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Saunders v. Edenton OB/GYN Center6/16/2000
Appeal by defendants pursuant to N.C.G.S. § 7A-30(2) from an unpublished decision of a divided panel of the Court of Appeals, 134 N.C. App. 733, 527 S.E.2d 94 (1999), affirming an opinion and award entered by the North Carolina Industrial Commission on 15 July 1998. On 2 December 1999, this Court allowed defendants' petition for discretionary review as to additional issues. Heard in the Supreme Court 14 March 2000.
This case arises from proceedings before the North Carolina Industrial Commission (the Commission) and primarily raises the issues of whether, under the facts of this case, there was an ongoing presumption of total disability in favor of plaintiff and, if so, whether defendants rebutted that presumption.
On 7 December 1992, plaintiff Barbara Saunders, an employee of Edenton Ob/Gyn Center (Edenton), was injured while attempting to break the fall of a patient who had fainted. Ms. Saunders stopped working on 31 December 1992 because of back pain resulting from her injury. The parties executed a Form 21, "Agreement for Compensation for Disability," on 28 January 1993, which the Commission approved on 19 March 1993. The agreement specified plaintiff had returned to work on 28 January 1993 and had received $231.68, the compensable amount applicable to plaintiff for total disability pursuant to N.C.G.S. § 97-29, for the four weeks she was out of work between 31 December 1992 and 28 January 1993. On 14 April 1993, the parties executed a Form 26, "Supplemental Memorandum of Agreement as to Payment of Compensation," which the Commission approved on 24 May 1993, reflecting that plaintiff did not actually return to work at Edenton until 8 March 1993, at which time her weekly earning power "was increased" from "$-0-" to "varies" for "necessary" weeks, and wherein the parties agreed that plaintiff had a disability of "temp. partial disability."
As of 2 June 1993, plaintiff's physician noted that plaintiff was working full time, although she was not performing any significant lifting and continued to experience pain and tightening in her neck. Plaintiff was assessed as having reached maximum medical improvement on 21 September 1993, and on 30 December 1993, Dr. Helen Harmon assigned a three percent permanent partial impairment rating to plaintiff's cervical spine.
Plaintiff worked full time until 20 October 1993, at which time she resigned from her position at Edenton because of pain from her injury and stress from the lack of sleep caused by her pain. Although plaintiff asked her office manager if there was a lighter-duty job in the Edenton office, the manager advised plaintiff that no such job was available.
In 1994, plaintiff worked as a secretary two to four hours per week for Saunders & Sons, Inc., a family-owned construction company, and earned $37.53 per week, for a total of $3,600.00 in 1994. After a year, she left that employment because the company could no longer afford to pay her, and on 5 May 1995, she found employment at Chowan Hospital as a ward secretary. Plaintiff worked thirty-six hours per week until she resigned on 17 September 1995 because of the recurrence of symptoms associated with her 1992 back injury, including muscle spasms and pain and stiffness in her neck and back. Plaintiff earned a total of $4,180.24 working for Chowan Hospital.
On 29 March 1995, plaintiff filed a Form 33, "Request that Claim be Assigned for Hearing," indicating that she believed she was entitled to permanent total disability from the date of her resignation from Edenton on 20 October 1993. The case was heard by a deputy commissioner, who filed an opinion and award on 18 September 1997 concluding defendants had successfully rebutted the pre
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