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Royce v. Rushco Food Stores8/1/2000
Appeal by plaintiff and defendants Rushco Food Stores, Inc. (Rushco) and Casualty Reciprocal Exchange (Casualty) from judgment entered 18 February 1999 by the North Carolina Industrial Commission (Commission). Heard in the Court of Appeals 11 May 2000.
Plaintiff sustained compensable injuries to her left ankle on 15 May 1993, 5 February 1994, and 23 April 1994, resulting in an ulcer. Defendant Liberty Mutual Insurance Co. (Liberty) was the carrier on risk for the first compensable injury, and defendant Casualty was the carrier for the second and third compensable injuries. On 16 February 1995, plaintiff's ankle "re-ulcerated, spontaneously rupturing and bleeding." Plaintiff sought benefits which were denied by defendants. After a hearing, the deputy commissioner found that plaintiff was entitled to temporary total disability from 16 February 1995 until 7 July 1995. The deputy commissioner then concluded that the "two defendant-carriers are jointly and severally liable" and that each "shall pay at least fifty percent of the compensation due under this Opinion and Award."
Each party appealed to the Commission. Prior to the hearing before the Commission, plaintiff and defendant Liberty executed a compromise settlement agreement which was approved by the Commission on 18 July 1997. On 18 February 1999, the Commission affirmed the deputy commissioner's decision, with "minor modifications."
The Commission's findings include the following:
10. On 16 February 1995, plaintiff was standing at the cash register at work when a co-worker noticed that plaintiff was bleeding from the site of the previous injuries on her left ankle. Plaintiff does not recall having bumped into anything. Plaintiff again sought treatment from Dr. Thompson. The same ulcer site involved in the three prior injuries had re-ulcerated, spontaneously rupturing and bleeding.
11. Plaintiff did not sustain an injury by accident arising out of or in the course of her employment with defendant-employer on 16 February 1995.
12. Dr. Thompson testified that due to plaintiff's pre-existing severe chronic venostasis problem with varicosities, even bumping could and did cause a difficult or non-healing ulceration that resulted in spontaneous bleeding. The veins just underneath the surface of the skin over the ulceration were dilated and placed under tremendous pressure when plaintiff stood all day. At very high venous pressure, plaintiff's veins would break and bleed. All three injuries by accident aggravated plaintiff's pre-existing condition and were significant factors in the development and continuing problems of the non-healing ulcer on the left ankle that spontaneously erupted in February 1995.
13. Dr. Douglas Adams reviewed plaintiff's medical records at the request of the defendant-carrier Casualty..., although he never examined plaintiff. Based upon his review of the medical records, Dr. Adams opined that, assuming the ulcer developed after the first injury, the subsequent two injuries in 1994 did not substantially contribute to the condition plaintiff incurred in 1995. However, Dr. Adams further testified that he could not make a good estimate as to the cause of the 1995 condition because he did not examine plaintiff, and that Dr. Thompson was in a better position to evaluate plaintiff's condition. The Full Commission gives more weight to Dr. Thompson's causation opinions.
14. The non-healing ulcer on plaintiff's left ankle was a direct and natural result of all three compensable injuries by accident, each of which significantly contributed to the development and continuing problems of the non-healing ulcer which spontaneously erupted in February 1995
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