Knight v. Wal-Mart Stores, Inc.
| Decision Date | 05 March 2002 |
| Docket Number | No. COA01-108.,COA01-108. |
| Citation | 149 NC App. 1,562 S.E.2d 434 |
| Parties | Shawn Patrick KNIGHT, Employee, Plaintiff, v. WAL-MART STORES, INC., Employer; Insurance Company of the State of Pennsylvania, Carrier; Defendants. |
| Court | North Carolina Court of Appeals |
Poisson, Poisson, Bower & Clodfelter, by Fred D. Poisson, Jr., Wadesboro, for plaintiff-appellee.
Young Moore and Henderson, P.A., by Joe S. Austin, Jr. and Zachary C. Bolen, Raleigh, for defendant-appellants.
Wal-Mart Stores, Inc. ("Wal-Mart") and the Insurance Company of the State of Pennsylvania (together "defendants") appeal from an opinion and award entered by the North Carolina Industrial Commission ("the Commission") awarding Shawn Patrick Knight ("plaintiff") disability benefits. We affirm.
The evidence presented at the hearing tended to establish the following facts. Plaintiff has a history of back injuries, beginning with an injury at work in August of 1990 which caused him to experience pain running down his left leg and which resulted in surgery in 1991 to repair a ruptured disk. In 1993, plaintiff experienced a minor injury to his back. Plaintiff testified that his back bothered him occasionally between 1993 and the accident in 1998.
In 1998, plaintiff was employed by Wal-Mart stocking freight at night, and his job required him, among other tasks, to lift goods and place them on shelves. On 15 March 1998, plaintiff's supervisor directed plaintiff to remove some computers from the top riser. Plaintiff climbed to the top of an eight-foot stepladder, picked up a computer, and started climbing down. When he reached the second-to-last rung, the computer started to fall. He attempted to step down to the last rung, but he missed the rung and fell to the floor. Plaintiff felt something "pop" or "jerk" in his back as he fell, and he landed on his hip. Plaintiff tried to walk around but felt pain running down his left leg. He reported the accident to his supervisor and his supervisor filled out an accident report. After plaintiff indicated that he might need medical attention, a co-employee drove him to the hospital. At the hospital, plaintiff was diagnosed with broad-based disk protrusion. Plaintiff received some painkillers and then returned to work later that night.
Plaintiff returned to work on a few occasions during the next week, including 21 March (for six hours), 22 March (for eight hours), and 24 March (for eight hours). During this time he continued to feel pain in his lower back and running down his left thigh. Following 24 March 1998, plaintiff stopped working due to "pain" and "discomfort."
Dr. Joseph King, an orthopaedic surgeon, first saw plaintiff on 9 April 1998. Dr. King opined that plaintiff "had continued pain in that left leg radiating all the way down the leg and that was quite consistent throughout the course of his treatment." Dr. King opined that the accident at Wal-Mart could have aggravated or accelerated plaintiff's pre-existing back problems. On 30 April, Dr. King saw plaintiff again and noted that he continued to suffer significant pain. Dr. King prescribed a pain medication for plaintiff at that time.
Plaintiff returned to work on 21 May 1998, during which time he sat on a stool in the electronics department and did nothing. Plaintiff testified that this was not a job that any employees normally perform at Wal-Mart. Tracy Stillwell, the store manager, provided testimony corroborating these facts. After a while, plaintiff began to experience significant discomfort and pain in his lower back and leg from sitting, and as a result of this pain plaintiff left work after a few hours. After 21 May, Wal-Mart offered plaintiff a light duty position shelving some "returns" at night, and plaintiff tried this work two or three times but was unable to remain at work due to pain.
Dr. King performed a laminectomy on plaintiff on 22 July 1998. Plaintiff chose to have the surgery, despite the risks, because he "didn't see any alternative to relieving the pain." However, plaintiff testified that he did not experience any relief from the surgery.
Plaintiff again worked on 7 September (four hours), 3 November (eight hours), and 4 November (five hours). In January of 1999, Wal-Mart offered plaintiff light duty work as a sweeper, or greeter, or stock return person. Plaintiff told Wal-Mart that he did not feel he was able to return to work due to his pain. Plaintiff testified that he tried to sweep at home and was only able to sweep for fifteen to thirty minutes. On other occasions plaintiff attempted to work as a return clerk, but was unable to work due to pain in his lower back and left leg.
Dr. King saw plaintiff again on 4 January 1999, at which time plaintiff was still suffering from pain. At that time, Dr. King concluded that plaintiff had improved as much as he was likely to improve. In addition, Dr. King found that plaintiff's left ankle reflex was not present (which, he explained, means that the nerve is not functioning properly). Dr. King stated that this finding suggests "objective nerve damage," meaning "[s]omething that [plaintiff] has no control over." He testified that because plaintiff's reflexes were normal in July of 1998, the finding further suggests that "there may have been some different pressure on that nerve," and that such pressure upon a nerve is connected to pain. Dr. King testified that plaintiff's complaints of burning and pain down into his thigh area, and numbness in his left foot, are consistent with Dr. King's findings.
On 4 January 1999, and on various other occasions during Dr. King's treatment of plaintiff, he gave plaintiff "return-to-work" slips containing various restrictions on how much weight plaintiff should lift. Dr. King testified that the purpose of giving plaintiff return-to-work slips was to help plaintiff return to gainful employment in order to see whether the pain would prevent him from working. He also explained that, in his opinion, the return-to-work slips and the restrictions were unrelated to whether plaintiff's pain would prevent him from working.
Dr. King further testified that there is no objective medical reason that plaintiff cannot return to work with certain lifting restrictions, and that plaintiff's complaints of pain are more severe than one would normally expect given plaintiff's physical status. However, Dr. King also testified that the type of injury plaintiff has can be very painful, that sitting can cause the pain to become much worse, and that, in his opinion, plaintiff's complaints of significant pain are genuine.
Dr. King also testified that plaintiff has reached a point of maximum medical improvement ("MMI"), and that, although identifying the date at which plaintiff reached MMI is difficult (because plaintiff has never shown any improvement since the injury), he would suggest 4 January 1999 as the date at which he became convinced that plaintiff would not further improve. In addition, Dr. King assigned a disability rating of fifteen percent to plaintiff's back.
At the time of the hearing on 26 January 1999, plaintiff was experiencing numbness in his left foot, as well as pain in his lower back and his left leg. Plaintiff was not taking any pain medication because Dr. King had refused to refill his prescription. Plaintiff testified that although Wal-Mart has paid for plaintiff's medical bills, prescription bills, and for his visits to Carolina Bone and Joint, Wal-Mart has never offered plaintiff any vocational rehabilitation services. Further, plaintiff testified that he has not pursued vocational rehabilitation because he does not believe he is fit to return to work.
In its Opinion and Award, the Commission first noted that "[a]t the hearing before the Full Commission, the parties orally stipulated that compensation awarded herein would terminate as of 11 May 1999, and that compensation after that date shall be determined by agreement of the parties or by Order of the Industrial Commission." The Commission then set forth findings of fact consistent with the facts set forth above, including the following pertinent findings of fact:
The Commission also entered the following pertinent conclusions of law:
We note that, although it is not expressly stated in the Opinion and Award, it is clear from the context that the Commission's award of compensation was made pursuant to the conclusion that plaintiff has suffered a total loss of wage-earning capacity pursuant to N.C. Gen.Stat. § 97-29 (1999).
On appeal, defendants have set forth seventeen assignments of error in the record. Six of these assignments of error are not set out in defendants' brief and are, therefore, deemed abandoned. See N.C.R.App. P. 28(b)(5). Defendants have condensed the remaining eleven assignments of error into five arguments for our review.
By their first argument, defendants contend that the Commission's findings of fact do not support its conclusion that plainti...
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