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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-552 NORTH CAROLINA COURT OF APPEALS Filed: STELLA SMITH, Employee, PlaintiffAppellant, Cross-Appellee v. BAXTER INTERNATIONAL, INC., Employer, BROADSPIRE, Servicing Agent, DefendantAppellees, Cross-Appellants Appeal by plaintiff and cross-appeal by defendants from North Carolina Industrial Commission I.C. File No. 799904 3 July 2012

Opinion and Award entered 28 December 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17

November 2011. The Law Offices of David Gantt, plaintiff-appellant/cross-appellee. by David Gantt, for

Martineau King, PLLC, by L. Kristin King, for defendantappellee/cross-appellant. ERVIN, Judge. Plaintiff Stella Smith appeals from a Commission order

determining, among other things, that she was not disabled after 31 January 2008 as the result of her 15 August 2007 work-related

-2injury and that the difficulties that she experienced with her right knee were Baxter not caused or aggravated Inc., and by her injury and

Defendants

International,

Broadspire

appeal

from the same order to the extent that the Commission determined that Plaintiff's In portions left knee, hip, both and back conditions that were were the not

compensable. challenged

essence, of the

parties

contend decision

Commission's

supported by the competent evidence contained in the record and the Commission's factual findings. After careful consideration

of the parties' challenges to the Commission's order in light of the record and the applicable law, we conclude that the

Commission's order should be affirmed. I. Factual Background A. Substantive Facts On 15 August 2007, Plaintiff, a fifty-five year old high school graduate with was an associate's when an degree in guided business vehicle

administration,

injured

automated

pinned her left leg to a conveyor belt while she worked at Defendant Baxter's plant. taken to Gloria Biddix After this incident, Plaintiff was Hall, an occupational nurse and the

manager of Defendant Baxter's medical department, who observed that Plaintiff had sustained a six centimeter laceration to her left thigh. Later that day, Plaintiff was taken to Dr. Peter

-3Mangone, who diagnosed an internal degloving injury to

Plaintiff's left thigh. On 16 August 2007, Dr. Mangone performed a debridement of Plaintiff's left thigh, during which he extensively irrigated Plaintiff's wound and closed the laceration. After the

completion of this procedure, Plaintiff was told that she could return to sedentary work with Defendant Baxter. During the ensuing week, Plaintiff reported to Defendant Baxter's medical department, where she would sleep long enough to be counted as present for that workday. By doing that,

Plaintiff became entitled to receive her full pay and obviated the necessity for Defendant Baxter to treat Plaintiff's injury as a "lost-time accident." to sedentary duty with until plans Subsequently, Plaintiff was assigned 31 that August 2007, the when 15 she retired 2007

consistently accident. After

antedated

August

her

retirement,

Plaintiff

continued

to

experience

pain in the area in which she had been injured.

On 1 November

2007, Dr. Laurence Ian Arnold, a plastic surgeon, determined that Plaintiff's wound was "nonhealing" and noted that Plaintiff was experiencing arthritis-related ambulation difficulties. On

2 November 2007, Dr. Arnold performed a surgical debridement of Plaintiff's wound. In December 2007, Plaintiff reported to Dr.

-4Arnold and her nurse care manager that she was experiencing left back and hip pain. skin graft a on the On 4 January 2008, Dr. Arnold performed a area affected which by Plaintiff's in left thigh

injury,

procedure

resulted

Plaintiff's

hospitalization through 8 January 2008. the hospital, Plaintiff saw Dr.

After her release from on two additional

Arnold

occasions, did not make any complaints

of pain

during those

appointments, and described her pain as zero on a zero to ten scale. On 31 January 2008, Dr. Arnold released Plaintiff from

his care with instructions to return on an as-needed basis and without making Plaintiff subject to any permanent work

restrictions. After complaints being released left by hip Dr. pain Arnold, to Plaintiff nurse made case

concerning

another

manager, who arranged for Plaintiff to be evaluated by Dr. James Christopher Karegeannes, an orthopedist. On 19 February 2008,

Plaintiff told Dr. Karegeannes that she was experiencing lower back and left buttock pain. At that time, Dr. Karegeannes

determined that Plaintiff had a full, pain-free range of motion in her left hip. Plaintiff's gait Dr. Karegeannes believed that an alteration in stemming from her work-related injury had

aggravated her preexisting lumbar spine arthritis.

In light of

-5Dr. Karegeannes' findings, Defendants declined to authorize

further treatment for Plaintiff's back or hip. On 14 March 2008, Plaintiff was examined by her primary care physician, Dr. Joseph Taylor Turnbull, who interpreted xrays as revealing the presence of degenerative osteoarthritic changes in both of Plaintiff's knees. diagnosed Plaintiff as suffering As a result, Dr. Turnbull from osteoarthritis and

prescribed medication for that condition.

However, Plaintiff's

medical records indicated that she had been taking arthritis medication for over a year and half prior to the date upon which her work-related injury occurred and that Plaintiff had received treatment from Dr. Turnbull for bilateral knee pain prior to the date of her injury. On 20 March 2008, Plaintiff returned to Dr. Turnbull. At

that time, Plaintiff complained of left hip pain and walked with a noticeable limp. At six office visits with Dr. Turnbull after complained of lower left leg pain,

20 March 2008, Plaintiff

right arm and shoulder pain, and popping and cracking in her right knee. However, Plaintiff's medical records do not reflect An

that she complained of hip or back pain on those occasions.

examination of Plaintiff's back did not reveal the presence of any abnormalities.

-6On 10 September 2009, Plaintiff was examined by Dr. Dennis Hoogerman, attorney. measured abilities, percentile. questionnaire a clinical psychologist, at the request of her

Dr. Hoogerman administered a series of tests which Plaintiff's with memory, concentration, in the and attention

Plaintiff

scoring

eighty-seventh

After completing a Social Security Administration addressing a variety of employment-related

limitations, Dr. Hoogerman rated Plaintiff's limitations on a scale of "no limitation" to "severely limited" and concluded that Plaintiff should not be rated as "severely limited" in any category. Dr. Hoogerman determined that Plaintiff suffered from

depression due to several childhood traumas and that Plaintiff coped with these pre-existing traumas through working, including the work that she performed at Defendant's plant and at home. Once Plaintiff she could no longer work or remain to consistently with her that

active,

became For

depressed reason,

and Dr.

unable

cope

feelings.

that

Hoogerman

concluded

Plaintiff's work-related injury was a "significant factor" and had "exacerbated" her underlying depression. standardized Hoogerman limitations testing that opined impair her was administered to Based upon the Plaintiff, Dr.

further would

that

Plaintiff's to return

psychological to work and

ability

maintain employment.

-7On 17 September 2009, also at the request of her attorney, Plaintiff was evaluated counselor by and A. Bentley Hankins, vocational a certified evaluation

rehabilitation specialist.

certified

During that evaluation, Plaintiff completed several

standardized tests, including an intelligence test, a wide-range achievement test, a memory recall test, and a clerical skills examination. Plaintiff scored in the average to high-average

percentile range on all tests except for the one evaluating her clerical skills. Based upon Plaintiff's performance on these

standardized tests, the evaluation performed by Dr. Hoogerman, and other factors, such as Plaintiff's age, Plaintiff's

education, Plaintiff's work experience, and local labor market conditions, Mr. Hankins concluded that Plaintiff was not a

realistic candidate for employment in the local labor market or in the national economy. At the request of Defendants, George R. Lentz, a certified rehabilitation specialist and licensed professional counselor, reviewed Although Mr. Mr. Hankins' Lentz report and that Dr. Mr. Hoogerman's Hankins' evaluation. standardized

concluded

testing had been appropriate, he disagreed with Mr. Hankins' conclusions because they ignored Plaintiff's transferable skills and other positive factors reflected in the vocational testing. Mr. Lentz performed a labor market search based upon the same

-8pre-injury occupation classification upon which Mr. Hankins

relied; performed a transferable skills analysis using a United States Department of Transportation software program; and found that Plaintiff possessed a number of transferable skills that translated result, into alternative opined employment that, based opportunities. upon her As a

Mr.

Lentz and and

education, was not

experience, permanently

transferable totally

skills, and

Plaintiff that

disabled

"there

[were]

certainly alternative type[s] of work existing in . . . national counseling and hopefully in the local economy that she could perform." B. Procedural History On 30 October 2007, Defendants submitted a Form 19

providing notice of Plaintiff's injury.

Although Defendants did

not file a Form 60 admitting liability for Plaintiff's injury to her left thigh, they did pay to have that injury treated and subsequently stipulated that Plaintiff's left thigh injury was compensable. On 17 March 2008, Plaintiff filed a Form 33

requesting that her claim be assigned for hearing on the grounds that Defendants had failed to provide necessary medical permanent

treatment, temporary total disability total disability benefits. 33R admitting that

benefits, and

In response, Defendants filed a Form should receive workers'

Plaintiff

-9compensation benefits for her left thigh injury while denying that Plaintiff's back, hip, and knee complaints stemmed from the 15 August 2007 accident and that Plaintiff was disabled. On 22

April 2008, Defendants filed a Form 61 denying that Plaintiff sustained an injury to her back as a result of the 15 August 2007 accident. On 22 June 2010, Deputy Commissioner George R. Hall, III, entered an Opinion and Award concluding that, while Plaintiff had sustained a compensable injury to her left thigh, she had failed to demonstrate by the greater weight of the evidence that her alleged hip, knee, and back injuries were causally related to her thigh injury. As a result, Deputy Commissioner Hall

denied Plaintiff's request for additional medical benefits and disability compensation. Plaintiff noted an appeal to the

Commission from Deputy Commissioner Hall's order. On 28 December 2010, the Commission, by means of an Opinion and Award issued by Commissioner Bernadine S. Ballance with the concurrence Scott, injury of Commissioners that to Staci had T. Meyer and a a Christopher compensable direct and

concluded by

Plaintiff her left

sustained and, as

accident

thigh

natural consequence of that injury, had experienced significant aggravation and exacerbation of her pre-existing left knee, hip and back conditions. As a result, the Commission awarded

-10Plaintiff medical benefits relating to her left thigh, knee, hip and back conditions; temporary total disability benefits from 31 August 2007 through 31 January 2008; and attorney's fees. The

Commission further concluded that Plaintiff had failed to prove that her work-related injury caused or contributed to her right knee complaints. Plaintiff and Defendants noted appeals to this

Court from the Commission's order. II. Legal Analysis A. Standard of Review In reviewing an appeal from a Commission order, this Court is "limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law," Deese v.

Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000), with the Commission serving as the sole judge of the weight and credibility of the evidence. In an order addressing a claim for Id. (citation omitted). workers' compensation

benefits, the Commission "must make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim facts for which compensation are depend," to including its

"find[ing]

those

necessary

support

conclusions of law."

Johnson v. Herbie's Place, 157 N.C. App.

168, 172, 579 S.E.2d 110, 113 (citations and quotation marks

-11omitted), disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003). "`The court's duty goes no further than to determine

whether the record contains any evidence tending to support the [challenged] finding[s].'" Johnson v. Lowe's Cos., Inc., 143

N.C. App. 348, 350, 546 S.E.2d 616, 618 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), aff'd, 354 N.C. of 358, are 554 S.E.2d on 336 this (2001). Court.

Unchallenged

findings

fact

binding

Ferreyra v. Cumberland Cty., 175 N.C. App. 581, 583, 623 S.E.2d 825, 826-27 (2006). We review the Commission's conclusions of McRae v. Toastmaster, Inc., 358 N.C.

law on a de novo basis.

488, 496, 597 S.E.2d 695, 701 (2004). B. Plaintiff's Appeal 1. Date Upon Which Disability Ended In her first challenge to the Commission's order, Plaintiff contends that the Commission on 31 erred by determining In support that of her this

disability

ended

January

2008.

contention, Plaintiff asserts that, although she last visited Dr. Arnold on that that date, "the [r]ecord hip, contains [or] no medical pain had

indication

[Plaintiff's]

back,

knee

resolved or lessened by that date to support a return to earning capacity." According to Plaintiff, a number of the Commission's

findings of fact relating to this issue lack adequate record

-12support and do not, for that reason, support the Commission's conclusions of law. Plaintiff's argument lacks merit.

In its order, the Commission found as a fact that: 16. On March 20, 2008, Plaintiff returned to Dr. Turnbull with complaints of bi-lateral knee and now left hip pain, and was walking with a limp. Dr. Turnbull saw Plaintiff on six occasions between March 20, 2008 and August 6, 2009. There are no recorded complaints of hip or back pain after the March 20, 2008 office visit through August 6, 2009, and Dr. Turnbull's medical records indicate a "normal inspection" of the back upon physical examination. . . . . 20. The Full Commission gives greater weight to the opinion testimony of Dr. Turnbull over any contrary testimony of Dr. Karegeannes on the causal relationship between Plaintiff['s] work injury and the worsening of symptoms in her left knee, hip and back. The evidence presented is insufficient to prove a causal relationship between Plaintiff's August 15, 2007 work injury and her right knee complaints. . . . . 24. At Dr. Hoogerman's deposition, he acknowledged that he was unaware at the time of his September 10, 2009 evaluation that Plaintiff accompanies her husband on a weekly basis to a public trade lot where she assists with customer sales transactions, that Plaintiff provides babysitting services for her daughter's twin grandchildren[,] who are toddlers, between the hours of 7:00 a.m. and approximately 4:00 p.m. one day a week[;] and that subsequent to Plaintiff's August 15, 2007 work injury, she went on

-13several family camping trips and other vacations with family and family friends. 25. On September 17, 2009, Mr. Adrian Bentley Hankins, a certified rehabilitation counselor, performed a vocational assessment evaluation of Plaintiff at the request of Plaintiff's counsel. Mr. Hankins administered several standardized tests, including an intelligence test, a wide-range achievement test, a clerical examination; and a memory recall test. Plaintiff scored in the average to high-average percentile ranges on all of the standardized tests except for the clerical test. According to Mr. Hankins, the clerical test measures the test-taker's results against bank employees of all ages. Mr. Hankins further explained that the clerical test does not account for today's reliance on computers, and would not be indicative of Plaintiff's performance in all types of office work. 26. Based upon the standardized testing administered to Plaintiff by both Mr. Hankins and Dr. Hoogerman, as well as other vocationally relevant factors such as age, education, and work experience, Mr. Hankins concluded that Plaintiff is no longer a realistic candidate for employment in her local labor market. In particular, Mr. Hankins based his opinions upon the psychological limitations that Dr. Hoogerman opined Plaintiff has. Mr. Hankins agreed that if the evidence failed to prove that Plaintiff had these psychological limitations, then Plaintiff's ability to return to work would not be limited, as Plaintiff would be intellectually and physically capable of performing most, if not all, of her former job duties with Defendant. . . . .

-1431. Plaintiff continues to perform household cooking and cleaning duties in her home, and is able to go to the grocery store and run errands. She attends church on a weekly basis and continues to garden. Plaintiff does not use her cane around the house or when walking on level surfaces. . . . . 35. The Full Commission gives greater weight to the opinion testimony of Mr. Lentz over any contrary opinions of Mr. Hankins regarding Plaintiff's ability to compete for suitable employment within her work restrictions in the competitive labor market. . . . . 39. Plaintiff has not proven disability after January 31, 2008. Dr. Karegeannes was of the opinion that she "potentially could go back [to work] with limited duty . . . with precautions directed toward . . . the source of pain in the spine," depending upon the degree of pain she was having and what type of work she was doing. Dr. Turnbull's testimony concerning estimated periods of time he believed Plaintiff would have been unable to work following her surgeries is speculative and not supported by any competent evidence. Additionally, the Full Commission has found the vocational opinions of Mr. Lentz to be more persuasive than that of Mr. Hankins. 40. Following January 31, 2008 Plaintiff did not make reasonable efforts to find suitable employment. Based upon these findings of fact, the Commission concluded as a matter of law that:

-157. As a result of her injury, Plaintiff was medically unable to perform "real work" from August 15, 2007 through August 31, 2007. Since Plaintiff received her full salary during this period, no temporary total disability compensation is owed. From August 31, 2007 through January 31, 2008, when Dr. Laurence Ian Arnold released Plaintiff from his care, it would have been futile for Plaintiff to seek suitable employment, considering her medical and physical limitations as a result of the failure of her left thigh to heal after the August 15, 2007 work injury. Therefore, Plaintiff is entitled to temporary total disability compensation in the amount of $523.13 per week from August 31, 2007 through January 31, 2008. Thus, the Commission concluded that Plaintiff was disabled from the date of her injury until 31 January 2008. In seeking to persuade us that the Commission erred by

determining that Plaintiff was not disabled after 31 January 2008, Plaintiff argues that the Commission incorrectly

interpreted and evaluated the testimony of Dr. Karegeannes and Mr. Lentz while impermissibly "discounting" the testimony of Dr. Turnbull and, to a lesser extent, Dr. Hoogerman. More

specifically, Plaintiff contends that (1) "[a] complete reading of Dr. Karegeannes' testimony[] and . . . Finding of Fact [No.] 39 . . . does not support the contrary Conclusion of Law [No.] 7 limiting disability to the January 31, 2008 date[;]" (2) the record contained no evidence that Dr. Hoogerman's findings and conclusions rested upon deficient knowledge about Plaintiff's

-16activities; (3) Mr. Lentz's conclusions were largely subjective and dismissive of the objective tests performed by Dr.

Hoogerman; (4) Mr. Lentz did not produce evidence of actual job opportunities, as required by Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 441 S.E.2d 145 (1994), and, instead, provided a vague, theoretical that he description believed to of be potential available to employment Plaintiff

opportunities

based upon information provided by a computer software program; and (5) while the medical, psychological, and vocational

testimony established that Plaintiff had satisfied her initial burden of proving disability under either the first or third prongs set out in Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), Defendant failed to rebut this showing by establishing that satisfactory jobs were, in fact, available to Plaintiff. series of arguments persuasive. "An employee injured in the course of his employment is disabled under the Act if the injury results in an `incapacity . . . to earn the wages which the employee was receiving at the time of injury in the same or any other employment.'" Russell, We do not find this

108 N.C. App at 765, 425 S.E.2d at 457 (quoting N.C. Gen. Stat.

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