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EDNA JO ROBERTS, Plaintiff-Employee, v. WAL-MART STORES, INC. and/or SAM'S CLUB, Defendant-Employer, AMERICAN HOME ASSURANCE COMPANY, Defendant-Carrier NO. COA04-1581 Filed: 18 October 2005 Workers' Compensation--waiver of Form 44--requirement of setting forth grounds for appeal with particularity The Industrial Commission erred in a workers' compensation case by issuing an opinion and award after plaintiff failed to file either assignments of error or a brief to the Full Commission, because: (1) even though the Commission may waive the use of Form 44, the rule specifically requires that grounds for appeal be set forth with particularity; and (2) plaintiff did not file a Form 44, brief, or any other document with the Full Commission setting forth grounds for appeal with particularity. Appeal by defendants from an Opinion and Award entered 1 April 2004 by the North Carolina Industrial Commission. Court of Appeals 20 September 2005. The Kilbride Law Firm, PLLC, by Terry M. Kilbride, for plaintiff-appellee. Young Moore and Henderson P.A., by Michael W. Ballance, for defendant-appellants. BRYANT, Judge. Wal-Mart Stores, Inc. and American Home Assurance Company Heard in the

(defendants) appeal from an Opinion and Award of the North Carolina Industrial Commission (Full Commission) awarding Edna Jo Roberts (plaintiff) medical compensation and total disability compensation from 9 July 2000 through 12 September 2000. For the reasons below

we reverse and vacate the Commission's Opinion and Award. Facts Plaintiff is a high school graduate and on 8 July 2000 was working for defendant's Sam's Club store in Asheville, North

-2Carolina. Plaintiff had recently become qualified to drive a

school bus and had also begun working for the Buncombe County school system. On 8 July 2000, while working in the Sam's Club

cafe, plaintiff felt a snap in her lower back as she was lifting a bag-in-a-box of soft drink syrup weighing fifty-five pounds.

Plaintiff told her co-workers she could not continue with the stocking activity and had difficulty completing the shift but did not report the injury to defendants. Plaintiff felt she had pulled a muscle and did not have a serious injury. She did not want to

report an injury because of a contest between stores to see which could go the longest without a workplace accident. On 10 July 2000, plaintiff woke up with such severe pain that she was unable to go to work. Sam's Club the at following the store Plaintiff did not return to work at and she by 14 July be 2000 informed her

week that

management

would

terminating

employment in order to take care of her mother at home.

However,

plaintiff did continue working for the Buncombe County school system. Plaintiff first received medical treatment on 14 July 2000 from a Physician's Assistant at Asheville Family Health Center where plaintiff regularly received medical care. On 25 July 2000,

plaintiff saw Dr. Andrew Rudins, a physiatrist at Southeastern Sports Medicine, describing pain from her left lower back radiating down her left leg to her knee and indicated that her leg tended to give way. Dr. Rudins examined plaintiff and ordered an MRI.

-3On 27 July 2000, plaintiff presented to the emergency room of Memorial Mission Hospital screaming in pain, unable to tolerate any position and complaining of spasms in her leg. Plaintiff was Plaintiff

examined by Dr. Allen W. Lalor and Dr. Gary A. Curran.

told the doctors about the incident at work, although she was not sure when the injury had occurred since the severe pain did not occur until 10 July 2000. On 28 July 2000, plaintiff had an MRI which showed disc protrusions at multiple levels in her lumbar spine. Dr. Keith M.

Maxwell, an orthopedic surgeon, was consulted and his physician's assistant examined plaintiff on 29 July 2000. Dr. Maxwell felt

that plaintiff's symptoms stemmed from a disc herniation at L3-4, and he recommended surgery. Dr. Maxwell performed surgery on

plaintiff to decompress the L3-4 interspace on 30 July 2000. Dr. Maxwell stated and the Commission found this

first surgery was causally related to the lifting injury on 8 July 2000. On 12 September 2000, plaintiff returned to Dr. Maxwell with complaints of a new pain in her right hip and leg that was different from her previous pain symptoms. Plaintiff continued

working for the Buncombe County school system until the Spring of 2001. From 25 February 2001 through 2 May 2002, plaintiff was seen by several doctors and underwent four additional surgeries to relieve spinal compression and various herniations. On 23 January

2001 plaintiff completed a Form 18 and notified defendants of her injury and claims.

-4Procedural History On 8 July 2002, plaintiff's claims were heard before Deputy Commissioner Morgan S. Chapman who filed an Opinion and Award in this matter on 12 February 2003. The Deputy Commissioner held

plaintiff had suffered a compensable specific traumatic incident at work in July 2000. However, the Deputy Commissioner concluded

plaintiff's claim should be denied for her failure to give timely notice pursuant to N.C. Gen. Stat.

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