Lead Opinion
2. The employer-employee relationship existed at the time of the alleged injury by accident.
3. Zurich-American Insurance Company was the carrier on the risk during the time period relevant to this claim.
4. Plaintiff's average weekly wage at the time was $272.40. This amount yields a compensation rate of $181.61 per week.
2. The first medical treatment directed by the employer was to Dr. Richard L. Young, a board certified orthopedic surgeon in Clinton. Dr. Young initially saw plaintiff in October, 1997 and diagnosed her with work-related bilateral carpal tunnel syndrome (CTS). He recommended a surgical carpal tunnel release. At the time, Dr. Young also reviewed the job analysis that has been admitted into evidence in this case and believed that plaintiff could ultimately return to work in the same job after surgery.
3. Plaintiff's surgery took place on 29 October 1997. Following a period of recovery after surgery, Dr. Young examined plaintiff on 18 December 1997. At this visit, plaintiff was accompanied by a nurse case manager, Ms. Lynn L. Powell. Ms. Powell had reviewed the job analysis with plaintiff prior to Dr. Young's entering the examining room on that day and plaintiff signed the job analysis, thereby agreeing that it accurately depicted her job duties. Dr. Young then reviewed the job analysis again and indicated plaintiff could return to light duty work (consisting of less than 8 hours) in that position as of 5 January 1998.
4. Plaintiff did not show up for the light duty job that was to begin 5 January 1998. On that day, plaintiff went to see Dr. Eddie N. Powell, a general practitioner. Dr. Powell gave plaintiff a note stating she was unable to work in any capacity from that date until 5 February 1998. Dr. Powell admitted that at the time of this examination he did not have any information about the type of work plaintiff performed.
5. After plaintiff presented the out of work note to the employer on 6 January 1998, she was advised by the defendant-employer that treatment by Dr. Powell was unauthorized and that she was to return to Dr. Young for further evaluation.
6. Before returning to see Dr. Young, nerve conduction studies were performed on 7 January 1998 and were interpreted by Dr. Aneel N. Patel. Dr. Patel's impression was that the 1998 studies showed a significant improvement in both hands from previous studies. He stated that the studies tended to show that the right hand had returned to within normal limits.
7. Plaintiff returned to see Dr. Young on 22 January 1998. At that visit he found her to have full range of motion and full sensation in all of her digits. Because she was continuing to complain of severe pain, Dr. Young thought she was malingering. He released her to full duty work at that point in the job she was doing with defendant-employer without restriction. A work note was issued allowing plaintiff to return to work on 23 January 1998. At the time, Dr. Young was not aware of the 7 January 1998 nerve conduction studies, but after reviewing them at a later date he felt that the results supported his opinion that plaintiff had clinically improved, that she was complaining excessively, and that she could return to work in her pre-injury job. Dr. Young disagreed with Dr. Powell's opinion and Dr. Powell's note to the effect that plaintiff was totally disabled and unable to work as of 23 January 1998
8. Dr. Young assigned a 5% permanent partial disability rating based upon her continuing complaints of pain. Dr. Young did not recommend surgery to the left hand.
9. After her 22 January 1998 visit with Dr. Young, plaintiff still did not return to work with defendant-employer. Instead, she again went to see Dr. Powell on 12 February 1998, who again wrote her a note stating she could not work in any employment indefinitely after 5 February 1998. Despite nerve conduction studies showing significant improvement of her condition, Dr. Powell also wrote a letter to plaintiff's counsel advising that her condition was getting worse, not better.
10. Because Dr. Young suggested a second opinion when he last saw plaintiff, the case manager, Ms. Powell, made several attempts to find another doctor to examine plaintiff, including Dr. Thomas Parent, a surgeon, and Dr. Bettendorf, a physiatrist. At plaintiff's request, a second opinion appointment was scheduled for 16 March 1998 with Dr. Robert Lacin, a neurosurgeon in Goldsboro, who specializes in peripheral nerve surgery.
11. After examining plaintiff, and reviewing the job analysis admitted into evidence, Dr. Lacin agreed with Dr. Young's assessment of 5% permanent partial disability based upon what he felt was a good neurological recovery from her CTS condition. Dr. Lacin also felt that plaintiff had no functional limitations secondary to her right CTS condition, and could therefore return to work in the trim and examine inspector position at the time of his examination. Dr. Lacin also opined that if plaintiff elected not to undergo surgery to her left hand that she would have a 3% permanent partial impairment to that hand.
12. Even after plaintiff's second opinion physician, Dr. Lacin, stated that he agreed with Dr. Young's full duty work release, plaintiff still refused to return to work in her former position with the employer.
13. An Administrative Decision and Order filed on 15 April 1998 by Special Deputy Commissioner Yvonne E. Bullock concluded that defendants were entitled to terminate plaintiff's temporary total disability benefits effective 23 January 1998.
14. On 16 October 1998, plaintiff was examined by Dr. Carol Epling, an occupational and environmental medicine specialist at Duke University. Dr. Epling opined that plaintiff should not return to work in the trim and examine inspector job, but she did believe plaintiff would certainly be able to return to work in some capacity.
15. Given that Dr. Young was plaintiff's treating physician throughout, and given the experience in the field enjoyed by Dr. Young and Dr. Lacin relative to Dr. Powell and Dr. Epling, the undersigned gives greater weight to the opinions of Dr. Young and Dr. Lacin than to the opinions of Dr. Powell and Dr. Epling.
16. Plaintiff's refusal to return to work in her trim and examine inspector job was unjustified.
17. Plaintiff has not worked, nor sought work, since her last day with defendant-employer in August 1997. Mr. Stephen Carpenter, a vocational rehabilitation expert, felt plaintiff was not presently employable, but the undersigned gives no weight to this testimony based upon the testimony of Dr. Young and Dr. Lacin.
18. Plaintiff has elected not to undergo surgery for her left hand condition. Plaintiff has reached maximum medical improvement to both of her hands.
19. As a result of her occupational disease, plaintiff has experienced a 5% permanent impairment to her right hand and a 3% permanent impairment to her left hand.
2. Plaintiff is entitled to receive permanent partial disability compensation for her 5% impairment to her right hand and her 3% impairment to her left hand. N.C.G.S. §
3. Plaintiff is entitled to payment of all medical expenses incurred as a result of her occupational disease, for so long as such treatment tends to effect a cure, give relief or will tend to lessen her period of disability. N.C.G.S. §§
2. An attorney fee of 25% of the compensation awarded to plaintiff in paragraph one of this award is approved by the Industrial Commission and is to be deducted and paid directly to plaintiff's attorney.
3. All medical treatment incurred or to be incurred as a result of plaintiff's compensable occupational disease, for so long as said treatment gives relief, effects a cure or lessens plaintiff's period of disability, shall be paid by the defendants.
4. As a result of plaintiff's unjustified refusal of suitable employment, the defendants are not required to pay to plaintiff any temporary total disability payments after January 23, 1998. The Administrative Decision and Order filed on April 15, 1998 by Special Deputy Commissioner Yvonne E. Bullock is AFFIRMED and remains in full force and effect.
S/_______________ CHRISTOPHER SCOTT COMMISSIONER
CONCURRING:
S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER
DISSENTING:
S/____________________ THOMAS JEFFERSON BOLCH COMMISSIONER
Dissenting Opinion
Plaintiff's total employment experience as an adult has consisted of work with her hands in nothing other than the clothing manufacturing business.
The Deputy Commissioner and majority gave greater weight to the opinions of Drs. Young and Lacin than to the opinions of Drs. Powell and Epling in finding that that the trim and examine inspector position was suitable employment. This factual finding is not supported by the greater weight of the credible evidence.
In 1987, the plaintiff began her employment with Brooks Brothers as a "trim and examine inspector". At the Brooks Brothers' plant in Sampson County, the job of "trim and examine inspector" that the plaintiff performed for most of the entire 10+ years of her employment by Brooks Brothers before her injury date of August 7, 1997 required her to perform hundreds of only one or two types of highly repetitive motions with her hands per eight-hour work shift. On this point, the plaintiff's testimony about the highly repetitive motions required by her job was supported by the videotape of the plaintiff's job that was viewed in its entirety by Dr. Carol Epling, M.D., and the opinions of both Drs. Epling and Dr. Young.
When the plaintiff performed her job as a "trim and examine inspector", she engaged in the repeated and regular grasping or pinching every few seconds with both of her hands to snip the excess threads from the shirts she was working with, or to remove the inspection stickers from those shirts. When she performed that job, the plaintiff had an extra incentive to work her hands as quickly as possible because she was compensated in part on a piece rate basis based upon the number of units of shirts that the plaintiff was able to trim and inspect (base level hourly rate required production of 28.8 dozen shirts per shift in 1997). Indeed, the unrebutted testimony of one witness for the plaintiff was that the defendant employer really required every employee to make 100% of the base hourly rate by production or face termination of employment.
In February, 1997, plaintiff began to complain to Dr. Powell of pain, numbness, weakness, and tingling in her fingers, thumbs, and hands. Based upon those symptoms, and his general knowledge of the type of work that the plaintiff was performing at that time, Dr. Powell referred the plaintiff to Dr. Patel for NCV studies that were performed on February 26, 1997. Dr. Patel and Dr. Young both interpreted those NCV study results to as "abnormal nerve conduction velocity study suggestive of bilateral median neuropathy; carpal tunnel syndrome".
Then, in March 1997, the plaintiff began a course of conservative treatment with Dr. Powell and Dr. Paul M. Carter, M.D., a local orthopedist, for that condition which included splints and steroid shots. That course of conservative care continued through September 1997, but it was not successful in alleviating plaintiff's symptoms. On August 7, 1997, the plaintiff became disabled from work, and began to receive temporary total disability indemnification payments from the defendants pursuant to a Form 60. In October, 1997, she was referred to Dr. Richard L. Young, M.D. for a surgical evaluation at the direction of Lynn Valenti, the Claims Case Manager for the carrier in this case.
The plaintiff's exposure at Brooks Brothers to this repetitive work with her hands significantly increased the risk of the plaintiff's contracting an occupational illness in the form of bilateral carpal tunnel syndrome in one or both of her hands. Dr. Epling specifically opined that this was the case . . . Dr. Epling also testified that her opinion was, in part, based upon her view that the "cyclical" work performed by the plaintiff that she reviewed in the videotape prepared by the defendants was "highly repetitive upper extremity work". She also testified that plaintiff's performance of that work significantly contributed to the development of bilateral carpal tunnel syndrome in the plaintiff's wrists. One of the plaintiff's treating physicians, Dr. Young, also opined that the bilateral carpal tunnel syndrome condition that he treated the plaintiff for beginning in October 1997 was a "work related condition." That opinion was based, in part, upon his "strong disagreement" with the opinion expressed by Dr. Lacin that the plaintiff's work as a trim and examine inspector was not a "repetitive motion type of job".
At the hearing on January 11, 1999, the defendants did not appear to contest these causation findings by Drs. Epling and Young. Indeed, the record reflects that on January 7, 1998, the defendants filed a Form 60 with the Commission dated January 6, 1998 in which they admitted the compensability of the plaintiff's bilateral carpal tunnel syndrome from August 7, 1997.
During the time period that she was treated by Dr. Young, Dr. Young performed right carpal tunnel release surgery on the plaintiff on October 29, 1997. Dr. Young testified that he observed a "thickening of the ligament" in the right carpal tunnel which was "consistent" with his diagnosis of carpal tunnel syndrome and his causation opinion. The right carpal tunnel release surgery did not alleviate the symptoms of pain, grip strength, numbness and tingling in the plaintiff's right hand.
A course of physical therapy ordered by Dr. Young at Sampson Regional Medical Center ended on January 12, 1998 with the plaintiff's dominant right hand having grip strength of only 60% of that she had in non-dominant left hand. Because of the continuing problems with her hands, the plaintiff sought additional medical attention from Dr. Powell and Dr. Young. Based upon these continuing problems, Dr. Young referred the plaintiff for more NCV testing by Dr. Patel on January 7, 1998. While the results of that NCV testing showed "significant improvement" compared with the February 1997 NCV study, the 1998 NCV study was still an "abnormal nerve conduction velocity study suggestive of bilateral sensory carpal tunnel syndrome". The results of the 1998 NCV study were consistent with the patient's symptoms.
With respect to the plaintiff's left hand, whatever improvement in the results of the NCV studies from 1997 to 1998 was the result of the plaintiff's absence from her work at Brooks Brothers from August 7, 1997 to January 7, 1998. Dr. Epling has specifically stated that the plaintiff is not at maximum medical improvement ("MMI") with respect to her left hand as she has not been offered a trial of medication (such as low dose antidepressants or anticonvulsant medication) that has been shown to be effective in treating chronic pain. Dr. Lacin appeared to agree with Dr. Epling's assessment on this point.
The plaintiff has reached MMI with respect to the injury she has suffered to her right hand from the right carpal tunnel syndrome occupational disease she developed at work. As a result of her work-related injury, the plaintiff has suffered a permanent partial impairment of her right hand of 5%.
The opinions of Dr. Powell and Dr. Epling on whether or not plaintiff is able to return to her former job as a "trim and examine inspector" are more credible than those of Drs. Lacin and Young. The opinions of Drs. Powell and Epling are consistent with the objective results of the January 7, 1998 NCV tests which demonstrated that "[b]oth median nerves showed diminished amplitude of the sensory action potential and slowing the sensory nerve conduction velocities." In addition, Dr. Powell's opinion is based upon the results of those NCV studies that he ordered from Dr. Patel, and a medical perspective obtained through a series of clinical examinations that started in February 1997 and has continued on a periodic basis through January, 1999.
It is also clear from the record that Dr. Young had already made up his mind with respect to this issue before he had even seen the results of the surgery that he performed on the plaintiff. In fact, Dr. Young signed a statement on October 7, 1997 more than three (3) weeks before theOctober 29. 1999 surgery rendering an opinion that the plaintiff could return to that same regular job that he had also believed had caused her bilateral tunnel syndrome in the first place. Unlike Dr. Epling, Dr. Young is not trained and board certified in occupational medicine nor did he have the opportunity to view the defendants' videotape exhibit of the job that the plaintiff performed. Lastly, Dr. Young agreed with Dr. Epling's written opinion that: "Given Ms. Bryant's bilateral CTS, typical physical functional limitations should include very limited to no highly forceful or highly repetitive upper extremity work."
As noted above, Dr. Young "strongly disagreed" with Dr. Lacin's opinion that the plaintiffs work as a "trim and examine inspector" was not a "repetitive motion" type job.
With respect to Dr. Lacin, while it is correct that Dr. Lacin was originally designated by the plaintiff for a second opinion under G.S. §
Because of this view, Dr. Lacin initially rejected the plaintiff's specific request to render an opinion as to whether the plaintiff was at MMI with respect to hand injuries even though that MMI determination was a medical and legal prerequisite for providing the second opinion on the plaintiff's rating that Ms. Valenti did allow Dr. Lacin to provide. The extreme, biased, and unfounded nature of Dr. Lacin's opinions with respect to this case are clearly evident when one notes that he volunteered the view: ". . . that carpal tunnel syndrome was not demonstrated clearly as a work-related illness according to most job descriptions in the local industry [in which the plaintiff was employed]" when that opinion conflicted with the opinions of both of the treating physicians5, a board certified occupational health physician, the defendant employer's admission of the compensability of the occupational disease in this case, and published literature relevant to that causation issue that Dr. Lacin himself allegedly relied upon. In addition, unlike Dr. Epling, Dr. Lacin has no training or board certification in occupational medicine or any particular medical specialty.
Stephen D. Carpenter, M.S., CRC, is a vocational expert who has testified as such on numerous occasions before the Social Security Administration concerning whether or not a particular person is capable of performing any available jobs in a particular area. He is the only witness who is qualified to render a vocational opinion as to whether the plaintiff is able to perform any alternative employment other than her former position of employment with the defendant employer in light of her age, education, vocational background and training, the compensable physical impairments she has suffered to her hands, and any pre-existing medical impairments that may have pre-dated the August 7, 1997 date of injury for her compensable bilateral carpal tunnel syndrome in this case. Based upon the results and observations made by Mr. Carpenter in his own independent testing of the plaintiff, and his review of the relevant medical and vocational records, it was his unrebutted vocational opinion that the plaintiff is "not employable" in any alternative employment. Therefore, the plaintiff is permanently and totally disabled.
My vote is to reverse.
This 19th day of August 2002.
S/_____________ THOMAS J. BOLCH COMMISSIONER