792671.doc

I.C. NO. 792671, BONNIE CAUDLE, Employee, Plaintiff v. DIEBOLD, INC., Employer, SELF-INSURED (BROADSPIRE, Third-Party Administrator), Defendant.  OPINION AND AWARD by JAMES C. GILLEN, Deputy Commissioner, N.C. Industrial Commission.  Filed 19 September 2008.



This matter was heard before the undersigned on 22 April 2008 in Greensboro, North Carolina.  Subsequent to the hearing, the parties also presented the testimony of the following witnesses by deposition:  Dr. Vinod N. Mungalpara and Dr. J. Simmons Riggan.  Thereafter, the record remained open for the submission of briefs and proposed Opinion and Awards.  Following the receipt of these materials, this matter was ready for decision.
A P P E A R A N C E S
	Plaintiff:	Oxner, Thomas & Permar, Attorneys, Greensboro, North Carolina; Todd P. Oxner, appearing.

	Defendant:	McAngus Goudelock & Courie, Attorneys, Charlotte, North Carolina, Louis A. Waple, appearing.

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ISSUE PRESENTED
	To what benefits is plaintiff entitled under the North Carolina Workers' Compensation Act?
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	Plaintiff's outstanding motion to require payment of weekly benefits is ruled upon by this Opinion and Award.
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The undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
	1.	The date of the injury that is the subject of this claim is 11 January 2007.
2.	On 11 January 2007 the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
3.	On 11 January 2007 an employment relationship existed between plaintiff and defendant-employer.
4.	On 11 January 2007 defendant-employer employed three or more employees
5.	Defendant-employer is insured by Zurich North America.
6.	Plaintiff's average weekly wage is to be determined by a Form 22.
7.	Defendant functionally accepted plaintiff's claim as a compensable med-only claim although they did not immediately file a Form 60, 61, or 63.
8.	Defendant directed plaintiff's medical care sending her to, inter alia, Dr. J. Simmons Riggan.
9.	On 20 December 2007 Dr. Riggan took plaintiff out of work.
	10.	Plaintiff filed a motion with the Industrial Commission to require payment of weekly benefits.  Defendant objected.  This motion was not ruled upon prior to this Opinion and Award.
	11.	Defendant has not paid any temporary partial or temporary total disability benefits.
	12.	Defendant-employer terminated plaintiff on 29 May 2007.
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	The parties subsequently entered into the following:
ADDITIONAL STIPULATIONS
	1.	Defendant-employer has an attendance/tardiness policy that is strictly enforced.
	2.	In the past defendant-employer has terminated employees, including those not on workers' compensation, pursuant to this policy.
	3a.	Plaintiff was written up pursuant to this policy prior to the filing of this claim.
	3b.	Plaintiff was written up for a second time pursuant to this policy subsequent to the filing of this claim.
	3c.	Plaintiff was terminated for a third occurrence pursuant to this policy.
	3d.	Defendant can produce evidence that plaintiff was tardy and that therefore the termination was in good faith.  Defendant has a good faith belief that plaintiff was terminated for cause pursuant to this policy.
	3e.	Plaintiff disputes that she was tardy but acknowledges defendant's ability to present this evidence.
	4.	Defendant-employer has a policy of providing transitional duty to allow injured workers to remain on the job, or to return to work, pursuant to doctor's restrictions.
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The following were entered into evidence as:
STIPULATED EXHIBITS
The Pretrial Agreement, marked as stipulated exhibit 1.
A collection of plaintiff's medical records, collectively paginated 1-24 and marked as stipulated exhibit 2.
The Industrial Commission Forms filed in this matter, collectively paginated 25-35 and marked as stipulated exhibit 3.
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Based upon all of the competent evidence adduced from the record, the undersigned makes the following:
FINDINGS OF FACT
	1.	Plaintiff was 42 years old at the time of the hearing before the undersigned.  Plaintiff worked for defendant-employer doing assembly work in the "picker" and "printer" areas.
2.	Plaintiff sustained an injury while working for defendant-employer on 11 January 2007.  Plaintiff immediately reported this injury to defendant-employer and attempted to keep working.  Defendant had knowledge of this injury, as evidenced by the filing of a Form 19 dated 16 January 2007.
3.	Defendant began directing and providing plaintiff's medical care but did not file a Form 60, 61, or 63 until they filed a Form 60 on 5 March 2008.
4.	Under defendant's direction and at their expense, plaintiff was seen by Dr. A. Richard Lewis at "Med Choice" on 16 January 2007.  The medical note from this visit documents that plaintiff felt a "pull" in her "right shoulder" as she lifted an item while working for defendant-employer.  This note also documents that Dr. Lewis diagnosed plaintiff with a "left shoulder strain" and imposed work restrictions prohibiting plaintiff from pushing or pulling with her left arm and from lifting more than five pounds.
5.	Subsequent to the injury defendant-employer initially accommodated plaintiff's physical restrictions by placing her in a "VMI trigger lead" position.  Plaintiff was thereafter transferred to a rack-filling position that required activity prohibited by Dr. Lewis' restrictions.  Some items that were required to be lifted and placed on racks in this position weighed in excess of 40 pounds.
6.	Plaintiff began suffering, and receiving treatment for, pain that spread to encompass both of her shoulders, her head, and her neck.
7.	Defendant directed plaintiff to Dr. Riggan.  On 13 March 2007 Dr. Riggan documented that plaintiff was "presenting for evaluation of a left shoulder injury that occurred while at Diebold on January 11th."  Dr. Riggan ordered a TENS unit for plaintiff and recommended that plaintiff "stay at her current work status."  The note from this visit also documents that plaintiff was suffering pain "radiating up into the side of her neck at times," "headaches," as well as "some occasional numbness and tingling down into her arm."
8.	Plaintiff continued to work at the rack-filler position that exceeded the restrictions placed on her by Dr. Lewis.  Plaintiff experienced great difficulty in the rack-filler position and went to her supervisor several times explaining her physical problem and crying due to pain.  Plaintiff was terminated on 29 May 2007, ostensibly pursuant to a strictly enforced attendance/tardiness policy.
9.	Plaintiff was seen by pain specialist Dr. Vinod Mungalpara beginning on 6 September 2007.  Dr. Mungalpara's medical note from this visit indicates his belief that plaintiff "might need further evaluation of possible osteoclysis of the distal clavicle."
10.	Dr. Riggan saw plaintiff on 20 December 2007 and wrote plaintiff out of work entirely, stating in the medical note "I'm going to write her out of work as I don't think she can perform even limited work activities if it was offered to her at this point."
11.	Defendant filed a Form 60 Employer's Admission of Employee's Right to Compensation dated 5 March 2008 accepting plaintiff's claim.  On this Form defendant wrote: "Accepted as a med only claim for injury to the right shoulder."  Defendant has provided no reasonable excuse for its failure to comply with the filing time mandates of N.C. Gen. Stat. §§97-18(d) and 97-18(j).
12.	By virtue of its filing of the Form 60 dated 5 March 2008, and notwithstanding the language defendant chose to use on that Form, defendant admitted the compensability of plaintiff's workplace injury of 11 January 2007.  As such, on 11 January 2007, plaintiff sustained a compensable injury by accident arising out of and in the course of her employment with defendant.
13.	Given the severe difficulties plaintiff experienced while working for defendant-employer in a position known to be beyond her restrictions, as evidenced by the medical treatment defendant was directing, defendant has not shown that plaintiff was terminated for reasons unrelated to her workers' compensation injury and for which a non-injured employee would also have been terminated.
14.	Dr. Riggan testified that that plaintiff's inability to work or earn wages was a result of her 11 January 2007 injury by accident.
15.	Dr. Mungalpara testified that plaintiff showed "no findings suggestive of fictitious pain."  He then elaborated and explained that there was objective radiological and other evidence that verified plaintiff's complaints as legitimate.  Dr. Mungalpara further testified that it was probable that plaintiff's 11 January 2007 workplace injury was a significant contributing factor to plaintiff's condition.
16.	Based on the credible medical and vocational evidence of record, and as a result of her 11 January 2007 compensable injury by accident, plaintiff has been unable to earn any wages in her former positions with defendant-employer or in any other employment.
17.	The available evidence shows that plaintiff earned an average weekly wage of $353.00, which yields a workers' compensation rate of $235.35.
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The foregoing findings of fact and conclusions of law engender the following:
CONCLUSIONS OF LAW
1.	On 11 January 2007 plaintiff sustained an accident while working for defendant-employer.  Defendant accepted this accident as compensable using a Form 60 dated 5 March 2008.  Perez v. American Airlines, 174 N.C. App. 128, 620 S.E.2d 288 (2005); Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 523 S.E.2d 720 (1999); Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997).
2.	Given the severe post-injury difficulties plaintiff experienced while working for defendant-employer in a position known to be beyond her restrictions, as evidenced by the medical treatment defendants were directing, defendant has failed to show that plaintiff was terminated for misconduct and fault, unrelated to her admittedly compensable injury, for which a non-disabled employee would have been terminated.  Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E. 2d 397 (1996).
3.	The Form 60 filed in this matter does not create a presumption of continuing disability.  The burden of proving compensable disability remains with plaintiff.  Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 542 S.E.2d 277 (2001).  In this case, plaintiff has produced sufficient evidence to prove that plaintiff's admittedly compensable 11 January 2007 work injury caused her subsequent disability.  N.C. Gen. Stat. §97-29; Russell v. Lowes Prod. Distribution, 108 N.C. App. 762 (1993).
4.	Given the credible medical and vocational evidence of record, and as a result of her admittedly compensable workplace injury and consequent disability, plaintiff is temporarily totally disabled and is entitled to compensation at the rate of $235.35 per week from 29 May 2007 and continuing until plaintiff returns to work or further order of the Industrial Commission.  N.C. Gen. Stat. §97-29; Russell v. Lowes Prod. Distribution, 108 N.C. App. 762 (1993).
5.	In handling this claim defendant violated N.C. Gen. Stat. §§97-18(d) and 97-18(j)
6.	Subject to the provisions of N.C. Gen. Stat. §97-25.1, plaintiff is entitled to have defendant provide all medical treatment, incurred or to be incurred, necessitated by the admittedly compensable injury, when the medical bills have been approved according to established Industrial Commission procedures.  This includes treatment for both of plaintiff's shoulders, plaintiff's neck, and plaintiff's headaches.  N.C. Gen. Stat. §§97-25; 97-25.1.
7.	The available evidence shows that plaintiff earned an average weekly wage of $353.00, which yields a workers' compensation rate of $235.35.  N.C. Gen. Stat. §97-2(5).
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Based on the foregoing findings of fact and conclusions of law, the undersigned enters the following:
A W A R D
1.	Given the credible medical and vocational evidence of record, and her admittedly compensable injury, defendant shall pay plaintiff, subject to the attorney's fee approved below, temporary total disability compensation at a rate of $235.35 per week from 29 May 2007 and continuing until plaintiff returns to work or further Order of the Industrial Commission.  Those payments that have accrued shall be paid in a lump sum, subject to the attorney's fee approved below.
2.	Defendant shall pay all of plaintiff's medical expenses incurred or to be incurred as a result of the admittedly compensable accident, subject to the provisions of N.C. Gen. Stat. §97-25.1, when the medical bills have been approved according to established Industrial Commission procedures.  This includes treatment for both of plaintiff's shoulders, plaintiff's neck, and plaintiff's headaches.
3.	A reasonable attorney fee of twenty-five percent of the compensation due plaintiff under paragraph 1 of this Award is approved for plaintiff's counsel and shall be paid as follows:  Twenty-five percent of the lump sum due plaintiff shall be deducted and paid directly to plaintiff's counsel.  Thereafter, plaintiff's counsel shall receive every fourth compensation check due plaintiff.
4.	Defendant shall pay the costs.
	This case is ordered REMOVED from the Deputy Commissioner hearing docket.



			S/			
JAMES C. GILLEN
DEPUTY COMMISSIONER

JCG:cll

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