Helfrich v. Coca-cola Bottling Co. Consolidated

741 S.E.2d 408, 225 N.C. App. 701, 2013 WL 791530, 2013 N.C. App. LEXIS 221
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 2013
DocketNo. COA12-106
StatusPublished
Cited by2 cases

This text of 741 S.E.2d 408 (Helfrich v. Coca-cola Bottling Co. Consolidated) 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
Helfrich v. Coca-cola Bottling Co. Consolidated, 741 S.E.2d 408, 225 N.C. App. 701, 2013 WL 791530, 2013 N.C. App. LEXIS 221 (N.C. Ct. App. 2013).

Opinion

ERVIN, Judge.

Plaintiff David C. Helfrich appeals from an order entered by the Industrial Commission awarding Plaintiff temporary total disability compensation at the rate of $634.28 per week from and after 15 March 2010 pending further order of the Commission. On appeal, Plaintiff contends that the Commission should have based its award upon a weekly compensation rate of $672.98 stemming from a 12 March 2008 [702]*702work-related injury rather than the $634.28 weekly compensation rate associated with a 20 May 2009 work-related injury. After careful consideration of the Commission’s order in light of the record and the applicable law, we hold that the Commission’s order should be reversed and that this case should be remanded to the Commission for the entry of a new order containing adequate findings and conclusions.

I. Factual Background

Although the substantive facts and procedural history associated with this case are significantly intertwined, the only issue debated in the parties’ briefs is the amount of compensation which Plaintiff is entitled to receive for the period from and after 15 March 2010. While the Commission’s order contains a number of factual determinations that have a material impact upon the manner in which this case should be resolved, those determinations do not appear to be in dispute at this time and are reflected in the substantive fact statement contained in this opinion as undisputed facts, rather than the statement of the procedural history of this case.

A. Substantive Facts

Plaintiff sustained a series of work-related injuries by accident while working as a delivery truck driver for Defendant Coca-Cola. The first of these injuries occurred on 20 September 2006, when Plaintiff injured his shoulder, elbow, and lower back while engaged in repetitive lifting. On 21 November 2006, Dr. Yates Dunaway, an orthopedic surgeon, performed an arthroscopic labral debridement to Plaintiffs left shoulder. Defendant Coca-Cola admitted Plaintiffs right to receive temporary total compensation at a weekly rate of $543.58 (which the Commission later adjusted to $550.23) from and after 23 October 2006, which was the date upon which Plaintiff’s disability began. As a result of the fact that Plaintiff returned to work on 4 December 2006, he received his last compensation check associated with the 20 September 2006 injury on 28 November 2006. On 21 February 2007, Plaintiff was released to return to work without being subject to any restrictions after having reached the point of maximum medical improvement relating to this left shoulder injury.

On 11 October 2007, Plaintiff sprained his left knee while working in a walk-in cooler. On 19 December 2007, Dr. Jonathan Paul, an orthopedic surgeon, performed a left knee arthroscopy, medial meniscectomy, and chondroplasty. On 9 January 2008, Plaintiff returned to work for Defendant Coca-Cola subject to light duty [703]*703restrictions. At a later time, Dr. Paul determined that Plaintiff had reached the point of maximum medical improvement with respect to this left knee injury and assigned a five percent permanent partial disability rating to Plaintiffs left leg. Ultimately, the parties agreed that Plaintiff was entitled to receive temporary total disability benefits for the period from 19 December 2007 until 8 January 2008 in the weekly amount of $613.81 (which the Commission later corrected to $704.32).

On 12 March 2008, Plaintiff injured his right foot when a truck lift gate malfunctioned. Initially, Plaintiff was diagnosed as suffering from a foot contusion and plantar fasciitis and was referred for physical therapy. After Plaintiff continued to report symptoms in his right foot, he received treatment from Dr. E. James Sebold, an orthopedic surgeon specializing in foot and ankle surgery, who diagnosed him as suffering from right-sided plantar fasciitis on 21 August 2008. As a result of the fact that Plaintiff was receiving pain medications from multiple sources, Dr. Sebold referred Plaintiff to Dr. Neil Taub, a physical medicine and rehabilitation specialist, for pain management, including the consolidation of Plaintiffs pain medication prescriptions. At the time that he began to treat Plaintiff on 27 August 2008, Dr. Taub diagnosed Plaintiff as suffering from ankle joint pain and chronic right-sided plantar fasciitis and prescribed certain medications to assist Plaintiff in addressing the effects of that pain. On 13 January 2009, Dr. Sebold released Plaintiff to return to work without restrictions. Dr. Taub, however, imposed a work restriction upon Plaintiff consisting of a “sit-down break every hour” on 23 January 2009. The restriction imposed by Dr. Taub has remained in effect until the present date, so that Plaintiff performed modified duty work for Defendant Coca-Cola as long as he continued to work there. In view of this modified work schedule, the Commission determined that Plaintiff was entitled to temporary partial disability benefits in the weekly amount of $672.98 for the period from the 12 March 2008 injury until 15 March 2010, when Plaintiff was terminated from his employment with Defendant Coca-Cola.

On 20 May 2009, Plaintiff injured his right knee and ankle when he slipped while stepping off of a forklift, with the disability period associated with this injury running from 17 June through 29 June 2009. On 17 June 2009, Plaintiff was referred to Dr. Dana Piasecki, an orthopedic surgeon, who continued to treat Plaintiff for both of his knee injuries through the date of the hearing held in this case before the Deputy Commissioner. After continuing to experience knee-[704]*704related problems following his return to light duty work on 29 June 2009, Plaintiff underwent a right knee arthroscopy, debridement, and partial medial meniscectomy on 13 January 2010. On 8 February 2010, Plaintiff returned to work subject to restrictions that he do no prolonged bending, stooping, squatting, kneeling, twisting, or lifting and that all of his work be performed in a sitting position. Although Defendant Coca-Cola initially paid temporary total disability compensation to Plaintiff at a weekly rate of $626.74 relating to this injury, it later stipulated that the appropriate weekly rate was $634.28.

After returning to work on 8 February 2010, Plaintiff experienced ongoing problems stemming from his knee injuries. Throughout the period following the 20 May 2009 injury, Plaintiff continued to receive pain management services from Dr. Taub, who provided Plaintiff with medications for use in addressing the pain associated with both his right foot and knee pain.1 On 15 March 2010, Plaintiff was discharged from his employment with Defendant Coca-Cola for falling asleep at work on 11 March 2010. Subsequently, based upon opinion testimony provided by Dr. Taub, the Commission found that Plaintiff fell asleep at work due to the effects of the medication that he had been taking for the pain associated with his right foot and knee injuries and that his termination did not constitute a constructive refusal to accept employment sufficient to bar the receipt of workers’ compensation benefits. In addition, the Commission found that Defendant made a reasonable, but unsuccessful, effort to find alternative employment between the termination of his employment with Defendant Coca-Cola on 15 March 2010 and 30 September 2010, when Dr. Piasecki instructed Plaintiff to refrain from performing any work in anticipation of the need for further surgery.2 Plaintiff has been under restrictions imposed by Dr.

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Bluebook (online)
741 S.E.2d 408, 225 N.C. App. 701, 2013 WL 791530, 2013 N.C. App. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helfrich-v-coca-cola-bottling-co-consolidated-ncctapp-2013.