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Boles v. U.S. Air2/5/2002
Appeal by defendant from opinion and award entered 18 September 2000 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 November 2001.
Defendant appeals from an opinion and award of the North Carolina Industrial Commission (hereinafter "Commission") awarding plaintiff continuing benefits. Evidence before the Commission tended to show that plaintiff, Carolyn Boles, was employed by defendant, U.S. Air, Inc. (now U.S. Airways, Inc.) as a reservation sales agent (reservationist), providing booking and flight information to the public by telephone. Her job required her to sit at a computer keyboard throughout the workday keying in the necessary information. This work not only physically required her to use both hands repetitively, but cognitively required concentration, memory, and attention to detail. On 7 March 1991, plaintiff tripped and fell on a curb outside her office building as she was going into work. From the fall, plaintiff sustained a back injury manifested by chronic incapacitating neck, left shoulder, and left arm pain. Because plaintiff's symptoms did not significantly improve with conservative treatment (cervical traction, anti-inflammatory medications, and physical therapy), on 21 May 1992, she was examined by Dr. Curling, a neurosurgeon. Dr. Curling testified that an MRI revealed a large spur and associated disk bulge at C5-C6 and that he advised plaintiff to undergo a cervical discectomy at C5-C6 and an iliac crest interbody fusion at C5-C6. Dr. Curling performed this surgical procedure on 17 June 1992 and released plaintiff, without restrictions, on 24 September 1992 to return to work at U.S. Air, Inc., starting on half days for the first two weeks and then working up to whole days.
At the end of September 1992 the Commission approved the parties' Form 21 "Agreement for Compensation for Disability" wherein defendant accepted plaintiff's injury by accident resulting in an "HNP C5-C6." Additionally, the Commission approved several Form 26 Agreements for temporary total disability of various weeks (not continuous) in 1991 and 1992. In December 1992, Dr. Curling found plaintiff at maximum medical improvement (MMI) and rated her at approximately 10 percent permanent partial disability and released her from his care. Dr. Curling noted that plaintiff was having minimal neck discomfort but that plaintiff had returned to work and doing her usual job without significant difficulty. On 25 February 1993, the Commission approved the parties' Form 26 "Supplemental Memorandum of Agreement as to Payment of Compensation" for a 10 percent permanent partial disability to the back (for 30 weeks of benefits at the rate of $306.42 per week from 10 December 1992 pursuant to G.S. ยง 97-31). On 10 February 1993, plaintiff was again seen by Dr. Curling, complaining of recurrent pain in the neck and left arm. Dr. Curling stated in a letter to plaintiff that her pain was caused by nerve injury and recommended that plaintiff take Elavil for her recurrent neck and arm pain. On 23 August 1993, plaintiff called Dr. Curling indicating that she was having problems with depression and was feeling suicidal and asked that he write a letter giving her permission to stay out of work for two to three weeks so that she could "get her act together." Dr. Curling recommended that plaintiff go to the emergency room and undergo a psychiatric evaluation, contact her family physician, or schedule an appointment with a psychiatrist as soon as possible.
On 23 September 1993, plaintiff's psychiatrist, Dr. Branham, diagnosed plaintiff with major depression and wrote, " t the present time I feel that it would be totally necessary for [plaintiff] to have the least amount of stress possible and
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