Bell v. Goodyear
The Bell decision is guided by the Parsons presumption, (Parsons v. The Pantry, Inc., 485 S.E.2d 867 (1997)) which holds that when additional medical treatment for a compensable injury is required, a rebuttable presumption arises in favor of the claimant that the treatment is directly related to the original compensable injury.
The claim arose from a right shoulder injury that occurred in May of 2007, when plaintiff was pulling and twisting a tire carcass and felt a “pop.” Plaintiff underwent shoulder surgery and the Deputy Commissioner concluded that plaintiff’s right shoulder injury was compensable. Plaintiff injured her right shoulder again in 2010 and the parties entered into a consent order agreeing the exacerbated right shoulder injury was a continuance of the compensable 2007 injury. In 2012, plaintiff was placed at MMI and given permanent restrictions. Defendant-Employer could not accommodate those restrictions so plaintiff did not return to work until 2013. In September of 2013, plaintiff felt another “pop” in her right shoulder while performing heavy lifting.
After plaintiff injured herself again in September of 2013, defendants filed a Form 28T, Notice of Termination of Compensation by Reason of Trial Return to Work, which indicated that plaintiff’s TTD benefits were terminated upon her trial return to work. In October of 2013, plaintiff was diagnosed with proximal biceps tendinitis and given new work restrictions which Defendant-Employer could not accommodate. Defendants did not reinstate plaintiff’s benefits. Plaintiff wanted her TTD benefits reinstated but defendants challenged whether or not her new work restrictions were causally related to the compensable 2007 shoulder injury.
The Deputy Commissioner ruled that plaintiff’s new injury and work restrictions were not related to the original compensable injury. Plaintiff appealed and the Full Commission reversed the decision on the basis that the Parsons presumption applied and defendants failed to rebut it. The Commission reviewed testimony from three physicians who examined plaintiff and made unchallenged findings of fact. Dr. Barnes testified that plaintiff’s shoulder surgery placed him at a higher risk of sustaining a bicep injury. Dr. Carroll testified that plaintiff’s shoulder surgery placed him at a higher risk for additional injury and that the bicep is a part of the same “complex” as the rotator cuff. Both doctors could not say to a reasonable degree of medical certainty that plaintiff’s 2013 injury was caused by her 2007 injury.
Defendants appealed and plaintiff cross appealed on the basis that defendants were required to immediately reinstate plaintiff’s disability upon her failed trial return to work thus plaintiff is owed sanctions. On appeal, defendants contended the injury sustained in September of 2013 was to the biceps tendon, which is a different part of the body from the rotator cuff. The Court of Appeals disagreed. Since the shoulder and bicep were a part of the same “complex” and both doctors testified the initial injury placed plaintiff at a higher risk for subsequent injury, the Court of Appeals affirmed the Full Commissions decision that defendants failed to rebut the Parsons presumption.
Additionally, The Court of Appeals ruled that plaintiff was entitled to immediate compensation because G.S. 97-32.1 states that if a trial return to work is unsuccessful, then plaintiff’s right to compensation must be unimpaired. Here, defendants were on notice of plaintiff’s failed trial return to work and they took the position that the failure was not related to plaintiff’s compensable injury. Defendants did not notify plaintiff or the Industrial Commission of their position and instead just terminated plaintiff’s TTD benefits. G.S. 97-18 provides that a plaintiff is owed a 10% penalty if compensation is not paid within 14 days. The Court of Appeals found that plaintiff was owed a 10% penalty because defendants never notified anyone that they were denying plaintiff’s right to compensation.
Practice Point
There is a concern that as a result of this case the Commission will find causation to an original compensable injury whenever the subsequent injury is part of the same “complex.” A recurrent injury close to the compensable body part will be presumed to be part of the same injury. This may subject the Carrier to ongoing benefits/resumption of benefits even if the reinjury appears to even be a new injury/accident. Furthermore, if you are planning on disputing the causal connection, be sure to notify the plaintiff as well as the Industrial Commission or it could open up exposure to a 10% penalty.
