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McAllister v. Wal-Mart Stores9/20/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Plaintiff has a long prior history of abdominal pain, rectal bleeding, and other problems. She was treated for rectal bleeding on 6 April 2000, and treated for "rather severe abdominal pain" on 12 July 2001 and 28 August 2001. On 28 September 2001 plaintiff underwent a laparoscopic cholecystectomy, during which she was diagnosed with an umbilical hernia. Prior to the injury in question, plaintiff had hernia surgery, had her gallbladderremoved, and had a history of ovarian cysts. None of these prior injuries were work related. Plaintiff began working for defendant Wal-Mart Stores, Inc. (Wal-Mart) on 25 October 2001. Plaintiff continued to receive treatment for her ailments following her employment with Wal-Mart, and in May of 2002 was given a note by her physician restricting her to lifting weights less than twenty pounds.
Plaintiff regularly lifted boxes weighing between fifty and sixty pounds in the course of her employment with Wal-Mart, and her job description required her to be able to lift up to eighty pounds. On 18 June 2002, in the course of her duties, she lifted a box which she alleged weighed around fifty pounds. She felt pain in her abdomen and back as she lifted the box. Shortly after the incident, plaintiff noticed that she was bleeding, though she was uncertain if it was from her vagina or rectum, and was sent by her supervisor to seek medical attention. An accident report was filed.
Plaintiff was diagnosed with an abdominal strain on 19 June 2002, and restricted to lifting no more than ten pounds. On 26 June 2002, plaintiff was cleared by her physician to work without restriction. However, plaintiff again sought medical treatment on 12 July 2002, complaining of severe abdominal pain. On 31 July 2002, plaintiff was diagnosed with an abdominal strain and rectal bleeding caused by anal fissures. Plaintiff was again released to work on 1 August 2002 with lifting restrictions of twenty pounds. Plaintiff did not return to work at Wal-Mart. Plaintiff's claim for worker 's compensation was denied by a claims analyst on 6 August 2002, based on a finding by the company physician that the injury was not work related. Plaintiff requested a hearing, and by opinion and award filed 25 June 2003, Deputy Commissioner W. Bain Jones, Jr. determined that plaintiff had sustained a compensable injury, and that she was entitled to temporary total disability compensation of $304.92 per month from 25 June 2002 until further order of the Commission, and that defendants were required to pay costs, attorneys fees, and plaintiffs' medical costs. Defendants appealed the opinion and award of the deputy commissioner.
The Full Commission modified the opinion and award of the deputy commissioner by limiting award of temporary total disability compensation at the rate of $304.92 to the period from 18 June 2002 through 31 August 2002, but granting either party the ability to reopen the record to present evidence on plaintiff's disability, if any, after 31 August 2002. The remaining award of the deputy commissioner was left undisturbed. From the opinion and award of the Full Commission, defendants appeal.
In defendants' first argument, they contend that the findings of fact of the Industrial Commission do not support its determination that an accident resulting in a compensable injury occurred on 18 June 2002. We agree.
"Review on appeal from an order and award of the Industrial Commission is limite
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