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McLawhorn v. Caswell Center10/18/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Plaintiff appeals from the 29 September 2004 Opinion and Award of the Industrial Commission denying additional benefits to her husband, Edsel McLawhorn. Plaintiff contends that the Commission failed to make adequate findings of fact to support its conclusion of law that Mr. McLawhorn did not suffer a compensable occupational disease. Because there was no occupational disease claim properlybefore the Industrial Commission, we affirm the full Commission's Opinion and Award.
Mr. McLawhorn worked as a plumber for the Caswell Center from 1974 until 1993. His duties included maintenance and repair work and required him to kneel and bend, work on his knees, climb ladders, carry heavy equipment, and occasionally dig ditches.
On 27 August 1993, Mr. McLawhorn suffered an injury by accident when he slipped in a ditch while carrying a pipe on the job. He reported his injury to the plant nurse who referred him to Dr. Eugene Pate, who diagnosed him with a possible meniscus tear. Mr. McLawhorn sought a second opinion from Dr. Max Kasselt, an orthopaedic surgeon, who diagnosed him with calcium pyrophosate induced crystal arthritis in his left knee.On 17 September 1993, Defendant completed a Form 19 report of the 27 August 1993 accident, which stated the injury as being Mr. McLawhorn's "left knee."
On 24 September 1993, Mr. McLawhorn alleged another injury to his left knee from using a shovel. Dr. Kasselt placed him on light duty at work for four weeks with restrictions, including no shovel or ditch work. In October 1993, Dr. Kasselt performed diagnostic arthroscopy on Mr. McLawhorn's knee. Dr. Kasselt found no evidence of any meniscal pathology (tear) that could account for Mr. McLawhorn's symptoms, but he did find advanced degenerative joint disease involving three compartments of Mr. McLawhorn's left knee. In a physician's note dated 15 October 1993, Dr. Kasselt stated that Mr. McLawhorn had an arthritic condition which preceded hiswork injury, but that his knee was temporarily aggravated by the injury.
On 10 November 1993, Mr. McLawhorn and Defendant signed a Form 21 Agreement for Compensation for Disability for a period of 3 and 5/7 weeks. Defendant stated on the Form 21 that the accident resulted in injury to Mr. McLawhorn's "left knee." Pursuant to the Form 21 and the Industrial Commission's approval, Defendant paid Mr. McLawhorn for all time lost due to his left knee problems from September through October 1993, as well as his medical bills from Dr. Kasselt.
On 29 November 1993, Dr. Kasselt noted that Mr. McLawhorn was at maximum medical improvement and gave him permanent restrictions of no prolonged repetitive bending, climbing or kneeling, as well as no prolonged working in ditches. On 19 January 1994, Dr. Kasselt diagnosed Mr. McLawhorn with three compartment degenerative joint disease, calcium pyrophosphate arthropy, and status post arthroscopy. Dr. Kasselt further stated that Mr. McLawhorn's knee was predestined to fail. In response to Mr. McLawhorn's request for information regarding his permanent disability, Dr. Kasselt stated that his knee condition was degenerative and was not work related. Dr. Kasselt gave Mr. McLawhorn a fifty percent disability rating due to the degenerative tear and arthritis in his knee.
Mr. McLawhorn did not work again after 4 February 1994. On 9 February 1994, Dr. Kasselt saw Mr. McLawhorn and diagnosed him with polyarticular psoriatic arthritis
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