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Ward v. Floors Perfect8/6/2002
UNPUBLISHED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).
This case arises out of a workers' compensation claim filed by plaintiff David J. Ward. On appeal, plaintiff seeks review of the Industrial Commission's opinion and award ordering defendants Floors Perfect (the employer) and Penn National Insurance (the insurance carrier) to pay plaintiff reasonable medical expenses and partial compensation. The relevant facts are as follows: In 1997, plaintiff was self-employed and operated Floors Perfect, a floorcovering business. Plaintiff did much of the actual installation himself, working eight hours a day, six hours of which he spent on his knees. On 27 August 1997, plaintiff filed a workers' compensation claim alleging that, over time, he developed bilateral patellofemoral pain (damage to the knees) as a result of his occupation.
Plaintiff's Form 33, dated 3 February 1998, requested compensation at a rate of $532.00 per week for the days of work he missed, beginning 13 January 1997; payment of all medical expenses and treatment; payment for permanent partial disability as required by law; and payment for training in a new occupation. The Form 33 also requested a hearing before a Deputy Commissioner of the North Carolina Industrial Commission.
On 5 February 1998, Mr. Joe Griggs, a claims representative for the insurance carrier filed a Form 61 denying plaintiff's claim. Mr. Griggs' letter stated that, "Upon investigation, your claim does not meet the statutory requirements for accidental injury under General Statute 97-2. Medical expenses to this date will be paid." On 14 April 1998, defendants Floors Perfect and Penn National Insurance filed a Form 33R in response to plaintiff's request for a hearing. Defendants maintained that " ur investigation reveals that plaintiff did not sustain an injury by accident as defined by the Act and his injuries are not the result of an occupational disease."
On 26 June 1998, plaintiff's case was heard by Deputy Commissioner Kim L. Cramer in Raleigh, North Carolina. Deputy Commissioner Cramer found that plaintiff was 41 years old and wasattending community college in hopes of transferring to a four-year university and going on to law school. Since 1994, plaintiff owned and operated Floors Perfect, a business installing carpet, vinyl tile, and linoleum. Plaintiff did the floor installation himself and spent approximately six hours per day on his knees. Plaintiff had ten to fifteen years' experience in flooring work prior to opening Floors Perfect. When plaintiff suffered an unrelated back injury in September 1997, he stayed out of work until February 1998 and contracted out all his labor.
According to Deputy Commissioner Cramer, plaintiff did not sustain a specific injury on 27 August 1997; instead, he had been experiencing trouble with both his knees for several weeks prior to that date. On 27 August, plaintiff went to WakeMed's emergency room and told the staff he worked as a flooring installer and had experienced knee pain for about two months. He was advised to consult an orthopedic specialist. On 13 January 1998, plaintiff saw orthopedic surgeon Dr. George Callaway. Plaintiff related that he had experienced increasing knee pain for the past one to two years. Dr. Callaway took X-rays, which showed full range of motion on both knees, stable planes, and no effusion. Other tests ruled out any cartilage or ligament t
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