Clark v. Wal-Mart

594 S.E.2d 433, 163 N.C. App. 686, 2004 N.C. App. LEXIS 584
CourtCourt of Appeals of North Carolina
DecidedApril 20, 2004
DocketNo. COA03-435.
StatusPublished
Cited by1 cases

This text of 594 S.E.2d 433 (Clark v. Wal-Mart) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Wal-Mart, 594 S.E.2d 433, 163 N.C. App. 686, 2004 N.C. App. LEXIS 584 (N.C. Ct. App. 2004).

Opinion

BRYANT, Judge.

Wal-Mart Stores, Inc. and Insurance Company of the State of Pennsylvania (collectively defendants) appeal an opinion and award filed 31 January 2002 by the Full Commission of the North Carolina Industrial Commission (the Commission) awarding Sandra J. Clark (plaintiff) ongoing permanent and total disability compensation pursuant to N.C. Gen.Stat. § 97-29, and an order filed 21 November 2002 denying defendants' motion for reconsideration.

On 22 December 1999, plaintiff filed an amended claim for workers' compensation based on work-related injuries to her back on 21 December 1998. Defendants admitted compensability of the injury on a Form 33R but disputed the permanent nature of the injury. This matter came for hearing on 21 March 2000 before Deputy Commissioner Kim L. Cramer. By order filed 29 December 2000, the deputy commissioner concluded plaintiff was permanently and totally disabled as a result of the back injury, and awarded plaintiff ongoing benefits. Defendants appealed the order to the Full Commission (Commission).

This matter came for hearing before the Commission on 24 August 2001. By order filed 31 January 2002, the Commission preliminarily noted:

Following oral arguments before the Full Commission, at the request of defendants the parties were allowed 15 days in which to schedule a bone scan for plaintiff. By letter dated September 17, 2001 plaintiff informed the Commission that the bone scan scheduled for September 11, 2001 was cancelled because defendants failed to authorize the scan. Defendants have not explained this failure to authorize the scan or requested an extension of time within which to complete the scan. Therefore, by [o]rder dated September 28, 2001 the Full Commission closed the record and informed the parties that the Full Commission would proceed to decide the case based upon the evidence in the record.

The Commission also noted the parties' stipulation that defendants had paid plaintiff temporary total disability since the date of the injury. The Commission made these relevant findings of fact:

1. On the date of the hearing before the Deputy Commissioner, plaintiff was 66 years of age....
....
7. On July 16, 1998 plaintiff began working for Wal-Mart Stores as a door greeter....
....
13. On December 21, 1998 plaintiff was helping to straighten merchandise on store shelves. She was asked to move a "sled" that was used for displays during the holidays. The sled was on the top shelves and plaintiff had to use a ladder to get to it. When she moved the sled, plaintiff found that it was heavy and weighed over 20 pounds. As she moved the sled, plaintiff felt a sharp pain in her lower back.
14. Plaintiff went to Prime Care on December 26, 1998, seeking treatment for her back. She was initially taken out of work for two days. When plaintiff returned to the clinic with continued pain complaints on December 28, 1998, she was continued out of work through December 31, 1998. Although she was tentatively released to return to work with restrictions in early January 1999, on January 19, 1999 plaintiff was taken out of work pending an orthopaedic evaluation.
15. Plaintiff ... saw [Dr. Charles Taft, an orthopaedic specialist] for her back

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complaints on March 24, 1999.... He assessed new compression fractures at L1 and L2, which were caused or aggravated by the incident of moving the sled on December 21, 1998.
16. In assessing plaintiff's condition, Dr. Taft ... stated his opinion that he did not believe plaintiff would be able to return to work due to her osteoporosis and the compression fractures. The compression fractures should have healed within 8 months, but the healing process has been slowed by ... plaintiff's smoking habit of one pack per day. Smoking decreases the oxygen flow in the blood and slows the healing of the bone.
17. Plaintiff was also examined by Dr. Frank J. Rowan, an orthopaedic specialist, whom defendants hired to conduct an independent medical examination. Dr. Rowan saw plaintiff on August 10, 1999. Dr. Rowan agreed with Dr. Taft's assessment. As both physicians testified, plaintiff had pre-existing osteoporosis, which made her more susceptible to compression fractures in her spine. The compression fractures at L1 and L2 were caused or significantly aggravated by plaintiff's accident of December 21, 1998.
18. Dr. Rowan also agreed with Dr. Taft's assessment that plaintiff's smoking interferes with the healing of the compression fractures.... Although the compression fractures should have healed at the time of his examination, Dr. Rowan could not tell whether that was the case without a current bone scan, which he recommended.
19. Both Dr. Taft and Dr. Rowan have emphasized the importance of ongoing treatment of plaintiff's osteoporosis. However, this was a pre-existing condition which was not caused or aggravated by plaintiff's employment with Wal-Mart. Ongoing medical treatment for plaintiff's osteoporosis was not necessitated by plaintiff's work-related injur[y] of ... December 21, 1998.
20. Ongoing treatment for plaintiff's osteoporosis would include use of Fosamax or Miacalcin. Neither has a primary purpose of pain treatment, although there are indications that Miacalcin mitigates the pain of compression fractures secondary to osteoporosis. These medications aid in adding calcium to the bone and in preventing future compression fractures.
21. As both Dr. Taft and Dr. Rowan have testified, the primary limiting factor in plaintiff's ability to return to any type of employment is her osteoporosis, not the compression fractures. However, the compression fractures are also a contributing factor in plaintiff's disability.
22. Both Dr. Taft and Dr. Rowan have stated their opinions that plaintiff might be able to perform a sedentary job with no lifting requirements, although Dr. Taft is not optimistic about such possibilities.... Any job which would require lifting would put plaintiff at risk for further injury to her back.
....
28. Although the osteoporosis is the primary limiting factor in plaintiff's ability to return to gainful employment, the compression fractures are also a significant contributing factor, especially with regard to any pain that may be produced.
29.... Given plaintiff's age and lack of education and experience, and considering her other physical limitations, neither pursuit of further employment opportunities nor retraining appear to be reasonable or viable options. Due to the combination of her osteoporosis and fractures, plaintiff will be very limited in anything she can do, especially lifting, and would be restricted to a sedentary position. Even then, it does not appear that plaintiff could work a full 6 to 8-hour day.
30. At the time of the hearing before the Deputy Commissioner, plaintiff was receiving ongoing benefits for total disability. Defendants have failed to present evidence that plaintiff is capable of earning wages in the same or any other employment, or that vocational retraining is viable.

The Commission concluded:

2.

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Bluebook (online)
594 S.E.2d 433, 163 N.C. App. 686, 2004 N.C. App. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-wal-mart-ncctapp-2004.