Workers’ Compensation – Previous Injury – Aggravation of Injury

Gardner v. McLean. (Lawyers Weekly No. 10-16-0825, 14 pp.) (Barbara Jackson, J.) Appealed from Industrial Commission. (J. Brad Donovan, Commissioner). N.C.App. Unpub.

Holding A worker who is injured on the job can be compensated even after he had suffered  a previous compensable injury with another employer.

Affirmed in part, reversed in part, and remanded.

Facts

 In May 2006, plaintiff suffered an admittedly compensable injury while working at a Taco Bell owned by defendant McLean. Plaintiff suffered an electrical shock while changing a light bulb and fell from the ladder he was standing on. He suffered a back injury. After several months of treatment, his physician said he had reached maximum medical improvement and assigned a 15 percent permanent disability to his back.

 In December 2006 plaintiff went to work for an IHOP restaurant in New Bern owned by defendant-appellant Meisner. His weekly wage was about $200 greater than he had earned at Taco Bell. In May of 2007, he suffered another back injury when he reached for a dropped spatula. He was unable to continue the shift. After the plaintiff complained of constant and stabbing pain, his physician wrote him out of work and told him to return part time to light-duty work.

 Plaintiff testified that when he contacted defendant-appellant about his work restrictions, he was told there was no work of that kind available. He then got a job at a Wendys in Tarboro. In August 2007, his back pain became severe. He was taken to the emergency room, where severe disc degeneration was revealed. His physician noted compression on a nerve, which was relieved during surgery. He was released for light-duty work at Wendys, where he is currently employed.

 The Industrial Commission ordered defendant-appellant to pay workers compensation benefits and attorneys fees to plaintiff.

Discussion

 Defendant-appellant argues that the commission erred in concluding that the plaintiff sustained an injury from a traumatic incident in May 2007 while working at the IHOP and contends the injuries are a continuation of his previous injury. Defendant-appellant argues that the commission should not have found the physician’s testimony to be credible. We disagree.

 The plaintiff in a workers compensation claim bears the burden of proving each element of compensability, including causation. However, a pre-existing condition does not bar a claim. The work-related injury need not be the sole cause of the problems.

In the case before us, the commission found that based upon the greater weight of the evidence, plaintiff suffered a specific traumatic injury in May 2007 while working for defendant-appellant at the IHOP. This finding of fact is supported by competent evidence. The plaintiff’s physician testified that in his opinion the IHOP incident was a significant contributing cause of plaintiff’s need for surgery in August 2007. The commission found that the greater weight of the evidence favored plaintiff and gave little credibility to defendant-appellant’s witnesses.

 Defendant-appellant argues that defendant McLean, owner of the Taco Bell, failed to rebut the presumption that plaintiff’s medical treatment was a direct result of the compensable injury at Taco Bell. Defendant-appellant argues that the commission erred when it concluded that there was evidence to overcome any presumption that additional medical treatment was directly related to the earlier compensable injury, and defendant-employer McLean was not responsible for any benefits.

If the aggravation of a claimants injury is a natural consequence that flows from the primary injury and not the result of an independent intervening cause, then the aggravation is compensable. In the case before us, the physician testified that the plaintiff had earlier reached maximum medical improvement from the Taco Bell injury, and that the IHOP injury was a significant contributing cause to his need for surgery. The full commission made findings of fact that the conditions necessitating the surgery were not causally related to the earlier incident.

We agree with defendant-appellant that plaintiff has not proved that he suffers from an ongoing disability from the IHOP incident ant that the award of temporary partial benefits is unsupported by the findings of fact and conclusions of law. The Workers’ Compensation Act defines disability as one’s incapacity to earn wages that were received at the time of the injury. Although unchallenged findings of fact show that plaintiff is currently earning a lesser wage than he was earning while employed by defendant-appellant, the findings fail to demonstrate that the lower wage is a result of his disability. We remand for entry of findings of fact and conclusions of law with respect to the disability.