Johnston v. Duke Univ. Med. Ctr.

• Decision Date: 19 October 2010
• Docket Number: No. COA09-1582.,COA09-1582.
• Citation: 700 S.E.2d 426
• Parties: Mary S. JOHNSTON, Employee, Plaintiff-Appellant, v. DUKE UNIVERSITY MEDICAL CENTER, and its subsidiary Duke Health Community Care (Self-Insured), Employer, Defendant-Appellees.
• Court: North Carolina Court of Appeals

700 S.E.2d 426

Mary S. JOHNSTON, Employee, Plaintiff-Appellant,

v.DUKE UNIVERSITY MEDICAL CENTER, and its subsidiary Duke Health Community Care (Self-Insured), Employer, Defendant-Appellees.

No. COA09-1582.

Court of Appeals of North Carolina.

Oct. 19, 2010.

Appeal by plaintiff from an Opinion and Award entered by the North Carolina Industrial Commission on 7 August 2009. Heard in the Court of Appeals 13 May 2010.

Lennon & Camak, P.L.L.C., by George W. Lennon and Michael Bertics, Raleigh, for plaintiff-appellant.

Cranfill Sumner & Hartzog LLP, by Amy L. Pfeiffer and Ashley Baker White, Raleigh, for defendant-appellees.

ERVIN, Judge.

Plaintiff Mary S. Johnston appeals from an Opinion and Award entered by Commissioner Laura Kranifeld Mavretic on behalf of the Industrial Commission which denied and dismissed Plaintiff's claim for workers' compensation benefits because the Commission lacked jurisdiction over that claim. After careful consideration of Plaintiff's challenges to the Commission's order in light of the record and the applicable law, we conclude that the Commission's decision should be affirmed.

I. Factual Background

Plaintiff is a Licensed Registered Nurse with a master's degree in nursing education. Plaintiff has worked as a nurse since 1982, and began her employment in the emergency room at Duke University Medical Center in February 1992. Plaintiff's work in the emergency room was performed in 12 hour shifts, with 95% of a nurse's time being spent walking and standing on hard floors.

Plaintiff began experiencing foot pain as early as 1992. As a result, Plaintiff's primary care physician, Dr. Holcombe, referred Plaintiff to Dr. Rhonda S. Cohen, a podiatrist. On 7 August 1992, Dr. Cohen diagnosed a lesion on Plaintiff's foot as porokeratosis.

Plaintiff returned to Dr. Cohen in February 1996, at which time she complained of “pain when walking on [her] left foot.” On 28 June 1999, Plaintiff informed the Duke Acute Care Clinic that she was suffering from left arch pain and was diagnosed with plantar fasciitis. On 23 August 1999, Plaintiff reported ongoing pain in the “arch area” of her foot. Plaintiff was treated with orthotics and injections through 1 May 2000. After her foot pain failed to subside, Plaintiff requested that Dr. Holcombe refer her to an orthopedic surgeon, which resulted in her treatment by Dr. Samuel David Stanley.

Dr. Stanley initially saw Plaintiff in July 2000. According to Plaintiff, Dr. Stanley was of the opinion that her injury was work-related from “the first time he saw me.” At that time, Plaintiff reported a history of “about a year's worth” of left heel pain stemming from plantar fasciitis. Dr. Stanley diagnosed Plaintiff with recalcitrant plantar fasciitis and treated her with “physical therapy, orthotics, nonsteroidal inflammatory medications, night splints, [and] cast immobilization.” While undergoing treatment for recalcitrant plantar fasciitis, Plaintiff developed Achilles tendinitis and received extensive treatment for this condition as well.

After more conservative treatment failed to bring relief, Plaintiff underwent a surgical debridement of the tendon in September 2001, followed by several months of post-operative treatment. Although Dr. Stanley advised Plaintiff against returning to work, she went back to work in the emergency room on 4 December 2001. Dr. Stanley provided her with medical orders explaining the necessity for Plaintiff to have modified duties, including reduced daily working hours.

On 5 January 2001, Plaintiff notified her employer of her “chronic plantar fasciitis” by submitting a Form 19. By means of a letter dated 26 January 2001, Plaintiff was informed that Duke University Medical Center had denied her claim for workers' compensation benefits and that she could contact the Commission in the event that she had any questions. Plaintiff also received a Form 61 dated 19 January 2001 notifying her that her employer had denied her claim for workers' compensation benefits and explaining that she had the option of filing a Form 33 with the Commission in the event that she disagreed with Duke's decision to deny her claim. ¹ After Plaintiff failed to take any further action for the purpose of prosecuting her claim for workers' compensation benefits, Duke sent Plaintiff a letter dated 17 September 2001 for the purpose of notifying her that her claim had been closed.

Plaintiff was transferred from the emergency room to a patient resource manager position in March 2002. Although Plaintiff's patient manager position required less walking than had been necessary in connection with her job as an emergency room nurse, she was still on her feet approximately 50% of the time in her new position. In addition, Plaintiff continued to have bilateral foot and ankle symptoms and to miss work on an intermittent basis following her transfer to the patient manager position.

In January 2004, Plaintiff complained of a “band-like pain extending around the ankle” and bilateral numbness. Given that he suspected tarsal tunnel syndrome or a neuropathy, Dr. Stanley ordered that nerve conduction studies be performed. At the time that Plaintiff returned to his office on 10 February 2004, Dr. Stanley reviewed the results of the nerve conduction studies, which suggested that Plaintiff had tarsal tunnel syndrome, and an MRI of Plaintiff's left foot, which showed posterior tibial tendinopathy and a possible ganglion cyst with no evidence of plantar fasciitis. As a result, Dr. Stanley referred Plaintiff to Dr. James A. Nunley, II, the Chief of Duke's Division of Orthopedic Surgery and the Chief of Duke's Foot and Ankle Service.

Dr. Nunley saw Plaintiff on 28 April 2004. At that time, Dr. Nunley concluded that Plaintiff suffered from tarsal tunnel syndrome, posterial tibial tendon disease, Baxter's nerve compression, and a ganglion cyst. Moreover, based on the recent MRI, Dr. Nunley concluded that Plaintiff did not have plantar fasciitis. Although he recommended that Plaintiff consider further surgery, Plaintiff did not receive further treatment from Dr. Nunley due to a personality conflict.

Plaintiff was discharged from her employment at Duke in March 2004 because she needed to care for a sick aunt in Houston, Texas, and lacked sufficient sick or vacation time to cover her absence. Upon returning to North Carolina, Plaintiff began working as an admissions nurse for hospice patients at Duke University Community Care on 1 June 2004. Although Plaintiff was not on her feet as much in the hospice nurse position as she had been in her previous positions, her duties as a hospice nurse still required her to spend substantial time standing and walking on hard surfaces.

Plaintiff worked as a hospice nurse for approximately one year without receiving additional medical treatment. However, her symptoms worsened in 2005, causing her to return to Dr. Stanley. In the summer of 2005, Dr. Stanley referred Plaintiff to Dr. Mark Easley, an orthopedic surgeon at Duke Health Center, for the purpose of obtaining a second opinion. At that time, Dr. Easley concluded that Plaintiff had tarsal tunnel syndrome. In addition, he noted the presence of Achilles tendinopathy. At his initial consultation with Plaintiff, Dr. Easley recommended conservative treatment, such as a heel lift and orthotics, but also noted the existence of a surgical option. On 10 October 2005, Dr. Easley performed various surgical procedures on Plaintiff, including a right Achilles tendon debridement, a right side tarsal tunnel release, and a calcaneal exostectomy repair of the Achilles tendon.

In Dr. Stanley's opinion, Plaintiff was temporarily disabled during various periods of time following the 2001 surgery. According to Dr. Stanley, tarsal tunnel syndrome is distinct from plantar fasciitis and Achilles tendinopathy “in that you can have it and not have the other [two].” However, Dr. Stanley also testified that plantar fasciitis and tarsal tunnel syndrome are related conditions, so that, “if you have plantar fasciitis, the inflammation can increase pressure in the tarsal tunnel and can lead to tarsal tunnel syndrome,” making it not uncommon to see the two together. Similarly, Dr. Easley opined that Plaintiff's plantar fasciitis and tarsal tunnel syndrome “overlap” and “go hand in hand.” Although Dr. Stanley signed a “Repetitive Motion Medical Questionnaire” which recited multiple diagnoses including tendinitis, tenosynovitis, and synovitis, Dr. Stanley described each of these diagnoses as subparts of the same overall condition. Plaintiff stopped working for Duke Health Community Care on 27 July 2005. Plaintiff has been unemployed and receiving both long and short-term disability benefits from Duke since at least 1 November 2005.

On 10 April 2007, Plaintiff filed a Form 18 with the Commission asserting her right to receive workers' compensation benefits from Duke. Plaintiff alleged that she had become disabled due to “bilateral legs” on 1 August 2005. In a Form 33 relating to the denial of the claim asserted in the Form 19 that Plaintiff filed on 23 April 2007, Plaintiff alleged that she had sustained a “bilateral legs/psychiatric” injury on 5 January 2001.

Plaintiff's claims were consolidated for hearing and heard before Deputy Commissioner Kim Ledford on 27 February 2008. On 17 February 2009, Deputy Commissioner Ledford issued an Opinion and Award finding that Plaintiff had developed multiple occupational diseases of her feet and ankles, but that Plaintiff's workers' compensation claims based upon those conditions were time-barred. Both parties noted appeals to the Commission from Deputy Commissioner Ledford's order.

On 7 August 2009, the Full Commission filed an Opinion and Award in which it affirmed Deputy Commissioner Ledford's decision with modifications. In its order, the Commission agreed with Deputy Commissioner Ledford that Plaintiff's claims were time-barred. Plaintiff noted an appeal to this Court from...