Silvers v. Mastercraft Fabrics, L.L.C., No. COA05-895 (N.C. App. 6/6/2006)

• Court: North Carolina Court of Appeals
• Writing for the Court: Bryant
• Decision Date: 06 June 2006
• Docket Number: No. COA05-895,COA05-895
• Citation: Silvers v. Mastercraft Fabrics, L.L.C., No. COA05-895 (N.C. App. 6/6/2006), No. COA05-895 (N.C. App. Jun 06, 2006)
• Parties: MARVIN SILVERS, Plaintiff-Employee v. MASTERCRAFT FABRICS, L.L.C. Defendant-Employer and HEWITT, COLEMAN & ASSOCIATES, INC., Defendant-Carrier.

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Unpublished Opinion

MARVIN SILVERS, Plaintiff-Employee v. MASTERCRAFT FABRICS, L.L.C. Defendant-Employer and HEWITT, COLEMAN & ASSOCIATES, INC., Defendant-Carrier.

No. COA05-895

Court of Appeals of North Carolina.

Filed June 6, 2006

This case not for publication

North Carolina Industrial Commission I.C. File No. 204944.

Appeal by employer from an Opinion and Award filed 7 February 2005 by the Full Commission. Heard in the Court of Appeals 8 February 2006.

The Sumwalt Law Firm, by Mark T. Sumwalt and Vernon Sumwalt, for plaintiff-employee-appellee.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by H. Bernard Tisdale, III, for defendant-employer-appellant.

BRYANT, Judge.

Mastercraft Fabrics, L.L.C. (defendant) appeals from an Opinion and Award filed 7 February 2005 awarding Marvin Silvers (plaintiff) temporary partial disability from 11 December 2001 through 31 December 2001; temporary partial disability from 8 January 2002 through 31 December 2002; temporary partial disability for the period of 1 January 2003 through 18 February 2003; total disability compensation for 5 January 2002 though 7 January 2002 and 19 February 2003 through the present and continuing until further order of the Commission; all medical expenses as a result of plaintiff's 11 December 2001 injury by accident; and attorney's fees.

Plaintiff, age forty-four, worked for defendant for eight years before his injury occurred. On 11 December 2001, plaintiff injured his left knee when he stepped off a loom. Defendants admitted the compensability of plaintiff's injury as well as their liability for the injury by filing a Form 60 under N.C. Gen. Stat. § 97-18(b). On 13 December 2001, plaintiff was referred to Dr. John Davis, an orthopedic surgeon. Dr. Davis performed arthroscopic surgery on plaintiff on 4 January 2002. Defendant's employment supervisor and human resources manager, Becky Stevens, attended plaintiff's appointments and examinations with Dr. Davis and discussed plaintiff's return to work without plaintiff's consent.

Between 11 December 2001 and 4 January 2002, Dr. Davis imposed work restrictions of "light duty" on plaintiff. The "light duty" restrictions were not defined, however, and it was left up to defendant to interpret and implement them. Plaintiff's work during this time involved special accommodations that were not a part of his ordinary work routine. He usually worked in the office doing odd jobs when he was able to work.

On 4 January 2002, Dr. Davis performed a medial retinacular repair on plaintiff's left knee. Even on the day of his surgery, plaintiff was required to perform work for defendant under his "light duty" restrictions for two hours before the surgery so defendant would not have to report a lost-time accident. On 8 January 2002, plaintiff returned to work with defendant for as long as he could tolerate the post-surgical pain in his left knee. Dr. Davis encouraged plaintiff to continue working full-time because Dr. Davis wanted to avoid having to write plaintiff out of work, even though plaintiff had to leave work early or miss work entirely because of left knee pain. When plaintiff missed work, defendant marked plaintiff's attendance record as if plaintiff had called in "sick" for that particular day.

Despite plaintiff's ongoing knee pain, Dr. Davis told plaintiff he had no other medical treatment to offer. Plaintiff was transferred to Dr. Jay Jansen, who performed a second surgery on his left knee on 28 August 2002. Upon arthroscopic examination, Dr. Jansen found cartilage wear ("chondromalacia") on the back of plaintiff's kneecap as well as on the medial femoral condyle, which is the weight-bearing part of the knee. Dr. Davis' first surgery did not address the weight-bearing part of the knee. Plaintiff continued to work with defendant through 28 August 2002, the date of the second surgery. The second surgery helped the pain, swelling, and popping in plaintiff's left knee to some degree, however plaintiff continued to have the same problems post-surgery.

On 4 September 2002, plaintiff returned to work with defendant on a graduated return-to-work schedule. On 9 December 2002, Dr. Jansen released plaintiff to return to work without any work restrictions from his August 2002 surgery. Dr. Jansen did so even though he had not reviewed a functional capacity evaluation, and even though plaintiff's knee problems had persisted after two surgeries. Defendants paid temporary partial disability to plaintiff during this period; however they discontinued payments of temporary partial disability benefits on 16 November 2002, under the assumption that plaintiff had no work restrictions. On 18 February 2003, defendant terminated plaintiff for excessive absences from work. Since 18 February 2003, plaintiff has attempted to find other employment, including conducting a job search through the Employment Security Commission after filing for unemployment. Many of the employers with whom plaintiff applied for employment were not hiring. In addition, defendant considered the possibility of jobs at two of its other plants for plaintiff, but these jobs were either three hours from plaintiff's residence or different from the job plaintiff had always performed. Defendant presented no evidence as to the functional requirements of these jobs, their physical demands, and they never offered these jobs to plaintiff.

On 19 August 2003, plaintiff underwent an independent medical evaluation with Dr. Jerry Barron of Perry & Barron Orthopedics in Charlotte, North Carolina. Dr. Barron is a board certified orthopedic surgeon in Charlotte specializing in the treatment of knees and shoulders. In addition to the diagnoses provided by Dr. Davis and Dr. Jansen, Dr. Barron opined that plaintiff's intra operative photographs from the second surgery, which Dr. Jansen had performed on 28 August 2002, indicated at least a partial tear to his anterior cruciate ligament (ACL) with avulsion of the ligament from the femoral condyle. The symptoms from ACL tears resemble and often mimic symptoms from plaintiff's other diagnoses. Dr. Barron recommended surgery to evaluate and repair the ACL tear, but he also stated a functional capacity evaluation (FCE) would help to determine plaintiff's work activities if he should decide not to have surgery.

On 26 September 2003, plaintiff underwent the FCE, which indicated he could not climb ladders or stairs, crawl, or kneel. The FCE also indicated plaintiff could walk only minimally, and that he must alternate periods of sitting and standing as needed. In accordance with the FCE results, Dr. Barron assigned permanent restrictions to plaintiff as follows: (1) lifting no more than 20 pounds occasionally from the waist up and no lifting from the waist down; (2) no climbing ladders, kneeling, or squatting; and (3) climbing stairs no more than occasionally. Dr. Barron also stated these restrictions related back to 28 August 2002, when plaintiff had his second surgery. On 10 June 2004, the Deputy Commission issued an Opinion and Award, awarding plaintiff disability benefits. On 7 February 2005, the Full Commission affirmed the Deputy Commission's Opinion and Award, with some modifications, and awarded plaintiff: temporary partial disability from 11 December 2001 through 31 December 2001; temporary partial disability at a rate of $ 117.22 per week from 8 January 2002 through 31 December 2002 (a lump sum of $6,095.44); temporary partial disability at a rate of $3.31 per week for the period of 1 January 2003 through 18 February 2003 (a lump sum of $23.17); total disability compensation at a rate of $360.47 per week from 5 January 2002 though 7 January 2002 and 19 February 2003 through the present and continuing until further order of the Commission; all medical expenses as a result of plaintiff's 11 December 2001 injury by accident; and attorney's fees. From this Opinion and Award, defendant appeals.

On appeal, defendant argues the Commission erred by: (I) concluding plaintiff has been totally disabled since 19 February 2003 and continuing; (II) concluding plaintiff was temporarily and partially disabled between 1 January 2003 and 18 February 2003; (III) discounting Dr. Davis' testimony; (IV) concluding plaintiff was entitled to ongoing compensation for his ACL tear.

This Court's review of a workers' compensation appeal is limited to:

the questions of law (1) whether there was competent evidence before the Commission to support its findings of fact and (2) whether such findings justify the legal conclusions and decision of the Commission. . . . This Court may, however, remand a case to the Commission for further findings of fact, where [the Court] determine[s] that the findings are insufficient to permit a full and fair adjudication of all matters in controversy.

Smith v. American & Efird Mills, 51 N.C. App. 480, 486, 277 S.E.2d 83, 87 (1981); see also N.C. Gen. Stat. § 97-86 (2005). In addition, "[t]he Industrial Commission possesses the powers of a court[,]" and in exercising those powers, exercises discretion. Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517, 520 (1999). "An abuse of discretion results only where a decision is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." Bryson v. Phil Cline Trucking, 150 N.C. App. 653, 656, 564 S.E.2d 585, 587 (2002) (citations omitted) (internal quotation marks omitted).

I

Defendant first argues the Commission erred in determining plaintiff was totally disabled since 19 February 2003 and continuing to the present time. We disagree.

"Disability" under the Workers' Compensation Act means "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen. Stat. § 97-2(9). Plaintiff has the burden of proving disability and can meet this burden in one of four ways:

(1) the production of medical...