Opinion
I.C. No. 513495.
Filed 6 December 1999.
This case was reviewed by the Full Commission on 13 January 1999 upon appeal by defendant from an Opinion and Award by Deputy Commissioner Chrystal Stanback filed 7 July 1998. Deputy Commissioner Stanback initially heard this case on 16 September 1997, and the depositions of Edward Lloyd Hines, M.D., James Christopher Califf, M.D., and Thomas Edward Rafferty, Jr., were thereafter received into evidence.
Plaintiff: Charles N. Stedman, Attorney, Burlington, North Carolina, Counsel of Record.
Defendant: Teague, Rotenstreich and Stanaland, Attorneys, Greensboro, North Carolina; Elizabeth M. Stanaland, Counsel of Record.
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Upon review of the competent evidence of record, the Full Commission, upon reconsideration of the evidence, affirms in part and reverses in part the Opinion and Award of the Deputy Commissioner. The Full Commission affirms the finding that the covering machine job aggravated plaintiff's medical condition, but reverses findings and conclusions that plaintiff's refusal to accept the lead operator position was justified and that plaintiff is entitled to continuing total disability compensation.
The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing and in a Pre-Trial Order as:
STIPULATIONS
1. All parties hereto are subject to and bound by the provisions of the North Carolina Workers' Compensation Act; and the employer is self-insured.
2. Plaintiff sustained injuries on 30 September 1994.
3. Plaintiff's actual average weekly wage at the time of her injury, including overtime and all allowances, was $355.39, according her a compensation rate of $236.94 per week subject to further verification from the defendant's records.
4. Plaintiff was paid temporary total disability benefits from 2 February 1995 through 19 March 1995, and temporary partial disability benefits from 20 March 1995 through 29 May 1995. Plaintiff returned to work 1 November 1995 through 16 May 1996 working full-time at her pre-injury wages.
5. The issues for determination are: (1) whether plaintiff is entitled to temporary total, temporary partial, permanent partial disability benefits and medical compensation from May 1995 through November 1995, and subsequent to May 1996; (2) whether plaintiff unjustifiably refused employment offered by the employer within her physical capacity?
6. Stipulated exhibits at the hearing were: (1) eleven pages of Industrial Commission Forms, (2) nineteen pages of medical records, (3) a one page letter dated May 16, 1996 signed by Harold Dixon, (4) plaintiff's response to defendant's Interrogatories, (5) a video tape of plaintiff's job with the employer and (6) three pages of a Form 22, which indicates pre-injury and post-injury earnings.
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Based upon the competent evidence of record, the Full Commission makes the following additional:
FINDINGS OF FACT
1. Plaintiff was 37 years old at the time of the hearing. She graduated from high school and has worked for a drafting company, has performed rabies vaccinations, has provided babysitting services, and then worked for a textile company.
2. Plaintiff went to work for the defendant in February 1987. Defendant produces fine elastic yarn that is used in women's pantyhose and other fabrics. Plaintiff began having problems with her hands and wrists in 1994. The parties executed a Form 21 agreement, and plaintiff began treating with Dr. Edward Hines in February 1995. During this time, plaintiff was paid total disability benefits. Dr. Hines diagnosed plaintiff with carpal tunnel syndrome in her left arm and hand. She had surgery in February 1995. After the surgery, Dr. Hines kept plaintiff out of work for one month, but then returned her to work at four hours a day. Plaintiff worked four hours a day from 19 March 1995 until 29 May 1995. At that time, Dr. Hines noted plaintiff was three months post-surgery, and he released her to return to work full time.
3. On 26 May 1995, two days after being released to return to work full time, plaintiff went to see Dr. James Califf, an orthopedic surgeon of her own choosing. After an examination, Dr. Califf's impression was that plaintiff suffered persistent carpal tunnel syndrome. He recommended that plaintiff continue working only four hours per day from 29 May 1995 until 9 June 1995. He administered injections and referred plaintiff to physical therapy.
4. By letter received by the Industrial Commission on 2 June 1995, plaintiff requested that Dr. Califf be approved as her treating physician, which was within a reasonable time after procuring her doctor. However, the Commission did not rule on plaintiff's motion.
5. On 9 June 1995, Dr. Califf took plaintiff out of work and recommended that she not return to any type of repetitive job duties, due to her continuing problems with symptoms of carpal tunnel syndrome. Due to these continued symptoms, plaintiff was unable to earn wages until 1 November 1995, when she returned to work with defendant full time.
6. On 21 July 1995, Dr. Califf assigned plaintiff a five percent (5%) permanent partial disability rating to her left hand. Dr. Califf also opined that plaintiff's persistent tenosynovitis and carpal tunnel syndrome symptoms were caused by the repetitive nature of plaintiff's job duties with the defendant.
7. Plaintiff continued working full time until 16 May 1996. At that time, she approached her supervisor with complaints of swelling, numbness, and aching in her left hand and arm. Because of the pain and swelling, plaintiff believed that she could no longer operate the ICBT machines (the type of covering machine involved in her job), and, therefore, she exercised the option of being laid off.
8. Prior to being laid off, plaintiff was offered a lead operator position, a supervisory job available on third shift. Plaintiff was physically able to perform this position, but she refused it for personal reasons. Plaintiff had applied for the position, but wanted to work on first shift rather than on third shift. The first shift position was currently filled and, therefore, not available to plaintiff at that time. Plaintiff does not dispute that the lead operator position afforded her an opportunity to earn the same or greater wages than she earned in the ICBT position. Rather, plaintiff contends that her refusal of the job was justified because she has three young children, her husband is disabled, and she preferred not to work third shift because of her family situation. However, there is no evidence of the nature of the husband's disability or why he would not be able to attend to the children in the evenings after plaintiff left for third shift. While plaintiff may not have desired to work third shift, her refusal was not related to her compensable injury and was unjustified under the circumstances. The proffered job was suitable to plaintiff's skills and physical ability and demonstrated plaintiff's ability to earn wages competitively.
9. Beginning in the fall of 1996, plaintiff participated in a vocational retraining program through the office of vocational rehabilitation. She was enrolled in a two-year program for an associate degree in early childhood education at Alamance Community College. She has attended full time. Part of her course work has required her to work in a day care facility four days a week organizing activities for children ages two to three years. She has also prepared handwritten and typewritten work as part of her assignments.
10. At the time of the hearing before the deputy commissioner, plaintiff's left arm and hand were sometimes aggravated by certain activities. She would also drop things on occasion. In her work in child care labs, she primarily used her right hand in assisting the children.
11. An ergonomic analysis indicated that the covering machine job which plaintiff performed in her employment with defendant placed her at a low risk for cumulative trauma disorder. However, defendant entered into a Form 21 Agreement for plaintiff's repetitive motion complaints, and the covering machine job did in fact aggravate plaintiff's physical condition, most likely due to her preexisting predisposition and her weakened condition following surgery.
12. Defendant paid plaintiff total wage loss benefits from 2 February 1995 through 19 March 1995, and partial wage loss benefits from 20 March 1995 until 29 May 1995.
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Based upon the foregoing stipulations and findings of fact, the Full Commission concludes as follows:
CONCLUSIONS OF LAW
1. Plaintiff is entitled to additional partial disability compensation from 29 May 1995 through 8 June 1995, based on the difference between $236.94 per week and two-thirds of the wages she earned during this period. G.S. § 97-30.
2. Plaintiff is entitled to additional total disability compensation at the rate of $236.94 per week from 9 June 1995 until 1 November 1995. G.S. § 97-29.
3. Defendant shall pay all medical expenses incurred by plaintiff as a result of her compensable injury on 30 September 1994 and resulting carpal tunnel syndrome, including the medical expenses incurred as a result of her visits to Dr. James Califf. G.S. § 97-25.
4. Plaintiff sought approval of Dr. Califf as her treating physician within a reasonable time. Dr. Califf is hereby approved as plaintiff's treating physician. G.S. § 97-25.
5. Plaintiff unjustifiably refused suitable employment offered by defendant in May 1996, and compensation is suspended during the period of refusal. G.S. § 97-32.
6. Plaintiff's counsel is entitled to a reasonable attorney's fee of 25% of the compensation due plaintiff.
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Based upon the foregoing findings of fact and conclusions of law, the undersigned enters the following
AWARD
1. Defendant shall pay partial disability compensation from 29 May 1995 through 8 June 1995, computed as the difference between two-thirds of the wages earned during each week and $236.94. This amount shall be paid in a lump sum, subject to the attorney's fee approved herein.
2. Defendant shall pay total disability compensation to plaintiff at the rate of $236.94 per week from 9 June 1995 until 1 November 1995, paid in a lump sum, subject to the attorney's fee approved herein.
3. Defendant shall pay all medical expenses incurred by plaintiff as a result of her compensable injury on 30 September 1994 and resulting carpal tunnel syndrome, when bills are submitted to the Industrial Commission pursuant to approved Industrial Commission procedure.
4. Defendant shall deduct twenty-five percent from the compensation due plaintiff for payment of plaintiff's attorney's fees and pay this amount directly to plaintiff's counsel.
5. Defendant shall pay the costs.
S/_____________ RENEE C. RIGGSBEE COMMISSIONER
CONCURRING:
S/_____________ DIANNE C. SELLERS COMMISSIONER
DISSENTING:
S/_____________ CHRISTOPHER SCOTT COMMISSIONER
In this matter, the majority finds that plaintiff contracted a compensable occupational disease, specifically carpal tunnel syndrome, as the result of her employment with defendant. I agree. Inexplicably, however, the majority goes on to find that plaintiff's refusal of a position offered by defendant was unjustified and suspends plaintiff's benefits. Because the majority's decision is incorrect as a matter of law and contrary to the interests of justice, I hereby dissent from its decision.
Defendant in this case admitted the compensability of plaintiff's carpal tunnel syndrome through an Industrial Commission Form 21 Agreement for Compensation, which was approved by the Commission on 29 March 1995. Through this approved Form 21, a presumption of continuing total disability arose in plaintiff's favor. Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 476 S.E.2d 434 (1996), disc. rev. denied, 345 N.C. 343, 483 S.E.2d 169 (1997). Although rebuttable, this presumption has the effect of placing the burden of proof on defendant. Id. A defendant may rebut the presumption by proving the following: (1) that suitable jobs are available for the employee; (2) that the employee is capable of securing said job taking into account the employee's physical and vocational limitations, and; (3) that the job would enable the employee to earn some wages. Brown v. S N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197 (1996).
On 30 March 1995, the parties submitted an Industrial Commission Form 28T which documented that plaintiff had returned to work on 20 March 1995 at reduced wages. Plaintiff's return to work was therefore, on a trial basis. Despite her efforts, plaintiff continued to experience pain and swelling during the period from 20 March 1995 to 16 May 1996 as she attempted to perform the duties of a covering machine operator. As such, plaintiff's trial return to work was unsuccessful, the covering machine operator position was unsuitable, and the presumption of continued disability was not rebutted. Kisiah, 124 N.C. App. 72, 476 S.E.2d 434 (1996), disc. rev. denied, 345 N.C. 343, 483 S.E.2d 169 (1997). Accordingly because the presumption of continued disability was not rebutted, defendant still bore the burden of proof. Id.
Sometime prior to 16 May 1996, plaintiff was offered a different position working on the third shift. During this period, as noted above, the burden of proof remained on defendant. Plaintiff declined this position because a job on third shift would prevent her from staying with and caring for her three minor children, duties which could not be performed by her husband due to his own disability. Despite these standards the majority improperly places the burden of proof on plaintiff.See Full Commission Opinion and Award, Finding of Fact (8), ("While plaintiff may have not desired to work on third shift, her refusal was not related to her compensable injury, and was unjustified under the circumstances."). Because this was in error as a matter of law, I must dissent from the majority's decision.
In the alternative, should the presumption be determined to have been rebutted, based on the evidence of record the Full Commission should find that the third shift job as offered by defendant was unsuitable. A job on third shift, because of the required changes is schedules and lifestyles, is not the equivalent of, and in most cases is considered the lesser of jobs on earlier shifts. As for plaintiff, there was the additional direct conflict regarding the offered third shift job and the care of her three minor children. The majority seems to imply that plaintiff's reasons for refusing the offered third shift position were unimportant and finds that her refusal "was unjustified under the circumstances." (Emphasis added);Full Commission Opinion and Award, Finding of Fact (8). The majority goes on to support this implication by finding that "there is no evidence of the nature of the husband's disability or why he would not be able to attend the children in the evenings . . ." Id. This is not the case, as there was evidence of this situation in the form of plaintiff's testimony which represents the solution most favorable to the children's well being.
For the above reasons I cannot join in the majority's decision and hereby dissent from its Opinion and Award and would instead affirm the Opinion and Award by the Deputy Commissioner.
S/_____________ CHRISTOPHER SCOTT COMMISSIONER