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Smith v. Goodyear Tire & Rubber Co.6/7/2005
injury." In other words, plaintiff's condition, as well as his medical restrictions, prevented him from performing his job with defendant-employer, even after having exhausted light duty assignments. The parties stipulated to plaintiff's disability, which indicated defendant's liability and a presumption of plaintiff's disability. Based on the evidence of plaintiff's disability, the Commission concluded plaintiff was entitled to ongoing benefits:
5. As a direct result of the 27 June 1994 work-related injury, plaintiff became totally disabled beginning on 26 February 1999 and continuing. N.C. Gen. Stat. . 97-2. 6. laintiff is entitled to have defendants pay ongoing total disability compensation at the rate of $466.00 per week, from 26 February 1999 and ongoing. N.C. Gen. Stat. . 97-29. 7. laintiff is entitled to have defendants pay for all related medical expenses incurred or to be incurred in the future which are reasonably required to effect a cure or provide relief. N.C. Gen. Stat. .. 97-25; 97-25.1.
Defendant claims plaintiff is not entitled to a presumption of continuing disability, citing Pittman v. Thomas & Howard, 122 N.C.App. 124, 468 S.E.2d 283 (1996), because plaintiff's worsening condition is directly related to a pre-existing condition and is not caused by a work related accident. In Pittman however, the Commission found and concluded, based on the treating physician's testimony, that the "plaintiff's worsening condition due to severe lumbar spinal stenosis, which was not caused by the [workplace] incident of 25 August 1987." Id. at 128, 468 S.E.2d at 285. The Commission determined competent evidence existed to support findings that the treating physician could not relate the plaintiff's lumbar spinal stenosis to any specific event and concluded the plaintiff's worsening lumbar spinal stenosis was "symptomatic just by performing daily duties and other activities." Id. No such findings exist in the present case.
Here, in findings 21, 22, and 23, the Commission found plaintiff went beyond proving his disability and his inability to earn a wage, stating "based on plaintiff's educational level, aptitude and past work history, plaintiff would be capable of some sedentary work. . . . owever, it would be futile for plaintiff to seek employment considering the physical limitations and pain caused by his work-related injury even if he did not have diabetic polyneuropathy." We agree.
Here, plaintiff was unable to return to work after 26 February 1999 because of severe back pain caused by the combination of hisradiculopathies and diabetic polyneuropathy. Leading up to plaintiff's last day of work, plaintiff fulfilled light duties, as assigned under the defendant-employer 28 June 1998 Modified Work Authorization. Plaintiff continued to see Dr. Jaufmann, complaining of moderate to severe low back pain in 1999. Based on the results of plaintiff's nerve conduction studies in 1997 and 1999, Dr. Jaufmann concluded plaintiff had two problems contributing to the severity of his symptoms and that plaintiff's incapacity to work since 26 February 1999 was due to the compound effect on his nerves from his chronic, bilateral L5-S1 radiculopathies and his diabetic polyneuropathy. Effective 27 February 1999, plaintiff was taken out of work, complaining of severe pain and relying on a cane to help him walk. On 25 March 1999, Dr. Jaufmann wrote to defendant-carrier stating plaintiff's existing disability was consistent with his 1994 work related injury. While defendants stipulated to plaintiff's 1994 disability for a specific time period, credible medical records and testimony supported the fact that plaintiff was physically unable to return to work as either a serviceman or pe
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