DEBRA CIALINO
Employee, Plaintiff,
v.
WAL-MART STORES,
Employer;
and
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA,
Carrier, Defendants.
Law Offices of George W. Lennon, by George W. Lennon and
Michael W. Ballance, for plaintiff.
Young, Moore, and Henderson, P.A., by Joe A. Austin, Jr. and
Dawn Dillon Raynor, for defendants.
WYNN, Judge.
In this workers' compensation appeal, Debra Cialino contends
that the full Commission erred in awarding her temporary partial
disability because the record reflects her entitlement to a
presumption of total disability. On the other hand, her employer,
Wal-Mart Stores, Inc. argues the full Commission erred by
concluding Ms. Cialino had a compensable occupational disease
attributable to her employment with Wal-Mart. After carefully
reviewing the record, we hold the Commission's findings of fact are
supported by competent evidence. Accordingly, “the [] Commission's
findings of fact [are] conclusive on appeal.” Adams v. AVX Corp.,349 N.C. 676, 682, 509 S.E.2d 411, 414 (1998). Furthermore, the
Commission's findings of fact support its conclusions of law.
Therefore, we affirm the Opinion and Award of the Industrial
Commission. We remand, however, because the full Commission failed
to address Ms. Cialino's request for attorney's fees pursuant to
N.C. Gen. Stat. § 97-88.1 (2002).
I. Facts
The evidence in the record tends to show that Ms. Cialiano
began working for Wal-Mart on 3 February 1998. Lacking the
financial resources to afford daytime childcare, Ms. Cialino worked
Wal-Mart's night shift from 10:00 p.m. to 7:00 a.m. At Wal-Mart,
her job duties involved the repetitive use of her hands, wrists,
and arms; Ms. Cialino was required to unload boxes from delivery
trucks, move the boxes to appropriate locations within the store,
stock shelves with the contents of the boxes, and break down the
boxes with box cutters. Over the course of her employment with
Wal-Mart, Ms. Cialino began to experience pain and numbness in her
hands, wrists, and arms. The symptoms were bilateral, but worse on
the right side. For a few months, Ms. Cialino treated the pain by
placing band-aids around her fingers, wrapping her wrists in
bandages, and by applying ointment to inflamed areas.
On 23 June 1998, Ms. Cialino experienced and reported an
inflamation of her symptoms to her Wal-Mart assistant manager, Joe
McDonald. A fellow employee escorted Ms. Cialino to Wal-Mart's
company doctor at Knightdale Primary Care where Rena Hodges, a
board certified Physician's Assistant, initially diagnosed Ms.Cialino with a bilateral repetitive motion injury consistent with
carpal tunnel syndrome. Ms. Hodges prescribed the following work
restrictions: (1) to lift no more than ten pounds, (2) to wear
wrist splints, and (3) to limit the use of both hands to no more
than forty minutes per hour.
After receiving treatment, Ms. Cialino reported to the store
Manager for Wal-Mart, Beatrice Floyd: “The doctor said it looks
like carpal tunnel”; Ms. Floyd responded: “Just go home.” Ms.
Cialino went home; however, later that night, she called Ms. Floyd
to inquire about her employment. According to Ms. Cialino, Ms.
Floyd stated that Wal-Mart did not have a suitable position on the
night shift; accordingly, Ms. Floyd offered her a position during
the daytime as a greeter. However, Ms. Cialino refused that offer
because of her childcare needs. Moreover, Ms. Floyd purportedly
offered Ms. Cialino a temporary position monitoring a fireworks
tent during the Fourth of July weekend. Ms. Cialino did not accept
this position because of concerns for her safety. When Ms. Cialino
did not accept the employment alternatives, Wal-Mart terminated her
employment.
(See footnote 1)
On 13 July 1998, Ms. Cialino returned to Knightdale Primary
Care for a follow-up visit with Ms. Hodges. Although Ms. Cialino
reported that her symptoms had improved, she was still experiencing
pain in her hands, wrists, and arms. Based on three visits and a
series of medical tests, Ms. Hodges testified on the issue of
causation that the repetitive motion Ms. Cialino was exposed to at
Wal-Mart was a substantial contributing factor to her symptoms.
Unable to provide Ms. Cialino with relief, Ms. Hodges referred her
to a board certified orthopedist with an expertise in the field of
hand surgery, Dr. James R. Post.
Dr. Post's deposition testimony tends to show that: On 5
November 1998, he first examined Ms. Cialino who complained of
bilateral hand pain from working with boxes at Wal-Mart. Dr.
Post's initial examination revealed symptoms consistent with
bilateral de Quervain's Tenosynovitis and mild bilateral carpal
tunnel syndrome. Dr. Post prescribed anti-inflammatory medication,
and used a splint to immobilize Ms. Cialino's thumb and wrist.
Subsequent medical tests, ruled out the preliminary diagnosis of
carpal tunnel syndrome. On 3 December 1998, Dr. Post examined Ms.
Cialino for a second time, and noted an improvement in de
Quervain's tenosynovitis. However, Ms. Cialino complained of
numbness in the dorsum of her right hand and pain in the base of
her left thumb. With respect to this pain, Dr. Post made a new
diagnosis of “Synovitis of the basial thumb joint.” On 31 December
1998, tests performed by Dr. Post revealed that Ms. Cialino'stenosynovitis had completely resolved itself. However, Ms. Cialino
still complained of diffuse pain in her hands, wrists, and arms.
In his deposition, Dr. Post expressed the opinion that: (1)
the symptoms of de Quervain's tenosynovitis afflicting Ms. Cialino
were related to her work at Wal-Mart; (2) Ms. Cialino's work duties
at Wal-Mart were a substantial contributing factor in the
development of these symptoms; and (3) members of the general
public are not equally exposed to the repetitive activities which
Ms. Cialino experienced while working at Wal-Mart. However, Dr.
Post did express reservations about whether Ms. Cialino's synovitis
of the left thumb was caused by her work at Wal-Mart. Dr. Post
noted that the synovitis of the left thumb did not appear until 3
December 1998, and that it would not take five months for these
symptoms to appear. Furthermore, because tests conducted on 31
December 1998 revealed that Ms. Cialino's tenosynovitis had
completely resolved itself, Dr. Post testified that he was “not
sure” whether any of Ms. Cialino's symptoms after 31 December 1998
were related to her employment with Wal-Mart.
By the time of their final meeting and appointment on 11 March
1999, Dr. Post testified he had exhausted all non-invasive
treatment options and made a diagnosis of bilateral hand pain.
According to Dr. Post, Ms. Cialino's symptoms indicated a gradual
progression from specific symptoms to a diffuse bilateral pain.
Because Dr. Post was uncertain of the cause or diagnosis of these
complaints, Dr. Post suggested a referral to the Cedar Neurology
Pain Clinic. Ms. Cialino was subsequently examined by an expert in the
field of Neurology, Dr. Gregory M. Bertics. For some reason not
explicated in the record, Dr. Bertics was unaware of (1) previous
tests performed by Dr. Post and Ms. Hodges, and (2) the fact that
many of Ms. Cialino's symptoms arose months after her termination
from Wal-Mart. Accordingly, Dr. Bertics duplicated many of the
previous diagnoses and tests made by Dr. Post and Ms. Hodges, and
based his medical conclusions on the mistaken belief that all of
Ms. Cialino's symptoms arose at the same time. Ultimately, Dr.
Bertics only contributed one substantial piece of evidence to the
record: He testified on the issue of causation that the temporal
relationship between Ms. Cialino's duties at Wal-Mart and her
symptoms led to a “common sense” conclusion that a “cause and
effect relationship” existed between Ms. Cialino's job duties at
Wal-Mart and her complaints of diffuse pain. On 17 July 1999, Dr.
Bertics released Ms. Cialino from his care.
II. Procedural History
On 9 September 1998, Ms. Cialino filed a Form 18, notifying
Wal-Mart of her injury and workers' compensation claim. On 20 July
1998, Wal-Mart filed a Form 61 denying the claim. On 3 September
1998, Ms. Cialino filed a Form 33, requesting that her claim be set
for a hearing before a Deputy Commissioner of the North Carolina
Industrial Commission. On 12 November 1998, Wal-Mart filed a Form
33R denying that the injury afflicting Ms. Cialino arose from her
course of employment with Wal-Mart. On 20 June 2000, a Deputy
Commissioner filed an Opinion and Award concluding that: (1) Ms.Cialino acquired and aggravated her synovitis and tenosynovitis
while performing job duties at Wal-Mart; and (2) Ms. Cialino “is
entitled to temporary total disability.”
On 11 December 2000, Wal-Mart filed a Form 44, a notice of
appeal from the Deputy Commissioner's Opinion and Award and an
application of review to the full Commission. On 17 January 2001,
Ms. Cialino filed a Motion with the Industrial Commission praying
for the Commission to refer the matter to the Commissioner of
Insurance to investigate Wal-Mart for apparent bad faith practices
in violation of N.C. Gen. Stat. § 97-88.1. On 7 November 2001,
the full Commission filed an Opinion and Award modifying the
Opinion and Award of the Deputy Commissioner. Notably, in Finding
of Fact 29 the full Commission found:
Having considered all the evidence, the
Commission finds that the opinions of Dr. Post
are entitled to greater weight than those of
Ms. Hodges or Dr. Bertics. Ms. Hodges is not
a physician . . . . Dr. Bertics did not see
plaintiff until April 1999 . . . [and] was not
aware of the changes in plaintiff's reported
symptoms as noted by Dr. Post. Further, Dr.
Bertics' opinion concerning causation is based
in large part, if not solely, on the temporal
relationship between the work activity and the
symptoms as related to him by plaintiff. His
opinion is thus based on the inaccurate
history that all plaintiff's symptoms started
soon after she began her work activities with
defendant-employer. The more credible
evidence shows that the undiagnosed, more
diffuse complaints did not arise until
December 1998, several months after the
initial onset and after plaintiff had ceased
her employment with defendant-employer.
Based substantially on this credibility determination, the
full Commission determined in Finding of Fact 31 that: “From andafter June 24, 1998, until and through December 31, 1998, [Ms.
Cialino] was incapable because of her compensable injury to perform
her former employment . . . or other suitable employment at the
same wages for the same number of hours.” However, the full
Commission did note, in Finding of Fact 32, that Ms. Cialino was
able to procure employment and work between sixteen and twenty-five
hours per week during her bout with her compensable injury.
Accordingly, the full Commission concluded, as a matter of law,
that Ms. Cialino “is entitled to temporary partial disability
compensation at the rate of two-thirds of the difference between
her pre-injury average of $304.99 and her wages earned at Gold's
Gym and Ladies Fitness and Wellness, from June 24, 1998, and
continuing through and including December 31, 1998.” From this
Opinion and Award, Ms. Cialino and Wal-Mart appeal.
III. Ms. Cialino's Appeal
In her appeal, Ms. Cialino assigns error to the full
Commission's findings of fact and conclusions of law. “Under our
Workers' Compensation Act, 'the Commission is the fact finding
body.'” Adams, 349 N.C. at 680, 509 S.E.2d at 413 (quoting Brewer
v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613
(1962)). “'The Commission is the sole judge of the credibility of
the witnesses and the weight to be given their testimony.'” Adams,
349 N.C. at 680, 509 S.E.2d at 413 (quoting Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)).
The Commission's findings of fact “'are conclusive on appeal if
supported by any competent evidence.'” Adams, 349 N.C. at 681, 509S.E.2d at 414 (quoting Gallimore v. Marilyn's Shoes, 292 N.C. 399,
402, 233 S.E.2d 529, 531 (1977)). Thus, this Court is precluded
from weighing the evidence on appeal; rather, we can do no more
than “'determine whether the record contains any evidence tending
to support the [challenged] finding.'” Adams, 349 N.C. at 681, 509
S.E.2d at 414 (quoting Anderson, 265 N.C. at 434, 144 S.E.2d at
274). “However, the Commission's legal conclusions [drawn from
competent findings of fact] are [fully] reviewable by” this Court.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
684 (1982) (citation omitted).
By her first argument, Ms. Cialino contends the Industrial
Commission erred as a matter of law by limiting her compensation to
partial disability benefits. Ms. Cialino argues she was entitled
to a legal presumption of continuing total disability until she
returned to work at suitable employment. After carefully reviewing
the record, we disagree.
It is a well-established legal principle in North Carolina
that “once the disability is proven [by the employee], 'there is a
presumption that [the disability] continues until the employee
returns to work at wages equal to those [she] was receiving at the
time [her] injury occurred.'” Brown v. S & N Communs., 124 N.C.
App. 320, 329, 477 S.E.2d 197, 202 (1996) (quoting Watson v.
Winston-Salem Transit Authority, 92 N.C. App. 473, 476, 374 S.E.2d
483, 485 (1988) and Watkins v. Motor Lines, 279 N.C. 132, 137, 181
S.E.2d 588, 592 (1971)) (emphasis added). In cases involving the
Watkins presumption, the claimant can meet the initial burden ofproving a disability in two ways: (1) by a previous Industrial
Commission award of continuing disability, or (2) by producing a
Form 21 or Form 26 settlement agreement approved by the Industrial
Commission. See e.g., Watkins, 279 N.C. at 137, 181 S.E.2d at 592
(“If an award is made by the Industrial Commission, payable during
disability, there is a presumption that disability lasts until the
employee returns to work and likewise a presumption that disability
ends when the employee returns to work at wages equal to those he
was receiving at the time his injury occurred.”); Radica v.
Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190 (1994)
(presumption arose when “defendant admitted liability . . . through
approved settlements (Form 21 and Form 26)”). See also Saunders v.
Edenton Ob/Gyn Ctr., 352 N.C. 136, 139, 530 S.E.2d 62, 64 (2000)
(Form 21); In re Stone v. G & G Builders, 346 N.C. 154, 157, 484
S.E.2d 365, 367 (1997) (Industrial Commission award); Dancy v.
Abbott Labs., 139 N.C. App. 553, 557, 534 S.E.2d 601, 604 (2000)
(Form 21).
In this case, Ms. Cialino does not claim that she satisfied
the initial burden of proving her disability, thus spawning a
presumption of continuing total disability, from a prior award of
the Industrial Commission or a settlement agreement pursuant to a
Form 21 or a Form 26.
(See footnote 2)
Instead, Ms. Cialino contends that a
continuing presumption of total disability arose because she was
injured at work, and, thereafter, she was unable to continueworking or find suitable alternative employment at the same wages
and for same number of hours. Seemingly, Ms. Cialino argues that
there is a third method of establishing a continuing presumption of
disability. Neither this Court nor our Supreme Court has ever
applied a continuing presumption of disability in a context other
than an award by the Industrial Commission, a Form 21, or a Form 26
settlement agreement. We decline to do so in this case.
Therefore, the full Commission did not err; consequently, the
corresponding assignments of error are overruled.
By her second and third arguments, Ms. Cialino contends the
Industrial Commission made erroneous factual findings that: (1) Her
symptoms after 31 December 1998 were not related to her compensable
occupational disease, and (2) all of her hand, wrist, and arm
problems were not related to her employment with Wal-Mart. After
carefully reviewing the record we hold the Commission had competent
evidence to make the challenged factual determinations, and,
therefore, these factual findings are binding on appeal. See
Adams, 349 N.C. at 682, 509 S.E.2d at 414.
Throughout Findings of Fact 19, 20, 21, 28, and 29 the
Commission noted the existence of conflicting evidence in the
record regarding pain and symptoms afflicting Ms. Cialino after 31
December 1998. Specifically, where Dr. Bertics and Ms. Hodges
testified that the symptoms after 31 December 1998 were caused by
her employment with Wal-Mart, Dr. Post was “not sure.” The
Commission aptly summarized this testimony in Finding of Fact 19,
20, 21, 28, and 29: 19. Dr. Post initially testified that [Ms.
Cialino] had de Quervian's tenosynovitis of
both hands and synovitis of the left thumb,
both of which were caused by her employment
with [Wal-Mart]. Dr. Post, however,
subsequently testified that the synovitis of
the left thumb did not appear until December
3, 1998, and that it would not take five
months for these symptoms to appear; he thus
concluded that the de Quervian's tenosynovitis
is related to [Ms. Cialino's] employment with
[Wal-Mart], but he was unable to relate her
other symptoms to her employment.
20. As found by Dr. Post, [Ms. Cialino's de
Quervian's] tenosynovitis had completely
resolved and her tests for this condition were
negative by December 31, 1998. . . .
21. Although Dr. Post testified that [Ms.
Cialino's] bilateral tenosynovitis was caused
by [Ms. Cialino's] employment, he was unable
to reach a diagnosis concerning [Ms.
Cialino's] other, diffuse complaints. Dr.
Post explained that these symptoms seemed to
change with each visit and that he was unsure
that these symptoms were related to her
employment. Dr. Post testified that [Ms.
Cialino's] current complaints could be
psychogenic hand pain, rheumatologic problems,
causalgia, or reflex sympathetic dystrophy.
As he was uncertain of the diagnosis for these
complaints, Dr. Post suggested that referral
to a multi-disciplinary pain clinic . . .
would be beneficial.
. . . .
28. Dr. Bertics rendered an opinion that [Ms.
Cialino's] symptoms were related to her
employment and testified that although he had
not diagnosed the condition causing [Ms.
Cialino's] symptoms, he related the symptoms
to employment because of the temporal
relationship between the activities and the
onset of symptoms. Because Dr. Bertic did not
have Dr. Post's records, he was not aware that
[Ms. Cialino's] symptoms changed during thecourse of Dr. Post's treatment.
29. Having considered all the evidence, the
Commission finds that the opinions of Dr. Post
are entitled to greater weight than those of
Ms. Hodges or Dr. Bertics. Ms. Hodges is not
a physician . . . . Dr. Bertics did not see
plaintiff until April 1999 . . . [and] was not
aware of the changes in plaintiff's reported
symptoms as noted by Dr. Post. Further, Dr.
Bertics' opinion concerning causation is based
in large part, if not solely, on the temporal
relationship between the work activity and the
symptoms as related to him by plaintiff. His
opinion is thus based on the inaccurate
history that all plaintiff's symptoms started
soon after she began her work activities with
defendant-employer. The more credible
evidence shows that the undiagnosed, more
diffuse complaints did not arise until
December 1998, several months after the
initial onset and after plaintiff had ceased
her employment with defendant-employer.
Although the testimony of all three medical professionals was
competent evidence, the Commission decided that Dr. Post's opinions
were more credible than the opinions of Dr. Bertics or Ms. Hodges.
Our Supreme Court has made it eminently clear that: “'The
Commission is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.'” Adams, 349 N.C. at
680, 509 S.E.2d at 413. The Commission concluded that: (1) Ms.
Cialino contracted de Quervian's tenosynovitis, a compensable
occupational disease, through her employment with Wal-Mart; (2) Ms.
Cialino's de Quervian's tenosynovitis condition was resolved by 31
December 1998; and (3) Ms. Cialino's diffuse complaints of pain
after 31 December 1998, particularly Dr. Post's diagnosis of
synovitis of the left thumb, were not related to Ms. Cialino'semployment with Wal-Mart.
(See footnote 3)
Because the Commission's findings of
fact are supported by competent evidence in the record, and because
the Commission is the sole judge of the credibility of the
witnesses and weight to be given their testimony, this Court may
neither revisit these findings nor re-weigh this evidence onappeal. Accordingly, these findings of fact are binding, and,
therefore, the corresponding assignments of error are overruled.
In her fourth argument, Ms. Cialino contends the Industrial
Commission erred by failing to address her request for attorney's
fees pursuant to N.C. Gen. Stat. § 97-88.1. After carefully
reviewing the record, we agree.
(See footnote 4)
“This Court has held that when the matter is 'appealed' to the
full Commission. . . , it is the duty and responsibility of the
full Commission to decide all of the matters in controversy between
the parties.” Vieregge v. N.C. State University, 105 N.C. App.
633, 638, 414 S.E.2d 771, 774 (1992). Under N.C. Gen. Stat. § 97-
88.1, the sanctions and attorney's fees statute:
If the Industrial Commission shall determine
that any hearing has been brought, prosecuted,
or defended without reasonable ground, it may
assess the whole cost of the proceedings
including reasonable attorney's fees . . . .
“The purpose of [this] section is to prevent stubborn, unfounded
litigiousness which is inharmonious with the primary purpose of the
Workers' Compensation Act to provide compensation to injured
employees.” Beam v. Floyd's Creek Baptist Church, 99 N.C. App.
767, 768, 394 S.E.2d 191, 192 (1990) (citing Sparks v. MountainBreeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 664, 286
S.E.2d 575, 576 (1982)). In support of her request for costs and
attorney's fees, Ms. Cialino argues that Wal-Mart denied her claim
without reasonable investigation and failed to accept the claim
when liability became reasonably clear. The full Commission's
failure to address this issue was error.
(See footnote 5)
Ms. Cialino urges this Court to decide the issue of her
entitlement to attorney's fees in this appeal; we decline to do so.
Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 50, 464 S.E.2d
481, 484 (1995). Instead, we believe the Commission is better
suited, in this particular case, to determine whether Wal-Mart had
a “reasonable basis” to defend the claim. Accordingly, we remand
this issue to the full Commission. We have carefully reviewed Ms.
Cialino's remaining assignments of error and find them to be
without merit.
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