Patillo v. Goodyear Tire & Rubber Co.
| Decision Date | 20 December 2016 |
| Docket Number | No. COA16-636,COA16-636 |
| Citation | 794 S.E.2d 906,251 N.C.App. 228 |
| Court | North Carolina Court of Appeals |
| Parties | Shawn F. PATILLO, Plaintiff, v. GOODYEAR TIRE AND RUBBER COMPANY, Employer, Liberty Mutual Insurance Group, Carrier, Defendants. |
Law Offices of Kathleen G. Sumner, Greensboro, by Kathleen G. Sumner and Law Office of David P. Stewart, by David P. Stewart, for Plaintiff-Appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Matthew J. Ledwith, Raleigh, and M. Duane Jones, Charlotte, for Defendant-Appellants.
Shawn F. Patillo ("Plaintiff") and Goodyear Tire & Rubber Company ("Employer") and Liberty Mutual Insurance Company (collectively, "Defendants") appeal from an Opinion and Award filed 28 April 2016 by the Full North Carolina Industrial Commission. We reverse and remand in part and affirm in part.
On 16 February 2011, Employer filed a Form 19 (Employer's Report of Employee's Injury or Occupational Disease to the Industrial Commission). On 7 October 2011, Plaintiff filed a Form 18 (Notice of Accident to Employer and Claim of Employee, Representative, or Dependent), stating he was injured as a result of a flatbed accident at his place of employment on 16 February 2011. On the same day, Plaintiff filed a Form 33 (Request that Claim be Assigned for Hearing), requesting compensation for days missed, disability pay, payment of medical expenses/treatment, and attorney's fees and costs.
The parties executed a consent order on 28 March 2012. The Defendants admitted an accident occurred at Goodyear and Plaintiff sustained "some level of contusion to the lower back
as a result of [the] accident[,]" but disputed the extent of injury beyond the contusion.
On 24 October 2013, Deputy Commissioner Keischa M. Lovelace heard Plaintiff's case. The parties stipulated to the employee-employer relationship, the insurance carried by Employer, and that Employer should provide a Form 22 for wage calculation. Deputy Commissioner Lovelace issued an Opinion and Award on 18 December 2014. The Opinion and Award found and concluded Plaintiff sustained a compensable injury, which was causally related to Plaintiff's lower back pain. Deputy Commissioner Lovelace awarded Plaintiff temporary total disability compensation beginning 6 March 2012 until the time of the hearing, but denied Plaintiff's request for temporary total disability compensation from 13 May 2011 to 6 March 2012. Employer gave proper notice of appeal to the Full Commission ("the Commission") on 23 December 2014.
On 8 July 2015, the Commission filed an Interlocutory Order and reopened the record for the receipt of additional evidence. The Commission ordered the parties to confer and agree on a physician to conduct Plaintiff's medical evaluation.
On 22 July 2015, Plaintiff filed a motion with the Commission, proposing seven physicians to conduct Plaintiff's medical evaluation. On 23 July 2015, Employer filed a Motion to Amend, Clarify, and/or Consideration, asking the Commission to allow both parties to depose medical providers who examined Plaintiff. On 3 August 2015, Employer filed a response to Plaintiff's motion, arguing Plaintiff's motion was moot. On the same day, Plaintiff filed a response, arguing there was no need for evidence on the issue of disability and additional evidence was only needed regarding causation.
In response, Commissioner Bernadine S. Ballance issued an order on 27 August 2015, holding Employer's 23 July 2015 motion in abeyance. Commissioner Ballance also ordered the parties to comply with the 8 July 2015 order by 30 September 2015. On 29 August 2015, Plaintiff filed a Motion for Additional Direction regarding the 8 July 2015 Order. On 30 September 2015, Plaintiff filed a response to the 8 July 2015 Order.
The Commission filed its Opinion and Award on 28 April 2016. The Commission found the following facts.
Plaintiff, a forty-nine year old male at the time of the hearing, worked at Employer since August 2007. At the time of the incident, Plaintiff worked as a press operator. As a press operator, Plaintiff transferred uncured1 tires from a flatbed trailer onto the loader pan of the press machine for curing. Plaintiff monitored fifteen presses, ensuring the machines operated properly and removing tires after they cured.
In the early morning of 16 February 2011, Plaintiff unloaded tires from a stationary, unattached flatbed to a press machine loader pan. Nearby, a trucker drove a powered industrial truck with an attached flatbed down the press row. The flatbed attached to the truck "jackknifed" the unattached flatbed, which hit Plaintiff in his lower back and knocked Plaintiff to the floor. Plaintiff immediately felt pain from his back to his hips and legs, and Plaintiff was unable to stand up.
Immediately following the collision, a "Code Blue" was called, indicating an accident occurred. Workers from the onsite medical clinic arrived and transported Plaintiff to the clinic. Plaintiff complained of pain in his left lower back, groin, and hip area. The onsite medical clinic treated Plaintiff, scheduled him for an evaluation the next day, and recommended Plaintiff only perform "off-standard"2 work. Plaintiff arrived at the onsite medical clinic before his shift on the evening of 16 February 2011 for his examination. Plaintiff informed his evaluator the pain had worsened since the night before and Plaintiff would not be capable of lifting tires due to the pain. The onsite medical clinic team recommended "off-standard" work.
On 17 February 2011, Leslie A. Byrne ("Nurse Byrne"), a nurse practitioner at the onsite medical clinic, evaluated Plaintiff. Plaintiff, once again, complained of pain in the left side of his back, left hip, and left knee. Plaintiff displayed contusions. Nurse Byrne restricted Plaintiff to "off-standard" work with help with large tires. Plaintiff worked "off-standard" until 4 April 2011.
From 16 February 2011 to 13 May 2011, Plaintiff received treatment from the onsite medical clinic. The treatment included pain medication and physical therapy. Physical therapy ended on 22 March 2011, when Plaintiff reported less frequent and less intense pain.
On 5 April 2011, Plaintiff returned to on-standard work. While performing his regular job duties, Plaintiff's back pain increased. Plaintiff told Nurse Byrne he wanted a second opinion regarding his back injury. Although Nurse Byrne prescribed various medications, Plaintiff still reported back pain.
Not only did Plaintiff seek medical care at Employer's onsite clinic, he also went to Physician's Express urgent care on 20 February 2011. The next day, Plaintiff sought treatment at Northside Urgent Care for pain resulting from the injury.
Plaintiff applied for a wind-up operator position at Employer. Employer hired Plaintiff for this position. However, after training, Plaintiff failed the certification test to be a wind-up operator because he could not physically perform the job tasks.3 Consequently, Plaintiff returned to his press operator position on 5 April 2011.
While visiting Northside Urgent Care on 30 April 2011 for his asthma
, Plaintiff complained of lower back pain. Physician Assistant Aubrey Reid ordered a Magnetic Resonance Image ("MRI") of Plaintiff's lumbar spine. On 12 May 2011, Plaintiff received an MRI. On 13 May 2011, Physician Assistant Kerry Clancy saw a small meningioma or nerve sheath tumor in Plaintiff's lumbar spine. As a result, Clancy restricted Plaintiff to two weeks of sit-down work and scheduled a neurosurgical evaluation. Employer received notice of Plaintiff's restriction to sit-down work, but Employer indicated on its "Modified Work Authorization Form Medical Department" no modified work was available. Notably, Employer indicated on the form Plaintiff's injury was "non-occupational."4 Employer did not assign Plaintiff to a sit-down work only position. Plaintiff has not worked since 13 May 2011. On 14 June 2011, Physician Assistant Clancy treated Plaintiff for lower back pain. Plaintiff's medical provider restricted him to sit-down work only for two weeks.
Plaintiff reported to Dr. David Jones on 1 November 2011. Dr. Jones reviewed Plaintiff's lumbar spine MRIs. Dr. Jones was concerned about lesions on Plaintiff's lumbar spine and put the work-related back pain "on the back burner." On 21 December 2011, Dr. Jones referred Plaintiff to Dr. Gabriel Pantol, a neurologist.
Dr. Pantol evaluated Plaintiff on 6 March 2012 and 11 May 2012. Dr. Pantol opined Plaintiff's spine lesions were asymptomatic and Plaintiff's back pain was not related to the lesions or sarcoidosis
. Dr. Pantol recommended Plaintiff be evaluated by a pain specialist for his back pain.
On 13 May 2011, Plaintiff reported to Dr. Robert Ferguson, an expert in internal medicine. Based on Dr. Ferguson's testimony, the Commission found Plaintiff's restriction to "sit-down work" related to his injury and low back pain and he needed to be evaluated for the spinal lesions. Additionally, Plaintiff had complained of back pain, which limited his capacity to perform his job duties continuously from the date of injury.
Employer never filed an Industrial Commission form to admit or deny Plaintiff's claim. Additionally, Employer never indicated to the Industrial Commission whether Plaintiff's claim was being treated as "medical only." With regard to the parties’ consent order, the Commission found the consent order resulted in a rebuttable presumption Plaintiff's lower back injury was related to his compensable 16 February 2011 injury and resulting back contusion
.
By consent of the parties, Plaintiff reported to Dr. John Buttram, a neurosurgeon, on 25 April 2012. Dr. Buttram diagnosed Plaintiff with non-mechanical back pain and recommended conservative treatment from a physiatrist. Dr. Buttram did not address restrictions for Plaintiff's non-mechanical back pain. Dr. Buttram opined to a reasonable degree of medical certainty "a contusion to the paraspinous musculature5...
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