Baker v. Buger King Corporation

CourtNorth Carolina Industrial Commission
DecidedAugust 13, 2002
DocketI.C. NOS. 076591 834786
StatusPublished

This text of Baker v. Buger King Corporation (Baker v. Buger King Corporation) is published on Counsel Stack Legal Research, covering North Carolina Industrial Commission primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Buger King Corporation, (N.C. Super. Ct. 2002).

Opinion

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Upon review of the competent evidence of record with reference to the errors assigned, and finding no good grounds to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the award, except for minor modifications, the Full Commission AFFIRMS and ADOPTS 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
1. All parties are properly before the Industrial Commission and the Commission has jurisdiction over the parties and this claim. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

2. Kemper Insurance Company/Lumberman's Mutual Insurance Company was the workers' compensation carrier on the risk at all relevant times herein.

3. The employee-employer relationship existed between plaintiff and defendant-employer on or about March 27, 1998 and July 5, 2000.

4. Plaintiff suffered a compensable injury by accident to her right arm as a result of the March 27, 1998 accident, which allegedly was reinjured in a second accident on July 5, 2000.

4. Defendants have paid disability benefits to plaintiff as a result of the March 27, 1998 injury from December 6, 2000 to March 29, 2001 at the rate of $269.10.

5. The parties agree that plaintiff was paid at an inappropriate compensation rate and a check was presented to her at the Deputy Commissioner hearing to make up the difference between the compensation paid to her at the rate of $269.10 and the correct rate of $314.26.

6. The parties stipulate that plaintiff's average weekly wage is $471.37, yielding a compensation rate of $314.26.

7. Plaintiff suffered an additional injury on July 5, 2000. The extent of that injury will be determined based upon the testimony at the hearing.

8. Medical records were introduced into evidence by the parties and accepted as Stipulated Exhibit 1.

9. The issues before the Commission are as follows: a) whether plaintiff is entitled to additional disability benefits; b) whether plaintiff is entitled to retraining in order to obtain employment; and c) whether plaintiff is entitled to additional medical treatment and/or an independent medical evaluation.

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The Full Commission adopts the findings of fact found by the Deputy Commissioner with some modifications and finds as follows:

FINDINGS OF FACT
1. At the time of the Deputy Commissioner hearing, plaintiff was 43 years old. She completed the tenth grade in school but obtained a GED thereafter. She also completed one year of college.

2. Plaintiff began working at Burger King in 1982 and worked there on and off, primarily in Florida. She began to work on a full-time basis for Burger King at the Yadkinville restaurant in 1995 and continued to work there until April of 2001. Plaintiff's last job position was that of a Senior Assistant Manager.

3. On March 27, 1998, plaintiff was walking toward the front of the store when she slipped and fell in debris on the floor. She tried to catch herself, but she still sustained injuries to both arms and knees. This claim was accepted as compensable by the carrier.

4. On January 21, 1998, plaintiff suffered an injury to her right wrist while lifting and turning a fry basket. Defendants denied that claim on the grounds that plaintiff did not suffer an injury by accident and the claim was not pursued further.

5. Prior to the compensable injury by accident on March 27, 1998, plaintiff was also involved in two automobile accidents in which she injured her neck and back. She also slipped and fell at her apartment complex sometime in the 1990s. Plaintiff settled all of those claims for injuries she received in those respective accidents.

6. Plaintiff was first treated for her work-related injury of March 27, 1998 on April 1, 1998 by Surry Orthopedics. Plaintiff was diagnosed with a right wrist sprain and bilateral knee contusions. She was given a work note to continue work with no restrictions.

7. Plaintiff continued her treatment at Surry Orthopedics and by June 1, 1998, her knee complaints were noted to have improved. Throughout this time, she also continued to work at her regular job.

8. On August 19, 1998, plaintiff was again seen at Surry Orthopedics complaining of right wrist and knee pain and advising the doctor that her wrist was swollen. The doctor requested that she call him the next time her wrist was swollen so that he could observe it. There is no medical record indicating that any physician at Surry Orthopedics was ever able to observe swelling in plaintiff's right wrist.

9. Plaintiff's last treatment at Surry Orthopedics occurred on September 24, 1998. At that time, plaintiff had a nerve pace test of her right wrist performed which was negative. The doctor also noted that plaintiff's bilateral knee contusions were now asymptomatic. Plaintiff had full range of motion in her wrist and the physician described her continued wrist complaints as being atypical. Plaintiff was allowed to continue to work full duty.

10. Plaintiff next saw Dr. Andrew Koman at North Carolina Baptist Hospital on December 16, 1998 due to continued complaints in her right wrist. Dr. Koman's assessment on that date related solely to plaintiff's wrist. Dr. Koman recommended a bone scan. Although advising Dr. Koman that she had injured her knee when she fell originally, plaintiff made no complaints to Dr. Koman about any continued knee pain.

11. After plaintiff's first visit with Dr. Koman, she moved to Florida. While in Florida, she saw Dr. Umesh Raturi. Plaintiff complained to Dr. Raturi of pain in the right wrist and swelling in the right forearm. Plaintiff also told Dr. Raturi that her knees were better. A bone scan was ordered and performed on March 11, 1999 which was negative except for very non-specific early arthritic changes.

12. Thereafter, Dr. Raturi ordered an arthrogram of plaintiff's wrist which was performed on May 8, 1999 to determine whether she had any type of ligament injury or tear. The right wrist arthrogram was negative. Dr. Raturi placed restrictions on plaintiff of no frequent lifting of more than 25 pounds. According to Dr. Raturi's notes, plaintiff's restrictions were given primarily for elbow tendonitis. There is no medical evidence to causally relate plaintiff's right elbow tendonitis to the compensable fall. Plaintiff complained only of her right wrist after her fall according to the Surry Orthopedics' note. There is no medical evidence that this elbow problem is a result of plaintiff's compensable injury. In addition, plaintiff has not offered any expert medical evidence to show that the elbow condition is an occupational disease within the meaning of the Workers' Compensation Act.

13. Plaintiff received a 5% permanent partial disability rating to her right arm from Dr. Raturi due to problems with her elbow.

14. According to plaintiff's medical record of December 16, 1998, plaintiff alleged that she banged her right elbow on the table when she fell on March 27, 1998. No medical record prior to that contains any mention of such an injury, and plaintiff's report of injury to her elbow nine months after the accident is questionable. The original doctor's notes do not reflect any examination of plaintiff's right elbow, but only her left elbow which was abraised and bruised.

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Cite This Page — Counsel Stack

Bluebook (online)
Baker v. Buger King Corporation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-buger-king-corporation-ncworkcompcom-2002.