Turner v. Wal-Mart Stores

North Carolina Industrial Commission

Turner v. Wal-Mart Stores

CourtNorth Carolina Industrial Commission

DecidedSeptember 9, 2004

DocketI.C. NO. 265038

StatusPublished

This text of Turner v. Wal-Mart Stores (Turner v. Wal-Mart Stores) 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

Turner v. Wal-Mart Stores, (N.C. Super. Ct. 2004).

Pincite

Opinion

*********** The undersigned reviewed the prior Opinion and Award, based upon the record of the proceedings before Deputy Commissioner Dollar. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; and having reviewed the competent evidence of record, the Full Commission affirms in part and reverses in part the Opinion and Award of Deputy Commissioner Dollar.

*********** The undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing as:

STIPULATIONS 1. The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.

2. American Home Assurance was the carrier on the risk.

3. The employee-employer relationship existed between the parties at all relevant times herein.

4. Plaintiff sustained an admittedly compensable injury to her back on June 3, 2002, at which time her average weekly wage was $319.48. Defendants accepted plaintiff's claim as a medical-only claim.

5. Plaintiff last worked for defendant-employer on or about July 16, 2002.

6. The issues for determination are:

a. Whether plaintiff is entitled to past and future medical treatment for the compensable injury she sustained on June 3, 2002?

b. Whether plaintiff is entitled to temporary total or temporary partial disability benefits from June 3, 2002 and continuing until such time as she is provided with suitable employment? and

c. Whether plaintiff is entitled to permanent partial disability benefits if she is determined to have reached maximum medical improvement?

7. The parties stipulated the following documentary evidence:

a. Western Wake Emergency Services, fourteen pages;

b. Concentra Medical Center, forty-six pages;

c. Wake Radiology, one page;

d. Raleigh Orthopaedic Clinic, eight pages;

e. ProActive Therapy, eleven pages;

f. I.C. Forms 18, 33R and 33;

g. Plaintiff's Answers to Interrogatories, eight pages;

h. Defendants' Answers to Interrogatories, four pages;

i. Defendants' 607 Response, forty pages; and

j. ESC Documents, ten pages.

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

FINDINGS OF FACT 1. At the time of the hearing before the Deputy Commissioner, plaintiff was forty-years old and resided in Knightdale, North Carolina. She has a tenth grade education and prior experience as a cashier and a presser. Plaintiff received Social Security disability benefits since 1993 due to a seizure disorder. She also has pre-existing asthma. Plaintiff is able to read and write, although she did indicate she did not spell well. Plaintiff began working for the employer in the Fall of 2001.

2. At the time of the compensable injury, plaintiff was employed as a shoe department associate. Her duties included stocking and cleaning shoes, removing paper from shoeboxes, helping customers and retrieving shoes from the stockroom or shelves for customers. Stocking shoes required plaintiff to get individual shoeboxes from larger shipping boxes on pallets and place the individual boxes in bins in the stockroom. Plaintiff was not required to lift the large boxes on the pallets. These boxes were shrink-wrapped and lifted by a forklift. Rob Hensley, the shoe department manager, was plaintiff's immediate supervisor.

3. On March 24, 2002, plaintiff received a disciplinary conference, called a coaching for improvement, due to her failure to clear five pallets, as she had been assigned to do.

4. Under defendant's injury policy, employees are trained that as soon as they realize they are injured, they should report the injury to a member of management. Members of management include the immediate supervisor, department manager, store manager, or personnel manager. Personnel Manager Barbara Prince coordinates workers' compensation claims for the Knightdale store. Once a report of an on-the-job injury is made, she talks with the employee to see if they are okay. If so, then she has them prepare an Associate's statement. If they require medical care, she prepares a form to authorize the care and has a member of management take the employee to the doctor.

5. On June 3, 2002, plaintiff was assigned to work freight with a coworker from 11:00 a.m. to 4:00 p.m. She actually worked 5.35 hours. This entailed using a box cutter to open the large shrink-wrapped boxes, place the individual boxes on shoe carts, roll the carts out to the shoe department and place the shoes in their proper location. The receiving department receives large stacks of boxes of shoes and breaks these down, placing them on pallets which are organized in the stockroom. At the hearing before the Deputy Commissioner, plaintiff testified she was lifting a box, which contained six pairs of men's shoes, when she felt pain in her low back, even though she was not assigned to lift the large boxes and had no reason to lift one.

6. At the hearing before the Deputy Commissioner, plaintiff testified that as soon as she injured herself, she went to report her injury to Ms. Prince. She contended Ms. Prince tried to dissuade her from reporting an injury by telling her she had won a 27-inch color television in the store drawing and she could not receive the television if she reported an injury. Plaintiff's testimony was specifically rejected as not being credible. The competent evidence in the record established the employer has never given a 27-inch television as a prize for the safety drawing. Second, plaintiff did not go to report the injury until June 4, 2002. Third, Ms. Prince testified she was at lunch and upon her return, plaintiff had already reported the injury to others at the store, and Ms. Prince only prepared the treatment authorization form. Plaintiff further offered testimony that Marlene Hunter and others at Wal-Mart told her they would not pay for her medical care, and she indicated trouble with getting prescriptions paid. This testimony is also rejected as not being credible. The competent, credible evidence clearly establishes that plaintiff was notified by Ms. Prince and Ms. Valentino that treatment was authorized and, in fact, the employer paid for medical care until she was terminated.

7. On June 4, 2002, plaintiff worked the 11:00 a.m. to 4:00 p.m. shift. She reported her injury to Store Manager Marlene Hunter or Gretchen Crews in the afternoon and requested to see a doctor. When Ms. Prince returned from lunch, she found them in personnel. Ms. Prince completed a workers' compensation request for medical care form at 3:00 p.m. and authorized plaintiff to receive treatment at Concentra Medical Center on Green Road in Raleigh. Ms. Crews drove plaintiff for the initial medical appointment. Plaintiff's claim was accepted as a medical-only claim.

8. On June 4, 2002, Dr. Michael Landolf of Concentra Medical Center examined plaintiff's low back pain. Plaintiff stated she developed pain over the past week because she lifts too much at work. She indicated she had mild aching before, but it became much worse on June 3, 2002 after she lifted a heavy box. X-rays were reported as negative and Dr.

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