Ammons v. Goodyear Tire & Rubber Co
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-424 NORTH CAROLINA COURT OF APPEALS Filed: 20 November 2012 STONEY W. AMMONS, Employee, Plaintiff v. North Carolina Industrial Commission I.C. No. 622446 GOODYEAR TIRE & RUBBER COMPANY, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants Appeal September by 2011 defendants by the from North opinion Carolina and award Industrial entered 12 Commission. Heard in the Court of Appeals 12 September 2012. Hardison & Cochran, plaintiff-appellee. P.L.L.C., by J. Adam Bridwell, for Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Matthew J. Ledwith, Dana Moody Leonard, and M. Duane Jones, for defendant-appellants. CALABRIA, Judge. Goodyear Tire & Rubber Company ( Goodyear ) and Liberty Mutual Insurance Company (collectively defendants ) appeal from an opinion Carolina and award Industrial by the Commission Full Commission ( the of Commission ) the North awarding -2temporary total disability ( TTD ) benefits to Stoney W. Ammons ( plaintiff ) on the basis of plaintiff s 19 August 2009 exacerbation of a previous work-related shoulder injury. The Commission also ordered defendants to pay plaintiff attorney s fees pursuant to N.C. Gen. Stat. § 97-88.1 (2011) because defendants defense of plaintiff s claim was unreasonable. We affirm. I. Background Plaintiff began working for Goodyear in April 1977. July 2005, compensable cervical while working injuries spine. plaintiff s by at Goodyear, accident to Defendants injuries admitted under the plaintiff his the North left On 19 sustained shoulder and compensability Carolina of Workers Compensation Act. On 19 December 2006, Dr. Jeffrey K. Kobs ( Dr. Kobs ), an orthopedic shoulder. maximum surgeon, Following medical performed surgery, improvement surgery Dr. with Kobs a on plaintiff s released 15% left plaintiff permanent at partial impairment rating to plaintiff s left shoulder. Dr. Kobs also placed work restrictions on plaintiff. Specifically, plaintiff was restricted from using his left shoulder to lift, push, or -3pull in excess of 30 pounds and also from engaging in any type of repetitive overhead motion. In early 2007, plaintiff returned to work at Goodyear in a position in the bead room ( the wrap bead position ). However, the wrap bead position required repetitive motion which bothered plaintiff s shoulder. Consequently, plaintiff filed a Form 33 request for hearing to determine the suitability of the wrap bead position. Adrian Phillips On 28 January 2009, Deputy Commissioner ( Deputy Commissioner Phillips ) entered an opinion and award concluding that the physical demands of the wrap bead position were unsuitable as it require[d] physical activity in excess of the work restrictions assigned by the treating physicians. Deputy Commissioner Phillips ordered defendants to authorize TTD benefits until plaintiff returned to more suitable employment. Nevertheless, defendants did not authorize TTD benefits, but instead moved plaintiff to a new position as a wind-up operator at Goodyear in March 2009. Plaintiff s primary responsibility as a wind-up operator was to guide rubber and cloth through Goodyear s fabric calendar, an overhead machine that winds the materials into rolls. Due to plaintiff s physical limitations, a physical therapist employed by Goodyear -4constructed a cable system that enabled plaintiff to hoist the materials into the overhead machine without having to raise his left arm above shoulder level. system s construction, However, shortly after the cable employees working on other shifts discarded it because it interfered with their work. With no viable alternative, plaintiff had to use both arms to perform his job. As a wind-up operator, plaintiff was also responsible for assisting the mill operator with a procedure that required removing strips of rubber from the mill when it became jammed. Plaintiff was required to lift strips of rubber weighing between 25 to 60 pounds from the mill and place them on a rack. The rack was located at a height between plaintiff s lower chest and shoulder level. Jams in the mill typically occurred once a day and, on some occasions, as many as five times a day. On 19 August 2009, as a result of lifting strips of rubber from the mill, plaintiff began experiencing pain and burning in his left shoulder and visited Goodyear s medical department. Two days later, he visited the medical department again and was placed pounds. on work restrictions of no lifting in excess of 10 After plaintiff s subsequent medical treatment, he was -5continued on light duty restrictions and recommended for physical therapy. On 28 October with Dr. Kobs. 2009, defendants authorized an evaluation Dr. Kobs diagnosed plaintiff with impingement syndrome and recommended an MRI to determine whether plaintiff suffered a rotator November 2009, cuff Dr. tear Kobs in his left discovered a shoulder. partial undersurface tearing in plaintiff s shoulder surgery. this Following authorize or take evaluation, responsibility pay 25 high-grade and recommended defendants to On for refused any to further treatments on plaintiff s shoulder. On 28 January 2010, plaintiff filed a Form 33 request for hearing seeking compensation additional benefits based medical upon treatment his 19 and August 2009 workers injury. Defendants denied the compensability of plaintiff s injury. 8 March 2011, Commissioner Deputy Hall ) Commissioner filed an George opinion R. and Hall award. On ( Deputy Deputy Commissioner Hall found that the wind-up operator position was unsuitable, and that the compensable exacerbation of 19 August plaintiff s 2009 19 incident July 2005 was a injury. Since plaintiff s injury was compensable, he was entitled to TTD -6benefits until such time as he returned to suitable employment. Defendants appealed to the Full Commission. On 12 September 2011, the Full Commission affirmed Deputy Commissioner Hall s findings and made the additional finding that defendants defense of plaintiff s claims was unreasonable and indicative of stubborn, unfounded litigiousness such that plaintiff was entitled to sanctions in the form of attorney s fees pursuant to N.C. Gen. Stat. § 97-88.1. The Commission ordered defendants to pay plaintiff s counsel an attorney s fee in the amount of $2,000.00. II. Appellate review Defendants appeal. Standard of Review of an opinion and award of the Full Commission is generally confined 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 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). The findings of the Commission are conclusive on appeal and will only be set aside if there is a complete lack of competent evidence to support them. Gallimore v. Marilyn s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Anderson v. -7Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965). This Court novo. reviews the Commission s conclusions of law de Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003). III. Causation Defendants argue that the Full Commission erred in finding that the 19 August 2009 incident exacerbated previous compensable left shoulder injury. For an injury to be compensable plaintiff s We disagree. under the Workers Compensation Act, it must be proximately caused by an accident arising out of and suffered in the course of employment. Gen. Stat. § 97-2(6) (2011). evidence required to N.C. The quantum and quality of the establish prima facie the causal relationship [between the accident and the employment] will of course vary with the complexity of the injury itself. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). [W]here the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury. A. Date of Injury Id. -8Defendants first contend that there was no competent evidence to support the Commission s finding that plaintiff s 19 August 2009 injury exacerbated his previous compensable injury. The Commission s finding was based upon the following testimony by Dr. Kobs: Q. If the Industrial Commission finds Mr. Ammons testimony as fact, do you have an opinion, to a reasonable degree of medical certainty, whether the August 19, 2010 [sic], incident exacerbated his preexisting shoulder problems, causing a need for the surgery which you recommend? A. Yes. Q. Okay. And what s your opinion? A. I think that it more likely than not exacerbated his condition. Defendants seize upon the year 2010 in the question asked by plaintiff s counsel and argue that Dr. Kobs was offering an opinion on an injury that occurred in 2010, rather than the 2009 injury at issue in this case. However, the context of Dr. Kobs s testimony clearly demonstrates that the inquiry about the 2010 date was merely a misstatement by plaintiff s misstatement, the only dates that were deposition were dates from the Kobs s counsel. Apart discussed year 2009. from this during Dr. Dr. Kobs testified that he examined plaintiff on 28 October 2009. At -9that visit, plaintiff informed Dr. Kobs that his shoulder was hurting again after two separate events, on 10 and 19 August 2009, while he was working as a wind-up operator. Later, Dr. Kobs testified that plaintiff s last visit with him was on 25 November 2009, and he specifically stated that he had not seen plaintiff since that date. Thus, it is clear from the record that opinion Dr. Kobs offered his regarding plaintiff s 19 August 2009 injury, and this testimony was competent evidence to support the Commission s findings of fact related to the correct date and year of plaintiff s injury. B. Post Hoc Ergo Propter Hoc Defendants next argue that Dr. Kobs s opinion does not provide competent evidence as to causation because it is based on the maxim post hoc ergo propter hoc. This Court has previously held that where an expert witness expressly bases his opinion solely on therefore as the to causation maxim because of evidence of causation. of a complex post hoc ergo it), the witness medical propter hoc provides condition (after it, insufficient Adams v. Metals USA, 168 N.C. App. 469, 476, 608 S.E.2d 357, 362 (2005). Defendants rely on Young v. Hickory Bus. Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000), to support their argument. In -10Young, the testifying physician diagnosed plaintiff fibromyalgia caused by a work-related accident. with However, the physician acknowledged that although there were many potential causes testing of plaintiff s to determine fibromyalgia, the cause he of did not plaintiff s pursue any symptoms. Instead, the physician relied solely on the fact that it was not there before and she developed it [after the accident] when he determined that the plaintiff s injury could have or would have aggravated or caused the fibromyalgia. Id. at 232, 538 S.E.2d at 916. controversial Our Supreme Court noted that fibromyalgia was a medical condition, and held the physician s testimony to be far too speculative to be sufficiently competent to support the Commission s findings on causation. Id. at 233, 538 S.E.2d at 916-17. In the instant case, plaintiff s shoulder injury is not the type of injury condition. that Moreover, is Dr. considered Kobs did a not controversial rely solely medical on the temporal relationship between plaintiff's lifting incident and the appearance of his symptoms. In June 2007, Dr. Kobs placed plaintiff on permanent work restrictions of lifting no more than 30 pounds. When plaintiff came to Dr. Kobs in October 2009, he reported that he had lifted rubber weighing more than 30 pounds -11and that his shoulder began hurting at that time. testified that restrictions, if Dr. plaintiff Kobs would failed expect inflammation in his shoulder. to him to Dr. Kobs adhere to his suffer pain and Thus, Dr. Kobs s determination that, to a reasonable degree of medical certainty, plaintiff s injury more likely than not exacerbated [plaintiff s] condition, was not based upon mere speculation and conjecture, and provided sufficient regarding causation. support for the Commission s finding This argument is overruled. IV. Length of Disability Defendants argue that the Commission erred in concluding that plaintiff has been disabled since 7 December 2009. We disagree. Under the Workers Compensation Act, disability is defined as the incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment. (2011). N.C. Gen. Stat. § 97-2(9) To prove disability, the claimant must show that, after his work-related injury, he was incapable of earning the same wages that he had earned before his injury in either the same or any other employment, and that his incapacity to earn was caused -12by his compensable injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). The claimant can meet the burden of proving his disability in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e. age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)(internal citations omitted). In the instant case, the Commission found as fact that given Plaintiff s eighth grade education, lack of transferable skills, advanced age, current medical restrictions, as well as the present economic conditions, . . . it would be futile for Plaintiff to treatment and extremity. Carpenter search for resolving employment the prior problems to with getting his medical left upper Both plaintiff and vocational specialist Stephen D. ( Carpenter ) provided evidence supporting this -13finding. According to plaintiff s testimony, he was unaware of any position for which he could apply that would compensate him at or near the amount he previously earned particularly given his physical restrictions. 2010 rehabilitation evaluation report, with defendant, In his 5 October Carpenter opined that based on the medical and vocational factors presented, it is the opinion of this rehabilitation counselor, within a reasonable degree of rehabilitation vocational certainty, that [plaintiff] is not employable in any job at any functional capacity. Thus, the Commission s finding of fact was supported by competent evidence, and the finding supports the conclusion that plaintiff was disabled under the third prong of Russell. This argument is overruled. V. Attorney s Fees Defendants argue that the Commission abused its discretion by concluding that defendants defended plaintiff s claim without reasonable grounds and also by imposing sanctions in the form of attorney s fees. We disagree. Review of an award of attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1 requires a two-part analysis. First, [w]hether the [party] had a reasonable ground to bring a hearing is reviewable by this Court de novo. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 50-51, 464 -14S.E.2d 481, 484 (1995), disc. review denied, 343 N.C. 516, 472 S.E.2d 26 (1996). . . . If this Court concludes that the party requesting the hearing lacked reasonable grounds, [t]he decision of whether to make such an award, and the amount of the award, is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion. Troutman, 121 N.C. App. at 54-55, 464 S.E.2d at 486. Meares v. Dana Corp., 193 N.C. App. 86, 93-94, 666 S.E.2d 819, 825 (2008). In their brief, defendants only challenge the Commission s determination [plaintiff s] that defendants claim. In unreasonably determining whether a defended claim was unreasonably defended, the reviewing court should consider the evidence presented at the hearing to determine [the] reasonableness of a defendant's claim. ... As such, the burden is on the defendant to place in the record evidence to support its position that it acted on reasonable grounds. Blalock v. Southeastern Material, ___ N.C. App. ___, ___, 703 S.E.2d 896, 899 (2011) (internal quotations and citations omitted). The determination of reasonable grounds is not whether the party prevails in its claim, but whether the claim is based on reason rather than stubborn, unfounded litigiousness. Meares, 193 -15N.C. App. at 93, 666 S.E.2d at 825 (internal quotations and citation omitted). In the instant case, defendants contend their defense of plaintiff s claim was reasonable based upon two grounds. defendants argue that their defense was reasonable First, because plaintiff was required to provide expert medical testimony to establish the causation of his injury. Second, defendants contend that their defense was reasonable because plaintiff had unjustifiably failed to seek any employment after his injury. The evidence before the Commission was that after plaintiff sustained and received treatment for a compensable injury on 19 July 2005, defendants placed plaintiff in a position that was later Despite deemed the unsuitable fact that by Deputy Deputy Commissioner Commissioner Phillips. Phillips ordered defendants to initiate TTD benefits until plaintiff was provided with more suitable employment, defendants again placed plaintiff in a position unsuitable for his physical limitations. Testimony from both plaintiff and Goodyear manager Paul Fisher indicated that the wind-up operator position required plaintiff to routinely lift pieces of rubber in excess of his 30-pound lifting restriction. result of the Even though plaintiff was injured as a unauthorized lifting, defendants refused to -16initiate workers compensation benefits and instead sought a hearing before the Commission. Although defendants have the burden to place in the record evidence to support [their] reasonable grounds[,] position that [they] acted on Blalock, ___ N.C. App. at ___ , 703 S.E.2d at 899, they cite no evidence in the record which would suggest that plaintiff s 2005 compensable exacerbated by his 19 August 2009 injury. injury was not Moreover, defendants cite no evidence that plaintiff was employable in any job after he was injured. burden of Thus, defendants have failed to meet their showing that defending plaintiff s correctly determined they claim. that claim was unreasonable. Commission s competent evidence on reasonable Accordingly, defendants grounds in the of defense Commission plaintiff s This argument is overruled. VI. The acted Conclusion findings and fully of facts support its are supported determination by that plaintiff s 19 August 2009 injury resulted in an exacerbation to his 19 July 2005 left shoulder injury. The Commission s findings of fact, supported by competent evidence, also support its determination December 2009. that The plaintiff Commission remained did not err disabled in since finding 7 that -17defendants defense consequently, it of this matter appropriately was imposed defendants in the form of attorney s fees. opinion and award is affirmed. Affirmed. Judges ELMORE and STEPHENS concur. Report per Rule 30(e). unreasonable, sanctions and against The Commission s
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