Giles v. Nash Rehabilitation and Nursing

North Carolina Industrial Commission

Giles v. Nash Rehabilitation and Nursing

CourtNorth Carolina Industrial Commission

DecidedFebruary 18, 2011

DocketI.C. NO. 887102.

StatusPublished

This text of Giles v. Nash Rehabilitation and Nursing (Giles v. Nash Rehabilitation and Nursing) 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

Giles v. Nash Rehabilitation and Nursing, (N.C. Super. Ct. 2011).

Pincite

Opinion

*********** Upon review of the competent evidence of record, with reference to the errors assigned, and considering the briefs and oral arguments of the parties, the Full Commission finds no good grounds to receive further evidence, or to rehear the parties or their representatives. Upon reconsideration of the evidence, the Full Commission modifies the Opinion and Award of the Deputy Commissioner, and enters the following Opinion and Award.

*********** The Full Commission finds as fact and concludes as matters of law the following, which the parties entered into at the hearing as:

STIPULATIONS 1. The parties are properly before the North Carolina Industrial Commission, and the Commission has jurisdiction over the parties and of the subject matter of these proceedings.

2. An employment relationship existed between the parties at all times relevant to these proceedings.

3. Defendant-Carrier provided workers' compensation insurance coverage to Defendant-Employer at all times relevant to these proceedings.

4. Defendants admitted the compensability of Plaintiff's neck and chest injuries only.

5. Plaintiff's average weekly wage was $892.00.

6. The parties stipulated to the following documents being admitted into evidence as stipulated exhibits:

a. Stipulated Exhibit One: Pre-Trial Agreement;

*Page 3

b. Stipulated Exhibit Two: Plaintiff's medical records and North Carolina Industrial Commission forms and filings;

c. Stipulated Exhibit Three: Photographs of medication cart dated September 26, 2008;

d. Defendants' Exhibit Two: An unsigned and undated "Witness Statement" form for Bertha Lee Smith, CNA;

e. Defendants' Exhibit Three: "Resident Incident Witness Statement" form signed by Bertha Lee Smith, CNA and dated February 4, 2008;

f. Defendants' Exhibit Seven: "Medical Authorization for Treatment" form signed by Plaintiff and dated February 4, 2008, and "Workers' Compensation Policy and Procedure North Carolina Facilities" form signed by Plaintiff and dated February 4, 2008;

g. Defendants' Exhibit 12: Additional medical records of Plaintiff;

h. Defendants' Exhibit 13: Photograph of medication cart.

*********** ISSUES The issues to be determined are:

1. Whether Plaintiff's current complaints are due to her February 4, 2008 work injury?

2. Whether Plaintiff remains disabled?

3. Whether Plaintiff is entitled to any further workers' compensation benefits?

*********** Based upon the competent and credible evidence of record, the Full Commission makes the following: *Page 4

FINDINGS OF FACT 1. Plaintiff is 65 years old, having a date of birth of December 4, 1945. Plaintiff received her nursing license in 1969, and worked as a licensed practical nurse for Defendant-Employer for approximately 1.5 years prior to February 4, 2008. Plaintiff also worked at several other facilities as a licensed practical nurse before accepting employment with Defendant-Employer.

2. On the night of February 3, 2008 and the early morning hours of February 4, 2008, Plaintiff was working on the night shift. Shortly after 1:00 a.m. Ms. Bertha Lee Smith, a certified nursing assistant (CNA), noticed that the alarm light was on outside of a resident's door. When Ms. Smith responded, the resident appeared very agitated and demanded a hair cut. When Ms. Smith advised the resident that she could not cut his hair at that hour, he shoved his table across the room and started to swing at her. Ms. Smith dodged his swings and ran out of the resident's room.

3. After exiting the resident's room, Ms. Smith saw Plaintiff pushing a medication cart down the hallway and reported to her what had just occurred with the agitated resident. Plaintiff informed Ms. Smith that she would check on the resident after she finished "making her rounds."

4. Plaintiff subsequently went to the resident's room with Ms. Smith by her side. Ms. Smith waited just outside the doorway with Plaintiff's medication cart as Plaintiff walked inside to speak with the resident. The resident again began screaming and demanding a hair cut. Plaintiff retreated to the doorway and turned to face the resident, who had gotten up from a seated position on the bed and advanced toward her "with both fists like a boxer." The resident hit *Page 5 Plaintiff several times in her chest area and on the left upper neck, knocking her backwards onto the medication cart which was parked just outside the doorway. Plaintiff's left hip and knee hit the medication cart. Ms. Smith helped to catch Plaintiff to keep her from falling to the floor.

5. Plaintiff immediately reported the incident to her supervisor, Ms. Melanie Doogan Strickland, who is also a licensed practical nurse. Ms. Strickland assisted Plaintiff in filling out a witness/incident report. Thereafter, Plaintiff sought treatment at the emergency department of the hospital where she gave a history of being struck by a resident in her chest area with both fists earlier that morning. Medical records from this visit indicate that Plaintiff denied any head injury, but did complain of chest and left shoulder/left neck pain. Plaintiff had contusions on her chest area. She received instructions to remain out of work and to see her primary care physician.

6. Defendants admitted the compensability of Plaintiff's February 4, 2008 work injury to her neck and chest on a Form 60. Defendants denied that Plaintiff sustained any type of head injury.

7. On February 5, 2008 and February 11, 2008, Plaintiff presented for follow-up care at Nash Urgent Care in Rocky Mount, North Carolina. Plaintiff complained of continuing neck and chest pain. She received prescriptions for medications and physical therapy, and instructions to return to light-duty work.

8. On February 27, 2008, Defendant-Employer made an effort to accommodate Plaintiff's light-duty restrictions by assigning her to work in the laundry room. Plaintiff worked in the laundry room for a short period of time and then sat down and began eating. Plaintiff testified that she attempted to work but was unable to continue due to headaches, dizziness, and severe pain. The Full Commission finds Plaintiff's testimony concerning her inability to perform the *Page 6 light-duty laundry room job to be credible. Plaintiff did not unjustifiably refuse suitable employment on February 27, 2008.

9. On March 6, 2008, Plaintiff presented to Dr. Greig Vincent McAvoy, an orthopaedist, with complaints of continuing pain. Plaintiff reported to Dr. McAvoy that she was hit by a resident in the left upper chest and collarbone area, knocking her body out of the room and against a medication cart. Based upon his review of Plaintiff's medical records from the February 4, 2008 incident and his examination, Dr. McAvoy concluded that the work injury resulted in "very superficial injuries" which required no further active treatment. He further noted "magnification of symptoms."

10. Dr. McAvoy was of the opinion that Plaintiff was at maximum medical improvement as of March 6, 2008 and released her to return to full-duty work without restrictions. He advised Plaintiff that a return to work would be beneficial for her rehabilitation.

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