{ "id": 8521980, "name": "IRENE H. CHURCH, Employee-Plaintiff v. BAXTER TRAVENOL LABORATORIES, INC., Employer-Defendant, and AMERICAN MOTORISTS INSURANCE COMPANY, Carrier-Defendant", "name_abbreviation": "Church v. Baxter Travenol Laboratories, Inc.", "decision_date": "1991-11-05", "docket_number": "No. 9010IC1268", "first_page": "411", "last_page": "419", "citations": [ { "type": "official", "cite": "104 N.C. App. 411" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "320 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728157 ], "opinion_index": -1, "case_paths": [ "/nc/320/0113-01" ] }, { "cite": "357 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "673" } ], "opinion_index": 0 }, { "cite": "346 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "398" } ], "opinion_index": 0 }, { "cite": "317 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779479 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0670-01" ] }, { "cite": "269 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 489", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551366 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0489-01" ] }, { "cite": "292 S.E.2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523440 ], "year": 1982, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0113-01" ] }, { "cite": "320 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728157 ], "opinion_index": 0, "case_paths": [ "/nc/320/0113-01" ] }, { "cite": "159 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "parenthetical": "Absent specific statutory authority, the Commission has no power to award attorney's fee." } ], "opinion_index": 1 }, { "cite": "271 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566667 ], "year": 1967, "pin_cites": [ { "parenthetical": "Absent specific statutory authority, the Commission has no power to award attorney's fee." } ], "opinion_index": 1, "case_paths": [ "/nc/271/0702-01" ] }, { "cite": "357 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "673", "parenthetical": "emphasis added" }, { "page": "673", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "320 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728157 ], "weight": 2, "pin_cites": [ { "page": "117" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0113-01" ] } ], "analysis": { "cardinality": 784, "char_count": 16752, "ocr_confidence": 0.771, "pagerank": { "raw": 1.5815002128159115e-07, "percentile": 0.6804589765658152 }, "sha256": "d0fff353daaf23373c8630ed7beab12ed3d971024c9789131e49098983f3cf93", "simhash": "1:0223c1463d9b5011", "word_count": 2633 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHNSON concurs.", "Judge PARKER dissents." ], "parties": [ "IRENE H. CHURCH, Employee-Plaintiff v. BAXTER TRAVENOL LABORATORIES, INC., Employer-Defendant, and AMERICAN MOTORISTS INSURANCE COMPANY, Carrier-Defendant" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendants appeal from a worker\u2019s compensation award given by the full Industrial Commission (Commission) which modified an earlier deputy commissioner\u2019s award. The evidence presented to the Commission is summarized below.\nI\nPlaintiff worked roughly five years as an accounting clerk for the defendant-employer prior to the time of the painful incident giving rise to this appeal. The position of accounting clerk involved no lifting. Because of cutbacks, plaintiff was transferred to a production line job in defendant\u2019s filling department in early January 1988. Plaintiffs new duties included overwrapping and sealing bags of intravenous solutions, and then moving the bags to trays stacked in levels on a truck. Plaintiffs transfer to this position took place only five working days before her on-the-job injury. Plaintiff told her supervisor of the difficulties that she was having prior to her injury, however, the supervisor responded that she had no authority to modify plaintiffs job tasks.\nThe solution bags at the plant ranged in size from one-half to five liters. Plaintiff testified that the heavier bags were difficult to handle, since the liquid inside the \u201cfloppy\u201d bags \u201cjarred\u201d her arms as she moved them. In each hand, plaintiff was expected to lift fluid bags totaling over ten pounds.\nOn 15 January 1988, plaintiff was trying to hoist filled bags to the top tray, above the level of her head. She experienced a sudden, unfamiliar pain, as though \u201csomeone had jerked\u201d her right shoulder \u201cout of socket.\u201d According to plaintiffs medical expert, \u201cthe best conclusion would be that [plaintiff] actually tore the rotator cuff at the moment she experienced that pain.\u201d Plaintiff had surgery twice and was out of work until 1 July 1988. In July, plaintiff returned to work and remained in the defendant\u2019s employ until 11 November 1988. This action was filed with the Commission on 1 November 1988.\nOn appeal to this Court, defendants assign error to the Commission\u2019s (i) finding and conclusion of law that plaintiff had suffered an \u201cinjury by accident\u201d within the meaning of G.S. 97-2(6); (ii) determination that the issue of the compensability of plaintiff\u2019s TOS disability had not been tried by consent; (iii) decision to give defendants less than full credit for payments previously made to plaintiff under defendants\u2019 short term disability plan and then use this \u201cwithheld\u201d money to pay plaintiff\u2019s attorney\u2019s fees. We will treat each of these contentions separately.\nII\nDefendants first contend that plaintiff\u2019s injury was not compensable since for an injury to be characterized as one caused by \u201caccident\u201d and thereby compensable, the injury must involve more than the carrying on of the usual or routine duties of the employee. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 116, 292 S.E.2d 763, 766 (1982). Defendants assert that plaintiffs injury was not the result of an accident since her injury occurred during her normal work routine. We disagree.\nThis Court has held that physical exertion may be \u201cthe precipitating cause\u201d of an accidental injury required for compen-sability under G.S. 97-2(6). See Hollar v. Montclair Furniture Co., Inc., 48 N.C. App. 489, 269 S.E.2d 667 (1980). The facts in the present case closely resemble the facts in Gunter v. Dayco Corp., 317 N.C. 670, 346 S.E.2d 395 (1986). Gunter involved physical exertion not required in an injured employee\u2019s previous desk job. Our Supreme Court asserted that:\nNew conditions of employment to which an employee is introduced and expected to perform regularly do not become a part of an employee\u2019s work routine until they have in fact become routine. . . . New conditions of employment cannot become an employee\u2019s \u201cregular course of procedure\u201d or \u201cestablished sequence of operations\u201d until the employee has gained proficiency performing in the new employment and become accustomed to the conditions it entails.\nId. at 675, 346 S.E.2d at 398. Under this reasoning, we find that plaintiff, who had been employed by defendant for five years in an office job before her work-related injury and who testified that she was not yet proficient in defendant\u2019s filling department, was not performing her usual work routine at the time of accidental injury on her fifth day on the production line. The Commission\u2019s conclusion that the plaintiff suffered an injury by accident is accordingly upheld.\nIll\nThe defendants\u2019 next argument is that the Commission erred in striking the deputy commissioner\u2019s finding that plaintiff\u2019s incapacity to earn wages after 11 November 1988 was due to Thoracic Outlet Syndrome (TOS), a congenital disease, and his related conclusion that plaintiff did not suffer a compensable occupational disease as defined by G.S. 97-52 and G.S. 97-53(13). In our belief, the evidence presented adequately supports the Commission\u2019s actions on this matter.\nSubsequent to her injury in January 1988, plaintiff did some \u201clight duty\u201d work for defendant-employer. Finally, on 1 July 1988, after two operations, and in response to her doctor\u2019s suggestions, plaintiff returned to her position on the production line. The plaintiff later discontinued her employment with the defendant on 11 November 1988 due to great pain in her shoulders.\nIn his deposition, Dr. Spencer (plaintiff\u2019s doctor) stated that in his opinion, plaintiff had torn her rotator cuff at the time of her January 1988 accident. According to Dr. Spencer, on 30 June 1988, plaintiff had \u201can excellent motion\u201d and he urged her to return to work. Later, another doctor diagnosed plaintiff as having TOS. Plaintiff put on no other medical witnesses, nor did plaintiff present any detailed documentary evidence from the physician who diagnosed her TOS. The defendants themselves did not put on any evidence concerning TOS and the record discloses that in fact defendant\u2019s attorney twice objected to a line of questioning concerning TOS.\nIn her original filing dated 1 November 1988, plaintiff sought twenty weeks compensation only for temporary total disability following her previously discussed January injury. Plaintiff recovered from her January accident and returned to work in July, 1988. We recognize that plaintiff\u2019s evidence did probe the possible relationship between her initial injury and her battle with TOS after returning to work, however, the record viewed as a whole supports the Commission\u2019s conclusion that the parties did not try the TOS issue by consent.\nIV\nDefendants\u2019 final contention is that the Commission had no authority to reduce the 100% credit for disability payments to 75%, and to award the remaining 25% to plaintiff as attorney\u2019s fees. The thrust of defendants\u2019 contention is that plaintiff\u2019s case is controlled by Foster v. Western-Electric Co., 320 N.C. 113, 357 S.E.2d 670 (1987). Foster concerned a situation in which an injured employee was awarded $7,598.16 from her employer\u2019s private insurer. Later the Industrial Commission entered a worker\u2019s compensation award in the amount of $6,741.96 and denied the employer any credit for the prior payment of $7,598.16. In reversing the Commission\u2019s conclusion our Supreme Court stated:\n[P]oIicy considerations dictate that an employer such as defendant in this case, who has paid an employee\u2019s wage-replacement benefits at the time of that employee\u2019s greatest need, should not be penalized by being denied full credit for the amount paid as against the amount which was subsequently determined to be due the employee under workers\u2019 compensation.\nId. at 117, 357 S.E.2d at 673. We recognize Foster's mandate, however, when Foster is read in view of G.S. 97-42 and policy considerations, the decision of the Commission must stand.\nG.S. 97-42 dictates that any payments made by an employer to the injured employee during the period of her disability which were not due and payable when made, may, subject to the approval of the Industrial Commission, be deducted from the amount to be paid as workers\u2019 compensation. Foster recognized that the Commission must not make a complete denial of the credit to the employer; however, that is not the situation here. In the instant case, the Commission decided to award a credit to the defendant-employer, albeit not a full 100% credit.\nThe Commission\u2019s justification for not awarding the full credit was more than adequate. Baxter Travenol\u2019s private insurer paid the plaintiff only $2,797.44; the Commission later awarded $3,769.79 to plaintiff. The difference between these awards was less than $1,000 \u2014a very small amount for any plaintiff to contest. In order to award attorney\u2019s fees of any significance, the Commission correctly calculated the fees on the basis of the total award instead of the $1,000 difference. As the Commission recognized, in contested workers\u2019 compensation cases today, access to competent legal counsel is a virtual necessity. If attorney\u2019s fees were allowed to be calculated from only the difference between the workers\u2019 compensation award and the private insurer\u2019s payment, then almost no attorney could afford to take a contested case where voluntary payments had already been made. Leaving injured employees without the representation they need to obtain the complete and total amount of their workers\u2019 compensation award would defeat the purposes of the Act. In fact, employers would be encouraged to contest liability and meanwhile make voluntary payments less than that required by the Workers\u2019 Compensation Act.\nThe Commission\u2019s award in its discretion of a 75% credit to defendant for payments made through its private insurer and the award of the remaining 25% to plaintiff to fund attorney\u2019s fees based upon the full workers\u2019 compensation award is well within the Commission\u2019s discretionary authority. The Commission\u2019s action compensated plaintiff\u2019s counsel for his essential legal services, and the award was within the Commission\u2019s authority to approve fee payments pursuant to G.S. 97-90(c). The Commission\u2019s award allowed the defendant credit for payments that they had already made through their private insurer less only the plaintiffs reasonable attorney\u2019s fees calculated and based upon the amount of the entire worker\u2019s compensation award. This award complies with the requirements of Foster and is authorized by the statute since all credit given by the Commission in these circumstances is \u201csubject to the approval\u201d of the Industrial Commission. G.S. 97-42. The explicit language of G.S. 97-42 and the need to preserve the efficacy of the Workers\u2019 Compensation Act mandates our decision here affirming the award of the Industrial Commission.\nAffirmed.\nJudge JOHNSON concurs.\nJudge PARKER dissents.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge PARKER\ndissenting.\nI respectfully dissent from that portion of the majority opinion affirming the reduction in the credit and the increased attorney\u2019s fee. The majority purports to recognize the mandate in Foster v. Western-Electric Co., 320 N.C. 113, 357 S.E.2d 670 (1987), but then superimposes a different interpretation upon the language of N.C.G.S. \u00a7 97-42. Nothing in the Court\u2019s application of N.C.G.S. \u00a7 97-42 in Foster suggests that the Commission has any discretion to reduce the amount of an employer\u2019s credit. To the contrary, the Court specifically stated:\n[P]olicy considerations dictate that an employer such as defendant . . . should not be penalized by being denied full credit for the amount paid as against the amount which was subsequently determined to be due the employee under workers\u2019 compensation.\nId. at 117, 357 S.E.2d at 673 (emphasis added). Read in light of this language in Foster, the words in N.C.G.S. \u00a7 97-42 \u201csubject to the approval of the Industrial Commission\u201d do not import discretion to allow or disallow a credit in whole or in part, but rather authorize review by the Commission to assure that (i) the payment by the employer qualifies as a matter of law for a credit and (ii) the amount deducted as a credit has in fact been paid to the employee by the employer.\nIn the present case the effect of the Commission\u2019s action was to award plaintiff a duplicative payment of twenty-five percent of the benefits received under the employer\u2019s sickness and disability plan in order to provide a pool of funds from which to pay plaintiff\u2019s legal fee. Discussing the policy considerations in Foster the Court stated:\nFinally, the Act disfavors duplicative payments for the same disability. We recognize also that allowing double recovery reduces the incentive to adopt private disability plans providing for immediate payment of benefits.\n320 N.C. at 117, 357 S.E.2d at 673 (citation omitted).\nMoreover, by allowing this duplicative payment to provide plaintiff\u2019s legal fee, the Commission indirectly taxed defendant employer with an attorney\u2019s fee award and thereby exceeded its statutory authority. The Commission specifically declined to assess plaintiff\u2019s legal fee as part of the costs under N.C.G.S. \u00a7 97-88 stating, \u201c[W]e do not find here the lack of merit in the defendants\u2019 position that traditionally motivates the Commission to make a fee award under that section.\u201d See Bowman v. Chair Co., 271 N.C. 702, 159 S.E.2d 378 (1967) (Absent specific statutory authority, the Commission has no power to award attorney\u2019s fee.).\nThe countervailing policy arguments espoused by the Commission may be worthy of consideration; however, certain statements made by the Commission to support its decision are not supported by any evidence in the record. For example the Commission stated:\n[W]e would note that employers create these plans out of motives other than covering possible compensation liability. Indeed, the credit is available only in instances the employer has paid other benefits believing compensation is not due. In most cases, the plans pay greater benefits than the Act requires for some period of time. As a matter of practical fact, many if not most employers recover money for their sickness and accident plans from their compensation carrier when the credit is allowed, and thus benefit financially from the success of plaintiff\u2019s counsel, at least in the short run.\nTo the extent these comments are intended to be findings of fact, the record is devoid of any evidence upon which to find them.\nFor the foregoing reasons, I vote to reverse the portion of the opinion and award reducing the credit, in order to augment the attorney\u2019s fee award.", "type": "dissent", "author": "Judge PARKER" } ], "attorneys": [ "Cox, Gage and Sasser, by Robert H. Gage, for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe, by Mel J. Garofalo, for defendant-appellants." ], "corrections": "", "head_matter": "IRENE H. CHURCH, Employee-Plaintiff v. BAXTER TRAVENOL LABORATORIES, INC., Employer-Defendant, and AMERICAN MOTORISTS INSURANCE COMPANY, Carrier-Defendant\nNo. 9010IC1268\n(Filed 5 November 1991)\n1. Master and Servant \u00a7 55.3 (NCI3d)\u2014 workers\u2019 compensation-shoulder injury \u2014new conditions of employment\nThe Industrial Commission correctly concluded that plaintiff suffered an injury by accident where plaintiff was injured while lifting bags of intravenous solution five working days after being transferred to that position after working about five years as an accounting clerk, which did not involve lifting. Plaintiff was not yet proficient in her new department and was not performing her usual work routine at the time of the injury.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 227, 228.\n2. Master and Servant \u00a7 68.4 (NCI3d)\u2014 workers\u2019 compensation \u2014 shoulder injury \u2014 thoracic outlet syndrome\nThe Industrial Commission did not err by striking the deputy commissioner\u2019s finding that plaintiff\u2019s incapacity to earn wages after 11 November 1988 was due to Thoracic Outlet Syndrome, a congenital disease, and that plaintiff did not suffer a compensable occupational disease, where the record viewed as a whole supports the Commission\u2019s conclusion that the parties did not try the TOS issue by consent.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 296-298.\n3. Master and Servant \u00a7 69 (NCI3d>\u2014 workers\u2019 compensation \u2014 disability payments \u201475% credit to employer\nThe Industrial Commission did not err in a workers\u2019 compensation action by reducing a 100% credit to defendant-employer for disability payments to 75% and awarding the remaining 25% to plaintiff as attorney\u2019s fees based on the full workers\u2019 compensation award. Access to competent legal counsel is a virtual necessity in contested workers\u2019 compensation cases today and this award complies with the requirements of Foster v. Western-Electric Co., 320 N.C. 113, and is authorized by N.C.G.S. \u00a7 97-42, since all credit given in these circumstances is subject to the approval of the Industrial Commission.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 644, 646.\nJudge PARKER dissenting.\nAPPEAL by defendants from Opinion and Award filed 26 July 1990 by Commissioner J. Randolph Ward. Heard in the Court of Appeals 27 August 1991.\nCox, Gage and Sasser, by Robert H. Gage, for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, by Mel J. Garofalo, for defendant-appellants." }, "file_name": "0411-01", "first_page_order": 439, "last_page_order": 447 }