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Rooker v. Food Lion10/18/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
In this workers' compensation appeal, Kevin Rooker contends that the full Commission erred in concluding that his medical condition of shingles was not related to his compensable back injury, and that he was no longer disabled as a result of his original compensable back injury. After carefully reviewing the record on appeal, we hold the Commission's findings of fact aresupported by competent evidence and those findings of fact support its conclusions of law. Therefore, we affirm the Opinion and Award of the Industrial Commission.
The evidence in the record tends to show that Mr. Rooker worked as an assistant manager at Food Lion in New Bern, North Carolina. On 5 February 2000, while disassembling a display, Mr. Rooker twisted his back, causing immediate pain in his back and his right leg. The next day he sought treatment at a local emergency room where he was diagnosed with a back strain and given two days off from work, and, thereafter, eight to ten days of light duty.
On 8 February 2000, Mr. Rooker saw Dr. JosephMcCabe for complaints of lower back pain. Dr. McCabe diagnosed Mr. Rooker with low back pain in his right side and herpes zoster to the right inguinal area. On 14 February 2000, Dr. McCabe released Mr. Rooker to return to work with a five pound lifting restriction and no bending, prolonged standing, squatting or pulling for seven days.
Dr. McCabe continued treating Mr. Rooker for his low back pain and his herpes zoster from February 2000 through April 2000. An MRI of Mr. Rooker's lumber spine on 22 February 2000 revealed no disc abnormalities. By 25 February 2000, Dr. McCabe's notes state that Mr. Rooker's back pain was "significantly better," but that Mr. Rooker still had a right inguinal rash from the herpes zoster condition. Dr. McCabe expected full discharge regarding Mr. Rooker's injury within one month.
On 14 March 2000, at Mr. Rooker's request, Dr. McCabe referred him to Dr. Cynthia Lopez, a board certified expert in the field ofneurology and nerve conduction studies. Mr. Rooker began treating with Dr. Lopez on 21 March 2000. Dr. Lopez testified that Mr. Rooker had two separate issues: (1) back pain; and (2) shingles. Dr. Lopez conducted nerve conduction studies to determine the cause of the pain in Mr. Rooker's anterior thigh. Dr. Lopez found there was no "evidence on the EMG to suggest that the right thigh numbness was caused by a radicular process in his [Mr. Rooker's] back." Dr. Lopez opined that Mr. Rooker's symptoms of numbness, tingling, and pain were associated with the shingles outbreak, and that he did not need further diagnostic testing. She further testified that Mr. Rooker's shingles and post-herpetic neuralgia were separate conditions from his back/pain lifting injury, but that she was "not sure" whether a physical injury such as Mr. Rooker's back strain could trigger the shingles virus.
Mr. Rooker next received treatment from Dr. Angelo Tellis from 19 July 2000 through 8 November 2000. Dr. Tellis diagnosed Mr. Rooker with myfascial pain and ordered a course of physical therapy and prolotherapy. Dr. Tellis also noted that Mr. Rooker suffered from lateral femoral cutaneous neuropathy which accounted for Mr. Rooker's neurologic pain complaints. Dr. Tellis opined that Mr. Rooker's lumbar strain and shingles were very different disease processes, and explained that "I don't think that it can be determined with any degree of confidence exactly what causes an
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