DISCLAIMER: SOME NAMES HAVE BEEN CHANGE TO PROTECT PARTIES INVOLVED

The Plaintiff and Defendant have recently settled this case. After a great deal of litigation, the Plaintiff was very satisfied with the result.

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PLAINTIFF-APPELLEE'S BRIEF

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STATEMENT OF THE CASE

Plaintiff filed a workers' compensation Form 18 on October 15, 1998 alleging she was injured at the Defendant on May 28, 1997. The Plaintiff filed a hearing request. The Defendant filed a workers' compensation Form 33R, denying the Plaintiff's workers' compensation case.

A hearing was held on October 25, 1999. Lay testimony of Plaintiff, plaintiff's family members and employees of Defendant was introduced at the hearing. After the hearing the depositions of Dr. Thomas Brewer, Dr. Karolyn Kruger, Dr. Russell Amundson, Dr. Kathleen Barfoot and Dr. Timothy Garner were taken. Dr. Marc Notrica's medical records were stipulated into evidence by the parties. A Motion to Exclude the Medical Testimony and Report of

Dr. Timothy Garner was filed at Dr. Garner's deposition on February 17, 2000 and served on Defendant's counsel at the deposition. Dr. Timothy Garner never examined the Plaintiff, but rendered a medical report. The Honorable Amy L. Pfeiffer granted the Plaintiff's Motion to Exclude the Medical Testimony of Dr. Timothy Garner and his medical report, on February 29, 2000. The Defendant filed a Motion for Reconsideration of the Court's ruling, which was denied.

Deputy Commissioner Amy L. Pfeiffer rendered a favorable Opinion for the Plaintiff in I.C. File number 870745 on or about August 10, 2000. The Defendant filed an Appeal to the Full Commission on or about the 21st day of August, 2000. The Full Commission entered a unanimous Opinion and Award in favor of the Plaintiff, which was filed by the North Carolina Industrial Commission on November 28, 2001. The Full Commission stated in their Opinion that they affirmed the Opinion and Award of the Deputy Commission Amy L. Pfeiffer with minor modification. The Full Commission allowed the testimony and medical report of Dr. Timothy Garner to be admitted into evidence and fully considered it, prior to reaching its' decision. The Defendant's gave Notice of Appeal to the Court of Appeals on December 21, 2001.

STATEMENT OF THE FACTS

Plaintiff, at the time of the hearing, was thirty-seven (37) years old. Her birth date was August 12, 1963. (T p.4, lines 6-11). Plaintiff completed the ninth grade in school, but later obtained her GED. (T p.43, lines 19-20). At the time of the workers'compensation hearing, Plaintiff was employed by Defendant and had been employed since 1995. Plaintiff's job at Defendant was a hose assembler. Her job was unskilled physical work that required her to perform manual labor.(T p.5, lines 2-25; p.6, lines 1-23). Prior to being employed at Defendant, Plaintiff had a good work record, having worked at Company B. While employed at Company B, she ran a knitting machine and graded cloth. (T p.43, lines 21-23; p.44, lines 8-15). Before Company B, she worked at Company C on an assembly line making recliner parts. Plaintiff's work history consisted of unskilled labor related jobs.(T Exhibit p.454).

In August of 1996, Plaintiff has a serious medical condition to her back, which required Dr. Russell Amundson, a neurosurgeon for the Johnson Neurological Clinic, to perform surgery on her back. Dr. Russell Amundson performed a microdiskectomy. The microdiskectomy was performed at two separate disk levels of the Plaintiff's back. The surgery was performed on the upper disk level, cervical 4 and cervical 5 vertebra. The second disk level was also operated on between cervical 5-C and the cervical 6 level. Plaintiff made a good recovery from the 1996 surgery. She was seen by Dr. Amundson on September 5, 1996 after her August 1996 surgery. She was not having any significant neck pain. Her arm pain was relieved. Her strength was intact to resistant testing. (T Exhibit p.36)(Amundson Depo p.7, lines 1-4; p.9, lines 1-11).

Plaintiff was again seen by Dr. Amundson on September 30, 1996. Thereafter, an x-ray was taken. Dr. Amundson determined that the bone plugs, which were the fusion elements that were placed at the operative sites at C-4-5 and C5-6, were in good position. The doctor found that Plaintiff had a little soreness in her neck after driving a distance or doing excessive household chores. She had weaned herself from the cervical collar, which was the recommended course of action by her doctor. Dr. Amundson said that he would anticipate that the Plaintiff would have some soreness after the surgery. (Amundson Depo p.10, lines 3-7 and 15-22).

Plaintiff was seen by Dr. Amundson on October 17, 1996. At this examination Plaintiff asked Dr. Amundson if she could return to work at Defendant. The doctor allowed her to return to work. The Defendant agreed to work with Plaintiff by placing her on a light duty basis. The doctor noted the Plaintiff was not having any arm pain but having some intermediate neck pain. (Amundson Depo p.11, lines 19-24) (T Exhibit p.40).

On November 14, 1996, Dr. Amundson did some testing for muscle strength. On this date the plaintiff was able to demonstrate excellent strength in finger grips, finger extension, wrist extension, biceps strengths, the brachial radialis strength, as well as in the triceps. In addition, she had good strength in shoulder adduction and abduction. (Amundson Depo p.11, lines 9-24).

Dr. Amundson was questioned in his deposition, and testified as follows:

Q."Does it appear that-Based on this record, is she, in fact, making a good recovery on November 14th, 1996?"

A."I would offer that opinion, yes." (Amundson Depo p.12, lines 4-7).

Plaintiff was again seen by Dr. Amundson on March 20, 1997. She complained of having some pain after a hard day at work but was working at full employment. Dr. Amundson related the pain the Plaintiff was having to overexertion at work. (Amundson Depo p.12, lines 8-18). There was an x-ray taken on March 25, 1997. Dr. Ira Bell, a radiologist who specialized in reviewing x-rays, interpreted the Plaintiff's x-ray. Dr. Bell noted the x-ray showed a satisfactory post-operative appearance. He stated on the c\x-ray report that there was a fusion at C-4/5 and C5/6 levels. He stated that, there is no instability on flexion extension views. (Amundson Depo p.13, lines 1-4)(T Exhibit p.47). Dr. Amundson noted in his April 17, 1997 medical record, after examining the March 25, 1997 x-ray, there was a very solid fusion at the operative site C4-5 and C5-6 and no instability on the flexion extension views. (T Exhibit p.51). Dr. Amundson released the Plaintiff from his medical care on April 17, 1997.

The Plaintiff went back to her job at Defendant and she had a job evaluation performed at Defendant on May 19, 1997. The job evaluation was introduced into evidence during the Plaintiff's case and can be found on page 445 of the Transcript Exhibits. The evaluation found the Plaintiff's performance at her job was good, met normal requirements or exceeded normal requirements of the job at Defendant. There was a quantity category and a quality category listed on the evaluation. Plaintiff's performance met the normal requirements of her employer on May 19, 1997 in these categories. There is nothing noted on the evaluation concerning any physical limitations that Plaintiff was demonstrating on or about May 19, 1997. This was nine days prior to her workers' compensation injury of May 28, 1997, which is the subject of the Plaintiff's claim.

On May 28, 1997 Plaintiff was working at Defendant. She was in the aisleway, bending down, when she was struck by a forklift driven by an employee of Defendant by the name of Forklift driver. Forklift driver testified, prior to striking Plaintiff, he did not see her and he was carrying a load of wheels on the forklift. He estimated the wheels and forklift weighed a total of 5,000 pounds. Forklift driver testified, the first time he saw Plaintiff she was crawling on the floor after the incident. (T p.71, lines 7-9; p.74, lines 7-12; p.75, lines 19-21).

Another employee of Defendant testified that Plaintiff was kneeling down and bent over backwards by the force of the tow motor striking her. Employee stated that she heard another employee yell for Forklift driver to stop the forklift.(T p.48, lines 14-25; p. 49, lines 4-17).

Yelling employee testified he did not see the forklift strike Plaintiff, but saw Plaintiff on the ground. He stated he heard Plaintiff holler for Forklift driver to stop the forklift. (T p.48, lines 22-25; p.49, lines 6-17).

Immediately, after the May 28, 1997 incident, Plaintiff testified her neck felt funny after the injury. Prior to the injury of May 28, 1997, her back pain was on a scale two (2) or three (3) level on a scale of ten (10) and that she was able to perform her job at Defendant. (T p.21, lines 20-23). She stated after the May 28, 1997 incident she started having pain in her left side, her neck felt funny and she began to feel like she did prior to her first surgery in 1996. She began immediately losing strength in her upper extremities. (T p.14, lines 18-21).

The Plaintiff's mother in law testified she lived about two hundred (200) feet from her son and the Plaintiff, Plaintiff. She stated she saw Plaintiff quite frequently. On May 28, 1997 she was mowing in front of her home when she saw Plaintiff arrive home. She stated that Plaintiff was deathly white. She said that Plaintiff told her a tow motor had hit her. She testified she saw bruises and scrapes on Plaintiff's body. Plaintiff testified she had known Plaintiff for twelve (12) years and she had always worked during that time period. She stated that prior to May 28, 1997 Plaintiff was doing quite well and was back at work after her 1996 surgery. (T p.51, lines 18-25; p.52, lines 1-25: p.53, lines 1-18)

The Plaintiff's sister testified that prior to May 28, 1997 Plaintiff made a good recovery from her August 1996 surgery. She stated that after the first surgery Plaintiff would plant flowers and go to the flea market.(T p.58, lines 7-13).

The Plaintiff's husband testified he had been married to Plaintiff since 1987. He testified, prior to May 28, 1997, Plaintiff worked all the time. On May 28, 1997, he stated he was outside mowing the yard when his wife came home on May 28, 1997. He said she was pale, white and barely could hold herself up. He stated she had made a good recovery from the first surgery of August of 1996 prior to the May 28, 1997 incident.(T p.59, line 24-25; p.60, lines 1-25).

Plaintiff was treated, after her May 28, 1997 injury, by the Brigman Clinic. At the Brigman Clinic, the Plaintiff told both Dr. Brewer and an x-ray technician her neck felt funny. Dr. Brewer testified, at his deposition, the Plaintiff said she was squatting down when a tow motor hit her. The Plaintiff also told the doctor that the tow motor hit her and pushed her up against some boxes. The doctor noted there were multiple abrasions and contusions on the Plaintiff's body. The doctor took x-rays. He x-rayed the Plaintiff's cervical spine, forearm and her left elbow. (Brewer Depo p.7, lines 12-18; p.8, lines 3-14). Dr. Russell Amundson, a neurosurgeon, would later testify tomograms are a much better diagnostic tool than x-rays in that they are three dimensional and effectively slice through a solid object and you get a better sense of the density of that object. (Amundson Depo p.20, lines 2-25, p.21, lines 1-7). Dr. Amundson was not surprised Dr. Brewer's initial examination did not show the fracture of the Plaintiff's fusion. In Dr. Timothy Garner's deposition, he admitted that fractures often times do not appear on the initial x-rays after an injury. (Garner Depo p.33, lines 14-24). Plaintiff was again checked by Dr. Brewer on June 2, 1997 and released from his care.

Plaintiff testified, after the tow motor hit her she did not realize she had fractured her fusion. (T p.17, lines 5-7). A fracture was later discovered by Dr. Amundson. Plaintiff testified that she was told by Dr. Kruger, her regular family physician, she probably only had nerve damage in relationship to her 1996 surgery. She stated that she went to her family physician who placed her on pain medication. The pain medication kept getting stronger. (T p.19, lines 9-13). She stated, "she continued to try to work because she liked her boss and wanted to please him." (T p.18, lines 8-9). She stated the doctors kept believing she had only nerve damage from the 1996 surgery and they did not realize she had a fracture until Dr. Amundson ordered a tomogram and found when the tow motor struck her, on May 28, 1997, it had fractured her fusion. (T p.18, lines 13-23). The Plaintiff stated she pushed herself until she could go no further. "I thought that I was going to die." (T p.19, lines 9-15).

A list of the extensive pain medications Dr. Kruger had prescribed for the Plaintiff can be found in Dr. Kruger's deposition. (Kruger Depo Plaintiff's Exhibit #1). At all times after the tow motor incident of May 28, 1997, the Plaintiff was heavily medicated. On July 17, 1997 Dr. Kruger stated in her medical note, Plaintiff is here for a follow-up of her neck pain. She wants to know if I will refill her Naprosyn and muscle relaxant. On August 21, 1997 the patient called, and according to Dr. Kruger's records, wanted a refill of her Cyclobenzaprine and Naprosyn. It states in the August 21, 1997 note, if the pain does not get better that Plaintiff will need to see a neurosurgeon. (T Exhibit p.102). On April 23, 1998 the Plaintiff again contacted Dr. Kruger requesting refills of her Naprosyn and muscle relaxant. (T Exhibit p.103). On June 3, 1998 Dr. Kruger noted Plaintiff complained of pain radiating down her arms. On June 3, 1998 Dr. Kruger referred Plaintiff, due to the continued pain, for a MRI scan. She stated she referred her an MRI scan because she could get her back into Dr. Amundson, her original treating physician, quicker if the MRI scan showed something. (T Exhibit p.104). Dr. Kruger, at her deposition, was asked the following:

Q."Did she relate to you that she was having some trouble getting another appointment with her treating physician, Dr. Amundson?"

A."Yes."
(Kruger Depo p.18, lines 16-19).
The MRI did not demonstrate a disk herniation.

Dr. Kruger saw Plaintiff again on June 12, 1998. She noted the Plaintiff still had severe neck pain. Dr. Kruger referred Plaintiff to an anesthesiologist, Dr. Marc Notrica, for possible epidural steroid injections for her severe pain. (T Exhibit p.106). Dr. Kruger testified, at her deposition, she prescribed Cyclobenzaprine, a muscle relaxant, for the Plaintiff and Naprosyn. Dr. Kruger testified Dr. Amundson had also prescribed Naprosyn for the Plaintiff as demonstrated by the medication list that can be found in Dr. Kruger's deposition. (Kruger Depo Plaintiff's Exhibit #1). The Plaintiff was prescribed large amounts of narcotics and other medication after the May 28, 1997 forklift incident. Dr. Kruger increased the Plaintiff's dosage of Naprosyn to 500 milligrams from 375 millgrams. (Kruger Depo p.11, lines 9-14). She also prescribed the Plaintiff some Diazepam a generic Valium, a synthetic narcotic with Hydrocodone and Tylenol in combination. (Kruger Depo p.12, lines 21-25).

The Plaintiff saw Dr. Marc Notrica. Dr. Kruger testified that Dr. Notrica prescribed sleeping medications, antidepressant medications and refilled the patient's narcotics while Plaintiff was receiving treatment at the Community General Hospital Pain Clinic. (Kruger Depo p.19, lines 23-25). Dr. Notrica took some intake records of the patient when she began treating at the Pain Clinic at the Community General Hospital. Plaintiff, when she was treating with Dr. Notrica, still believed her pain was caused by nerve damage from the 1996 surgery and did not know, at the time, she had a fracture of her fusion. Plaintiff filled out the McGill-Melzack Pain Questionnaire. On the questionnaire, Plaintiff described her pain as pounding, shooting, stabbing, sharp, crushing, wrenching, searing, stinging, heavy, splitting, exhausting, sickening, terrifying, killing, blinding, unbearable, piercing, tearing, cold and torturing. She said she had headaches, can't sleep and she had no other activities other than her job. (T Exhibit p.309). Dr. Notrica has a typographical error in his medical records. His records state the Plaintiff's first surgery was in August of 1997. This should read August of 1996. Plaintiff told Dr. Notrica her pain hurt constantly and it intensified as the day progressed. She complained of tingling and numbness in the hands and arms, right greater than left. She described her pain as 9 out of 10 on a VAS scale and also had some decreased grip strength. Plaintiff told Dr. Notrica she could not do what she used to do and was suffering. She stated while riding in a car that any bumps in the road or jarring sensation intensified her pain and caused stiffness in her back and neck. The patient was taking a medication known as Naprosyn, which she did not really affect her pain. The doctor also noted Plaintiff had recently been put on a course of Prednisone, which had helped a little bit and was taking Cyclobenzaprine prn, which did not affect her pain at all. (T Exhibit p.315). Dr. Notrica started Plaintiff on Lodine, Effexor XR, Ultram and Ambien. The doctor also prescribed epidural steroid injections. (T Exhibit p.316). Dr. Notrica noted in his July 29, 1998 medical note the following:

"Plaintiff is seen in the clinic with continued complaints of neck pain and pain radiating down into both her arms. She has taken Lodine XL 400, which has slightly decreased her pain. She is using Ambien 10 mg. which his allowing her to sleep 4-5 hours a night and Ultram 50 mg. 2 tablets q. 6 hrs which has helped her with outbreaks of severe pain." He further states that, "she says that she is hurting severely now." (T Exhibit p.326).

Plaintiff's treatment at the Pain Clinic was not successful and Plaintiff was eventually referred to the Johnson Neurological Clinic by Dr. Kruger.

Dr. Kruger, the Plaintiff's family physician, testified at her deposition, the following:

"She had been trying to work through all of this and I suggested that she go out of work and she wanted to try it and see if they wouldn't put her on light duty. She told me that her supervisor was going to work with her and she thought that would work out. So I wrote her a note saying that she couldn't lift over 10 pounds. And she called back within a day or two and said that they didn't have a job where she could do that. And so at that point, we wrote her out of work."
(Kruger Depo p.20, lines 6-15).

The work note was dated September 1, 1998.

Dr. Kruger further testified as follows:

"I think Plaintiff's got a very high pain tolerance. In 1996 when she had two herniated disks she had been working the entire time. She had been to the emergency room at least twice, she was in severe pain when I saw her in the office and she was still working. She has never over-exaggerated her symptoms, she's definitely not a liar, and I think she has always worked and worked hard and she was trying to work." (Kruger Depo p.20, lines 20-25; p.21, lines 1-3).

On September 1, 1998 Dr. Kruger wrote Defendant a letter, which has been made part of the record, which parts of the letter state the following:

"In spite of the fact that she has been going to the Pain Clinic and has been participating in therapy, she has not had the improvement I would have hoped. At this time I cannot estimate the duration of her disability."

"As you are aware, Plaintiff has always been a very good worker and would prefer to attempt working if she is given some additional help. At the time I said that she could not lift over ten pounds, we were advised that there was no light duty at Defendant, and she was therefore taken out on disability."
(T Exhibit p. 295).

On Dr. Kruger's September 1, 1998 letter there is a hand written response, dated September 10, 1998, written directly on the letter. It says as follows,

"Called Plaintiff to discuss letter. We discussed filling the job. She will let us know what the Dr. tells her on September 21, 1998. I told Plaintiff we would work with her an the doctor to try and find a job that would fit her restrictions, if any, when released."
(T Exhibit p. 295).

The Plaintiff's employer indicated to Plaintiff that she was still employed with the company and they would try to find work within her restrictions.

After returning to her surgeon, Dr. Amundson, on September 21, 1998, the patient told Dr. Amundson, as noted in his medical records, the following:

"She says she has been having some difficulties for over a year of intermittent symptoms of neck discomfort with occasional discomfort into the head and arms. She says her situation has worsened since a year ago. She claims at that time to have been hit by a tow motor while at work where she was hit and slid several feet. She says since that time her symptoms have become more constant. The symptoms are there all the time but worsened with any level of activity including household chores or light recreational activities."

"She says at times she will have neck pain which is quite severe which will lead to headache which is associated with nausea and vomiting."
(T Exhibit p. 58).

The patient reported that she had been seen at the Pain Management Clinic at Community General Hospital but had no lasting benefit. Dr. Amundson further stated in his September 21, 1998 medical record the following:

"There is a concern that she has had increasing symptomatology since a traumatic injury and this coupled with the x-ray finding of apparent lucency at the 5-6 level raises a concern of fracture at the fusion site. I expressed those concerns to the patient." (T Exhibit p.59).

Dr. Amundson suggested that the patient have flexion extension views of the cervical spine. If these do not demonstrate any abnormality then further evaluation with tomography may be of benefit. (T Exhibit pp.353-354).

Dr. Amundson had the tomogram performed on October 8, 1998. After getting the tomogram results, Dr. Amundson said there was a solid fusion at C4-5 and at C5-6 there appears to be some lucency as the tomograms are brought across the disk space. (T Exhibit p.359).

Dr. Amundson wrote the Plaintiff's attorney on January 21, 1999, which has been introduced into the Record, and stated the following:

"After review of Plaintiff's medical records and based on the statements she has made to me, I believe that with reasonable medical certainty her most current injury, which I have diagnosed as a fracture through her previous fusion at C-5/6 is casually related to the accident described by her occurring on May 28, 1997 when she was struck by a tow motor at work. I believe this statement, as well as some enclosed medical records will clarify the patient's current clinical situation."
(T Exhibit p.364).

Dr. Amundson performed surgery on Plaintiff on February 17, 1999. Dr. Amundson had the benefit of actually looking into the Plaintiff's body, which no other witness in this case had that benefit. The doctor stated there was a very clear fracture line through the fusion at C-5/6 to the right of the midline. There appeared to be somewhat fibrous tissue, but to the left there was clear bony fusion with a fracture line through it. (T Exhibit p.368). Dr. Amundson testified that throughout his practice of twelve years he had only seen one other fracture of a fusion and this was due to a traumatic automobile accident the person was in. (T p.43, lines 7-15).

Dr. Amundson suggested in his April 29, 1999 medical note the patient was going to require considerable therapy and rehab to get back to full functional capacity. The doctor referred her to Dr. Kathleen Barfoot for Rehab management and possible job reentry. (T Exhibit p. 376).

Dr. Barfoot's medical records note that recently the patient was involved in some type of accident and later she was evaluated by Dr. Amundson and found to have a fracture. She had a repeat fusion with plate placement performed in February of 1999. She continues to have neck pain. She states that it radiates to her posterior head. The patient was currently wearing a TENS unit. (T Exhibit p.383). In reviewing the Rehab Center May 11, 1999 physical therapy evaluation, it says that, "according to the chart, symptoms commenced when the patient suffered a work injury on May 28, 1997. The patient was hit by a forklift and, as she fell over, was pushed against some pallets, injuring her neck. She has been out of work since July 1998." (T Exhibit p.385).

Upon arriving at the Rehab Center for treatment with Dr. Barfoot and other health professionals, Plaintiff was taking Ambien a sleep medication, Darvocet a pain medicine, Relafen a nonsteroidal anti-inflammatory drug used for pain and inflammation, Flexeril a muscle relaxant, and Doxepin a tricyclic anti-depressant. The doctor stated Doxepin is a drug that is frequently used to treat chronic and neuropathic pain. (Barfoot Depo p.8, lines 13-18). Dr. Barfoot testified that Darvocet was a narcotic. (Barfoot Depo p.8, lines 19-23). "Typically all patients that we are trying to rehabilitate, we do try to remove the narcotics and place on other medications that are appropriate." (Barfoot Depo p.10, lines 8-10).

Dr. Barfoot testified in her deposition the following:

"I stated that attempts at physical therapy had failed and the physical therapist recommended an interdisciplinary treatment program."
(Barfoot Depo, p.14, lines 16-18).

On June 8, 1999, the doctor stated the Plaintiff would not be able to go back to her last job position. (Barfoot Depo p.15, lines 14-16). On June 21, 1999 Dr. Barfoot provided Plaintiff with work restrictions as follows:

"The patient's work restrictions are as follows: sedentary. She is to lift no greater than ten pounds from any level. She is to perform no significant overhead work, She is to change positions frequently for comfort and to alternate use of her right upper extremity and left upper extremity for comfort."
(Barfoot Depo p.18, lines 22-25; p.19, lines 1-3)
(T Exhibit p.404).

With the Plaintiff's hearing approaching, the Plaintiff's attorney requested a rating from Dr. Amundson and Dr. Barfoot. The doctor's gave Plaintiff rating even though she continued medical treatment after the ratings and had not reached maximum medical improvement.

Plaintiff had two major surgeries. The first surgery in 1996 and the second surgery after the May 28, 1997 forklift incident. Dr. Russell Amundson, the neurosurgeon who performed both surgeries on Plaintiff, stated in his deposition that, based on the initial surgery he performed in August of 1996 he would give the patient a 25% to 35% disability to her spine and that based on the May 28, 1997 workers' compensation injury, that he would add another 5% permanent disability for the second surgery. (Amundson Depo p.94, lines 2-6). Therefore, the Plaintiff would have between a 30% to 40% permanent disability to her back.

Dr. Barfoot gave the Plaintiff a 13% disability to her back in relationship to the May 28, 1997 injury. (T Exhibit p.411). The Plaintiff continued to treat with Dr. Barfoot until August 12, 1999. She then had follow up care with Dr. Karolyn Kruger.

Dr. Kruger, in her June 22, 1999 medical note, noted the following:

"She has had a functional evaluation that shows that she has weakness in her hands and legs and some incoordination. Her Company has her out on Disability, and she currently is not working, and probably could not work ever." Dr. Kruger notes that the Plaintiff never recovered full function after the forklift incident."
(T Exhibit p.305).

At the time of the Industrial Commission hearing, the Plaintiff had not reached maximum medical improvement and was still receiving medical treatment.

Lay witnesses testified concerning the Plaintiff's disability after the May 28, 1997 injury. A witness testified at the Plaintiff's hearing the following:

"She began to lose use-maybe not use of her hands- her hands did not have any grip. She could not pick up objects. She could not do her housework. Before then- I mean we live so near to each other, she knows how I do mine and I know how she does hers. She could not do her housework anymore, and she was in so much pain all the time after the tow motor accident that she was miserable. She was in miserable pain. Like, we used to go to the beach together- no more. Anything that my family did, Plaintiff was unable. She couldn't take part."
(T p.53, lines 22-25; p.54, lines 1-7).

Plaintiff's sister, at the Plaintiff's hearing, was asked how Plaintiff recovered after the May 28, 1997 incident. Sister testified the following:

"Well, she got till she couldn't go. She's all the time feeling bad, hurting, and she just-she'd get depressed because she couldn't do a lot of things, so she didn't do good a-tall after that." "She's gained quite a bit of weight. Oh, at least thirty pounds or so."
(T p.58, lines 15-23).

Sister was asked the following at the Plaintiff's hearing:

Q."Prior to this, was she active?"

A."Yes. Before the accident, yeah, she was active. Like I said, we'd plant flowers in the yard, do to the flea markets, do to yard sales, go visit my daughter. We was all the time doing stuff especially on the weekends."
(T p.58, lines 24-25; T p.59, lines 1-4).

Plaintiff's husband testified that after the May 28, 1997 accident, he wife "lost her strength in her arms. She got to where she couldn't do household chores such as vacuuming, shampooing the carpet. I had to do that. She'd wake me up in the middle of the night, be standing at the foot of the bed, rubbing her arm and shoulders & crying in pain." (T p.61,lines 2-7). Plaintiff's husband was asked, at the Plaintiff's hearing, how Plaintiff was able to continue working for May of 1997 until July of 1998 after the tow motor incident. He responded as follows:

A."She don't like me saying this, but I feel a lot of the reason that she made it as long as she did was because they kept her on so much pain mediation. She was able to go through that, and the plain simple fact of it is, she's not the type of person to give up. She's strong-minded and she won't give up on nothing. She'll keep continuing on or else, and I believe that's the why she made it during that time."
(T p.61, line 25; T p.62, lines 1-7).

At the October 25, 1999 hearing, Plaintiff had not been terminated from her employer, Defendant. She was still treating with Dr. Karolyn Kruger and had been treated by Dr. Kathleen Barfoot, of the Johnson Neurological Clinic, until August 12, 1999. The Plaintiff was asked the following at the hearing.

Q."And did they have any work available for you?"

A."No, they didn't have nothing at that time. He said that they would try to find something within my restrictions, but at that time they did not have nothing, but they would try to work with me, and for me to do the best I could back there on my job, that I knowed what I could and couldn't do, and just had to do my job until they could find something, but they would try work with me."
(T.p.24, lines 12-25; T.p.25, lines 1-8).

The Plaintiff was asked, at the October 25, 1999 Industrial Commission hearing the following:

Q."Are you still employed by Defendant,to the best of your knowledge?"

A."Yes, to the best of my knowledge I'm still an employee."(T p.25, lines 9-11).

The Plaintiff was asked if she talked to anyone about getting placed in a different job. Her response was as follows:

A."Dr. Gokey, a psychologist, give me a number for a place to call to see about rehabilitation if I thought that I could, or if I could find something within them restrictions. But, again, I was under-I was waiting- I didn't know what was going on-I thought and still think that I'm employed by the Defendant."

Q."So you didn't call that number then that they provided you?"

A."No, not yet because I'm waiting to know if I've got a job. I don't -I've still got a job, I reckon." (T p.45, lines 10-20).

Plaintiff, at the hearing, was further asked the following:

Q."Have you ever been informed in writing that you're terminated from Defendant?"

A."No."

Q."And it is your opinion that you're still an employee there, is that correct?"

A."Yes, as far as I'm concerned, I still work there, I'm not-I still get mail through-get stuff through the mail from the defendant and parent company"

"The parent company's been real good. They send me brochures and stuff."
(T p. 45, line 24; p.46, lines 1-9).

In a March 25, 1999 letter, Defendant wrote the Plaintiff's attorney stating that they did not have a position that would reasonably accommodate Plaintiff's restrictions and that the company could not allow Plaintiff to return to work until her restrictions became such that suitable work would be available for her. (T Exhibit, p. 446). At no time, did the company say that Plaintiff had been terminated from her job. They only indicated to her they did not work available, at that time, within her restrictions.

ARGUMENT

I. THE FULL COMMISSION DID NOT ERR IN DETERMING THAT AT THE TIME OF HEARING THE PLAINTIFF WAS NOT AT MAXIMUM MEDICAL IMPROVEMENT AND WAS UNABLE, BECAUSE OF A COMPENSABLE INJURY, TO EARN WAGES.

Opinions and Awards of the Commission are reviewed by the Court to determine whether competent evidence exists to support the Commission's Finding of Facts and whether the Finding of Facts support the Commission's Conclusions of Law. If supported by competent evidence, the Commission's Findings are binding on appeal, even where there exists evidence to support Findings to the contrary. (Foster vs. U.S. Airways, COA00-1448, North Carolina Court of Appeals, (Filed May 7, 2002).

In workers' compensation cases, "A Plaintiff's post injury earning capacity is the determinative factor in assessing disability." (Tyndall vs. Walter Kiddie Co., 102 N.C. App. 726, 403 S.E.2d 548 (1991). "Disability is defined in terms of a diminution in earning power." Pruitt vs. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876 (1975)."Disability, under Chapter 97-2, means an impairment in the employee's wage earning capacity because of an injury, not merely a physical impairment. (Hendrix vs Linn-Corriher Corp, 78 N.C. App. 373, 337 S.E.2d. 106 (1985).

The Defendant has raised the issue of maximum medical improvement. The Defendant argues the Full Commission erred by allowing the Plaintiff to receive temporary total disability benefits when the Defendant contended the Plaintiff had reached maximum medical improvement. The Defendant attempts to argue maximum medical improvement is a type of triggering device, in which the Plaintiff's benefits should end or become permanent. A recent Court of Appeals case states that MMI or maximum medical improvement does not have any direct bearing upon an employee's right to continue to receive temporary disability benefits (or upon an employee's presumption of ongoing disability) once the employee has established a loss of wage-earning capacity pursuant to N.C.G.S. ¿97-29 or ¿97-30. Knight vs. Wal-Mart Stores, Inc., 562 S.E.2d 434, COA01-108 North Carolina Court of Appeals, (Filed March 5, 2002).

"Maximum medical improvement does not represent the point in time in which a loss of wage-earning capacity under N.C. Gen. Stat. ¿97-29 or ¿97-30 automatically converts from "temporary" to "permanent."

Knight vs. Wal-Mart Stores, Inc., 562 S.E.2d 434, COA01-108 North Carolina Court of Appeals, (Filed March 5, 2002).

In the Knight case, the Court said the Plaintiff has established a total loss of wage earning capacity pursuant to N.C.G.S. ¿97-29. He has not sought scheduled benefits pursuant to N.C.G.S. ¿97-31, nor has he sought to establish that his total loss of wage earning capacity is permanent. He is, therefore, entitled to an "ongoing award of disability benefits" equal to two-thirds of his average weekly wage for as long he remains totally disabled." Knight vs. Wal-Mart Stores, Inc., 562 S.E.2d 434, COA01-108 North Carolina Court of Appeals, (Filed March 5, 2002.)

The Plaintiff would submit to the Court that they should apply the legal test outlined in Kennedy vs. Duke University Medical Center, 101 N.C. App. 24, 33-398 S.E.2d 697, 682 (1990) to determine an employee's disability. To determine an employee's disability the Defendant must show there are suitable jobs available to the Plaintiff and the Plaintiff was capable of getting one of the jobs taking into account both the physical and vocational limitations of the injured worker. The Plaintiff would submit that this two-pronged test is a fair test to demonstrate employability of an injured worker. The Plaintiff would submit, the law does not need to be changed, but the Defendants need to become more active in monitoring Plaintiff's vocational rehabilitation and aggressive in defending workers' compensation cases. The law currently does not require the Defendant to find a job for a Plaintiff in order to terminate the Plaintiff's workers' compensation benefits. The law only requires the Defendant demonstrate there are suitable jobs available in the community and the Plaintiff could obtain these jobs. Defendants often fail to aggressively use vocational rehabilitation testimony. In the Plaintiff's case there has been no showing, by the Defendant, that there are suitable jobs available for her in the community and the Defendant has offered no vocational assistance to the Plaintiff.

"If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work and likewise a presumption that disability ends when the employee returns to work at wages equal to those he was receiving at the time his injury occurred." Watkins vs. Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971).

The Plaintiff would contend that she should have a presumption of disability in her case because the Commissioner, Amy L. Pfeiffer, and the Full Commission have both found that she has a compensable worker's compensation injury that does not allow her to return to her last job position she was working at the time of her injury.

To have a full understanding of the Plaintiff's case, the Court needs to have an understanding of the severity of the Plaintiff's injury. It needs information concerning other factors such as age, education, physical limitation and vocational skills of the Plaintiff. In reviewing the Plaintiff's medical records, the report of Dr. John M. Goeke, PhD., Director of Psychological Services of the Rehab Center, records indicate the Plaintiff dropped out of school in the ninth grade. While in school she attended special education classes until age eleven or twelve. She was later able to obtain a GED.(T Exhibit p.391). The doctor notes, in his May 12, 1999 treatment records, the Plaintiff was suffering from mood disturbances, depression, anxiety and irritability on May 12, 1999. The Plaintiff indicated, to the psychologist, she had suicidal thoughts several times a week, but they were fleeting. (T Exhibit p. 392). The doctor administered an MMPI-2 personality test via audiotape because the patient reported reading difficulties. (T Exhibit p. 393). The predominate findings on the Plaintiff's Clinical Scale Profile was, as of May 12, 1999, Major Depressive Symptomatology. On June 8, 1999, Dr. Kathleen Barfoot stated, "the patient is not capable of returning to her previous job." (T Exhibit p. 399). Dr. Amundson stated in his April 29, 1999 medical record, the following:

"I believe the patient is stable post-operatively. She is going to require considerable therapy at rehab to get back to a full functional capacity. The patient also spoke with me about some symptoms of depression. She is having difficulty sleeping. I suggested that she may benefit from some sedating antidepressant such as Sinequan. She is currently using Ambien on a regular basis."
(T Exhibit p.80).

Dr. Amundson suggested that Plaintiff be evaluated by Dr. Barfoot, both for rehab management, job re-entry, and also the possible likelihood that she will require chronic pain management techniques. (T Exhibit p.80).

It should be noted as litigation in the Plaintiff's case approached she asked her doctors what her permanent disability rating would be and about what her work restrictions were. This was done at the direction of her attorney in an effort to prepare the Plaintiff's case for the October 25, 1999 workers' compensation hearing. Dr. Barfoot's August 12, 1999 note states, "that her attorney is requesting that a permanent partial impairment rating be performed." (T Exhibit p.157). The permanent disability ratings of Dr. Russell Amundson and Dr. Kathleen Barfoot are not indicative of the Plaintiff reaching maximum medical improvement. In reviewing the Plaintiff's work restrictions and ratings, Dr. Amundson stated the Plaintiff had anywhere from a 25% to 35% total permanent disability rating to her back based on the 1996 surgery and an additional 5% due to May 28, 1997 tow motor injury.(Amundson Depo p.94, lines 2-6). Therefore, Dr. Amundson's records indicate the Plaintiff has a 30% to 40% permanent disability to her back.

Dr. Barfoot set Plaintiff's work restrictions as follows:

"The patients work restrictions are as follows: sedentary. She is to lift no greater than ten pounds from any level. She is to perform no significant overhead work. She is to change positions frequently for comfort and to alternate use of her right upper extremity and left upper extremity for comfort."
(T Exhibit p.404).

The Plaintiff's family and friends testified concerning Plaintiff's severe disabilities after her may 28, 1997 tow motor workers' compensation injury. This testimony can be found in the Statement of Facts.

Dr. Barfoot gave the Plaintiff discharge instructions and transferred her medical care to her family physician, Dr. Karolyn Kruger. On the June 18, 1999 discharge instructions, Dr. Barfoot prescribed the following medications for Plaintiff, Relafen 1500 mg daily, Ambien 10 mg at bedtime, Doxepin 10 mg x 2 tabs at bedtime, Zoloft 100 mg daily, and Neurontin 600 mg twice a day. Dr. Barfoot scheduled follow up appointments with the Plaintiff for her physician on June 30, 1999, July 15, 1999 and August 12, 1999 and psychology appointments on July 2, 1999, July 15, 1999 and August 12, 1999. She also scheduled physical therapy appointments for Plaintiff on June 23, June 25, June 30, July 2, July 7, July 9, and July 15, 1999. (T Exhibit p.403).

On July 15, 1999 the Plaintiff saw Dr. Barfoot. Dr. Barfoot noted the Plaintiff was still complaining of depression and had gained some weight. The doctor discussed her current medications. On August 12, 1999, Dr. Barfoot discussed the medications that Plaintiff was taking. Dr. Barfoot stated in her August 12, 1999 medical notes the following:

"We discussed at some length that if her medications are stable and if at this point her primary care practitioner was willing to take over prescribing these, we could release her. We would wish to reserve the right to follow her once after she starts back at some activity, whether this is to work or return to school, just to address any issues that may arise. In the meantime her current medication list includes Doxepin 25 to 50 mg PH QHS, Zoloft 100 mg PD QD, Relafen up to 1500 mg per day, Ambien 5 to 10 mg PO QHS and Neurontin up to 800 mg TID."
(T Exhibit p.410).

The Plaintiff's care was transferred, by Dr. Barfoot, to her treating family physician Dr. Karolyn Kruger, who continued to monitor her continued back pain and neck pain. Dr. Kruger stated in her June 22, 1999 medical note the following:

"Her company has her out on Disability, and she currently is not working, and probably could not work ever. There is no question that she had a neck fusion with some residual pain and disability, but after being hit in the side of the neck by a forklift, actually had a fracture of her fusion with recurrent pain and increased weakness. She has had subsequent surgery to repair the fusion, but has never recovered full function."
(T Exhibit p. 305).

The last time, prior to the Industrial Commission hearing, the Plaintiff was seen by Dr. Kruger was September 15, 1999. She was still complaining of neck pain, said she had been weaned off her Refalen, buy wants something to take besides her Doxepin, Zoloft and Neurontin. (T Exhibit p.306).

The Full Commission's Findings, the Plaintiff did not reach maximum medical improvement and was unable, because of her compensable injury to earn wages, and the Conclusion of Law that she had not reached the end of her healing period, is supported by testimony and medical evidence that was introduced in the Plaintiff's case.

II. THE DEFENDANT'S ARGUMENT THAT UPON REACHING MAXIMUM MEDICAL IMPROVEMENT, THE PLAINTIFF WAS ENTITLED ONLY TO A PERMANENT PARTIAL DISABILITY RATING PURSUANT G.S. 97-31 BECAUSE SHE FAILED TO PRESENT ANY EVIDENCE SHE HAD LOOKED FOR WORK AND WAS OTHERWISE UNEMPLOYABLE IS WITHOUT MERIT.

The workers' compensation act defines disability as the incapacity, because of injury, to earn the wages, which the employee was receiving at the time of injury, in the same or any other employment.(G.S. 97-2(9). Dr. Barfoot stated that the Plaintiff could not return to her last job position. However, the Defendant has never terminated the Plaintiff and continued to indicate, to her, that they were going to find her another position with Defendant. The Plaintiff, at the time of the hearing, believed she was employed by the Defendant, Defendant. The Plaintiff testified that she believed she was employed by Defendant at the October 25, 1999 hearing. (T p.45, lines 14-24; p.46, lines 1-9).

The Defendant offered no help for the Plaintiff to obtain other suitable employment. The Full Commission had ample evidence before it, to conclude that the Plaintiff was incapable, after her May 28, 1997 injury, of earning the same wages she earned prior to the injury in any other employment. The Plaintiff's incapacity to earn wages was caused by her compensable workers' injury.

To read the Defendant's Brief, the Defendant asks the Court to believe there is a long period of time, prior to the hearing, in which the Plaintiff could have sought employment. Dr. Barfoot last saw the Plaintiff on August 12, 1999 and transferred her care to the Plaintiff's family physician. The Plaintiff's Industrial Commission hearing was on October 25, 1999.

The Plaintiff had a second surgery in February of 1999 and had to go through extensive therapy thereafter. The Defendant has continuously and wrongfully denied the Plaintiff's workers' compensation claim and has failed to provide the Plaintiff medical treatment, financial assistance or vocational rehabilitation. The Defendant has offered no evidence, at the hearing, to show the Plaintiff had been terminated from her job at Defendant or that Defendant had given up in trying to find a position for the Plaintiff in the company. The Defendant has failed to show that there are other suitable jobs in the community that the Plaintiff could obtain.

III. THE DEFENDANT'S ARGUMENT STATES THE FULL COMMISSION ERRED IN FINDING THAT THE PLAINTIFF'S DISABILITY AFTER JULY 12, 1999 WAS RELATED TO THE MAY 28, 1997 INJURY AND THE DEFENDANT'S CONTENTION THERE WAS NO EVIDENCE THE PLAINTIFF'S WORK RESTRICTIONS INCREASED OR HER CONDITION WAS WORSENED AS A RESULT OF THE TOW MOTOR INCIDENT IS WITHOUT MERIT AND FACTUALLY INCORRECT.

The Plaintiff has previously addressed that she did have a 1996 injury. After the 1996 injury, she returned to work without restrictions and was earning substantial income in the amount of $435.82 per week. She was struck in the Defendant's plant by a tow motor that was carrying 5000 lbs of wheels. After the injury she had numerous contusions and abrasions throughout her body. She immediately sought treatment with the Brigman Clinic, where she told the doctor her neck felt funny. The doctor x-rayed her neck, but at that time did not find a fracture. The Plaintiff continued to try to work and was under the impression the severe pain she was feeling was only due to the nerve damage from the first surgery. The Plaintiff continued to seek medical treatment with her primary care physician, Dr. Karolyn Kruger. Dr. Karolyn Kruger prescribed narcotic medications due to the Plaintiff's pain. The Plaintiff's condition continued to deteriorate. She was sent by Dr. Kruger for an MRI, which did not show any type of herniation. She was then sent to the Thomasville Community Hospital where she received epidural injections from Dr. Marc Notrica. At the time Dr. Notrica first saw her, she described her pain as excruciating. Dr. Kruger finally returned the Plaintiff to Dr. Russell Amundson of the Johnson Neurological Clinic, who had performed the Plaintiff's first 1996 surgery. The Plaintiff related to Dr. Amundson that she had been hit by a tow motor on or about May 28, 1997. The doctor suspected the Plaintiff fractured her fusion due to this incident. The doctor ordered a tomogram, which is a better diagnostic tool than an x-ray. (Amundson Dept p.20, lines 2-25; p.21, lines 1-7). The doctor then performed surgery on the Plaintiff and during the surgery the doctor said he saw a clear fracture line in the Plaintiff's fusion. Dr. Amundson stated, it was more likely than not this fracture was caused by the tow motor incident of May 28, 1997. He said that, in his experience as a physician, he had only seen one other fracture of a fusion. This fracture was due to a traumatic automobile accident event.

The Defendant has offered no evidence to refute Dr. Amundson's medical opinion that the May 28, 1997 tow motor incident was a job related injury. The only contradictory evidence they were able to produce was Dr. Timothy Garner's medical report, who never examined the Plaintiff and who obtained the Plaintiff's medical records without the knowledge of the Plaintiff.

Dr. Russell Amundson also stated, unequivocally, the May 28, 1997 tow motor incident caused the Plaintiff's fracture and without question, the Plaintiff's medical condition deteriorated. The Plaintiff suffered a severe and painful injury to her back along with developing depression, anxiety, and weight gain due to the disabling injury. The Plaintiff, who was working without restrictions prior to May 28, 1997, became unable to earn any income and was unable to return to her previous job.

CONCLUSION

In conclusion, the Plaintiff would ask the Court to affirm the Full Commission's decision in I.C. File number 870745. The Full Commission's decision is supported by ample evidence that was introduced during the Plaintiff's case. The Plaintiff would ask the Court to award the Plaintiff costs and attorney fees in relationship to her claim.

Respectively Submitted,
This the ____ day of July, 2002.

Bob Davidson, Jr. NCSB NO. 12920 Attorney for Plaintiff/Appellee 804 N. Hamilton Street High Point, North Carolina 27262 336-841-8665