236854.doc

I.C. NOS. 236854 & 240033, FRANCES D. TOLLEY, Employee, Plaintiff v. DUKE ENERGY CORPORATION, Employer, SELF-INSURED (HARTFORD SPECIALTY RISK SERVICES, Third Party Administrator), Defendant.  OPINION AND AWARD by PHILLIP A. HOLMES, Deputy Commissioner, N.C. Industrial Commission.  Filed 12 February 2004.



	This case was heard before the undersigned in Charlotte on September 11, 2003.  A Pre-Trial Agreement was submitted, signed by both parties and made a part of the record in this case.  Subsequent to the hearing, the depositions of Drs. Nick Grivas, Harry Caulfield, and William Hunter were taken and are a part of the record.  Medical records have also been submitted and are a part of the record.  Proposed Opinions and Awards from counsel for both parties have been received and the record was closed.  This case is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Donaldson and Black, Greensboro, North Carolina; S. Camille Payton, Counsel of Record.

	Defendants:	Parker, Poe, Adams & Bernstein, Charlotte, North Carolina; Anna L. Baird, Counsel of Record.

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	As set forth in the Pre-Trial Agreement of the parties, the undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
The parties are subject to the North Carolina Workers' Compensation Act.
At all relevant times, the employer-employee relationship existed between the employer and the employee.
At all relevant times, defendant-employer regularly employed three or more employees and was bound by the North Carolina Workers' Compensation Act.
Duke Energy Corporation is a duly qualified self-insured corporation.  Hartford Specialty Risk Services is the third-party administrator on these claims.
Plaintiff's average weekly wage would yield the maximum compensation rate for the year relevant to any injury for which she may be entitled to benefits.
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	Based upon the competent evidence of record, the undersigned makes the following:
FINDINGS OF FACT
On or about January 30, 2001, Employee-Plaintiff was employed by Employer-Defendant at McGuire Nuclear Station as a Nuclear Maintenance Specialist, assigned to a valve crew.
Her supervisor was Hugh Michael, and Jim Yount and Samuel King were co-employees on the same valve crew as Employee-Plaintiff.
On or about January 30, 2001, Employee-Plaintiff was a smoker who consistently complained of shortness of breath on her yearly physicals.  She was diagnosed with diabetes, thyroid disorder and asbestosis during 1999 and 2000.  She was approximately 5' 2 ½" tall and weighed approximately 235 pounds.
Employee-Plaintiff underwent a previous cervical spine surgery in 1992, and saw a chiropractor for periodic treatment on her cervical spine from 1992 until 2001.
On January 30, 2001, Employee-Plaintiff was working on a standard valve repair job with her co-employees Samuel King and Jim Yount.  On that date, Employee-Plaintiff was to carry a relief valve which was approximately 20 to 24 inches tall and weighed approximately 26 pounds from the CA pump room at McGuire Nuclear Station to the hot machine shop where the crew would work on the valve.  This was an ordinary and routine job assignment.  On Employee-Plaintiff's route from the CA pump room to the hot machine shop, she became tired and short of breath, and asked another co-employee to carry the valve the remainder of the way to the hot machine shop for her.  She then rested for a short period of time and continued on to the hot machine shop to finish the day's work on the relief valve.
Both Mr. King and Mr. Yount presented credible evidence that Ms. Tolley did not indicate that she sustained any injury to her neck or shoulder as a result of carrying the relief valve, and that she continued to do her usual work on the valve crew in the usual manner for the remainder of that day, without indicating in any way that she had suffered an injury.
Employee-Plaintiff did not report an injury to her supervisor, Hugh Michael, on January 30, 2001.
Based upon the credible testimony of Mr. Yount, Mr. King and Mr. Michael, Employee-Plaintiff did know how to complete an injury report, and was not discouraged from filing a necessary injury report.  Ms. Tolley did not file an injury report with Employer-Defendant alleging that she had sustained a neck or shoulder injury on January 30, 2001.
Employee-Plaintiff did not seek any medical treatment following January 30, 2001 until approximately September 24, 2001 when she sought treatment with Dr. William King, her chiropractor.  She first sought treatment with her neurosurgeon, Dr. Nicholas Grivas, on October 17, 2001, with complaints of neck and left arm pain and left hand paresthesia.  She did not indicate to Dr. Grivas that she had sustained an injury at work or that her pain had an onset date of January 30, 2001.  At no time during her course of treatment with Dr. Grivas did she advise him that she believed her problems were caused by a January 30, 2001 work incident, and at no time did she request that Dr. Grivas or his office consider her treatment pursuant to workers' compensation.
Dr. Grivas diagnosed Employee-Plaintiff with cervical spondylosis and a bone spur, which are degenerative conditions.  Dr. Grivas could not testify to a reasonable degree of certainty that the alleged incident of January 30, 2001 caused or aggravated Employee-Plaintiff's condition.
Because his opinion was based upon an inaccurate history given by Employee-Plaintiff and a mistake regarding the date of Employee-Plaintiff's MRI, Dr. Hunter's testimony is entitled to little weight.
Based on the credible lay and medical evidence, Employee-Plaintiff did not sustain a compensable injury by accident or specific traumatic incident to her cervical spine as a result of her employment with Duke Energy Corporation.
Employee-Plaintiff's job as a Nuclear maintenance Technician involved general value repair work.  Her job involved doing appropriate paper work for a certain value repair job, obtaining the necessary tools and parts to work on the value, removing the valve from its location, doing repair work on the valve, replacing the valve, doing housekeeping and cleanup work, as well as other activities.  Employee-Plaintiff and her co-workers testified that they do not work on the same types of valves every day, and that their jobs vary from day to day.  Approximately one-half of the valve crew's workdays were spent actually working on the valves, the other one-half of their workday involved doing housekeeping, paperwork, research, and other activities.
Employee-Plaintiff testified that she never had any difficulty with her hands while she was doing work as a valve technician.  At the time she was diagnosed with bilateral carpal tunnel syndrome, she was not doing valve work, but was out on light duty following her cervical spine surgery.  Employee-Plaintiff never reported to any supervisor or other co-worker that she was having difficulty with her hands while doing her job or that she felt that her job was contributing to problems with her hands.  She never advised her treating physician, Dr. Caulfield, that her job was contributing to the problem with her hands.
Both Mr. King and Mr. Yount testified that they had worked on the valve crew for many years and had never had any difficulties with their hands as a result of that work.  They both testified that there were no repetitive aspects to their work as valve technicians.
Dr. Caulfield's opinion that Employee-Plaintiff's carpal tunnel syndrome was consistent with her employment was based entirely on an inaccurate hypothetical question posed during his deposition.  Dr. Caulfield did not review a written job description or videotape, and specifically stated he was basing his opinion only on the hypothetical work situation described to him, which was inaccurate.  He testified that Employee-Plaintiff had many other risk factors for carpal tunnel syndrome, such as diabetes, hypothyroidism and obesity.  Thus, Dr. Caulfield's opinion regarding causation is entitled to little or no weight.
Employee-Plaintiff has not presented competent lay or expert testimony to support a finding that her job placed her at an increased risk of developing bilateral carpal tunnel syndrome as compared to the general public not so employed.
Employee-Plaintiff has not presented credible evidence that her bilateral carpal tunnel syndrome is characteristic of and peculiar to her employment as a valve technician, is not an ordinary disease of life, or was causally related to her employment.  Thus, Employee-Plaintiff has not proven that she sustained a compensable occupational disease.
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	Based upon the foregoing findings of fact and stipulations, the undersigned makes the following:
CONCLUSIONS OF LAW
Employee-Plaintiff has failed to prove that she contacted a compensable injury by accident or specific traumatic incident to her cervical spine on or about January 30, 2001.
N.C. Gen. Stat. §97-2(6).
Employee-Plaintiff failed to prove proper notice of her alleged January 30, 2001 accident to Defendants.  N.C. Gen. Stat. §97-22.
Employee-Plaintiff failed to prove that she contracted a compensable occupational disease as a result of her employment.  N.C. Gen. Stat. 21 §97-53(13).
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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
Employee-Plaintiff's claims must both, under the law, be and are hereby DENIED.
Each side shall pay its own costs, except the Defendants shall pay an expert witness fee of $475.00 to Dr. William Hunter if not paid by a previous order.
	It is further ORDERED that this case be REMOVED from all hearing dockets.



			S/			
PHILLIP A. HOLMES
DEPUTY COMMISSIONER

PAH:kwb

I.C. Nos. 236854 & 240033	Page 6

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