Lead Opinion

The Full Commission has reviewed the Deputy Commissioner's Opinion and Award based on the record of the proceedings before the Deputy Commissioner. Having reviewed the competent evidence of record, the Full Commission affirms the Opinion and Award with minor modifications.

At the time of the evidentiary hearing the parties entered into the following matters as:

STIPULATIONS 1. At all times relevant hereto the parties were bound by and subject to the North Carolina Workers' Compensation Act.

2. Plaintiff sustained a compensable injury by accident on August 12, 1998.

3. At all times relevant hereto the employer-employee relationship existed between plaintiff and employer-defendant.

4. At all times relevant hereto, defendant-carrier listed above was the carrier on the risk.

5. On August 12, 1998, plaintiff's average weekly wage was Four Hundred Seventy-Two and 50/100 Dollars ($472.50), yielding a compensation rate of Three Hundred Fifteen and 02/100 Dollars ($315.02).

********** Based upon the Stipulations and the competent evidence of record, the Full Commission enters the additional:

FINDINGS OF FACT 1. On August 12, 1998, plaintiff sustained an injury by accident as the result of which he sustained injuries to his back and right leg.

2. On July 27, 1999, plaintiff came under the care of Dr. Kern T. Carlton at The Rehab Center. Plaintiff finished the rehabilitation program in August, 1999, had made excellent progress, and was discharged at that time. Plaintiff sustained an aggravation of his injury in December 1999 and returned to The Rehab Center for treatment.

3. On February 15, 2000, plaintiff sustained a fall in the bathroom of his home. Thereafter, plaintiff was seen at the Frye Regional Medical Center Emergency room on the date of the fall. The emergency room record reflects that plaintiff reported falling that morning. On February 16, 2000, Dr. Herbert J. Schulten treated plaintiff. At that time, plaintiff's medical records reveal that he slipped on something and fell in his bathroom at home. Plaintiff testified that he fell as the result of his left leg giving way.

4. Dr. Carlton was treating plaintiff at The Rehab Center in January, 2000. Dr. Carlton testified that the symptoms plaintiff was experiencing in January 2000 were those that he had experienced following the injury by accident in August 1998, specifically, pain in his back and right leg. Dr. Carlton could offer no explanation as to why plaintiff's left leg would give out and could not state to any reasonable degree of medical certainty that plaintiff's fall was in any way a consequence of the original injury that occurred in August 1998. In his deposition, Dr. Carlton reviewed plaintiff's medical records and could not find a history that his left leg gave out before the February 2000 fall. Dr. Carlton also testified plaintiff had pain in his right leg but that he had not observed weakness in plaintiff's leg and could not give any explanation as to why the left leg gave way.

5. Plaintiff has failed to present any medical evidence to establish that his fall was in any way a direct and compensable consequence of the injury by accident that occurred on August 12, 1998.

********** The foregoing Stipulations and Findings of Fact engender the following:

CONCLUSION OF LAW Plaintiff failed to prove that his fall on February 15, 2000, was a direct and compensable result of the original injury by accident that occurred on August 12, 1998. G.S. § 97-2(6).

********** Based upon the foregoing Stipulations, Findings of Fact and Conclusions of Law, the Full Commission enters the following:

ORDER 1. Plaintiff's claim is DENIED.

2. Each side shall pay its own costs.

S/______________ RENE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

DISSENTING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

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Dissenting Opinion

I respectfully dissent from the majority decision to affirm the Deputy Commissioner's denial of plaintiff's claim for medical compensation in this case.

The facts in this case are as follows: On 12 August 1998, plaintiff suffered an injury by accident to his back and right leg. Plaintiff's injuries and the resulting disability were admitted as compensable in a Form 21 Agreement for Compensation for Disability, filed on 28 October 1999. Plaintiff was treated and returned to work in Fall 1999. When plaintiff returned to work he experienced flare-ups of his compensable condition, including spasms in his right leg. In January 2000, plaintiff was again written out of work by his treating physician, Dr. Kern T. Carlton. Defendants did not contest plaintiff's return to total disability and resumed payments of temporary total disability compensation. On 15 February 2000, while remaining totally disabled, plaintiff was injured in a fall in his bathroom. Plaintiff testified that he rose at night to use the bathroom. He used crutches to get from the bed to the bathroom, then left the crutches by the door and entered the bathroom. He used his right hand to support himself on the sink. As he attempted to move past the sink, his right leg began to spasm. His left leg gave out and plaintiff fell, hitting his left hand against the bathtub. As a result of his fall, plaintiff fractured the 5th metatarsal of his left hand. Plaintiff was treated for his injury and ultimately recovered fully. In the instant case, plaintiff seeks a total of $814.00 in medical expenses for treatment of his left hand. He does not contend that he incurred any additional disability to his back and right leg as a result of the fall.

The majority has based its decision to deny medical compensation for plaintiff's left hand injury on plaintiff's failure to present medical evidence sufficient to establish that the left leg weakness which caused plaintiff's fall is causally related to his admittedly compensable injury. I contend that it is not necessary to present such evidence. Rather, plaintiff must show that the fall in which he injured his hand was due, at least in part, to his compensable condition.

The aggravation of an injury or a distinct new injury is compensable as follows: "When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct." Roper v. J.P. Stevens Co., 65 N.C. App. 69, 308 S.E.2d 485 (1983) (quoting Starr v. Paper Co., 8 N.C. App. 604, 175 S.E.2d 342,cert. denied, 277 N.C. 112 (1970)). The Supreme Court has defined "intervening cause" in the context of the Workers' Compensation Act as an occurrence "entirely independent of a prior cause. When a first cause produces a second cause that produces a result, the first cause is a cause of that result." Petty v. Transport, Inc., 276 N.C. 417, 173 S.E.2d 321 (1970).

In this case, there is sufficient medical evidence to support the conclusion that plaintiff's compensable condition of his right leg and back contributed to the fall which resulted in an injury to his left hand. At the time of plaintiff's fall he was experiencing a spasm in his right leg, which would not support his weight. Then, his left leg gave out and plaintiff was unable to maintain his balance and fell. Dr. Carlton testified that had plaintiff had a normal back and right leg, he "would probably be less likely to lose his balance or to fall." Accordingly, the first cause, plaintiff's compensable injury and resulting right leg spasm, produced the second cause, his inability to maintain his balance when his left leg gave out, which produced the resulting injury to his left hand. Plaintiff's left leg weakness does not constitute an intervening cause entirely independent of the prior cause.

For this reason, I vote to reverse the Opinion and Award of the Deputy Commissioner and to award medical benefits to plaintiff for the injury to his left hand.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER