Schofield v. Great Atlantic & Pacific Tea Co. , 32 N.C. App. 508 ( 1977 )

BRITT, Judge.

Defendant assigns as error the findings of fact and conclusions of law that plaintiff is entitled to compensation for further temporary total disability since 19 July 1974 because he then suffered a change of condition for the worse and has not reached the end of the healing period or maximum improvement. Specifically, defendant contends that the findings (1) that plaintiff had a change of condition for the worse and again became temporarily totally disabled on 19 July 1974, (2) that he has remained temporarily disabled since that date, (3) that at the time of the hearing [1 April 1976] he was still temporarily totally disabled, and (4) that he has still not reached maximum improvement or the end of the healing period, are not supported by sufficient evidence; and that conclusion of law number 1 stated above and the order for defendant to pay compensation and medical expenses based thereon are erroneous. We find no merit in the assignment.

At the outset we begin with the principle, well established in this jurisdiction, that the Workmen’s Compensation Act should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation. Cates v. Construction Co., 267 N.C. 560, 148 S.E. 2d 604 (1966); Guest v. Iron and Metal Co., 241 N.C. 448, 85 S.E. 2d 596 (1955); Henry v. Leather Co., 231 N.C. 477, 57 S.E. 2d 760 (1950).

The heart of defendant’s contention is that Dr. Carr, in the portion of his letter of 9 April 1974 quoted in the stipulations set forth above, gave plaintiff a rating of 50 percent permanent partial disability in his left leg, and there was not sufficient evidence to support a finding that plaintiff had a change of condition for the worse and again became temporarily totally disabled on 19 July 1974. This contention makes a brief review of the evidence relating to plaintiff’s medical treatment necessary.

While both parties find comfort in portions of Dr. Carr’s testimony, it was the perogative of the commission to find the facts from conflicting evidence. Portions of his testimony most favorable to plaintiff tended to show:

Plaintiff was referred to Dr. Carr in September 1972 by a Statesville physician who performed surgery on plaintiff’s knee on 13 June 1972. In that surgical operation a loose torn cartilage was removed but the knee continued to give plaintiff trouble; fluid accumulated and plaintiff endured considerable pain. After prescribing extensive physical therapy for plaintiff and seeing him on numerous occasions over a period of some five months, Dr. Carr performed surgery on the knee on 13 February 1973. At that time Dr. Carr found that plaintiff had fragments of the medical miniscus caught up behind the condyle in a cul-de-sac, an area not seen by the original operating surgeon. Plaintiff remained in the hospital for nine days following this surgery, and from then until August 1973 he was treated as an outpatient at the hospital in Statesville with physical therapy and was seen monthly by Dr. Carr.

As of August 1973 plaintiff was still limping, suffering considerable pain when weight was put on the leg and his progress was unsatisfactory. Dr. Carr then consulted his associate Dr. Wrenn and later on they decided that further surgery, a tribial osteomoty, was advisable. They performed the operation on 6 November 1973 after which Dr. Wrenn, due to a lengthy absence by Dr. Carr, took charge of the case until April 1974.

On 9 April 1974 Dr. Carr saw plaintiff and reviewed Dr. Wrenn’s notes covering the period of time Dr. Carr was absent. It was then that Dr. Carr wrote the letter rating plaintiff’s permanent leg disability at 50 percent. In his testimony Dr. Carr stressed the clause that the prognosis was questionable, stating: “I did not attempt to say that he had reached his maximum point of recovery because I said permanent partial disability in his leg now and prognosis for improvement is questionable, at least partly guarded . . . . ”

Dr. Carr saw plaintiff again in May 1974. Regarding this visit he described plaintiff thusly: “ . . . He was worried, mentally distressed, quite depressed. He had lost 30 pounds of weight. He was still using crutches and from then on the next month, he was even worse- symptomatically. He had some fluid in it, and that was removed on the 5th of June and he came back in July.” He saw plaintiff again on 10 July 1974 at which time plaintiff “certainly was not improved.” He then consulted with Dr. Wrenn regarding the possibility of replacing plaintiff’s knee joint with an artificial knee and at that point turned the case over to Dr. Wrenn.

Dr. Wrenn’s testimony is summarized in pertinent part as follows:

He examined plaintiff in July 1974 for “reevaluation of his situation.” He concluded that the only chance for plaintiff to receive relief would be to undergo a total knee replacement procedure by which the joint surfaces of the thigh bone and shin bone are removed and replaced with artificial ones. That operation was accomplished on 30 August 1974 but did not give plaintiff relief.

In December 1975 further surgery was performed at which time plaintiff’s knee cap was removed after which plaintiff contracted a wound infection. He was readmitted to the hospital in February 1976 where he remained some six weeks with a knee infection. As of the date of the hearing the infection was clearing up slowly but none of the surgical procedures had produced the desired results.

With respect to plaintiff’s maximum point of recovery, Dr. Wrenn stated that he did not know but “I have hope it will improve.” He rated plaintiff’s leg disability at 80 percent and stated that the operation in August 1974 was intended to lessen plaintiff’s disability.

The findings of fact of the Industrial Commission are conclusive on appeal when they are supported by any competent evidence, even though there is evidence that would support a contrary finding. 5 Strong, N. C. Index 2d, Master and Servant, § 96, p. 484. We hold that the findings of fact challenged by this assignment are supported by sufficient evidence and that the conclusion of law and order predicated thereon are not erroneous.

By its second assignment of error defendant contends the finding of fact and conclusion of law adopted by the commission that defendant is responsible for the payment of all medical expenses incurred by plaintiff since 19 July 1974, said medical treatment having been obtained by him with a view of tending to lessen his period of disability, are not supported by sufficient evidence. This assignment is without merit.

G.S. 97-25 provides in pertinent part that “[m]edical, surgical, hospital, nursing services, medicines . . . and other treatment ... as may reasonably be required to effect a cure or give relief and for such additional time as in the judgment of the Commission will tend to lessen the period of disability, . . . shall be provided by the employer. ...”

Defendant argues that plaintiff reached maximum improvement in April 1974 and that it was not required to furnish experimental medical treatment in the absence of evidence supporting a finding that the treatment would tend to lessen disability, and which treatment even with a good result could only bring a “hope it would lessen” plaintiff’s complaint.

While reviewing in retrospect the medical treatment received by plaintiff one might conclude that he would have been better off had he received no surgical treatment after July 1974, we must consider his situation at that time. When Dr. Carr saw plaintiff in May 1974 he was mentally distressed, had lost 30 pounds and was having to use crutches. As of 10 July 1974 plaintiff was not improved. The medical testimony discloses that while physical therapy administered prior to that time considerably improved the flexibility of plaintiff’s knee area, nothing that was done made it possible for plaintiff to put more than a minimum of weight on his leg. The accumulation of fluid, accompanied by considerable pain in the knee area persisted.

As stated above, Dr. Wrenn testified that while he did not know if the surgical operations would result in improvement, he had hopes that they would and that they were intended to lessen plaintiff’s disability.

We hold that the challenged finding of fact is supported by sufficient evidence and that the commission was authorized to require defendant to pay for the additional medical treatment. G.S. 97-25.

For the reasons stated, the award appealed from is

Affirmed.

Judges Hedrick and Clark concur.