Shearin v. Lewis Tree Svc.

CourtNorth Carolina Industrial Commission
DecidedJanuary 5, 2005
DocketI.C. NO. 299327
StatusPublished

This text of Shearin v. Lewis Tree Svc. (Shearin v. Lewis Tree Svc.) 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
Shearin v. Lewis Tree Svc., (N.C. Super. Ct. 2005).

Opinion

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The Full Commission reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Gregory and the briefs and oral arguments before the Full Commission. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Opinion and Award, except for minor modifications. Accordingly, the Full Commission affirms the Opinion and Award of Deputy Commissioner Gregory, with modifications.

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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 at the hearing before the Deputy Commissioner and in the Pretrial Agreement as:

STIPULATIONS
1. The Industrial Commission has jurisdiction over this matter wherein all parties are correctly designated and were subject to the Workers' Compensation Act at the time of the alleged injury.

2. An employer/ employee relationship existed between the parties at the time of the alleged injury.

3. Plaintiff sustained an alleged injury to her back that arose out of and in the course of her employment and resulted in a specific traumatic incident on May 8, 2002.

4. The carrier denies the compensability of this claim.

5. At the time of the alleged injury, plaintiff earned an average weekly wage of $314.74, yielding a compensation rate of $209.83.

6. Plaintiff last worked for defendant-employer on September 24, 2002.

7. Documents stipulated into evidence include the following:

a. Stipulated Exhibit 1: Pretrial Agreement

b. Stipulated Exhibit 2: Medical records, IC forms, an accident report and updated medical records submitted post-hearing.

c. Defendants' Exhibit 1: Recorded statement.

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Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following:

FINDINGS OF FACT
1. Plaintiff was 45 years old at the time of the hearing before the Deputy Commissioner, and had obtained a GED and attended one and a half years of college. Prior to plaintiff's employment with defendant-employer, she worked as a sewing machine operator and a machine operator debarking and labeling wood. Thereafter, plaintiff worked full time for approximately three years as a grounds person for defendant-employer earning $8.90 per hour. Plaintiff's duties included running a chipper machine, loading the chipper, lifting wood, moving wood, moving debris and going through brush and underbrush. The job included a lot of lifting, for over half of a 10-hour workday. Plaintiff estimated that the heaviest weight she would lift at one time would be about 30 pounds, but she usually would have assistance; however, the job description indicates that lifting was required of up to 50 pounds.

2. Plaintiff was performing her duties as a grounds person on May 8, 2002 when she sustained an injury to her lumbar spine. Plaintiff was loading wood into the chipper with a co-employee, Chris, who was also plaintiff's son. Plaintiff was loading the wood or small trees at an awkward angle, due to the way the truck was parked on the shoulder of the road close to a ditch, which resulted in the lack of adequate ground to get "sure footing". Usually plaintiff worked under conditions where she had firm footing when loading the chipper. In her recorded statement, plaintiff related that she had to load the chipper on the side of the road instead of in the usual area beside or behind the highway; however, plaintiff did not elaborate on the awkwardness of the situation. Plaintiff further indicated that she turned wrong and her leg and calf cramped to the point it was unbearable and she had to "hop" across the road. Plaintiff also indicated that she had hip pain and did not understand her injury. Plaintiff elaborated on the mechanism of injury at the hearing testifying that the chipper kicked back which caused her increased difficulty while in the awkward loading position resulting in pain down her right leg into her calf, like a cramp.

3. After plaintiff finished feeding the chipper, she hopped across the street and sat on the ditch bank due to excruciating pain. In fact, plaintiff could not walk on her right leg due to the cramping in her calf and hip. After sitting down, plaintiff began to feel pain in her hips and lower back as well as her calf. Plaintiff later realized that what she was calling hip pain was actually lower back pain.

4. Plaintiff's supervisor who is also her husband, Terry Shearin, and a supervisor from Piedmont Electric, Jerry Phelps, both saw her hobble across the road and sit down. Mr. Phelps and Mr. Shearin discussed whether plaintiff had a cramp due to the hot weather and the crews were cautioned against overheating. Due to the physical nature of this type of work, it is not unusual for a worker to sprain or strain a muscle. In fact, plaintiff has had sore muscles and back strains in the past.

5. Plaintiff did not fill out an incident report at that time, nor was she asked by anyone, including her supervisor, to fill one out as apparently no one realized the severity or true nature of the injury. Plaintiff spent the rest of the day in the truck. When she returned to work the next day, May 9, 2002, she performed some lighter tasks that are part of her normal duties including cleaning saws, straightening the truck and raking in order to avoid any lifting.

6. Kelvin E. Wynn, MD, Plaintiff's primary care physician, was the first to treat her after the incident at work when plaintiff was scheduled for an annual physical on May 10, 2002. Plaintiff complained of pain in the right side of her back radiating through the right leg with some cramping. While Dr. Wynn's notes indicate that plaintiff had a two month history of pain and while Dr. Wynn was fairly certain his notes were accurate, the greater weight of the evidence of record including plaintiff's testimony as well as corroborative witnesses who saw plaintiff "hop" across the road demonstrates that plaintiff had actually suffered pain for two days instead of two months. Dr. Wynn diagnosed lumbar radiculopathy and prescribed Celebrex for plaintiff who returned to the clinic on June 10, 2002, at which time a physician's assistant prescribed Lortab, Percocet and Toradol and ordered an MRI due to plaintiff's continued complaints. Upon reviewing the MRI of June 25, 2002, which revealed herniated discs at L4-5 and L5-S1, an appropriate recommendation was made for plaintiff to see an orthopaedist.

7. Plaintiff had pre-existing back complaints and degenerative disc disease as well as a prior herniated disc based upon later findings during surgery. However, plaintiff's prior visits to Dr. Wynn's clinic for back pain, in November 2000 and October 1997-January 1998, resulted in diagnoses of back sprains or strains, which were isolated events that fully resolved after treatment with Ibuprofen and a muscle relaxant. Prior to the May 8, 2002 injury at work, plaintiff had not been seen for any back problems since November 2000 and she did not complain of back problems at her annual visit in May 2001. Furthermore, before May and June of 2002 there were no clinical signs of neurological damage caused by herniated discs, although a possible mild radiculopathy was discussed. Finally, plaintiff performed heavy physical work for approximately 10 hours per day for the three years preceding her injury without difficulty.

8. Dr.

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Bluebook (online)
Shearin v. Lewis Tree Svc., Counsel Stack Legal Research, https://law.counselstack.com/opinion/shearin-v-lewis-tree-svc-ncworkcompcom-2005.