Workers’ Compensation – First & Second Traffic Accidents – Temporary Flare Up – Ongoing Disability

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Plaintiff presented evidence that, after his compensable 2014 traffic accident, he suffered from severe and constant pain in his neck and back, decreased mobility, difficulty sleeping, joint pain, muscle spasms and tingling, and tenderness in his neck, lower back, and right hip, and that all of these conditions would still be continuing today with or without his compensable 2015 traffic accident. Moreover, plaintiff had notified the defendant-employer prior to the 2015 accident that he could not continue his employment due to his physical conditions (he was filling in until the employer could hire his replacement when the second accident occurred). Plaintiff’s evidence supports the Industrial Commission’s finding that the 2015 accident caused a mere temporary flare-up of plaintiff’s pain from the 2014 accident.

We affirm the Commission’s conclusion that the defendant-carrier is liable for plaintiff’s continuing medical treatment and for his disability up to Dec. 28, 2015. We reverse the Commission’s award of ongoing disability benefits after that date.

By the time of the 2015 accident, the employer’s workers’ compensation coverage had lapsed. If plaintiff’s ongoing medical expenses and disability arose from the 2015 accident, the carrier would not be liable therefor.

However, plaintiff was still in the course of his treatment for the 2014 accident when the 2015 accident occurred. Plaintiff did not seek treatment for any injuries on the day of the 2015 accident, which he described as a “fender-bender.”

Plaintiff’s physicians also testified that in their opinion, the 2015 accident would not have caused plaintiff the extensive pain he was in at that time and going forward. Finally, although the carrier correctly contends that the aggravation of a primary injury is compensable, such compensability relates back to the primary injury, for which the carrier is solely liable.

Because the Commission’s findings and conclusions that plaintiff’s current neck and back conditions are related to the 2014 accident are supported by competent evidence in the record, we affirm this portion of the opinion and award.

Ongoing Disability

The record lacks competent evidence to support the Commission’s finding that plaintiff has been totally unable to work since December 2015.

The Commission concluded that plaintiff had established disability through the production of medical evidence that he is physically or mentally, as a consequence of his work-related injury, incapable of work in any employment.

However, as of Dec. 28, 2015, none of plaintiff’s treating physicians had ever instructed plaintiff to remain out of work indefinitely “pending receipt of conservative treatment measures.” Moreover, any lack of conservative treatment – which plaintiff consistently turned down – did not preclude plaintiff from at least searching for work, but there is no evidence that plaintiff searched for work – or that a search would have been futile due to pre-existing conditions – following his Dec. 28, 2015, appointment with Dr. Mikles. Absent such a showing, plaintiff has failed to establish total disability.

Because the record is wholly devoid of medical or other competent evidence to support the finding that plaintiff has been totally unable to work since Dec. 28, 2015, and because plaintiff has failed to meet his burden of showing he is incapable of earning wages, we hold that the Commission erred in concluding plaintiff established ongoing disability and in extending plaintiff’s benefits beyond that date.

Affirmed in part; reversed in part.

Stippich v. Reese’s Transit, Inc. (Lawyers Weekly No. 011-235-18, 20 pp.) (Rick Elmore, J.) Joseph Tunstall III for plaintiff; James Jordan, Sarah Blount, Joy Brewer and Kenneth Menzel for defendants. N.C. App.