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Smith v. Goodyear Tire & Rubber Co.6/7/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Goodyear Tire & Rubber Company (defendant-employer) and Travelers Insurance Company (defendant-carrier), collectively defendants, appeal from an Opinion and Award of the North Carolina Industrial Commission (Commission) dated 31 March 2004 awardingRonnie Smith (plaintiff-employee) ongoing total disability compensation at the rate of $466.00 per week from "26 February 1999 and ongoing."
Plaintiff (DOB 9/26/1954) began working for defendant-employer in 1978 and worked as a tire builder for seven years, until 1985, when he became a serviceman, which required him to engage in repetitive lifting of tire-building materials. Plaintiff lifted 100 to 150 pounds independently, and up to 300 pounds with assistance.
On 27 June 1994, plaintiff sustained a compensable back injury (radiculopathy) working for defendant-employer when a tread trap loosened and plaintiff twisted his back to repair it. Plaintiff's injury caused him to be out of work on disability from 27 June until December 1994. Dr. Atassi, a neurosurgeon, treated plaintiff's injury and on 10 October 1995, performed a lumbar laminectomy and discectomy for plaintiff's herniated disc at L4-L5. While he recovered from surgery, plaintiff sustained an additional period of disability from 10 October 1995 through 27 February 1996, at which time he returned to his job as serviceman, experiencing intermittent pain.
In December 1996 and March 1997, plaintiff returned to Dr. Atassi, complaining of moderate pain in his lower back and legs and was advised to avoid frequent bending and prolonged sitting. Dr.Atassi referred plaintiff to Dr. Jaufmann, also a neurosurgeon, on 12 March 1997. MRI results from that visit showed plaintiff had an L4-L5 disc protrusion or possible scarring from the 1995 surgery, with no evidence of nerve root compression or spinal stenosis. In April 1997, plaintiff underwent a myelogram and CT scan, indicating a possible disc protrusion, but otherwise the results were within normal limits. After examining plaintiff, Dr. Jaufmann allowed plaintiff to continue to work without restrictions on 18 April 1997.
On 3 June 1997, after undergoing nerve conduction studies, plaintiff's test results showed he suffered from chronic bilateral L5 and S1 radiculopathies and abnormal diabetic polyneuropathy. The diabetic polyneuropathy was a condition that developed from plaintiff having diabetes, unrelated to his job . On 10 October 1997, Dr. Jaufmann allowed plaintiff to return to work to perform light duty, in observance of permanent restrictions: no lifting over 45 pounds; alternate periods of sitting and standing; and no repetitive bending. Plaintiff returned to see Dr. Jaufmann in April 1998 and September 1998, with continued complaints of leg and back pain. Based on Dr. Jaufmann's 1997 restrictions, defendant- employer's nurse signed a "Modified Work Authorization" for plaintiff on 28 June 1998, limiting the amount plaintiff could lift without assistance and having plaintiff avoid certain repetitivemotions and positions at work. While on these light duty work restrictions, plaintiff continued to complain of "very severe right lower extremity pain" and, consequently, was taken out of work for the last time by Dr. Jaufmann on 26 February 1999. Defendants reinstated temporary total disability benefits on 19 March 1999 pursuant to Form 62 based on plaintiff's seven and one-half percent rating of permanent impairment to his back for his 1994 injury.
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