491013.doc

I.C. NO. 491013, JAMES F. SAUL, Employee, Plaintiff v. TRANSPORT SYSTEM, INC., Employer, U.S. FIDELITY AND GUARANTY INSURANCE CO. (GALLAGHER BASSETT, Third-Party Administrator), Carrier, Defendants.  OPINION AND AWARD by BRADLEY W. HOUSER, Deputy Commissioner, N.C. Industrial Commission.  Filed 23 May 2006.



	This case was heard before the undersigned in Winston-Salem on 17 November 2005.  Subsequent to the hearing, the record remained open to permit the parties to submit depositions and additional documentary evidence.  The parties have since submitted the depositions of Dr. Todd A. Cassel and Dr. Ken W. Smith, which are admitted into the record, along with Contentions and a proposed Opinion and Award.  The record in this matter was duly closed on 8 May 2006.  This matter is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Walden & Walden, Attorneys, Winston-Salem, NC; Daniel S. Walden, appearing.

	Defendants:	Robinson & Lawing, Attorneys, Winston-Salem, NC; W. Mark Peck, appearing.

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EVIDENTIARY MATTERS
	At the hearing, plaintiff submitted the following:
a.	A Job Evaluation dated 15 November 2003, which was admitted into the record, and marked as Plaintiff's Exhibit (1);
b.	A Job Evaluation dated 13 February 2004, which was admitted into the record, and marked as Plaintiff's Exhibit (2);
c.	Defendants' Responses to Plaintiff's First Set of Interrogatories and Request to Produce Documents, which were admitted into the record over Defendants' Objection, and collectively marked as Plaintiff's Exhibit (3);
d.	Defendants' Amended Responses to Plaintiff's First Set of Interrogatories and Request to Produce Documents, which were admitted into the record over Defendants' Objection, and collectively marked as Plaintiff's Exhibit (4);
e.	Defendants' Supplemental Response to Plaintiff's First Set of Interrogatories and Request to Produce Documents dated 16 June 2005, which was admitted into the record over Defendants' Objection, and marked as Plaintiff's Exhibit (5);
f.	Defendants' Supplemental Response to Plaintiff's First Set of Interrogatories and Request to Produce Documents dated 30 June 2005, which was admitted into the record over Defendants' Objection, and marked as Plaintiff's Exhibit (6);
g.	A Copy of a Correspondence from Counsel for Defendants dated 6 July 2005, which was admitted into the record, and marked as Plaintiff's Exhibit (7);
h.	Plaintiff's Wife's Drivers' Daily Log from 10 December 2004, which was admitted into the record, and marked as Plaintiff's Exhibit (8);
i.	A Communication From Plaintiff's Wife dated 11 December 2004, which was admitted into the record, and marked as Plaintiff's Exhibit (9);
j.	Plaintiff's Work History, which was admitted into the record, and marked as Plaintiff's Exhibit (10);
k.	The Transcript of Plaintiff's Recorded Statement, which was admitted into the record, and marked as Plaintiff's Exhibit (11), and;
l.	Correspondence from Plaintiff to Defendant-Employer dated 7 January 2005, which was admitted into the record, and marked as Plaintiff's Exhibit (12).
	Also at the hearing, defendants submitted the following:
a.	A U.S. Department of Transportation Regulation Receipt Acknowledgement Form, which was admitted into the record, and marked as Defendants' Exhibit (1);
b.	A Notice To Drive and Certificate of Compliance Form, which was admitted into the record, and marked as Defendants' Exhibit (2);
c.	A Copy of Defendant-Employer's Independent Contractor/Lease Operators Safety and Operation Handbook, which was admitted into the record, and marked as Defendants' Exhibit (3);
d.	A Copy of Defendant-Employer's Certification Questionnaire For Independent Contractor/Lease Driver, which was admitted into the record, and marked as Defendants' Exhibit (4);
e.	Plaintiff's Driver's Log dated 9 December 2004, which was admitted into the record, and marked as Defendants' Exhibit (5);
f.	An Investigative Report dated 17 August 2005, which was admitted into the record for illustrative purposes only, and marked as Defendants' Exhibit (6a) and an Investigative Report dated 27 August 2005, which was admitted into the record for illustrative purposes only, and marked as Defendants' Exhibit (6b);
g.	A Surveillance Video, which was admitted into the record for illustrative purposes only, and marked as Defendants' Exhibit (7);
h.	A MVR Report, which was admitted into the record for illustrative purposes only, and marked as Defendants' Exhibit (8);
i.	An Annual Inspection Report, which was admitted into the record, and marked as Defendants' Exhibit (9), and;
j.	A Packet of RO History Workcards, which was admitted into the record, and marked as Defendants' Exhibit (10).
The objections made in the depositions of Dr. Cassel and Dr. Smith are OVERRULED.
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The undersigned finds as facts and concludes as matters of law the following which were entered into by the parties prior to and at the hearing, and in a Pre-Trial Agreement which was admitted into the record, and marked as Stipulated Exhibit (1) as:
STIPULATIONS
1.	The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
	2.	Defendant-employer is a North Carolina corporation based in Greensboro, North Carolina.  Defendant-employer is engaged in the business of providing common and contract carrier services throughout the continental United States.  On 8 August 2003 defendant-employer entered into an Independent Contractor Agreement with an individual, Pamela D. Saul.  Pamela D. Saul is the wife of plaintiff James F. Saul.  The parties agree that for the purpose of this matter, on 10 December 2004 defendant-employer was a "principal contractor" as that phrase is used in N.C. Gen. Stat. §97-19.1.
	3.	As of 10 December 2004 the worker's compensation carrier on the risk for defendant-employer was U.S. Fidelity and Guaranty Insurance Co. ("USF&G") with Gallagher Bassett Services, Inc., serving as third-party administrator.
	4.	The parties agree that for the purpose of this matter on 10 December 2004, plaintiff's James F. Saul was an "employee or subcontractor" of Pamela D. Saul as those terms are used in N.C. Gen. Stat. §97-19.1.
	5.	In the period including 10 December 2004 defendant-employer paid insurance premiums to USF&G to cover Pamela Saul and James Saul under the workers' compensation insurance policy between defendant-employer Transport and USF&G.
	6.	Plaintiff alleges that at about 1:00 a.m. on 10 December 2004 he sustained a compensable injury by accident to his neck, middle back between his shoulder blades, and low back arising out of and in the course of his duties as an "employee or subcontractor" for Pamela D. Saul.  Defendants deny plaintiff's allegations.
	7.	Plaintiff stipulates that on 10 December 2004, defendant-employer's Mike Stevens in a meeting at defendant-employer's facility notified plaintiff that he was no longer qualified as a driver for defendant-employer for a reason or reasons completely unrelated in any way to plaintiff's claim or allegation of an injury on 10 December 2004 or any other time.
	8.	Plaintiff' stipulates that defendant-employer's decision to disqualify plaintiff as a driver for defendant-employer was based on defendant-employer' determination of plaintiff's prior fault or misconduct for which another driver or employee would originally have been disqualified or terminated.
	9.	Plaintiff stipulates that he was treated no differently concerning his being discharged from defendant-employer than any other driver would have been treated in similar circumstances.
	10.	Plaintiff stipulates that defendant-employer's decision to discharge him was completely lawful, and he does not challenge the discharge as being improper or wrongful in any way.
	11.	Plaintiff's average weekly wage as of 10 December 2004 was $625.87, which yields a compensation rate of $417.27.
	12.	At and subsequent to the hearing, the parties submitted a Packet of Medical Records, which was admitted into the record, and marked as Stipulated Exhibit (2) and a Packet of Documents Relating to Industrial Commission Proceedings, which was admitted into the record and marked as Stipulated Exhibit (3).
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	Based upon the foregoing Stipulations and evidence of record, the undersigned enters the following:
FINDINGS OF FACT
	1.	As of the hearing date, plaintiff was forty-nine (49) years of age, with his date of birth being 15 March 1957.  Plaintiff attended school through fourth grade.  Plaintiff's employment history includes working as a laborer for a construction company from 1976 to 1981.  In that capacity, plaintiff moved brick, blocks and mortar used by masons.  In 1981, plaintiff began working as a mechanic for an automobile dealership.  In that capacity, plaintiff was routinely required to reach and bend into and under automobiles and to lift as much as fifty (50) pounds.  Around this same time, plaintiff also rented land, raised and graded tobacco and transported it to market.  Plaintiff performed this farming work for approximately twelve (12) years.
	2.	Prior to this claim, plaintiff received treatment for a degenerative condition in his neck.  In 1992, plaintiff injured his neck and left arm working as an automobile mechanic in Tennessee.  Following this incident, plaintiff was diagnosed as having a ruptured disc on the left side at the C5-6 level as well as extensive spondylitic changes in the cervical area, and foraminal stenosis at the C6-7 level.  For these conditions, plaintiff received non-surgical treatment and in September 2003 was able to return to his pre-injury work duties as a mechanic.  On 27 March 1995, plaintiff reported to his treating physician in Tennessee that he continued to experience periodic flare-ups of neck pain that radiated into his left arm.  Although his treating physician expressed some concern about the possible continued degeneration of his neck condition, plaintiff declined further treatment and continued performing his then regular duties.
	3.	At the hearing, plaintiff testified that from March 1995 to December 2004, he did not seek additional treatment for his neck condition and that he had not experienced pain of any kind.  However, the plaintiff's medical records reflect that he sough treatment for neck pain and upper extremity numbness on 11 January 2000.  The medical records further reflect that plaintiff reported that he experienced neck pain often and that it was related to his longstanding cervical disk problems.  Defendants assert that this inaccuracy in plaintiff's testimony is indicative of an overall lack of credibility regarding this claim.  However, the undersigned finds that such testimony by a claimant who believes they have sustained some type of occupationally related injury or disease is reasonable as an attempt to bolster what otherwise might already be a compensable claim, and is not determinative or indicative as to a claimant's, or plaintiff's overall credibility.  Plaintiff's testimony on other issues is accepted as credible.
4.	In August 2003, defendant-employer approved plaintiff and his wife Mrs. Pamela D. Saul to transport freight in interstate commerce.  At that time, Mrs. Saul enrolled herself and plaintiff in a worker's compensation insurance policy made available by defendant-employer which deducted the premiums from the monies earned by her.
	5.	In February 2004, defendant-employer completed a driver education review concerning plaintiff's work performance and assigned him the rating of "superior" in all areas of performance.
	6.	At approximately 1:00 a.m. on 10 December 2004, Mrs. Saul drove the tractor pulling defendant-employer's trailer into its Greensboro terminal.  Because she was tired and it was raining, Mrs. Saul requested that plaintiff, who had been sleeping, unhook the trailer from the tractor.  Plaintiff then drove to a location where he could unhook the trailer.  At that location, plaintiff pulled the landing gear handle located on the side of the trailer in an effort to lower the landing gear, but the handle was stuck.  With the handle not moving, plaintiff then bent over with his arms extended and jerked, pushed and pulled the handle harder than normal in order to loosen the landing gear.  As he did so, plaintiff experienced the immediate onset of pain in his low back and into his right leg, as well as in the center of his spine between his shoulders, extending into both arms.  Despite this pain, plaintiff completed the task and then took an Ibuprofen.
7.	Following the incident on 10 December 2004, plaintiff and Mrs. Saul spent the night in the tractor at the terminal because Mr. Mike Stevens, plaintiff's supervisor, had scheduled a meeting with them for 8:00 a.m. later than morning.  At that meeting Mr. Stevens informed plaintiff that he was no longer qualified as a driver because he had earlier been charged with reckless driving while pulling one of defendant-employer's trailers.  Plaintiff asserts that because this news was upsetting, he and his wife left the brief meeting and returned home without having notified defendant-employer of the stuck landing gear or any injury.
	8.	Later during 10 December 2004, plaintiff's back pain grew worse, as it did the following day.  With these increased symptoms, on 11 December 2004, Mrs. Saul sent a written message to defendant-employer, notifying it that plaintiff had injured his back the prior day while jerking a stuck landing gear handle and that she was transporting plaintiff to the hospital.
	9.	On 11 December 2004 plaintiff sought treatment at a nearby hospital where he complained of pain between his shoulder blades, running down his back into his right leg due to freeing a trailer landing gear which had become hung.
	10.	In a 15 December 2004 recorded statement, and again in writing on 7 January 2005, plaintiff explained to defendants the circumstances of the injury he sustained in the early morning of 10 December 2004.  In the recorded statement, plaintiff reported experiencing pain in his low back, between his shoulders, down his right leg, and out both arms following the events of 10 December 2004.
	11.	In the period 13 December 2004 through 27 January 2005 plaintiff was examined by his primary care physician Dr. Todd A. Cassel on five occasions for his neck and low back pain and radiating pain into his arms.  A January 2005 lumbar MRI revealed that plaintiff had a degenerated disc at the L5-S1 level of his spine.  For plaintiff's symptoms, Dr. Cassel prescribed rest and pain medication.  Dr. Cassel has opined that plaintiff's pain complaints were genuine and that he was unable to work in nay capacity due to his neck and low back condition.  Dr. Cassel also referred plaintiff to Dr. Ken W. Smith, a neurosurgeon, for evaluation and treatment.
	12.	In the period of February through August 2005, Dr. Smith evaluated plaintiff on four occasions and had plaintiff undergo lumbar and cervical myelograms.  Dr. Smith has opined that plaintiff's reports of pain in his neck pain, both arms, with the left arm being worse than right, and his low back pain, were genuine.  Dr. Smith has further opined that plaintiff was unable to work in any capacity due to his low back and neck conditions.  For treatment, Dr. Smith has recommended that plaintiff would benefit from a C5-6 anterior cervical discectomy and fusion operation but not from any low back surgery.  To date, plaintiff has not undergone the recommended neck surgery because of an inability to pay for the procedure.
13.	The circumstances of plaintiff's injury on 10 December 2004 constituted an interruption of plaintiff's regular work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences.
14.	Plaintiff has produced sufficient evidence that he sustained his back injury on 10 December 2004 at a judicially cognizable time.
15.	On 10 December 2004, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer.  In the alternative, on 10 December 2004, plaintiff sustained an injury by accident in the form of a specific traumatic incident work assigned.
16.	Dr. Smith has opined, and the undersigned so finds, that plaintiff's 10 December 2004 injury by accident was a significant causal factor in the material aggravation of his pre-existing, non-disabling, non-job-related neck and lower back conditions resulting in his continued pain symptoms.
	17.	Defendants have produced sufficient evidence upon which to find that plaintiff was terminated for causes unrelated to his compensable injury for which a non-injured employee would ordinarily have been terminated.  However, plaintiff has produced sufficient evidence upon which to find that his inability to earn wages in any employment beginning on
11 December 2004 is due to his work-related injury by accident.
18.	Based upon the credible medical and vocational evidence of record and as the result of his 10 December 2004 injury by accident, plaintiff has been unable to earn any wages in his former position with defendant-employer or in any other employment for the period of 11 December 2004 through the present.
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	Based upon the foregoing Stipulations and Findings of Fact, the undersigned concludes as follows:
CONCLUSIONS OF LAW
1.	On 10 December 2004, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer.  N.C. Gen. Stat. §§97-2(6); 97-19.1.  In the alternative, on 10 December 2004, plaintiff sustained an injury by accident in the form of a specific traumatic incident work assigned.  Id.; Fish v. Steelcase Inc., 116 N.C. App. 703, 449 S.E.2d 233 (1994) cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995).
	2.	Defendants have produced sufficient evidence upon which to conclude that plaintiff was terminated for causes unrelated to his compensable injury for which a non-injured employee would ordinarily have been terminated.  Seagraves v. Austin Co., 123 N.C. App. 228, 472 S.E.2d 397 (1996).  However, plaintiff has produced sufficient evidence upon which to conclude that his inability to earn wages in any employment beginning on
11 December 2004 is due to his work-related injury by accident.  Id.
3.	Based upon the credible medical and vocational evidence of record and as the result of his 10 December 2004 injury by accident Plaintiff is entitled to compensation at the rate of $417.27 per week from 11 December 2004 through the present and continuing until such time as he returns to work or further Order of the Commission.  N.C. Gen. Stat. §97-29.
	4.	Defendants shall pay for all related medical expenses incurred or to be incurred by plaintiff as a result of his 10 December 2004 injury by accident, including all tests of plaintiff's neck, middle back, low back, arms and legs, and the neck surgery proposed by Dr. Ken Smith and the ongoing conservative pain management by Dr. Cassel, but subject to the provisions of N.C. Gen. Stat. §97-25.1.  N.C. Gen. Stat. §§97-25; 97-25.1.
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	Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned enters the following:
A W A R D
	1.	Defendants shall pay compensation to plaintiff for temporary total disability at the rate of  $417.27 per week from 11 December 2004 through 2004 through the present and continuing until such time as he returns to work or further Order of the Commission.  That portion of the compensation that has accrued shall be paid in a lump sum.  This award is subject to an attorney's fee hereafter approved.
	2.	Defendants shall pay for all related medical expenses incurred or to be incurred by plaintiff as a result of his 10 December 2004 injury by accident, including all tests of plaintiff's neck, middle back, low back, arms and legs, and the neck surgery proposed by Dr. Ken Smith and the ongoing conservative pain management by Dr. Cassel, but subject to the provisions of N.C. Gen. Stat. §97-25.1.
3.	A reasonable attorney's fee of twenty-five percent (25%) of the compensation awarded herein is approved for counsel for plaintiff.  From the compensation having accrued, this fee shall be deducted from the amounts due plaintiff and paid directly to counsel for plaintiff, with counsel for plaintiff receiving every fourth check thereafter.
	4.	Defendants shall pay the costs.
	IT IS FURTHER ORDERED that this matter is HEREBY REMOVED from the Deputy Commissioner level hearing docket.



			S/			
BRADLEY W. HOUSER
DEPUTY COMMISSIONER

I.C. NO. 491013	PAGE 13

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