GARY L. ADERHOLT, Employee, Plaintiff; v. A.M. CASTLE COMPANY,
Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier; Defendants
No. COA99-174
Judge GREENE concurring.
Appeal by defendants from opinion and award entered 31 August
1998 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 16 November 1999.
Richard B. Harper for plaintiff-appellee.
HEDRICK, EATMAN, GARDNER & KINCHELOE, L.L.P., by Jack A.
Gardner, III, and Jeff Kadis, for defendants-appellants.
TIMMONS-GOODSON, Judge.
A.M. Castle Company (“defendant-employer”) and Liberty Mutual
Insurance Company (collectively, “defendants”) appeal from anopinion and award wherein the North Carolina Industrial Commission
(“the Commission” or “the Full Commission”) concluded that plaintiff
reached maximum medical improvement with respect to all of his
injuries on 3 October 1994. In its opinion and award, the
Commission also determined the amount of compensation to which
plaintiff was entitled for the loss or permanent impairment of
various organs and body parts. For the reasons hereinafter stated,
we affirm the Commission's decision.
The pertinent factual and procedural background is as follows:
On 2 February 1989, while working as a salesman for defendant-
employer, plaintiff sustained admittedly compensable injuries to
his left arm and chest in an accident involving a logging truck.
The truck was traveling toward plaintiff on a two-lane road in
rural South Carolina, when a dangling chain from the truck crashed
through the window of plaintiff's car and hit him in the left arm
and upper torso. The chain struck plaintiff with such force that
it mangled his arm, penetrated his chest, punctured his diaphragm,
and ruptured his stomach. Despite his injuries, plaintiff managed
to drive four additional miles before he received assistance and
was transported to Spartanburg Regional Medical Center for
emergency medical treatment.
Dr. John Tate performed surgery to repair plaintiff's chest
injuries and found that the laceration to his stomach causedgastric contents to spill into the abdominal cavity. Dr. Tate
cleaned the organs; however, within twenty-four hours of the
surgery, plaintiff developed severe sepsis and required extensive
treatment with antibiotics and antifungal medication. As a result
of the infection, tissues within the abdominal cavity began to die
and, thus, Dr. Tate completed more than a dozen laparotomies to
clear out the necrotic tissue. Before bringing the infection under
control, Dr. Tate had to remove plaintiff's spleen, most of his
pancreas, and much of the omentum covering his internal organs. In
the interim, plaintiff contracted adult respiratory distress
syndrome and his kidneys temporarily failed. Plaintiff also
developed adhesions around his intestines. Due to the gravity of plaintiff's injuries, he remained in the
intensive care unit for over two months. When plaintiff was
finally able to move about, he experienced numbness in his feet and
legs and exhibited a bilateral foot drop when he walked. Dr. Tate
consulted with a neurologist about plaintiff's symptoms and
concluded that plaintiff suffered nerve damage from malnutrition
and the strong medication he had been taking. However, no nerve
testing was conducted to determine the degree of damage done.
Following his discharge on 20 May 1989, plaintiff underwent
several surgeries to repair the injury to his left arm. The
procedures were unsuccessful, however, and plaintiff ultimately
lost virtually all use of his left arm and hand. On 24 January
1994, Dr. Stephen Harley, an orthopedic surgeon, performed a final
evaluation of plaintiff's condition and found that he had reached
maximum medical improvement of his right and left upper
extremities. Dr. Harley was of the opinion that plaintiff would
not be able to return to gainful employment.
In September of 1994, plaintiff visited Dr. Andrea Stutesman
for a comprehensive evaluation of his medical condition. During
the initial consultation, plaintiff reported an inability to use
his left arm, bilateral foot drop, chronic diarrhea, non-insulin
dependent diabetes, difficulty breathing especially with exertion,
hoarseness, frequent urination, and sexual dysfunction. Dr.
Stutesman referred plaintiff for an MRI, which revealed a
significant compromise of the cervical cord at three levels. Given
the likelihood that spur formation in the spine would worsenplaintiff's existing problems, Dr. Stutesman strongly encouraged
plaintiff to see a neurosurgeon. Plaintiff refused, however, not
wanting to undergo any further surgery. Therefore, Dr. Stutesman
completed the impairment evaluation and, on 3 October 1994, gave
plaintiff the following disability ratings: 49% permanent partial
disability to his back, 13% permanent partial disability to his
right lower extremity, 18% permanent partial disability to his left
lower extremity, 19% permanent partial disability to his right
upper extremity, and 100% permanent total disability to his left
upper extremity. Dr. Stutesman further found that plaintiff
suffered losses or impairments to his organs as follows: 51-100% of
each lung, 49% of the upper digestive tract, 5% due to diabetes,
100% loss of spleen, 29% of the air passage, 14% speech impairment,
9% of sexual function, and 25% of skin flexibility.
Defendants paid disability benefits to plaintiff pursuant to
a properly executed Form 21 Agreement for Compensation. On 28
February 1995, plaintiff requested a hearing to determine his
benefits under sections 97-31 and 97-29 of the North Carolina
General Statutes so that he could make an election of remedies.
Deputy Commissioner Morgan S. Chapman heard the matter and entered
an order on 27 March 1997 finding plaintiff to be totally and
permanently disabled. The deputy commissioner concluded that
plaintiff reached maximum medical improvement on 24 January 1994
and that plaintiff should make an election of benefits as of that
date. Plaintiff appealed, and the Full Commission entered an
opinion and award concluding, instead, that plaintiff achievedmaximum medical improvement as to all of his injuries and resulting
conditions on 3 October 1994. The Commission, however, reiterated
that “[p]laintiff reached maximum medical improvement with respect
to his right and left upper extremities on 24 January 1994.”
Defendants appeal.
[1]At the outset, defendants argue that the Commission erred
in concluding that plaintiff reached maximum medical improvement
with respect to all injuries, except those to his right and left
upper extremities, on 3 October 1994, the date of his final
evaluation by Dr. Stutesman. Defendants contend that the record
lacks any competent evidence to support this conclusion and that
the evidence, instead, compels a conclusion that plaintiff attained
maximum medical improvement of all of his injuries in January of
1994. We must disagree.
The scope of this Court's review on appeal from an opinion and
award of the North Carolina Industrial Commission is well defined.
We must determine whether the record before the Commission yields
any competent evidence to support its findings of fact and whether
those findings, in turn, sustain its conclusions of law.
Aaron v.
New Fortis Homes, Inc., 127 N.C. App. 711, 714, 493 S.E.2d 305, 306
(1997). Thus, “'[i]f there is any evidence of substance which
directly or by reasonable inference tends to support the findings,
[we are] bound by such evidence, even though there is evidence that
would have supported a finding to the contrary.'”
Haponski v.
Constructor's Inc., 71 N.C. App. 786, 788, 323 S.E.2d 46, 47 (1984)(quoting
Porterfield v. RPC Corp., 47 N.C. App. 140, 144, 266
S.E.2d 760, 762 (1980) (citation omitted)).
The workers' compensation statutes do not define the term
“maximum medical improvement.”
Horne v. Universal Leaf Tobacco
Processors, 119 N.C. App. 682, 688, 459 S.E.2d 797, 801 (1995).
Our courts have, nevertheless, recognized that “maximum medical
improvement” is achieved when the healing period ends, i.e., the
moment “'after a course of treatment and observation'” when the
injury or condition is found to be permanent.
Id. (quoting
Crawley
v. Southern Devices, Inc., 31 N.C. App. 284, 289, 229 S.E.2d 325,
329 (1976)). In other words, “maximum medical improvement” is
“[t]he point at which the injury has stabilized.”
Id.
We are satisfied from our review of the record that the
Commission had before it competent evidence to support its
conclusion that plaintiff reached maximum medical improvement of
his chest injury and the resulting conditions on 3 October 1994.
Dr. Stutesman testified that when she saw plaintiff in September of
1994, he was suffering from bilateral foot drop, non-insulin
dependent diabetes, difficulty breathing, hoarseness, frequent
urination, and sexual dysfunction. She further stated that
neurological tests indicated “marked compromise of the cervical
chord” at three levels. Given the risk that the nerve damage and
bone spurring would worsen plaintiff's current condition, Dr.
Stutesman strongly recommended that he consult a neurosurgeon, but
plaintiff refused.
In light of the implication from Dr. Stutesman's testimonythat plaintiff's condition will likely continue to deteri
orate
absent surgery to repair his cervical spine, we reject defendants'
contention that plaintiff's internal injuries had stabilized prior
to Dr. Stutesman's evaluation and rating. Thus, we find ample
support in the record for the Commission's finding as follows:
Given his refusal to undergo further surgeries
as recommended by Dr. Stutesman, plaintiff has
reached maximum medical improvement with
respect to all of his injuries and resulting
conditions. Plaintiff reached maximum medical
improvement with respect to his right and left
upper extremities on January 24, 1994.
This finding likewise supports the Commission's conclusion that
“[p]laintiff has reached maximum medical improvement with respect
to all of his injuries, and is found to be permanently and totally
disabled as of October 3, 1994.” Accordingly, defendants' argument
that the Commission erred in determining the date of plaintiff's
maximum medical improvement must fail.
[2]Next, defendants contend that the Commission erred in
awarding plaintiff $20,000.00 for the loss of his spleen.
Defendants take the position that “the spleen does not serve as an
'important' organ” and that its “function to the human body is
somewhat illusive”; therefore, the award of $20,000.00 was
“excessive and constitue[d] an abuse of discretion.” We find no
merit to this argument.
Section 97-31(24) of the General Statutes allows recovery for
the loss of an organ or body part for which workers' compensation
benefits are not otherwise payable:
In case of the loss of or permanent injury to
any important external or internal organ orpart of the body for which no compensation is
payable under any other subdivision of this
section, the Industrial Commission may award
proper and equitable compensation not to
exceed twenty thousand dollars ($20,000).
N.C. Gen. Stat. § 97-31(24) (1999). To support an award under this
section, the record must contain “evidence as to the value of the
[organ or body part] in question to the body of [the] plaintiff.”
Porterfield, 47 N.C. App. at 143, 266 S.E.2d at 762. However, “the
amount of such an award is within the discretion of the
Commission,”
Hicks v. Leviton Mfg. Co., 121 N.C. App. 453, 456, 466
S.E.2d 78, 81 (1996), and “will not be overturned on appeal absent
an abuse of discretion on [the Commission's] part,”
Little v. Penn
Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986). An
abuse of discretion is shown where the decision is proven to be
“manifestly unsupported by reason.”
White v. White, 312 N.C. 770,
777, 324 S.E.2d 829, 833 (1985).
In the present case, Drs. Tate and Stutesman both testified
that the spleen filters the blood and protects the body from
bacterial infections. As Dr. Tate explained, “Early in life [the
spleen] helps to provide resistance to infection and disease.
Later in adulthood, it probably plays less of a part here, although
still some.” According to Dr. Stutesman, without the removal of
damaged cells provided by the spleen, “you'll see increase in
bacteria, so you get bacterial infections you would not ordinarily
get.” Given plaintiff's already vulnerable physical condition, the
increased risk of infection, however slight, attributable to the
loss of his spleen, sustained the Commission's determination thatplaintiff lost an “important internal organ” for which the “
;proper
and equitable compensation” was $20,000.00.
See Cloutier v. State,
57 N.C. App. 239, 245, 291 S.E.2d 362, 366 (1982)(“testimony as to
the consequences of damage to the sinuses demonstrates they are
important internal organs”). Thus, we hold that the Commission
committed no abuse of discretion.
[3] Defendants also challenge the following awards made by the
Commission pursuant to section 97-31(24) of the General Statutes:
Pancreas
; $20,000.00
Lungs ($20,000 for each lung) $40,000.00
Abdominal wall
; $15,000.00
Omentum
$10,000.00
Intestines &nb
sp; $12,000.00
Stomach
$5,000.00
Reproductive organs
$15,000.00
Regarding the propriety of these awards, defendants' arguments
follow one of three tracts: (1) that the organ was not “important”
within the meaning of section 97-31(24); (2) that the organ was not
lost or permanently damaged; or (3) that the Commission failed to
consider the actual value of the organ or the damage thereto in
determining the amount of compensation. We must disagree, as our
review of the record reveals competent medical evidence to support
the Commission's findings regarding the significance of each organ
to the body's general health and well-being. In addition, the
record includes competent medical evidence to uphold the
Commission's findings that the organs at issue were either lost or
permanently damaged. These findings, in turn, sustain the
Commission's conclusion that the organs were important within the
meaning of section 97-31(24) and that the amounts awarded for eachwere proper and equitable. Accordingly, we discern no abuse of the
Commission's discretion in setting the challenged awards.
Moreover, since we uphold the Commission's decision in favor of
plaintiff, we need not address plaintiff's cross-assignments of
error.
Based upon the foregoing analysis, we affirm the opinion and
award of the Full Commission.
Affirmed.
Judge WALKER concurs.
Judge GREENE concurs with separate opinion.
===================
GREENE, Judge, concurring.
I agree with the majority the Full Commission did not err in
its award to plaintiff made pursuant to N.C. Gen. Stat. § 97-
31(24). I, however, write separately simply to clarify the test
for determining whether an organ or body part is "important" under
section 97-31(24).
Section 97-31(24) provides:
In case of the loss of or permanent injury to
any
important external or internal organ or
part of the body for which no compensation is
payable under any other subdivision of this
section, the Industrial Commission may award
proper and equitable compensation not to
exceed twenty thousand dollars ($20,000).
N.C.G.S. § 97-31(24) (1999) (emphasis added). An organ or body
part is "important," within the meaning of section 97-31(24), if it
has some significant value to the body of the employee.
See
Porterfield v. RPC Corp., 47 N.C. App. 140, 143, 266 S.E.2d 760,762 (1980);
The American Heritage College Dictionary 682 (3d ed.
1993). Whether the organ or body part is "important" presents a
question of law,
see In re Helms, 127 N.C. App. 505, 510, 491
S.E.2d 672, 675 (1997) (determination requiring exercise of
judgment or application of legal principles is conclusion of law),
which must be supported by findings of fact that the organ or body
part has some significant value to the body of the employee,
see
id. (determination reached through logical reasoning from
evidentiary facts is finding of fact).
In this case, defendant-employer has assigned error to the
award made by the Full Commission pursuant to section 97-31(24) for
several organs and body parts. The Full Commission made findings
of fact regarding the significant value of each of these organs and
body parts to plaintiff's body. These findings of fact, which are
supported by competent evidence, support the Full Commission's
conclusion of law
(See footnote 1)
these organs and body parts are "important"
under section 97-31(24).
See Lineback v. Wake County Board of
Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997)
(appellate review of decision of Industrial Commission is limited
to whether the Commission's findings of fact are supported by
competent evidence, and whether the Commission's conclusions of law
are supported by those findings of fact).
Footnote: 1