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Russell v. Food Lion12/3/2002
UNPUBLISHED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).
Plaintiff Richard Russell is a 58-year-old man, who has been diagnosed with spondylolisthesis, a degenerative disc disease, in his lower back. Plaintiff underwent a diskectomy and spinal fusion in that area in 1964, after suffering a football injury . Plaintiff has a GED and has approximately two years of community college education. Plaintiff's work history consists primarily of manual labor jobs. On or about 29 June 1994, plaintiff was employed with defendant Food Lion, Inc., when he sustained an injury to his back, during and in the course of employment with defendant-employer as a part-time bagger. After the accident, plaintiff continued to perform his job duties until on or about 14 December 1994, when he quit his job with defendant-employer for reasons unrelated to his June 1994 compensable injury. In June of 1995, plaintiff began employment as a dockhand -- a job which required that he refuel boats, mow grass, pick up trash, and pull heavy lines to tie up boats.
Plaintiff thereafter filed his original claim against defendant-employer seeking worker's compensation benefits. The medical testimony submitted by plaintiff's several doctors tended to show that plaintiff had suffered a compensable injury on or about 29 June 1994, while in the employ of defendant-employer; that plaintiff had never been taken out of work by his treating physicians; and that by the time he last saw Dr. Randall Sherman, a neurosurgeon, in April 1996, plaintiff had reached maximum medical improvement. Based upon the plaintiff's medical evidence, the Commission found and concluded, in an opinion and award filed 8 April 1997, that plaintiff's June 1994 back injury was compensable and that defendant had a 5% permanent partial impairment of the back. The Commission, therefore, awarded plaintiff benefits under G.S. 97-31(23). As a consequence, defendant-employer's claims administrator, Risk Management Services, Inc., issued a check in the amount of $1129.20 toplaintiff on 18 May 1998.
After experiencing some discomfort in his back, plaintiff filed a motion in the Industrial Commission seeking to have defendant-employer provide additional medical care and treatment under G.S. 97-25. This motion was allowed by the Commission, and plaintiff was examined by Dr. Sherman, the neurosurgeon who had previously treated plaintiff after his June 1994 back injury .
Dr. Sherman examined plaintiff on 16 February 1999, and found plaintiff's condition to be "pretty much the same" as when he last saw plaintiff in April of 1996. Because of plaintiff's complaint of continuous pain, the doctor, however, became concerned that plaintiff's previous spinal fusion was not solid. Dr. Sherman, therefore, referred plaintiff to Dr. J. Abbott Byrd, III, an expert in spine instrumentation fusion. Dr. Byrd saw plaintiff just once, on 5 April 1999 before opining that "the present symptoms and thus necessity for the myelogram and CT scan and possible surgery are related to this work injury of June 1994 at Food Lion." Defendant has not been employed since May 1999.
On or about 15 May 2000, plaintiff filed a motion for change of condition pursuant to G.S. 97-47 for additional benefits for permanent and total disability. This matter was subsequently heard by Deputy Commissioner William C. Bost on 23 August 2000, after which the record was held open unti
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