Williams v. Bank of Am., Emp'r, Aig Claim Servs., Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: DAVIS
• Citation: Williams v. Bank of Am., Emp'r, Aig Claim Servs., Inc., 742 S.E.2d 227 (N.C. App. 2013)
• Decision Date: 02 April 2013
• Docket Number: No. COA12–965.,COA12–965.
• Parties: Katherine WILLIAMS, Employee, Plaintiff v. BANK OF AMERICA, Employer, AIG Claim Services, Inc., Carrier, Defendants.

742 S.E.2d 227

Katherine WILLIAMS, Employee, Plaintiff

v. BANK OF AMERICA, Employer,AIG Claim Services, Inc., Carrier, Defendants.

No. COA12–965.

Court of Appeals of North Carolina.

April 2, 2013.

Appeal by plaintiff from order entered 9 March 2012 and by defendants from opinion and award entered 4 May 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 10 January 2013.

Ramsay Law Firm, P.A., Charlotte, by Martha L. Ramsay, for plaintiff.

Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte, by J.A. Gardner, III and M. Duane Jones, for defendants.

DAVIS, Judge.

Plaintiff-employee Katherine Williams (“plaintiff”) appeals from the Industrial Commission's order denying her motion to dismiss the appeal by defendant-employer Bank of America (“BofA”) and defendant-carrier AIG Claim Services, Inc. (collectively, “defendants”) from the deputy commissioner's opinion and award to the Full Commission. Defendants appeal from the Full Commission's opinion and award determining that plaintiff is entitled to temporary total disability benefits. For the reasons stated below, we affirm both the Commission's order denying plaintiff's motion to dismiss and its opinion and award.

Factual Background

At the time of the proceedings before the deputy commissioner, plaintiff was 59 years old, with a Bachelor of Arts degree in special education. Prior to working for BofA, plaintiff worked for several years as a special education and second grade teacher. In 1995, plaintiff began working for BofA as a customer service representative. During her tenure, she worked in various departments, including the associate banking, business banking, daylight overdraft, and database departments.

On 8 April 2004, plaintiff was working in BofA's daylight overdraft department. She was training a new employee at a computer terminal, and when she got up to switch chairs with the new employee, the chair was pulled out from under her. She fell to the floor, hitting her back on the chair and her arm on a desk, and “snapp[ing]” her neck. Plaintiff immediately developed a headache.

Plaintiff's supervisor, who witnessed the incident, had plaintiff complete a written incident report. That same day, defendants instructed plaintiff to visit Concentra Medical Center, where she reported back pain, a headache, and numbness in her left leg and foot. She was diagnosed with contusions on her buttocks, thorax, and upper arm, as well as cervical strain and left trapezius pain. She was prescribed medication and told to return to her regular duties. Plaintiff returned to work and completed her shift. Defendants accepted plaintiff's claim on a medical basis only.

Plaintiff's neck was very stiff the next morning and she was unable to turn her head. She returned to Concentra Medical Center on 12 April 2004 and reported relief from her prescription medication and improvement in her back, neck, and left arm. Plaintiff was released to her regular duties and released from care.

Plaintiff subsequently began experiencing migraine headaches that started at her neck and traveled to her eyes. She indicated that these headaches were the same type as the headache she experienced immediately after the 8 April 2004 fall. Due to continued neck pain and headaches, plaintiff presented to her family physician, Dr. Lori Taylor (“Dr. Taylor”), with Cotswold Family Physicians in June 2004. She was prescribed medication to control her headaches.

Plaintiff continued to experience migraine headaches and used over-the-counter medications to manage the pain associated with the headaches and neck pain. Because the over-the-counter medications did not provide relief, plaintiff returned to Dr. Taylor on 12 January 2005, who administered an injection of Demerol for the pain and prescribed Relpax. Dr. Taylor noted that the over-the-counter medications were not working to control plaintiff's headaches and that plaintiff had reported that she had her “worse ever headache” and that “nothing she took helped.”

At defendants' request, plaintiff was evaluated by several physicians, including Dr. Bruce Darden (“Dr. Darden”) with OrthoCarolina, and Dr. T. Kern Carlton (“Dr. Carlton”) with The Rehab Center. Plaintiff was first seen by Dr. Darden on 27 May 2005, complaining of consistent headaches and neck pain following an injury at work on 8 April 2004. An X-ray revealed degenerative changes at C6–C7. Dr. Darden ordered an MRI and recommended physical therapy. Dr. Darden also referred plaintiff to Dr. Anthony Wheeler (“Dr. Wheeler”) with Pain and Orthopedic Neurology for pain management.

Plaintiff began physical therapy with HealthSource on 2 June 2005, reporting that her continued headaches and neck pain were gradually worsening. She also reported that she had difficulty working, particularly when performing tasks requiring her to look down at paper or at a computer monitor.

On 5 June 2005, plaintiff's MRI revealed advanced degenerative disc disease at C6–C7 with disc protrusion causing mild central canal stenosis. Later that month, plaintiff was seen by Dr. Wheeler and complained of chronic neck pain and daily headaches. Dr. Wheeler diagnosed plaintiff with chronic cervical-thoracic segmental and soft tissue dysfunction and classic regional myofascial pain syndrome. Dr. Wheeler noted that plaintiff's condition was “traumatic rather than degenerative.”

Concerned that plaintiff was suffering from rebound headaches due to her prolonged use of pain medication, Dr. Wheeler tried alternating her headache medication. Dr. Wheeler noted on 30 August 2005 that plaintiff had been able to decrease the use of Relpax but that she still had clusters of days when she had to use it consecutively. On those days, due to the intensity of the headaches and the effects of the medication, she would have to go home and go straight to bed.

Plaintiff was evaluated by Dr. Carlton in September 2006. Plaintiff reported a history of immediate stiff neck and development of headaches after a chair was pulled out from under her and she fell to the floor. Plaintiff's physical examination revealed a moderate decrease in cervical range of motion and some marked improvement in pain when pressure was taken off the cervical spine. Dr. Carlton noted that plaintiff's pain was reproduced when she turned her head. Plaintiff was diagnosed with cervical strain and degenerative disc disease.

Plaintiff continued to have difficulty performing her regular job duties due to her migraines making it hard for her to handle her workload. As a result, plaintiff was transferred to the database team, a position that was less stressful and demanding than her pre-injury position.

On 12 November 2006, Dr. Richard Park (“Dr. Park”) took over plaintiff's pain management care. Dr. Park ordered trigger point injections in an effort to provide relief of plaintiff's chronic headaches and migraines. After the course of injections, plaintiff continued to have right-sided neck pain and headaches. Consequently, Dr. Park administered a right greater occipital nerve block. Plaintiff reported that her headaches improved initially but later returned. Dr. Park commented on plaintiff's difficulty in continuing to work, noting: “I suspect that she will have increased headaches that will be incapacitating at times and work will be an issue.” Dr. Park ordered a CT scan and referred plaintiff to Dr. T. Erik Borresen (“Dr. Borresen”) with Mecklenburg Neurological Associates for headache management. Dr. Park restricted plaintiff from work pending her evaluation with Dr. Borresen.

Plaintiff presented to Dr. Borresen, a neurologist, on 24 May 2007. Dr. Borresen diagnosed plaintiff with post-traumatic headaches and cervical disc disease, recommended complete withdrawal of Relpax, and prescribed different medications to address her headaches. Plaintiff, however, did not immediately begin the recommended treatment plan as she was undergoing acupuncture treatment and had experienced improvement in her symptoms. When her headaches began increasing in July 2007, plaintiff returned to Dr. Park, who recommended that plaintiff begin Dr. Borresen's treatment plan.

In August 2007, plaintiff began Dr. Borresen's treatment regimen. While her headaches and neck pain improved, she was unable to tolerate the medication due to dizziness, nausea, sedation, and lack of energy. Dr. Borresen wrote plaintiff out of work for two weeks to allow her time to adjust to the medication. On 30 August 2007, plaintiff returned to work after being cleared by Dr. Borresen. In September 2007, plaintiff experienced a rapid increase in her liver enzymes, which resulted in Dr. Borresen discontinuing the recommended medications. Plaintiff's headaches subsequently returned and she began taking Relpax on a daily basis.

Due to plaintiff's failure to respond to standard medications, Dr. Borresen recommended therapy with Botox injections. Plaintiff received two rounds of injections in her head, forehead, neck, and shoulders in October 2007. Plaintiff's headaches improved after the injections, but she had an allergic reaction to the Botox, and, consequently, a variation of Botox called Myobloc was used.

On 1 June 2008 plaintiff was laid off by BofA as a result of a reduction in force. Plaintiff obtained a severance package that allowed her to collect severance pay and unemployment benefits. While receiving unemployment benefits, plaintiff applied for positions with approximately eight banking institutions. However, as of the time of the proceedings before the Full Commission, plaintiff had not worked since she was laid off by BofA.

Following her termination, plaintiff continued to be treated by Dr. Borresen for her headaches and neck pain. She underwent further injections, additional physical therapy, a functional restoration program, and various medication changes. Plaintiff experienced a significant increase in her symptoms in October 2008. She began suffering headaches more...