Lovell v. Mountain River Trucking

CourtNorth Carolina Industrial Commission
DecidedAugust 17, 2011
DocketI.C. NO. 900772.
StatusPublished

This text of Lovell v. Mountain River Trucking (Lovell v. Mountain River Trucking) 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
Lovell v. Mountain River Trucking, (N.C. Super. Ct. 2011).

Opinion

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The Full Commission reviewed the prior Opinion and Award based upon the record of the proceedings before the Deputy Commissioner and the briefs and arguments of the parties before the Full Commission. Defendants have not shown good grounds to reconsider the evidence, and upon reconsideration, the Full Commission affirms with modifications 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. At the time of the alleged injury giving rise to this claim, the parties were subject to and bound by the provisions of the North Carolina Worker's Compensation Act. *Page 2

2. At such time, an employment relationship existed between Plaintiff-Employee and Defendant-Employer.

3. At such time, AIG Claims, aka American Home Assurance, AIG Domestic Claims Inc., now Chartis Claims, Inc. was the Carrier.

4. The Industrial Commission has jurisdiction of this matter.

5. On or about April 14, 2008, Plaintiff sustained a compensable work-related injury involving multiple body parts.

6. Defendants accepted the claim as compensable and have paid temporary total disability benefits from April 17, 2008 and continuing.

7. Defendants have paid Plaintiff three different amounts of temporary total disability. From April 17, 2008 to March 19, 2009, Defendants paid Plaintiff $566.69. From March 20, 2009 to August 13, 2009, Defendants paid Plaintiff $562.08. From August 14, 2009 to the present, Defendants paid Plaintiff $582.08. Plaintiff contends as of May 27, 2010, there has been an underpayment of $3,785.11.

8. At the hearing, the parties stipulated to an average weekly wage of $905.00, yielding a maximum compensation rate of $603.64.

9. The parties stipulated to the admissibility of the following documents, which were received into evidence before the Deputy Commissioner:

• Exhibit 1: Pre-Trial Agreement; and

• Exhibit 2: Plaintiff's Medical Records, Industrial Commission Forms and Filings and Discovery Responses (668 pages).

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Based upon the preponderance of the evidence of the record, the Full Commission makes the following:

FINDINGS OF FACT
1. Plaintiff is 47 years old. Plaintiff had graduated from high school and completed two years of community college to become qualified to work as a medical assistant. Plaintiff had also obtained a Commercial Driver's License (CDL).

2. Defendant-Employer hired Plaintiff and her husband to work as long distance tractor-trailer drivers. Plaintiff's duties included assisting in driving the tractor-trailer for 10 to 12 hours per day to California and back.

3. On or about April 14, 2008, Plaintiff was injured when the tractor-trailer, which her husband was driving, overturned due to high winds. At the time of accident, Plaintiff was climbing from the rear cab sleeper to the front of the cab in order to fasten her seatbelt because of the windy conditions. Before Plaintiff was able to secure her seatbelt, the tractor-trailer was blown on its side and Plaintiff was thrown about the cab, hitting her head against the windshield, her bottom against the window, and her back against the bar between the passenger's window and the windshield. Plaintiff estimated that the tractor-trailer was travelling more than 55 miles per hour and slid for approximately 500 feet on its side.

4. Plaintiff was taken from the scene of the accident by ambulance to Mountain West Medical Center in Tooele, Utah, where she was treated with narcotic pain medications, diagnosed with acute myofacial strain and acute contusions, and instructed to follow-up for treatment.

5. On April 18, 2008, Plaintiff returned home to Virginia in severe pain and presented to the emergency department at Bluefield Regional Medical Center. Emergency room *Page 4 records note that although Plaintiff was experiencing pain throughout her body, the main concern was spinal pain. In addition, Plaintiff had sustained multiple bruises on her lower legs, her left shoulder and upper arm, with mild bruising along her abdomen, tenderness in the left eye area, and significant tenderness to palpitation to the bilateral ribs.

6. On May 8, 2008, Plaintiff presented to Dr. Gary R. Simonds, a neurosurgeon with Carilion Neurosurgical Care, with complaints of pain from her head to her coccyx, which had not improved over time. Dr. Simonds noted that Plaintiff's range of motion in her back and neck was limited; she was very tender in the coccygeal region; was unable to sit straight; and her gait was antalgic. Dr. Simonds diagnosed Plaintiff with an injury akin to diffuse whiplash, involving multiple muscle groups, ligaments and tendons and a coccygeal injury. Dr. Simonds did not opine that Plaintiff would benefit from neurosurgery.

7. Dr. Simonds restricted Plaintiff from work indefinitely and recommended physical therapy three times a week for two months. Dr. Simonds referred Plaintiff to Dr. Ralph Brown, Jr., a physical medicine and rehabilitation specialist, with Carilion New River Valley Medical Center.

8. On July 15, 2008, Plaintiff presented to Dr. Brown with complaints of numbness, headaches, blood from the kidneys, inability to void and bowel accidents immediately after the tractor-trailer accident on April 14, 2008, and now loss of control of bowels with frequent bowel movements day and night.

9. Dr. Brown is board certified in physical medicine and rehabilitation with subspecialty certifications in spinal cord injuries, electrodiagnostic medicine and pain medicine. Dr. Brown is also the Director of the Carilion Rehabilitation Center, which is the largest *Page 5 comprehensive outpatient rehabilitation facility in southwest Virginia. Defendants authorized Dr. Brown as Plaintiff's treating physician.

10. Dr. Brown diagnosed Plaintiff with a mild spinal cord injury, neurogenic bladder (a dysfunction related to the central nervous system), neurogenic bowel, dystonia (neurological movement disorder), sexual dysfunction, likely acute dislocation of the coccyx and depression or dysthimia. Dr. Brown opined during his deposition that as a result of the tractor-trailer accident on April 14, 2008, Plaintiff sustained a mild spinal cord injury and as a result, developed autonomic dysreflexia, a neurogenic bladder and neurogenic sexual dysfunction. Plaintiff had not experienced these symptoms prior to the April 14, 2008 accident.

11. Although a spinal cord injury did not appear on an MRI, Dr. Brown noted that a spinal cord injury can exist without radiographic abnormality. This was traditionally thought to have occurred in children under the age of 12; however, it has been documented in adults. Dr. Brown opined that Plaintiff was totally disabled and not at maximum medical improvement.

12. On October 14, 2008, upon referral from Dr. Brown, Plaintiff presented to Dr. David Kagey, a board certified urologist with Urology Associates Ltd., with complaints of lower back and buttock pain. Dr. Kagey was concerned that Plaintiff had a neurogenic bladder and bowel, and he referred her for urodynamic studies and a renal ultrasound. The studies indicated that Plaintiff did not develop any pressure or desire to void. In an effort to preserve her kidney function, Dr.

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§ 97-18
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Bluebook (online)
Lovell v. Mountain River Trucking, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lovell-v-mountain-river-trucking-ncworkcompcom-2011.