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Adams v. Barcalounger2/5/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Susan Kay Adams (Plaintiff) appeals the opinion and award of the Full Commission (the Commission) of the North Carolina Industrial Commission filed 18 October 2000 denying payment of medical expenses for the treatment of Plaintiff's carpal tunnel syndrome, and the Commission's order filed 11 December 2000 denying Plaintiff's motion for a new hearing.
On 17 June 1997, a deputy commissioner of the Industrial Commission filed an opinion and award in which he determined Plaintiff, during the course and scope of her employment with Barcalounger, had sustained a compensable injury by accident on 18 October 1995, resulting in a herniated cervical disk that caused Plaintiff arm pain. The deputy commissioner found Plaintiff to be totally disabled from 31 October 1995 until 27 May 1996, at which time Plaintiff reached maximum medical improvement and was assigned a ten-percent permanent partial disability rating for her back/neck injury. The deputy commissioner's award was not appealed to the Commission. On 3 October 1997, Plaintiff filed a Form 33 for change of condition, and the matter came before the Commission on 22 March 2000.
Deposition testimony taken for the first and second hearing revealed that Dr. Lucas J. Martinez (Martinez) had released Plaintiff to work with a thirty-pound lifting restriction on 27 May 1996. Between May 1996 and early 1997, Plaintiff's pain in her arms and shoulders worsened. On 6 February 1997, Plaintiff returned to Martinez, who requested a nerve conduction study from Dr. William Deans (Deans). The nerve conduction study, performed on 6 March 1997, led Martinez to conclude Plaintiff had a residual radiculopathy from her disk injury. As a result of these findings, Martinez changed Plaintiff's lifting limitations from thirty pounds to twenty pounds. Martinez testified the reduction in Plaintiff'slifting restrictions was not due to a change in Plaintiff's condition, but due to a change in his knowledge of Plaintiff's condition as it had existed since her accident. He continued to treat Plaintiff until September 1997. During the course of Plaintiff's treatment, Martinez did not believe carpal tunnel syndrome was the cause of Plaintiff's pain. The pain Plaintiff complained of was consistent with her neck injury, although some of the complaints were also of the type a person with mild carpal tunnel syndrome might express.
On 2 October 1997, Plaintiff began treatment with Dr. Scott S. Sanitate (Sanitate). Sanitate believed Plaintiff's problems more likely stemmed from her neck than from any distal extremity. On 7 January 1998, Plaintiff sought treatment from Dr. David E. Tomaszek (Tomaszek), who diagnosed her with severe carpal tunnel syndrome and performed left carpal tunnel release surgery on Plaintiff. Tomaszek determined that part of Plaintiff's problem derived from her neck injury. He also believed Plaintiff's carpal tunnel syndrome was related to Plaintiff's compensable 1995 injury. Tomaszek explained his opinion as follows:
I am deferring to [Deans'] opinion that [Plaintiff] had carpal tunnel [syndrome] back in 1995. I do not know what Deans thought about [Plaintiff's] clinical condition in 1997. Hypothetical number one, Deans still feels [Plaintiff has] a carpal tunnel despite normal EMGs. If that's the case, then I believe that [Plaintiff's] carpal tunnel has progr
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