x15639.doc

I.C. NO. X15639, ROSS B. CONOVER, Employee, Plaintiff v. CITY OF THOMASVILLE, Employer, N.C. INTERLOCAL RISK MANAGEMENT AGENCY, Carrier, Defendants.  OPINION AND AWARD for the Full Commission by PAMELA T. YOUNG, Chair, N.C. Industrial Commission.  Filed 23 May 2012.



	This case was heard before the Full Commission on March 26, 2012, upon appeal by Defendants from an Opinion and Award entered by Deputy Commissioner Robert J. Harris, filed November 14, 2011.
A P P E A R A N C E S
	Plaintiff:	Michael A. Swann, Attorney at Law, Lexington, North Carolina, appearing.

	Defendants:	Teague, Campbell, Dennis & Gorham, LLP, Attorneys, Raleigh, North Carolina; Dayle A. Flammia, appearing.

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The Full Commission reviewed the prior Opinion and Award based upon the record of the proceedings before the Deputy Commissioner and the briefs and arguments of the parties before the Full Commission.  Defendants have not shown good grounds to reconsider the evidence, and the Full Commission affirms with modifications the Opinion and Award of the Deputy Commissioner.
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The Full Commission 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 and bound by the provisions of the North Carolina Workers' Compensation Act.
Defendant-Carrier was the carrier on the risk for Defendant-Employer at all relevant times.
The employer-employee relationship existed at all relevant times between Defendant-Employer and Plaintiff.
Plaintiff suffered a rotator cuff tear in his left shoulder on October 30, 2010.
Plaintiff's average weekly wage in this claim is $657.92, which yields a compensation rate of $438.61.
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EXHIBITS
The following exhibits were admitted into evidence at the hearing before the Deputy Commissioner:
Exhibit 1:  Executed Pre-Trial Agreement
Exhibit 2:  Industrial Commission Forms and filings
Exhibit 3:  Plaintiff's medical records
Exhibit 4:  Plaintiff's employment file
Exhibits 5A and 5B:  Photographs of back porch area and catch pole
A transcript of the deposition of the following was also received into evidence after the hearing before the Deputy Commissioner:
Dr. Mark A. Rowley (with Plaintiff's Exhibits 1 & 2)
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Based upon the preponderance of the evidence of record, the Full Commission makes the following:
FINDINGS OF FACT
Plaintiff was 36 years old at the time of the hearing before the Deputy Commissioner, with a date of birth of September 2, 1975.
Before working with Defendant-Employer, Plaintiff had never held a job in law enforcement.  His job experience before Defendant-Employer mostly included maintenance and installation-type work.
After a probationary period, Plaintiff began working with Defendant-Employer full-time in September 2008 as a police officer and was promoted to the position of Police Officer II in September 2010.  As of the hearing before the Deputy Commissioner, Plaintiff continued to work in that position.
Plaintiff's supervisor Sergeant John Elgin testified before the Deputy Commissioner that Plaintiff is a very good officer, punctual and well presented and "goes beyond his duties a lot of times to make sure everything is properly organized as far as case."
Defendant-Employer's written job description, stipulated into evidence at the hearing before the Deputy Commission, for a police officer with Thomasville Police Department does not include any reference to any animal control duties.
Defendant-Employer has a separate job description for its animal control officer, who is specifically designated to investigate complaints and violations of the law related to animals.  This document was also stipulated into evidence at the hearing before the Deputy Commissioner.
Defendant-Employer's police department organizational chart has three departments and places the animal control officer in the Administrative Bureau, along with the records supervisor, records clerks and telecommunicators.  The other two departments recognized on the organizational chart are the following: (a) Field Operations Bureau Captain; and (b) Investigative Services Bureau Captain.
The police department organizational chart places police officers, which are identified merely as "officers," under the Field Operations Bureau Captain, which is a separate department from the Administrative Bureau.
Sergeant John Elgin testified before the Deputy Commissioner that the police department has no training manual for catching dogs.
Plaintiff testified before the Deputy Commissioner that when he began working as a police officer for Defendant-Employer, as part of his training, he observed other positions being performed, including animal control.  Plaintiff testified that he did not receive any formal or specific training in animal control techniques, but did observe two or three animal catchings over a few hours on one of his shifts.
Prior to the incident described herein, Plaintiff testified that he had been involved in four or five animal control calls in his time working with Defendant-Employer from September of 2008 through October 30, 2010.
On Saturday, October 30, 2010, shortly before noon, Plaintiff testified that he was dispatched to respond to a report of an aggressive dog.  Plaintiff testified that the person employed by Defendant-Employer as the animal control officer was not dispatched because he only worked from 8 a.m. to 5 p.m. on weekdays.
When Plaintiff arrived at the address, the complainant told him that a dog had been backed into a corner between the back of his house and his back porch for more than 12 hours.
Plaintiff testified that he found the dog in the location that the complainant reported, and when he attempted to approach the dog, it growled and bared its teeth.  Aside from the dog having backed itself into the corner, access to the dog was obstructed by some children's large plastic toy trucks.
Plaintiff testified that he determined that he would need a catch pole in order to control the dog and he went back to the police department to get the spare animal control vehicle.
A picture of a catch pole was admitted into evidence at the hearing before the Deputy Commissioner.  Based upon testimony before the Deputy Commissioner and the picture, a catch pole appears to be a hollow but rigid metal tube about one inch in diameter and approximately five feet long with a grip in the center of its length and a wire cable running through the tube.  The cable coming out one end is looped with rubberized coating, and a length of the same cable comes out the other end of the pole.  The user gets the loop of cable around the neck of the animal like a collar, and then pulls on the length of cable coming out the other end of the pole to ratchet the loop tight.  The animal can then be controlled with the catch pole acting as a rigid leash.  Usually the animal catcher is on about the same level as the animal and is positioned behind it.
In addition to Plaintiff leaving the scene to obtain an animal control vehicle and a catch pole, Plaintiff also testified that he called in for assistance, and another police officer, Officer Harris, joined him at the scene.
Plaintiff testified that the two officers decided that Officer Harris would distract the dog by walking through the yard, while Plaintiff would stand on the edge of the back porch, behind the railing, almost directly above the dog and slightly behind it, in order to try to snare the dog with the catch pole.
Plaintiff held the catch pole vertically with the loop end down and the center grip in his right hand and the other end, with the pull-cable, in his left hand.  The pull-cable end of the pole was at about Plaintiff's chin level, meaning that he would have to pull the cable up above his shoulder.
As Officer Harris distracted the dog, Plaintiff testified that he leaned over the back porch railing, got the loop around the dog's neck, and then jerked upward on the pull-cable quickly and forcefully with his left hand in order to cinch the loop tight around the dog's neck.
Plaintiff testified that when he jerked upward on the cable with his left hand, he felt an immediate shocking severe pain in his left shoulder, and he had to hand the catch pole with the dog to Officer Harris.
Plaintiff testified that he had severe pain for several minutes and immediately stated to Officer Harris that he "did something," but the pain subsided and he was able to finish his shift for that day.  Plaintiff continued working for Defendant-Employer, but was given light duty assignments, such as communications, investigative and desk work.
Plaintiff immediately reported the incident and his injury in writing to Sergeant Elgin.
On October 30, 2010, the same day as the injury, Plaintiff presented to UrgentCare with complaints of "Lt shoulder pain after pulling on catch pole trying to catch a dog."  Plaintiff was diagnosed with a left shoulder strain.
On November 16, November 23, and December 1, 2010, Plaintiff returned to UrgentCare with no improvement and with complaints of increased pain.  On December 1, 2010, Plaintiff was referred to an orthopedist.
Defendants denied Plaintiff's claim via a Form 61 Denial of Workers' Compensation Claim dated November 24, 2010.
On December 6, 2010, Plaintiff presented to Dr. Mark Rowley, an orthopedic surgeon, with "reports [of] straining his left shoulder 4 weeks ago at work pulling a dog."  Plaintiff was diagnosed with a left shoulder tear and scheduled for an MRI.
On December 15, 2010, Plaintiff returned to Dr. Rowley and was diagnosed with a complete tear of the left rotator cuff.
On January 13, 2011, Plaintiff underwent a left shoulder arthroscopy with subacromial decompression and mini open rotator cuff repair surgery with Dr. Rowley.
Dr. Rowley testified during his deposition that Plaintiff had suffered his rotator cuff tear in the October 30, 2010 dog-catching incident and that the surgery on January 13, 2011 was necessitated by said injury.
Plaintiff was written out of work from January 13, 2011 through January 24, 2011.  Post-operatively, Plaintiff underwent physical therapy through March 8, 2011.
Plaintiff testified that following the surgery, Plaintiff returned to work with no use of his left arm, but was later returned to full duty work with no restrictions.
Dr. Rowley opined in his deposition on June 22, 2011 that Plaintiff was not yet at maximum medical improvement and that he could have some permanent partial impairment to his left shoulder.
As of the hearing before the Deputy Commissioner, Plaintiff testified that his left shoulder was doing much better, but was still sore and woke him up at night.  Plaintiff further testified that he did not feel like he had full range of motion or strength back yet.
Plaintiff gave a recorded statement to Defendant-Carrier's adjustor on November 24, 2010.  During the statement, when asked if he had caught dogs before on the job as a police officer, Plaintiff responded that he had and voluntarily stated that "I can't tell you how many times."  Asked if he had done the Saturday, October 30, 2010 dog-catching incident any differently than the other times, Plaintiff responded "It's basically nothing different this time than any other time I did it."  Plaintiff also answered "Yes" when asked if dog-catching were a normal part of his job as a police officer.
In the recorded statement, when asked if "anything unusual had happened" on the day he was hurt, Plaintiff replied "No."  When asked if he had been in an "awkward position," Plaintiff replied "No."
The recorded statement concluded with the adjustor stating, "But . . . this is a normal job duty for you, and nothing out of the ordinary occurred, is that correct?" and Plaintiff replying, "Correct."
During cross-examination at the hearing before the Deputy Commissioner, Plaintiff testified that the recorded statement differed from his testimony before the Deputy Commission because Plaintiff had thought his normal job as a police officer was to respond to whatever situation he was told to respond to, including dog catching.  Plaintiff further testified that since the recorded statement on November 24, 2010, he had been informed that dog catching was actually part of animal control.  Plaintiff further clarified before the Deputy Commissioner that the  operation of the catch pole was different on the Saturday, October 30, 2010 dog-catching incident from the others he had done because of the violence of the motion that this dog-catching required.  Plaintiff testified that, when he was asked by the adjustor whether he had been in an "awkward" position, he took the question to mean whether his body position had been difficult to get into.
Plaintiff testified before the Deputy Commissioner that he had been truthful in his recorded statement, but that he had not understood that some of the terms used had vauge meanings that would directly impact his claim.
Based upon the preponderance of the evidence of record, the Full Commission finds that while Plaintiff's answer and explanation in the recorded statement were ambiguous, they were plausible given the totality of the evidence and Plaintiff's description in the recorded statement of the October 30, 2011 dog-catching incident is consistent with his hearing testimony before the Deputy Commissioner.  The Full Commission further finds that Plaintiff's response to the question of how many dog-catchings Plaintiff had done before the one on Saturday, October 30, 2010 was ambiguous and not probative to the issue as to whether Plaintiff sustained an on-the-job injury.
Based upon the preponderance of the evidence of record, the Full Commission finds Plaintiff to have been a credible witness.
Based upon the preponderance of the evidence of record, the Full Commission finds that on October 30, 2010, Plaintiff experienced an interruption of his normal work routine when unusual conditions were introduced which resulted in unexpected consequences.  Plaintiff sustained an injury by accident to his left shoulder arising out of and in the course of his employment with Defendant-Employer when he was dog-catching at a residence and was unable to stand on the same level and behind the dog, which is the normal position for dog catching.  The Full Commission finds that Plaintiff was required to stand on a porch above the dog instead of on the same level, and was required to be directly above the dog instead of behind the dog.  Plaintiff was forced to use an unusual amount of exertion to loop the pull-cable around the dog's neck and to pull directly up on the pull-cable quickly and forcefully.  The Full Commission further finds that Plaintiff had participated in only four to five dog-catching occurrences over a two year period and only at times when animal control was off duty.
Based upon the preponderance of the evidence of record and the medical evidence of record, the Full Commission finds that the medical treatment that Plaintiff has received for his left shoulder condition has been reasonably required to effect a cure, provide relief and/or lessen the period of Plaintiff's disability, and that further medical treatment for Plaintiff's left shoulder condition may be reasonably required to effect a cure, provide relief, or to provide an impairment rating to Plaintiff's left shoulder.
The Deputy Commissioner decided this matter in favor of Plaintiff.  Defendants appealed to the Full Commission.  The Full Commission has decided this matter in favor of Plaintiff, consistent with the Opinion and Award.
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Based upon the foregoing Stipulations and Findings of Fact, the Full Commission concludes as follows:
CONCLUSIONS OF LAW
The dog-catching call to which Plaintiff was dispatched on October 30, 2010 was not a routine part of Plaintiff's job duties as a police officer, and the dog-catching itself required that Plaintiff get into an awkward position and exert force in an unusual manner.  As such, Plaintiff has shown, by the preponderance of the evidence in view of the entire record, that he sustained a compensable injury by accident to his left shoulder arising out of and in the course of his employment.  N.C. Gen. Stat. §97-2(6).
Plaintiff is entitled to have Defendants pay for the medical treatment he has heretofore received for his compensable left shoulder injury, including but not limited to prescriptions, diagnostic testing and imaging, surgery and physical therapy and mileage.  N.C. Gen. Stat. §§97-2(19) and 97-25.
Plaintiff is entitled to have Defendants authorize and pay for further medical treatment for his compensable left shoulder condition, including but not limited to prescriptions, physical therapy, referrals and mileage.  Id.
Plaintiff was temporarily totally disabled for the period from January 13, 2011 through January 24, 2011 as a result of the surgery for his compensable left shoulder condition.  After deduction of the seven-day waiting period, he is entitled to receive temporary total disability compensation for the period from January 20, 2011 through January 24, 2011.  N.C. Gen. Stat. §§97-2(9), 97-28 and 97-29.
Plaintiff's counsel is entitled to recover attorney's fees pursuant to a petition under N.C. Gen. Stat. §97-90(c).  Palmer v. Jackson, 579 S.E.2d 901, 157 N.C. App. 625 (2003).
The Commission may award reasonable attorney's fees for the cost of the appeal in cases where an appeal is brought by the insurer and the Commission orders the insurer to pay compensation to the plaintiff.  N.C. Gen. Stat. §97-88.  Plaintiff is entitled to attorney's fees in this case under this provision.
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Based upon the foregoing Stipulations, Findings of Fact, and Conclusions of Law, the Full Commission enters the following:
A W A R D
Defendants SHALL pay Plaintiff temporary total disability compensation, in a lump sum, for the period from January 20, 2011 through January 24, 2011 in the amount of $438.61 per week, which comes to a payment of $313.30.
To any extent they have not already done so, Defendants SHALL pay for the medical treatment Plaintiff has heretofore received for his compensable left shoulder injury, including but not limited to prescriptions, diagnostic testing and imaging, surgery and physical therapy and mileage.  To the extent that Plaintiff or any third-party payor(s) have paid for such treatment, Defendants SHALL reimburse such payor(s) in full.
Dr. Rowley IS HEREBY DESIGNATED as Plaintiff's treating physician, and Defendants SHALL, subject to the limitations period of N.C. Gen. Stat. §97-25.1, authorize and pay for the treatment that he recommends for Plaintiff's compensable left shoulder condition, including but not limited to prescriptions, physical therapy, referrals and mileage.
Defendants shall pay an attorney's fee to Plaintiff's counsel as part of the cost of this appeal.  Within 15 days of his receipt of this Opinion and Award, Plaintiff's counsel should submit to Chair Young's office a petition for an attorney's fee, along with an affidavit of time, and proposed Order pursuant to the provisions of N.C. Gen. Stat. §97-88.  Among the other documentation required pursuant to said provisions, Plaintiff's counsel should provide an affidavit setting forth an itemization of the time spent by him and his staff making a distinction between attorney and paralegal time.  Thereafter, the Full Commission will file an Order setting Plaintiff's attorney's fee.
Defendants shall pay the costs. 
This the __ day of May 2012.



			S/			
PAMELA T. YOUNG
CHAIR


CONCURRING:



			S/			
BERNADINE BALLANCE
COMMISSIONER



			S/			
LINDA CHEATHAM
COMMISSIONER


PTY:ac

I.C. No. X15639	Page 13

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