Workers’ Compensation – Notice – Causation – Expert Evidence – Suitable Work – Refusal & Justification

Kee v. Waffle House, Inc. (Lawyers Weekly No. 012-083-16, 21 pp.) (Mark Davis, J.) Appealed from the Industrial Commission. N.C. App. Unpub.

Holding: Even though plaintiff’s workers’ compensation claim was filed more than two years after her accident, her claim was timely under G.S. § 97-24(a)(ii) since it was brought within two years of defendants’ last payment of medical compensation.

We affirm the Industrial Commission’s award of medical benefits but reverse and remand its award of disability benefits.

Plaintiff’s workers’ comp claim alleges that she was injured on May 18, 2010 – six days before the date of injury listed on defendants’ Forms 19 and 63. Nevertheless, all of these documents clearly refer to the same incident.

Despite the differing dates of injury noted on the respective forms, it is undisputed that (1) only one incident took place in May 2010 in which plaintiff tripped and fell over a telephone cord and (2) defendants had been paying medical compensation to plaintiff for injuries she sustained from that incident. The last medical compensation payment defendants made for the treatment of injuries stemming from this fall occurred on March 20, 2012. Plaintiff’s claim was brought on March 1, 2013, which was within two years of that date and was therefore timely.

Plaintiff’s orthopedic surgeon and her neurologist testified that plaintiff’s right elbow lateral epicondylitis, carpal tunnel syndrome and cubital tunnel syndrome were all causally related to her fall at work. Both doctors based their opinions on their physical examinations of plaintiff, EMG test results, plaintiff’s reports of how the injury occurred and her symptoms, and their experiences treating other patients. Although defendants’ expert witness – an orthopedist – believed that only the right elbow lateral epicondylitis was caused by the fall, it was within the Commission’s purview to choose to give greater weight to plaintiff’s doctors.

We reject defendants’ assertion that plaintiff’s doctors’ opinions must be disregarded because plaintiff’s lack of documented symptoms during certain medical visits refutes their theories that plaintiff’s symptoms continuously progressed since the date of the injury. Both doctors explained that it is common for the symptoms and pain related to carpal tunnel syndrome to wax and wane. Indeed, plaintiff’s orthopedic surgeon specifically testified that plaintiff’s occasional lack of symptoms did not change his opinion on causation

Plaintiff testified that she resigned because she was assigned to a different shift (which left her unable to care for her elderly husband and sister). The Industrial Commission’s opinion does not address whether plaintiff’s refusal of employment constituted an unjustified refusal of suitable employment. We must remand for a determination of whether (1) the proffered position was suitable at the time plaintiff refused it and (2) plaintiff’s refusal of the position was justified.

Affirmed in part; reversed and remanded in part.