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Fowler v. Food Lion6/7/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Defendant, Food Lion, LLC, appeals from a ruling by the North Carolina Industrial Commission ("full Commission") awarding total temporary disability and ordering payment of all medical expenses of Sherry P. Fowler ("plaintiff") resulting from the injuries at issue. The injuries were found to stem from two separate incidents plaintiff alleged occurred during her employment with defendant. Plaintiff began working for defendant in its bakery department in 1999. Plaintiff's job duties included unloading trucks and placing the items in the freezer. The boxes plaintiff unloaded were estimated to weigh between fifty and seventy pounds. Other store employees assisted plaintiff with this task. On 18 July 2001, plaintiff felt a pull in her lower back while unloading a truck. She reported the incident to both the assistant manager and the head bookkeeper. Plaintiff filled out the necessary paperwork regarding the incident and underwent a drug test per defendant's policy. Plaintiff did not seek medical treatment for the injury nor did she miss any work as a result of it. She testified she did not file a workers' compensation claim because she was afraid she would lose her job if she did.
Plaintiff testified that she suffered a second injury on 10 January 2002, when she fell in the store freezer while unloading boxes. Plaintiff testified she fell on her knee after tripping over some boxes and immediately began experiencing pain in her back. Plaintiff did not notify any supervisors of the incident and continued to work. Plaintiff continued to work until she saw her doctor the next week, who removed her from work thereafter.
Plaintiff eventually was referred to a neurosurgeon who performed a lumbar fusion on her back. Plaintiff has not returned to work since being removed from work by her doctor and testifies she has difficulty performing any activity around the house.
At the hearing plaintiff testified on cross-examination that she did not have back problems prior to the two incidents shedescribed. Plaintiff's medical records, however, show she sought medical attention on 23 April 1998 complaining of lower back pain that radiated down her legs and that on 28 April 1998 she underwent an MRI of the lower spine that showed spinal stenosis of L4-5 and mild lateral recess angle stenosis of L5-S1. Upon being shown these medical records documenting her treatment for back problems prior to the incidents, plaintiff continued to deny she had ever suffered from, or sought treatment for, back problems.
Plaintiff's neurosurgeon, Dr. Wilfong, ("Wilfong") testified that, in his opinion, plaintiff's current back problems were the result of the specific injury allegedly suffered on 18 July 2001 and plaintiff would not be able to return to work again. On cross- examination, Wilfong testified that the 1998 MRI revealed moderate stenosis and absolutely was indicative of degenerative process; plaintiff was morbidly obese; obesity affects the strength of the back and makes obese people more prone to muscle or ligament strains; it absolutely was possible for a disc bulge or herniation to occur without an acute incident and that his opinions were based on plaintiff's report of her injury to him.
Plaintiff's primary physician, Dr. Essam Eskander ("Eskander"), testified plaintiff would continue to deteriorate due to her back problems. On cross-examination he further testified plaintiff was overweight, her weight could have
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