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Smith v. Goodyear Tire & Rubber Co.6/7/2005
acerbate the polyneuropathy; is that correct?
A: Sure.
When asked to explain the impact plaintiff's non-work related condition (diabetic polyneuropathy) had on the healing ofplaintiff's work related injury (radiculopathy), Dr. Jaufmann stated:
[Plaintiff] had a radiculopathy. . . . [Whether a nerve heals or not from a mechanical injury, like a disk pressing up against it, can be influenced by the diabetes. For instance, a diabetic may--the success rate in operating on a diabetic, or, particularly, a poorly controlled diabetic or someone with longstanding diabetics who have, say, a disk rupture or a nerve impingement syndrome, in all likelihood, the odds are it won't be as successful as an individual who is healthy, who has no other medical problems, because of the diabetes.
Although the parties stipulated to compensability and disability arising out of the 27 June 1994 injury, defendant asserts plaintiff is not entitled to additional medical compensation because plaintiff's present inability to return to pre-injury wages was caused by his diabetic polyneuropathy, and not his work related injury. However, competent medical evidence supports the Commission's findings and conclusions that apportionment of plaintiff's disability was speculative and his work related disability continued after 26 February 1999. Accordingly, plaintiff has satisfied the first and third Russell prongs as reflected in the pertinent Commission's conclusions of law:
3. In an action for additional compensation for medical treatment, the medical treatment sought must be directly related to theoriginal compensable injury. If additional medical treatment is required, a rebuttable presumption arises that the treatment is directly related to the original compensable injury and the employer has the burden of producing evidence showing the treatment is not directly related to the compensable injury. Parsons v. Pantry, Inc., 126 N.C. App. 540, 541-42, 485 S.E.2d 867, 869 (1997). Here, defendants admitted the claim on a Form 21 and acknowledged plaintiff's continuing disability when compensation was reinstated on the Form 62. It is defendants' burden to rebut through medical and other evidence . . . that plaintiff's disability is not related to his admittedly compensable injury by accident. Id. Defendants have not met their burden of proof. Moreover, even if plaintiff did not have diabetic neuropathy, he would still be incapable of earning suitable wages due to his admittedly compensable injury. 4. Plaintiff is disabled due to the compounding of his diabetic neuropathy with his low back radiculopathies. Apportionment is not permitted when an employee becomes totally and permanently disabled due to a compensable injury's aggravation or acceleration of the employee's non-disabling, pre-existing disease. Errante v. Cumberland County Solid Waste Management, 106 N.C. App. 114, 119, 415 S.E.2d 583, 586 (1992). In addition, in Counts v. Black & Decker Corp., 121 N.C. App. 387, 390-391, 465 S.E.2d 343, 346, disc. rev. denied, 343 N.C. 305, 471 S.E.2d 68 (1996), the Court stated that 'apportionment is not proper where the evidence before the Commission renders an attempt at apportionment between work-related and non-work related causes speculative or where there is no evidence attributing a percentage of the claimant's total incapacity [to work] to her compensable injury, and a percentage to the non-compensable condition.'
In concluding plaintiff's disability continued, the Commission considered that Dr. Jaufmann had restricted plaintiff from returning to work because plaintiff was "an individual who has an injury but also has a serious medical and neurological problem on top of that
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