188517.doc

I.C. NOS. 188517 & 478603, SHIRLEY D. MITCHELL, Employee, Plaintiff v. BLACK & DECKER, Employer, SPECIALTY RISK SERVICES, INC., Carrier, Defendants.  OPINION AND AWARD by J. BRAD DONOVAN, Deputy Commissioner, N.C. Industrial Commission.  Filed 30 October 2006.



This matter was heard by the undersigned on 13 February 2005 in Fayetteville, North Carolina.  Following the hearing, the deposition of Dr. Michael D. Gwinn was received into evidence.  Upon receipt of the parties' written contentions, the record in this matter was duly ordered closed on 8 August 2006.  This matter is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Brumbaugh, Mu & King, Attorneys, Jacksonville, North Carolina; Angela Vandivier-Stanley, appearing.	

	Defendant:	Rudisill, White & Kaplan, Attorneys, Charlotte, North Carolina; Garth White, 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 parties are subject to the N.C. Workers' Compensation Act.
2.	An employee-employer relationship existed between the named employee
and named employer.
3.	The carrier liable on the risk is correctly named above.
4.	Plaintiff's average weekly wage is $437.20 with a resulting compensation rate of $291.48 per week.
5.	Plaintiff sustained a compensable injury on or about 18 October 2001.
6.	The issues for determination are:
a.	To what, if any, indemnity benefits are plaintiff entitled?
b.	Whether plaintiff is entitled to permanent partial disability benefits?
c.	Whether plaintiff is entitled to ongoing medical treatment?
d.	Whether plaintiff is entitled to attorney's fees pursuant to N.C. Gen. Stat. §97-88.1?
e.	Whether defendants are entitled to a credit for temporary partial disability benefits already paid and/or unemployment benefits?
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EXHIBITS
1.	The parties stipulated the following documentary evidence:
a.	Stipulated Exhibit #1: Medical records, I.C. Forms
b.	Stipulated Exhibit #2: Surveillance disk
2.	Subsequent to the hearing, the parties submitted additional medical records, which are hereby incorporated into the record as an Addendum to Stipulated Exhibit #1.	
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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.	At the time of the hearing, plaintiff was 39 years old and a high school graduate.  She began her employment with defendant-employer in September 1988 as an assembly worker.  In 2001, plaintiff became a utility operator, inspecting products produced by defendant-employer.
2.	On 18 October 2001, plaintiff was working as a Utility Operator near racks of merchandise when a nearby forklift dropped a box containing reciprocating saws.  The box tipped over causing the saws to fall and to strike plaintiff's neck and back.  The rack also fell over onto plaintiff causing her to fall to the floor.
3.	Defendant-employer directed plaintiff to US Healthworks for treatment.  On 18 October 2001, plaintiff was diagnosed with cervical and thoracic contusions and returned to light-duty work.  Plaintiff continued to treat with US Healthworks and was referred to physical therapy.  On 23 October 2001, plaintiff's diagnosis was modified to lumbar strain and contusions to her thoracic and cervical spine.
4.	On 13 November 2001, plaintiff was seen by Dr. Allen F. Meyers at US Healthworks.  Plaintiff related that her condition was improved and Dr. Meyers noted that the physical therapist reported "no significant findings - - no functional deficits."  Plaintiff was discharged from US Healthworks with no restrictions on her ability to work.
5.	On 20 February 2002, plaintiff returned to US Healthworks with recurrent mid and lower back pain.  An X-ray of the thoracic spine was "unremarkable" and a repeat X-ray of the lumbar spine revealed no change from the prior study.  Plaintiff was referred to a physiatrist and assigned work restrictions of no lifting greater than ten pounds, no forceful pushing or pulling, no bending or stooping, no climbing ladders and no overhead work, effective until plaintiff is cleared by a physiatrist.  Defendant-employer was able to accommodate these restrictions and plaintiff continued to work in a light duty capacity.
6.	On 22 May 2002, plaintiff presented to Dr. Scott S. Sanitate, a physiatrist with Carolina Back Institute.  Plaintiff complained primarily of cervical and shoulder pain.  Dr. Sanitate recommended physical therapy and pain medication.  He further advised that plaintiff should "continue work without further restriction."
7.	On 19 August 2002, a cervical MRI revealed a small disc protrusion at C6-C7; however, Dr. Sanitate did not believe that the finding was significant and advised that plaintiff should continue to work without restrictions and continue her pain medication.
8.	On 27 September 2002, plaintiff returned to Dr. Sanitate and requested that she be authorized to be seen by another doctor as she felt she was not making any improvement.  Dr. Sanitate noted that he believed plaintiff might be suffering from depression.  Plaintiff was not authorized to change physicians by the defendant-carrier.
9.	On 16 October 2002, plaintiff was seen by a physician's assistant, Jeff S. LaFuria, at Carolina Back Institute, for continued complaints of low back and left lower extremity pain in addition to right shoulder and hand pain.  He assigned work restrictions of no lifting greater than 20 pounds.  A lumbar MRI was obtained on 30 October 2002, and revealed primarily degenerative changes, most pronounced at L4-L5.  From 21 November 2002 through 4 April 2003, plaintiff continued to treat at Carolina Back Institute and received treatment in the form of epidural steroid injections and pain medications.  The work restriction of no lifting greater than 20 pounds was in effect during this period of time.
10.	Defendant-employer experienced a plant lay-off on plaintiff's line in January 2003.  Plaintiff was authorized to receive unemployment benefits for her time out of work from 6 January 2003, until her return to work on 14 July 2003.
11.	During the period of her voluntary layoff, plaintiff began treating primarily with Dr. Michael Gwinn, a physiatrist at Carolina Back Institute.  On 4 April 2003, Dr. Gwinn suggested a spinal surgery consult and that if no surgery was recommended, a functional capacity evaluation should be obtained.
12.	On 22 April 2003, plaintiff was evaluated by Dr. Anthony G. Hucks-Follis, a neurosurgeon with Sandhills Neurosurgery.  Dr. Hucks-Follis commented, "the findings on her films are not that impressive" and recommended a myelogram of both the cervical and lumbar regions before rating and releasing plaintiff.
13.	On 14 May 2003, a CT myelogram of the cervical spine revealed a herniation at C5-C6 with no compression of the spine and a CT myelogram of the lumbar spine revealed herniations at L3-L4, L4-L5 and L5-S1 with no compression of the spine.  Dr. Hucks-Follis advised that he had "nothing to offer" and he would recommend a pain clinic or continuation with the back institute therapy.
14.	Black and Decker opened plaintiff's line and plaintiff was called back to work on 14 July 2003.  Plaintiff had to leave work early due to pain.  Plaintiff was not able to work a full day during the month of July.  She used her sick and vacation time to make up the difference in her salary.
15.	Plaintiff underwent a Functional Capacity Evaluation on 24 July 2003.  The examiner opined that plaintiff gave a consistent performance during the examination.  Plaintiff was rated as able to perform at a light to medium classification, but based upon the job description of Utility Operator/Inspector; the examiner opined that plaintiff's capabilities would not match the job description.
16.	On 31 July 2003, plaintiff returned to Dr. Gwinn.  Based upon plaintiff's complaints of continuing pain, Dr. Gwinn assigned work restrictions of a four-hour workday with no lifting greater than 15 pounds and the ability to sit and stand as needed.  Plaintiff testified that she performed her job within these restrictions. By Consent Order dated 27 August 2004, defendants paid plaintiff temporary partial disability benefits to compensate plaintiff for working reduced hours.
17.	On 4 December 2003, Dr. Gwinn opined that plaintiff had reached maximum medical improvement and he assigned a 7% permanent partial disability impairment rating to her back.  He further opined that plaintiff was capable of light-medium duty work and that she should avoid lifting greater than 35 pounds along with overhead work and forward bending.  On 9 January 2004, Dr. Gwinn clarified his restrictions and indicated that plaintiff could work an eight-hour day.
18.	On 22 March 2004, plaintiff returned to Dr. Gwinn and related that she was experiencing increased neck and low back pain.  Dr. Gwinn reduced plaintiff's work hours to four hours per day with the same restrictions for a period of one month.  By plaintiff's return visit to Dr. Gwinn on 16 June 2004, she had returned to working full-time with the previously assigned restrictions.  Dr. Gwinn performed a trigger point injection the area of the lumbar spine and advised that she was still at maximum medical improvement with no change in her work restrictions.
19.	From 4 August 2004 to 1 April 2005, plaintiff continued to treat with Dr. Gwinn and received trigger point injections and continued prescriptions of pain medication.  Dr. Gwinn did not assign any additional restrictions during this time and plaintiff continued to work her normal hours.  On 21 April 2005, a repeat MRI of the lumbar spine revealed no significant changes from the prior study.  An EMG study was obtained on 4 May 2005, which was interpreted as normal.
20.	Dr. Gwinn excused plaintiff from work from 18 July 2005 through 25 July 2005, due to plaintiff suffering a back strain at work.  Dr. Gwinn adjusted her restrictions to no lifting over ten pounds and to avoid overhead work.
21.	In July and August of 2005, plaintiff was moved to a line that built poly-packs.  Her job duties required her to place literature and small items in bags.  Plaintiff did not present evidence that she was required to lift more than ten pounds and there was no evidence that she performed overhead lifting in this job.  Plaintiff performed this job until 16 September 2005, when she was laid off as a result of the plant closing.  Following her layoff, plaintiff received a severance package of $427.00 per week for 16 weeks.  Plaintiff also received unemployment benefits of $224.00 per week for a period of six months.
22.	The undersigned finds as fact that plaintiff's termination from employment with defendant-employer was due to economic factors and not related to plaintiff's compensable injury by accident.
23.	Plaintiff continues to treat with Dr. Gwinn.  Dr. Gwinn maintains that plaintiff is at maximum medical improvement with a 7% permanent partial disability rating to her low back and an additional 5% rating to her cervical spine for a total of 12% impairment rating.  Dr. Gwinn further opines that plaintiff can work within the guidelines of her functional capacity examination.
24.	Plaintiff was diagnosed with bilateral carpal tunnel syndrome and trigger finger.  Defendant-carrier accepted the claim for bilateral trigger finger, but denied the carpal tunnel syndrome.  These claims are not part of the current case and are not addressed herein.
25.	Plaintiff has looked for work within her restrictions.  Plaintiff stated that she applied with the commissary aboard Fort Bragg, at local gas stations, and with the local school district.  Plaintiff also registered with the Employment Security Commission.  She has not been hired for any of the positions for which she has applied; however, there is no evidence that plaintiff's inability to obtain suitable employment is due to her current condition or restrictions.
26.	Defendants have submitted into evidence a surveillance recording of plaintiff that is not indicative of either the existence of or a lack of plaintiff's disability sufficient to affect the outcome of this case.  Accordingly, the recording is given little weight in this decision.
27.	Defendants have not defended this claim unreasonably.
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	Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1.	On 18 October 2001, plaintiff sustained an admittedly compensable injury by accident, which resulted in injuries to her back.  N.C. Gen. Stat. §97-2(6).
2.	Plaintiff reached maximum medical improvement from her compensable injury by accident on 16 June 2004 at the latest.  Thereafter, plaintiff returned to work and remained at work until her non injury-related layoff in September 2005.  Further, there is no evidence that plaintiff's current failure to obtain employment is due to factors that would render her eligible for continuing temporary total disability compensation under the Act.  Accordingly, plaintiff is not eligible for further temporary total disability compensation following the 16 June 2005 reaching of maximum medical improvement.  Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454, 457 (1993).
3.	Plaintiff is entitled to permanent partial disability compensation at the rate of $291.48 per week for 36 weeks as a result of the 12% rating to the back.  N.C. Gen. Stat. §97-31(23).
4.	Defendants are entitled to a credit in the amount of any temporary total disability benefits paid to plaintiff subsequent to the determination of maximum medical improvement.  This amount is credited against the payment of permanent partial disability benefits to which plaintiff became entitled at that time.  Collins v. Speedway Motor Sports Corp., 165 N.C. App. 113, 598 S.E.2d 185 (2004).
5.	Plaintiff is entitled to have defendant pay for medical expenses incurred or to be incurred as a result of the compensable injury as may be required to provide relief, effect a cure or lessen the period of disability, subject to the statute of limitations prescribed in N.C. Gen. Stat. §97-25.1, including any continuing pain treatment provided by Dr. Gwinn.  N.C. Gen. Stat. §97-2(19).
6.	Plaintiff 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 and a credit to defendants, defendants shall pay permanent partial disability compensation at the rate of $291.48 per week for 36 weeks as a result of the 12% rating to the back.
2.	Defendants shall take a credit from the amount awarded in Paragraph 1 in the amount of any temporary total disability compensation paid to plaintiff subsequent to 16 June 2005.
3.	A reasonable attorney's fee of 25% of the compensation awarded to plaintiff in Paragraph 1 above is hereby approved to be deducted from sums due plaintiff and paid directly to counsel.
4.	Defendants shall pay medical expenses incurred or to be incurred when bills for the same have been approved, in accordance with the provisions of the Act.
5.	Defendants shall pay the costs.
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	IT IS FURTHER ORDERED that this case be REMOVED from the Fayetteville docket.
	This the 27th day of October 2006.



			S/			
J. BRAD DONOVAN
DEPUTY COMMISSIONER

JBD:sm

I.C. Nos. 188517 & 478603	Page 10

Code:  123