561525.doc

I.C. NO. 561525, KAREN BUCHANAN, Employee, Plaintiff v. VALDESE GENERAL HOSPITAL, Employer, KEY RISK INSURANCE COMPANY, Carrier, Defendants.  OPINION AND AWARD by CHRYSTAL REDDING STANBACK, Deputy Commissioner, N.C. Industrial Commission.  Filed 24 August 2007.



	This matter was heard by the undersigned on November 2, 2006 in Morganton, North Carolina.  Following receipt of the deposition transcripts of the depositions of Dr. Ralph Maxy, Dr. Andrew Rudins and Dr. Kenneth Smith, and briefs and contentions by the parties, the record was closed, and this matter is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Law Office of Gary A. Dodd, Asheville, North Carolina; Gary A. Dodd, Counsel of Record.

	Defendants:	McAngus, Goudelock & Courie, P.L.L.C., Attorneys, Charlotte, North Carolina; Kara L. Sharrard, Counsel of Record.

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The undersigned finds as fact and concludes as matters of law the following, which were entered into as:
STIPULATIONS
1.	The date of injury that is the subject of this claim was on August 26, 2005.
2.	Both parties are bound by the North Carolina Workers' Compensation Act.
3.	An employer/employee relationship existed between Employer-Defendant and Plaintiff at all relevant times.
4.	The average weekly wage at the time of Plaintiff's injury would be determined by Deputy Commissioner Stanback, based upon the Form 22 entered into evidence at the hearing.
5.	Documents stipulated into evidence include the following:
Stipulated Exhibit #1 - Pre-Trial Agreement, Plaintiff's med records, Industrial Commission Form 22, Industrial Commission Forms, attachments and orders
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Based upon the greater weight of the competent and credible record of evidence in this matter, the undersigned makes the following:
FINDINGS OF FACT
1.	On August 26, 2005, while working as a certified nurse's assistant with Employer-Defendant, Plaintiff sustained an injury by accident to her back.  Specifically, Plaintiff felt a burning sensation to her back as she attempted to lift a patient from the floor.  Defendants accepted Plaintiff's claim as compensable, pursuant to filing a Form 60 with the Industrial Commission on November 7, 2005.
2.	Plaintiff is currently receiving ongoing temporary total disability benefits in the amount of $300.55 per week.  Defendants have also provided Plaintiff with all recommended medical treatment related to her compensable back injury.
3.	Plaintiff initially received treatment from Dr. McGuire, who eventually referred her to orthopedic surgical specialist, Dr. Ralph Maxy.  Plaintiff's first visit with Dr. Maxy occurred on September 28, 2005, where Dr. Maxy determined that an MRI previously taken of Plaintiff's spine either revealed a disc herniation at the right side or a disc protrusion to the right at L5-S1.  Based on these findings and a physical examination, Dr. Maxy recommended that Plaintiff either proceed with epidural steroid injection treatments or surgical intervention.  Plaintiff opted to proceed with surgery, and received such treatment on October 26, 2005.
4.	Plaintiff was discharged from the hospital on October 28, 2005 following surgery, however, continued to complain of pain that was mainly concentrated her low back.
5.	Due to Plaintiff's continued complaints of pain and to increase her functionality, Dr. Maxy referred Plaintiff for physical therapy treatments.
6.	Plaintiff attended only two of her scheduled sessions of physical therapy, claiming that she was unable to continue with further treatments because she was experiencing ongoing back and bilateral lower extremity pain, in addition to swelling and numbness.
7.	Dr. Maxy also referred Plaintiff to a work hardening program, for which Plaintiff underwent a different type of treatment designed to increase her functional level to the point that she would be able to return to her former employment.
8.	Plaintiff began the work hardening program the week of January 23, 2006, for which she attended five consecutive treatments.  However, Plaintiff failed to attend her next thirteen scheduled visits and was subsequently discharged from the program.
9.	Although Plaintiff complained of bilateral knee pain, Dr. Maxy's records did not indicate that Plaintiff ever complained to him of these problems.  Despite Plaintiff's testimony to the contrary, there was nothing in Dr. Maxy's records or in the physical therapy records he was provided to indicate that Plaintiff suffered from such pain while attending her therapy treatments.  If Plaintiff would have informed Dr. Maxy or her physical therapist of her alleged knee problems, her work conditioning program or treatment plan could have either been modified or changed to accommodate Plaintiff.
10.	On February 22, 2006, Dr. Maxy released Plaintiff to return to full duty work effective February 27, 2006.  On March 22, 2006, Dr. Maxy again released Plaintiff from his care without any work restrictions with a six percent permanent partial disability rating to her back.
11.	As reason for his release of Plaintiff back to work without restrictions as of February 27, 2006, Dr. Maxy noted the lack of any objective findings to document or explain Plaintiff's continued complaints of back pain.
12.	Prior to her release to return to work without restrictions by Dr. Maxy, Plaintiff presented to her family practitioner, Dr. Kenneth Smith.  Plaintiff had been a patient of Dr. Smith's since the mid-nineties.
13.	In January of 2006, Plaintiff presented to Dr. Smith for treatment of bilateral knee pain. Prior to that time period, Plaintiff had a history of intermittent knee pain for the previous two years that progressively worsened.
14.	Plaintiff made no documented reports to Dr. Smith that she injured her knees while in physical therapy.
15.	Although he had diagnosed other patients with fibromyalgia in the past, Dr. Smith never diagnosed Plaintiff with the condition.
16.	With regard to fibromyalgia, Dr. Smith testified there are even some physicians who do not believe that the condition exists. The undersigned is not making a finding that fibromyalgia does not exist.
17.	During her treatment with Dr. Smith for her bilateral knee condition, Plaintiff also treated with Dr. David Cappiello.  Plaintiff initially presented to Dr. Cappiello for an orthopedic consultation on February 8, 2006 after a referral from Dr. Smith.
18.	Following his examination of Plaintiff's bilateral knees and a review of x-rays, Dr. Cappiello found that Plaintiff had an internal derangement with possible meniscal tears and ordered an MRI.  Following an MRI on February 23, 2006, Dr. Cappiello diagnosed Plaintiff with a tear of the medial meniscus and recommended she undergo an arthroscopic partial medical meniscectomy.  However, Plaintiff had not undergone this procedure as of the date of the hearing of this matter.
19.	On October 3, 2006, pursuant to a referral from her counsel, Plaintiff presented to Dr. Andrew Rudins for an independent medical examination.
20.	With regard to Plaintiff's back condition, Dr. Rudins opined that it was related to her August 26, 2005 work injury.  Dr. Rudins also testified that Plaintiff's back condition may improve with further progression of the physical therapy program or epidural injections to the area.  Dr. Rudins ultimately assigned a seven percent permanent partial impairment rating to Plaintiff's back.
21.	Dr. Rudins diagnosed Plaintiff with fibromyalgia.  Dr. Rudins testified that he believed Plaintiff's back injury at least partially triggered Plaintiff's development with fibromyalgia, since Plaintiff did not have symptoms of the condition prior to her injury.
22.	With respect to Plaintiff's knees, she complained to Dr. Rudins that her physical therapy sessions for her back caused pain to that area.  However, since he admittedly did not perform any diagnostic testing of Plaintiff's knees during Plaintiff's physical examination, Dr. Rudins was unable to provide an opinion to a reasonable degree of medical certainty as to the condition of Plaintiff's knees.
Despite receiving a full duty release from Dr. Maxy, Plaintiff has made no attempt to secure employment.
As plaintiff's ongoing treating physician for her injuries, the undersigned gives greater weight to the opinions expressed by Dr. Maxy.
The undersigned further does not make a finding with regards to the average weekly wage, which shall remain as the parties have previously paid benefits.
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Based upon the foregoing stipulations and findings of fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1.	N.C. Gen. Stat. §97-2(9) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment."  In workers' compensation cases, claimants ordinarily have the burden of proving both the existence of his disability and its degree.  Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766 (1982).
2.	In this case, Defendants filed a Form 60 accepting Plaintiff's August 26, 2005 injury by accident.  As North Carolina courts have consistently held that a Form 60 does not create a presumption of disability where filed to accept compensability, Defendants' filing of a Form 60 did not create a presumption of disability.
3.	In order to support a conclusion of disability, the Commission must find:  (1) the 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.
4.	The burden of establishing that the employee is unable to earn the same wages he had before the injury, either in the same or different employment, is upon the Plaintiff.  Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993):
5.	The burden of establishing that the employee is unable to earn the same wages he had before the injury, either in the same or different employment, is upon the Plaintiff.  The 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 pre-existing 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. employee not only must prove an inability to earn wages, but also that this incapacity to earn wages was caused by the work related injury.  Arrington v. Texfi Indus., 123 N.C. App. 476, 473 S.E.2d 403 (1996).
6.	In considering the medical evidence presented in this case, Plaintiff failed to establish that she is physically or mentally, as a consequence of the work related injury, incapable of work in any employment.  Instead, the competent medical evidence indicates that the Plaintiff is able to return to work without restrictions.  Therefore, Plaintiff failed to offer a preponderance of evidence and carry her burden of proving disability under the first method outlined in Russell, as the competent medical evidence of record does not establish that Plaintiff is medically incapable of working in any employment.
7.	Additionally, there is no medical evidence to prove that Plaintiff's pre-existing knee condition affected her ability to work.  Therefore, Plaintiff's assertions that she aggravated or accelerated her preexisting bilateral knee condition as a result of her treatment for her back injury, and that she is unable to work as a result, are incredible.
8.	Plaintiff has provided insufficient evidence for the Commission to find that Plaintiff has fibromyalgia.  As in the North Carolina Supreme Court case, Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000), Dr. Rudins' related Plaintiff's fibromyalgia condition to her compensable injury because she had no symptoms referable to fibromyalgia prior to the onset of her compensable injury.  Also as in Young, when questioned about the diagnosis of fibromyalgia, both Dr. Rudins and Dr. Smith agreed that there are no objective tests available to the medical community to determine whether one suffers from fibromyalgia.  Finally, with regard to his diagnosis of Plaintiff with fibromyalgia, Dr. Rudins did not perform any objective testing to rule out other forms of rheumatoid disease or illness that could account for the plaintiff's symptoms.  Therefore, Dr. Rudins' determination that Plaintiff's fibromyalgia was caused by her compensable work accident was based on mere speculation, and is found as incompetent and insufficient in establishing causation.
9.	Since there is an absence of any medical evidence to prove that Plaintiff's bilateral foot pain or knee complaints were aggravated or accelerated to the point to affect her ability to work, Plaintiff has not presented sufficient evidence that any pre-existing conditions cause her to be incapable of work.
10.	Plaintiff has failed to meet her burden of proving disability.
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The foregoing findings of fact and conclusions of law result in the following:
O R D E R
Plaintiff is no longer entitled to ongoing temporary total disability benefits, as she is not "disabled" under the North Carolina Workers' Compensation Act.
Furthermore, Defendants are entitled to a credit for all temporary total disability benefits issued to Plaintiff after February 27, 2006, the date Plaintiff was released to full duty activities by Dr. Maxy.
Defendants shall pay the costs.
IT IS FURTHER ORDERED that this case is hereby REMOVED from the Morganton hearing docket.



			S/			
CHRYSTAL REDDING STANBACK
DEPUTY COMMISSIONER

I.C. No. 561525	Page 9