x83933.doc

I.C. NO. X83933, DONNA HEDDEN, Employee, Plaintiff v. STATIC CONTROL COMPONENTS, Employer, CHUBB INSURANCE, Carrier, Defendants.  OPINION AND AWARD by CHRYSTAL REDDING STANBACK, Deputy Commissioner, N.C. Industrial Commission.  Filed 15 July 2013.



	This case was heard before the undersigned in Raleigh, North Carolina on August 22, 2012.  Subsequent to the hearing, the record remained open for the parties to obtain and submit expert medical testimony.  The parties deposed Dr. Mark Mikles and PA-C Phillip Lloyd.  Following receipt of the deposition transcripts and the parties' briefs and contentions, the record was closed as of February 20, 2013.  This case is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Hardison & Cochran, PLLC, Raleigh, North Carolina; J. Adam Bridwell, Appearing.

	Defendant:	Hedrick Gardner Kincheloe & Garofalo, Charlotte, North Carolina; Ryan W. Keevan, Appearing.

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	The undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing and in a Pre-Trial Agreement dated August 22, 2012, as:
STIPULATIONS
	1.	All parties are properly before the undersigned, and the Industrial Commission has jurisdiction over the parties and of the subject matter.
	2.	All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder of parties.
	3.	The parties were subject to the North Carolina Worker's Compensation Act at the time of the alleged injury.
	4.	An employer/employee relationship existed between the parties at the time of the alleged injury.
	5.	The employer in this case is Static Control Components and the carrier and/or claims administrator liable on the risk is Federal Insurance Company (Chubb Group of Insuance Companies).
	6.	The employee alleges to have sustained an alleged injury to her spine on or about January 20, 2012.
	7.	The employee was paid the entire day of the alleged injury.
	8.	The employee last worked for the defendant-employer on January 20, 2012.
	9.	Documents submitted into evidence include the following:
a.	Stipulated Exhibit #1 - Pretrial Agreement
b.	Stipulated Exhibit #2 - Plaintiff's medical records
c.	Stipulated Exhibit #3 - All Forms, Documents, Motion and Filings submitted to the Industrial Commission.
d.	Deposition Transcripts of Dr. Mark Mikles and PA-C Phillip Lloyd.
	10.	Issues for determination include:
a.	Whether the employee sustained a compensable injury by accident to her spine arising out of and in the course of employment with the defendant-employer on January 20, 2012; and if so,
b.	To what benefits is she entitled?
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	Based upon a preponderance of the evidence in view of the entire record, the undersigned makes the following additional
FINDINGS OF FACT
	1.	On the date of the injury, plaintiff was 54 years old and resided in Sanford, North Carolina.  The plaintiff's educational background consists of a G.E.D.
	2.	The plaintiff began working for the employer in approximately 2008 as a Picker/Packer. The plaintiff's position of Picker/Packer required her to retrieve orders from a cart or a skid, place them in the appropriate boxing and secure the box with a wrap.  Once the boxes were wrapped, the plaintiff was required to place them on a conveyor belt.  The items that the plaintiff was required to pick from the carts and skids weighed between 20 and 60 pounds.  Approximately half of the plaintiff's work day was dedicated to picking objects from the carts or skids and the other half was dedicated to packing the objects in the appropriate boxes and placing the boxes on the conveyor belt.
	3.	The plaintiff worked for the employer 8 hours per day, 5 days per week.  As of January 20, 2012 the plaintiff was earning $9.42 an hour and had been earning this amount for over a year prior to January 20, 2012.
	4.	On January 20, 2012, the plaintiff was required to pick boxes of toner which were filled with approximately 50 bottles of toner.  The plaintiff had picked up approximately 4 to 5 boxes and while picking up one of the boxes, she felt an immediate pain across her back and both of her legs.
5.	Following the onset of the plaintiff's pain, she immediately notified her supervisor, Terry Story, of her accident of January 20, 2012.  The plaintiff requested her co-worker, Jimmy, to finish the remainder of her work order, and her supervisor contacted the company nurse.  The company nurse took a statement from the plaintiff, and the plaintiff contacted her husband to pick her up from work and take her home.
6.	The plaintiff's injury occurred on a Friday and over the course of the weekend, her back and radiating leg pain became worse.  As such, she was seen on January 23, 2012 by Phillip Lloyd, PA-C at Brick City Primary Care, who is the plaintiff's primary care physician.  PA-C Lloyd noted the plaintiff's injury at work on January 20, 2012, diagnosed her with lower back pain and recommended medication and to remain out of work.  PA-C Lloyd testified that on this evaluation date it was his opinion that the plaintiff had chronic degenerative disc disease with acute low back pain stemming from her January 20, 2012 lifting injury.
7.	Plaintiff had previously treated with PA-C Lloyd for chronic back pain; however, PA-C Lloyd had last seen her in October of 2011 where he recommended medication and did not assign work restrictions, and her back pain was much worse on her evaluation on January 23, 2012 compared with when he had last evaluated her in October of 2011.
8.	Plaintiff returned to PA-C Lloyd on January 30, 2012 where he opined the plaintiff was continuing to suffer ongoing spinal pain and continued her out of work and recommended an MRI at her next visit if she was no better.  Plaintiff returned to PA-C Lloyd on February 6 and February 14, 2012.  Since the injury to her back was no better, PA-C Lloyd recommended that plaintiff undergo an MRI.
9.	Following the MRI, the plaintiff underwent an evaluation with Dr. Mark Mikles at the Raleigh Orthopedic Clinic on March 16, 2012.  Dr. Mikles noted the plaintiff's injury by accident with the defendant-employer on January 20, 2012 and opined as to her ongoing spinal pain since that time.  Dr. Mikles testified that at the plaintiff's presentation on March 16, 2012 "it looked like she had a chronic history of back pain, which became more severe after an injury at work on January 20, 2012.  Dr. Mikles reviewed the plaintiff's February 2012 MRI and diagnosed the plaintiff with "acute -on- chronic pain" and recommended a trial of epidural steroid injections and to return to her primary care physician for further work restrictions.
10.	Based upon the recommendation by Dr. Mikles, the plaintiff began receiving ongoing pain management treatment, including injections and medication, with Dr. Gootman at the Cape fear Pain Clinic.  This treatment was consistent with what Dr. Mikles recommended at his evaluation of plaintiff on March 16, 2012.
11.	The plaintiff continued to return to her primary care physician for ongoing visits following her January 20, 2012 injury by accident. PA-C Lloyd evaluated the plaintiff with respect to her spinal injury in January, February May, July, August, October, November and December of 2012 and in January of 2013.  As of each of these evaluations, PA-C Lloyd continued to keep the plaintiff out of work.  PA-C Lloyd would have recommended the plaintiff undergo a Functional Capacity Evaluation ("FCE") to determine specific physical restrictions; however, PA-C Lloyd was not qualified to administer the FCE.
12.	The plaintiff followed up with Dr. Mikles on August 17, 2012, at which time the plaintiff continued to experience ongoing lower back pain with radiation into her buttocks.  Based upon this evaluation, Dr. Mikles recommended that plaintiff continue to be placed on work restrictions as assigned by her primary care physician and continue with pain management treatment.  Dr. Mikles indicated that he also would recommend the plaintiff undergo a FCE to determine specific physical restrictions.
13.	Dr. Mikles opined to a reasonable degree of medical certainty that the plaintiff's January 20, 2012 injury exacerbated her underlying spinal condition, and the undersigned finds the same as fact.  During his deposition, defendants questioned Dr. Mikles regarding the plaintiff's return to a baseline of her pre-existing chronic back condition following her January 20, 2012 lifting injury at work.  Dr. Mikles opined that if the plaintiff was able to work full-duty for an ongoing period of time prior to her January 20, 2012 injury by accident, then plaintiff had not returned to a baseline of her pre-existing chronic back condition following her January 20, 2012 injury.
14.	The undersigned finds by a preponderance of the evidence in view of the entire record that plaintiff was able to work full-duty with the defendant-employer for several years prior to her January 20, 2012 injury by accident.  Furthermore, the record is void of any physician restricting the plaintiff's work duties or removing her from work prior to January 20, 2012.
15.	As of January 20, 2012, the plaintiff worked 40 hours per week for the defendant-employer at an hourly rate of $9.42 for more than a year prior to the January 20, 2012 injury by accident.  Plaintiff's average weekly wage is $376.80 yielding a compensation rate of $251.21.
16.	Following the plaintiff's injury by accident on January 20, 2012, she received short term and long term disability benefits; however, there was no evidence presented as to whether these benefits were or were not solely funded by the defendant-employer.
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	Based on the foregoing stipulations and findings of fact, the undersigned finds the following additional
CONCLUSIONS OF LAW
	1.	On January 20, 2012, plaintiff sustained an injury by accident arising out of and in the course of her employment with the defendant-employer that resulted in an exacerbation to her chronic lumbar spine condition.  N.C. Gen. Stat. §97-2(6).
	2.	Plaintiff's average weekly wage is $376.80, yielding a compensation rate of $251.21.  N.C. Gen. Stat. §97-2(5).
	3.	As a result of her injury by accident of January 20, 2012, plaintiff has been unable to earn wages in any employment since January 20, 2012 and is therefore entitled to the payment of temporary total disability benefits at a compensation rate of $251.21 from January 20, 2012 to the present and continuing until she returns to work or until further Order of the Industrial Commission.  N.C. Gen. Stat. §97-29.
	4.	Subject to the provisions of N.C. Gen. Stat. §97-25.1, plaintiff is entitled to have defendants provide all medical treatment, incurred or to be incurred, necessitated by the January 20, 2012 compensable exacerbation to the plaintiff's chronic lumbar spine condition when bills for the same have been approved pursuant to Industrial Commission Procedures.  N.C. Gen. Stat. §§97-2(19); 97-25; 97-25.1.
	5.	Defendants shall be entitled to a credit for any short term and/or long term disability benefits, which were solely funded by the defendant-employer, which the plaintiff has received since January 20, 2012.  N.C. Gen. Stat. §97-42.
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	Based on the foregoing stipulations, findings of fact, and conclusions of law, the undersigned enters the following
A W A R D
	1.	Subject to the attorney's fee approved herein, defendants shall pay to plaintiff temporary total disability benefits at a compensation rate of $251.21 per week beginning January 20, 2012 through the date of this Opinion and Award.  Said compensation has accrued and shall be paid in one lump sum.  Defendants are entitled to a credit for any temporary total disability benefits paid to the plaintiff, which were benefits the defendant-employer solely funded, from January 20, 2012 to the date of this Opinion and Award.
	2.	From the date of this Opinion and Award forward, defendants shall pay to plaintiff temporary total disability benefits at a compensation rate of $251.21 per week until the plaintiff returns to work or until further Order of the Industrial Commission.
	3.	Defendants shall provide all medical treatment, incurred or to be incurred, necessitated by the January 20, 2012 compensable exacerbation to the plaintiff's chronic lumbar spine condition when bills for the same have been approved pursuant to Industrial Commission Procedures.
	4.	Defendants shall authorize and pay for the plaintiff's ongoing treatment with Dr. Gootman at Cape Fear Pain Center.  Additionally, defendants shall authorize the plaintiff's Functional Capacity Evaluation as recommended by Dr. Mikles and PA-C Lloyd.
	5.	A reasonable attorney fee of twenty-five percent (25%) of the compensation due Plaintiff under Paragraphs 1 and 2 of this Award is approved for plaintiff's counsel and shall be paid as follows: twenty-five percent (25%) of the lump sum due plaintiff under Paragraph 1 of this Award which has accrued to date shall be paid directly to plaintiff's counsel and shall be deducted from the compensation due plaintiff; thereafter, defendants shall pay to plaintiff's counsel every fourth compensation check due the plaintiff.
	6.	Defendants shall pay the costs.
	IT IS FURTHER ORDERED that this case be REMOVED from the Raleigh hearing docket.



			S/			
CHRYSTAL REDDING STANBACK
DEPUTY COMMISSIONER

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