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Lakey v. U.S. Airways12/31/2002
PUBLISHED
On 29 May 1992, plaintiff, a flight attendant for defendant U.S. Airways, suffered a back injury when she was hit by a beverage cart during in-flight turbulence. Plaintiff and defendants entered into a Form 21 agreement which was approved by the North Carolina Industrial Commission (Commission) on 2 October 1992. The agreement noted that plaintiff suffered a "Low Back Sprain," that plaintiff's "average weekly wage ... at the time of said injury, including overtime and all allowances, was $413.73" and that defendants would pay plaintiff $275.82 beginning 30 May 2001 and continuing for "necessary weeks." Plaintiff returned to work in September 1992, and the parties entered into Form 26 agreements awarding plaintiff benefits for recurrent periods of total disability from 2 November 1992 through 5 December 1995.
On 3 January 1996, plaintiff was released to work 60 hours per month with no restrictions. Between that time and 6 February 1997, plaintiff had some periods where, due to increased back pain, she was taken out of work or confined to light duties. However, on 19 March 1997, Dr. Howard Jones, plaintiff's approved physician, noted "she has been working approximately 55 hours a month and ... doing very well .... She will ... increase to 65 hours duty in June 1997, and back to full 75 hours in July 1997 .... We will provide no permanent restrictions otherwise." By 1 July 1997, plaintiff was released to full-time status and was scheduled to work up to 80 hours per month.
On 17 July 1997, plaintiff's aircraft encountered turbulence, and plaintiff fell against the aircraft's galley wall, injuring her lower back. As a result, she saw Dr. Jones for follow-up treatments. Dr. Jones referred plaintiff to other physicians for various treatments, and although still complaining of pain on 20 January 1998, Dr. Jones released her absent full recovery because he had exhausted his treatments.
On 11 December 1997, plaintiff filed a Form 18 alleging she suffered a new injury arising from the 17 July 1997 incident. In the alternative, she alleged a change in condition. Based on plaintiff's previous wage level, defendants reinstituted disability benefits at $275.82 per week on 15 December 1997.
Beginning 21 May 1998, plaintiff saw her family physician, Dr. Maria Dichoso-Wood, who referred her for chiropractic and psychiatric therapy. According to plaintiff, this treatment proved helpful. Dr. Dichoso-Wood also referred plaintiff to a chronic back pain specialist and a pain specialist. The resulting treatments provided some relief to plaintiff; however, she has continued to experience lower back and leg pain such that she is prevented from earning wages in any employment.
On 30 July 1998, plaintiff filed a Form 33 requesting approval for her continuing medical treatments and for disability benefits. Defendants opposed approval on the ground that they have "provided plaintiff with necessary medical compensation." The matter was heard before the deputy commissioner, who found that plaintiff had suffered a new injury as a result of the incident on 17 July 1997. The deputy commissioner approved plaintiff's medical treatment and disability benefits of $494.53 per week based on an average weekly wage of $741.76. Defendant appealed to the Full Commission, which affirmed the deputy commissioner's award, except for payment of a whirlpool to be installed by plaintiff that was not prescribed as treatment.
Defendants contend the Commission erred (1) in excusing plaintiff from providing notice of her injury within 30 days as required by N.C. Gen. Stat. § 97-22 (2001), (2) in failing to find facts required by N.C. Gen. Stat. § 97-25 (2001) concernin
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