PATRICIA D. ROTH,
Employee,
Plaintiff
v
.
North Carolina
Industrial Commission
I.C. No. 078192
U.S. AIRWAYS, INC.,
Self-Insured Employer,
Defendant
Administered by: Kemper Risk
Management Services
Bollinger & Piemonte, PC, by Bobby L. Bollinger, Jr., for
plaintiff-appellee.
Brooks, Stevens & Pope, P.A., by Robert H. Stevens, Jr. and
Joy H. Brewer, for defendant-appellant.
R. James Lore; and Patterson, Harkavy & Lawrence, L.L.P., by
Henry N. Patterson, Jr., for Amicus Curiae North Carolina
Academy of Trial Lawyers.
WALKER, Judge.
On 21 April 1990, plaintiff was employed by defendant as a
flight attendant when she suffered a compensable injury to her
right arm and hand. In early 1993, plaintiff was referred to
Thomas Alexander Duc, M.D. for her continued pain. She had been
diagnosed with Reflex Sympathetic Dystrophy (RSD) as a result ofthe injury. Dr. Duc also diagnosed her as having developed winged
scapula. He testified that this could be a result of the RSD
because of the way that she held her arm, the extended periods of
time the arm was in a sling, or her exercise protocol and pain.
Plaintiff received temporary total disability until 1
September 1993 when she returned to her regular job working a
reduced schedule of fifteen hours per week. On 25 October 1993,
plaintiff re-injured her right arm at work. Thereafter, during
parts of 1993, 1994, 1995 and 1996, plaintiff missed work and the
compensation due by defendant for these periods is not in
contention.
On 13 May 1996, plaintiff returned to work with defendant in
an administrative position updating and maintaining employee
records, verifying time cards, processing bills, distributing mail,
processing monthly reports, typing employee's evaluations, updating
and maintaining training records, taking phone messages and sending
faxes. Plaintiff testified that she attempted to do the work but
was unable to perform the functions of the job because of her
injuries and the restrictions placed on her by her physicians. She
experienced pain in her right arm and hand when performing the
tasks required by this position. She had difficulty writing,
copying, filing, separating papers, lifting files, punching holes,
and performing other aspects of her job.
T. Kern Carlton, III, M.D. saw the plaintiff for an
independent medical evaluation in August of 1997. He testified
that “[plaintiff] has some weakness that has developed in themuscles that support the scapula. And I think that's from not
using that extremity.” He stated that a cause of winged scapula
was not using the arm and thus developing weakness in the muscles
around the scapula. He further testified that “based on the
history that she gave me, the records that I saw, and the fact that
she denied any problems prior to that, [the winged scapula] appears
to be related [to the 1990 injury]. I think it's related.”
Michael Felix Freshwater, M.D. saw plaintiff in the spring of
1998 for a further impartial medical evaluation. He stated in his
report the following in part:
I feel that it was a mistake to place this
patient in the office type of environment,
which was clearly unsuitable for her. Dr.
Naso's report did state that she should not
perform “any prolonged typing, stapling,
etc.,” and there appears to be a conflict
regarding what her duties were at work. I
believe her current work restrictions should
exclude her from performing any type of office
tasks, and should also include her not being
exposed to temperatures under 68° Fahrenheit,
vibrating machinery, tools, or equipment.
After a hearing on 25 October 2000, the North Carolina
Industrial Commission (Commission) filed its opinion and award on
30 January 2001. The Commission found in part the following:
5. Plaintiff attempted to return to work from
1 December 1993 through 30 April 1994 as an
airline attendant but was unable to maintain
this job. On 13 May 1996, plaintiff returned
to work with defendant-employer in an
administrative position. The job required
that plaintiff update and maintain employee
attendance files, verify time cards, process
station billing, distribute company mail and
postings, gather and process monthly reports,
type employee's evaluations, update and
maintain training records, take phone messages
for her supervisor and send faxes.
6. In the course of performing her
administrative duties from 13 May 1996 through
23 October 1997, plaintiff experienced pain
“like a toothache,” her right arm turned read
and blotchy and beaded with sweat. She
experienced shoulder pain and when attempting
fine motor skills, felt as if her hand was on
fire. Plaintiff experienced difficulty
writing, copying, filing, separating papers,
lifting files, punching holes, etc.
7. Due to plaintiff's physical limitations,
she was unable to perform the administrative
job at an acceptable level and received
several reprimands and disciplinary actions,
both verbal and written. If plaintiff
receives three levels of reprimands, then she
will be terminated. Plaintiff had no prior
disciplinary problems or reprimands before her
compensable injury.
8. On any given day, plaintiff could perform
her various duties for approximately an hour
or an hour and 45 minutes and would experience
pain, bright red discoloration of her hand,
and sweat beading on her skin.
9. ... Plaintiff has been under work
restrictions given to her by Dr. Duc since
November 1993 as a direct and proximate result
of her compensable injury. Plaintiff's work
restrictions include no lifting of greater
than five to ten pounds, no prolonged or
repetitive use of the right hand and, as fine
motor skills are painful with plaintiff's
right hand, the avoidance of writing and
typing. Dr. Duc was of the opinion that
plaintiff's reflex sympathetic dystrophy was
the result of her compensable 21 August 1990
injury and that plaintiff's winged scapula
might also be a result of that injury.
However, he was of the opinion that
plaintiff's winged scapula could have been as
an indirect result of plaintiff's RSD due to
disuse or guarding of the right side. ... Dr.
Duc was of the opinion that plaintiff retains
a 25% permanent partial impairment of the
right upper extremity due to her RSD and
winged scapula. Dr Duc was further of the
opinion that plaintiff could have trouble
typing, writing and with extended filing.
11. On 18 August 1997, plaintiff presented to
Dr. T. Kern Carlton, a physical medicine and
rehabilitation physician board-certified in
pain medicine, for an independent medical
examination requested by the insurance
company. Dr. Carlton concurred with
plaintiff's diagnosis of RSD of the right
upper extremity. Dr Carlton was of the opinion
that plaintiff's RSD and winged scapula were
caused by her 21 August 1990 compensable
injury....
12. ... [Dr. Freshwater] was further of the
opinion that she was in the chronic stages of
reflex sympathetic dystrophy and that the
worse thing that could happen to her was for
her to be placed in a work environment which
would “fan the flames and aggravate her
condition.”
14. Although Dr. Naso is the only doctor who
did not diagnose plaintiff as having reflex
sympathetic dystrophy, defendant-employer
based all of plaintiff's job duties,
assignments and requirements on Dr. Naso's
evaluation and, according to the testimony of
plaintiff's supervisor, Glenn Stryker, refused
to consider any other doctor's evaluations or
opinions, or plaintiff's symptoms which they
directly observed.
15. Because Dr. Duc has been plaintiff's
primary treating physician and is most
familiar with her case, and because the
majority of physicians who examined plaintiff
agree with Dr. Duc's diagnosis and permanent
partial disability rating, the opinions of Dr.
Duc regarding plaintiff's condition, rating,
and ability to perform the administrative job
with defendant-employer are accorded greater
weight than contrary opinions of other
physicians who have provided plaintiff with
treatment.
20. Plaintiff's refusal to perform her
employment in the administrative position withdefendant-employer was justified as the
position was not suitable for her. The
position was not within her physical
capabilities or her capabilities according to
the medical opinions of any doctor other than
Dr. Naso, and as such was not indicative of
plaintiff's earning capacity. Plaintiff's
physical inability to perform the job is the
direct and proximate result of her compensable
21 August 1990 injury.
22. As a direct and proximate result of her 21
August 1990 compensable injury by accident,
plaintiff sustained reflex sympathetic
dystrophy of the right extremity and winged
scapula.
The Commission concluded in part the following:
2. As a direct and proximate result of her 21
August 1990 compensable injury, plaintiff
sustained reflex sympathetic dystrophy of the
right upper extremity and winged scapula.
3. As a direct and proximate result of her 21
August 1990 compensable injury, from 24
October 1997 and continuing, plaintiff was and
continues to be incapable of earning wages
which she was receiving at the time of her
injury at the same or in any other employment.
N.C. Gen. Stat. § 97-29.
4. Plaintiff's refusal to perform the
administrative position with defendant-
employer was justified as the position was not
within her physical capabilities due to her 21
August 1990 compensable injury. N.C. Gen.
Stat. § 97-32.
The Commission awarded plaintiff temporary total disability
compensation from 24 October 1997 until further order of the
Commission.
“The findings of fact by the Industrial Commission are
conclusive on appeal if supported by any competent evidence,” even
if there is evidence to the contrary. Adams v. AVX Corp., 349 N.C.676, 681, 509 S.E.2d 411, 414 (1998), reh'g denied, 350 N.C. 108,
532 S.E.2d 522 (1999)(quoting Gallimore v. Marilyn's Shoes, 292
N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). “The evidence tending
to support plaintiff's claim is to be viewed in the light most
favorable to plaintiff, and plaintiff is entitled to the benefit of
every reasonable inference to be drawn from the evidence.” Id.
(citing Doggett v. Warehouse Co., 212 N.C. 599, 194 S.E. 111
(1937)).
Defendant first contends that the Commission erred in finding
that plaintiff's winged scapula was a direct and proximate result
of the 1990 compensable injury. Medical testimony which is
speculative and based solely on supposition and conjecture is
incompetent and insufficient on its own to support findings by the
Commission. Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d
912 (2000). In Young, our Supreme Court held that medical
testimony was insufficient when the sole basis of the medical
opinion regarding the connection between the plaintiff's
fibromyalgia and the compensable injury was one physician's
testimony that such a connection was a possibility based on the
fact that there was no fibromyalgia before the injury. Id. at 233,
538 S.E.2d at 917.
Here, Dr. Carlton testified that, based on plaintiff's
history, his review of her records, and the lack of problems before
1990, it was his opinion that plaintiff's winged scapula was
causally related to the 1990 injury. He testified that winged
scapula can result from “disuse atrophy.” Dr. Duc testified thatwinged scapula could be the result of disuse and guarding of
plaintiff's right side because of her RSD. There also was evidence
of weakness of the muscles around the scapula resulting from disuse
and the extensive time during which plaintiff's arm was in a sling.
Unlike Young, the evidence here of a connection between plaintiff's
winged scapula and the 1990 compensable injury is based on more
than just timing and mere speculation. We find there is sufficient
evidence to support the Commission's finding that plaintiff's
winged scapula was a direct and proximate result of her 1990
injury.
Defendant further contends that the Commission erred in
concluding that the plaintiff justifiably refused to perform the
administrative position. N.C. Gen. Stat. § 97-32 (1999) states,
“If an injured employee refuses employment procured for him
suitable to his capacity he shall not be entitled to any
compensation at any time during the continuance of such refusal,
unless in the opinion of the Industrial Commission such refusal was
justified.” Here, the Commission found that plaintiff's refusal to
perform her employment in the administrative position was justified
as the position was not suitable for her. Further, the position
was not within her physical capabilities according to the medical
opinions of the physicians other than Dr. Naso.
Dr. Duc testified that his restrictions for plaintiff included
“obviously no lifting, no repetitive motion with the involved hand.
And if fine motor skills are painful with that hand, avoidance of
writing and typing and those types of things would probably be bestfor [plaintiff].” He also testified that typing was difficult for
her. The administrative position offered to plaintiff required her
to perform multiple tasks using her right arm and hand. Plaintiff
testified that she experienced pain in her right arm, hand, and
shoulder as a result of attempting to perform these tasks. She
received several reprimands, both verbal and written, for failure
to perform her job at an acceptable level. Prior to her 1990
injury, she had never had any disciplinary problems nor reprimands.
Based on all of the medical evidence, the Commission was
entitled to find that plaintiff's refusal to perform her employment
in the administrative position was justified as the position was
not suitable for her.
In conclusion, we find there is competent evidence to support
the findings which, in turn, support the conclusions of the
Commission. The order of the Commission is
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***