Rogers v. Lowe's Home Improvement

612 S.E.2d 143, 169 N.C. App. 759, 2005 N.C. App. LEXIS 848
CourtCourt of Appeals of North Carolina
DecidedApril 19, 2005
DocketNo. COA04-845.
StatusPublished
Cited by3 cases

This text of 612 S.E.2d 143 (Rogers v. Lowe's Home Improvement) 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
Rogers v. Lowe's Home Improvement, 612 S.E.2d 143, 169 N.C. App. 759, 2005 N.C. App. LEXIS 848 (N.C. Ct. App. 2005).

Opinion

McCULLOUGH, Judge.

Defendant appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission"), awarding temporary total disability benefits to plaintiff under the Workers' Compensation Act.

The evidence of record and the Commission's findings of fact reflect that plaintiff began working for defendant Lowe's Home Improvement on 5 May 2001 as a receiver in its Kernersville, North Carolina store. Plaintiff's job duties included unloading shipments of major appliances, windows, doors, and carpeting, as well as stocking this merchandise on the store's sales floor. As one of three employees responsible for unloading "[t]wenty trailer loads of merchandise" each day, plaintiff "went home on many occasions with a backache and other muscle soreness." Plaintiff also had "some residual" pain in his lower back and left leg resulting from a motor vehicle accident in May of 1988.

While lifting a large roll of carpet at work on 19 October 2001, plaintiff felt a pull in his lower back and left leg. He experienced soreness and cramping in the back of his leg above the knee and informed his supervisor about the incident but continued working. Plaintiff sought treatment at Piedmont Triad Family Medicine ("Piedmont Triad") on 19 October 2001, complaining of pain in the outside and back of his left thigh. Based upon the localized nature of plaintiff's pain, the tightness in the back of his leg, and the absence of pain in his lower back during straight leg raise test, Physician Assistant W. Scott Boyd diagnosed a strained left bicep femoralis muscle, or hamstring. He recommended treatment with moist heat, an anti-inflammatory and a muscle relaxant. Plaintiff returned to Piedmont Triad on 22 October 2001, reporting continued localized pain in his left hamstring. Boyd again found that plaintiff had tightness and spasming in the back of his leg, but retained full range of motion in his left hip and his back. Boyd continued plaintiff on medication for the strained muscle but noted the possibility of an "underlying sciatic nerve problem" originating in his lumbar spine. Piedmont Triad's Physician Assistant Betsy Brais examined plaintiff for his persistent symptoms *145on 31 October 2001. Plaintiff told Brais that his hamstring "really bothers him when he gets up in the morning," but improved "once he starts walking around for two hours or so." He further reported "no numbness or tingling radiating down the backs of his legs." Brais diagnosed a left hamstring muscle spasm.

On the afternoon of 9 November 2001, defendant was unloading a shipment of house windows at work when he felt a pop in his "lower left hip area." Accustomed to a certain amount of soreness from the demands of his job, plaintiff finished working for the day and took a hot shower when he got home. He went to bed early but was awakened at 4:00 a.m. by "radiating sharp stabbing burning pain" in his left hip and groin. Plaintiff testified that "the problem after November 9th was completely different" than what he experienced during October. He contrasted the two injuries as follows:

Well, it was like a cramp in October. And the pain in November was sharp stabbing-sharp stabbing burning pain radiating down my leg. And that's the most pain I've ever had ..., and it just kept continuously, continuously hurting ... and not going away.

Plaintiff described the pain he experienced after 9 November 2001 as "ten times as much pain ... as I've ever had in my leg or anything else at any[ ]time."

Later that morning, plaintiff went to Lowe's, filled out an accident report and spoke to his manager, who sent him to PrimeCare of Kernersville for treatment. A physician assistant diagnosed plaintiff with a hamstring injury and restricted him to light dutywork. Plaintiff was released by Prime Care to return to his normal work duties on 20 November 2001, but was unable to perform them and stopped working altogether on 28 November 2001. Because his condition had not improved, plaintiff sought a referral to a specialist. Orthopaedist Dr. Christopher J. Bashore of High Point Orthopaedic and Sports Medicine examined plaintiff on 14 December 2001. Dr. Bashore ordered x-rays of plaintiff's lower back, which revealed a loss of normal lumbar lordosis. Plaintiff also exhibited, inter alia, a reduced range of motion when bending at the waist and "positive straight leg raise at 35 degrees on left with pain that radiates past the knee." Diagnosing low back pain with radicular leg pain and a possible herniated nucleus pulposis, Dr. Bashore ordered a lumbar MRI exam. The MRI revealed "a left lateral disk bulge at L4-5 with impingement on the L4 nerve root, and a centralized disk bulge at L5-S1 with posterior displacement of the S1 nerve root on the left[,]" consistent with plaintiff's symptoms. On 7 January 2002, Dr. Bashore referred plaintiff to neurosurgeon Dr. Russell H. Amundson of Johnson Neurological Associates.

Dr. Amundson examined plaintiff on 24 January 2002, and made an initial diagnosis of "lumbar disk bulge[.]" A review of plaintiff's x-rays and MRI confirmed the presence of "a significant bulging disk on the left at [L]4-5[.]" After further tests, Dr. Amundson prescribed an initial treatment regimen of medication and physical therapy. When physical therapy proved unsuccessful, Dr. Amundson recommended surgery and performed a left lumbarmicrodiskectomy at L4-5 on 21 May 2002.

Plaintiff applied for workers' compensation benefits for the herniated disk, which he alleged was caused by the accident at work on 9 November 2001. Deputy Commissioner W. Bain Jones, Jr., held a hearing on the contested claim on 29 January 2003. In an opinion and award filed 25 June 2003, the Deputy Commissioner concluded that plaintiff's herniated disk was a "compensable injury by accident arising out of and in the course of his employment with defendant-employer" on 9 November 2001. He awarded plaintiff temporary total disability benefits from 28 November 2001 until further order of the Commission.

Defendant appealed to the Full Commission, which affirmed the Deputy Commissioner's award with modifications. In finding a causal relationship between plaintiff's 9 November 2001 accident while unloading windows for defendant and his herniated disk, the Commission relied upon Dr. Amundson's deposition testimony as well as plaintiff's hearing testimony in which he recounted the *146nature and course of his symptoms. In pertinent part, the Commission found as follows:

22. ... Dr. Amundson opined, and the Full Commission finds as fact, that the November 9, 2001, incident when plaintiff was lifting the wooden windows was a proximate cause of the lumbar disc rupture for which he performed surgery. Dr. Amundson indicated the distinct symptoms relayed by plaintiff following November 9, 2001, were not present prior to that date. Prior to November 9, 2001, plaintiff was suffering from a muscle strain and not a ruptured disc.

23. Dr. Amundson ... gave a lengthyexplanation of why he believes (1) plaintiff had pre-existing degenerative changes in his spine; (2) plaintiff was being treated for a hamstring or muscular strain prior to November 9, 2001; and (3) plaintiff's actions in lifting windows was a sufficient incident to cause plaintiff's disk herniation. The Full Commission finds as fact the three foregoing beliefs of Dr. Amundson.

....

25. After reviewing the plaintiff's prior medical history, including the histories given by plaintiff to his family physician and to PrimeCare, Dr.

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Bluebook (online)
612 S.E.2d 143, 169 N.C. App. 759, 2005 N.C. App. LEXIS 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-lowes-home-improvement-ncctapp-2005.