Thompson v. Fedex Ground/RPS, Inc.

719 S.E.2d 146, 217 N.C. App. 126, 2011 N.C. App. LEXIS 2344
CourtCourt of Appeals of North Carolina
DecidedNovember 15, 2011
DocketNo. COA11-448
StatusPublished

This text of 719 S.E.2d 146 (Thompson v. Fedex Ground/RPS, Inc.) 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
Thompson v. Fedex Ground/RPS, Inc., 719 S.E.2d 146, 217 N.C. App. 126, 2011 N.C. App. LEXIS 2344 (N.C. Ct. App. 2011).

Opinion

STEELMAN, Judge.

Where there was no prior award by the Commission of disability relating to plaintiff’s alleged mysofascial pain syndrome and fibromyalgia and defendants’ lack of any admission relating thereto, we hold that plaintiff was not entitled to a presumption of continuing [127]*127disability. Where there was competent evidence to support the trial court’s finding that plaintiff’s alleged fibromyalgia and mysofascial pain syndrome were psychologically induced, the trial court did not err in finding those conditions to be unrelated to plaintiff’s 16 December 2000 injury by accident.

I. Factual and Procedural History

On 16 December 2000, Anita Thompson (plaintiff) was employed by Federal Express Ground as a manager in training. Plaintiff was returning from a business trip when she sustained a compensable injury by accident involving her back and neck while lifting luggage out of the trunk of a rental car. Plaintiff returned to work part-time for a short period following the accident, but has not worked after that time. On 8 August 2001, Federal Express Ground along with its third-party administrator, Crawford & Company, (collectively defendants) accepted the compensability of plaintiff’s claim by filing a Form 60, which stated that plaintiff sustained an injury by accident to her back on 16 December 2000 and that her disability began on 22 May 2001.

Dr. Raphael Orenstein was plaintiff’s treating physician following her accident. Plaintiff’s complaints of pain continued to worsen, and even with the results of an MRI scan, Dr. Orenstein was unable to determine the source of plaintiff’s pain. When plaintiff did not respond to conservative treatment, which included physical therapy, medication, and chiropractic care, Dr. Orenstein recommended she attend an interdisciplinary pain program designed to change a patient’s attitude toward pain. As a result of this recommendation, plaintiff underwent a psychological evaluation with Dr. Scott Sanitate on 11 April 2001. Dr. Sanitate found plaintiff’s pain to be psychological and not physiological in nature. Plaintiff requested a referral for a second opinion with an osteopath. When Dr. Orenstein refused to refer plaintiff to an osteopath, she found one through the Internet. Plaintiff, started seeing Dr. Thomas Motyka, an osteopathic consultant with UNC hospitals on 24 April 2001. Dr. Motyka diagnosed plaintiff with fibromyalgia and myofascial pain syndrome.

In response to a Form 33 request for hearing filed by plaintiff following defendants’ refusal to pay for Dr. Motyka’s treatment, the Full Commission filed an opinion and award on 1 September 2004 awarding plaintiff temporary total disability and requiring defendants to pay for medical expenses resulting from her back injury. The Commission only required defendants to pay for Dr. Motyka’s care for the limited period from 24 April 2001 through 26 June 2001. Plaintiff appealed to [128]*128this Court. This Court affirmed the Full Commission in Thompson v. Federal Express Ground, 175 N.C. App. 564, 569, 623 S.E.2d 811, 814 (2006), holding that “[s]ince plaintiff failed to obtain the Commission’s approval of Dr. Motyka within a reasonable time, defendants were not required to pay for her treatments with Dr. Motyka from 27 June 2001 until 8 August 2001” (the time period between when Dr. Orenstein’s retroactive approval of Dr. Motyka’s treatment ended and when defendants admitted liability by filing a Form 60).

On 6 January 2005, the Commission entered an order designating Dr. Yeeraindar Goli plaintiff’s authorized treating physician.

On 29 October 2007, plaintiff filed a Form 33 request for hearing to resolve disputes over whether or not plaintiff’s alleged myofascial pain syndrome and fibromyalgia, including her vision and oral problems, were causally related to her 16 December 2000 injury by accident, and if so, to what compensation she was entitled. In an opinion and award entered by the Full Commission on 27 January 2011, the Commission held that the Commission’s 1 September 2004 opinion and award “concluded that plaintiff [was] entitled to have defendants pay for all medical treatment related to her compensable back injury which may provide relief.” However, the Commission held that the opinion and award of 1 September 2004 “did not find that plaintiff’s alleged fibromyalgia, myofascial pain syndrome, or the vision problems she associates therewith, were causally related to her December 16, 2000 injury by accident, and did not specifically hold that plaintiff was entitled to have defendants pay for medical treatment for her alleged fibromyalgia, mysofascial pain syndrome, or the vision problems she associates therewith.” Based upon these findings the Commission concluded that “[p]laintiff has failed to prove that her fibromyalgia, myofascial pain syndrome, or the vision problems she associates therewith are the direct and natural result of, or are causally related to, her December 16, 2000 injury by accident.” The Commission further concluded that “[p]laintiff has failed to prove that any continuing disability or inability to earn wages is related to her December 16, 2000 injury by accident.”

Plaintiff appeals.

II. Standard of Review

“Appellate review of an award from the Industrial Commission is generally limited to two issues: (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact.” Clark v. Wal-Mart, 360 [129]*129N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (citation omitted). “[I]f there is competent evidence to support the findings, they are conclusive on appeal even though there is plenary evidence to support contrary findings.” Oliver v. Lane Co., 143 N.C. App. 167, 170, 544 S.E.2d 606, 608, (2001) (citation omitted).

III. Presumption of Disability

In her first argument, plaintiff contends that the Industrial Commission erred by failing to hold that there exists a presumption of disability for the plaintiff in light of a prior award of disability by the Commission, and as a subpart to this argument contends that defendants have failed to rebut this presumption. We disagree.

In Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508 (2004), this Court expressly stated that “a presumption of disability in favor of an employee arises only in limited circumstances.” Id. at 706, 599 S.E.2d at 512. Those limited circumstances are (1) when there has been an executed Form 21, “AGREEMENT FOR COMPENSATION FOR DISABILITY”; (2) when there has been an executed Form 26, “SUPPLEMENTAL AGREEMENT AS TO PAYMENT OF COMPENSATION”; or (3) when there has been a prior disability award from the Industrial Commission. Id. Otherwise, the burden of proving “disability” remains with plaintiff, even if the employer has admitted “compensability. ”

Clark, 360 N.C. at 44, 619 S.E.2d at 493.

Plaintiff argues that the 1 September 2004 opinion and award by the Commission constituted a prior disability award by the Commission entitling her to a presumption of disability.

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Related

Oliver v. Lane Co.
544 S.E.2d 606 (Court of Appeals of North Carolina, 2001)
Clark v. Wal-Mart
619 S.E.2d 491 (Supreme Court of North Carolina, 2005)
Johnson v. Southern Tire Sales and Service
599 S.E.2d 508 (Supreme Court of North Carolina, 2004)
Thompson v. Federal Express Ground
623 S.E.2d 811 (Court of Appeals of North Carolina, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
719 S.E.2d 146, 217 N.C. App. 126, 2011 N.C. App. LEXIS 2344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-fedex-groundrps-inc-ncctapp-2011.