{ "id": 4181322, "name": "CHAD McLEOD, Employee, Plaintiff v. North Carolina Industrial Commission WALMART STORES, INC., Employer, AMERICAN HOME ASSURANCE, Carrier, (CLAIMS MANAGEMENT, INC., Third-Party Administrator), Defendants", "name_abbreviation": "McLeod v. North Carolina Industrial Commission Walmart Stores, Inc.", "decision_date": "2010-12-21", "docket_number": "No. COA09-1645", "first_page": "555", "last_page": "562", "citations": [ { "type": "official", "cite": "208 N.C. App. 555" } ], "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": "634 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636688, 12636689, 12636687 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/634/0887-02", "/se2d/634/0887-03", "/se2d/634/0887-01" ] }, { "cite": "630 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635832, 12635833 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/630/0186-01", "/se2d/630/0186-02" ] }, { "cite": "620 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634111 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "292-93", "parenthetical": "quotation marks omitted" }, { "page": "292" }, { "page": "292-93" }, { "page": "292-93" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0288-01" ] }, { "cite": "656 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640366 ], "year": 2008, "pin_cites": [ { "page": "679", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0676-01" ] }, { "cite": "565 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "684", "parenthetical": "\"[T]he proper procedure for presenting alleged errors that purport to show that the judgment was erroneously entered and that an altogether different kind of judgment should have been entered is a cross-appeal.\"" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079136 ], "year": 2002, "pin_cites": [ { "page": "51", "parenthetical": "\"[T]he proper procedure for presenting alleged errors that purport to show that the judgment was erroneously entered and that an altogether different kind of judgment should have been entered is a cross-appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0040-01" ] }, { "cite": "692 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "638", "parenthetical": "\"Unchallenged findings of fact by the Commission are binding on appeal.\"" } ], "opinion_index": 0 }, { "cite": "674 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "433", "parenthetical": "citation and quotation marks omitted" }, { "page": "433" }, { "page": "433" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166985 ], "year": 2009, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0315-01" ] }, { "cite": "592 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "218", "parenthetical": "citations, quotation marks, ellipses, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919824 ], "year": 2004, "pin_cites": [ { "page": "691", "parenthetical": "citations, quotation marks, ellipses, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0688-01" ] }, { "cite": "360 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788297 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0587-01" ] }, { "cite": "360 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795524, 3791880, 3786634, 3787853, 3795054, 3792467, 3789494, 3787773 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0364-06", "/nc/360/0364-02", "/nc/360/0364-07", "/nc/360/0364-05", "/nc/360/0364-08", "/nc/360/0364-04", "/nc/360/0364-03", "/nc/360/0364-01" ] }, { "cite": "174 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350684 ], "year": 2005, "pin_cites": [ { "page": "135-36", "parenthetical": "quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0128-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "188 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155886 ], "year": 2008, "pin_cites": [ { "page": "758", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0755-01" ] } ], "analysis": { "cardinality": 718, "char_count": 15120, "ocr_confidence": 0.751, "pagerank": { "raw": 6.428965615154966e-08, "percentile": 0.39721369855925964 }, "sha256": "43fe21a30c241230841c424530af290f138b3a2cd0689a8eaf95a1d84930edf8", "simhash": "1:a62a77aabf3f0042", "word_count": 2329 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ERVIN concur." ], "parties": [ "CHAD McLEOD, Employee, Plaintiff v. North Carolina Industrial Commission WALMART STORES, INC., Employer, AMERICAN HOME ASSURANCE, Carrier, (CLAIMS MANAGEMENT, INC., Third-Party Administrator), Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nDefendants appeal an opinion and award awarding plaintiff benefits and determining that defendant-employer had not provided plaintiff with suitable employment. For the following reasons, we affirm.\nI. Background\nOn 13 July 2009, the Full Commission made the following uncontested findings of fact:\n9. Defendants submitted a job description for plaintiff\u2019s position, entitled \u201cmaintenance associate.\u201d The description includes the following essential functions: \u201creaching . . . below knee level and bending, twisting or stooping\u201d; \u201cconstantly lifting, sorting, carrying, and placing merchandise and supplies of varying sizes weighing up to 50 pounds without assistance, and regularly lifting and pushing over 50 pounds with team lifting\u201d; and \u201cconstantly utilizing power equipment, such as a floor buffer, pallet jack, and burnisher.\u201d\n11. On July 22, 2006, plaintiff injured his low back while trying to move a stack base that weighed over 100 pounds. He immediately experienced low back pain and pain down his right leg.\n12. Plaintiff began treating for this second injury with Dr. James Maultsby\u2019s office, which was the provider designated by defendants. On July 22, 2006, Dr. Maultsby\u2019s nurse practitioner assessed plaintiff with low back pain with radiation and restricted him to no lifting over five pounds. On July 26, 2006, Dr. Maultsby assessed plaintiff with degenerative joint disease at L5-S1 and a lumbosacral strain and restricted him to limited stooping and bending and no lifting over 10 pounds.\n13. Over the next several months, Dr. Maultsby\u2019s office gradually lifted the restrictions on plaintiff, and plaintiff gradually worked more hours.\n15. A lumbar MRI on July 31, 2006 showed a small central disc herniation at L5-S1 with no nerve root compression.\n16. Plaintiff went back to Dr. Huffmon on October 5, 2006, complaining of low back pain radiating down his right leg. Dr. Huffmon assessed plaintiff with sacroiliitis and referred him for an injection and chiropractic treatment.\n19. Plaintiff saw Dr. Maultsby for the last time on January 10, 2007. That day, plaintiff reported that he was better and working his regular shift. Dr. Maultsby attributed any remaining problems to conditions that existed before plaintiff\u2019s July 22', 2006 injury, including rheumatoid arthritis, and he released plaintiff from his care.\n20. On July 5, 2007, plaintiff presented to Dr. Adam Brown, a neurosurgeon, for a second opinion evaluation on his permanent partial disability rating. Dr. Brown noted that plaintiff was still showing low back and right leg symptoms, and he opined that they \u201care probably exacerbated by his current job.\u201d Dr. Brown further noted that \u201cHe would probably be better off in a management or desk type position than he is now and I would suggest this if possible.\u201d\n21. As of the hearing before the Deputy Commissioner, defendant employer had not offered plaintiff any other job, and he continued working on the floor crew.\n22. Plaintiff continued to have low back pain at work, with pain shooting down both legs. He was taking Oxycontin to try to control his pain.\nBased on its findings of fact and conclusions of law the Full Commission ordered, inter alia-.\nDefendants shall pay all medical expenses incurred by plaintiff as a result of this iryury by accident. Dr. Huffmon is hereby designated as plaintiffs treating physician, and defendants shall authorize and pay for the treatment that Dr. Huffmon recommends for plaintiffs compensable low back condition, including, but not limited to, diagnostic testing, surgery, physical therapy, prescriptions, referrals and mileage.\nDefendants appeal.\nII. Standard of Review\nOur review of the Commission\u2019s opinion and award is limited to determining whether competent evidence of record supports the findings of fact and whether the findings of fact, in turn, support the conclusions of law. If there is any competent evidence supporting the Commission\u2019s findings of fact, those findings will not be disturbed on appeal despite evidence to the contrary. However, the Commission\u2019s conclusions of law are reviewed de novo.\nGraham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 758, 656 S.E.2d 676, 679 (2008) (citation omitted).\nIII. Benefits Awarded\nOn or about 15 August 2006, defendant-employer signed a Form 60 regarding plaintiff\u2019s 22 July 2006 \u201cinjury by accidentf.]\u201d Pursuant to Perez v. Am. Airlines/AMR Corp.:\n[a] party seeking additional medical compensation pursuant to N.C. Gen. Stat. \u00a7 97-25 must establish that the treatment is directly related to the compensable injury. Where a plaintiff\u2019s injury has been proven to be compensable, there is a presumption that the additional medical treatment is directly related to the compensable injury. The employer may rebut the presumption with evidence that the medical treatment is not directly related to the compensable injury.\nThe employer\u2019s filing of a Form 60 is an admission of compensability. Thereafter, the employer\u2019s payment of compensation pursuant to the Form 60 is an award of the Commission on the issue of compensability of the injury. As the payment of compensation pursuant to a Form 60 amounts to a determination of compensability, we conclude that the Parsons presumption applies in this context. ... It follows logically that because payments made pursuant to a Form 60 are an admission of compensability under the Workers\u2019 Compensation Act, these payments are the equivalent of an employee\u2019s proof that the injury is compensable. As compensability has been determined by the employer\u2019s Form 60 payments, the Parsons presumption applies to shift the burden to the employer.\n174 N.C. App. 128, 135-36, 620 S.E.2d 288, 292-93 (2005) (quotation marks omitted), disc. review allowed, 360 N.C. 364, 630 S.E.2d 186, review improvidently allowed, 360 N.C. 587, 634 S.E.2d 887 (2006). As defendants have filed a Form 60, the burden was upon them to show \u201cthat the medical treatment is not directly related to the compensable injury.\u201d Id. at 135, 620 S.E.2d at 292.\nDefendants argue that \u201cPlaintiff\u2019s degenerative low back condition is the result of Plaintiff\u2019s pre-existing degenerative disc disease, and is not related to the long-resolved low back muscular strain work injury of 22 July 2006.\u201d Defendants direct our attention to the testimony of Dr. Adam Brown and Dr. James Maultsby as evidence \u201cthat the medical treatment is not directly related to the compensable injury.\u201d Id.\nDr. Brown testified that there was \u201csome correlation\u201d between plaintiff\u2019s degenerative disk disease and plaintiff\u2019s \u201cpain ... [and] limitation of activity[.]\u201d However, Dr. Brown\u2019s statements as to \u201csome correlation\u201d do not satisfy defendants\u2019 burden of showing \u201cthat the medical treatment is not directly related to the compensable injury.\u201d Id.\nDr. Maultsby testified that he felt plaintiff\u2019s \u201cback strain had resolved. I felt he had pain in extremity from a preexisting problem at that time.\u201d Dr. Maultsby was asked, \u201cWhat preexisting condition did you feel was causing his pain?,\u201d to which he replied:\nWell, of the arthritis that he was being treated for that he was taking Methotrexate for his arthritis. I felt that he may have had some preexisting scarring. I don\u2019t have his complete record from Dr. Huffmon as far as the things he was treating him for, but I think it was some kind of neurological problem within the nerve, not in the musculoskeletal system, the ligaments and things. He was \u2014 again, he was seeing at least two or three different doctors for various conditions, even before he had his injury, and I thought some of these other things were contributing to his pain in his extremity at that time.\nEven assuming arguendo that Dr. Maultsby\u2019s testimony regarding plaintiff\u2019s preexisting condition, if found to be credible and given sufficient weight, was enough to rebut the Parsons presumption, see id. at 135-36, 620 S.E.2d at 292-93, \u201c[t]he [F]ull Commission is the sole judge of the weight and credibility of the evidence. This Court is not at liberty to reweigh the evidence and to set aside the findings simply because other conclusions might have been reached.\u201d Roberts v. Century Contr\u2019rs, Inc., 162 N.C. App. 688, 691, 592 S.E.2d 215, 218 (2004) (citations, quotation marks, ellipses, and brackets omitted). Obviously, the Full Commission did not give much weight to Dr. Maultsby\u2019s testimony as they noted that he was originally plaintiff\u2019s treating physician and found in finding of fact 19 that \u201cDr. Maultsby attributed any remaining problems to conditions that existed before plaintiff\u2019s July 22, 2006 injury, including rheumatoid arthritis, and he released plaintiff from his care[,]\u201d but went on to note that Dr. Brown later found \u201cplaintiff was still showing low back and right leg symptoms\u201d and ultimately awarded plaintiff further medical expenses as directed by Dr. Huffmon, not Dr. Maultsby. We conclude that the Full Commission did not err in determining that defendants had not rebutted the Parsons presumption, see Perez at 135-36, 620 S.E.2d at 292-93, and therefore defendant was entitled to further compensation. This argument is overruled.\nIV. Suitable Employment\nDefendants also argue that \u201cthe Full Commission erred in concluding the floor crew/maintenance associate position is unsuitable.\u201d (Original in all caps.) \u201cSuitable employment is defined as any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills and experience. The burden is on the employer to show that an employee refused suitable employment.\u201d Munns v. Precision Franchising, Inc., 196 N.C. App. 315; 317-18, 674 S.E.2d 430, 433 (2009) (citation and quotation marks omitted).\nThe Full Commission found that \u201c[a]ll three physicians, Drs. Maultsby, Huffmon and Brown, agreed that working outside Dr. Huffmon\u2019s restrictions and/or doing heavy duty work would worsen plaintiff\u2019s pain.\u201d At Dr. Maultsby\u2019s deposition he was asked:\nLet me ask you this real quick, if I could. What is the- \u2014 -what\u2019s the danger, I guess, negative consequence of somebody having a lumbosacral strain, and then, you know, continuing to work heavy duty on it? I mean, what is the like heavy duty, I mean, lifting hundreds of pounds and stuff like that, what could be the negative consequences or outcomes of that?\nto which Dr. Maultsby responded, \u201cIt will recur, it will recur.\u201d Dr. Huffmon testified that if plaintiff was working beyond the work restrictions he placed on him, which included \u201cpushing or pulling up to 40 pounds [and] avoid[ing] bending or stooping,\u201d plaintiff would be at risk for increased pain. Dr. Brown testified that plaintiff \u201cwould be better off in a management or desk type position . . . like a light-duty position[.]\u201d Thus, there is competent evidence to support the Full Commission\u2019s finding that \u201c[a]ll three physicians, Drs. Maultsby, Huffmon and Brown, agreed that working outside Dr. Huffmon\u2019s restrictions and/or doing heavy duty work would worsen plaintiffs pain.\u201d\nDefendants do not challenge the description of plaintiff\u2019s job as a \u201cmaintenance associate,\u201d and the Full Commission in uncontested finding of fact 9 noted that the job required, inter alia:\nreaching . . . below knee level and bending, twisting or stooping; constantly lifting, sorting, carrying, and placing merchandise and supplies of varying sizes weighing up to 50 pounds without assistance, and regularly lifting and pushing over 50 pounds with team lifting; and constantly utilizing power equipment, such as a floor buffer, pallet jack, and burnisher.\n(Quotation marks omitted.); see generally Davis v. Hospice & Palliative Care, - N.C. App. -, 692 S.E.2d 631, 638 (2010) (\u201cUnchallenged findings of fact by the Commission are binding on appeal.\u201d). Accordingly, the tasks plaintiff was performing as a \u201cmaintenance associate\u201d were outside of Dr. Huffmon\u2019s restrictions, and as described by the doctors\u2019 testimonies also qualify as \u201cheavy duty.\u201d Thus, plaintiff\u2019s job \u201cwould worsen plaintiff\u2019s pain.\u201d Therefore, we conclude that the Full Commission did not err in concluding that plaintiff\u2019s job was not suitable employment as plaintiff is not \u201ccapable of performing [it] considering his ... physical limitations].]\u201d Munnsat 317, 674 S.E.2d at 433. Defendant-employer has failed to meet its burden of \u201cshow[ing] that . . . [plaintiff] refused suitable employment.\u201d Id. at 318, 674 S.E.2d at 433. This argument is overruled.\nV. Temporary Total Disability\nPlaintiff also notes in his brief that he \u201cis entitled to temporary total disability benefits until he returns to a suitable employment position[.]\u201d (Original in all caps.) However, plaintiff did not cross-appeal this issue, and thus we will not address it. See generally Harllee v. Harllee, 151 N.C. App. 40, 51, 565 S.E.2d 678, 684 (2002) (\u201c[T]he proper procedure for presenting alleged errors that purport to show that the judgment was erroneously entered and that an altogether different kind of judgment should have been entered is a cross-appeal.\u201d); see also N.C.R. App. P. 28(c) (allowing for appellee to raise additional questions without filing a notice of appeal or without assignments of error in certain situations not applicable to the present case).\nVI. Conclusion\nWe conclude that the Full Commission did not err in awarding plaintiff benefits and in concluding that defendant had not provided plaintiff with suitable employment. Therefore, we affirm.\nAFFIRMED.\nJudges McGEE and ERVIN concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Hardison & Cochran P.L.L.C., by J. Adam Bridwell, for plaintiff-appellee.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Dalton B. Green, for defendant-appellants." ], "corrections": "", "head_matter": "CHAD McLEOD, Employee, Plaintiff v. North Carolina Industrial Commission WALMART STORES, INC., Employer, AMERICAN HOME ASSURANCE, Carrier, (CLAIMS MANAGEMENT, INC., Third-Party Administrator), Defendants\nNo. COA09-1645\n(Filed 21 December 2010)\n1. Workers\u2019 Compensation\u2014 Parsons presumption \u2014 additional medical treatment \u2014 directly related to compensable injury\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that defendants had not rebutted the Parsons presumption that additional m\u00e9dical treatment was directly related to the compensable injury. A doctor\u2019s statements as to \u201csome correlation\u201d did not satisfy defendants\u2019 burden of showing that the medical treatment was not directly related to the compensable injury.\n2. Workers\u2019 Compensation\u2014 suitable work \u2014 physical limitations\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that a floor crew/maintenance associate position was unsuitable for plaintiff based on his physical limitations.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to cross-appeal\nAlthough plaintiff contended in his brief in a workers\u2019 compensation case that he was entitled to temporary total disability benefits until he returned to a suitable employment position, he failed to properly preserve this issue by cross-appealing.\nAppeal by defendants from Opinion and Award entered 13 July 2009 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 June 2010.\nHardison & Cochran P.L.L.C., by J. Adam Bridwell, for plaintiff-appellee.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Dalton B. Green, for defendant-appellants." }, "file_name": "0555-01", "first_page_order": 579, "last_page_order": 586 }