspended or terminated. On 30 May 2007, Deputy Commissioner Philip A. Baddour, III, issued his Opinion and Award indicating that the job offered to plaintiff in May 2006 was not suitable employment and, therefore, plaintiff had been entitled to reject it and to continue receiving total disability compensation. Defendants then appealed to the Full Commission, which affirmed the deputy commissioner's Opinion and Award on 22 May 2008. Pursuant to N.C. Gen. Stat. § 97-86, this final decision of the Full Commission has been appealed by defendants to this Court.
Defendants contend that the Full Commission misapprehended the law within the context of N.C. Gen. Stat. § 97-32 by concluding that plaintiff was at maximum medical improvement without also considering whether she was at maximum vocational recovery. We disagree.
The point at which an injury stabilizes is called the maximum medical improvement (MMI). Horne v. Universal Leaf Tobacco Processors, 119 N.C. App. 682, 688, 459 S.E.2d 797, 801 (1995). This is also considered the end of the "healing period." Neal v. Carolina Mgmt., 350 N.C. 63, 510 S.E.2d 375 (1999) (). "The [MMI] finding is solely the prerequisite to determination of the amount of any permanent disability for purposes of G.S. 97-31." Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988) (citation omitted). N.C. Gen. Stat. § 97-31's purpose is to outline periods and rates of compensation for on-the-job injuries. N.C. Gen. Stat. § 97-31 (2007).
Defendants characterize the Full Commission's finding of whether plaintiff had reached MMI as a question of law. However, this Court has expressly held that "the question of whether an employee has reached [MMI] is an issue of fact." Collins v. Speedway Motor Sports Corp., 165 N.C. App. 113, 116, 598 S.E.2d 185, 188 (2004). Therefore, this Court will affirm the Commission's finding of MMI so long as there is "any competent evidence" supporting it. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000).
Defendants urge this Court to interpret MMI as including the dictum in Walker v. Lake Rim Lawn and Garden that states "until he has reached maximum vocational recovery, this plaintiff's healing period is not yet at an end." 155 N.C. App. 709, 718, 575 S.E.2d 764, 770 (2003). However, this Court expressly "decline[d] to adopt the obitur dictum contained in Walker, and h[e]ld that a finding of MMI . . . does not require the injured worker to have reached `maximum vocational recovery.'" Collins, 165 N.C. App. at 122, 598 S.E.2d at 192.
Therefore, determining plaintiff's level of vocational recovery is not necessary in determining whether plaintiff had reached MMI. As such, the sole question in this argument is whether there is any competent evidence supporting the Full Commission's finding that plaintiff's injury had stabilized — or, put another way, that her period of healing had ended — before she was offered the two-hour-per-day job with Pathology Associates in May 2006. Such evidence includes: (1) that Dr. Carlton stated that he had concluded on 11 December 2003 that plaintiff had reached MMI, (2) that Dr. Dyer likewise concluded on 14 January 2004 that plaintiff had reached MMI, and (3) that plaintiff testified that she had tried almost two dozen medications and numerous other treatment options, with no improvement in her pain. Given the testimony of two medical doctors indicating that plaintiff had reached MMI, as well as plaintiff's own testimony, there is more than enough competent evidence to uphold the Full Commission's finding that plaintiff had reached MMI well before she was offered the job at Pathology Associates in May 2006.
Therefore, the Full Commission did not err by determining that plaintiff had reached MMI, and defendants' argument fails.
Defendants next argue that the Full Commission's failure to conclude that plaintiff had suffered a change of condition for the worse under N.C. Gen. Stat. § 97-47 and was no longer at maximum vocational recovery was not supported by the facts and the parties' stipulations.
N.C. Gen. Stat. § 97-47 states that
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