Radica v. Carolina Mills

Decision Date01 February 1994
Docket NumberNo. 9210IC1239,9210IC1239
PartiesLouzalia RADICA, Employee, Plaintiff, v. CAROLINA MILLS, Employer, and Liberty Mutual Insurance Company, Carrier, Defendants.
CourtNorth Carolina Court of Appeals

The parties in this action do not dispute that plaintiff was injured at work while pulling a spinning bobbin from a spindle on 18 April 1988. On or about 3 May 1988, defendant-employer filed an "Employer's Report of Injury to Employee" (I.C.Form 19), listing plaintiff's "lower back pain" as the nature and location of injury and Dr. Dickerson as the treating physician. On 13 May 1988, the parties entered an "Agreement for Compensation for Disability" (I.C.Form 21) for plaintiff's "lower back pain" with payments beginning 8 May 1988 and continuing for the necessary number of weeks. This form was approved by the Industrial Commission on 26 May 1988. Plaintiff returned to work briefly on 29 August 1988, but could not perform her duties because of her continuing back pain. Consequently, on 6 September 1988, the parties entered a "Supplemental Memorandum of Agreement as to Payment of Compensation" (I.C.Form 26) stating that plaintiff became totally disabled on 30 August 1988 and that payments were to begin on that date and continue for the necessary number of weeks. This form was approved by the Industrial Commission on 7 October 1988.

On 21 September 1988, plaintiff was released to return to work with no disability. Plaintiff alleges that she was unable to return to work on 21 September 1988 because of her continuing pain. On 1 November 1988, plaintiff filed a "Request that Claim Be Assigned For Hearing" (I.C.Form 33), claiming that she was "still injured and unable to work" and seeking compensation for work days missed after 20 September 1990 and the payment of medical expenses and treatment.

On 18 April 1991, a Deputy Commissioner of the North Carolina Industrial Commission rendered the following opinion and award:

FINDINGS OF FACT

1. Plaintiff, who is 47 years old, attended school to the ninth grade. She has worked in textiles in a variety of capacities since age 17, and has always worked, except one year when her son was sick.

2. Plaintiff's injury occurred on 18 April 1988 when, while pulling a spinning bobbin from a spindle she experienced a pain in her left lower back which radiated posteriorly into the left calf and plantar left foot with numbness of the foot. She was seen by her family doctor on 20 and 24 April 1988, after which defendants directed her to seek treatment with Dr. Dickerson at the Gaul Orthopedic Group.

3. Plaintiff followed up with Dr. Dickerson from 29 April 1988 to 20 September 1988. Ct-Scan was negative and Dr. Dickerson assured plaintiff that surgery would not be required. Dr. Dickerson noted symptom magnification. Plaintiff underwent physical therapy, but her pain continued, prompting Dr. Dickerson to order at least two pain studies, the results of which revealed minimal physicogenic [sic] pain. On the advice of Dr. Dickerson, plaintiff attempted to return to work on 29 August 1988, but had to leave during the middle of her shift. Dr. Dickerson was never able to identify anything that was specifically wrong with plaintiff that was severe enough to cause the kind of pain of which she complained, and released her to return to work on 21 September 1988 with not [sic] disability.

4. Ronnie Thompson, defendant-employer mill nurse, told plaintiff she was not to see Dr. Shah or Dr. Phillips.

5. Plaintiff returned to Dr. Shah on 22 September 1988 after she was released by Dr. Dickerson, because she was still having increasing discomfort in her low back and left leg. Dr. Shah referred plaintiff to Dr. Phillips, an orthopedist, and Dr. Kelly, a neurosurgeon at Bowman-Gray.

6. An MRI scan of the lumbar spine was done and the results were normal. Plaintiff saw Dr. Phillips until 5 October 1988, at which time he did not feel she was able to work. Dr. Phillips was unable to identify a physical cause for plaintiff's pain 7. Dr. Shah's records do not reflect that he is able to offer an explanation for plaintiff's continued complaints of pain. He referred her to Dr. Phillips, who was unable to identify the source of plaintiff's pain, found all the studies to be normal, and had nothing to offer her. Except for the fact that plaintiff's symptoms developed and continued after the injury of 18 April 1998, Dr. Shah never causally relates plaintiff's unexplained continued complaints of pain to the injury of 18 April 1988.

and thought perhaps she needed to go to a pain clinic. He had nothing to offer her.

8. Plaintiff saw Dr. Kelly on 11 November 1988. Dr. Kelly recommended a myelogram and CT-Scan, but defendants refused to pay for this treatment.

9. Plaintiff did not return to Dr. Kelly until 6 July 1990, at which time plaintiff complained of continuing pain on the left side down the left leg to the foot. On exam she had positive straight leg raising on the left. Dr. Kelly proceeded with a myelogram and post-myelogram CT-Scan, the results of which were again normal.

10. On 26 July 1990 plaintiff exhibited limited straight leg raising, but no weakness or reflex changes. Voltare and Soma were prescribed and plaintiff was to return to Dr. Kelly in two months.

11. On 27 September 1990, plaintiff returned to Dr. Kelly and reported that she was doing better. Dr. Kelly concluded that she had reached maximum medical improvement on 27 September 1990, that she retained a ten percent permanent impairment to her back, and that she could return to full time work that did not require lifting over 30 to 40 pounds.

12. Defendants advised plaintiff through her attorney in May 1990 that they would have no objection to plaintiff returning to Dr. Dickerson for follow up treatment, but they would not authorize Dr. Kelly.

13. Plaintiff is of the opinion that there is no job which she is able to perform which pays more than minimum wage. She complains that her back pain prevents her from sitting, standing or walking for long periods of time. There is no evidence that her continued complaints of pain are causally related to the injury of 18 April 1988.

14. There is no evidence that the treatment plaintiff received from Dr. Shah in September 1988 and the treatment she received from Dr. Phillips in 1988, gave relief, tended to effect a cure, lessened the period of plaintiff's disability, or was causally related to the injury of 18 April 1988.

15. The treatment plaintiff received from Dr. Kelly, a neurosurgeon, did tend to give relief. However, there is no evidence that the condition which Dr. Kelly treated in plaintiff was causally related to the injury of 18 April 1988.

16. As a result of the injury of 18 April 1988, plaintiff was unable to earn the same wages she was earning at the time of the injury in the same or any other employment, from the date of injury to 21 September 1988.

17. There is insufficient evidence to support a finding that plaintiff's injury of 18 April 1988 is causally related to any permanent impairment to her back or to the complaints of pain which have prevented plaintiff from returning to work. Plaintiff has failed to establish that she suffered a total or partial loss of wage earning capacity after 21 September 1988 as a result of the injury of 18 April 1988.

The foregoing findings of fact engender the following

CONCLUSIONS OF LAW

1. As a result of the injury of 18 April 1988, plaintiff was temporarily and totally disabled from the date of injury to 21 September 1988. G.S. 97-29.

2. Plaintiff has the burden of establishing by expert medical testimony the causal connection between her injury of 18 April 1988 and the treatment she received and any periods of disability she may have suffered after 21 September 1988. Click v. Pilot Freight Carriers, 300 N.C. 164 (1980). Inasmuch as the stipulated medical records fail to show that the problems for which plaintiff sought treatment * * * * * *

from Dr. Shah, Dr. Phillips, and Dr. Kelly, and her inability to return to work after 21 September 1988, were causally related to the injury of 18 April 1988, her claim for additional workers' compensation benefits is DENIED.

The foregoing findings of fact and conclusions of law engender the following

AWARD

1. Plaintiff's claim for additional workers' compensation benefits is hereby denied.

2. Defendants shall not be responsible for paying for the medical treatment plaintiff received from Dr. Shah, Dr. Phillips, and Dr. Kelly.

3. Each side shall pay its own costs.

On 14 September 1992, the Full Commission found "no adequate ground to amend the award" and "adopt[ed] as its own the Opinion and Award as filed." Plaintiff appeals.

Malcolm B. McSpadden, Gastonia, for plaintiff-appellant.

Alala Mullen Holland & Cooper, P.A. by H. Randolph Sumner, Gastonia, for defendant-appellees.

EAGLES, Judge.

I.

Plaintiff argues that the Industrial Commission "erred by failing to apply the presumption that the plaintiff's temporary total disability continues until she returns to work at the same wage earned prior to the injury." We agree.

In Simon v. Triangle Materials, Inc., 106 N.C.App. 39, 41, 415 S.E.2d 105, 106, disc. review denied, 332 N.C. 347, 421 S.E.2d 154 (1992), this Court stated:

Appellate review of an order and award of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal conclusions of the Commission. Cody v. Snider Lumber, Co., 328 N.C. 67, 399 S.E.2d 104 (1991) (citations omitted). This is so even though there is evidence which would support a finding to the contrary. Crawford v. Warehouse Co., 263 N.C. 826, 140 S.E.2d 548 (1965). However, if the findings are predicated on an erroneous view of the law or a misapplication of the law, they are not conclusive on appeal. See e.g., Bailey v. Dept. of Mental Health, 272 N.C....

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