RUTILA RAMIREZ,
Plaintiff
v. North Carolina Industrial
Commission
I.C. No. 919517
GOLDEN CORRAL,
Employer
and
ROYAL INSURANCE CO.,
Carrier
Robert J. Willis for plaintiff-appellant.
Brooks, Stevens & Pope, P.A., by Robert S. Welch and Kimberley
A. D'Arruda, for defendants-appellees.
CALABRIA, Judge.
Rutila Ramirez (“plaintiff”) appeals from an Opinion and Award
of the Industrial Commission, denying plaintiff's claim for
additional medical treatment and indemnity compensation. We affirm
in part and remand in part.
I. Facts The North Carolina Industrial Commission (“the Commission”)
made the following findings of fact:
1. On May 1, 1998, while employed as a baker
with [Golden Corral (“defendant”)], plaintiff
slipped and fell on grease on the floor and
sustained a compensable injury to her right
knee arising out of and in the course of her
employment.
2. Plaintiff ultimately underwent arthroscopic
surgery on her right knee on February 10,
1999, performed by Dr. Obremskey.
Specifically, plaintiff underwent diagnostic
arthroscopy with debridement of the posterior
medial meniscus and chondroplasty of the
medial femoral condyle. According to Dr.
Obremskey's February 1999 operative note, the
arthroscopic surgery revealed that plaintiff
had a medial meniscus tear, meaning the tear
was located on the medial or inside portion of
the knee.
3. Following her surgery on April 5, 1999,
Dr. Obremskey released plaintiff to return to
work full duty without restrictions. In
reviewing a case for a release to return to
work, it is Dr. Obremskey's usual practice to
ask the patient what she does in her
day-to-day job and whether she thinks she can
perform her day-to-day job with her current
conditions. Dr. Obremskey followed this
protocol through an interpreter before
determining to release plaintiff to work. Dr.
Obremskey did not assign a permanent partial
disability rating to plaintiff's right lower
extremity. Plaintiff reached maximum medical
improvement as of April 5, 1999.
4. After her release to full duty, plaintiff
returned to work at her regular job as a baker
for defendants at her pre-injury wages on
April 8, 1999. There was no reduction in the
work force. She continued to work for
defendants until she voluntarily resigned in
July 2000. While she worked with defendants
from April 8, 1999 until July 2000, no
physician assigned any restrictions to
plaintiff. Plaintiff, who primarily speaks
Spanish, described all the difficulties she
was having with her job to her doctor through
her daughter who is fluent in both English and
Spanish. Nevertheless, plaintiff's doctor
continued to release her to work full dutywhile she was employed with defendants.
5. Even though plaintiff's daughter was
present to translate, contemporaneous medical
notes reflect that plaintiff never complained
to her physician about increased job duties.
Plaintiff[] claim[s] that her job duties
significantly increased after her return to
work in April 1999, but there was no evidence
of a reduction in the work force and
plaintiff's job duties with defendants did not
substantially change after April 1999. When
plaintiff voluntarily resigned her job with
defendants, she constructively refused
suitable employment.
6. Following her voluntary resignation with
defendants, plaintiff began working for
Laurels of Forest Glenn, a senior citizens'
home, in July 2000 and worked there until
November 5, 2000, when she voluntarily
resigned. This job required her to load about
20 trays on a cart and wheel the cart to the
nurses so that the nurses could serve the
residents their meals. Plaintiff also bussed
tables. Plaintiff worked at this job for
approximately four hours per day. Plaintiff
claims her duties at the senior citizens' home
caused her knee condition to worsen.
7. On October 26, 2000, during the time that
plaintiff was working at the senior citizens'
home, Dr. Burroughs, an orthopaedic surgeon,
diagnosed plaintiff with a “possible recurrent
meniscus tear, right knee.” Dr. Burroughs
used the word “recurrent” to mean that
plaintiff had a new meniscus tear after her
first injury. He also found she had severe
flexion contracture during this time.
Subsequent1y, on January 16, 2001, an MRI scan
of plaintiff's right knee was obtained, which
revealed a lateral meniscus tear, meaning that
the tear was located on the outside portion of
the knee. Dr. Obremskey's February 1999
operative note indicated that the tear was on
the medial or inside portion of plaintiff's
knee while the 2001 MRI revealed a lateral
meniscus tear, meaning that the tear was
located on the outside portion of the knee.
8. Based on the testimony of Dr. Burroughs and
Dr. Obremskey, the Full Commission finds that
plaintiff had degenerative problems in the
knee prior to her injury. In addition, x-rays
of plaintiff's right knee from January 21,
1999, February 2, 2001, and October 23, 2001showed that the arthritis in her knee had
increasingly worsened. Based on Dr.
Burroughs' testimony, and the x-ray reports
from these three dates, more change had
occurred between February 2001 and October
2001 rather than between January 1999 and
February 2001.
9. Based on Dr. Obremskey's testimony,
traumatic arthritis usually occurs in a joint
after significant trauma. It is most commonly
seen following a fracture in the joint,
requiring internal fixation. In this case,
there was no fracture of the bone or internal
fixation. Plaintiff's height was
approximately 5'2" to 5'4" and her weight was
approximately 150 to 180 pounds. During the
time that Dr. Obremskey treated plaintiff, she
was 57 to 60 years old. Based on Dr.
Obremskey's opinion, to a reasonable degree of
medical certainty, and other evidence of
record including the fact that plaintiff's
arthritis continued to get worse between
February 2001 and October 2001 after she
stopped working altogether, the fact that
there was no evidence of a flexion contracture
until October 2000 well after she left
defendants and the fact that there was no
evidence of a new lateral meniscus tear until
January 2001 well after she left defendants,
the Full Commission finds that it was probable
that plaintiff's age and weight contributed to
or were the primary reasons for the
development of the symptomatic osteoarthritis.
10. The Full Commission finds by a
preponderance of the evidence that p1aintiff's
right knee condition worsened as a result of
her work subsequent to leaving defendant's
employment, either by way of a new and
different meniscus tear on the outside of the
right knee or by way of advancing
osteoarthitis, or as a result of age and
increased natural wear and tear due to
obesity, and is not related to her compensable
injury by accident.
11. Since plaintiff's current right knee
problems are not related to her compensable
injury and because there is no credible
medical testimony in support thereof,
plaintiffs back and hip conditions are not
related to her compensable right knee injury.
12. Based on Dr. Speer's testimony that
plaintiff was not complaining of hip and backpain when he saw her and based on Dr.
Obremskey's testimony that a limp caused by an
impaired knee cannot cause arthritis in one's
other knee and back, and further based on Dr.
Speer's testimony that he was aware of no peer
review or epidemiological studies supporting
the proposition that walking on an impaired
knee caused problems with other body joints,
plaintiff's hip and back complaints are
unrelated to her compensable injury.
13. Dr. Obremsk[e]y did not assign plaintiff
an impairment rating. Dr. Burroughs' medical
notes indicate a 10% impairment rating to
plaintiff's right knee and Dr. Speer, who saw
plaintiff only one time on November 28, 2001
at the request of plaintiff, found plaintiff
to have a 25% impairment rating to her right
knee.
14. Plaintiff's average weekly wage based on
the Form 22 is $295.40, yielding a
compensation rate of $196.94.
15. Plaintiff was paid temporary total
disability compensation at a compensation rate
of $173.34 according to the Form 60 filed in
this matter. Plaintiff is entitled to be paid
for the difference between her compensation
rate and the rate she was paid pursuant to the
Form 60.
Based on these findings, the Commission concluded, inter alia:
(1) “[p]laintiff has failed to prove that her current medical
condition is causally related to her compensable injury by accident
of May 1, 1998”; (2) “[p]laintiff has failed to establish that she
suffers from an occupational disease[]”; and (3)[p]laintiff is
entitled to no additional medical treatment under the provisions of
the North Carolina Workers' Compensation Act.” In its award, the
Commission denied plaintiff's claim for additional medical
treatment and indemnity compensation. Plaintiff appeals.
II. Burden of Proof
Plaintiff argues that several of the Commission's findings and
conclusions of law show that “it failed to properly ascertain andallocate the burden of proof between the parties[.]” Specifically,
plaintiff argues that under Parsons v. Pantry, Inc., 126 N.C. App.
540, 542, 485 S.E.2d 867, 869 (1997), the burden is on defendants
to show that plaintiff's “pain, flexion, and extension problems in
her right knee after 20 May 2000 were unrelated to the compensable
injury to that same knee.” We agree.
In Perez v. American Airlines, __ N.C. App. __, __, 620 S.E.2d
288, 293 (2005), this Court held that “[a]s the payment of
compensation pursuant to a Form 60 amounts to a determination of
compensability, we conclude that the Parsons presumption applies in
this context.” Defendant admitted the compensability of
plaintiff's right knee injury in this case via a Form 60. Pursuant
to our holding in Perez, the Form 60 established compensability and
created a presumption in favor of plaintiff that additional medical
treatment for her right knee problems was related to her previous
compensable injury to her right knee. Perez, __ N.C. App. at __,
620 S.E.2d at 292. As such, the burden shifted to defendants to
come forward with evidence showing that the medical treatment for
plaintiff's right knee is unrelated to her compensable injury. Id.
The Commission's findings and the applicable conclusions of law
establish that it failed to grant plaintiff this presumption in
regard to the additional medical treatment of her right knee.
Accordingly, we remand this matter to the Commission for
appropriate findings and conclusions in light of this presumption.
See Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005)
(“[i]f the conclusions of the Commission are based upon adeficiency of evidence or misapprehension of the law, the case
should be remanded so that the evidence may be considered in its
true legal light” (citation and quotations omitted)).
The Parsons presumption, however, applies only to subsequent
injuries to plaintiff's right knee, and plaintiff still has the
burden of establishing compensability for her back and hip
conditions. Cooper v. Cooper Enterprises, Inc., 168 N.C. App. 562,
564, 608 S.E.2d 104, 105-06 (2005). The Commission's finding 12,
which is supported by competent evidence, supports the Commission's
conclusion that “[p]laintiff has failed to prove that her current
medical condition is causally related to her compensable injury by
accident of May 1, 1998” insofar as that conclusion relates to
plaintiff's back and hip conditions. Accordingly, we affirm the
Commission's determination that plaintiff's back and hip conditions
were non-compensable.
III. Motion to Compel and Motion for Rehearing
Plaintiff next argues that the Commission “abused its
discretion by failing to grant the plaintiff's motion to compel and
by failing to grant the plaintiff's request for rehearing to submit
new evidence based upon the information obtained from that motion
to compel.” Plaintiff sought a motion to compel defendants'
response to interrogatory four, regarding her job duties while
employed with defendant, and she subsequently requested a
rehearing.
This Court reviews the Commission's denial of a motion to
compel under an abuse of discretion standard. Williams v. StateFarm Mut. Auto. Ins. Co., 67 N.C. App. 271, 273, 312 S.E.2d 905,
907 (1984). When considering a plaintiff's request for rehearing,
the following standard applies:
[W]hen an appeal of an opinion and award is
taken, the Full Commission is granted the
authority to review the award, and if good
ground be shown therefor, reconsider the
evidence, receive further evidence, rehear the
parties or their representatives, and, if
proper, amend the award. Whether good ground
be shown therefore in any particular case is a
matter within the sound discretion of the
Commission, and the Commission's determination
in that regard will not be reviewed on appeal
absent a showing of manifest abuse of
discretion.
Brown v. Kroger Co., 169 N.C. App. 312, 320-21, 610 S.E.2d 447, 453
(2005) (quotations omitted). See also N.C. Gen. Stat. § 97-85
(2005). Pursuant to this standard, we hold there is no manifest
abuse of discretion on these facts regarding the Commission's
denial of either the motion to compel or the motion for rehearing,
particularly given that plaintiff specifically testified regarding
her job duties.
Having remanded for new findings and conclusions based on the
proper burden of proof, we need not address plaintiff's other
assignments of error.
For the foregoing reasons, we affirm in part and remand in
part the Industrial Commission's Opinion and Award for further
proceedings consistent with this opinion.
Affirmed in part and remanded in part.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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