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Johnson v Baxter Healthcare Corp
State: South Carolina
Court: Court of Appeals
Docket No: 09-579
Case Date: 02/16/2010
Plaintiff: Johnson
Defendant: Baxter Healthcare Corp
Preview:An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA09-579 NORTH CAROLINA COURT OF APPEALS Filed: 16 February 2010 CAROLYN L. JOHNSON Employee, Plaintiff, v. BAXTER HEALTHCARE CORP. f/k/a TRAVENOL LABORATORIES, INC. Employer, Self-Insured, Defendant. Appeal by Defendant from Opinion and Award of the North Carolina Industrial Commission entered 26 November 2008. the Court of Appeals 17 November 2009. Cox and Gage PLLC, by Robert H. Gage, for plaintiff-appellee. Gray King Chamberlin & Martineau, LLC., by L. Kristin King and Jennifer P. Pulley for defendant-appellant. WYNN, Judge. Between 1983 and 2000, while employed by Defendant Baxter Healthcare Corp., Plaintiff Carolyn Johnson suffered four In Heard in N. C. Industrial Commission I.C. Nos. 055024, 103564, 993995

compensable injuries, for which she has had eleven surgeries.

this appeal, Defendant argues that the Full Industrial Commission erred in finding that Plaintiff was disabled from employment and concluding that she was entitled to additional medical

compensation.

We disagree, and therefore affirm the Opinion &

-2Award of the Full Industrial Commission. Plaintiff, born in 1944, last attended school in 1959 and completed the ninth grade. Defendant first employed her in 1979.

Until January 2002, plaintiff worked as a "carton erector," opening and fastening corrugated cartons, then placing them on an overhead conveyor, ready to accept the bags of intravenous saline solution which are produced by Defendant's plant. While at work in May 1983, Plaintiff slipped and twisted her right foot, ankle, and knee (injury no. 1). Dr. Anderson initially treated her. He diagnosed right knee strain and a small tear to Beginning in May 1984, Dr. Jarrett, an Dr. Jarrett

the medial meniscus.

orthopedist, treated Plaintiff for right knee pain. diagnosed a torn medial meniscus.

Plaintiff continued to work

until 6 May 1985, when she had a right knee arthoscopy performed by Dr. Jarrett (Surgery no. 1). 1985. Plaintiff returned to work on 20 May

On 12 June 1985, Defendant accepted the right knee injury as

compensable on a Form 21 agreement. On 6 February 1986, Plaintiff injured her left knee when she hit it against a metal wrap holder, part of a Box Machine (injury no. 2). She had a left knee arthroscopy performed by Dr. Jarrett Defendant accepted the left

on February 26, 1987 (Surgery no. 2).

knee injury as compensable on a Form 21 agreement dated 16 March 1987. Plaintiff returned to work on 1 April, 1987.

On 14 June 1989, Plaintiff had another right knee arthroscopy (Surgery no. 3) performed by Dr. Jarrett. four weeks later. She returned to work

Plaintiff was next treated by Dr. Welliver, an

-3orthopedist, beginning in September 1989. Dr. Welliver diagnosed

osteoarthritis of the right knee, severe degenerative joint disease of the right knee, and mild degenerative arthritis of the left knee. On 9 February 1990, Plaintiff had two surgeries performed by Dr. Welliver, one on the left knee and one on the right knee (Surgeries nos. 4 and 5). weeks. On 22 January 1993, Plaintiff had left knee arthroscopy surgery performed by Dr. Welliver (Surgery no. 6). And on 9 March Plaintiff returned to work after four

1993, she had right knee arthroscopy surgery performed by Dr. Welliver (Surgery no. 7). 1993. On 4 August 1995, Plaintiff had right knee arthroscopy Plaintiff returned to work 26 March

performed by Dr. Welliver (Surgery no. 8).

She returned to work on

25 August 1995. In September 1995, Dr. Welliver reported that "the patient's current state of affairs is directly related to the injury sustained in 1983." Dr. Welliver later recommended Dr. Jansen

Plaintiff undergo total knee replacement on the right.

agreed with this recommendation in 2002 after evaluating Plaintiff upon referral from Dr. Cammarata. On 23 November 1999 Plaintiff was struck by a sterilizer truck at work and knocked into another sterilizer truck (injury no. 3). She suffered injuries to her left hand, cervical spine, and face. Dr. Chung treated Plaintiff for these injuries from November 1999 through March 2000. Plaintiff missed one day of work due to this

-4injury. On 30 May 2000 Plaintiff saw Dr. Hoski, who diagnosed a cervical sprain or strain and degenerative changes previously asymptomatic. He noted that Plaintiff had reached maximum medical He assigned a four percent permanent He also noted

improvement as of that time.

partial impairment rating to the plaintiff's back. that Plaintiff had continued back pain.

He recommended that

Plaintiff be treated with anti-inflammatories and physical therapy, rather than surgery. August 2000. Dr. Welliver last treated Plaintiff on 17

At that time, he diagnosed bilateral inflammatory

synovitis and bilateral significant degenerative joint disease. On 30 October 2000, Plaintiff saw Dr. Cammarata for pain, weakness, and instability in her left thumb resulting from the 23 November 1999 accident. On 7 December 2000, Plaintiff was loading a bundle of cartons into her machine when the bundle fell. She tried to grab it and Dr.

felt pain in her right arm and shoulder (injury no. 4).

Cammarata, an orthopedist, evaluated Plaintiff for complaints of right arm pain and deformity on 15 December 2000. right proximal biceps tendon rupture. arthritis. He diagnosed a

He also noted some AC joint

Plaintiff continued to work until 19 December 2000, Dr.

when she had surgery by Dr. Cammarata. (Surgery no. 9).

Cammarata performed the surgery to repair the ruptured biceps tendon. He discovered during surgery that Plaintiff had also

sustained a massive rotator cuff tear on her right shoulder as well as the complete rupture and retraction of the biceps tendon.

-5On 12 January 2001, Plaintiff returned to work on light duty. When Defendant employer was unable to accommodate her light duty restrictions, Plaintiff left work on 2 March 2001. Defendant

accepted Plaintiff's 7 December 2000 injury to her right arm and shoulder as compensable on 8 March 2001. On 11 June 2001, Plaintiff had surgery on her left thumb, performed by Dr. Cammarata (Surgery no. 10). Defendant accepted

Plaintiff's 23 November 1999 injury to her left hand, neck, and face as compensable on 3 July 2001. On 16 October 2001, Plaintiff underwent a Functional Capacity Evaluation which determined that she did not meet the essential physical demands of the carton erector position. On 19 October

2001, Dr. Cammarata indicated that Plaintiff was restricted to work at a sedentary level, with grasping limited to "occasional" with her left arm. to reach He noted that Plaintiff should not use her right arm and overhead work should be limited to

forward

"occasional" with both arms. Defendant procured a written description of an alternative job proposed for Plaintiff. The Physical Demands Analysis for the job, dated 3 October 2001, indicated that Plaintiff would be working eight hours per day, inspecting units on a moving conveyer, and pulling approximately three hundred defective bags from the line in an eight hour shift (an average of 37.5 bags per hour), exerting a pulling force of 10 to 30 pounds each time. The analysis indicated

that the job required reaching above the shoulder up to 33 percent of the time, reaching below shoulder-level, reaching across and

-6reaching to floor level, each, up to 33 percent of the time. Defendant obtained a second Job Analysis of the packing inspector job, dated 15 November 2001. This analysis indicated

that the number of bags to be removed per hour was 10 to 25, and that the employee could stand on a platform to reach the bags. It

did not address reaching above shoulder level or the force required to pull each bag. The job analyst was told that an adjustable Plaintiff was later told that Defendant

chair would be provided.

could not get her a chair without getting one for everybody else. Plaintiff never got the adjustable chair. Dr. Cammarata approved

the 15 November 2001 Job Analysis for Plaintiff on 30 November 2001. Plaintiff returned to work at the inspection job on 5 January 2002, working the 12-hour weekend shift. Defendant's witness

Dennis Noblitt testified that over forty defective bags per hour were pulled in the fourth quarter of 2002, but that higher numbers of defective bags were pulled in early 2002, when Plaintiff was working at the inspection job. supplied by Defendant shows 12 The video of the inspection job bags pulled in five minutes, The

eighteen seconds.

This is an average of 135 bags per hour.

operator is shown reaching over head level to pull down each bag using two hands to grasp and pull the bags. Three witnesses established that the bag inspector needed to extend his/her neck to look upward to see the bags as they run by on the line. Ms. Taylor testified that she had to pull hard with Plaintiff kept a

both hands to get defective bags off the line.

-7contemporaneous written record of the number of bags that she pulled from the line. On 16 February 2002, she pulled an average

of 52 bags per hour; on 24 February 2002, she pulled an average of 49.6 bags per hour; on 3 March 2002, she pulled an average of 64.4 bags per hour. On 18 February 2002, Plaintiff saw Dr. Cammarata. He

reiterated that Plaintiff should not be pulling more that 25 bags per hour. He noted that she was showing symptoms of radiclopathy He

from the cervical spine, for which he recommended treatment.

also referred Plaintiff for further evaluation for a total knee replacement. Plaintiff was evaluated by Dr. Jansen on 21 February Dr. Jansen diagnosed severe

2002 at the request of Dr. Cammarata.

right knee medial compartment degenerative joint disease with varus malalignment. Plaintiff continued to have pain, tingling, numbness and loss of feeling in her arms when performing the inspection job.

Plaintiff testified that as she continued to work, her symptoms worsened and her right hand would become "completely dead." She also stated that she reported the problem to her supervisor, but nothing was done about it. Plaintiff continued to work at the

inspection job until 24 March 2002. On 2 April 2002, Plaintiff saw Dr. Earwood and reported tingling and numbness in both arms and neck pain. ordered an MRI of the neck. Dr. Earwood

The MRI showed degenerative changes of

the cervical spine and narrowing of the nerve openings with joint hypertrophy, more severe on the right. These findings correlated

-8with Plaintiff's symptoms of pain and numbness in her neck and arms. Dr. Earwood wrote a letter dated 3 April 2002. Dr. Earwood

noted Plaintiff's symptoms and concluded that her problems had worsened since she had seen Dr. Hoski on 30 May 2000. The letter

recommended that Plaintiff be reevaluated by Dr. Hoski to consider further treatment should for not the use injury. her arms Dr. to Earwood opined that

Plaintiff

perform

any

reaching,

grasping, lifting, or repetitive work. On 23 April 2002, Plaintiff returned to Dr. Cammarata who noted that the MRI correlated with Plaintiff's symptoms of pain in the neck with radiation into both upper extremities. Dr. Cammarata agreed with Dr. Earwood that Plaintiff should be reevaluated by Dr. Hoski. Dr. Hoski saw Plaintiff on 19 June 2002. He concluded to a

reasonable degree of medical probability that Plaintiff's current symptoms were due to her 23 November 1999 work related injury. Dr.

Hoski opined that Plaintiff had a change in her condition and she was no longer at maximum medical improvement, and now needed surgery. Plaintiff was paid temporary total disability benefits

starting 19 June 2002. On 15 August 2002, Dr. Hoski performed a cervical diskectomy and fusion (surgery no. 11). On 30 October 2002, Dr. Hoski

restricted Plaintiff from any prolonged flexion or extension of the neck, and specified that she should not keep her neck extended or flexed for more than one-third of the day. He released her to

-9return to work as of 15 November 2002. On 1 November 2002, Plaintiff saw Dr. Earwood. On 7 November

2002, Dr. Earwood wrote a letter to Defendant regarding Plaintiff's inability to work. At his deposition, Dr. Earwood confirmed that

his opinion to a reasonable degree of medical certainty was that, as of 7 November 2002, Plaintiff was not able to perform the inspection job. On 10 December 2002, Plaintiff returned to Dr. Hoski,

reporting constant pain in her right shoulder and difficulty using her arms. Dr. Hoski referred Plaintiff to Dr. Fleck, a

board-certified neurologist and spinal rehabilitation specialist, for recommendations regarding pain management techniques and

functional restoration. Plaintiff first saw Dr. Fleck on 19 December 2002. Dr. Fleck

diagnosed neck pain and functional limitation, interruption of normal activities, ability to work, and sleeping. Dr. Fleck

restricted Plaintiff to sedentary work, meaning occasional lifting of up to 10 pounds, no lifting from below the knee or above the shoulder, no prolonged work at or above shoulder level or climbing. Further, Plaintiff needed to change positions frequently and avoid an isolated fixed position of either the neck or the upper

extremity.

Dr. Fleck wrote, "If these restrictions cannot be Dr. Fleck recommended that Hanson, a pain management

accommodated, patient cannot work." Plaintiff seek treatment with Dr.

specialist. On 12 February 2003, Dr. Hoski again evaluated Plaintiff. He

-10noted Plaintiff's functional neck range of motion and improvement in upper extremity pain, but continued numbness in the arms. released her with lifting restrictions of twenty-five pounds. Dr. Hanson began his treatment of Plaintiff beginning on 26 February 2003. cervical spinal Dr. Hanson diagnosed cervicalgia, degenerative disease, and cervical facet syndrome. His He

treatment included cervical injections and ultimately cervical facet radiofrequency ablation. Plaintiff returned to Dr. Hanson in July 2006. Klonopin. Dr. Fleck saw Plaintiff again on 8 September 2003. The option of physical therapy in the form of work hardening was considered, and rejected. Dr. Fleck was of the opinion that work hardening He continued Plaintiff on OxyCotin and prescribed

would pose a threat to Plaintiff, and might aggravate her symptoms. Defendant did not provide Plaintiff a job that would

accommodate her medical restrictions as given by Dr. Fleck. Dr. Fleck last saw Plaintiff on 6 October 2003. After

consultation with Dr. Hoski, Dr. Fleck assigned a 15 percent permanent partial impairment rating to Plaintiff's spine. Dr.

Fleck opined Plaintiff to be at maximum medical improvement of her 23 November 1999 injuries. Dr. Fleck did not address Plaintiff's

return to work in light of the fact that Plaintiff had elected early retirement. Beginning 17 November 2003, Dr. Earwood provided care for Plaintiff as her authorized treating physician. Dr. Earwood

testified that between 7 November 2002, when he wrote to Defendant

-11stating that Plaintiff could not work, and 20 November 2006, Plaintiff's problems remained constant. The thumb of her left hand was locking; her arms were numb and tingling; her right knee kept her awake at night with pain; she had popping pain and stiffness; she had pain and tingling down both arms; her trapezius muscles were stiff and sore; she was stiff in the knees and hips; her arms would go numb when she was driving; her right leg hurt worse than her left; she could not lift heavy weight and had a lot of trouble with her pain. On 26 May 2005 Plaintiff filed a Form 33, alleging that she was totally disabled and entitled to additional worker's

compensation benefits.

Defendant filed a Form 33R dated 25 July

2005 asserting that Plaintiff's complaints and treatments were not causally related to her accepted workers' compensation claim. On

8 November 2005, the cases were consolidated for mediation by Order of the Industrial Commission. the matter was set for hearing. The matter was heard before Deputy Commissioner Adrian A. Phillips on 12 June 2006. Deputy Commissioner Phillips entered an Following an impasse in mediation,

Opinion & Award on 31 August 2007, which denied Plaintiff's claim for additional disability benefits pursuant to N.C. Gen. Stat.
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