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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 February 2007
CECIL MCDANIEL, EMPLOYEE
Plaintiff, N.C. Industrial Commission
I.C. File No. 398514
CONTINENTAL TIRE, SELF-INSURED
(Gallagher Bassett Services,
Inc., Servicing Agent), EMPLOYER
Appeal by defendant from Opinion and Award dated 16 December
2005 by the Full Commission. Heard in the Court of Appeals 13
No brief filed for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, by Joel K. Turner, for
Continental Tire (defendant-employer) appeals from an Opinion
and Award dated 16 December 2005 by the Full Commission
Cecil McDaniel (plaintiff-employee)
payment of temporary total
at a rate of $533.80 weekly from 10 February
2004 and ongoing
. Plaintiff was also awarded attorneys fees. In
addition, the Full Commission concluded defendants are entitled to
an appropriate credit for the short-term benefits that have been
paid to plaintiff at a rate of 75% of the short-term benefits paideach week on a week-by-week rather than on a dollar-for-dollar
Plaintiff worked for defendant for nearly twenty-six years in
various positions. On 18 January 2004, plaintiff was working as a
palletizer which duties included
strapping down tires by using
black rubber straps to hold the tires onto pallets, securing the
pallets to the inner portion of the tires at four different points
on each pallet.
On that date, plaintiff reported to his
supervisor, Jim Daniels
, that he had injured his back.
February 2004 plaintiff's right arm went completely numb after
experiencing severe pain while performing his job duties. At that
time, plaintiff and his supervisor agreed that plaintiff should
report to the Plant Nurse, Deborah Crawford, because of the
intensity of the pain plaintiff had felt in the back of his neck
radiating down into his right shoulder, arm, and hand. Ms.
Crawford sent plaintiff to OccMed for further evaluation by Dr.
Keith Baugh. Dr. Baugh gave plaintiff work
restrictions of no
strapping down tires. Plaintiff worked light duty from 2 February
2004, until 11 February 2004. At that time, defendant requested
that plaintiff go out of work on short-term disability because he
was unable to perform his regular job duties. Defendant paid
plaintiff $385.00 per week in short-term disability benefits
10 February 2004,
plaintiff was seen by Dr. Daniel Murrey, atCharlotte Orthopedic Specialists, and was diagnosed with new onset
right upper extremity radiculopathy. Plaintiff was given
restrictions of no lifting greater than thirty pounds, no prolonged
reaching overhead or extreme neck positions, and no awkward
On 25 March 2004, due to plaintiff's continuing neck pain, Dr.
Murrey recommended facet blocks
(See footnote 1)
. On 29 April 2004
stated that he had little additional treatment to offer plaintiff.
Thereafter, plaintiff began treatment with Dr. Ronald Vandernoord,
who performed the recommended facet block injections. During a
follow-up visit on 18 August 2004, Dr. Vandernoord stated that the
injections were not improving plaintiff's symptoms. During his
deposition, Dr. Vandernoord stated that Dr. Murrey's previous
restrictions of no lifting greater than thirty pounds, no
prolonged reaching overhead or extreme neck positions, and no
awkward lifting or rotation were appropriate at that time.
On 14 October 2004, plaintiff began treatment with Dr. William
Lehman at Carolina Orthopaedic Surgery Associates. Dr. Lehman
diagnosed plaintiff with chronic cervical pain, for which he stated
surgical intervention did not appear to be a reasonable approach,but that pain management may be an option. Further, Dr. Lehman
testified that he thought plaintiff was capable of working some
type of sedentary employment, but not in plaintiff's present job
with defendant. Dr. Lehman testified that based on his physical
examination, his review of plaintiff's medical records, and
plaintiff's statements as to his own capabilities, plaintiff was
capable of light duty work, lifting up to twenty pounds with
frequent lifting and/or carrying up to ten pounds. He testified
that he agreed with Drs. Vandernoord and Murrey's opinions that
plaintiff was employable. Dr. Lehman
also stated during the same
deposition that plaintiff appeared to be unemployable due to a lack
of transferable skills.
Plaintiff's claim was heard by Deputy Commissioner Phillip A.
Holmes on 26 October 2004. At the 26 October 2004 hearing,
plaintiff testified that since he last worked for defendant on 11
February 2004, he has not looked for work as he did not believe he
was physically capable of working, despite the medical opinions of
his physicians to the contrary.
On 9 February 2005, Deputy
Commissioner Holmes issued an Opinion and Award, which found that
plaintiff had sustained an injury by specific traumatic incident
to his back as defined under N.C. Gen. Stat. § 97-2(6). Further,
plaintiff was awarded ongoing disability and medical benefits, but
defendant was granted a full credit for short-term disabilitybenefits previously paid, pursuant to N.C. Gen. Stat. § 97-42.
Subsequently, defendant appealed to the Industrial Commission
on 21 February 2005. Defendant argued that there was no competent
or credible evidence that plaintiff sustained a compensable
specific traumatic incident on or about 18 January 2004, and,
further, even if plaintiff did sustain a compensable injury, he had
not met his burden of proving disability and was not entitled to
ongoing disability benefits pursuant to N.C. Gen. Stat. § 97-29.
On 16 December 2005, the Full Commission issued an Opinion and
Award essentially affirming Deputy Commissioner Holmes' previous
Opinion and Award with several changes including a reduced credit
for short-term disability benefits. A dissent was issued by
Commissioner Buck Lattimore. Defendant
Defendant raises two issues on appeal whether the Full
Commission erred in: (I) concluding that plaintiff is disabled and
entitled to ongoing disability benefits and (II) failing to award
defendant a full credit for employer-funded short-term disability
Defendant argues the Full Commission erred in concluding that
plaintiff is disabled and entitled to ongoing disability benefits.
Defendant is appealing the Full Commission's Conclusion of Law
number two, which states, [p]laintiff is entitled to temporarytotal disability compensation at the rate of $533.80 per week from
February 10, 2004, through the present and until such time as he
returns to gainful employment at the same or greater wages, as a
result of this injury by accident. N.C. Gen. Stat. § 97-29. For
the reasons stated below, we reverse and remand to the Commission
for additional findings of fact.
When 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.
, 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004)
(citation and internal quotation marks omitted). While the
Industrial Commission is not required to make specific findings of
fact on every issue raised by the evidence, it is required to make
findings on crucial facts upon which the right to compensation
depends. Gaines v. L. D. Swain & Son, Inc.
, 33 N.C. App. 575,
579, 235 S.E.2d 856, 859 (1977). Where the findings are
insufficient to enable the court to determine the rights of the
parties, the case must be remanded to the Commission for proper
findings of fact. Lawton v. County of Durham
, 85 N.C. App. 589,
592, 355 S.E.2d 158, 160 (1987).
Disability under the Workers' Compensation Act is defined as
incapacity because of injury to earn the wages which the employeewas receiving at the time of injury in the same or any other
employment. N.C. Gen. Stat. § 97-2(9) (2005). 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
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.
, 168 N.C. App. 377, 380-81, 607
S.E.2d 348, 351 (2005) (citation omitted). 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) (citations omitted). Defendant challenges whether competent evidence of record
supports several of the Commission's factual findings with respect
to the Commission's conclusion that plaintiff has an ongoing
disability as a result of his 18 January 2004 work-related injury.
Dr. Lehman, who testified as an orthopedic surgeon and who
specializes in the treatment of spinal injuries,
not able to go back to . . . work at General
Tire. They don't have any alternative job
activity. Basically Mr. McDaniel does not have
any transferrable skills. He can't go into
heating and air conditioning, carpentry or
anything else. So basically it would appear at
this point that he is unemployable.
Further, plaintiff testified to the fact that he is not certain as
to what type of continuing treatment he will need. Plaintiff also
There's nothing I can do. I mean - I mean my
neck hurts all the time. There's no lifting I
can do, sitting bothers me, standing bothers
me. I mean you know, it's just - arm- if I do
- do a lot of lifting or moving or anything
like that, it just - I get a tingling
sensation down my arms. I mean there's nothing
I can do.
Here, the Commission made no findings regarding the nature of
plaintiff's disability or its extent. The Commission found that
at this time plaintiff is unemployable until such time as he
receives a functional capacity evaluation and/or vocationalrehabilitation but that he has not reached MMI and remains
temporarily disabled and that although plaintiff continues to be
unemployed as a result of the work related injury of January 18,
2004[, he] has not looked for other employment. However, the
Commission made no detailed findings as to plaintiff's pain,
including his physical injuries and limitations, or as to any of
factors. Because the Commission's findings
facts upon which the right to compensation depends
to enable us to determine the rights of the parties, the case must
be remanded to the Commission for proper findings of fact. Lawton
at 592, 355 S.E.2d at 160.
Reversed and remanded.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
Facet blocks are injections of cortisone in the back used to
alleviate tightness at the vertebrae above and below the
plaintiff's spinal fusions that resulted from a previous injury to
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