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opinions are subject to modification and technical correction prior to official
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authoritative.
NO. COA04-147
Filed: 15 February 2005
PAUL
COOPER, Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 073069
COOPER
ENTERPRISES, INC.,
Employer,
COMPTRUST
AGC,
Carrier,
Defendants
Appeal by Plaintiff from Opinion and Award of the North Carolina Industrial Commission entered 29 September 2003. Heard in the Court of Appeals 30 November 2004.
Hyler & Lopez, P.A.,
by George B. Hyler, Jr., for plaintiff-appellant.
Morris York Williams
Surles & Barringer, LLP, by John F. Morris, for defendant-appellees.
WYNN, Judge.
Plaintiff Paul Cooper
asserts that the full Industrial Commission committed prejudicial error in
denying his claim. Cooper contends he
submitted sufficient evidence for the Industrial Commission to determine that
the lack of mobility in his right arm prevented him from regaining control of
his automobile and avoiding his 17 October 1998 automobile accident. Cooper contends that the automobile accident
was therefore a direct and natural result of his prior compensable injury. For the reasons stated herein, we disagree
and affirm the Industrial Commission’s Opinion and Award.
The procedural and
factual history of the instant appeal is as follows: Cooper had worked in the construction field since 1966. From 1986 through 1996, Cooper worked at
Cooper Enterprises, Inc., a firm owned in part by Cooper’s brother. Cooper had a history of problems with his
right shoulder. These were exacerbated
when, on 25 September 1993, Cooper stepped on a piece of rebar while carrying a
roll of mesh wiring, lost his balance, and fell into an embankment. He sustained crush injuries to the right
side of his upper body and had to undergo, inter alia, five surgical
procedures on his right shoulder.
Cooper Enterprises
admitted the compensability of Cooper’s resulting workers’ compensation claim
and paid Cooper medical compensation and disability benefits. In December 1997, Cooper’s physician, Donald
D’Alessandro, M.D., found that, despite treatment, Cooper retained a fifty
percent partial impairment of his right upper extremity and a one-hundred percent
impairment of his right shoulder.
However, in March 1998, Dr. D’Alessandro also noted that Cooper “has
done quite well[,]” that Cooper’s shoulder “has not been bothering him[,]” and
that “[n]o further treatment is necessary.”
On 17 October 1998, Cooper
was involved in a single-car automobile accident. Cooper testified that gravel on the roadway caused his vehicle to
slide toward the right shoulder of the road, where there was a steep drop-off. To avoid the embankment on the right, Cooper
turned his steering wheel sharply to the left, causing his vehicle to veer
toward an embankment on the other side of the road. In Cooper’s own words, “when I started sliding, [the car] went
off just a little bit. Then when I
pulled it back, you know, I guess I jerked it or whatever and [the car], you
know, shot across the road.” Cooper was
unable to regain control, and his vehicle went off the road and flipped
over. As a result, Cooper sustained
serious injuries, including hip and leg fractures and lacerations. Cooper alleged that his inability to regain
control of his vehicle and the subsequent accident and injuries were due to his
prior work injury to his right arm.
On 13 October 2000,
Cooper filed a notice of accident, alleging that his automobile accident constituted
a compensable claim because it was caused by his prior right upper extremity
disability. Defendants denied the
claim. Deputy Commissioner Bradley W.
Houser filed an Opinion and Award on 21 August 2002, amended on 26 August 2002,
awarding benefits to Cooper. Defendants
appealed to the full Industrial Commission, which, on 29 September 2003,
overturned Deputy Commissioner Houser’s Opinion and Award and held that Cooper
had failed to present sufficient evidence to show that the 17 October 1998
automobile accident was a direct and natural result of Cooper’s prior
compensable injury. Cooper appealed.
_____________________________________
It is well‑settled
that the employee bears the burden of establishing the compensability of a
workers’ compensation claim. Holley v. ACTS, Inc., 357 N.C. 228, 231,
581 S.E.2d 750, 752 (2003). Our review of the Commission’s opinion and award is
“limited to reviewing whether any competent evidence supports the Commission’s
findings of fact and whether the findings of fact support the Commission’s
conclusions of law.” Deese v.
Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). The Industrial Commission is the “sole judge
of the weight and credibility of the evidence,” and this Court “‘does not have
the right to weigh the evidence and decide the issue on the basis of its
weight.’” Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Constr.
Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).
Cooper contends that the
lack of mobility in his right arm prevented him from regaining control of his
automobile and that the accident was therefore a direct and natural result of
his prior compensable injury. “A
subsequent injury to an employee, whether an aggravation of the original injury
or a new and distinct injury, is compensable only if it is the direct and
natural result of a prior compensable injury.”
Vandiford v. Stewart Equip. Co., 98 N.C. App. 458, 461, 391
S.E.2d 193, 195 (1990) (citing Starr v. Charlotte Paper Co., 8 N.C. App.
604, 610, 175 S.E.2d 342, 347 (1970)).
An injury is not compensable, however, if “it is the result of an
independent intervening cause attributable to claimant’s own intentional
conduct. Our supreme court defines
intervening cause . . . as an occurrence entirely independent of a prior
cause.” Heatherly v. Montgomery
Components, Inc., 71 N.C. App. 377, 379‑80, 323 S.E.2d 29, 30 (1984)
(citations omitted).
To show that the prior
compensable injury caused the subsequent injury, the “‘evidence must be such as
to take the case out of the realm of conjecture and remote possibility, that
is, there must be sufficient competent evidence tending to show a proximate
causal relation.’” Holley, 357
N.C. at 232, 581 S.E.2d at 753 (quoting Gilmore v. Hoke County Bd. of Educ.,
222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)).
“Although expert testimony as to the possible cause of a medical
condition is admissible . . ., it is insufficient to prove causation,
particularly when there is additional evidence or testimony showing the
expert’s opinion to be a guess or mere speculation.” Id. at 233, 581 S.E.2d at 753 (internal quotation and
citations omitted).
Here, the record
reflects that, as Cooper approached a curve in the roadway, gravel caused his
vehicle to slide to the right. In an
attempt to avoid falling into an embankment on the right, Cooper intentionally
steered sharply to the left, in his own words “jerking” his vehicle and thereby
causing it to veer toward an embankment on the other side of the road. While Cooper alleged that his prior work
injury to his right arm caused the accident, the record reveals little evidence
to support this contention. The only
relevant medical evidence produced was limited testimony by Dr. D’Alessandro,
who characterized his testimony as “just conjecture” by someone who is “no
expert in th[e] area” of driving with impaired extremities. Dr. D’Alessandro stated that “it’s just
conjecture, but I imagine that the right arm could really only be used to
steady the wheel to re-grip it with the left[.]” Meanwhile, prior to the accident, Dr. D’Alessandro noted that
Cooper “has done quite well[,]” that Cooper’s shoulder “has not been bothering
him[,]” and that “[n]o further treatment is necessary.” Moreover, Dr. D’Alessandro testified that he
did not see Cooper for ten months after the automobile accident, that he was
not involved in any way with the accident, and that the accident was not
relevant at the time that he saw Cooper for treatment.
To support his argument
that his accident was a result of his prior compensable injury, Cooper cited
several cases where a subsequent accident was found to be a direct and natural
result of a prior compensable injury.
These cases are, however, easily distinguishable. In Horne v. Universal Leaf Tobacco
Processors, 119 N.C. App. 682, 459 S.E.2d 797 (1995), the plaintiff
sustained a compensable injury to his back.
While the plaintiff was still in the process of recovering from that
injury, he was involved in an automobile accident. The plaintiff’s work injury had not yet stabilized at the time of
the accident, and it was undisputed that the accident was not caused by the
plaintiff’s “‘own intentional conduct.’”
Id. at 687, 459 S.E.2d at 800-01. The injuries resulting from the automobile accident were
therefore not the product of an independent, intervening cause and were thus
compensable. Similarly, in Heatherly,
71 N.C. App. 377, 323 S.E.2d 29, the plaintiff fractured a bone that was still
healing from a prior compensable fracture.
The evidence showed that the relevant bone had been weakened by the
prior compensable fracture, and the subsequent injury was therefore
compensable. In Starr, 8 N.C.
App. 604, 175 S.E.2d 342, the plaintiff had been paralyzed from the waist down
in a work-related accident. Several
years later, while in bed, the plaintiff sustained severe burns from a fire
started by his cigarette. This Court
affirmed the Industrial Commission’s finding that the burns were compensable,
both because the plaintiff put his cigarette on his wheelchair due to muscle
spasms in his legs resulting from his prior compensable injury, and because the
plaintiff was incapable of perceiving that his bed and legs had caught on fire
because of the prior compensable injury.
Id. at 609-11, 175 S.E.2d at 346-47.
Here, in contrast, the
Industrial Commission found that the evidence was insufficient from which to
find that the 17 October 1998 car accident was the result of Cooper’s prior
compensable injury. Indeed, there was competent
evidence that the accident and injuries were caused by Cooper’s jerking his car
to the left upon hitting gravel in the road.
Though Cooper testified that, had he retained full use of his arm, he
would have had more control over his vehicle, the evidence supports the
Industrial Commission’s finding that the evidence did not suffice to show that
he would have avoided the accident. The
evidence also showed that Cooper’s prior injury had stabilized by the time
Cooper had the accident. The Industrial
Commission therefore did not err in finding that there was insufficient
evidence to find that Cooper’s
automobile accident was caused by, or a natural and direct result of, his prior
compensable injury. These findings in
turn support the Industrial Commission’s conclusion that Cooper’s automobile
accident injuries were not compensable.[Note 1]
Accordingly, we affirm
the Industrial Commission’s Opinion and Award.
Affirmed.
Judges
HUDSON and ELMORE concur.
1. However, this opinion does not address and does not preclude Cooper’s possible ongoing entitlement to disability benefits and medical treatment for his admittedly compensable prior right arm injury.