Workers’ Compensation – Aggravation of Pre-Existing Condition – Apportionment – Medical Expenses – Speculation

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Burroughs v. Laser Recharge of Carolinas, Inc. (Lawyers Weekly 10-16-0932, 9 pp.) (John C. Martin, Ch.J.) Appealed from the Industrial Commission. N.C. App. Unpub.

Holding: The Industrial Commission did not err in finding that the plaintiff’s compensable injury aggravated his pre-existing conditions, and that the plaintiff was entitled to compensation for medical expenses incurred in the treatment of his pre-existing medical conditions.

Facts

The plaintiff was a delivery driver. He suffered a herniated cervical disk while working, and his workers’ compensation claim was accepted by the defendants as compensable.

The plaintiff’s preexisting health conditions included hypertension, hypercholesterolemia, diabetes, complications of diabetes, high blood pressure, gout, depression and anxiety. The plaintiff’s family doctor testified that the plaintiff’s other pre-existing health conditions were aggravated by his neck injury. He also testified that plaintiff will require significant future treatment for all of those conditions, and that to attempt to apportion the percentage of each of the plaintiff’s medical conditions that were work-related as compared to those that were not would be speculative.

The deputy commissioner entered an opinion and award finding the plaintiff to be permanently and totally disabled and entitled to medical compensation for his pre-existing medical conditions. The full commission affirmed the deputy commissioner’s decision, and the defendant appealed.

Compensability of Pre-Existing Conditions

The defendants argued that the commission erred in concluding that the plaintiff’s pre-existing medical conditions were compensable.

The defendants acknowledged that the commission found plaintiff’s compensable injury had aggravated his pre-existing conditions. However, the defendants argued that the aggravation must be material and, absent a showing of materiality, aggravated pre-existing conditions are not compensable.

Our cases have not uniformly required a showing of materiality. Instead, in Moore v. Federal Express, 162 N.C. App. 292 (2004), we held that an aggravation of a pre-existing condition caused by a work-related injury is compensable under the Workers’ Compensation Act.

Accordingly, we hold that the commission did not err in basing its award upon a finding that the plaintiff’s compensable injury aggravated (as opposed to materially aggravated) his pre-existing conditions.

Apportionment

The defendants argued that the commission erred in awarding medical compensation beyond what was or will be the result of the compensable injury.

Citing Errante v. Cumberland County Solid Waste Management, 106 N.C. App. 114 (1992), the defendants maintained that the commission must ensure that the medical expenses were incurred as a result of the compensable injury.

However, unlike Errante, the commission in this case ruled that the plaintiff is entitled to have the defendant pay for medical expenses incurred “as a result of the compensable injury.” There is no need for the commission to specify that the defendant is liable only for the expenses incurred as a result of his compensable injury.

Furthermore, under Harrell v. Harriet & Henderson Yarns, 314 N.C. 566 (1985), where the medical evidence did not permit any reasonable apportionment of the disability between occupational and non-occupational lung disease and where a doctor characterized the task of doing so as “speculative,” the plaintiff was entitled to an award for the entire disability.

Here the treating physician testified that to apportion the percentage of each medical condition which is work-related and non-work-related would be speculative. The commission therefore did not err in concluding that the plaintiff is entitled to compensation for medical expenses incurred in the treatment of his pre-existing conditions.

Affirmed.