Martin v. Sears Roebuck Co. ( 2003 )

In its Opinion and Award, the majority denies plaintiff benefits. I respectfully dissent.

In the instant case, the plaintiff was injured on the job when she was struck in the low back by a metal cart on 26 November 1999. The plaintiff, a widow raising two children by herself, attempted to work through the pain. Furthermore, employees taking leave of any type during the holiday season was strongly discouraged by defendant-employer. On 20 February 2000, plaintiff exacerbated her work-related back condition while she was doing laundry at home. The plaintiff's condition deteriorated and she was unable to work due to pain beginning 19 March 2000. She was written out of work by Dr. Wilburn on 11 May 2000. Plaintiff subsequently made an unsuccessful trial return to work from 6 August 2000 to 16 August 2000. Plaintiff was able to return to employment for a different employer beginning 28 January 2003. Plaintiff's testimony was credible. The compensability of this claim as well as her period of disability is proven by the medical evidence of record.

I believe that the plaintiff in this case suffered a compensable injury and should be paid temporary total disability compensation from 19 March 2000 until 28 January 2003, less the period plaintiff was paid during her unsuccessful trial return to work. Defendants should also provide for all related medical expenses. After 28 January 2003, as appropriate, plaintiff should receive benefits pursuant to N.C. Gen. Stat. § 97-30. I therefore respectfully dissent.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER