Rainey v. City of Charlotte (5/17/16)
This case the North Carolina Court of Appeals analyzed N.C. Gen. Stat. §97-58 and the statutory time limit to file an occupational disease. The Court dismissed an injured worker’s claim based on plaintiff’s failure to comply with the time requirements of the statute based on the plaintiff’s own admissions.
Facts and Procedural History:
The plaintiff in this case worked as an automotive mechanic for Defendant-Employer for 18 years. His job required frequent and strenuous use of his arms and shoulders. In May of 2000, plaintiff was advised by an orthopedic surgeon that he had osteoarthritis in his right shoulder, and would likely need a total shoulder arthroplasty in the future and should consider modifying his job duties. Plaintiff declined surgical intervention and continued to work in his same job for Defendant-Employer. His shoulder problems persisted and at times, plaintiff had to request assistance from co-workers.
On December 1, 2009 plaintiff retired due to pain in his left shoulder which had rendered him incapable of performing his job.
On October 1, 2012, plaintiff presented to a different doctor and reported a 12 year history of left shoulder pain which had worsened in recent months. Plaintiff was diagnosed with end-stage arthritis in his left shoulder. Plaintiff was referred for a surgical evaluation and on November 5, 2012, plaintiff underwent a left total shoulder arthroplasty and was written completely out of work following surgery.
Plaintiff filed a workers’ compensation claim on November 29, 2012 alleging an occupational disease of his left shoulder. Defendants denied plaintiff’s claim and contended that the claim should be dismissed for lack of jurisdiction due to plaintiff’s failure to file his claim within the requisite time period. The Deputy Commissioner and the Full Commission both agreed with the defendants and concluded that plaintiff had failed to file his claim within the requisite time period and dismissed the claim for lack of jurisdiction. The Plaintiff appealed to the North Carolina Court of Appeals.
Applicable Statute and/or Law:
Citing N.C. Gen. Stat. §97-58 (2015) and case law interpreting that statute, the Court of Appeals stated that an occupational disease claim must be filed within two years of 1) the plaintiff being rendered incapable (by the occupational disease) of earning wages the employee was receiving at the time of the incapacity by such injury (ie “death, disability, or disablement as the case may be.” And 2) the plaintiff being informed by competent medical authority of the nature and work-related cause of the disease.
The Court of Appeals emphasized that the two year period for filing claims for an occupational disease does not being to run until both of these factors exist.
Analysis of evidence:
Even though plaintiff had had no meaningful work since his retirement on December 1, 2009, plaintiff’s attorney argued that 1) plaintiff’s “retirement is irrelevant to any analysis of disability” and 2) that plaintiff could not have been disabled before the November 5, 2012 surgery date because that was the first time plaintiff had received written restrictions taking plaintiff out of work and that, as it was argued “when there are no medical restrictions ‘because of’ a compensable injury or disease, ‘disability’ does not exist as a matter of law.”
The Court of Appeals rejected these arguments. At hearing, the plaintiff testified repeatedly that he stopped working for Defendant’s Employer because of the pain in his left shoulder. Therefore, the Court found that, unlike the cases cited by plaintiff’s attorney, the plaintiff’s retirement in this case was wholly related to the alleged injury.
The Court of Appeals’ response to plaintiff’s second argument was useful to the defendants in this case but no doubt frustrating for the defense community in general. The Court of Appeals’ response was that “[t]his Court has previously held that an employee’s own testimony as to pain and ability to work is competent evidence as to the employee’s ability to work.” Based on this evidence and analysis, the Court of Appeals concluded that plaintiff was disabled within the meaning of the Workers’ Compensation Act on December 1, 2009, the date he retired.
Informed by Competent Medical Authority:
On May 9, 2000, plaintiff presented to an orthopaedic surgeon for evaluation of a right shoulder complaints. The medical record stated that plaintiff told the doctor that his job required heavy use of his shoulders. The plaintiff was diagnosed with “severe osteoarthritis right shoulder,” and was instructed to consider modifying his work.
At deposition, Dr. Dunaway confirmed that it was his diagnosis of arthritis that would have led to a total shoulder arthroplasty. He also acknowledged that the nature of plaintiff’s work, as referenced in his report, would require the use of and could injure both shoulders. However, due to the passage of time, Dr. Dunaway admitted that he had no independent recollection of the examination apart from his report. Dr. Dunaway could only testify that he “assumed” (since it was detailed in the record) that he had discussed with plaintiff that he needed to modify his job duties due to the possible effects on his shoulders. Dr. Dunaway also testified that he “would think” that he told the plaintiff that his job duties were aggravating his shoulder problems.
The Court of Appeals was hesitant to rely solely on Dr. Dunaway’s statements that he “assumed” to have made or “would think” to be true and cited the 1984 Lawson v. Cone Mills case which stated “[I]t is not enough for the medical authority to ‘assume’ he told a worker his disease ‘may have been’ work related.”
However, the Court of Appeals referenced plaintiff’s own testimony at hearing, which the Court described as an “evidentiary admission,” as evidence that corroborated Dr. Dunaway’s recollection. At hearing, plaintiff testified that, in 2000, Dr. Dunaway evaluated and made recommendations for total shoulder replacements for both of plaintiff’s shoulder. Plaintiff further testified that Dr. Dunaway had told him that his job was causing his shoulder problems.
Based on this evidence and analysis, the Court of Appeals concluded that plaintiff was informed by Dr. Dunaway on May 9, 2000 of the nature and work-related cause of his left shoulder injury.
The Court concluded that, as of December 1, 2009, plaintiff had been informed by competent medical authority of the nature and work-related cause of the disease and had been rendered incapable of earning wages he was receiving at the time of his incapacity by that disease. Therefore, since plaintiff did not file his claim until November 5, 2012, he had not complied with the two year statute of limitations detailed in N.C. Gen. Stat. §97-58 and his claim was barred.
- The 2 year statute of limitations for filing an occupational disease claim does not start running until the plaintiff has been advised by competent medical authority of the nature and work related cause of the disease and has been rendered incapable of earning wages he was receiving at the time of his incapacity by that disease. BOTH factors have to be present for the statute to begin to run.
- Retirement is evidence of disability when the employee’s decision to retire was wholly related to the alleged injury as evidence by employee’s hearing testimony.
- An employee’s own testimony as to pain and ability to work can be competent evidence as to the employee’s ability to work.
- Medical records without a doctor’s independent recollection of what he or she discussed with an employee may not be enough to establish advice by a competent medical authority. Be wary of doctor’s statements that they “assumed” or “would think” they advised an employee of the nature and work related cause of a disease. Look to corroborate that evidence with plaintiff’s testimony “evidentiary admission” or other evidence as available and necessary.