172407.doc

I.C. NO. 172407, WILLIAM DAVIS, Employee, Plaintiff v. HARRAH'S CHEROKEE CASINO, Employer, LEGION INSURANCE COMPANY, Now Assigned to the N.C. INSURANCE GUARANTY ASSOCIATION, as Carrier; Defendants.  OPINION AND AWARD by KIM LEDFORD, Deputy Commissioner, N.C. Industrial Commission.  Filed 2 November 2004.



This case was heard before the undersigned in Franklin NC on January 23, 2004.  Following the hearing, the record was held open and the parties took the deposition testimony of Jewell Dugan Fischer, Guy Andrew Karcher, D.C. and Jon M. Silver, M.D. and those transcripts were received as evidence.  The parties have submitted their contentions and proposed opinions, and the record was closed on June 2, 2004.
A P P E A R A N C E S
	Plaintiff:	Lee & Smith, Attorneys, Spartanburg SC; Andrew D. Turman, appearing.

	Defendants:	Hedrick Eatman Gardner & Kincheloe, Attorneys, Charlotte NC; C. J. Childers, appearing.

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The undersigned finds as fact and concludes as matters of law the following which were entered into by the parties through the Pre-trial Agreement and at the hearing as
STIPULATIONS
1.	All parties are properly before the Industrial Commission and the Commission has jurisdiction of the parties and of the subject matter.
2.	All parties have been correctly designated and there is no question as to misjoinder or nonjoinder of parties.
3.	The parties to this action are subject to the Workers' Compensation Act.  The Plaintiff was an employee of Harrah's Cherokee Casino.
4.	The NC Guaranty Association is now the servicing agent.
5.	Plaintiff alleges he was injured during the course of his employment with Harrah's Cherokee Casino on May 26, 2001.
6.	Plaintiff-Employee's applicable average weekly wage at the time of the alleged injury was FOUR HUNDRED TWENTY-FOUR AND 63/100 DOLLARS ($424.63), which results in a compensation rate of TWO HUNDRED EIGHTY-THREE AND 09/100 DOLLARS ($283.09) (per post-hearing stipulation by the parties).
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Based upon the competent evidence of record, the undersigned makes the following additional
FINDINGS OF FACT
1.	The Plaintiff is a fifty-two year old male (date of birth 10-9-52) who was previously employed as a Games Technician with the Defendant Harrah's Cherokee Casino in Cherokee, North Carolina.  He began working for Harrah's in September 1998.  His job duties included repairing and performing preventative maintenance on the casino's gaming machines.
2.	Plaintiff's testimony shows that on or about May 26, 2001, he was lifting a thirty-five pound monitor from a machine when he felt a sharp pain in his lower back that radiated into his left leg.  He did not immediately report an accident or seek medical treatment, and continued to work his shift that day before leaving at his scheduled departure time.  Plaintiff testified that he did not report it at that time because he didn't think he had a serious injury.  The undersigned finds this testimony believable.
3.	Plaintiff continued to work for several weeks after the incident with increasing pain before seeking medical attention.  On June 26, 2001, Plaintiff went to Cherokee Indian Hospital with complaints of low back pain radiating into his left leg.  The hospital assessment mentions that Plaintiff works at the casino and moves machines.  The ER doctor held Plaintiff out of work pending further evaluation.
4.	After seeking medical treatment, near the end of July 2001, Plaintiff spoke with Jewell Fischer, benefits specialist for the Employer.  Plaintiff completed an application for FMLA and short-term disability benefits on July 25, 2001.  At that time, Plaintiff indicated on the application that his back injury was work-related.  The application was returned, and The Hartford demanded a determination by workers compensation prior to agreeing to pay Plaintiff his disability benefits.
5.	Around the beginning of July 2001, Plaintiff began to treat with Dr. Karcher, a chiropractor, who kept him written out of work.  Dr. Karcher ordered an MRI on August 20, 2001, which was interpreted to reveal a large herniated disc at L5S1.  Dr. Karcher referred Plaintiff to Mountain Neurology, where he was seen by Dr. Jon Silver.
6.	Dr. Silver examined Plaintiff and reviewed the MRI results on August 27, 2001.  Dr. Silver noted that the MRI showed "an extremely large central and left-sided disc herniation at L5-S1 causing severe stenosis" and that Plaintiff was "miserable with pain."  Therefore, Dr. Silver scheduled a laminectomy, which he performed on September 7, 2001.  The operative report indicates that this surgery was performed at the L5-S1 level.
7.	In April 2002, Plaintiff underwent additional surgery.  The medical records contain inconsistencies regarding the level at which these two surgeries were performed, and whether they were in fact at the same level.  These inconsistencies were not completely clarified by Dr. Silver's testimony, which also contains inconsistencies.  Ultimately, it appears that both surgeries were performed at the same level.
8.	Dr. Silver testified that Plaintiff had a "partially lumbarized S1, meaning there are only four true lumbar vertebrae."  Later in the deposition Dr. Silver explained that Plaintiff's "fifth lumbar vertebrae is congenitally fused to his first sacral vertebrae so that the work that was done was really all at that same level, the last mobile segment."  Dr. Silver further testified that "The lowest mobile disc space is the one where he had all the problems" and that Plaintiff had two surgeries at the same level.  Dr. Silver did not clarify whether that was at L4-5.
9.	Dr. Silver testified that the September 2001 surgery was performed at the L5-S1 level.  He stated that the second surgery was at a different level, L4-5, and then corrected himself to state that it was at the same level.  (Dr. Silver Depo. Pages 7, 17-18).  As noted above, this discrepancy was never satisfactorily resolved or explained within Dr. Silver's deposition.  The inference is that both surgeries were performed at L4-5, and that Dr. Silver's notes of the first surgery incorrectly reference L5-S1; the confusion perhaps due to the congenitally fused L5-S1.
10.	Following the first surgery, at his follow-up visit with Dr. Silver on October 29, 2001, Plaintiff reported he was doing well and was satisfied with the results of the surgery.  Dr. Silver found that Plaintiff had normal strength in his left leg.  Plaintiff had completed physical therapy and reported he was returning to his normal daily activities.  Plaintiff told Dr. Silver he was anxious to go back to work.  As a result, on October 29, 2001, Dr. Silver released Plaintiff to return to full employment, although he counseled Plaintiff to avoid heavy lifting.  Dr. Silver's notes show that he anticipated lifting all Plaintiff's restrictions after about 6 weeks.
11.	After being released by Dr. Silver, Plaintiff returned to full employment activities on October 31, 2001.  Plaintiff continued working until December 27, 2001.  Dr. Silver testified that Plaintiff called the office on November 7 reporting some leg pain, and Plaintiff testified that he had some leg pain.  Steroid medication was prescribed.  Otherwise, Plaintiff reported no problems to Dr. Silver, and continued to work.
12.	Sometime in late November or early December 2001, Plaintiff fell on a ramp outside his house.  He apparently slipped on two occasions, but fell only once.  He reported this fall to Dr. Silver at his follow-up visit on December 31, 2001.  Plaintiff reported that shortly after his fall, he began having severe problems with significant pain in his back and down his legs.  Another MRI showed no recurrent disc herniation, or other changes and Dr. Silver suspected nerve root irritation.  He took Plaintiff out of work, and recommended steroid injections and therapy.
13.	Dr. Silver opined that the Plaintiff's post-October 29, 2001 symptoms and further treatment was related to his fall at home on a ramp.  Until that fall, Plaintiff had done well post-surgically.  There is nothing in Plaintiff's medical record to indicate that his fall was caused by any weakness in his legs or anything related to the prior injury and surgery.  Dr. Silver's testimony fails to show that Plaintiff's fall at home is a direct and natural consequence of his work-related back injury.
14.	The Plaintiff's appointment with Dr. Silver in December 2001 was a regular follow-up to his surgery and is related to the original injury.  The steroid treatments and surgery preformed in 2002 cannot be determined to be related to the compensable back injury rather than the subsequent aggravation by an intervening fall at home.
15.	Plaintiff also had reported his fall at home on a ramp to Dr. Karcher.  Chiropractor Karcher did not have an opinion to any degree of medical certainty as to the cause of Plaintiff's post-October 29, 2001 complaints.
16.	Dr. Silver treated Plaintiff with steroid injections.  As of February 7, 2002, Dr. Silver released him to return to work 5 hours a day, noting that no light duty was available.  Plaintiff returned to work again, working fewer hours.
17.	On April 22, 2002, Dr. Silver performed a second surgery on Plaintiff, reflected in the medical records as a bilateral L4-5 hemilaminectomy and medial facetectomy.  Dr. Silver's testimony shows that the second surgery related to degenerative changes, and not to the work-related back injury.
18.	Even if the two surgeries were performed at the same level, as Dr. Silver later indicates in his testimony, both at L4-5, the evidence fails to establish that the second surgery was necessitated by Plaintiff's fall at work, rather than by the intervening fall at home.
19.	As a consequence of his back injury from the accident of May 26, 2001, Plaintiff was unable to earn wages in any employment from June 26, 2001 through October 31, 2001, during which time period, he is entitled to compensation for lost wages.
20.	The Plaintiff was paid short-term disability benefits under an Employer-funded plan.  The Defendants would be entitled to a credit for any benefits Plaintiff received under this plan against any compensation for disability that may be due.
21.	Plaintiff also purchased on his own supplemental insurance through AFLAC.  Since Plaintiff paid these premiums, the Defendants would not be entitled to a credit for any benefits Plaintiff has received from AFLAC.
22.	Dr. Silver assigned Plaintiff a ten percent permanent impairment rating to Plaintiff's back as of June 9, 2003.  Dr. Silver did not distinguish the impairment rating as between the different injuries and two different surgeries.  Plaintiff would be entitled to compensation for his impairment attributable to his injury at work and the first surgery.
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Based upon the foregoing stipulations and findings of fact, the undersigned enters the following
CONCLUSIONS OF LAW
1.	On or about May 26, 2001, the Plaintiff sustained a specific traumatic incident, arising out of and in the course of his employment with the Defendant Harrah's Cherokee Casino.  As a consequence, he injured his lower back, sustaining a herniated disc.  N.C. Gen. Stat. §97-2(6).
2.	Plaintiff's failure to give his employer written notice of his claim within 30 days of his specific traumatic incident is not a bar to his claim, where Plaintiff did not realize the seriousness of his injury and had not sought any medical treatment.  He gave his employer actual and written notice within a reasonable time after he first sought medical treatment.  The employer has not been prejudiced.  N.C. Gen. Stat. §97-22; Jones v. Lowe's Companies, Inc., 103 N.C. App. 73 (1991).
3.	As a consequence of his back injury, Plaintiff required medical treatment, including the surgery performed by Dr. Silver on September 7, 2001.  Defendants are responsible for payment of all such reasonably necessary medical treatment incurred by Plaintiff for the lower back injury, including said surgery, and follow-up to that surgery, at least through December 2001.  N.C. Gen. Stat. §§97-2(19), 97-25.
	4.	As a consequence of his back injury, Plaintiff was unable to earn wages in any employment and was temporarily totally disabled from June 26, 2001 through October 31, 2001.  Defendants are responsible for payment to Plaintiff of wage loss compensation at the rate of $283.09 per week during this period.  N.C. Gen. Stat. §97-29.
	5.	The Defendants are entitled to a credit against any compensation due for wage loss for benefits paid to Plaintiff under the employer-funded short-term disability plan.  Defendants are not entitled to a credit for any benefits paid to Plaintiff by AFLAC, which premiums were paid by the Plaintiff.  N.C. Gen. Stat. §97-42.
	6.	Plaintiff would be entitled to compensation for any permanent impairment to his back; however, the evidence fails to clearly establish what portion of the ten percent rating assigned by Dr. Silver is attributable to Plaintiff's compensable injury, as opposed to his subsequent fall.  Therefore, this issue is left open for future resolution, and the parties are urged to clarify this with Dr. Silver.  N.C. Gen. Stat. §97-31(23).
	7.	The greater weight of the evidence fails to support the Plaintiff's position that his ongoing back problems after he was released and returned to work in October 2001, were related to his original compensable back injury of May 26, 2001, rather than the intervening fall Plaintiff suffered at home in November or December 2001.  N.C. Gen. Stat. §97-2; Horne v. Universal Leaf Tobacco Processors, 119 N.C. App. 682 (1995).
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Based upon the foregoing stipulations, findings of fact and conclusions of law, the undersigned enters the following
A W A R D
1.	Defendants shall pay for all reasonably necessary medical treatment incurred by Plaintiff for the lower back injury he sustained on or about May 26, 2001, including the surgery performed by Dr. Silver in September 2001, and the post-surgical follow-up treatment with Dr. Silver, at least through December 2001.
2.	Defendants shall pay Plaintiff compensation for wage loss at the rate of $283.09 per week from June 26, 2001 through October 31, 2001.  Defendants may take a credit for benefits paid to Plaintiff under the Employer-funded short-term disability plan.  This amount has accrued and shall be paid in a lump sum.
3.	The issue of any award for Plaintiff's permanent impairment to his back is left open to allow the parties an opportunity to clarify the ten percent rating with Dr. Silver.
4.	A reasonable attorney's fee of twenty-five percent of the compensation awarded to Plaintiff is approved for his counsel and shall be deducted from the lump sum due Plaintiff, and paid directly to his counsel.
5.	Defendants shall pay the costs.
This case is Ordered Removed from the Franklin hearing docket.



			S/			
KIM LEDFORD
DEPUTY COMMISSIONER

I.C. No. 172407	Page 9

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