JUDY CEBALLOS,
Employee,
Plaintiff,
N.C. Industrial Commission
I.C. No. 291468
INTREPID USA,
Employer,
CNA CLAIMS PLUS,
Carrier,
Defendants.
Lyndon R. Helton, PLLC, by Lyndon R. Helton, for plaintiff-
appellee.
McAngus, Goudelock & Courie, PLLC, by Trula R. Mitchell, for
defendants-appellants.
JACKSON, Judge.
Intrepid USA (“defendant-employer”) and its insurance carrier,
CNA Claims Plus (collectively, “defendants”), appeal from an order
of the Full Commission of the North Carolina Industrial Commission
filed 28 October 2005 awarding workers' compensation benefits to
Judy Ceballos (“plaintiff”). For the reasons stated below, we
affirm. Plaintiff was born on 21 September 1952, and prior to working
for defendant-employer, plaintiff had worked in a restaurant, as a
nanny, and in manufacturing, specifically in knitting and
inspecting cloth. Since 1992, plaintiff has worked in home health
care as a certified nursing assistant. On 18 August 2001,
defendant-employer _ then called Health Mate _ hired plaintiff as
a certified nurses aid. As a certified nurses aid for defendant-
employer, plaintiff's work duties included home nursing care.
Plaintiff testified that “[o]n May the 1st, 2002, I had just
fed Mr. Roberts his breakfast, and I started to sit down in the
dinette kitchen chair. And as I started to sit, the chair gave way
_ It came apart[] _ and twisted real fast my foot, my knee, and my
back, and I landed on my hip.” Mr. Roberts was one of defendant-
employer's clients, and defendants acknowledged that the fall
occurred in the course and scope of plaintiff's employment. On the
date of the injury, plaintiff notified defendant-employer of the
injury, and that same day, Dr. John Piland (“Dr. Piland”) at the
Hart Industrial Clinic treated plaintiff, diagnosed her with a
right hip contusion, and released her to work full duty. Plaintiff
returned to work but continued to experience pain. On 3 May 2002,
plaintiff returned to the Hart Industrial Clinic, and Dr. Robert W.
Hart III (“Dr. Hart”) diagnosed plaintiff with a back strain,
prescribed Percocet for plaintiff's pain, and restricted her to
limited bending and twisting and no lifting over twenty-five
pounds. On 8 May 2002, plaintiff again sought treatment at the
Hart Industrial Clinic, where a nurse practitioner diagnosedplaintiff with a lower back strain, continued the work restrictions
set out by Dr. Hart, and recommended physical therapy.
On 21 May 2002, Dr. Hart released plaintiff to full duty work,
and plaintiff returned to caring for Mr. Roberts. Plaintiff once
again began experiencing pain, and on 29 May 2002, plaintiff was
seen by Dr. Robert Kukla (“Dr. Kukla”), a board certified
podiatrist. Dr. Kukla noted pain and swelling in plaintiff's foot,
and based on a bone scan he performed on plaintiff's foot, Dr.
Kukla diagnosed plaintiff with a stress fracture in her right foot.
Dr. Kukla testified in his deposition that plaintiff's stress
fracture most likely occurred as a result of her 1 May 2002 injury
sustained at work. On 17 June 2002, Dr. Kukla placed plaintiff's
right foot in a surgical shoe and prescribed minimal weight
bearing. On 1 July 2002, Dr. Kukla placed plaintiff's right foot
in an immobilizer cast boot, and on 16 August 2002, he placed
plaintiff's foot in a plaster cast.
Plaintiff's last day of work was 1 July 2002,
(See footnote 1)
and defendant-
employer formally terminated plaintiff's employment on 19 August
2002 for reasons unrelated to her injury and corresponding workers'
compensation claim.
On 17 September 2002, plaintiff presented to Dr. John
dePerczel (“Dr. dePerczel”), an orthopedic specialist, complaining
of right knee and back pain. Dr. dePerczel testified that
plaintiff's fall on 1 May 2002 could have resulted in cartilagedamage to the undersurface of plaintiff's right kneecap and to the
medial meniscus. Due to plaintiff's knee injury, Dr. dePerczel
prescribed on 29 October 2002 a walker for plaintiff.
On 12 December 2002, plaintiff presented to Dr. Herbert J.
Schulten (“Dr. Schulten”), an orthopedic specialist and partner of
Dr. dePerczel. Dr. Schulten testified that plaintiff's fall may
have caused a muscle strain in plaintiff's back and that as the
strain improved, plaintiff's attention shifted toward her knee,
which was mechanically deranged from torn cartilage. Dr. Schulten
also explained that a knee derangement could cause additional
stress to one's back.
On 16 January 2003, Dr. dePerczel performed arthroscopic
surgery on plaintiff's right knee. Consequently, plaintiff was
totally disabled until 16 July 2003, and on 30 July 2003, Dr. Kukla
recommended that plaintiff limit her activities as much as possible
to a sedentary position. On 13 October 2003, Dr. dePerczel
performed back surgery on plaintiff after concluding that
plaintiff's 1 May 2002 injury and the subsequent treatment for her
knee problems aggravated plaintiff's underlying back condition.
In his 17 June 2005 “Patient Work Status Report,” Dr.
dePerczel stated that plaintiff had been unable to return to work
since 17 September 2002. In a report dated 19 July 2005, Dr.
dePerczel noted that plaintiff would be out of work indefinitely
due to her injuries. On this same date, Dr. dePerczel prescribed
Percocet, Darvocet, and Ambien to control plaintiff's pain and tohelp plaintiff sleep. Dr. dePerczel previously had prescribed
Darvocet, Percocet, and Vicodin on a rotating basis for plaintiff.
Defendants denied that plaintiff's back injury and resulting
surgery, right knee injury and resulting surgery, and right foot
fracture were caused by plaintiff's fall while working for
defendant-employer. Defendants, instead, contended that plaintiff
only sustained a minor back strain and hip contusion as a result of
the fall, and that those injuries were resolved within three weeks
of the fall. Defendants thus argued that plaintiff was not
entitled to workers' compensation for the time period following 21
May 2002.
On 22 August 2003, the dispute came before Deputy Commissioner
Phillip A. Baddour III of the North Carolina Industrial Commission.
By Opinion and Award entered 3 November 2004, Deputy Commissioner
Baddour found in favor of plaintiff.
On 9 June 2005, the Full Commission ordered the matter
reopened for the taking of further evidence for plaintiff to prove
the extent of her disability after 1 April 2004. In her deposition
on 2 August 2005, plaintiff testified that since the hearing before
Deputy Commissioner Baddour, she had tried to find suitable
replacement employment but had been unable to acquire employment
within her physical limitations _ specifically, no lifting, no
bending, and limited walking. Plaintiff also testified that she
had been taking medication for pain, depression, anxiety, and sleep
difficulty. By Opinion and Award filed 28 October 2005, the Full
Commission affirmed the Opinion and Award of Deputy Commissioner
Baddour. The Full Commission determined that plaintiff's back,
knee, and foot injuries arose out of and in the course of her
employment with defendant-employer on 1 May 2002. The Full
Commission further found that the combination of plaintiff's
resulting pain, her physical limitations, and the effects of her
medications have prevented plaintiff from obtaining and maintaining
employment. The Full Commission thus concluded that plaintiff was
entitled to temporary total disability compensation at the rate of
$276.00 from 16 January 2003 through 16 July 2003 and from 13
October 2003 until further order of the Industrial Commission. On
28 November 2005, defendants filed timely notice of appeal.
On appeal, defendants contend that there was not competent
evidence of record to support the Commission's findings (1) that
plaintiff's right foot fracture, knee condition, and back condition
were causally related to the 1 May 2002 injury by accident, and (2)
that plaintiff was disabled after 21 May 2002. We disagree.
As a preliminary matter, we note that defendants' brief
violates Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure. Pursuant to Rule 28(b)(6), “[i]mmediately following
each question [presented] shall be a reference to the assignments
of error pertinent to the question, identified by their numbers and
by the pages at which they appear in the printed record on appeal.”
N.C. R. App. P. 28(b)(6) (2006). In defendants' brief, each
question presented is followed by a list of the portions of theorder to which defendants assigned error. Defendants, however,
failed to identify the assignments of error by their numbers and by
the pages at which they appear in the record. “The North Carolina
Rules of Appellate Procedure are mandatory and 'failure to follow
these rules will subject an appeal to dismissal.'” Viar v. N.C.
Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (per
curiam) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511
S.E.2d 298, 299 (1999)), reh'g denied, 359 N.C. 643, 617 S.E.2d 662
(2005). Nevertheless, we conclude that defendants' rule violation
is not so egregious as to warrant dismissal or sanctions.
When reviewing decisions of the North Carolina Industrial
Commission, this Court is charged with determining whether there is
competent evidence in the record to support the Commission's
findings of fact and whether those findings, in turn, justify the
Commission's conclusions of law. See Perkins v. U.S. Airways, __
N.C. App. __, __, 628 S.E.2d 402, 406 (2006). Defendants have
assigned error only to Findings of Fact numbered 22, 23, and 24,
and accordingly, all other findings are deemed supported by
competent evidence and are binding on appeal. See Beaver v.
Crawford Paint Co., 240 N.C. 328, 330, 82 S.E.2d 113, 114 (1954);
see also Seay v. Wal-Mart Stores, Inc., __ N.C. App. __, __, 637
S.E.2d 299, 301 (2006) (citations omitted).
It is well-established that
[e]xpert testimony that a work-related injury
'could' or 'might' have caused further injury
is insufficient to prove causation when other
evidence shows the testimony to be 'a guess or
mere speculation.' However, when expert
testimony establishes that a work-relatedinjury 'likely' caused further injury,
competent evidence exists to support a finding
of causation.
Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 264, 614
S.E.2d 440, 446.47 (citations omitted), disc. rev. denied, 360 N.C.
61, 621 S.E.2d 177 (2005).
In the case sub judice, expert testimony tended to show that
plaintiff's 1 May 2002 injury likely caused her subsequent foot,
knee, and back injuries, and as such, competent evidence supports
the Industrial Commission's findings and conclusions. In his
deposition, Dr. Kukla concluded that plaintiff's fall of 1 May 2002
“most likely” caused the stress fracture to plaintiff's right foot.
DR. KUKLA: Are you saying is it more likely
than not that this caused the injury . . . ?
PLAINTIFF'S COUNSEL: I'm saying do you feel
comfortable in your opinion as to a reasonable
degree of medical certainty, trained in your
profession and knowing what you know as a
doctor.
DR. KUKLA: Right. I would say most likely it
did come from the injury.
(Emphasis added). Dr. Kukla further explained that because of the
unusual location of plaintiff's stress fracture, the fall plaintiff
sustained “more than likely” caused the fracture.
With respect to plaintiff's knee condition, Dr. Schulten was
asked during his deposition: “Assuming she [plaintiff] had no other
trauma, what would be the most likely source for the knee pain and
the resulting surgery?” Dr. Schulten responded that the “most
likely” source of the pain and resulting surgery to plaintiff'sknee was “[t]he injury as described,” i.e., plaintiff's fall when
the chair broke.
Finally, Dr. dePerczel opined that although plaintiff probably
had a preexisting back condition, specifically “degenerative
disease facet arthritis,” “[t]he conditions that caused her
problems after the injury, almost for certainty, aggravated her
underlying back condition.” (Emphasis added). Dr. dePerczel
clarified that by “conditions,” he meant “the cast and the walker
and the funny walk . . . [a]nd the injury.”
Dr. David N. Dupuy (“Dr. Dupuy”), who performed a medical
review of the records of Dr. DePerzcel, Dr. Schulten, and Dr. Hart,
testified to the contrary. Dr. Dupuy stated, “With a reasonable
degree of medical certainty I feel I can be certain that the fall
in the chair when she landed on her hip did not cause the stress
fracture.” Dr. Dupuy further opined that the back injury and
resulting surgery were not “directly related to the injury that she
[plaintiff] had on 5-1-02.” Dr. Dupuy also expressed doubt that
plaintiff's knee injury was caused by the fall in the chair,
stating, “I don't see any association of a knee injury with the
initial presentation.” Similarly, Dr. Hart also expressed doubt
about the purported causal connection between plaintiff's fall and
her back, knee, and foot injuries. For example, with respect to
plaintiff's stress fracture, Dr. Hart stated, “I've never seen a
stress fracture following an injury like falling from a chair, and
I've seen a lot of stress fractures if that helps you.” Nevertheless, despite the testimony of Dr. Hart and Dr. Dupuy,
competent evidence of record _ specifically, the testimony of Dr.
Kukla, Dr. Schulten, and Dr. dePerczel _ exists to support
plaintiff's contentions, and it is not the task or the province of
this Court to re-weigh the evidence presented before the Industrial
Commission. See Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d
411, 414 (1998) (noting that “on appeal, this Court 'does not have
the right to weigh the evidence and decide the issue on the basis
of its weight. The court's duty goes no further than to determine
whether the record contains any evidence tending to support the
finding.'” (quoting Anderson v. Lincoln Construction Co., 265 N.C.
431, 434, 144 S.E.2d 272, 274 (1965))), reh'g denied, 350 N.C. 108,
532 S.E.2d 522 (1999). Accordingly, as there was competent
evidence in the record to support the Commission's findings of fact
and those findings, in turn, justify the Commission's conclusions
of law, defendants' assignment of error is overruled.
In their second argument, defendants contend that the
Industrial Commission erred in finding that plaintiff was disabled
after 21 May 2002 _ when Dr. Hart released plaintiff to full work
duty _ as a result of the 1 May 2002 injury plaintiff sustained
while working for defendant-employer.
As our Supreme Court has explained, “'[d]isability,' within
the North Carolina Workers' Compensation Act, 'means 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.'” Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491,493 (2005) (quoting N.C. Gen. Stat. § 97-2(9)). The burden of
proving a disability as well as the extent of the disability lies
with the employee seeking compensation under the Act. See id.
(citing Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345
S.E.2d 374, 378 (1986)). In order for a plaintiff to establish a
claim for disability, whether temporary or permanent, under the
Act,
the Commission must find: (1) that plaintiff
was incapable after his injury of earning the
same wages he had earned before his injury in
the same employment, (2) that plaintiff was
incapable after his injury of earning the same
wages he had earned before his injury in any
other employment, and (3) that this
individual's incapacity to earn was caused by
plaintiff's injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982). This Court has explained that
[t]he employee may meet this burden 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 work in any employment; (2) the
production of evidence that he is capable of
some work, but that he has, after a 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) (internal citations omitted). Defendants
contend that plaintiff did not present sufficient evidence to satisfy her burden, while plaintiff contends there was sufficient
evidence to satisfy either the second or third prongs of the
Russell analysis.
Pursuant to the second prong in the Russell analysis,
plaintiff would have satisfied her burden of proving disability if
she produced evidence that she is capable of some work, but, after
a reasonable effort, has been unsuccessful in obtaining employment.
See id. Plaintiff testified that from the date her employment with
defendant-employer was terminated to the date of the hearing before
Deputy Commissioner Baddour, she sought alternate employment but
had been unsuccessful.
. . . I went to K-Marts and put in an
application, and I _ and I informed them that
I was under doctor's care. And they told me
as long as I was under doctor's care, they
would not _ they would not hire me. I also
went to Cox Manufacturing, but because I have
no abilities there, they wouldn't hire me. I
mean, they wouldn't even let me put in an
application. And I've been looking in the
Hickory Daily Record, but because of my
education and there's no sitting, I have no
clerical duties _ I've been looking, but
there's nothing out there for me.
Defendants did not object to this testimony. Plaintiff reaffirmed
this testimony in her deposition on 2 August 2005, during which
plaintiff explained, “I have job searched at different companies,
convenience stores, and put in ads, and I've also run ads in IWANNA
paper.” Pursuant to an order from Commissioner Pamela T. Young,
plaintiff kept a record of her job search activity, with nine
entries from 18 June 2005 to 30 June 2005. Plaintiff testified
that since 30 June 2005, “I have been physically inable [sic] toget out and search for work. . . . I'm just homebound.”
Consequently, plaintiff's job search has been limited to placing
newspaper advertisements for a sitter-companion job, offering
company to someone elderly or who is infirm. As plaintiff
explained, a sitter-companion was a job for “someone to go in and
be a friend, someone to travel, mainly assist just _ someone to be
there with them to where they won't be alone.” Plaintiff received
one response to an advertisement, but “the lady . . . wanted
somebody to lift _ in other words, bathe her mother, which was 84,
and have _ be able to walk and do house cleaning, cooking. I told
her I needed something more companion job because I wasn't able to
ambulate.”
Plaintiff's testimony served as the basis for the Full
Commission's Finding of Fact number 20:
In her deposition testimony on August 2,
2005, plaintiff testified that since the
hearing before the deputy commissioner, she
has tried to find work within her physical
limitations of no lifting, bending and limited
walking, but was without success. She
testified that she is basically immobile and
is taking medication for pain, depression,
anxiety, and to help her sleep.
Defendants did not assign error to this finding, nor did they
assign error to Finding of Fact number 21, in which the Commission
found that Dr. dePerczel opined that plaintiff “was not capable of
performing a full-time job due to her physical limitations and the
narcotics she is taking on a chronic basis.” As such, these
findings are binding on appeal. See Thompson v. Fed. Express
Ground, __ N.C. App. __, __, 623 S.E.2d 811, 814 (2006). In turn,the evidence presented, as well as the Findings of Fact to which
defendants did not assign error, fully support the Commission's
Finding of Fact number 24:
Based upon the greater weight of the
competent evidence of record, the Full
Commission finds that the combination of
plaintiff's pain, physical work limitations
and the effects of her medications due to her
injuries by accident to her back, right knee
and right foot have prevented plaintiff from
obtaining and maintaining employment.
Although defendants appear to argue that plaintiff did not
produce sufficient evidence, as explained supra, it is not for this
Court to weigh or re-weigh the evidence. We therefore hold that
plaintiff satisfied her burden under the second prong of the
Russell analysis of producing evidence that she is capable of some
work, but, after a reasonable effort, has been unsuccessful in
obtaining employment. As we have found that plaintiff satisfied
her burden of proving her disability under the second prong of the
Russell analysis, we need not reach the issue of whether plaintiff
also satisfied her burden under the third prong. Accordingly,
defendants' assignment of error is overruled.
Affirmed.
Judges GEER and LEVINSON concur.
Report per Rule 30(e).
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