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Matthews v. Petroleum Tank Service Inc.12/15/1992
GREENE, Judge.
Employer Petroleum Tank Service, Inc. (Petroleum) and insurance carrier Hartford Accident & Indemnity Company (Hartford) appeal from the North Carolina Industrial Commission's award of temporary total disability compensation and future medical expenses to employee Robert Jerry Matthews (Matthews).
Petroleum is engaged in the business of cleaning and servicing large petroleum tanks. Hartford is Petroleum's workers' compensation insurance carrier. Matthews was employed by Petroleum as a sandblaster and covered by its workers' compensation policy. On 28 April 1988, Matthews was driving one of Petroleum's trucks to a work site in Meridian, Mississippi when the truck was rear-ended
by another vehicle. Matthews sustained injury to his lower back and was hospitalized for six days. When Matthews returned home to Charlotte he was treated at a local clinic and by a chiropractor. When his back pain failed to improve, he contacted Dr. Nandal C. Shah (Dr. Shah), who specialized in rehabilitative medicine. Dr. Shah diagnosed Matthews as suffering from chronic lower back pain as a result of the impact of the collision, and treated him with ultrasound therapy, massage, and physical therapy. Matthews made some improvement and was released by Dr. Shah on 14 October 1988.
Matthews returned to his regular job with Petroleum, but the pain recurred in late January, 1989, this time in both his back and legs. Dr. Shah again treated Matthews for several weeks, but he made little improvement. Dr. Shah referred Matthews to Dr. Frederick E. Finger (Dr. Finger), a neurosurgeon, in February, 1989, and tests conducted by Dr. Finger revealed a slight disc herniation and other spinal problems. Dr. Finger did not feel these problems were serious enough to warrant back surgery. Before releasing Matthews, Dr. Finger suggested that he seek a second opinion if he desired. Dr. Finger later saw Matthews on a referral basis from Dr. Shah and conducted more tests. These tests convinced Dr. Finger that Matthews was suffering from too much pain to be explained by the physical condition of his back.
On 2 February 1989, Dr. Shah had a conference with Susan Fender, a rehabilitation coordinator working with Hartford. Dr. Shah recommended that Matthews undergo further rehabilitative treatment. Without authorizing such treatment, Fender requested that Dr. Shah conduct a final disability evaluation of Matthews for Hartford. On 28 June 1989, Dr. Shah gave Matthews a partial permanent disability rating of 20% of the back. Matthews returned to his work at Petroleum, but still suffered pain.
Petroleum and Hartford were unable to reach agreement with Matthews as to compensation because Hartford denied any coverage for future medical expenses relating to the injury . Matthews was granted a hearing before the Deputy Commissioner of the North Carolina Industrial Commission (Commission) on 2 November 1989. After hearing evidence, the hearing was adjourned with instructions that medical experts for both sides be deposed.
One week later, on 9 November 1989, Matthews was sandblasting the interior of a large storage tank in Charleston, South
Carolina, for Petroleum. Sandblasting requires that the worker stand for long periods while maintaining control of a three-inch hose which pumps out sand at 120 pounds of pressure. After several hours of sandblasting, Matthews collapsed in great pain and was carried from the work site. The next day Matthews saw Dr. Shah, who found that Matthews' condition had deteriorated. He was in great pain and was experiencing back spasms. X-rays showed further degenerative changes in Matthews' back. Dr. Shah prescribed
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