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Foy v. Interstate Brands/Merita9/6/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Defendant Interstate Brands/Merita (Merita) appeals from an Opinion and Award of the North Carolina Industrial Commission awarding plaintiff ongoing temporary total disability benefits and medical compensation.
Facts
Thomas Hugh Foy (plaintiff) is a fifty-two year old male who had worked for Interstate Brands/Merita (defendant) for 28 years as a route salesman delivering bread. His job entailed the delivery of bread, cakes and rolls, sometimes in large quantities on largetransport racks which weigh up to 450 pounds when fully loaded. On 5 July 2001, plaintiff was moving a fully loaded transport rack from his truck while making a delivery when the rack became lodged on the bumper of his truck and became stuck. The rack stopped, but plaintiff did not. Immediately after the incident with the transport rack, plaintiff realized something was wrong because his right leg and arm lost feeling and stopped functioning.
Plaintiff called his supervisor, Kenny King, and advised King of the loss of function in his leg and arm and that he would not be able to complete his route. King met plaintiff at the delivery location and helped plaintiff complete the remainder of his delivery route. While completing his deliveries, plaintiff could not move his right arm and had difficulty moving his right leg. King observed plaintiff's difficulties completing the deliveries, laughing at plaintiff when he repeatedly dropped bread as he attempted to take trays off the transport racks. After plaintiff completed his deliveries, his wife drove him to the emergency room at Onslow Memorial Hospital.
At the emergency room, plaintiff was diagnosed as having suffered a "mini stroke" and was referred to Dr. C.E. Ballenger at Coastal Neurological Associates for further examination. At his initial consultation with Dr. Ballenger, Mr. Foy did not mention the incident at work the previous day since he had been advised by personnel at the hospital that he had suffered a "mini stroke" and therefore did not feel the information was relevant. Dr. Ballengerperformed numerous tests on plaintiff and eventually referred plaintiff to Dr. Sean Hsu, a neurosurgeon.
Plaintiff was initially seen by Dr. Hsu on 22 August 2001 where Dr. Hsu erroneously noted in his records plaintiff had been injured at work on 6 June 2001, which he later corrected to 5 July 2001 in a letter to plaintiff's counsel. Dr. Hsu admitted he had "no reason to doubt the actual date of injury was 7-5-01." Dr. Hsu diagnosed plaintiff as having a cervical myelopathy and recommended surgery to remove the herniated disc and to decompress the spinal cord. The surgery was performed on 30 August 2001 and plaintiff did not return to work following the surgery.
Procedural History
On 27 August 2001, plaintiff completed a "Workers Compensation Claim Reporting Form" and submitted it to his supervisor. Defendant subsequently denied plaintiff's workers' compensation claim on 6 September 2001. Plaintiff filed a request that his claim be assigned for hearing on 12 October 2001, and a hearing was held before Deputy Commissioner Morgan S. Chapman on 3 June 2002. Subsequent to the hearing depositions of plaintiff's treating physicians were taken and included in the record. Deputy Commissioner Chapman filed an Opinion and Award on 26 November 2002, denying plaintiff workers' compensation benefits. Plaintiff timely filed a Notice of Appeal to the Full
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