Harrell v. Parks Chevrolet. (Lawyers Weekly No. 10-08-0789, 7 pp.) (Laura Kranifeld Mavretic, Commissioner) Appealed from Opinion & Award of Deputy Commissioner James C. Gillen. I.C. No. 896483.
Holding: As plaintiff attempted to remove a stuck bolt using a highly unusual amount of force and using highly unusual methods in contorted positions, plaintiff suffered a compensable injury to his left shoulder.
We affirm the deputy commissioner’s award of benefits, with some modifications.
On March 20, 2008, plaintiff was removing and replacing a vehicle bumper. The bolts on the bumper were rusted extensively and were therefore extraordinarily difficult to loosen and remove. Due to unusual space limitations, plaintiff could not use air tools to loosen the bolts.
The contorted positions plaintiff assumed to try to remove this bumper and the force required were not usual in his job. One particular bolt was apparently fused to the bumper. Plaintiff had never experienced this level of difficulty in removing a bolt.
Plaintiff used a three-foot-long “jack piper” over his ratchet wrench for additional leverage. Plaintiff tried to remove the bolt for 30 minutes. He bent the ratchet wrench in the process, something he had never done before. Eventually, the bolt had to be chiseled off.
After trying to remove the bumper, plaintiff had pain in his left shoulder, up his neck and down his arm. He reported the incident to his supervisor and tried to return to his regular job. Because of increasing pain and weakness in his left shoulder, plaintiff was put on light duty.
Plaintiff sought medical care for his shoulder beginning April 8, 2008. He was diagnosed with a full thickness rotator cuff tear, an AC separation and aggravation of his previously asymptomatic arthritis. Defendants denied plaintiff’s workers’ comp claim.
On May 16, 2008, plaintiff underwent a left shoulder arthroscopy and debridement procedure, including an arthroscopic subacromial decompression/acromioplasty, an arthroscopic distal clavicle resection, and a mini-open rotator cuff repair.
Plaintiff returned to his regular job for three days in July. He was unable to continue due to left-shoulder pain.
On Sept. 18, 2008, plaintiff’s doctor released him to return to work without restrictions; however, the defendant-employer told plaintiff he no longer had a job.
On Oct. 13, 2008, plaintiff’s doctor found him to be at maximum medical improvement with a 20 percent permanent impairment to the left arm. He assigned work restrictions prohibiting overhead work, heavy lifting, heavy torquing or twisting and repetitive heavy-impact activities.
The defendant-employer had no work available within plaintiff’s restrictions. Despite looking for work at numerous businesses, plaintiff has been unable to find a job due to the physical restrictions arising from his March 20, 2008, injury.
The “injury by accident” requirement of G.S. § 97-2(6) can be satisfied when a plaintiff is injured due to an extra or unusual degree of exertion, in that this can constitute an unforeseen or unusual event of condition. Furthermore, an injury is compensable if it is caused by an accident that arises out of employment, materially accelerates or aggravates a pre-existing condition, and proximately contributes to disability.
On March 20, 2008, plaintiff tried to remove an unusually difficult bolt using a highly irregular amount of force and out-of-the-ordinary methods in contorted positions, which resulted in an injury to his left shoulder.
Plaintiff’s work duties and the conditions experienced during the attempted removal of a bolt constituted an interruption of plaintiff’s normal work routine and the introduction thereby of conditions likely to result in unexpected consequences. Plaintiff’s unusual work duties and consequent extra and unusual amount of exertion on March 20, 2008, caused plaintiff’s injury.
This compensable injury by accident caused plaintiff’s left shoulder condition or materially accelerated or aggravated a pre-existing non-disabling condition.
Plaintiff was capable of some work but, after a reasonable effort on his part, has been unable to find suitable employment. Defendants have not shown that suitable jobs are available and that plaintiff is capable of obtaining a suitable job, taking into account plaintiff’s physical and vocational limitations.
As a result of the work-related injury by accident to plaintiff’s left shoulder on March 20, 2008, plaintiff was totally disabled and is therefore entitled to total disability compensation beginning May 10, 2008, and continuing until plaintiff returns to work or further order of the commission, excluding July 24, 25 and 28, 2008, when plaintiff attempted to return to work.
Plaintiff’s termination was for reasons related to his compensable workplace injury, for which a non-injured employee would not have been terminated.
Subject to G.S. § 97-25.1, defendants shall also pay plaintiff’s related medical expenses.