Whitfield v. Laboratory Corp. of America

• Decision Date: 17 June 2003
• Docket Number: No. COA02-722.,COA02-722.
• Citation: 581 S.E.2d 778,158 NC App. 341
• Parties: Angela WHITFIELD, Employee, Plaintiff-Appellee and Cross-Appellant, v. LABORATORY CORPORATION OF AMERICA, Employer, Hartford-ITT Specialty Risk Services, Carrier, Defendants-Appellants and Cross-Appellees.
• Court: North Carolina Court of Appeals

581 S.E.2d 778

158 NC App. 341

Angela WHITFIELD, Employee, Plaintiff-Appellee and Cross-Appellant, v. LABORATORY CORPORATION OF AMERICA, Employer, Hartford-ITT Specialty Risk Services, Carrier, Defendants-Appellants and Cross-Appellees.

No. COA02-722.

Court of Appeals of North Carolina.

June 17, 2003.

Edelstein & Payne by M. Travis Payne, Raleigh, for plaintiff.

Smith Moore, LLP by Jeri L. Whitfield and Shannon J. Adcock, Greensboro, for defendants.

McGEE, Judge.

Laboratory Corporation of America (employer) and Hartford-ITT Specialty Risk Services (collectively defendants) appeal from an opinion and award of the North Carolina Industrial Commission (the Commission) entered 18 January 2002 granting Angela Whitfield (plaintiff) additional disability benefits, along with past and future medical expenses for injuries plaintiff sustained in a slip and fall accident in her employment with Laboratory Corporation of America. Plaintiff filed a cross-appeal dated 20 February 2002 as to the Commission's denial of her request for attorney's fees for defendants' failure to provide plaintiff reasonable and necessary medical treatment.

A deputy commissioner entered an opinion and award on 31 July 2000 concluding that plaintiff was (1) not entitled to any further temporary total disability compensation beyond what she had received because plaintiff had failed to show she had sustained a compensable injury; (2) that plaintiff was able to return to work; and (3) that plaintiff's evidence concerning her back injury was not credible. Plaintiff appealed to the Full Commission. The Commission reversed the deputy commissioner's award on 18 January 2002, finding plaintiff was entitled to additional disability benefits, as well as past and future medical expenses. The Commission's opinion and award did not address plaintiff's request for attorney's fees under N.C. Gen. Stat. § 97-88.1.

Plaintiff worked for employer as a service representative, traveling to medical offices in Raleigh to pick up patient specimens for analysis. The specimens were placed in a cooler in the trunk of a car provided by employer. When plaintiff completed her route, she carried the cooler from the car into the offices of employer and labeled and packaged the specimens to be sent to a laboratory. Plaintiff had to stand for about two hours during the labeling and packaging at the end of the shift.

On 5 June 1998, plaintiff entered a building to make a pickup. As she entered the front door of the building, there was rainwater on the floor and plaintiff's legs slipped out from under her. She began to fall and twisted around abruptly to maintain her balance. She was able to grab onto the door with her left hand as she was falling backwards. She did not quite fall to the floor, as she was able to hold onto the door, but she ended up supporting most of her body weight with her left hand and arm.

Plaintiff almost immediately began experiencing a tingling sensation and pain in her back. As this pickup was near the end of her route, she was able to complete the route that day. Plaintiff rested over the weekend and returned to work on Monday. She reported her injuries to her supervisor and said she was in considerable pain and needed to see a doctor. Plaintiff's supervisor told her to call for an appointment and plaintiff saw Dr. Nichols the following day.

Dr. Nichols took plaintiff out of work until 17 June 1998 and gave her limitations of no lifting and minimal bending. Plaintiff attempted to work on June 17 and 18 but was experiencing so much pain in her back and neck that she returned to Dr. Nichols on June 19, and he again took her out of work.

Dr. Nichols sent plaintiff to Oren LeBlang for physical therapy, but plaintiff was in so much pain that the therapy did not prove beneficial and it was terminated after about three visits. LeBlang wrote a letter stating that plaintiff complained of pain with "feather like stroking." Plaintiff testified that she clearly remembered the incident and that LeBlang "was mashing very hard on my back."

On 15 July 1998, Dr. Nichols released plaintiff to return to work in a sedentary position, lifting no more than ten pounds. When employer was provided with Dr. Nichols' restrictions, plaintiff was assigned to driving a full route, which aggravated her condition. On July 16 and 17, plaintiff's job was changed and she was allowed to remain in the office doing data entry for three hours. Plaintiff's supervisor testified that even when plaintiff was performing the data entry tasks, she appeared to be in significant pain. She was later assigned to a route with another employee. The route she was assigned was more hectic than the one she had previously done. The new route required plaintiff to move more quickly and also required going up and down more stairs. At the end of the day, plaintiff experienced significantly increased levels of pain.

Plaintiff drove from her home in Goldsboro to work in Raleigh on 20 July 1998. When she arrived at work, she told her supervisor that she was experiencing significant pain and spasms in her back, and requested to again see Dr. Nichols. When she could not get an appointment with Dr. Nichols, plaintiff requested to be allowed to go to a hospital emergency room to get some medication for her pain. She was refused permission to go to the emergency room, but employer located a doctor in Durham, Dr. Christian J. Lambertsen, that plaintiff could see that day. Plaintiff traveled to Durham and first saw Dr. Henry Adomonis, who conduced almost a full examination. Dr. Lambertsen came into the room and repeated the examination. Plaintiff's pain limited her ability to comply with all of the examination requests of the doctor. Dr. Lambertsen placed plaintiff on limited duty with no driving for three weeks. Plaintiff was in so much pain that she was barely able to walk and was unable to drive herself home to Goldsboro. She called and arranged to have a friend pick her up.

Over the next several days plaintiff, or someone on her behalf, called employer early each morning, informing them that plaintiff continued to be in a great deal of pain and could not work. Plaintiff was informed by her supervisor that as long as she called in and reported her status each day there would be no problem.

Plaintiff was informed on 21 July 1998 by a nurse working for employer that she would no longer be able to see Dr. Nichols. Two days later, plaintiff continued to experience severe pain and went on her own to a hospital emergency room in Greenville for treatment. Plaintiff drove to Raleigh and reported for work at her normal time on Friday, 24 July 1998. She was informed that she should return home and come back on Monday, 27 July 1998 to talk to with her supervisor, who was not at work that day. Plaintiff reported to work on July 27 and was informed by her supervisor that she had been discharged for not coming to work during the previous week.

On the afternoon of July 27, plaintiff kept an appointment with Dr. Scott Sanitate that had been arranged by defendants. Plaintiff's friend accompanied her to the appointment and went into the examination room with her. Plaintiff was still in significant pain and was dragging her right leg to a significant extent. Dr. Sanitate did a minimal evaluation and indicated to plaintiff that he thought all of her problems would resolve with no surgical intervention and with minimal treatment. He recommended a steroidal injection, which was scheduled for 4 August 1998.

Plaintiff was unable to attend the scheduled appointment for the injection because she had started other employment. She asked that the appointment be rescheduled, but defendants did not reschedule it. After 27 July 1998, defendants never provided plaintiff any type of medical treatment.

Plaintiff continued to experience severe levels of pain in her neck, back, shoulder and leg. She was unable to sit for long periods, unable to stand for significant periods, and unable to walk any significant distances. These were activities that she did regularly before her injury. Plaintiff also experienced difficulty in doing routine chores such as cleaning her house.

Plaintiff began to see Dr. Huh, at the Duke Hospital Pain Clinic in October 1998. Because of her limited financial resources and lack of health insurance, plaintiff was unable to see Dr. Huh as frequently as recommended. She was also financially unable to purchase all of the medications he prescribed or obtain the diagnostic tests he prescribed, such as cervical and lumbar MRI's.

Dr. Huh, a board certified anesthesiologist and board eligible pain management specialist, stated that plaintiff was experiencing real and significant levels of pain in her neck, back, and leg and that she was not exaggerating her level of pain during the period he treated plaintiff. Based on a description of the slip and fall that plaintiff experienced on 5 June 1998, it was Dr. Huh's opinion that the types of problems he diagnosed for plaintiff were likely to have arisen from such a twisting fall. Dr. Huh testified that plaintiff developed significant depression secondary to her chronic pain. He further opined that this was not unusual and that a doctor needed to treat the depression as well as the pain in order for a patient to obtain significant pain relief.

Dr. Huh also stated that plaintiff's inability to attend regular and scheduled appointments, due to her financial situation, negatively affected her treatment and possibilities for recovery; but her prognosis for a significant recovery was fair provided she was able to attend regularly scheduled medical visits at the pain clinic, receive all of the medication prescribed, attend regular psychotherapy sessions, and attend a regular, long-term physical therapy program. Dr. Huh testified that plaintiff was not capable and had not been capable of performing a job that required her to sit in a car and drive the vehicle for...