NO. COA04-839
The dispositive issue on appeal is whether the Commission
erred in concluding and awarding plaintiff total disability
benefits after 26 February 1999
and finding and concluding
plaintiff's compensable back injury (radiculopathy) is a
contributing factor in his ongoing disability. “[W]hen reviewing Industrial Commission decisions, appellate
courts must examine 'whether any competent evidence supports the
Commission's findings of fact and whether [those] findings . . .
support the Commission's conclusions of law.'”
McRae v.
Toastmaster, Inc., 358 N.C. 488
, 496, 597 S.E.2d 695, 700 (2004)
(quoting
Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000));
Cox v. City of Winston-Salem,
157 N.C.
App. 228, 231, 578 S.E.2d 669, 673 (2003);
Pernell v. Piedmont
Circuits, 104 N.C. App. 289, 292, 409 S.E.2d 618, 619 (1991). The
Commission's findings of fact are conclusive on appeal even where
there is contrary evidence, and such findings may only be set aside
where there is a “complete lack of competent evidence to support
them.”
Johnson v. Herbie's Place,
157 N.C. App. 168, 171, 579
S.E.2d 110, 113 (2003) (citation omitted);
See also Adams v. AVX
Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). It is the
Commission's duty to judge the credibility of the witnesses and to
determine the weight given to each testimony.
Bailey v. Sears
Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998).
Disability under the Workers' Compensation Act is defined as
“incapacity because of injury to earn the wages which the employee
was receiving at the time of injury in the same or any other
employment.” N.C. Gen. Stat. § 97-2(9) (2003). Plaintiff may meet
his burden of showing disability in one of four ways: (1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of working
in any employment; (2) the production of
evidence that he is capable of some kind of
work but that he has, after reasonable effort
on his part, been unsuccessful in his effort
to obtain employment; (3) the production of
evidence that he is capable of some work but
that it would be futile because of preexisting
conditions, i.e. age, inexperience, lack of
education, to seek other employment; or (4)
the production of evidence that he has
obtained other employment at a wage less than
that earned prior to the injury.
Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993). “Medical evidence that the plaintiff
suffers from pain as a result of physical injury, combined with the
plaintiff's own testimony that he is in pain has been held to be
sufficient to support a conclusion of total disability.”
Weatherford v. Am. Nat'l Can Co., --- N.C. App. ---, ---, 607
S.E.2d 348, 351 (2005) (citation omitted);
Webb v. Power Circuit,
Inc.,
141 N.C. App. 507, 512, 540 S.E.2d 790, 793 (2000);
Barber v.
Going West Transp. Inc., 134 N.C. App. 428, 436, 517 S.E.2d 914,
920 (1999);
Peoples v. Cone Mills Corp., 316 N.C. 426, 443-44, 342
S.E.2d 798, 808-09 (1986) (holding that an injured employee shall
retain benefit eligibility if the employee's age, inexperience,
lack of education, or any other preexisting factors preclude the
employee from procuring alternative employment). “The work-related injury need not be the sole cause of the
problems to render an injury compensable. If the work-related
accident contributed in some reasonable degree to plaintiff's
disability, [he] is entitled to compensation.”
Smith v. Champion
Int'l, 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999) (citing
Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 465-66, 470
S.E.2d 357, 359 (1996)). “[A]pportionment is not proper where the
evidence before the Commission renders an attempt at apportionment
between work-related and non-work related causes speculative or
where there is no evidence attributing a percentage of the
claimant's total
incapacity to her compensable injury, and a
percentage to the non-compensable condition.”
Royce v. Rushco Food
Stores, Inc., 139 N.C. App. 322, 327-28, 533 S.E.2d 284, 288 (2000)
(quoting
Counts v. Black & Decker Corp., 121 N.C. App. 387, 390-91,
465 S.E.2d 343, 346 (1996) (citations omitted));
Konrady v. United
States Airways, Inc., 165 N.C. App. 620, 629, 599 S.E.2d 593, 599
(2004).
Defendant challenges Findings of Fact 4, 19, 20, 21, 22, and
23:
4. On 27 June 1994, plaintiff sustained an
admittedly compensable injury by accident to
his back, which caused him to miss time from
work. The parties executed a Form 21 agreement
for payment of compensation, which was
approved by the Industrial Commission on 10
August 1994. Plaintiff returned to work inDecember 1994 and continued to work until 10
October 1995. At the time of his injury,
plaintiff's average weekly wage was $1,062.59,
which entitled plaintiff to a compensation
rate of $466.00, the maximum rate for 1994.
. . .
19. Dr. Jaufmann testified that diabetic
polyneuropathy, which is a slowly progressing
problem, and plaintiff's severe bilateral L5
and S1 radiculopathies are problems that
affect the same nerves and each can compound
the other. Plaintiff's diabetes appears to
have pre-existed his 27 June 1994 injury. He
also has a history of hypertensive
cardiovascular disease that resulted in a
heart attack subsequent to his 1994 back
surgery.
20. From December 1996 through 26 February
1999 when he was taken out of work, plaintiff
consistently complained of moderate to severe
low back pain, left hip pain, and bilateral
lower extremity pain. The nerve conduction
studies in 1997 showed chronic bilateral L5-S1
radiculopathies and also findings associated
with diabetic neuropathy. The nerve conduction
studies performed on 9 August 1999 showed
interval progression of the diabetic
polyneuropathy, more motor axon loss and
subsequent distal slowing of conduction. Dr.
Walsh noted that he could not determine
whether plaintiff's L5-S1 radiculopathies were
present due to the severity of plaintiff's
diabetic neuropathy. Plaintiff's 1998 MRI
showed desiccated and bulging discs at L4-L5,
unchanged since the previous study in 1997.
Dr. Jaufmann related plaintiff's disc problems
to his 27 June 1994 injury. Based on the nerve
conduction study by Dr. Walsh, Dr. Jaufmann
was of the opinion that by 23 September 1999,
plaintiff had two problems that contributed to
the severity of his symptoms, but the diabetic
polyneuropathy was plaintiff's primaryproblem. He also opined, however, that an EMG
nerve conduction study cannot distinguish
between a malfunction of the nerve based on
nerve impingement or the diabetic neuropathy.
21. Plaintiff's incapacity to work since 26
February 1999 is due to the compound effect of
his chronic, bilateral L5-S1 radiculopathies
and his diabetic polyneuropathy. Based on
plaintiff's educational level, his limited
ability to read and write, his prior heavy
manual labor, work history, his physical
limitations caused by his work-related injury
and his non-work-related medical conditions,
plaintiff is incapable of working in any
employment.
22. Even if plaintiff did not have diabetic
polyneuropathy, he would only be capable of
'doing something' in the sedentary work
classification, according to Dr. Jaufmann.
23. Based on plaintiff's educational level,
aptitude and past work history, it would be
futile for plaintiff to seek employment
considering the physical limitations and pain
caused by his work-related injury even if he
did not have diabetic polyneuropathy.
Specifically, defendant argues the Commission erred in
awarding benefits because plaintiff failed to prove his ongoing
disability, and further, failed to prove plaintiff's low back
radiculopathy alone makes him incapable of any employment. In
support of their argument, defendants point to Dr. Jaufmann's 15
November 2001 deposition in which he testified:
I think that if he did not have the diabetic
polyneuropathy, maybe he couldn't build tires
or do heavy lifting. I think he'd be able to
do something. I think he'd be able to drive acar. I think he'd be able to be in a job where
he could sit and stand and, you know, have
some better quality of life than what he has
right now. But I think the polyneuropathy and
the neurological condition is what really
prevents him from having even a sedentary job
or a light duty job.
Dr. Jaufmann further testified to plaintiff's conditions:
A. There are two problems going on here. One
is the diabetic polyneuropathy, which is a
slowly progressive problem. The other is the
lumbar radiculopathy. They both affect the
same nerves. So if you have two injuries at
the same time they can each compound each
other.
. . .
Q. So, in Mr. Smith's case, where he's been
injured and he has diabetes . . . could [that]
be indicative of the fact that the surgery he
had . . . [was] slow to heal because of the
diabetes?
A. Well, his E.G.'s that I have here have--
have shown a bilateral radiculopathy, . . . so
clearly he had a chronic injury that
persisted. That didn't go away. But what has
changed is the--the degree of polyneuropathy.
. . .
Q. Okay. And you said previously that a
traumatic incident to--to the spine or to the
nerve could exacerbate the polyneuropathy; is
that correct?
A. Sure.
When asked to explain the impact plaintiff's non-work related
condition (diabetic polyneuropathy) had on the healing ofplaintiff's work related injury (radiculopathy)
, Dr. Jaufmann
stated:
[Plaintiff] had a radiculopathy.
. . . [Whether a nerve heals or not from a
mechanical injury, like a disk pressing up
against it, can be influenced by the diabetes.
For instance, a diabetic may--the success rate
in operating on a diabetic, or, particularly,
a poorly controlled diabetic or someone with
longstanding diabetics [sic] who have, say, a
disk rupture or a nerve impingement syndrome,
in all likelihood, the odds are it won't be as
successful as an individual who is healthy,
who has no other medical problems, because of
the diabetes.
Although the parties stipulated to compensability and
disability arising out of the 27 June 1994 injury, defendant
asserts plaintiff is not entitled to additional medical
compensation because plaintiff's present inability to return to
pre-injury wages was caused by his diabetic polyneuropathy, and not
his work related injury. However, competent medical evidence
supports the Commission's findings and conclusions that
apportionment of plaintiff's disability was speculative and his
work related disability continued after 26 February 1999.
Accordingly, plaintiff has satisfied the
first and third
Russell
prongs as reflected in the pertinent Commission's conclusions of
law:
3. In an action for additional compensation
for medical treatment, the medical treatment
sought must be directly related to theoriginal compensable injury. If additional
medical treatment is required, a rebuttable
presumption arises that the treatment is
directly related to the original compensable
injury and the employer has the burden of
producing evidence showing the treatment is
not directly related to the compensable
injury.
Parsons v. Pantry, Inc., 126 N.C. App.
540, 541-42, 485 S.E.2d 867, 869 (1997). Here,
defendants admitted the claim on a Form 21 and
acknowledged plaintiff's continuing disability
when compensation was reinstated on the Form
62. It is defendants' burden to rebut through
medical and other evidence . . . that
plaintiff's disability is not related to his
admittedly compensable injury by accident.
Id.
Defendants have not met their burden of proof.
Moreover, even if plaintiff did not have
diabetic neuropathy, he would still be
incapable of earning suitable wages due to his
admittedly compensable injury.
4. Plaintiff is disabled due to the
compounding of his diabetic neuropathy with
his low back radiculopathies. Apportionment is
not permitted when an employee becomes totally
and permanently disabled due to a compensable
injury's aggravation or acceleration of the
employee's non-disabling, pre-existing
disease.
Errante v. Cumberland County Solid
Waste Management, 106 N.C. App. 114, 119, 415
S.E.2d 583, 586 (1992). In addition, in
Counts
v. Black & Decker Corp., 121 N.C. App. 387,
390-391, 465 S.E.2d 343, 346,
disc. rev.
denied, 343 N.C. 305, 471 S.E.2d 68 (1996),
the Court stated that 'apportionment is not
proper where the evidence before the
Commission renders an attempt at apportionment
between work-related and non-work related
causes speculative or where there is no
evidence attributing a percentage of the
claimant's total incapacity [to work] to her
compensable injury, and a percentage to the
non-compensable condition.'
In concluding plaintiff's disability continued, the Commission
considered
that Dr. Jaufmann had restricted plaintiff from
returning to work because plaintiff was “an individual who has an
injury but also has a serious medical and neurological problem on
top of that injury.” In other words, plaintiff's condition, as
well as his medical restrictions, prevented him from performing his
job with defendant-employer, even after having exhausted light duty
assignments.
The parties stipulated to plaintiff's disability,
which indicated defendant's liability and a presumption of
plaintiff's disability. Based on the evidence of plaintiff's
disability, the Commission concluded plaintiff was entitled to
ongoing benefits:
5. As a direct result of the 27 June 1994
work-related injury, plaintiff became totally
disabled beginning on 26 February 1999 and
continuing. N.C. Gen. Stat. . 97-2.
6. [P]laintiff is entitled to have
defendants pay ongoing total disability
compensation at the rate of $466.00 per week,
from 26 February 1999 and ongoing. N.C. Gen.
Stat. . 97-29.
7. [P]laintiff is entitled to have
defendants pay for all related medical
expenses incurred or to be incurred in the
future which are reasonably required to effect
a cure or provide relief. N.C. Gen. Stat. ..
97-25; 97-25.1.
Defendant claims plaintiff is not entitled to a presumption of
continuing disability, citing
Pittman v. Thomas & Howard, 122 N.C.App. 124, 468 S.E.2d 283 (1996), because plaintiff's worsening
condition is directly related to a pre-existing condition and is
not caused by a work related accident
. In
Pittman
however, the
Commission found and concluded, based on the treating physician's
testimony, that
the “plaintiff's worsening condition [was] due to
severe lumbar spinal stenosis, which was not caused by the
[workplace] incident of 25 August 1987.”
Id. at 128, 468 S.E.2d at
285. The Commission determined competent evidence existed to
support findings that the treating physician could not relate the
plaintiff's lumbar spinal stenosis to any specific event and
concluded the plaintiff's worsening lumbar spinal stenosis was
“symptomatic just by performing daily duties and other activities.”
Id. No such findings exist in the present case.
Here, in findings 21, 22, and 23, the Commission found
plaintiff went beyond proving his disability and his inability to
earn a wage, stating “based on plaintiff's educational level,
aptitude and past work history, plaintiff would be capable of some
sedentary work. . . . [H]owever, it would be futile for plaintiff
to seek employment considering the physical limitations and pain
caused by his work-related injury even if he did not have diabetic
polyneuropathy.” We agree.
Here, plaintiff was unable to return to work after 26 February
1999 because of severe back pain caused by the combination of hisradiculopathies and diabetic polyneuropathy. Leading up to
plaintiff's last day of work, plaintiff fulfilled light duties, as
assigned under the defendant-employer 28 June 1998 Modified Work
Authorization. Plaintiff continued to see Dr. Jaufmann,
complaining of moderate to severe low back pain in 1999. Based on
the results of plaintiff's nerve conduction studies in 1997 and
1999, Dr. Jaufmann concluded plaintiff had two problems
contributing to the severity of his symptoms and that plaintiff's
incapacity to work since 26 February 1999 was due to the compound
effect on his nerves from his chronic, bilateral L5-S1
radiculopathies and his diabetic polyneuropathy. Effective 27
February 1999, plaintiff was taken out of work, complaining of
severe pain and relying on a cane to help him walk. On 25 March
1999, Dr. Jaufmann wrote to defendant-carrier stating plaintiff's
existing disability was consistent with his 1994 work related
injury. While defendants stipulated to plaintiff's 1994 disability
for a specific time period, credible medical records and testimony
supported the fact that plaintiff was physically unable to return
to work as either a serviceman or perform light duties as assigned;
and, based on his age, limited education and lack of requisite
skills to perform a sedentary job, the presumption of plaintiff's
disability was ongoing. Therefore, defendants failed to meet their
burden of proof by failing to show which other jobs plaintiff wascapable of, despite his disability, when he became unable to
perform light duty assignments. Notwithstanding plaintiff's work
related radiculopathy, which was complicated by his diabetic
polyneuropathy, plaintiff lacked the capacity to return to work, or
earn a wage. The Commission properly concluded plaintiff suffered
from an ongoing disability which rendered him incapable of any
employment after 26 February 1999. The Opinion and Award of the
Commission is affirmed.
Affirmed.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1