An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 March 2006
MARY McLAMB, Employee,
CARROLL'S FOODS, INC., Employer, I.C. No. 986526
SELF-INSURED (HEWITT, COLEMAN &
ASSOCIATES, Servicing Agent),
Appeal by plaintiff from an opinion and award filed 3 February
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 30 November 2005.
Brumbaugh, Mu & King, P.A., by Nicole D. Wray, for plaintiff
Lewis & Roberts, P.L.L.C., by Timothy S. Riordan and Jeffrey
A. Misenheimer, for defendant appellee.
Plaintiff Mary McLamb appeals from an opinion and award of the
North Carolina Industrial Commission partially denying her workers'
compensation claim. We affirm the challenged opinion and award.
On 20 October 1999, plaintiff Mary McLamb was working as a
truck driver for defendant Carroll's Foods when, while placing a
tarp over some cargo, she felt a pain in her neck, back, and
shoulders. She subsequently filed a claim for workers' compensation
in which she alleged that she suffered injuries to her neck,shoulder and lower back as a result of the tarp-pulling incident.
The evidence presented at the hearing before the Industrial
Commission tended to show the following: McLamb sought treatment
from Dr. Albert Verrilli on 26 October 1999 for pain in her neck
and upper back which she related to her accident at work six days
earlier. Dr. Verrilli diagnosed McLamb with a trapezius muscle
strain, but only prescribed Extra-Strength Tylenol for her pain
because she was pregnant. Dr. Verrilli recommended physical
therapy and instructed McLamb to return to work in a light-duty
capacity. In November of 1999 Dr. Verrilli advised McLamb to miss
work. She remained out of work pursuant to Dr. Verrilli's
recommendations until approximately January 2000, at which point
the doctor recommended light-duty work that did not involve driving
long distances or pushing, pulling, or lifting heavy items.
Pursuant to a referral from Dr. Verrilli, McLamb was seen by
Dr. Alexander Huff at Southeast Orthopaedics and Sports Medicine on
10 January 2000. Dr. Huff diagnosed McLamb with unresolved
cervical strain and right shoulder subacromial impingement. He
recommended additional physical therapy and instructed McLamb to
continue with light duty work.
Based on Dr. Huff's recommendation, McLamb was assigned light-
duty work as an attendant in the scale house at Carroll's Foods
beginning on 10 January 2000. Her duties in this position included
weighing trucks, taking samples, entering data into a computer,
completing log sheets, and carrying samples weighing approximately
one pound to the company lab. Two months after the 17 March 2000 delivery of her child,
McLamb returned to Dr. Verrilli with complaints of persistent neck
pain. Dr. Verrilli diagnosed her with suspected myofascial pain
syndrome. Dr. Verrilli ordered further testing and again referred
her to Dr. Huff.
McLamb returned to Dr. Huff on 5 June 2000 and was diagnosed
with unresolved cervical strain. Dr. Huff recommended physical
therapy and restricted McLamb to light-duty work which precluded
her from lifting objects heavier than ten pounds or driving trucks.
On 16 August 2000 Dr. Huff performed a right shoulder subacromial
injection and recommended physical therapy for aggressive
strengthening of McLamb's right shoulder. Dr. Huff restricted
McLamb to work which did not involve reaching over her head, and he
continued to advise her that she should not lift objects heavier
than ten pounds. On 2 November 2000, Dr. Huff recommended a
Pursuant to Dr. Huff's recommendation, McLamb was seen by Dr.
Robert Allen of Raleigh Neurosurgical Clinic, Inc., on 27 November
2000. Dr. Allen believed McLamb's neck pain was muscular
ligamentous and did not recommend surgery.
Following Dr. Allen's evaluation, McLamb returned to Dr. Huff
on 14 December 2000. Dr. Huff recommended right shoulder open
subacromial decompression, and possible rotator cuff repair. Dr.
Huff recommended continued avoidance of overhead activities and
limited use of her right arm. McLamb remained out of work from 3November 2000 until 23 April 2001 and received temporary total
disability benefits during this time.
In May of 2001, McLamb was seen by Dr. Max Kasselt at Kasselt
Bone and Joint Center for back pain, weak legs, neck pain, numbness
in her right hand, and pain in her left and right shoulders. Dr.
Kasselt believed that McLamb was engaging in symptom amplification
behavior and suspected that psychological factors were affecting
her physical condition. Based on this opinion, Dr. Kasselt
referred McLamb to Dr. Gregory Gridley for a psychological
Dr. Gridley evaluated McLamb on 17 May 2001, and opined that
McLamb was malingering. Immediately following this evaluation,
McLamb returned to Dr. Kasselt, who concurred in Dr. Gridley's
assessment of malingering and released McLamb from his care.
McLamb returned to Dr. Huff on 3 December 2001 for back pain
and right shoulder pain. Dr. Huff could not identify objective
reasons for McLamb's continued pain on this date. Dr. Huff
released McLamb to return to full duty work without restrictions.
McLamb sought treatment for lower back pain from Dr. Carolyn
Sampson on 25 April 2001. Dr. Sampson diagnosed McLamb with
chronic back pain, and instructed McLamb to remain out of work for
two days. On 2 May 2001 Dr. Sampson recommended that McLamb's hours
be reduced to thirty to thirty-five hours per week due to her back
Dr. Sampson referred McLamb for a neurological evaluation, and
she was seen by Dr. Rangasamy Ramachandran of Cape Fear NeurologyAssociates on 29 April 2002. Dr. Ramachandran diagnosed McLamb
with musculoskeletal pains in the cervical and lumbar regions and
possible cervical radiculopathy and lumbosacral radiculopathy, and
he advised her not to push, pull or lift any object heavier than
In August of 2001, McLamb presented her supervisor at
Carroll's Foods with a note from Dr. Sampson regarding her light-
duty restrictions. The testimony concerning the supervisor's
reaction is in dispute. McLamb testified that she was instructed
at this time that unless she could go back to work full time
driving a truck, there was no work available for her. Her
supervisor testified that no such conversation occurred and that
light-duty work remained available for McLamb. McLamb has remained
out of work since August 2001. She testified that she is willing
to return to work in a light-duty capacity but that no light-duty
position is available to her.
Based on the foregoing evidence, the Full Commission (the
Commission) ruled that McLamb had suffered a compensable injury to
her neck and right shoulder but that her lower back injury was not
related to the 20 October 1999 tarp-pulling incident and was not
compensable. The Commission determined that McLamb had already
been provided all necessary medical benefits and that she was not
entitled to further disability compensation because she had refused
suitable employment offered by her employer.
McLamb now appeals.
In her first argument on appeal, McLamb contends that the
Commission's determination that her lower back injury was not
compensable is not supported by competent evidence in the record.
This argument lacks merit.
For an injury to be compensable, it must be an injury by
accident arising out of and in the course of employment . . . .
N.C. Gen. Stat. § 97-2(6) (2005). This Court must affirm the
Commission's factual determinations concerning compensability if
they are supported by any competent evidence in the record.
Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 480
(1997) (emphasis added). Such determinations are conclusive on
appeal notwithstanding evidence that might support a contrary
finding. Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435,
571 S.E.2d 860, 862 (2002).
In the instant case, Dr. Verrilli testified that he did not
remember McLamb complaining of lower back pain when she initially
sought medical treatment following the 20 October 1999 tarp-pulling
incident, and his records indicated that McLamb only mentioned
lower back pain once in the twelve times that he examined her
between October 1999 and May 2000. Dr. Verrilli opined that, given
the timing of McLamb's complaints of lower back pain and the
scarcity with which she mentioned it in her visits with him, the
lower back injury was probably not related to the 20 October 1999
tarp-pulling incident. Dr. Huff testified that McLamb did not
report lower back pain to him until eight-and-one-half months after
the 20 October 1999 tarp-pulling incident, and he opined that thelower back injury probably was not related to the incident at work
because McLamb did not consistently mention lower back pain to Dr.
Verrilli. This medical testimony supports the Commission's finding
that McLamb's lower back pain was not causally related to the
incident at work and was not compensable.
McLamb next contends that the Commission's determination that
she does not require any future medical treatment for her neck and
shoulder injuries is not supported by competent evidence in the
record. This contention also lacks merit.
As already indicated, the Commission's factual determinations
must be affirmed if there is competent evidence to support them,
even if there is evidence which would support a contrary finding.
Ante, slip op. at 6. In the instant case, Dr. Huff assigned a zero
percent permanent partial disability rating to McLamb's neck and
shoulder, and Drs. Huff, Allen, and Kasselt offered opinions that
McLamb did not require additional medical treatment for her neck
and shoulder injuries. This evidence supports the Commission's
determination that no future treatment is needed for McLamb's neck
and shoulder injuries.
In her final argument on appeal, McLamb asserts that the
Commission's determination that she is not entitled to any future
disability benefits because she refused suitable employment is not
supported by competent record evidence. This contention also lacks
merit. Under the North Carolina Workers' Compensation Act, a
disability 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) (2005).
Thus, the term disability refers to diminished earning capacity.
. Accordingly, [i]f 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. N.C. Gen. Stat. § 97-32 (2005). The
Commission's findings in this regard must be affirmed if supported
by any competent evidence in the record. Ante
, slip op. at 6.
In the instant case, McLamb's supervisor testified that
Carroll's Foods permitted McLamb to work as a scale house
attendant. This position entailed recording weights for incoming
and outgoing trucks, directing trucks to an unloading area, and
occasionally carrying samples to a company lab. These duties
required McLamb to be able to pick up a pencil and clipboard, to do
paperwork, to stand, sit, and walk, and to lift samples weighing
less than one pound. Accordingly, the requirements of the scale
house attendant position complied with McLamb's doctor-imposed work
restrictions. The supervisor testified that the light-duty
position was available for the duration of McLamb's compensable
injury and that, although she remains an employee of Carroll's
Foods, McLamb has not worked since July or August of 2001. Though McLamb provided testimony from which the Commission
could find that the light-duty position was not made available to
her for the duration of her compensable injury, there was evidence
from which the Commission could find and conclude that McLamb
refused suitable employment made available to her and that she
therefore was not entitled to any additional disability benefits.
McLamb's assignments of error are overruled. The Commission's
opinion and award is
Judges HUNTER and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***