Drakeford v. Charlotte Express

581 S.E.2d 97, 158 N.C. App. 432, 2003 N.C. App. LEXIS 1147
CourtCourt of Appeals of North Carolina
DecidedJune 17, 2003
DocketNo. COA02-510
StatusPublished
Cited by4 cases

This text of 581 S.E.2d 97 (Drakeford v. Charlotte Express) 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
Drakeford v. Charlotte Express, 581 S.E.2d 97, 158 N.C. App. 432, 2003 N.C. App. LEXIS 1147 (N.C. Ct. App. 2003).

Opinion

HUDSON, Judge.

Plaintiff Johnnie Drakeford appeals an opinion and award entered 9 October 2001 by the North Carolina Industrial Commission that terminated his temporary total disability benefits. We affirm.

BACKGROUND

Plaintiff, who was employed as a driver/trainer for Charlotte Express, was in the course of driving a tractor-trailer when he stopped at a truck stop on 4 May 1995. On his way to the shower, he slipped on the wet floor and fell to the ground. He then felt pain in his neck and lower back. Charlotte Express and Charlotte Express’s car[433]*433rier, National Union Fire c/o Liberty Bell Agency (“defendants”), accepted compensability by paying benefits, without filing Form 21 or Form 60, and have paid plaintiff temporary total disability benefits since the date of the accident. Defendants filed a Form 24 on 6 August 1999, requesting that plaintiff’s benefits be terminated on the grounds that plaintiffs current disability is the result of a non-work-related condition and is not caused or in any way related to his work-related injury sustained in May 1995. Special Deputy Commissioner Ronnie E. Rowell held an informal telephone hearing on 9 September 1999, after which he denied defendants’ application for termination of benefits. Defendants then requested that the claim be assigned for hearing before the Industrial Commission.

The claim was heard 15 August 2000, and, in an opinion and award filed on 30 November 2000, Deputy Commissioner Pamela T. Young found that plaintiff’s current condition was not caused by nor aggravated by the work-related injury of May 1995. The deputy commissioner also found that plaintiff’s current medical condition and his disability were caused by a rare neurological disorder called Chronic Inflammatory Demyelinating Polyneuropathy (“CIDP”), which preexisted plaintiff’s injuries that had resulted from the May 1995 fall. Accordingly, the deputy commissioner granted defendants’ motion to terminate plaintiff’s benefits.

In an opinion and award filed 9 October 2001, the Full Commission affirmed and adopted in whole the deputy commissioner’s findings of fact, conclusions of law, and award. Plaintiff now appeals.

Below are some of the facts found by the Full Commission:

1. At the time of the hearing before the Deputy Commissioner, plaintiff was 47 years old and employed as a truck driver by defendant-employer. Plaintiff began working for defendant-employer in 1993.
2. Prior to 4 May 1995, plaintiff had suffered back problems. In 1981, plaintiff reported that he sought medical care for persistent back problems. Again, in 1987, plaintiff suffered a back injury while lifting materials at work. He was taken out of work for a period of nine months, but did not undergo any type of surgical intervention.
[434]*4343. On 4 May 1995, plaintiff was in the course of driving a tractor-trailer for defendant-employer when he stopped at a truck stop. On his way to the shower, plaintiff slipped on the wet floor and fell to the ground. Thereafter, he felt pain in his neck and lower back.
5. Plaintiff complained of neck and back pain after his injury. After plaintiff completed his truck route and returned home, he went to the emergency room at Moore Regional Hospital.
6. On 8 May 1995, plaintiff presented to his local primary care facility complaining of back and neck pain. Dr. Ed Carey examined plaintiff. Dr. Carey diagnosed plaintiff with lumbosacral strain and prescribed anti-inflammatory medication. Initially, plaintiff’s condition seemed to improve.
7. Plaintiff was evaluated by Dr. Shupeck on 26 June 1995. Dr. Shupeck diagnosed plaintiff with musculoskeletal pain with multiple diffuse symptoms. He recommended that plaintiff undergo physical therapy to alleviate his symptoms. After a regime of physical therapy, Dr. Shupeck found that plaintiff still had residual back pain and give-way weakness in his right leg; however, plaintiff’s neurological examination was stable and his strength intact. A bone scan performed on 18 August 1995 was normal. By 23 October 1995, plaintiff was improving. He was able to perform yard work without complaints of pain, able to walk long distances without any giving way of his right leg and able to drive for at least 45 minutes.
8. Sometime thereafter, plaintiff’s condition deteriorated with plaintiff complaining of increased weakness in his right leg. Dr. Shupeck ordered a myelogram and CT scans to rule out any disc problems. These tests were unremarkable, indicating some degenerative changes but no herniated discs.
9. Plaintiff was referred to a neurologist for another opinion as to his condition. Dr. Bruce Solomon examined plaintiff on 13 December 1995. Dr. Solomon’s examination of plaintiff was normal and he diagnosed plaintiff with chronic low back pain due to plaintiff’s subjective complaints of back pain. Dr. Solomon noted that many of plaintiff’s symptoms were not physiologic and recommended a neuropsychological examination. In Dr. Solomon’s opinion, plaintiff’s sensory examination did not follow any pat[435]*435tern and his gait problems were clearly not typical of any neurological disease. Dr. Solomon ordered additional MRI’s of the lower thoracic spine and lumbar spine for completeness, both of which were generally normal with mild degenerative changes.
10. Dr. Solomon referred plaintiff to the Fayetteville Pain Clinic for management of plaintiff’s continued symptoms. Plaintiff was initially evaluated at the Cape Fear Valley Pain Management Center on 21 February 1996. At that time, it was noted that plaintiff complained of stiffness in his neck, give-way weakness in his right leg and weakness in his left arm. A plan was established in which plaintiff was to receive nerve block injections, trigger point injections and physical therapy.
11. Plaintiff underwent one series of nerve block injections and trigger point injections and although the Pain Clinic doctors recommended additional injections, plaintiff refused this treatment. On 26 November 1996, Dr. Kenneth Oswalt discharged plaintiff from the Pain Clinic, finding that plaintiff was “very functional” in spite of the pain. He further found that plaintiff had maximized his rehabilitation and had reached maximum medical improvement. Dr. Oswalt found no evidence of any functional disability or any permanent impairment.
12. On 27 February 1997, plaintiff returned to his family physician, Dr. Lam, for follow-up treatment and medication management. Dr. Lam continued to monitor plaintiffs condition, noting that his condition was generally unchanged during this period of time.
13. On 2 June 1998, plaintiff received an evaluation from Dr. Mark E. Brenner at the Pinehurst Surgical Center. Dr. Brenner found that plaintiff was exhibiting symptoms consistent with a myofascial pain syndrome. However, plaintiff’s objective findings did not correlate with his subjective complaints. Dr. Brenner found that plaintiff was able to return to full-time work with some restrictions, specifically no lifting greater than 50 pounds and no bending, stooping, crawling and long distance truck driving. Dr. Brenner found that plaintiff had reached maximum medical improvement and that the objective findings from the examination did not support any permanent disability rating.

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Bluebook (online)
581 S.E.2d 97, 158 N.C. App. 432, 2003 N.C. App. LEXIS 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drakeford-v-charlotte-express-ncctapp-2003.