325163.doc

I.C. NO. 325163, TERRY JOHNSON, Deceased Employee, and JOSHUA TERRY JOHNSON, Minor, by Guardian Ad Litem DAVID E. JOHNSON, Plaintiffs v. COCHRANE FURNITURE (CHROMCRAFT REVINGTON), Employer, LIBERTY MUTUAL FIRE INSURANCE, Carrier, Defendants.  OPINION AND AWARD by J. BRAD DONOVAN, Deputy Commissioner, N.C. Industrial Commission.  Filed 15 December 2004.



This matter was heard by the undersigned on 25 May 2004 in Shelby, North Carolina.  Following the hearing, the depositions of Drs. Mark B. Hartman and John A. Welshofer were received into evidence.  Upon receipt of the parties' written contentions, the record in this matter was duly ordered closed on 13 September 2004.  This matter is now ready for decision.
A P P E A R A N C E S
	Plaintiffs:	The Roberts Law Firm, Attorneys, Gastonia, North Carolina; Joseph B. Roberts, III, appearing.

	Defendant:	Mullen, Holland & Cooper, Attorneys, Gastonia, North Carolina; James R. Martin, 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 in their Pre-Trial Agreement and at the hearing as:
STIPULATIONS
1.	The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.
2.	Defendant Liberty Mutual Fire Insurance was the carrier on the risk.
3.	The employee-employer relationship existed between the parties at all relevant times.
4.	The date of injury is 27 February 2003.
5.	Plaintiff's average weekly wage was $316.47, which yields a compensation rate of $210.99 per week, pursuant to a Form 22 Wage Chart submitted by defendants on 9 June 2003.
6.	The sole issue for determination is:
a.	Whether the medical treatment received by decedent in November 2003 is related to his compensable accident of 27 February 2003 and so is compensable?
7.	The parties stipulated the following documentary evidence:
a.	Stipulated Exhibit #1: Pre-Trial Agreement
b.	Stipulated Exhibit #2: I.C. Forms
c.	Stipulated Exhibit #3: Medical Records
d.	Stipulated Exhibit #4: Carrier File
e.	Stipulated Exhibit #5: Additional Medical Records
f.	Stipulated Exhibit #6: Personnel File and Discovery Responses
8.	In addition to Stipulated Exhibit(s), the following Exhibits were admitted into evidence:
a.	Subsequent to the hearing, plaintiff provided a letter from defendant-carrier to plaintiff dated 28 May 2003, which is hereby entered into evidence and made part of the record as Plaintiff's Exhibit #1.
b.	By letter dated 22 October 2004, plaintiff's counsel advised the undersigned that plaintiff in this case had expired on or about 15 September 2004.  Accordingly, plaintiff has submitted the following documents, which are hereby entered into the record as follows:
1.	Plaintiff's Exhibit #2: Death Certificate
2.	Plaintiff's Exhibit #3: Form 42, Application for Appointment of Guardian Ad Litem, approved by the undersigned on 3 November 2004.
c.	Defendants' Exhibit #1: Medical records received by the parties subsequent to the hearing, which are hereby entered into the record.
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	Based upon all of the competent evidence adduced from the record and the reasonable inferences therefrom, the undersigned makes the following:
FINDINGS OF FACT
1.	Decedent Terry Johnson was born on 20 April 1969 and had completed the ninth grade.  On 27 February 2003, decedent was working for defendant-employer when he stepped off a conveyor belt onto an air hose and slipped, injuring his back.	As a result of his injury by accident, plaintiff felt severe pain in his lower back radiating into his leg.  Decedent had suffered a back injury requiring surgery in 1990; however, while he experienced mild chronic back pain, decedent had recovered from the 1990 surgery sufficiently to return to heavy construction work and manual labor.
2.	On 28 February 2003, decedent presented to Dr. Alex Sanchez of CaroMont Occupational Medicine who diagnosed decedent with an acute lumbar sacro strain and spasm.  Although Dr. Sanchez did not perform any diagnostic tests such as x-rays, CT scan or MRI, he noted that there was no evidence of radiculopathy or herniated disc despite decedent's complaints of pain radiating down his leg.  Dr. Sanchez prescribed pain medication and physical therapy and placed decedent on light duty with restrictions of no lifting over 15 pounds, no frequent bending or stooping and no operating heavy equipment.  He also required that decedent have alternate sitting and standing in his job.
3.	Decedent returned to work at light duty and continued working full-time.
4.	On 2 April 2003, Optima Therapies, the treating physical therapists for decedent, noted that decedent was continuing to indicate that his pain had remained unchanged since the 27 February 2003 injury by accident and he was suffering from bilateral low back pain, more on the left than the right, and that the pain was radiating down into decedent's foot.
5.	On 4 April 2003, decedent presented to Dr. Sanchez's partner, Dr. Charlton Owensby.  Dr. Owensby noted that decedent had obtained some relief from physical therapy, but that generally there was no change in decedent's symptoms.  During the examination, Dr. Owensby discerned that decedent had altered his pain medication prescription to increase the number of refills.  As a result, decedent was discharged from the care of Drs. Sanchez and Owensby.  Dr. Owensby opined at that time that he saw no evidence of recurrent disk disease or anything requiring further care, and that decedent's back pain "should resolve without problem."
6.	Dr. Sanchez notified defendant-employer of decedent's alteration of the prescription and decedent's employment was terminated as a result.  Decedent's termination and subsequent unemployment status are not issues in this claim.
7.	On 27 June 2003, decedent was involved in a four-wheel all terrain vehicle accident.  Decedent was rendered unconscious from the accident for a period of time and did not recall the specifics of the incident.  Over the next seven days he was treated at the Lincoln Medical Center and the Carolinas Medical Center for multiple facial and jawbone problems.  During this treatment, decedent did not complain of back pain.
8.	On 16 September 2003, decedent presented to Dr. John Welshofer for an independent medical evaluation authorized by defendants.  Decedent presented with continuing complaints of low back pain radiating into his leg, which he related to the 27 February 2003 injury by accident.  Dr. Welshofer diagnosed decedent with severe left sciatica and opined that decedent may have had a ruptured disk that was pinching the sciatic nerve down decedent's left leg.  Dr. Welshofer recommended an MRI of decedent's spine and electrodiagnostic testing to determine whether there was nerve damage.  These tests were not performed.
9.	On 30 October 2003, decedent presented to the emergency room at Gaston Memorial Hospital complaining of severe lumbosacral back pain beginning in February 2003.  The emergency room physician recommended immediate evaluation by either a specialized orthopedic surgeon or neurosurgeon and prescribed pain medication.
10.	Decedent returned to the emergency room on 8 November 2003 with significant pain that was rendering him unable to move without difficulty.  He was given an IV of pain medication.  A lumber MRI revealed a large disc herniation at L5-S1 toward the left.
11.	On 10 November 2003, decedent returned to Dr. Welshofer who reviewed the MRI and diagnosed decedent with a large ruptured disc at L5-S1 and severe left sciatica.  Dr. Welshofer admitted decedent to Carolinas Medical Center and referred him to Dr. Mark Hartman for surgical decompression.  Dr. Welshofer opined that decedent's symptoms were progressing and suggested that decedent was suffering from cauda equina, an emergency condition that could lead to immediate paralysis.
12.	Dr. Welshofer opined that decedent's back condition was causally related to his 27 February 2003 injury and supported his opinion with the clinical notes provided by Dr. Sanchez.  He discounted previous back problems suffered by decedent in 1991 due to the fact that decedent had been relatively symptom free prior to the February 2003 injury by accident.  He further opined that the ATV accident in June 2003 had no bearing on decedent's back condition as those injuries were primarily to decedent's face and jaw.  He explained the lack of back pain complaints during that time to the focus on the facial injuries and the medications decedent was given for the facial operations.  Dr. Welshofer also stated that there were indications of the existence of the herniated disc during March and April 2003, as evidence by statements made by decedent to the physical therapist and Dr. Sanchez.
13.	Dr. Hartman performed a left microdiskectomy for the L5-S1 left, herniated nucleus pulpous on 11 November 2003.  Dr. Hartman opined that the ruptured disc was caused by the 27 February 2003 injury by accident.  He also discounted the June 2003 ATV incident as a causal factor due to the location of decedent's injuries from that accident.  Dr. Hartman further opined that decedent's prior back condition had resolved and although he had received a 15% permanent partial disability rating following that surgery, he had returned to work relatively symptom free until the 27 February 2003 injury by accident.
14.	Dr. Hartman continued to treat decedent until 24 March 2004 when he opined that decedent had reached maximum medical improvement.  He released decedent with a 12% permanent partial disability rating to his back in addition to the previous 15% rating decedent received in 1991.  Dr. Hartman also imposed permanent restrictions of no lifting or carrying over 30 pounds, no pushing or pulling over 50 pounds and a change of positions every 45 minutes.
15.	In a note written by Dr. Carol Martin, treating decedent for unrelated symptoms at Pathways Mental Health, dated 13 January 2004, Dr. Martin states "[Decedent] walks with a clearly disabling limp and ascribes it to his multiple surgeries following his most recent motor vehicle accident."  There is no evidence regarding any motor vehicle accidents other than the ATV accident in June 2003, and any attempt to relate decedent's back condition to unknown automobile accidents is given no weight.
16.	Subsequent to the closing of the record in this case, the undersigned was notified of decedent's death on or about 15 September 2004.  The death certificate notes that the immediate cause of death is "Pending;" however, there is no claim in this case that decedent's death was related to the 27 February injury by accident and this Opinion does not address this issue.
17.	Defendant-employer's decision not to rehire decedent upon his release by Dr. Hartman was not related to his injury by accident of 27 February 2003, but was due to his falsifying his prescription for pain medication for which any other employee may have been terminated from employment.
18.	Defendants have not defended this action unjustifiably.
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	Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1.	Decedent sustained an injury by accident arising out of and in the course of the employment on 27 February 2004. As a result of the compensable injury, decedent suffered a ruptured disc at the L5-S1 level for which he required surgery, performed on 11 November 2003.  N.C. Gen. Stat. §97-2.
2.	Decedent is not entitled to temporary total disability compensation because (1) he was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to decedent's compensable injury.  Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996).
3.	Decedent is entitled to have defendants pay permanent partial disability compensation at the rate of $210.99 per week for 36 weeks as a result of the 12% percent rating to the back provided by Dr. Hartman.  N.C. Gen. Stat. §97-31(23).
4.	Decedent is entitled to have defendants pay for medical expenses incurred as a result of the compensable injury which were required to provide relief, effect a cure or lessen the period of disability, including the treatment provided by Drs. Welshofer and Hartman, and the emergency room treatments provided between the release by Dr. Sanchez and the treatment of Dr. Hartman.  N.C. Gen. Stat. §97-2(19).
5.	Decedent is not entitled to attorney's fees pursuant to N.C. Gen. Stat. §97-88.1.
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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.	Subject to a reasonable attorney's fee herein approved, defendants shall pay permanent partial disability compensation to decedent's estate in the amount of $7595.64, representing a permanent partial disability rating of 12% to decedent's back.
2.	A reasonable attorney's fee of 25% of the compensation awarded to decedent's estate in Paragraph 1 above is hereby approved to be deducted from sums due the estate and paid directly to counsel.
3.	Defendants shall pay medical expenses incurred as a result of the compensable injury which were required to provide relief, effect a cure or lessen the period of disability, including the treatment provided by Drs. Welshofer and Hartman, and the emergency room treatments provided between the release by Dr. Sanchez and the treatment of Dr. Hartman.
4.	Defendant shall pay the costs.
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	IT IS FURTHER ORDERED that this case be REMOVED from the Shelby docket.
	This the 15th day of December 2004.



			S/			
J. BRAD DONOVAN
DEPUTY COMMISSIONER

JBD:sm

I.C. No. 325163	Page 9

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