Taylor v. Bridgestone/Firestone, Inc., COA02-470.

• Decision Date: 06 May 2003
• Docket Number: No. COA02-470.,COA02-470.
• Citation: 579 S.E.2d 413
• Court: North Carolina Court of Appeals
• Parties: Phil S. TAYLOR, Employee, Plaintiff, v. BRIDGESTONE/FIRESTONE, INC., Employer, Gallagher Bassett Services, Inc., Carrier, Defendants.

579 S.E.2d 413

Phil S. TAYLOR, Employee, Plaintiff, v. BRIDGESTONE/FIRESTONE, INC., Employer, Gallagher Bassett Services, Inc., Carrier, Defendants.

No. COA02-470.

Court of Appeals of North Carolina.

May 6, 2003.

Edwards & Ricci, P.A., by Brian M. Ricci, Greenville, for plaintiff appellant.

Cranfill, Sumner & Hartzog, L.L.P., by David A. Rhoades and Jaye E. Bingham, Raleigh, for defendant appellee.

BRYANT, Judge.

Phil S. Taylor (plaintiff) appeals from an opinion and award of the Full Commission of the North Carolina Industrial Commission (the Commission) filed 18 January 2002 in favor of Bridgestone/Firestone, Inc. (Bridgestone) and Gallagher Bassett Services, Inc. (collectively, defendants).

The Commission made the following findings of fact, to which plaintiff assigns no error:¹

1.... [P]laintiff ... [has] been employed as a first-stage tire builder for [Bridgestone].... While working for [Bridgestone], on or about [1 March 1997], plaintiff sustained a compensable injury by accident, namely a right rotator cuff tear, arising out of and in the course of his employment.

....

4. On [3 September 1997] and [13 October 1997], plaintiff was examined by Tally E. Lassiter, Jr., M.D. [ (Dr. Lassiter) ], an orthopaedist, who recommended surgery to repair plaintiff's right torn rotator cuff. Consequently, plaintiff's rotator cuff was surgically repaired on [4 November 1997]. Thereafter, plaintiff underwent physical therapy during his recuperation and returned to work on or about [20 March 1998]. On [4 May 1998], Dr. Lassiter gave plaintiff indefinite light-duty restrictions of no carrying or lifting greater than twenty to forty (20-40) pounds and no activities above shoulder level.

5. Thereafter, plaintiff did not return to Dr. Lassiter until [14 June 1999], which was over a year from his last visit. Plaintiff complained of right shoulder pain. Dr. Lassiter indicated that plaintiff had nearly full range of motion of both shoulders, good strength and no instability.... Dr. Lassiter diagnosed right shoulder strain, recommended physical therapy, prescribed Celebrex and continued plaintiff's light-duty restrictions.

6. On [6 October 2000], four months after the [deposition] of Dr. Lassiter [in this matter], plaintiff returned to Dr. Lassiter with continued complaints for which Dr. Lassiter prescribed Vioxx, continued light-duty restrictions and requested that plaintiff return for follow up in six weeks.

7. On [17 March 1998], the parties entered into a partial settlement agreement whereby defendants accepted compensability of plaintiff's claim as of 20 March 1998....

8. An I.C. Form 18M was forwarded to the Commission on behalf of plaintiff on [7 December 1999], which was filed within the two year time period as specified in N.C. Gen.Stat. [§] 97-25.1(i). By way of correspondence dated [23 December 1999,] defendants denied plaintiff's request for future medical treatment.

9. Plaintiff continues to have right shoulder pain and difficulty related to his injury of [1 March 1997], his age and current job duties. Plaintiff testified that his right shoulder bothers him every day and that he has learned to live with pain in order to continue to meet the duties of his employment. Between plaintiff's return to work in March 1998 and Dr. Lassiter's deposition on [20 September 2000], a period of two and one-half years, plaintiff only sought treatment with Dr. Lassiter on two occasions, [4 May 1998] and [14 June 1999].

The Commission also found as fact, to which plaintiff did assign error:

10. The Form 18M filed by plaintiff includes Dr. Lassiter's statement that there is a substantial risk that plaintiff will require additional medical care resulting from his compensable injury. However, the greater weight of the evidence, including Dr. Lassiter's deposition testimony, indicates that there is not [] a substantial risk that plaintiff will require future medical treatment as a result of his injury. Although Dr. Lassiter testified that plaintiff's age and job duties could cause plaintiff to have additional shoulder problems requiring additional treatment, Dr. Lassiter did not have an adequate understanding of plaintiff's job duties. Furthermore, the greater weight of the evidence indicates that the likelihood of the risk of future medical treatment falls short of the standard that the risk be substantial and related to the injury itself and not additional difficulties arising from age or activities....

Based on these findings, the Commission concluded: "Plaintiff has failed to prove by the greater weight of the evidence that there is a substantial risk for the necessity of future medical treatment as a result of his compensable injury by accident."

The evidence before the Commission came from the deposition testimony of plaintiff, Bishop Tucker (Tucker), a Bridgestone safety engineer, and Dr. Lassiter, plaintiff's treating physician. Tucker testified that the job duties of a first-stage tire builder, like plaintiff, required cutting rubber with a heated knife on a tire assembly machine located about waist high and then placing the cut rubber tire "carcasses," which weighed ten to fifteen pounds each, on three different racks located at shoulder, waist, and floor level. In an eight-hour shift, plaintiff produced between 175 to 200 tires.

Dr. Lassiter testified, based on his understanding of plaintiff's job duties, that in his opinion plaintiff had a "substantial risk" of needing future medical treatment. Moreover, plaintiff's original injury made it more likely that plaintiff would need future medical treatment. On cross-examination, Dr. Lassiter stated his understanding of plaintiff's job was that it involved bringing tires up and down from more or less ground level, or knee level, to shoulder level. He was not aware that the knife used to cut the rubber was heated, which makes cutting less stressful, and that if the weight of the tires plaintiff was lifting was within the prescribed weight restrictions, it would probably not cause undue harm. Dr. Lassiter was also confronted with other facts from Tucker's account of plaintiff's job description. Even after being confronted with the facts of plaintiff's job description, Dr. Lassiter maintained that plaintiff's risk of future medical treatment was "substantial to [physical therapy], inflammatories, injections it may be a risk, but not to surgery." Dr. Lassiter further testified that the cause of this risk was plaintiff's age and job duties, opining that, if plaintiff had a sedentary job involving mostly desk work, he would not have a substantial chance of needing future medical treatment. Dr. Lassiter also thought that, having had surgery, "[i]f defendant had another job where he was lifting a moderate amount of weight repetitively at his age," he would have a substantial risk of needing future medical treatment. On re-direct examination, Dr. Lassiter was asked "because [plaintiff] had surgery and is doing the job that he's doing now, that gives him the substantial risk of needing additional treatment?" Dr. Lassiter responded, "I would have to fall back and say he has a moderate risk of having to have more treatment and problems with that shoulder.... There's not much way around it, unless you make him completely sedentary, in my opinion."

The dispositive issue is whether the Commission improperly combined the inquiries into whether plaintiff had a substantial risk of future medical treatment and whether that risk was directly related to his original compensable injury.

Plaintiff's sole argument on appeal is the Commission's finding of fact that the greater weight of the evidence "indicates that there is not [] a substantial risk that plaintiff will require future medical treatment as a result of his injury" is not supported by competent evidence, and, in turn, does not support the Commission's conclusion of law. Appellate review of the Commission's decisions is generally limited to whether "competent evidence supports the findings of fact and whether the findings support the Commission's legal conclusions." Parsons v. Pantry, Inc., 126 N.C.App. 540, 541, 485 S.E.2d 867, 868 (1997). Where, however, the Commission's findings are based on "`an erroneous view of the law or a misapplication of law, they are not conclusive on appeal.'" Id. (quoting Simon v. Triangle Materials, Inc., 106 N.C.App. 39, 41, 415 S.E.2d 105, 106 (1992)).

"Subsequent to the establishment of a compensable injury under the North Carolina Workers' Compensation Act, an employee may seek compensation under N.C. Gen.Stat. § 97-25 for additional medical treatment when such treatment `lessens the period of disability, effects a cure or gives relief.'" Reinninger v. Prestige Fabricators, Inc., 136 N.C.App. 255, 259, 523 S.E.2d 720, 723 (1999) (quoting Parsons, 126 N.C.App. at 541-42, 485 S.E.2d at 869). In deciding whether to enter an award allowing a plaintiff's claim to remain open for future medical treatment, the Commission must determine whether there is a substantial risk of the necessity of future medical compensation. See N.C.G.S. § 97-25.1 (2001). "If additional medical treatment is required, there arises a rebuttable presumption that the treatment is directly related to the original compensable injury and the employer has the burden of producing evidence showing the treatment is not directly related to the compensable injury." Reinninger, 136 N.C.App. at 259, 523 S.E.2d at 723; see Pomeroy v. Tanner Masonry, 151 N.C.App. 171, 184, 565 S.E.2d 209, 217-18 (2002)

; Parsons, 126 N.C.App. at 542-43,

485 S.E.2d at 869. Therefore, construing section 97-25.1 together with Reinninger and Parsons, once it is determined that the plaintiff has shown there is a substantial risk of the necessity of future medical treatment, "there arises a rebuttable presumption that the treatment is directly related to the original compensable injury and the employer has the burden of producing evidence showing the treatment...