DocketNumber: I.C. NO. 732149.
Judges: <center> OPINION AND AWARD for the Full Commission by DIANNE C. SELLERS, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 7/31/2008
Status: Precedential
Modified Date: 7/6/2016
On December 27, 2007, the undersigned were notified by Mr. Sam Scudder of the firm Scudder and Hedrick that he had been assigned to represent plaintiff on a pro bono basis but that plaintiff did not wish for Mr. Scudder to represent him.
Since plaintiff would not be represented by counsel, medical depositions were not deemed feasible. The undersigned thereafter accepted additional medical evidence from plaintiff on the above-referenced issues in lieu of taking medical testimony. Said evidence was received June 6 and June 9, 2008.
Based upon the above circumstances, IT IS HEREBY ORDERED that the September 17, 2007 Order remanding the matter for additional medical testimony is RESCINDED. The medical records submitted by plaintiff are admitted into the record as Plaintiff's Exhibit 2 as set forth under Stipulation paragraph # 7.
2. At all times relevant hereto, an employment relationship existed between Plaintiff and Employer-Defendant.
3. The Industrial Commission has jurisdiction over the parties and the subject matter.
4. Hartford Insurance was the carrier on the risk at all relevant times.
5. Plaintiff's average weekly wage is $370.80, and his compensation rate is $247.34.
6. A Pretrial Agreement, medical records, the Full Commission Opinion and Award of February 8, 2006, with attachments, and documentation of medical expenses paid by Defendants were stipulated into the record. Following the hearing, Plaintiff submitted additional records that were admitted into the record as Plaintiff's Exhibit 1.
7. Plaintiff's Exhibit 2 is admitted into the record. Plaintiff's Exhibit 2 consists of pages 6-20, 37-50, 102-174, and 176-183 of the transcript of evidence from the hearing before Deputy Commissioner DeLuca; 6 pages of bills from various medical providers; and a selection plaintiff's medical records from 1977 through 1983.
2. Plaintiff was born on August 11, 1959. He is a high school graduate, with additional training and certification in automotive work and training in auto body painting. Plaintiff served in the Army and worked as a letter carrier contractor for the post office prior to his employment with defendant-employer. As of February 21, 2006, plaintiff stood approximately 5 feet 10 inches tall and weighed just over 200 pounds.
3. On July 18, 1997, plaintiff sustained an admittedly compensable injury by accident. He was in the process of putting a dolly under one end of a truck body when the other end fell off of a forklift and landed, such that the dolly struck plaintiff in the chin. He was stunned by the blow but subsequently advised medical personnel that he did not believe that he lost consciousness. The laceration he sustained to his chin was sutured locally and he was then sent to Pitt County Memorial Hospital for evaluation. X-rays revealed a non-displaced fracture of the mandible.
4. Plaintiff treated with a number of physicians over the next few months for a variety of complaints related to his compensable injury. He was released to return to work without restrictions in October 1997. However, plaintiff did not return to work at that time, instead seeking treatment for hypertension.
5. Defendants filed a Form 24, and the matter was litigated before Deputy Commissioner Chapman, and eventually the Full Commission. The Full Commission entered an Opinion and Award on April 26, 2002, ordering payment of certain indemnity and medical *Page 5 benefits to plaintiff, but finding that plaintiff's hypertension was unrelated to his compensable injury. Plaintiff did not appeal this decision.
6. The Full Commission also ordered that additional evidence be taken on the issue of whether plaintiff sustained a brain injury as a result of his accident and whether any disability existed after July 2001. The parties submitted additional medical evidence and briefed the issue, and the Full Commission entered a second Opinion and Award on February 8, 2006. The February 2006 Opinion and Award ruled that plaintiff did not sustain a brain injury and that he was not disabled after July 2001. The February 2006 Opinion and Award further awarded plaintiff $2,520.00 for the permanent injury to plaintiff's six teeth resulting from the compensable July 18, 1997 injury by accident.
7. Plaintiff appealed the February 2006 Full Commission Opinion and Award to the North Carolina Court of Appeals; however, his appeal was dismissed for noncompliance with the Rules of Appellate Procedure. As such, both decisions of the Full Commission are final and binding upon the parties. The terms of those decisions are incorporated by reference as if fully set forth herein.
8. Plaintiff has developed sleep apnea, which he attributes to his compensable injury. On January 30, 2002, plaintiff reported to Greenville Internal Medicine where he was treated by Leo E. Waivers, M.D. Plaintiff was referred to a sleep lab and an ophthalmologist. A sleep study was reportedly positive. Dr. Waivers then referred plaintiff to Eastern Nephrology Associates.
9. Plaintiff came under the care of Dr. Thomas W. DeBeck. Dr. DeBeck referred plaintiff for a sleep study. Subsequently, plaintiff was put on a CPAP, a device used to treat *Page 6 sleep apnea by sending positive airway pressure at a constant, continuous pressure to help keep an open airway, allowing the patient to breathe normally through his/her nose and airway.
10. Plaintiff was eventually referred to Dr. Albernaz for a surgical evaluation. Dr. Albernaz recommended and performed septoplasty (an operation that corrects any defects or deformities of the nasal septum, which is the wall between the two nostrils) with Shaver's submucous resection of inferior turbinates (removing a small piece of cartilage from inside the long structures that extend from the front of the nose to the rear) as well as uvulopalatopharyngoplasty (a procedure that removes excess tissue in the throat to make the airway wider) with tonsillectomy (removal of the tonsils, which will allow for greater airflow), and hyoid suspension (an operation that advances the tongue base and epiglottis forward, thereby, opening the breathing passage and allowing greater air flow).
11. There is no evidence from Dr. Albernaz concluding that there was a relationship between plaintiff's injury and his sleep apnea or mandibular retrusion, or regarding any work restrictions or disability related thereto.
12. More recently, Timothy A. Turvey, DDS, saw Plaintiff in February 2005. On or about June 14, 2005, plaintiff underwent maxillary and mandibular advancement by Dr. Turvey.
13. While Dr. Turvey opined in response to a questionnaire proffered by plaintiff's former counsel that the July 18, 1997 injury by accident may have contributed to plaintiff's sleep apnea, he did not provide any testimony regarding how he determined that there was a relationship between the injury and plaintiff's sleep apnea or mandibular retrusion or whether plaintiff had any work restrictions or disability related thereto.
14. There is insufficient evidence to support a finding of any causal relationship between plaintiff's compensable injury and his sleep apnea and mandibular retrusion. *Page 7
15. At the evidentiary hearing, plaintiff testified, and the undersigned find, that he is totally disabled from working due to his hypertension. The hypertension has been previously determined by the Commission to be unrelated to plaintiff's compensable injury. As such, plaintiff is not disabled from working due to his compensable injury. Notwithstanding the fact that plaintiff's hypertension has already been adjudicated and determined not to be compensable, plaintiff presented no additional testimony or evidence tending to show that his hypertension was caused by his July 18, 1997 injury by accident.
16. Plaintiff has not shown through competent evidence that he has suffered a change of condition or that he currently suffers any disability as a result of his July 18, 1997 injury by accident.
17. Plaintiff has not shown through competent evidence that he suffers any facial or head disfigurement due to the July 18, 1997 injury by accident.
Furthermore, it has already been determined by a previous final award of the Commission that plaintiff's hypertension was not causally related to his injury by accident. Plaintiff has presented no grounds to justify a relitigation of this issue.
2. In order to establish a change of condition, plaintiff must show conditions different from those present at the time of the prior award. It is not sufficient to show "a continued capacity of the same kind and character and for the same injury." Grantham v. R.G. Barry Corp.,
4. Plaintiff has the burden of proving disability, defined as a loss of wage earning capacity. Russell v. Lowes Product Distribution,
5. Plaintiff was previously awarded compensation for the permanent injury to his six teeth under N.C. Gen. Stat. §
2. Each party shall pay its costs.
This the 24th day of July, 2008.
S/_______________
DIANNE C. SELLERS
COMMISSIONER
CONCURRING:
S/_______________ BERNADINE S. BALLANCE COMMISSIONER
S/_______________ DANNY LEE McDONALD COMMISSIONER
Click v. Pilot Freight Carriers, Inc. , 300 N.C. 164 ( 1980 )
Henry v. AC Lawrence Leather Co. , 231 N.C. 477 ( 1950 )
Grantham v. RG Barry Corp. , 127 N.C. App. 529 ( 1997 )
Demery v. Perdue Farms, Inc. , 143 N.C. App. 259 ( 2001 )
Grantham v. RG Barry Corp. , 347 N.C. 671 ( 1998 )
Employers Insurance of Wausau v. Hall , 301 N.C. 720 ( 1981 )
Russell v. Lowes Product Distribution , 108 N.C. App. 762 ( 1993 )