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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA08-300 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2008 LARRY E. TURNER, Employee, Plaintiff, v. North Carolina Industrial Commission I.C. No. 497930

CUSTOM RETAIL SERVICES, INC. Employer, EMPLOYER'S INSURANCE COMPANY OF WAUSAU, Carrier, Defendants.

Court of Appeals Slip Opinion
Heard in the

Appeal by defendants from Opinion and Award entered 2 November 2007 by the North Carolina Industrial Commission. Court of Appeals 22 September 2008. Lyndon R. Helton, PLLC, by Lyndon R. Helton, for plaintiffappellee. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Taurus E. Becton, for defendants-appellants. MARTIN, Chief Judge. Custom Retail Services1 ("defendant-employer") and Employer's Insurance Company of Wausau (collectively "defendants") appeal from

In the North Carolina Industrial Commission's Opinion and Award, defendant-employer's name is referenced as "Custom Rental Services." However, since documents submitted to this Court by the parties suggest that defendant-employer's name should read "Custom Retail Services," we note this correction.

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-2an Opinion and Award by the North Carolina Industrial Commission ("Commission") ("plaintiff"). awarding benefits to employee Larry E. Turner

We affirm.

The parties stipulated in a Pre-Trial Agreement that an employment relationship existed between plaintiff and defendantemployer at the time of the 27 January 2005 accident and that plaintiff accident. follows: 1. At the time of the hearing before the Deputy Commissioner, plaintiff was 40 years old and had graduated from high school. Plaintiff's relevant work history consists of retail work in the grocery industry. Plaintiff worked for defendant-employer [as a custom retail product manager] from May 10, 2004 through June 3, 2005. Defendant-employer is a vending service company that services Lowe's Home Improvements Stores. Plaintiff's duties primarily consisted of setting up displays in Lowe's outlets. On January 27, 2005, while in the course and scope of his employment, plaintiff was injured when he experienced a sudden onset of back pain [which extended down into his buttock and also down into the posterior and medial thigh] while moving a rack of wallpaper[, which was approximately seven feet tall and four feet wide]. Plaintiff notified Human Resources of his injury and was instructed to present to North Cross Urgent Care where he was diagnosed with sciatica. On February 2, 2005, plaintiff presented to Dr. Edwards with complaints of right lumbosacral pain and some right thigh pain and was given light duty work sustained a compensable injury as a result of the

The Commission's unchallenged findings of fact are as

2.

3.

4.

-3restrictions [limiting his movement to "minimal" bending, twisting, walking, standing, and climbing, and setting his lifting limit at 5 lbs]. Plaintiff was also referred to physical therapy at that time. On a follow-up visit on February 9, 2005, plaintiff reported having increased pain as well as some numbness in his right foot. He was eventually referred for an orthopedic evaluation and a lumbar MRI scan. 5. On March 1, 2005, plaintiff presented to Dr. Knapp for the orthopedic evaluation and reported complaints of back and bilateral leg pain. On that date, it was recommended that he undergo epidural injections and physical therapy. It was again recommended that he continue on light duty work. Plaintiff underwent epidural injections that were performed by Dr. Christopher Hunt. On April 6, 2005, plaintiff followed-up with Dr. Knapp complaining of low back pain as well as some neck pain. On that date, Dr. Knapp opined that plaintiff had lumbar disc disease as well as a cervical strain. It was again recommended that plaintiff undergo physical therapy. Dr. Knapp recommended a lumbar myelogram and post myelogram CT be completed, which were found to be normal with the exception of some mild bulging on the lateral myelogram at L4-5 and L5-S1. On July 13, 2005, plaintiff presented to Dr. Scott McCloskey of Catawba Valley Neurosurgical and Spine Services. Dr. McCloskey recommended continued nonoperative treatment; however, he offered plaintiff the option of proceeding with an L4-S1 fusion. It was noted that a lumbar discogram would be a necessary diagnostic test prior to proceeding with surgery. Dr. McCloskey opined that a lumbar fusion is not a perfect solution and that "not all those people get better. As you well know in what you do, there are at least ten percent of them that are made a lot worse with the surgery. So, you know, pain clinic

6.

-4management consider." . . . . 8. On March 23, 2006, plaintiff presented for a second opinion evaluation with Dr. [O. Del] Curling of Neurosurgical Evaluations of the Carolinas. Plaintiff was diagnosed with low back and leg pain of unclear etiology. Dr. Curling opined that plaintiff would be capable of modified work in a light-medium work capacity (35 lbs. maximal occasional lifting) with avoidance of repetitive bending or twisting or prolonged station, and with allowance for frequent changes in position as needed. Plaintiff was terminated by defendantemployer for excessive absenteeism on 3 June 2005. The greater weight of the evidence shows that plaintiff's failure to report for work was due to the pain resulting from the work-related injury. The evidence also shows that plaintiff would at times provide a medical excuse to his employers after having already missed work, and that plaintiff updated defendant-employer of his condition but did not always call in on the date he was going to miss work. Based upon the greater weight of the evidence, the Full Commission finds as fact that while plaintiff's reason for missing work was due to the pain resulting from his work-related injury, plaintiff failed to adhere to defendantemployer's policy regarding unexcused absences. Accordingly, plaintiff was terminated from employment for reasons unrelated to his injury and for reasons any non-injured employee would be terminated. is a reasonable option to

9.

10.

Since defendants failed to assign error to any of the findings of fact excerpted above, "these findings are conclusively established on appeal" and are presumed to be supported by competent evidence.

-5See Johnson v. Herbie's Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118, disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003). After receiving evidence, a deputy commissioner filed an Opinion and Award on 16 January 2007 addressing the following issue: benefits "To what, if any, additional medical and/or indemnity is plaintiff entitled?" The deputy commissioner

determined that plaintiff has been "unable to obtain employment since the date of his termination on 3 June 2005" "due in large part to the ongoing physical restrictions resulting from the workrelated injury." that defendants As a result, the deputy commissioner determined "remain[] responsible for benefit obligations

arising out of plaintiff's job-related injury," which include current and future medical expenses, as well as temporary total disability compensation "continuing until plaintiff returns to work at his previous wages or until further Order of the Commission." Both defendants and plaintiff appealed to the Full Commission. On

2 November 2007, the Commission entered an Opinion and Award affirming the deputy commissioner's decision, with modifications. This appeal follows. _________________________ Our Supreme Court has "repeatedly held `that our Workers' Compensation Act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow, and strict construction.'" Adams v. AVX Corp., 349 N.C.

676, 680, 509 S.E.2d 411, 413 (1998) (quoting Hollman v. City of

-6Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968)), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Industrial (quoting 123 Commission v. is "`the fact finding Co., "`the 256 sole Under the Act, the body,'" N.C. see id. 182, the

Brewer 608,

Powers

Trucking and

175, of

S.E.2d

613

(1962)),

judge

credibility of the witnesses and the weight to be given their testimony.'" Id. (quoting Anderson v. Lincoln Constr. Co.,

265 N.C. 431, 433

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