Richardson v. Maxim Healthcare/Allegis
| Decision Date | 06 November 2007 |
| Docket Number | No. COA06-875.,COA06-875. |
| Citation | 652 S.E.2d 3 |
| Court | North Carolina Court of Appeals |
| Parties | Penny M. Rumple RICHARDSON, Employee, Plaintiff-Appellee, v. MAXIM HEALTHCARE/ALLEGIS GROUP, Employer, and Kemper Insurance Company/American Protection Insurance c/o Specialty Risk Services, Carrier, Defendants-Appellants. |
Anne R. Harris, Greensboro, for plaintiff-appellee.
Robinson & Lawing, L.L.P., by Jolinda J. Babcock and Eleasa H. Allen, Winston-Salem, for defendants-appellants.
Maxim Healthcare/Allegis Group ("defendant-employer") and its insurance carrier, Kemper Insurance Company/American Protection Insurance c/o Specialty Risk Services (collectively, "defendants"), appeal from an order of the Full Commission of the North Carolina Industrial Commission ("Full Commission") filed 15 March 2006 awarding workers' compensation benefits to Penny M. Rumple Richardson ("plaintiff"). For the reasons stated below, we affirm in part, reverse in part, and remand for further proceedings not inconsistent with this opinion.
In 1996, plaintiff began working for defendant-employer, a medical staffing agency with approximately 400 employees. As a certified nursing assistant, plaintiff worked either in a long-term care facility or in a client's home. Plaintiff's work duties varied with the particular assignment and "could be very strenuous to very light," with work ranging from total patient care to sitting with an elderly or disabled patient. Work assignments were made either when an employee contacted defendant-employer to see if work was available or when defendant-employer contacted an employee seeking to fill a particular assignment. Employees could turn down jobs, and many of defendant-employer's employees, including plaintiff, worked a sporadic schedule.
On 16 May 2001, plaintiff was assigned work assisting a paraplegic client with bathing, dressing, and general care. Plaintiff left the client's house to pick up food, and while traveling at approximately fifty-five miles per hour in the right-hand lane, another vehicle drifted out of the left-hand lane and struck plaintiff's vehicle. The impact caused plaintiff's vehicle to spin out of control and strike a cement median barrier. The vehicle's air bags did not deploy, and plaintiff hit her head and right knee on something in the car. The driver of the other vehicle did not stop. As a result of the accident, plaintiff immediately experienced swelling in her face and right knee. Plaintiff also sustained injuries to her chest as a result of the accident.
Emergency Medical Services ("EMS") arrived at the scene of the accident and noted that plaintiff complained of pain in the left side of her head. EMS also noted edema to the left side of plaintiff's upper lip. EMS transported plaintiff to Moses Cone Memorial Hospital, where she was treated for headache, difficulty breathing, contusions, swelling around her mouth and chin, and moderate pain and soreness around her head, face, and chest.
Additionally, plaintiff began experiencing a decrease in the size of her breast implants as well as a rippling of the breasts almost immediately after the motor vehicle accident. Plaintiff, who had obtained the implants approximately five years prior to the accident, reported her concerns to the physicians at the emergency room. The physicians performed a visual inspection but noted no asymmetry.
Within twenty to thirty minutes after the accident, plaintiff called defendant-employer and reported the accident to her supervisor. Defendant-employer acknowledged that it first learned of the injury on 16 May 2001 — the date of the accident — on Industrial Commission Form 19, dated 9 August 2002. Also shortly after the accident, plaintiff filed uninsured motorists claims with Nationwide Insurance ("Nationwide") — the insurance carrier for plaintiff's motor vehicle — for the personal injuries she sustained as a result of the accident.
On 17 May 2001, plaintiff presented to her family physician at Eagle Family Medicine, complaining of significant soreness, particularly in her shoulders and upper back. The physical examination revealed tenderness and soft tissue swelling over plaintiff's left cheek as well as a contusion on the inside of her upper lip. Plaintiff was given a note that provided that she was not to return to work until 6 June 2001 due to medical reasons.
On 31 May 2001, plaintiff presented to Dr. David M. Bowers ("Dr. Bowers"), a board certified specialist in plastic surgery, and expressed concerns "that there was a decrease in the size of the implants, fairly immediately [after the accident]." Plaintiff also informed Dr. Bowers of "some rippling in the implants" and that she was "no longer filling out the bras that she ... bought post surgery." Dr. Bowers testified that plaintiff's right breast implant had ruptured, and the left breast implant, although it did not appear to have ruptured, exhibited signs of rippling. On 7 June 2001, Dr. Bowers performed bilateral breast re-augmentation — specifically, he removed the original implants and replaced them with new implants. Nationwide paid Dr. Bowers for his work, pursuant to plaintiff's claim with Nationwide. Following the surgery on 7 June 2001, Dr. Bowers restricted plaintiff from working until 24 July 2001.
Plaintiff also sought treatment for her right knee. Prior to the accident, she had undergone two knee surgeries, after which plaintiff had been able to return to work without restrictions. Following the accident, plaintiff began experiencing pain and swelling in her right knee, and on 9 July 2001, she presented to Dr. Peter G. Dalldorf ("Dr. Dalldorf") for treatment. Dr. Dalldorf confirmed plaintiff's complaints and referred her to physical therapy. Plaintiff followed up with Dr. Dalldorf on 30 July 2001, complaining of "intense pain since her accident" in her right knee. As a result, Dr. Dalldorf injected plaintiff's right knee and restricted plaintiff from working from 9 July 2001 until 6 August 2001.
Plaintiff returned to work on a regular basis on 7 August 2001,1 but ceased working on 6 October 2001 to have surgery on her right knee on 9 October 2001. Between October 2001 and May 2002, when plaintiff returned to Dr. Dalldorf, she was limited in her abilities to crawl, climb, or stoop as well as lift, position, and turn patients. Nevertheless, plaintiff regularly contacted defendant-employer requesting to be assigned to light-duty jobs that she was capable of performing. Plaintiff testified that defendant-employer rarely offered her modified work that she was physically capable of performing, and during this time, plaintiff worked a total of eight days, performing light-duty jobs as they became available and were offered to her. Defendant-employer used plaintiff's wages on nearly all of these days to pay her health insurance costs.
On 25 June 2002, Dr. Dalldorf performed a second post-accident surgery on plaintiff's right knee. Plaintiff has not worked since this surgery and has been under work restrictions from her physicians. On 8 October 2002, Dr. Dalldorf performed a third post-accident surgery on plaintiff's knee. Dr. Dalldorf testified that although plaintiff had chondromalacia patella prior to the motor vehicle accident, plaintiff's motor vehicle accident aggravated her pre-existing condition, and she would not have needed the three surgeries but for the motor vehicle accident. Dr. Dalldorf further noted on 5 February 2003 that plaintiff would have trouble performing her regular job duties.
Plaintiff also has experienced discomfort in her right hand since the accident. On 22 January 2003, plaintiff presented to Dr. Marshall C. Freeman ("Dr. Freeman"), complaining that she had been experiencing bilateral hand numbness and tingling, especially on her right hand, since May 2001. Plaintiff also explained her hand condition to Dr. Dalldorf on 5 February 2003. Dr. Dalldorf reviewed the nerve conduction studies performed by Dr. Freeman, noted that the studies revealed a mild carpal tunnel syndrome on her right hand, and injected plaintiff's hand with Depo-Medrol. Plaintiff returned to Dr. Dalldorf on 26 February 2003, complaining of continued discomfort in her right hand. Having already prescribed a brace and injection for plaintiff, Dr. Dalldorf decided to refer plaintiff to Dr. Gary R. Kuzma ("Dr. Kuzma").
On 6 March 2003, plaintiff presented to Dr. Kuzma, who is board certified in orthopedics and hand surgery, complaining of numbness and tingling in her hand. Plaintiff also indicated that "[s]he felt as though it was gradually getting worse." Plaintiff indicated to Dr. Kuzma that she had been experiencing pain since her motor vehicle accident. Dr. Kuzma diagnosed plaintiff with carpal tunnel syndrome as well as arthrosis in her right thumb. Dr. Kuzma recommended immobilizing plaintiff's thumb and wrist by placing her right hand in a splint. On 4 June 2003, Dr. Kuzma performed a carpal tunnel release on plaintiff's right hand. On 5 January 2004, Dr. Kuzma testified that plaintiff remained under his care and on one-handed work restrictions. He also opined that plaintiff may require additional surgery on her thumb in the future.
Since her 16 May 2001 motor vehicle accident, plaintiff also has experienced daily and continuous headaches. Plaintiff complained of a headache at the time of the accident to EMS workers. Plaintiff first sought treatment for her headaches on 23 October 2002 when she visited Dr. Freeman. Dr. Freeman's initial examination revealed bilateral occipital nerve tenderness along with a decreased range of motion of plaintiff's cervical spine. Over the course of his care of plaintiff, Dr. Freeman diagnosed plaintiff with "cervicogenic headache as well as occipital neuralgia as well as a previous comorbid...
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