Johnson v. Baxter Healthcare Corp., No. COA09-579 (N.C. App. 2/16/2010)
| Decision Date | 16 February 2010 |
| Docket Number | No. COA09-579.,COA09-579. |
| Court | North Carolina Court of Appeals |
| Parties | CAROLYN L. JOHNSON, Employee, Plaintiff, v. BAXTER HEALTHCARE CORP. f/k/a TRAVENOL LABORATORIES, INC., Employer, Self-Insured, Defendant. |
Cox and Gage PLLC, by Robert H. Gage, for plaintiff-appellee.
Gray King Chamberlin & Martineau, LLC., by L. Kristin King and Jennifer P. Pulley for defendant-appellant.
Between 1983 and 2000, while employed by Defendant Baxter Healthcare Corp., Plaintiff Carolyn Johnson suffered four compensable injuries, for which she has had eleven surgeries. In this appeal, Defendant argues that the Full Industrial Commission erred in finding that Plaintiff was disabled from employment and concluding that she was entitled to additional medical compensation. We disagree, and therefore affirm the Opinion & Award of the Full Industrial Commission.
Plaintiff, born in 1944, last attended school in 1959 and completed the ninth grade. Defendant first employed her in 1979. Until January 2002, plaintiff worked as a "carton erector," opening and fastening corrugated cartons, then placing them on an overhead conveyor, ready to accept the bags of intravenous saline solution which are produced by Defendant's plant.
While at work in May 1983, Plaintiff slipped and twisted her right foot, ankle, and knee (injury no. 1). Dr. Anderson initially treated her. He diagnosed right knee strain and a small tear to the medial meniscus. Beginning in May 1984, Dr. Jarrett, an orthopedist, treated Plaintiff for right knee pain. Dr. Jarrett diagnosed a torn medial meniscus. Plaintiff continued to work until 6 May 1985, when she had a right knee arthoscopy performed by Dr. Jarrett (Surgery no. 1). Plaintiff returned to work on 20 May 1985. On 12 June 1985, Defendant accepted the right knee injury as compensable on a Form 21 agreement.
On 6 February 1986, Plaintiff injured her left knee when she hit it against a metal wrap holder, part of a Box Machine (injury no. 2). She had a left knee arthroscopy performed by Dr. Jarrett on February 26, 1987 (Surgery no. 2). Defendant accepted the left knee injury as compensable on a Form 21 agreement dated 16 March 1987. Plaintiff returned to work on 1 April, 1987.
On 14 June 1989, Plaintiff had another right knee arthroscopy (Surgery no. 3) performed by Dr. Jarrett. She returned to work four weeks later. Plaintiff was next treated by Dr. Welliver, an orthopedist, beginning in September 1989. Dr. Welliver diagnosed osteoarthritis of the right knee, severe degenerative joint disease of the right knee, and mild degenerative arthritis of the left knee.
On 9 February 1990, Plaintiff had two surgeries performed by Dr. Welliver, one on the left knee and one on the right knee (Surgeries nos. 4 and 5). Plaintiff returned to work after four weeks.
On 22 January 1993, Plaintiff had left knee arthroscopy surgery performed by Dr. Welliver (Surgery no. 6). And on 9 March 1993, she had right knee arthroscopy surgery performed by Dr. Welliver (Surgery no. 7). Plaintiff returned to work 26 March 1993.
On 4 August 1995, Plaintiff had right knee arthroscopy performed by Dr. Welliver (Surgery no. 8). She returned to work on 25 August 1995. In September 1995, Dr. Welliver reported that "the patient's current state of affairs is directly related to the injury sustained in 1983." Dr. Welliver later recommended Plaintiff undergo total knee replacement on the right. Dr. Jansen agreed with this recommendation in 2002 after evaluating Plaintiff upon referral from Dr. Cammarata.
On 23 November 1999 Plaintiff was struck by a sterilizer truck at work and knocked into another sterilizer truck (injury no. 3). She suffered injuries to her left hand, cervical spine, and face. Dr. Chung treated Plaintiff for these injuries from November 1999 through March 2000. Plaintiff missed one day of work due to this injury.
On 30 May 2000 Plaintiff saw Dr. Hoski, who diagnosed a cervical sprain or strain and degenerative changes previously asymptomatic. He noted that Plaintiff had reached maximum medical improvement as of that time. He assigned a four percent permanent partial impairment rating to the plaintiff's back. He also noted that Plaintiff had continued back pain. He recommended that Plaintiff be treated with anti-inflammatories and physical therapy, rather than surgery. Dr. Welliver last treated Plaintiff on 17 August 2000. At that time, he diagnosed bilateral inflammatory synovitis and bilateral significant degenerative joint disease.
On 30 October 2000, Plaintiff saw Dr. Cammarata for pain, weakness, and instability in her left thumb resulting from the 23 November 1999 accident.
On 7 December 2000, Plaintiff was loading a bundle of cartons into her machine when the bundle fell. She tried to grab it and felt pain in her right arm and shoulder (injury no. 4). Dr. Cammarata, an orthopedist, evaluated Plaintiff for complaints of right arm pain and deformity on 15 December 2000. He diagnosed a right proximal biceps tendon rupture. He also noted some AC joint arthritis. Plaintiff continued to work until 19 December 2000, when she had surgery by Dr. Cammarata. (Surgery no. 9). Dr. Cammarata performed the surgery to repair the ruptured biceps tendon. He discovered during surgery that Plaintiff had also sustained a massive rotator cuff tear on her right shoulder as well as the complete rupture and retraction of the biceps tendon.
On 12 January 2001, Plaintiff returned to work on light duty. When Defendant employer was unable to accommodate her light duty restrictions, Plaintiff left work on 2 March 2001. Defendant accepted Plaintiff's 7 December 2000 injury to her right arm and shoulder as compensable on 8 March 2001.
On 11 June 2001, Plaintiff had surgery on her left thumb, performed by Dr. Cammarata (Surgery no. 10). Defendant accepted Plaintiff's 23 November 1999 injury to her left hand, neck, and face as compensable on 3 July 2001.
On 16 October 2001, Plaintiff underwent a Functional Capacity Evaluation which determined that she did not meet the essential physical demands of the carton erector position. On 19 October 2001, Dr. Cammarata indicated that Plaintiff was restricted to work at a sedentary level, with grasping limited to "occasional" with her left arm. He noted that Plaintiff should not use her right arm to reach forward and overhead work should be limited to "occasional" with both arms.
Defendant procured a written description of an alternative job proposed for Plaintiff. The Physical Demands Analysis for the job, dated 3 October 2001, indicated that Plaintiff would be working eight hours per day, inspecting units on a moving conveyer, and pulling approximately three hundred defective bags from the line in an eight hour shift (an average of 37.5 bags per hour), exerting a pulling force of 10 to 30 pounds each time. The analysis indicated that the job required reaching above the shoulder up to 33 percent of the time, reaching below shoulder-level, reaching across and reaching to floor level, each, up to 33 percent of the time.
Defendant obtained a second Job Analysis of the packing inspector job, dated 15 November 2001. This analysis indicated that the number of bags to be removed per hour was 10 to 25, and that the employee could stand on a platform to reach the bags. It did not address reaching above shoulder level or the force required to pull each bag. The job analyst was told that an adjustable chair would be provided. Plaintiff was later told that Defendant could not get her a chair without getting one for everybody else. Plaintiff never got the adjustable chair. Dr. Cammarata approved the 15 November 2001 Job Analysis for Plaintiff on 30 November 2001.
Plaintiff returned to work at the inspection job on 5 January 2002, working the 12-hour weekend shift. Defendant's witness Dennis Noblitt testified that over forty defective bags per hour were pulled in the fourth quarter of 2002, but that higher numbers of defective bags were pulled in early 2002, when Plaintiff was working at the inspection job. The video of the inspection job supplied by Defendant shows 12 bags pulled in five minutes, eighteen seconds. This is an average of 135 bags per hour. The operator is shown reaching over head level to pull down each bag using two hands to grasp and pull the bags.
Three witnesses established that the bag inspector needed to extend his/her neck to look upward to see the bags as they run by on the line. Ms. Taylor testified that she had to pull hard with both hands to get defective bags off the line. Plaintiff kept a contemporaneous written record of the number of bags that she pulled from the line. On 16 February 2002, she pulled an average of 52 bags per hour; on 24 February 2002, she pulled an average of 49.6 bags per hour; on 3 March 2002, she pulled an average of 64.4 bags per hour.
On 18 February 2002, Plaintiff saw Dr. Cammarata. He reiterated that Plaintiff should not be pulling more that 25 bags per hour. He noted that she was showing symptoms of radiclopathy from the cervical spine, for which he recommended treatment. He also referred Plaintiff for further evaluation for a total knee replacement. Plaintiff was evaluated by Dr. Jansen on 21 February 2002 at the request of Dr. Cammarata. Dr. Jansen diagnosed severe right knee medial compartment degenerative joint disease with varus malalignment.
Plaintiff continued to have pain, tingling, numbness and loss of feeling in her arms when performing the inspection job. Plaintiff testified that as she continued to work, her symptoms worsened and her right hand would become "completely dead." She also stated that she reported the problem to her supervisor, but nothing...
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