Legette v. Scotland Memorial Hosp.

• Decision Date: 06 February 2007
• Docket Number: No. COA06-148.,COA06-148.
• Citation: 640 S.E.2d 744
• Court: North Carolina Court of Appeals
• Parties: Alene LEGETTE, Employee, Plaintiff-Appellee, v. SCOTLAND MEMORIAL HOSPITAL, Employer, South Carolina Property and Casualty Guaranty Association, Carrier, Defendants-Appellants.

640 S.E.2d 744

Alene LEGETTE, Employee, Plaintiff-Appellee, v. SCOTLAND MEMORIAL HOSPITAL, Employer South Carolina Property and Casualty Guaranty Association, Carrier, Defendants-Appellants.

No. COA06-148.

Court of Appeals of North Carolina.

February 6, 2007.

Appeal by Defendants from opinion and award entered 6 October 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 October 2006.

The Jernigan Law Firm, by Gina E. Cammarano, Raleigh, for Plaintiff-Appellee.

Young Moore and Henderson P.A., by Jeffrey T. Linder, Michael W. Ballance, and Angela N. Farag, Raleigh, for Defendants-Appellants.

McGEE, Judge.

Scotland Memorial Hospital (the hospital) and South Carolina Property and Casualty Guaranty Association (collectively Defendants) appeal from an opinion and award of the North Carolina Industrial Commission (the Commission) filed 6 October 2005. The Commission's opinion and award reversed an opinion and award by Deputy Commissioner Phillip A. Holmes, which had determined that Alene Legette (Plaintiff) did not sustain a compensable injury by accident.

At a hearing before the Deputy Commissioner, Plaintiff testified that she became a registered nurse in 1971, and began working as a nurse for the hospital in October 2000. Plaintiff worked the night shift every Friday, Saturday and Sunday. Plaintiff testified that she hurt her left arm as she was repositioning a patient during her shift at the hospital on 12 October 2001. Plaintiff testified that pulling a patient up in bed "was normally a two-person maneuver." However, because the hospital was understaffed, Plaintiff had to reposition a patient without assistance. She testified that because she had no help in moving the patient, it was necessary for her to stand closer to the patient and to the bed than she would have with assistance. Plaintiff also testified that the patient was heavy and non-ambulatory and that she had to use more force than if she had had assistance.

Plaintiff testified that when she moved the patient, she felt "a sharp pain underneath [her] left armpit or breast area extending toward the back of [her] shoulder and in [her] arm and shoulder[.]" Plaintiff further stated that "[a]lmost immediately in just a little while, [her] arm started swelling, and it extended further down [her] arm into [her] wrist to the tops of [her] fingers."

Plaintiff testified that she completed her shift and worked her next two shifts. Plaintiff took Ibuprofen for her pain and swelling. Plaintiff testified that during her 13 October 2001 to 14 October 2001 shift, she "went down to the emergency room with [her] shift supervisor, and [they] saw the emergency room doctor." Plaintiff testified that the doctor offered her Lortab for her pain, but Plaintiff declined to take the medicine while working.

Suzanne Parent (Ms. Parent) testified that she was a registered nurse on staff at the hospital in October 2001. Ms. Parent testified that she remembered when Plaintiff injured her arm and that Plaintiff told her she had injured her arm "pulling a patient." Ms. Parent also testified that she saw Plaintiff's arm the next night and that Plaintiff's "left arm had swollen about two times its normal size. It was a deep, beefy red." Gail Peterson (Ms. Peterson) testified that she was a "nursing supervisor, patient care supervisor" at the hospital in October 2001. Ms. Peterson testified that the hospital encouraged nurses to get help when moving heavy patients.

Plaintiff testified that she went to her family physician, Dr. James Currin (Dr. Currin), for treatment on 15 October 2001. Dr. Currin gave Plaintiff a prescription for an antibiotic and an anti-inflammatory. Plaintiff testified that she returned to work for her next series of weekend shifts on 19 October 2001. However, Plaintiff showed her arm to her supervisor, Ms. Peterson, and told Ms. Peterson that the pain and swelling in her left arm was severe. Ms. Peterson told Plaintiff to go home. Plaintiff left work on 20 October 2001 and has not returned to work.

Plaintiff saw Dr. Diana B. McNeill (Dr. McNeill) at Duke University Medical Center on 19 November 2001. Dr. McNeill noted that Plaintiff was having a "significant problem with lymphedema in the left arm after heavy lifting." Dr. McNeill also noted that Plaintiff had a "history of breast carcinoma with left modified radical mastectomy with no dissection 10/10 nodes negative and 37 radiation treatments since 1998." Dr. McNeill also stated: "I think [Plaintiff] really needs a referral to the lymphedema clinic." Plaintiff was also seen on 27 November 2001 by Dr. Brian Parkes (Dr. Parkes), a general surgeon in Laurinburg, who also noted Plaintiff's history of breast cancer. Dr. Parkes stated: "[Plaintiff] was doing some heavy lifting at work and felt pain in her biceps region and serratus anterior. Subsequently she developed pitting edema from the elbow to the hand." Plaintiff was also seen by several other doctors.

After the hearing before the Deputy Commissioner, Defendants took the deposition of Dr. George Paschal, III (Dr. Paschal), who testified that about twenty percent of people who have radiation and surgery for breast cancer will develop lymphedema. Dr. Paschal explained that lymphedema is a disorder caused by "the malarrangement of lymphatic flow secondary to an obstruction." Dr. Paschal further stated that "[t]he disorder will slowly progress over time until it reaches a point that symptoms become noticeable to the patient." Dr. Paschal further testified as follows: "The scarring slowly contracts over a period of time, three to five years usually before you see any obstruction of flow, although it can happen sooner and it can happen later." Dr. Paschal stated that Plaintiff likely suffered from lymphedema. However, Dr. Paschal also stated that "the activities [Plaintiff] performed on the day in question were simply what she was doing when the lymphatic flow was curtailed sufficient to bring her condition to her attention, but did not cause or materially aggravate or materially accelerate the underlying pathology."

The Deputy Commissioner filed an opinion and award on 12 July 2004, concluding that Plaintiff did not sustain a compensable injury by accident. Plaintiff appealed to the Commission and filed a Form 44, setting forth several alleged errors. After the parties filed briefs, the Commission ordered the case to be reopened. The Commission further ordered that "the parties shall have 60 days from the date of [the] Order within which to take the deposition of Dr. James Currin."

Plaintiff's counsel tendered Dr. Currin as an expert in medicine, with a specialty in family practice, and Defendants' counsel objected. Dr. Currin testified that he was a board certified family practitioner who practiced at Laurinburg Family Practice from 1980 until his retirement on 6 July 2004. Over the course of his twenty-five year career, Dr. Currin treated about one hundred patients with lymphedema. However, because Dr. Currin saw his patients multiple times during his twenty-five year career, he may have seen those one hundred patients with lymphedema "a thousand times."

Dr. Currin testified that he saw Plaintiff in October 2001, and diagnosed her with lymphedema. Plaintiff's arm was swollen and painful. Dr. Currin testified that Plaintiff's alleged accident at work "may have caused [her left arm swelling], or certainly may have aggravated [her left arm swelling] if she was prone to lymphedema related to the previous breast cancer surgery." Dr. Currin also testified that Plaintiff's alleged accident "probably aggravated [her left arm swelling]." Dr. Currin further testified as follows:

Q. Okay, and what's the basis for your opinion?

A. The fact that she had no symptoms prior to that day.

Q. Okay, and was the way that [Plaintiff] described the incident consistent with a trauma of the type that would be associated with the development of lymphedema with someone with her history?

[DEFENDANTS' COUNSEL]: Objection.

A. Yes.

Dr. Currin also testified that, assuming Plaintiff had some pre-existing, asymptomatic lymphedema, Plaintiff's alleged accident at work "did aggravate the condition." Dr. Currin testified that the basis of his opinion was that "[Plaintiff] had had no problems with that arm prior to that injury."

On redirect examination, Dr. Currin testified as follows:

Q. Okay, but would you be able to say that [Plaintiff's alleged accident] more likely than not aggravated [any pre-existing asymptomatic lymphedema]?

A. Based on my history from her that day that prior to that incident she had had no problem, and after that her symptoms started, it would be that that's when the problem started.

Q. Okay. So just to clarify, because it's important, as you talked about before ..., can you testify that ... that incident more likely than not or probably aggravated her underlying ... condition or her predisposition to lymphedema?

[DEFENDANTS' COUNSEL]: Objection.

A. Yes.

The Commission filed an opinion and award on 6 October 2005, concluding, inter alia, that on 12 October 2001, Plaintiff sustained an injury by accident arising out of and in the course of her employment with the hospital. The Commission also concluded that Defendants had actual notice of Plaintiff's injury by accident. Defendants appeal.

Our review of an opinion and award by the Commission is limited to two inquiries: (1) whether there is any competent evidence in the record to support the Commission's findings of fact; and (2) whether the Commission's conclusions of law are justified by the findings of fact. Counts v. Black & Decker Corp., 121 N.C.App. 387, 389, 465 S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68 (1996). If supported by competent evidence, the Commission's findings are conclusive even if the evidence might also support contrary findings. Jones v. Candler Mobile Village, 118 N.C.App. 719, 721, 457 S.E.2d 315, 317 (1995). The...