Pine v. Wal-Mart Assocs., Inc.

• Decision Date: 05 September 2017
• Docket Number: No. COA16-203,COA16-203
• Court: North Carolina Court of Appeals
• Parties: Patricia PINE, Employee, Plaintiff, v. WAL-MART ASSOCIATES, INC. # 1552, Employer, and National Union Fire Insurance Co., Carrier (Claims Management, Inc. Third-Party Administrator), Defendants.

255 N.C.App. 321

804 S.E.2d 769

Patricia PINE, Employee, Plaintiff,

v.WAL-MART ASSOCIATES, INC. # 1552, Employer, and National Union Fire Insurance Co., Carrier (Claims Management, Inc. Third-Party Administrator), Defendants.

No. COA16-203

Court of Appeals of North Carolina.

Filed: September 5, 2017

Doran Shelby Pethel and Hudson, P.A., Salisbury, by David A. Shelby, for Plaintiff-Appellee.

Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte, by Holly M. Stott and M. Duane Jones, for Defendant-Appellants.

INMAN, Judge.

This appeal involves a commonly relied upon presumption in North Carolina workers’ compensation law, which shifts from an employee to an employer the burden of proof for causation of an injury. At issue is whether the North Carolina Industrial Commission erred by applying this presumption, known as the Parsons presumption, to a medical condition not listed on an employer's admission of compensability form.

Wal-Mart Associates, Inc., employer, and National Union Fire Insurance Co., carrier, (collectively "Defendants") appeal from an Opinion and Award of the Full North Carolina Industrial Commission (the "Commission") awarding Patricia Pine, employee, ("Plaintiff") compensation for medical treatment for injuries to her neck, wrist, shoulder, hand, and left knee and ongoing disability payments.

Following an amendment to the North Carolina Workers Compensation Act by the North Carolina General Assembly, we hold that it was error for the Commission to apply the Parsons presumption in this case. However, the error does not require reversal because the Commission also found that Plaintiff had proved by a preponderance of the evidence that her additional medical conditions were causally related to her workplace injury, thereby satisfying her burden of proof absent the presumption. Accordingly, we affirm the Commission's Opinion and Award.

Factual and Procedural History

On 29 December 2011, while at work, Plaintiff tripped and fell face-forward over the bottom of a stairway ladder. As she fell, she extended her right arm to break the fall; her wrist hit the floor first, followed by her right shoulder area, her left knee, and her chest near her collarbone. One of Plaintiff's co-workers witnessed the fall and confirmed that Plaintiff complained of left knee and right hand, wrist, and shoulder pain.

Plaintiff, at the direction of her employer, went to Dr. Clifford Callaway, who diagnosed her with a shoulder sprain

. Plaintiff followed up with Dr. Callaway several times throughout January 2012. Dr. Callaway updated his diagnosis to include a left knee sprain, a cervical strain, and a wrist sprain, and referred Plaintiff to Dr. James Comadoll, an orthopedic specialist.

Dr. Comadoll ordered an MRI of Plaintiff's right shoulder and diagnosed Plaintiff with a possible right rotator cuff tear

and a left knee contusion. Plaintiff followed up with Dr. Comadoll within one month complaining of neck soreness and issues with range of motion. Dr. Comadoll ordered an EMG¹ to look for signs of nerve entrapment. The EMG showed Plaintiff suffered from carpal tunnel syndrome in her right wrist, so Dr. Comadoll performed a carpal tunnel release surgery. Because Plaintiff still complained of left knee pain, Dr. Comadoll ordered an MRI of Plaintiff's left knee, which showed a possible lateral meniscus anterior horn tear.

Dr. Comadoll referred Plaintiff to Dr. Michael Getter, a board-certified orthopedic surgeon who specializes in spinal surgery, for further evaluation of her continued complaints of numbness and pain in her upper extremities. Dr. Getter ordered a cervical MRI for Plaintiff, which showed degenerative disc disease

causing stenosis compressing the nerve at C4-5, C5-6, and C6-7. Dr. Getter recommended surgery to decompress the nerve and to prevent progressive neurological problems and muscle atrophy.

At the request of Defendants, Plaintiff underwent additional medical examinations. Dr. Joseph Estwanik diagnosed Plaintiff with a partial full thickness tear of her right rotator cuff for which he recommended arthroscopic surgery

. Dr. Louis Koman, a board-certified orthopedic surgeon with a certificate of subspecialty in hand surgery, diagnosed Plaintiff with a carpal boss, a traumatic sagittal band rupture, and cervical spine pathology that was causing some residual symptoms in her right upper extremity despite the carpal tunnel release.

Meanwhile, Plaintiff filed a Form 18, Notice of Accident to Employer , related to her fall at work, citing injuries to her "RUE, LLE, neck and any other injuries causally related." In response, Wal-Mart filed a Form 60, Employer's Admission of Employee's Right to Compensation , admitting compensability for Plaintiff's claim with regard to the injuries suffered to her right shoulder and arm. Wal-Mart subsequently filed a Form 61, Denial of Workers’ Compensation Claim , denying compensability for Plaintiff's cervical spine condition as "a new injury outside of her employment" and "unrelated to the original compensable injury."

Following a hearing before the Industrial Commission, deputy commissioner Kim Ledford issued an Opinion and Award concluding, as shown by the greater weight of competent medical opinion, that as a consequence of her workplace accident Plaintiff not only suffered the shoulder injury admitted by Wal-Mart, but also sustained injuries to her right wrist and left knee and aggravated her pre-existing cervical disc condition. Both parties appealed to the Full Commission.

Following additional proceedings, the Commission found, inter alia :

20. Based upon a preponderance of the evidence, the Full Commission places greater weight on the testimony of Dr. Callaway, Dr. Comadoll, Dr. Getter, and Dr. Koman, than that of Dr. Estwanik, and finds that Plaintiff's pre-existing cervical disc disease

was aggravated by her fall at work on December 29, 2011. Additional medical treatment with Dr. Getter, including but not limited to surgery, is reasonable and necessary to effect a cure, give relief, or lessen the period of disability related to this injury.

...

22. Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff's carpal tunnel syndrome and sagittal band rupture were caused by the December 29, 2011 injury by accident. The Full Commission further finds, by a preponderance of the evidence that Plaintiff's carpal boss was materially aggravated by the December 29, 2011 injury by accident. Additional medical treatment, including but not limited to surgery with Dr. Koman, is reasonable and necessary to effect a cure, give relief, or lessen the period of disability related to these injuries.

The Commission concluded that because Wal-Mart accepted as compensable Plaintiff's right shoulder injuries, a rebuttable presumption arose that Plaintiff's other medical conditions were causally related to the compensable injury. It then concluded:

3. Defendants failed to present sufficient evidence to rebut the presumption that Plaintiff's carpal tunnel syndrome

, carpal boss, sagittal band rupture, dystrophic right hand symptoms, neck, and left knee problems are causally related to the December 29, 2011 injury by accident. See

Gonzalez v. Tidy Maids, Inc. , 239 N.C.App. 469, 768 S.E.2d 886 (2015)....

The Commission awarded Plaintiff "all reasonable and necessary medical expenses which tend to effect a cure, give relief or lessen the period of Plaintiff's disability, incurred or to be incurred by Plaintiff for treatment of her right shoulder, left knee, right carpal tunnel syndrome

, right sagittal band rupture, right hand dystrophic condition, right carpal boss, and neck injuries."

Defendants timely appealed.

Analysis

Defendants argue that the Commission acted under a misapprehension of the law when it relied on this Court's decision in Wilkes v. City of Greenville , ––– N.C.App. ––––, ––––, 777 S.E.2d 282, 286 (2015) (citations omitted), aff'd in part, aff'd as modified in part, and remanded by 369 N.C. 730, 799 S.E.2d 838 (2017), and applied the presumption established by this Court in Parsons v. Pantry, Inc. , 126 N.C.App. 540, 485 S.E.2d 867 (1997), shifting to Defendants the burden of proving that Plaintiff's other injuries were not causally related to her right shoulder injury suffered in her fall at work. Defendants further assert that Plaintiff failed to meet her burden of proof without the Parsons presumption to establish a causal relationship between the injuries. We disagree.

A. Standard of Review

Appellate review of an opinion and award of the North Carolina Industrial Commission is "limited to determining: (1) whether the findings of fact are supported by competent evidence, and (2) whether those findings support the Commission's conclusions of law." Reed v. Carolina Holdings , ––– N.C.App. ––––, ––––, 796 S.E.2d 102, 108-09 (2017) (citing Chambers v. Transit Mgmt. , 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) ). Findings of fact supported by competent evidence are binding on appeal, Chaisson v. Simpson , 195 N.C.App. 463, 470, 673 S.E.2d 149, 156 (2009), and unchallenged findings of fact are presumed to be supported by competent evidence, Morgan v. Morgan Motor Co. of Albemarle , 231 N.C.App. 377, 380, 752 S.E.2d 677, 680 (2013). However, the Commission's conclusions of law are reviewed de novo .

McRae v. Toastmaster, Inc. , 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004). And "[w]hen the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legal standard." Ballenger v. ITT Grinnell Indus. Piping, Inc. , 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987) (citation omitted).

B. Parsons Presumption

Defendants specifically challenge the Commission's Conclusions of Law Numbers 1 and 3 related to Plaintiff's neck, wrist, and hand injuries, asserting that the Commission misapplied the Parsons presumption to those medical conditions not previously admitted by Wal-Mart...