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Rogers v. Lowe's Home Improvement4/19/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission"), awarding temporary total disability benefits to plaintiff under the Workers' Compensation Act.
The evidence of record and the Commission's findings of fact reflect that plaintiff began working for defendant Lowe's Home Improvement on 5 May 2001 as a receiver in its Kernersville, North Carolina store. Plaintiff's job duties included unloading shipments of major appliances, windows, doors, and carpeting, aswell as stocking this merchandise on the store's sales floor. As one of three employees responsible for unloading " wenty trailer loads of merchandise" each day, plaintiff "went home on many occasions with a backache and other muscle soreness." Plaintiff also had "some residual" pain in his lower back and left leg resulting from a motor vehicle accident in May of 1988.
While lifting a large roll of carpet at work on 19 October 2001, plaintiff felt a pull in his lower back and left leg. He experienced soreness and cramping in the back of his leg above the knee and informed his supervisor about the incident but continued working. Plaintiff sought treatment at Piedmont Triad Family Medicine ("Piedmont Triad") on 19 October 2001, complaining of pain in the outside and back of his left thigh. Based upon the localized nature of plaintiff's pain, the tightness in the back of his leg, and the absence of pain in his lower back during straight leg raise test, Physician Assistant W. Scott Boyd diagnosed a strained left bicep femoralis muscle, or hamstring. He recommended treatment with moist heat, an anti-inflammatory and a muscle relaxant. Plaintiff returned to Piedmont Triad on 22 October 2001, reporting continued localized pain in his left hamstring. Boyd again found that plaintiff had tightness and spasming in the back of his leg, but retained full range of motion in his left hip and his back. Boyd continued plaintiff on medication for the strained muscle but noted the possibility of an "underlying sciatic nerve problem" originating in his lumbar spine. Piedmont Triad's Physician Assistant Betsy Brais examined plaintiff for hispersistent symptoms on 31 October 2001. Plaintiff told Brais that his hamstring "really bothers him when he gets up in the morning," but improved "once he starts walking around for two hours or so." He further reported "no numbness or tingling radiating down the backs of his legs." Brais diagnosed a left hamstring muscle spasm. On the afternoon of 9 November 2001, defendant was unloading a shipment of house windows at work when he felt a pop in his "lower left hip area." Accustomed to a certain amount of soreness from the demands of his job , plaintiff finished working for the day and took a hot shower when he got home. He went to bed early but was awakened at 4:00 a.m. by "radiating sharp stabbing burning pain" in his left hip and groin. Plaintiff testified that "the problem after November 9th was completely different" than what he experienced during October. He contrasted the two injuries as follows:
Well, it was like a cramp in October. And the pain in November was sharp stabbing -- sharp stabbing burning pain radiating down my leg. And that's the most pain I've ever had . . . , and it just kept continuously, continuously hurting . . . and not going away.
Plaintiff described the pain he experienced after 9 November 2001 as "ten times as much pain . . . as I've ever ha
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