x51218.doc

I.C. NO. X51218, JOHN M. McCORMICK, Employee, Plaintiff v. EXEL/DPWN HOLDINGS, INC., Employer, SELF-INSURED (SEDGWICK CMS, Servicing Agent), Defendant.  OPINION AND AWARD by MYRA L. GRIFFIN, Deputy Commissioner, N.C. Industrial Commission.  Filed 5 August 2014.



	This case was heard before the undersigned on November 13, 2013.  Thereafter, the parties were allowed time to take additional testimony as necessary and to submit contentions and proposed opinion and awards.  After receipt of the parties' contentions and proposed opinion and awards, the record was closed on May 20, 2014.  The matter is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Law Offices of Kathleen G. Sumner, Attorneys, Greensboro, North Carolina; Kathleen G. Sumner, appearing.

	Defendants:	Hedrick Gardner Kincheloe & Garofalo, LLP, Attorneys, Charlotte, North Carolina; Brooke M. Lewis, 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 as:
STIPULATIONS
	1.	The Employee-Plaintiff is John McCormick.
	2.	The Employer is Exel, Inc.
	3.	The Employer is self-insured and Sedgwick CMS is the third party administrator.
	4.	At all relevant times, Defendant-Employer regularly employed three or more employees and was bound by the North Carolina Workers' Compensation Act.  The employer and employee relationship existed between the employer and the employee on or about June 8, 2011 the date of the compensable injury by accident to his back, right wrist, right knee, neck and headaches.
	5.	The Industrial Commission has jurisdiction over the subject matter and the parties.
	6.	Employee-Plaintiff's average weekly wage is $466.62, which yields a weekly compensation rate of $311.24.
	7.	Employee-Plaintiff was out of work from June 9, 2011, through June 16, 2011, and was paid temporary total disability for June 16, 2011, pursuant to N.C. Gen. Stat. § 97-28.
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	The following were submitted to the undersigned as:
EXHIBITS
	1.	Stipulated Exhibit Number 1, Pre-Trial Agreement
	2.	Stipulated Exhibit Number 2, Industrial Commission Forms
	3.	Stipulated Exhibit Number 3, Industrial Commission Motions and Orders
	4.	Stipulated Exhibit Number 4, Medical Records
	5.	Stipulated Exhibit Number 5, Medical Bills
	6.	Stipulated Exhibit Number 6, Genex
	7.	Stipulated Exhibit Number 7, Job Description
	8.	Stipulated Exhibit Number 8, Medical Bill Analysis
	9.	Stipulated Exhibit Number 9, Plaintiff's Responses to Discovery
	10.	Stipulated Exhibit Number 10, Defendants' Responses to Discovery
	11.	Plaintiff's Exhibit Number 1, Plaintiff's Employment File
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The following were received into evidence as:
DEPOSITIONS
	1.	Oral deposition of Donald K. Bynum, Jr., M.D., taken on March 5, 2014 with Plaintiff's Exhibit number 1 attached to the deposition transcript.
	2.	Oral deposition of Kevin Carneiro, D.O., taken on December 17, 2014.
	3.	Oral deposition of Alan G. Finkel, M.D., taken on January 13, 2014.
	4.	Oral deposition of Ganesh V. Kamath, M.D., taken on March 24, 2014 with Plaintiff's Exhibit number 1 attached to the deposition transcript.	
	5.	Oral deposition of Michael Stickney, MS, CRC, taken on April 10, 2014 with Defendants' Exhibits numbered 1 and 2 and Plaintiff's Exhibits numbered 1, 2, 3, 4, 5, 6, 7 and 8 attached to the deposition transcript.
	6.	Oral deposition of Stephanie Yost, taken on April 10, 2014 with Plaintiff's Exhibit number 1 attached to the deposition transcript.
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The following were submitted to the undersigned as:
ISSUES
	1.	Whether Plaintiff is entitled to indemnity benefits from May 1, 2013 and continuing?
	2.	If Plaintiff is entitled to indemnity benefits, are Defendants entitled to a credit against unemployment benefits?
	3.	Whether either party is entitled to attorney's fees and costs pursuant to N.C. Gen. Stat. § 97-88.1?
	4.	In the Pre-Trial Agreement, Plaintiff raised several other issues regarding potential violations of N.C. Gen. §§ 97-26.6; 97-25.6(c)(2) by Defendants, but did not address the issues further in Plaintiff's contentions.  As a result, the undersigned does not address these issues as they are deemed abandoned.
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Based upon the foregoing Stipulations and evidence of record, and upon the preponderance of the evidence in view of the entire record, the undersigned enters the following:
FINDINGS OF FACT
	1.	As of the date of the hearing before the undersigned, Plaintiff was 50 years old.  He began working for Defendant-Employer in February 2010 as a matuzzi machine operator.  In 2011, he moved to the force machine operator position, which is a production job.
	2.	On June 8, 2011, Plaintiff slipped and fell backwards off of a stepladder, injuring his back, right wrist, right knee and head.  Defendants admitted liability by filing a Form 60 Employer's Admission of Employee's Right to Compensation.
	3.	On the date of the accident, Plaintiff was taken by ambulance to Cape Fear Valley Medical Center emergency room for treatment.  Plaintiff underwent CT scans of the head and abdomen, which showed no abnormalities.  X-rays of his right ankle and right wrist were unremarkable.  He was diagnosed with abdominal pain, a lumbosacral strain, knee and wrist pain.  Plaintiff was written out of work from June 9, 2011 to June 16, 2011.  Defendants paid Plaintiff for one day of temporary total disability benefits.
	4.	Following his emergency room visit, Plaintiff received medical treatment with Dr. Whitmer at US Healthworks.  On July 27, 2011, Dr. Whitmer referred Plaintiff to Dr. Donald Bynum, an orthopaedist, for treatment of the right wrist.
	5.	On September 21, 2011, Plaintiff presented to Dr. Bynum with a three month history of right wrist pain as a result of his fall at work.  Plaintiff underwent an MRI scan of the right wrist, physical therapy and injections.  Dr. Bynum determined surgery would not be necessary.  On May 2, 2012, Dr. Bynum released Plaintiff at maximum medical improvement with a 5% permanent partial impairment rating and no permanent work restrictions.
	6.	On July 27, 2012, Plaintiff returned to Dr. Bynum after working full duty with reports of recurring symptoms in his right wrist.  As a result, Dr. Bynum assigned permanent work restrictions of no lifting greater than 30 pounds.  Dr. Bynum opined that Plaintiff was capable of working within the assigned restrictions.
	7.	On July 26, 2011, Plaintiff presented to Dr. Ganesh Kamath at UNC Orthopaedic for treatment of his right knee injury.  Dr. Kamath diagnosed Plaintiff with patellar tendinitis and administered an injection.  Dr. Kamath prescribed physical therapy and anther injection to treat the condition.  On February 28, 2012, Dr. Kamath opined Plaintiff's patellar tendonitis had resolved following physical therapy and released Plaintiff to return to work without restrictions.
	8.	On October 24, 2011, Plaintiff presented to Dr. Alan Finkle at Carolina Headache Institute reporting daily headaches as a result of his fall at work on June 8, 2011.  Following a series of neuropsychiatric testing, Plaintiff was diagnosed with chronic post traumatic headaches and prescribed medication.  On April 16, 2012, Dr. Finkle released Plaintiff from his care with no permanent work restrictions.
	9.	On August 30, 2011, Plaintiff presented to Dr. Kevin Carneiro, who is also part of UNC Orthoapedics, for complaints of low back pain after a fall at work.  Dr. Carneiro diagnosed Plaintiff with discogenic, axial low back pain and referred him to physical therapy, which was denied by Defendants.  An MRI scan of Plaintiff's lumbar spine was completed on June 16, 2014.  Plaintiff underwent physical therapy and received injections to relieve his symptoms.  Dr. Carneiro assigned light duty work restrictions with a plan to transition to full duty work without restrictions.
	10.	On September 14, 2012, Plaintiff returned to Dr. Carneiro reporting that his back worsened after 3 to 4 days of working.  Dr. Carneiro assigned light duty restrictions and administered another injection on September 20, 2014.  Due to Plaintiff's continuing back pain, Dr. Carneiro referred Plaintiff to a stabilization program to strengthen the muscles in his back.  On February 4, 2014, Dr. Carneiro determined Plaintiff had reached maximum medical improvement and referred him for a Functional Capacity Evaluation to determine his restrictions.
	11.	On February 27, 2013, Plaintiff underwent a Functional Capacity Evaluation in which it was determined that Plaintiff could perform in the medium physical demand level.  On March 13, 2013, Dr. Carneiro released Plaintiff to return to work within the restrictions as recommended by the Functional Capacity Evaluation, which specified occasional lifting up to 50 pounds floor to waist, occasional lifting up to 40 pounds waist to shoulder, carrying up to 30 pounds, pushing 51 pounds of force and pulling 61 pounds of force.
	12.	On April 29, 2013, Plaintiff informed Dr. Carneiro that frequent sitting breaks and no overtime would make him better.  Consequently, Dr. Carneiro assigned additional permanent work restrictions of frequent sitting breaks during work every 30 minutes for no more than 5 minutes at a time.  Additionally, Dr. Carneiro assigned a 5% permanent partial impairment rating to the back.
	13.	On June 17, 2011, Plaintiff returned to work in a light duty position until May 1, 2013, when he was assigned the additional permanent work restrictions by Dr. Carneiro.  Defendants were unable to accommodate Plaintiff's permanent work restrictions.
	14.	On May 21, 2013, Plaintiff filed a Form 23 Application to Reinstate Payment of Disability Compensation requesting reinstatement of indemnity benefits beginning on April 30, 2013 and going forward.  On May 30, 2013, Defendants responded to the Application.  On June 20, 2013, former Special Deputy Commissioner Jennifer Boyer entered an Order denying Plaintiff's Form 23 and referring the claim to a full evidentiary hearing.
	15.	As of the date of the hearing before the undersigned, Plaintiff had not returned to work in any capacity.
	16.	On July 9, 2013, Defendants offered to provide Plaintiff with vocational rehabilitation and attempted to set up an initial meeting between Plaintiff and the vocational counselor.  However, Plaintiff refused the offer of vocational rehabilitation.
	17.	On November 25, 2013, a certified vocational counselor, Michael Stickney, performed a labor market survey, between November 13, 2013 and November 25, 2013 at the request of Defendants.  Mr. Stickney utilized a Verteck Oasys computer system to identify possible transferrable skills of Plaintiff.  He also used multiple job search engines to identify available jobs in the Fayetteville area.  Mr. Stickney identified approximately 13 positions in the medium duty category.  He did not meet with Plaintiff during his preparation of the labor market survey.
	18.	Plaintiff retained his own vocational counselor, Stephanie Yost, to perform an independent labor market survey.  Ms. Yost met with Plaintiff and obtained a more in-depth understanding of his interests, restrictions and additional past work experience.  Ms. Yost opined Plaintiff was a prime candidate for vocational rehabilitation.  Ms. Yost further opined that Plaintiff is physically and mentally capable of work, but may need assistance with seeking employment because he lacks computer skills.
	19.	Plaintiff did not look for employment for the first three months after he last worked for Defendant-Employer as he believed he was still employed with the company.  At the hearing before the undersigned, Plaintiff testified he looked for jobs at warehouses, schools and at Bojangle's and other restaurants.
	20.	At issue in this claim is whether Plaintiff is entitled to a reinstatement of disability compensation from April 30, 2013 and continuing.  Following his June 8, 2011 injury, Plaintiff returned to work with Defendant-Employer within his assigned work restrictions until May 1, 2013.  On February 27, 2013, Plaintiff underwent a Functional Capacity Evaluation which indicated Plaintiff could perform in the medium physical demand level.  Plaintiff continued to work with Defendant-Employer within the restrictions identified in the Functional Capacity Evaluation.  On April 29, 2013, Plaintiff returned to Dr. Carneiro with a request to be excused from overtime work and to be permitted to have frequent sitting breaks during work every 30 minutes for no more than 5 minutes at a time.  Dr. Carneiro assigned the additional restrictions based upon Plaintiff's request.  In light of the additional restrictions assigned after the completion of the Functional Capacity Evaluation, Defendant-Employer was unable to accommodate Plaintiff's permanent work restrictions.  Plaintiff has not worked in any capacity since April 29, 2013.  The first three months following his last day of employment, Plaintiff did not search for any work as he considered himself still employed with Defendant-Employer.  Subsequently, Plaintiff contends that he searched for work at warehouses, schools and restaurants, but did not provide any evidence such as a work search log, submitted applications or names of employers or businesses that he contacted for work.  The undersigned finds that Plaintiff did not conduct a reasonable job search after being released to medium duty work with restrictions.  Plaintiff's job search consisted mainly of contacting unidentified warehouses, schools and restaurants without submitting any applications.
	21.	Based upon the totality of the credible evidence of record, Plaintiff has not proven that he made a reasonable effort to find suitable employment and there is insufficient evidence to show that it would be futile for Plaintiff to find suitable employment.  Plaintiff has failed to prove that any disability he may have or inability to earn wages after April 29, 2013 was the result of, or related to his June 8, 2011 injury by accident.
22.	Based upon a preponderance of the evidence of record, the undersigned finds that neither party pursued any issue in this matter in an unreasonable manner or without reasonable ground.
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Based upon the foregoing Stipulations and evidence of record, and upon the preponderance of the evidence in view of the entire record, the undersigned enters the following:
CONCLUSIONS OF LAW
	1.	On June 8, 2011, Plaintiff sustained an injury by accident arising out of and in the course of his employment with Defendant-Employer involving injuries to his back, right wrist, right knee and head.  N.C. Gen. Stat. § 97-2(6).
2.	The Form 60 filed in this matter accepting compensability does not create a presumption of continuing disability.  In order to meet the burden of proving continuing disability, plaintiff must prove that he was incapable of earning pre-injury wages in either the same or in any other employment and that the incapacity to earn pre-injury wages was caused by plaintiff's injury.  Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982).  An employee may meet the initial burden of production by producing one of the following:  (1) medical evidence that he is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of preexisting conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that he has obtained other employment at wages less than his pre-injury wages.  Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993).
3.	In the present case, Plaintiff was released to medium duty work with restrictions on April 29, 2013.  Plaintiff did not meet his burden to prove that after April 29, 2013 he was unable to obtain employment after a reasonable effort or that it was futile for him to seek employment because of other factors.  The preponderance of the evidence of record establishes that Plaintiff was capable of some work and did not conduct a reasonable work search for suitable employment.  Additionally, Plaintiff declined vocational rehabilitation assistance offered by Defendants.  N.C. Gen. Stat. § 97-29; Russell v. Lowe's Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993).
4.	Based upon the totality of the credible vocational and medical evidence of record, Plaintiff has failed to prove that any disability or inability to earn wages he may have had subsequent to April 29, 2013 was the result of, or causally related to his June 8, 2011 injury by accident.  Id.
	5.	Because neither party pursued any issue in this matter in an unreasonable manner or without reasonable ground, neither party is entitled to sanctions in the form of attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1.
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Given the foregoing Stipulations, Findings of Facts, Conclusions of Law, and based upon the preponderance of the evidence in view of the entire record, the undersigned enters the following:
A W A R D
	1.	Plaintiff's claim for additional compensation under the Act is HEREBY DENIED.
	2.	Pursuant to Industrial Commission Rule 611(6), each side shall pay its own costs, including hearing costs in the total amount of $120.00.  The costs shall be paid as follows:  Plaintiff shall pay a sum certain of $60.00 to be paid to the Industrial Commission, and Defendants shall pay a sum certain of $60.00 to be paid to the Industrial Commission.
	3.	No attorney's fees under N.C. Gen. Stat. § 97-88.1 are appropriate to be awarded in this matter.
	IT IS FURTHER ORDERED that this claim be REMOVED from the active Cumberland County hearing docket.



			S/			
MYRA L. GRIFFIN
DEPUTY COMMISSIONER

MLG:llr

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