Pulley v. City of Wilson, No. COA08-716 (N.C. App. 4/7/2009)
| Decision Date | 07 April 2009 |
| Docket Number | No. COA08-716,COA08-716 |
| Court | North Carolina Court of Appeals |
| Parties | ANTHONY PULLEY, Employee-Plaintiff, v. CITY OF WILSON Employer, SELF-INSURED, Defendant |
Rose Rand Attorneys, P.A., by Paul N. Blake, III, for defendant-appellant.
Defendant-employer City of Wilson ("defendant") appeals from an Opinion and Award of the North Carolina Industrial Commission ("Commission") concluding that plaintiff Anthony Pulley ("plaintiff") suffered a specific traumatic incident arising out of and in the course of his employment which aggravated a preexisting condition and that plaintiff is entitled to compensation for temporary total disability. We affirm.
On 4 May 2005, plaintiff filed a claim for workers' compensation against defendant, alleging that injuries to his neck and back were caused by incidents which occurred at work on 29 April 2004 and 29 November 2004. After hearing evidence and reviewing depositions submitted by the parties, a Deputy Commissioner filed an Opinion and Award concluding that plaintiff had not suffered a compensable injury by specific traumatic incident on 29 April 2004 or on 29 November 2004 as a result of his employment with defendant. From this decision, plaintiff appealed to the Full Commission, which issued its Opinion and Award on 11 March 2008 reversing in part the decision of the Deputy Commissioner. The Full Commission's Opinion and Award included the following findings of fact:
1. At the time of the hearing before the Deputy Commissioner, plaintiff was fifty-one (51) years old. He did not graduate from high school, but did obtain a GED. Plaintiff worked as a firefighter with the Wilson Fire Department for approximately twenty-two (22) years. Other than seminars or courses on firefighting, plaintiff had no additional formal education.
2. On April 29, 2004, plaintiff alleges he was injured during a hazardous material training exercise when he picked up a mannequin weighing approximately one hundred seventy-five (175) pounds to put into a basket. Plaintiff testified that while lifting the mannequin, he felt a great deal of pain in his neck, going down into his left shoulder, arm and hand. Plaintiff was wearing his self-contained breathing apparatus (SCBA) at the time. Plaintiff finished the training exercise, cleaned up and went back to the station. Plaintiff told his captain, Chris Hines, that he needed to go home due to the amount of pain he was experiencing. However, because of a working house fire that occurred tying up the other engine companies, plaintiff decided to stay at work and complete the shift.
3. Prior to April 29, 2004, plaintiff had a history of neck and back problems. He was treated for ongoing neck problems in 2000 for which he was taking Vioxx. Only a few days after April 29, 2004, the City's wellness progress notes include an entry on May 5, 2004 indicating plaintiff was reevaluated for taking Vioxx in relation to pain in his neck.
4. On April 30, 2004, plaintiff presented to Dr. Kent Anderson and reported he was still having neck pain, that he had seen Dr. Vanden Bosch and had attended physical therapy, but was still in pain especially when he wore his air pack as a fireman.
5. Consequently, an MRI and other diagnostic studies were ordered, including a myelogram with a post-myelogram CT scan. The MRI revealed C5-6 and C6-7 degenerative changes with prominent disc bulges causing some degree of stenosis. The results of the myelogram showed plaintiff had bulging discs, both C5-6 and C6-7, with no evidence of spinal cord distortion or significant stenosis. However, plaintiff did have nerve root defects at both levels on the left side.
6. Dr. Anderson referred plaintiff to Dr. Ian Hardy, a board certified neurosurgeon. On July 1, 2004, plaintiff underwent left C5-6 and C6-7 laminotomies, partial facetectomies and foraminotomies. Dr. Hardy testified that plaintiff did well postoperatively. Plaintiff's arm pain improved, the weakness in his hand cleared up, and his reflexes remained intact.
7. Dr. Hardy opined that plaintiff's problems were of a degenerative nature versus a traumatic nature. He testified that there were hard discs; no soft discs present and he did not think an acute injury would have produced this sort of thing.
8. Plaintiff began light duty with defendant around the second week in September 2004.
9. When a firefighter has been out of work for an extended period, the Wilson Fire Department requires the firefighter to pass a physical ability test, also known as the "combat challenge." As the end of November 2004 approached, plaintiff had concerns as to whether he was physically able to resume full duties as a firefighter. Therefore, plaintiff requested permission from Battalion Commander Aycock, Deputy Chief Parker, and Deputy Chief Godwin to complete a walk[-]through of the combat challenge. All of the supervisors agreed plaintiff should do this and gave their permission.
10. On November 29, 2004, plaintiff went to the training tower to walk through the combat challenge. He put on his full turnout gear, including his air pack. The gear weighed approximately 60-70 pounds. At that point, plaintiff felt some discomfort in his neck, left shoulder, arm and hand. He walked around for a bit and decided to proceed with the test.
11. The first part of the combat challenge requires that a firefighter climb five stories of the fire tower with a hose pack or high rise pack weighing 50-55 pounds. Plaintiff picked up his hose pack, placed it on his right shoulder and started climbing the stairs of the tower. At that point, plaintiff began experiencing a significant level of pain in his neck, radiating down into his left shoulder, arm and hand. As a result of the pain, plaintiff had to stop his attempt to complete the walk[-]through.
12. Plaintiff testified that the pain he experienced following his attempt to walk through the combat challenge was essentially like the pain that he had in his neck and left shoulder, arm and hand prior to his surgery in July. He further testified that his pain remained at a more intense level following his attempt to walk through the combat challenge.
13. Plaintiff testified that a day or two following his attempt to walk through the combat challenge, he informed his supervisors that he had problems during his attempt at the combat challenge.
14. Commander Aycock confirmed that the day after plaintiff's walk[-]through attempt, plaintiff told him that he got about halfway up the tower with the hose pack and felt such pain in his neck and shoulder that he could not finish.
15. Chief Godwin similarly testified that plaintiff told him that as he tried the walk[-]through, his pain increased and therefore he stopped.
16. Plaintiff was referred to neurosurgeon, Dr. Robert Price, Jr. Plaintiff saw Dr. Price for the first time on December 20, 2004. At this visit, plaintiff reported to Dr. Price that he attempted the physical ability test he was required to take as a firefighter, but could not complete the test because he experienced severe difficulty with pain in his neck and shoulder. The impression was difficulty with chronic neck pain post surgery. Dr. Price doubted plaintiff had a recurrent disc condition. Dr. Price recommended that plaintiff have cervical spine films with flexion/extension views and a cervical MRI scan with or without contrast.
17. The cervical spine films done on December 22, 2004 showed degenerative disc changes at C5-6 and C6-7, no evidence of sublaxation on flexion or extension views. The MRI scan, also done on December 22, 2004, showed there was [sic] some persistent abnormal disc osteophytes present on the left at C5-6 and C6-7 associated with some mass effect on the left at C5-6; mild extradural deformity of the cervical cord at C5-6 antelaterally.
18. As a result [of] his treatment and evaluation of plaintiff, Dr. Price concluded that plaintiff was unable to work full[-]time as a firefighter. Therefore, plaintiff retired from the fire service. His last day of work with the Wilson Fire Department was March 31, 2005.
19. Dr. Price testified to a reasonable degree of medical certainty that the activity plaintiff engaged in by trying to walk through the physical ability test significantly aggravated or caused the neck and arm pain and problems for which he treated plaintiff.
20. Although plaintiff may have suffered an injury on April 29, 2004, the Full Commission finds that there is insufficient medical evidence of record from which to prove by the greater weight that plaintiff sustained a compensable medical injury as the result of the alleged incident on April 29, 2004.
21. Based on review of the evidence as a whole, the Full Commission further finds that plaintiff did suffer a specific traumatic incident on November 29, 2004. As a result of the specific traumatic incident, plaintiff suffered an aggravation of his preexisting neck condition.
22. As it is required that a firefighter who has been out of work for an extended period of time pass the physical ability test and plaintiff sought and obtained permission to compete a walk[-]through of the test from three supervisors, the Full Commission finds that the specific traumatic incident suffered by plaintiff on November 29, 2004 arose out of and in the course of his employment with defendant.
23. Before his employment with the Wilson Fire Department, plaintiff performed jobs in the construction industry. The Full Commission finds that plaintiff is capable of some work, but as a result of his ongoing physical problems arising from his neck injury, plaintiff is unable to perform any of the work...
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