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Parker v. Wackenhut Corp.8/2/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Defendant-employer appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission") awarding temporary total and permanent partial disability benefits to plaintiff-employee for an injury to her left knee. We affirm.
Competent evidence of record tends to show that plaintiff began working for The Wackenhut Corporation ("defendant") on 2 February 2001, as a food service supervisor at Rivers Correctional Institution in Winton, North Carolina. While at work on themorning of 22 August 2001, plaintiff slipped and fell on a wet floor in the prison's kitchen, landing on her right hip with her left leg splayed to the side. Plaintiff did not require medical attention on 22 August 2001, but sought treatment at the emergency room of Roanoke-Chowan Hospital on 27 August 2001, where she complained primarily of pain in her right hip but "let them know that it was some [left] knee pain, also." Plaintiff was diagnosed with a bruised hip and missed work for two days. Plaintiff returned to work on 3 September 2001, but continued to experience "knee pain and hip pain," which she alleviated by "taking breaks and sitting down." On 31 October 2001, plaintiff had to leave work in a wheelchair due to the pain and swelling in her left knee. The next day, 1 November 2001, she went to see her orthopedist, Dr. Lawrence Norman Larabee, Jr., who had previously performed an anterior cruciate ligament (ACL) reconstruction on her left knee in 1999. Based on his examination of plaintiff on 1 November 2001, Dr. Larabee took plaintiff out of work. A subsequent MRI of the knee revealed a degenerative meniscal tear and "tenuated fibers" of the reconstructed ACL. When more conservative treatment proved unsuccessful, Dr. Larabee performed arthroscopic surgery on plaintiff's knee on 8 April 2002. In addition to the meniscal tear revealed by the MRI, arthroscopy confirmed that plaintiff's reconstructed ACL was torn and stretched. Based upon his findings, Dr. Larabee performed a "partial medial and lateral meniscectomy, nterior cruciate ligament debridement of the patello femoral joint and chondroplasty" on plaintiff's knee. Following defendant's denial of her workers' compensation claim, plaintiff filed a Form 33 requesting a hearing before a deputy commissioner. Deputy Commissioner Wanda Blanche Taylor conducted the hearing on 13 May 2002, and determined that additional medical evidence was required to resolve plaintiff's claim. On 7 October 2002, the deputy commissioner submitted written questions to Dr. Larabee with instructions to "answer all opinion questions to a reasonable degree of medical certainty, that is what is probable, but not merely possible." For purposes of his responses, Dr. Larabee was asked to assume the following facts, which are consistent with the subsequent findings of the Commission:
Plaintiff was initially referred to you in August 1999 for complaints of the left knee. Plaintiff was employed with defendant-employer as a food service supervisor . . . . On August 22, 2001, plaintiff slipped on the cement floor landing on her buttocks in an awkward position. Her right leg was out to the front of her and her left leg was out to the side. Plaintiff did not receive medical treatment that day and finished work. By August 27, 2001, plaintiff continued to be in pain and was treated at the Roanoke Chowan Hospital emergency room where she was diagnosed with a bruised hip but also complained of left knee pain. . . . On Septe
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