Administratrix of the
Estate of HAROLD
From the North Carolina
CMS HOLDINGS COMPANY, I.C. No. 221263
LEGION INSURANCE COMPANY,
(c/o COMPFIRST, Third-Party
Crumley & Associates, P.C., by J. William Snyder, Jr. and
Kathleen Quinn DuBois, for plaintiff-appellant.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Matthew D. Glidewell and M. Duane Jones, for defendant-appellees.
HUNTER, Judge. Harold Halloway
(See footnote 1)
(plaintiff or employee) appeals an
opinion and award by the Full Industrial Commission (Commission)
in which it granted him benefits from 9 January 2002 through 14
January 2002 but denied benefits thereafter. After careful
consideration, we affirm.
Plaintiff was a thirty-eight year old who was employed as an exterior door builder for CMS Holdings Company (See footnote 2) (defendant or employer). His primary duties consisted of assembling and fabricating exterior doors, and his immediate supervisor was Gary Patrick (Patrick). At the time of the injury, plaintiff reported an approximate average weekly wage of $320.00. During the course of this litigation, plaintiff died due to causes unrelated to the disposition of this case. (See footnote 3)
Plaintiff alleged that his injury occurred on or about 9 January 2002 while performing responsibilities related to his job. According to plaintiff, as he was lifting a door he felt something in his back pop and felt immediate pain in his lower back and right leg. Plaintiff states that he attempted to report the injuryto various people but did not report it to Patrick. Plaintiff left defendant's workshop without clocking out but the time card for the day indicates a hand-written entry showing that he left the workshop at 9:00 a.m.
The following day, on 10 January 2002, plaintiff went to the emergency department of the North Wilkes Regional Medical Center. There, plaintiff received injections to his back and was provided with prescription pain medications. Plaintiff was to follow up with Dr. McMahon, an internist. Plaintiff alleges that he was instructed to stay out of work until the following week.
Defendant's response to interrogatories indicate that plaintiff worked on 9 January 2002, 14-15 January 2002, and 17-18 January 2002. Plaintiff, however, testified that he did not work at all after the date of his injury. Dr. Louis Yancich (Dr. Yancich), plaintiff's primary care physician, provided plaintiff with a copy of a note to give to Patrick which indicated that plaintiff could perform light duty type work. Patrick, according to plaintiff, fired plaintiff after receiving the note. Defendant claims that plaintiff was terminated based on multiple unexcused absences during the month of January 2002. The termination became effective on 24 January 2002.
On 7 February 2002, plaintiff saw Dr. David L. Kelly, Jr. (Dr. Kelly), for evaluation of his back and for pain that had developed in his left leg. After a physical exam and an MRI, Dr. Kelly diagnosed plaintiff with a herniated disk at L4-L5 with an extruded fragment, and he advised plaintiff that he would needsurgery to remove the disk. On 13 February 2002, Dr. Kelly performed a lumbar laminectomy at the L4-L5 level on plaintiff to remove the disk.
During the deposition, Dr. Kelly was asked to assume that plaintiff had no clinically significant back problems before 8 January 2002, and that on that date he and a co-worker were lifting a door weighing over 100 pounds, when plaintiff felt a pop in his back. Assuming those facts, Dr. Kelly testified that it 'sound[s] like that injury could have caused his disc to rupture.' On cross-examination, Dr. Kelly testified that he was unsure as to how reliable plaintiff's medical history was and that it was not consistent with his own notes nor the emergency room records from 10 January 2002. Defense counsel asked Dr. Kelly the following:
Given all of what we've talked about here today and the evidence that's been put in front of you including Mr. Snyder's hypothetical, can you actually say that more likely than not the symptoms with which you _ or for which you treated . . . [plaintiff] were related probably, more likely than not, to an incident that happened on January 9th, 2002; or are you more comfortable opining that you just don't know or you can't give it?
Dr. Kelly responded, 'I can't answer the question.'
According to plaintiff, he was unable to obtain employment because of residual back and leg pain after the surgery. Plaintiff died on 29 July 2003 due to injuries sustained during a car accident unrelated to this case.
A deputy commissioner filed an opinion and award approving employee's claim as compensable and awarding benefits due up until the death of plaintiff. Defendant appealed this award to the FullCommission (the Commission) which affirmed the deputy's decision that plaintiff suffered a compensable injury and was entitled to benefits from 9 January 2002 to 14 January 2002 but reversed the deputy's decision to provide benefits to plaintiff after 14 January 2002. Plaintiff appeals from this order.
Plaintiff presents the following issues for review by this Court: (1) whether the Commission erred by placing the burden of proof upon plaintiff to prove that his medical condition after 14 January 2002 was caused by a work related injury on 9 January 2002; and (2) whether the Commission erred in concluding that plaintiff was not disabled for longer than the seven-day waiting period following the alleged injury.
Our review of an opinion and award of the Commission is limited to a determination of: (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its conclusions of law. Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). If supported by competent evidence, the Commission's findings are binding on appeal even when there exists evidence to support findings to the contrary. Allen v. Roberts Elec. Contr'rs, 143 N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001).
The Commission's conclusions of law are reviewed de novo. Id. at 63, 546 S.E.2d at 139. Accordingly, [w]hen the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legalstandard. Ballenger v. ITT Grinnell Industrial Piping, 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987).
In this case, plaintiff argues that the Commission erred in not following two of this Court's opinions. They do not, however, challenge the actual findings of fact or whether those findings were based on competent evidence. Accordingly, we limit our discussion to whether the Commission failed to follow precedent.
6. On January 14 and 15, 2002, decedent
returned to work for defendant-employer.
On January 16, 2002, decedent had an
unexcused absence from work, and on
January 17, 2002, decedent worked a full
day. On January 18, 2002, decedent
worked a half-day, and thereafter, did
not ever return to work for defendant-
employer. There is no evidence in the
record that any doctor took decedent out
of work on January 16, 21, or 22, 2002,and, thus, defendant-employer terminated
plaintiff for unexcused absences in
accordance with their attendance policy.
In other words, plaintiff, according to the Commission, was no longer disabled as of 14 January 2002. This was the same date in which plaintiff returned to work at full duty status -- that is, was no longer engaging in light duty work -- and plaintiff was not terminated until ten days later. Thus, plaintiff was no longer performing light duty work in connection with his compensable 9 January 2002 injury. Accordingly, it could not be said that plaintiff was terminated for constructive failure to perform light duty work.
We also note that the Commission has made adequate findings of fact to support this conclusion of law. Specifically, the Commission found that Dr. Kelly could not say whether plaintiff's injuries were caused by the 9 January 2002 incident, and that after 19 January 2002 any disability was not causally related to the 9 January 2002 incident. These findings of fact are supported by competent evidence -- the transcript from Dr. Kelly's deposition.
Furthermore, plaintiff concedes in his brief that if the Parson's presumption does not apply, as we have concluded it does not, then the Seagroves analysis is not appropriate. Accordingly, we reject plaintiff's assignments of error as to this issue.
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