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[T] Crowder v. Preston Trucking Co.11/4/2003
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
The North Carolina Self-Insurance Guaranty Association ("defendant") appeals from an Industrial Commission opinion and award in a workers' compensation matter. Defendant succeeded Preston Trucking Company ("Preston") in this action because Preston became insolvent. Defendant argues four issues on appeal: (1) that the Commission was barred from hearing the matter due to lack of notice as required by N.C. Gen. Stat. ยง 97-22; (2) that the Commission failed to consider competent evidence in the record; (3)that the Commission's findings are not supported by competent evidence in the form of medical evidence; and (4) that the Commission erroneously calculated the amount of the award.
The evidence tends to show the following. In May 1999, plaintiff was employed by Preston as a truck driver. On 19 May 1999, while driving Preston's truck from Ohio to Charlotte, North Carolina, plaintiff ran over a bump in the highway somewhere in West Virginia, causing his "air-ride" truck seat to "bottom out." Plaintiff testified that he immediately felt pain in his lower back and pulled off to the side of the road to walk around. Plaintiff drove on to Charlotte, North Carolina, where he personally unhooked the tandem trailers he was pulling. After arriving in North Carolina, plaintiff pushed the dolly of the tandem trailer and felt an additional aggravation of his back pain.
On 20 May 1999, the day after the accident, plaintiff continued to experience pain in his back. Plaintiff, who usually worked third shift, felt unable to work that evening and called Preston's central dispatch office in Maryland and reported his back injury. Plaintiff testified that before returning to work he called the central dispatch office and was referred to Ms. Jean Farmer, the company nurse, in order to be cleared to return to work. Plaintiff testified that Ms. Farmer cleared him to return to work that night. Plaintiff returned to work on 24 May 1999.
Plaintiff continued to work for Preston until approximately 24 July 1999, when the company laid him off in anticipation of their filing for bankruptcy . Plaintiff then found a new job driving forYellow Freight. Plaintiff began driving for Yellow Freight on 2 August 1999 but had to stop on 30 September 1999 because of the pain in his back.
Plaintiff had complained of back pain to his family physician on 11 February 1999, three months before his injury on 19 May 1999. Plaintiff reported to the doctor that he mainly experienced the pain while doing activities that required him to stand. Plaintiff's back pain did not radiate down his legs. The doctor ordered an x-ray in February 1999 which showed possible degenerative disc disease at multiple levels in the lower lumbar spine.
Plaintiff sought further medical care in October 1999 and was eventually referred to Dr. Elmer Pinzon, a physician with a specialty in physical medicine rehabilitation at Charlotte Orthopedic Specialists. Plaintiff first saw Dr. Pinzon on 7 January 2000. Plaintiff complained then of back pain that radiated into his lower extremities. Dr. Pinzon ordered several tests, including a magnetic resonance imaging (M.R.I.) exam, and an electromyography (E.M.G.) nerve conduction study. Dr. Pinzon found evidence of degenerative disc disease with signs of lumbar radiculopathy. Plaintiff was not a candidate for surgery at that time.
The Deputy Commissioner, after hearing all the evidence, found that plaintiff sust
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