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[T] Rhodes v. Hersek Express6/3/2003
UNPUBLISHED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).
Plaintiff was employed as a long-distance truck driver for defendant. After loading his truck with materials at various locations, plaintiff would drive with a partner to California on trips lasting between five and seven days. Defendant paid plaintiff $600.00 per trip to California.
On 10 July 1992, plaintiff injured his back when he adjusted the load in his truck by moving a roll of cloth. He immediately felt a burning sensation in his back. After completing his duties for that day, Rocky Hersek ("Hersek"), owner of defendant, droveplaintiff to the emergency room where plaintiff was diagnosed with a lumbar strain.
When plaintiff's back pain did not subside, he began seeing Dr. Karl Jordan ("Dr. Jordan"), a chiropractor. Dr. Jordan treated plaintiff from 13 July through 4 August 1992 with spinal manipulation and physical therapy. Plaintiff continued to have back pain, and Dr. Jordan referred him to Dr. Raymond Sweet ("Dr. Sweet"), a neurosurgeon.
Before being evaluated by Dr. Sweet, plaintiff sought treatment from another chiropractor, Dr. Mark Cook ("Dr. Cook"). Dr. Cook treated plaintiff on a regular basis until 20 June 1994.
Plaintiff first saw Dr. Sweet on 21 October 1992, when he initially was diagnosed with a ruptured disc at L4-L5 on the left with damage to the L5 nerve root. Dr. Sweet ordered an MRI which revealed a compression fracture at L-4 of plaintiff's spine. Dr. Sweet recommended plaintiff obtain a bone scan and undergo physical therapy, which plaintiff did not seek due to his inability to pay for the treatment. Dr. Sweet again evaluated plaintiff on 13 July 1999, and found plaintiff to have reached maximum medical improvement with a fifteen percent (15%) permanent partial impairment of his back due to the compression fracture.
Defendant denied plaintiff's workers' compensation claim that he was injured by accident while working for defendant on 10 July 1992. On 31 January 1995, a hearing on the issue of the compensability of plaintiff's injury was conducted by a Special Deputy Commissioner of the North Carolina Industrial Commission("Commission"). On 8 April 1997, the Deputy Commissioner filed an Opinion and Award finding plaintiff suffered an injury by accident arising out of and in the course of his employment and directing the parties to confer and attempt to resolve the remaining issues.
Defendant appealed the Deputy Commissioner's Opinion and Award. The Full Commission conducted a hearing on 8 October 1997, resulting in an Interlocutory Opinion and Award filed 12 June 1998 which affirmed the Deputy Commissioner's decision.
The parties failed to resolve the remaining issues, and the case came on for another hearing before a Deputy Commissioner on 25 June 1999. On 24 May 2000, the Deputy Commissioner filed an Opinion and Award concluding that (1) plaintiff's average weekly wage on 10 July 1992 was $261.24, which yielded a compensation rate of $174.14; (2) plaintiff sustained a compensable injury by accident as the direct result of a specific traumatic incident of the work assigned; (3) plaintiff was totally disabled due to his injury by accident from 11 July 1992 through 13 July 1999, when he reached maximum medical improvement, and he was entitled to total disability compensation during that period; (4) plaintiff was no long
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