The benefits of waiting

The state’s Industrial Commission recently reversed a deputy commissioner’s decision and reinstated a 57-year-old former janitor’s disability payments that had been put on hold in 1998. It also ordered the state to pay more than $50,000 he had been denied over the past five years.

“I think the decision is significant because of the retroactive award,” said plaintiff’s attorney Martin J. Horn.

The Industrial Commission also denied the defendant’s motion to dismiss in Poole v. UNC and ruled that the plaintiff is entitled to ongoing medical benefits.

Carl Poole was 35 years old and working on the housekeeping staff of UNC’s Morehead Planetarium when he hurt his lower back while moving tables across campus in April 1992. Two months later, UNC stipulated Poole’s claim for a back injury in an agreement for compensation for disability. The state agreed to pay him $186.14 per week for an undetermined time.

Back surgery in May 1993 did not cure Poole’s pain and neither did physical therapy. Following his injury and recovery, Poole worked as a housekeeper at the university in a reduced physical capacity. Constant pain led him to become depressed, and at times he told his doctors that he had suicidal and homicidal thoughts. He sought help from physicians and psychiatrists, who moved him in and out of a restricted work status, depending on his physical and psychological state. He took a variety of painkillers and antidepressants, including Methadone, Vioxx, Percocet, Welbutrin and Celebrex, and he began to abuse alcohol. On one occasion his psychiatrist sought to have him committed

In November 1995, Poole filed a request to have the state pay for his psychiatric treatment, which it approved. In its decision, the Industrial Commission found that the state accepted responsibility for Poole’s psychiatric treatment, based on his doctor’s opinion that Poole’s depression and anxiety were causally related to the chronic pain stemming from his workplace injury.

The state enrolled Poole in a vocational rehabilitation program but his participation was intermittent. In 1997, Poole turned down a job as a taxi dispatcher though his doctors had deemed him physically and psychologically able to do the work at that time.

After many failed attempts by the state to enroll Poole in a vocational rehabilitation program, the state in July 1998 applied for and received permission to suspend payments to Poole until he made “a proper showing that he was willing to comply with rehabilitation efforts.”

In May 2007, Poole filed a claim to have his benefits reinstated.

At a hearing before a deputy commissioner in 2008, Poole testified that he was in constant pain, which is why he did not attempt to return to work 10 years earlier. But he also testified that if he could find a job that would accommodate his physical limitations, he would pursue it, and that he would attend job fairs and vocational rehabilitation.

In November 2010, a deputy commissioner dismissed the claim. Poole appealed to the full commission.

During their review, commission members realized some files pertaining to Poole’s case were missing from the record. The commission found the old files and sent Poole’s case back to another deputy commissioner for a second review. That deputy commissioner also denied the claim, and the full commission reversed the decision on appeal.

“This was, procedurally, at the Industrial Commission, completely strange,” Horn said.

In its decision, the Industrial Commission ruled that once Poole agreed to resume vocational rehabilitation efforts in 2008, his benefits should have been reinstated. The state’s termination of them in 1998 did not negate the assumption of disability that the state approved in its original 1992 agreement with Poole.

The commission further found that Poole’s doctor’s testimony supported his claims that his chronic pain, depression and anxiety were causally related to his workplace injury. The commission also found that Poole was has been incapable of working in his pre-injury employment since his injury.

One commissioner dissented, saying that Poole’s promise to seek work was not enough to merit reinstatement of his temporary total disability.

The state is expected to appeal the decision.

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VERDICT REPORT: WORKERS’ COMPENSATION

Injuries alleged: Chronic back pain, depression, anxiety

Case name: Carl H. Poole v. UNC at Chapel Hill, and Corvel

Case number:  I.C. File No.: 239480

Tried before: N.C. Industrial Commission

Date of decision: Aug. 27

Amount: Approximately $51,000, plus future payments

Attorney for plaintiff: Martin J. Horn of Horn & Vosburg (Durham)

Attorneys for defendant: Karissa Davan, N.C. Assistant Attorney General (Raleigh)

Has the plaintiff been successful in collecting the judgment? No