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Workers' Compensation--calculation of award--average weekly wage
Although the Industrial Commission did not err in a workers' compensation case by
granting temporary total and permanent partial compensation to plaintiff, the case is remanded
for recalculation of the award because the Commission's determination of plaintiff's average
weekly wage is not supported by competent evidence.
HUGGINS, POUNDS & DAVIS, L.L.P., by Dallas M. Pounds, for
REID, LEWIS, DEESE, NANCE & PERSON, by James R. Nance, Jr., for defendant appellant.
Cozy Corner Restaurant, Inc.(defendant) appeals an Opinion and Award entered 19 September 2002 by the North Carolina Industrial Commission (the Full Commission) in favor of Pearline Dial (plaintiff). We affirm.
Plaintiff filed a worker's compensation claim alleging that she injured her right foot on 7 July 2000 when she struck it against the leg of a chair while working for defendant. Following the injury, plaintiff was treated at Pembroke Family Practice Center who referred her to Southeastern Orthopaedic Clinic where plaintiff was further treated by Dr. Staley T. Jackson. An x-ray revealed a fracture of the right fifth metatarsal with slight displacement of plaintiff's right foot. Dr. Jackson treatedplaintiff from 13 July 2000 through 2 July 2001.
After plaintiff's injury, plaintiff informed defendant that she was unable to work because of her injury. Defendant told plaintiff that if she was unable to work, they would have to fill her position with someone else.
Plaintiff first brought this case before Deputy Commissioner Douglas E. Berger in Lumberton, North Carolina, on 17 September 2001. On 12 December 2001 Deputy Commissioner Berger issued an Opinion and Award wherein he concluded that plaintiff failed to show by the greater weight of evidence that she sustained an injury by accident arising out of and in the course of her employment with defendant. Accordingly, Deputy Commissioner Berger denied compensation to plaintiff.
Plaintiff appealed to the Full Commission. In an Opinion and Award filed 19 September 2002, the Full Commission reversed the Opinion and Award of Deputy Commissioner Berger and entered the following pertinent findings of fact:
3. On July 5, 2000 plaintiff was involved in a motor vehicle accident . . . as a result of the motor vehicle accident plaintiff described her knees as striking each other resulting in injury to her knees for which she received treatment . . . a notation was made [on plaintiff's medical record] by the nurse on duty that plaintiff received an ice pack to her right ankle; however, this notation was stricken through and a further notation was made that the notation had been entered onto the wrong chart.
4. On July 7, 2000 plaintiff was waitressing at the Cozy Corner when she attempted to maneuver between two tables to take the order of customers sitting at a third table. As she moved between the two tables plaintiff stood on her tip toes and struck her right foot onthe leg of one of the chairs of the tables. Plaintiff felt sharp pain in her right foot and reported the incident immediately to the owner's son, Dwayne Cummings. Plaintiff's injury was an injury by accident within the course and scope of her employment and is compensable under the Workers Compensation Act.
5. Plaintiff continued to work the remainder of her shift but complained to several co- workers that she felt like she had broken her foot while trying to maneuver between the two tables. At the end of her shift she proceeded to Pembroke Family Practice Center for treatment of her right foot, giving a history of working at a local restaurant waiting tables when she accidentally caught that foot under a chair and twisted it.
6. Plaintiff was provided an ace wrap and pain medication and was sent to be x-rayed. She was then told to follow up with an orthopedic surgeon.
7. On July 13, 2000 plaintiff was seen by Dr. Staley T. Jackson of the Southeastern Orthopaedic Clinic. Plaintiff provided a history of twisting her right foot on July 7, 2000. Plaintiff's complaints at that time were pain on the outside of her foot and x- rays revealed a fracture of the right fifth metatarsal with slight displacement. Dr. Jackson applied a walking cast to plaintiff's foot/ankle. Plaintiff treated with Dr. Jackson from July 13, 2000 through July 2, 2001. During the course of plaintiff's treatment plaintiff was treated with pain medication, arch supports and other conservative measures.
8. Following her compensable injury of July 7, 2000 plaintiff contacted Cozy Corner and told them that she would be unable to work because of her compensable injury. Cozy Corner told her that they would have to fill her position. As of the date of the hearing before the Deputy Commissioner, plaintiff had remained unemployed since July 7, 2000.
9. Due to pain in the metatarsal area and ankle and inability to regain her range of motion, plaintiff did not reach maximum medical improvement and regain the ability toreturn to work until January 3, 2001. As a result of her compensable injury she sustained a 5% permanent partial impairment of the right foot.
10. The Full Commission finds plaintiff to be credible. The fact that her knees were injured in an automobile accident two days prior to her injury at Cozy Corner does not mean that her foot and ankle were not injured in the table incident. Neither does the fact that she was seen limping prior to the table incident, for she had hurt her knees two days earlier. The customer who said the injury was to plaintiff's left foot was mistaken: all of the corroborative medical evidence shows a right foot injury on July 7, 2000, not a left foot injury.
Based on these findings of fact, the Full Commission concluded as a matter of law as follows:
1. Plaintiff has shown by the greater weight of the evidence that she sustained an injury by accident arising out of and in the course of [her] employment with defendant on July 7, 2000. N.C. Gen. Stat. . 97-2(6).
2. Plaintiff is entitled to temporary total compensation at the rate of $99.00 per week from July 7, 2000 through January 3, 2001, the period when she was unable to work because of her compensable injuries. N.C. Gen. Stat. . 97-29.
3. Plaintiff is entitled to permanent partial compensation at the rate of $99.00 per week for 7.5 weeks for the 5% rating to her right foot. N.C. Gen. Stat. . 97-31 (14).
4. With respect to her compensable injuries, plaintiff is entitled to medical treatments reasonably required to effect a cure or give relief. [sic] Defendants shall pay medical providers for such treatment or, where appropriate, reimburse those who paid. N.C. Gen. Stat. . 97-25.
The Full Commission therefore awarded plaintiff temporary total compensation at the rate of $99.00 per week from 7 July 2000through 3 January 2001 and permanent partial compensation at the rate of $99.00 per week for 7.5 weeks for a 5% permanent partial impairment rating of her right foot. Defendant appeals the Opinion and Award of the Full Commission.
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