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NO. COA06-375
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
CHARLIE T. THOMAS,
Employee,
Plaintiff-Appellant;
v. North
Carolina Industrial Commission
I.C.
File No. 059259
MCLAURIN PARKING COMPANY,
Employer;
HARLEYSVILLE INSURANCE COMPANY,
Carrier,
Defendant-Appellees.
Appeal by plaintiff from opinion and award entered 5 October
2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 December 2006.
Law
Offices of George W. Lennon, by George W. Lennon, for plaintiff appellant.
Lewis
& Roberts, PLLC, by Scott J. Lasso and Paul C. McCoy, for defendant appellees.
McCULLOUGH, Judge.
Charlie Thomas (“plaintiff”) appeals from an opinion and
award entered by the North Carolina Industrial Commission (“the Commission”)
denying plaintiff’s claims for worker’s compensation benefits based on the
finding and conclusion that plaintiff failed to establish an occupational
disease claim where he failed to show that his employment placed him at a
greater risk for contracting or developing his debilitating condition.
Plaintiff filed a notice of accident as required under the
Worker’s Compensation Act stating that he was injured or contracted an
occupational disease, namely inflammation of the left hip and leg, on 7 April
2000 due to the conditions of his employment.
The claim for compensation was denied by the employer and subsequently
set for hearing by a Deputy Commissioner. Deputy Commissioner, Phillip A.
Baddour, III, denied plaintiff’s claims and plaintiff appealed such decision to
the Commission. Plaintiff further motioned the Commission for leave to redepose
Dr. Cook and submit additional evidence on appeal.
The relevant facts found by the Commission are as follows:
Plaintiff was employed by McLaurin Parking Company (“defendant”) starting in
July 1999 and was assigned to work a controlled access parking gate at Wake
Medical Center. Plaintiff worked from a gatehouse which was located
approximately 10 to 15 feet from the gate requiring plaintiff to leave the
gatehouse in order to check persons in and out of the parking lot. Plaintiff
was provided with a small metal stool to sit on while inside the booth.
After beginning work with defendant, plaintiff began to
experience pain in his left hip area which he attributed to sitting on the hard
metal stool. Due to the pain, plaintiff did not return to work after 7 April
2000. Plaintiff was diagnosed with degenerative arthritis of the left hip by
Dr. Frederick Benedict, an orthopaedic surgeon.
The Commission further found that “plaintiff was more likely
at an increased risk of developing an aggravation of his arthritic condition
than members of the general public” and that plaintiff’s job conditions were
“not an activity to which the general public was equally exposed”; but that
there was no evidence that “plaintiff’s job placed him at a increased risk of
contracting or developing degenerative arthritis of the left hip than the
general public not so employed.”
The Commission concluded that plaintiff failed to establish
an occupational disease where he had not shown that his employment exposed him
to a greater risk of contracting the disease of degenerative arthritis than the
general public not so employed.
Plaintiff appeals.
Plaintiff first contends on appeal that the Commission erred
in failing to rule on plaintiff’s motion for leave to submit additional
evidence. We disagree.
Plaintiff correctly notes that the Commission is required to
decide all matters in controversy between the parties. Vieregge v. N.C.
State University, 105 N.C. App. 633, 638, 414 S.E.2d 771, 774 (1992).
The Commission noted in its opinion and award that “[t]he
appealing party has not shown good grounds to reconsider the evidence, receive
further evidence or rehear the parties or their representatives.” While this
ruling by the Commission is not as explicit as desired, it appears that an
implicit ruling has been made on the motions brought forward on appeal to the
Commission, and therefore it is unnecessary to remand the case to the
Commission for further rulings. This assignment of error is overruled.
Next, plaintiff contends that the Commission erred where the
findings of fact are not supported by competent evidence and are incomplete. We
disagree.
Plaintiff contends that the Commission erred in making
findings of fact 7, 8 and 9 where they are not supported by the evidence. The
standard of review for an opinion and award of the North Carolina Industrial
Commission is “(1) whether any competent evidence in the record supports the
Commission’s findings of fact, and (2) whether such findings of fact support
the Commission’s conclusions of law.” Creel v. Town of Dover, 126 N.C.
App. 547, 552, 486 S.E.2d 478, 480 (1997). “The Commission’s findings of fact
are conclusive on appeal if supported by competent evidence, notwithstanding
evidence that might support a contrary finding.” Hobbs v. Clean Control
Corp., 154 N.C. App. 433, 435, 571 S.E.2d 860, 862 (2002). In determining
the facts of a particular case, “[t]he Commission is the sole judge of the
credibility of the witnesses and the weight accorded to their testimony.” Effingham
v. Kroger Co., 149 N.C. App. 105, 109-10, 561 S.E.2d 287, 291 (2002).
Findings of fact 7, 8 and 9 are as follows:
7. At his
deposition, Dr. Benedict stated that there were not many treatment options he
could offer plaintiff. Dr. Benedict felt plaintiff’s pain was not severe enough
to perform cortisone injections or surgery. Dr. Benedict doubted that the type
of design of stool on which plaintiff sat was a substantial contributing factor
in the aggravation or acceleration of plaintiff’s symptoms. Dr. Benedict
stated, “just sitting in a normal chair getting up a hundred times a day
probably was as much a factor as anything.” Dr. Benedict’s opinion was that
plaintiff was more likely at an increased risk of developing an aggravation of
his arthritic condition than members of the general public. He also stated that
getting up and down a couple hundred times per day was not an activity to which
the general public was equally exposed. Additionally, Dr. Cook testified that
plaintiff was at an increased risk of injury to his left hip because of his pre-existing
arthritis in that hip, but he did not testify that plaintiff was at an
increased risk of injury to his left hip because of his employment.
8. Based upon the competent medical evidence of record, plaintiff’s degenerative arthritis of the left hip pre[-]existed his job with defendant-employer. This pre-existing condition was aggravated by plaintiff’s job duties, which required repetitive sitting and walking. However, plaintiff did not present evidence that his arthritis was characteristic of or peculiar to his employment.
9. While the
medical evidence shows that plaintiff’s job placed him at an increased risk of
aggravating his pre-existing arthritis, neither Dr. Cook nor Dr. Benedict
offered an opinion that plaintiff’s job placed him at an increased risk of
contracting or developing degenerative arthritis of the left hip than the
general public not so employed.
Plaintiff
attempts to assert on appeal that the Commission was unfamiliar with the
testimony of Dr. Cook and Dr. Benedict as reflected in the aforementioned
findings of fact. However, there is no merit to this contention. Plaintiff
specifically points to testimony by the doctors attributing the aggravation of
the plaintiff’s pre-existing arthritis to his job duties as evidence that the
Commission erred in finding that plaintiff’s injury was not caused by his
employment. However, plaintiff confuses the distinction made by the Commission
between the evidence regarding the employment causing the aggravation of the
arthritis and the employment causing the arthritic condition.
Neither doctor testified that plaintiff’s employment caused
his arthritis nor that his employment placed him at a greater risk for
contracting arthritis. Therefore, the Commission’s findings were sufficiently
supported by competent evidence as to be affirmed on appeal.
Plaintiff further argues that the Commission erred in
failing to make additional findings as to causation and failing to make
findings as to each element of an occupational disease claim.
However, “[t]he Commission is not required . . . to find
facts as to all credible evidence. That requirement would place an unreasonable
burden on the Commission. Instead, the Commission must find those facts which
are necessary to support its conclusions of law.” London v. Snak Time
Catering, Inc., 136 N.C. App. 473, 476, 525 S.E.2d 203, 205 (2000)
(citations omitted). In addition, the Commission is not required to make
findings of fact as to each element of an occupational disease claim upon
denial. “The denial of compensation may be predicated upon the failure of the
claimant to prove any one of the elements of compensability.” Hansel v.
Sherman Textiles, 304 N.C. 44, 54, 283 S.E.2d 101, 107 (1981). Therefore,
this assignment of error is overruled.
Finally, plaintiff contends that the Commission erred in
applying the standards set forth in Futrell v. Resinall Corp., 151 N.C.
App. 456, 566 S.E.2d 181 (2002), aff’d, 357 N.C. 158, 579 S.E.2d 269
(2003), ultimately concluding that plaintiff failed to prove his
occupational disease claim. We disagree.
The North Carolina Supreme Court set forth in a per
curiam opinion adopting the standards set forth in the majority opinion of
the Court of Appeals in Futrell and again recently enumerated the
standard for occupational disease claims in Chambers v. Transit Mgmt.,___
N.C. ___, ___ S.E.2d ___ (filed 17 November 2006) (No. 527A05) predicated upon
a theory of aggravation.
A plaintiff seeking compensation for an occupational disease
claim must establish that his disease or condition meets the following three
criteria: (1) the condition is “characteristic of persons engaged in the particular trade or occupation in which
the claimant is engaged;” (2) the condition is “not an ordinary disease of life
to which the public generally is equally exposed with those engaged in that
particular trade or occupation;” and (3) there is “‘a causal connection between
the disease and the [claimant’s] employment.’” Rutledge v. Tultex Corp., 308
N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (citations omitted). Our Courts have
“‘consistently defined the third element of the Rutledge test as being
met where the [plaintiff] can establish that the employment caused him to
contract the disease, or where he can establish that it significantly
contributed to or aggravated the disease.’”
Chambers, ___ N.C. at ___, ___ S.E.2d at ____.
Previous cases from this Court have held that evidence of
the aggravation of a pre-existing idiopathic condition caused by a claimant’s
employment is sufficient to establish a causal connection for an occupational
disease claim. Ruffin v. Compass Grp. USA, 150 N.C. App. 480, 484-86,
563 S.E.2d 633, 636-38 (2002). However, the Supreme Court in Chambers noted:
establishing that one’s employment aggravated the disease only satisfies the
evidentiary burden on the issue of causation. The employee must “‘nevertheless
satisfy the remaining two prongs of the Rutledge test by establishing
that the employment placed him at a greater risk for contracting the condition
than the general public.’” Chambers, ___ N.C. at ___, ___ S.E.2d at
___. It therefore follows that when a
claimant asserts an occupational disease claim predicating causation upon the
issue of aggravation, the claimant must further show that his employment placed
him at a greater risk for contracting the condition. Chambers,
___ N.C. at ___, ___ S.E.2d at ___; Rutledge, 151 N.C. App. at
459-61, 566 S.E.2d at 183-84.
Plaintiff states that the application of this standard is
inconsistent with previous case law articulated by this Court and the North Carolina
Supreme Court. Plaintiff asserts that to require a claimant to further prove
that one’s employment placed him at a greater risk for not only aggravating a
pre-existing condition but also contracting a pre-existing condition would all
but abrogate occupational disease claims asseverated on the premise of
aggravation. However, this argument is one that is beyond the scope of this
Court. We are bound to follow the precedent set by our Supreme Court and this
action is better addressed in the legislature of our state.
No evidence was presented by either doctor presenting
testimony to the Commission that plaintiff’s employment placed him at a greater
risk for contracting degenerative arthritis. In fact, Dr. Cook testified that
anyone, not only those who work in plaintiff’s trade or occupation, could have
the potential to contract and could have osteoarthritis of the hip. Therefore,
this assignment of error is overruled.
Accordingly, the opinion and award of the Commission is
affirmed.
Affirmed.
Chief Judge MARTIN and ELMORE concur.