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Nunnally v. Wal-Mart Stores8/6/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Defendants appeal the opinion and award of the Full Commission of the North Carolina Industrial Commission (the "Commission") awarding plaintiff worker's compensation benefits for his work- related injury . We affirm.
In 1998, Plaintiff was employed by Wal-Mart Stores ("defendant") in the tire shop of one of its Sam's Club stores. On 20 November 1998, plaintiff had difficulty removing the rim from atire and felt "a tingle in his back" when he attempted to pull up on the rim. Plaintiff worked through the end of his shift, but began feeling "pain in his arms and shoulders and his back and right leg" on his way home. Plaintiff reported his injury when he returned to work the next day. His personnel manager drove him to Western Wake Medical Center, where he was seen by Dr. Joseph Williamson.
Plaintiff reported pain in the right side of his neck and in his right shoulder, and was advised to do no lifting for three days. Plaintiff returned to Sam's Club on 23 November 1998 and was assigned light duty work, but he began experiencing back pain 30 minutes into his shift. That day, plaintiff went to Concentra Medical Center, and reported that he was having pain in his neck and lower back. The physician's assistant at Concentra signed a form allowing plaintiff to return to work with restrictions on his activities.
Plaintiff's pain continued so that he could not consistently report to work, even for light duty. He stopped reporting to work in the beginning of December. In January 1999, the radiology department at Wake Medical Center performed a cervical MRI and a lumbar MRI on plaintiff which showed a "small paracentral herniated disk at C6-7 and a herniated disk at L5-S1." On 11 March 1999, plaintiff went to see Dr. James Lawrence Frank, an orthopedic surgeon in Durham. Plaintiff's course of treatment under Dr. Frank is described later in this opinion.
After learning that Wal-Mart had denied his workers' compensation claim, plaintiff filed a Form 33 request for hearingwith the Industrial Commission. After a hearing, a Deputy Commissioner found that plaintiff sustained a compensable injury by accident in the course and scope of his employment with Wal-Mart, and awarded him compensation. Defendants appealed to the Full Commission, which affirmed the findings, conclusions, and award of the Deputy Commissioner in an Opinion and Award filed 15 February 2001. The Commission concluded:
1. On November 20, 1998 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer in that he sustained a specific traumatic incident of the work assignment. As a result plaintiff sustained injury to his neck and lower back. N.C. Gen. Stat. §97-2(6).
2. As a result of plaintiff's compensable injury by accident, plaintiff was unable to earn wages in any employment and was totally disabled from December 2, 1998 through July 29, 1999, and is entitled to temporary total disability compensation at the rate of $224.72 per week during this period. N.C. Gen. Stat. §97-29.
3. As a result of the compensable injury by accident, plaintiff is entitled to 30 weeks of compensation at the rate of $224.72 per week for the 10% permanent functional impairment to his back. N.C. Gen. Stat. §97-31(23).
4. Subject to the limitations
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