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authoritative.
NO. COA06-103
NORTH CAROLINA COURT OF APPEALS
Filed: 21 November 2006
CHARLENE EVERETT,
Employee,
Plaintiff
v. North Carolina Industrial Commission
I.C.
File No. 102217
WELL CARE & NURSING SERVICES,
Employer,
DISCOVERY INSURANCE COMPANY,
Carrier,
Defendants
Appeal by defendants from opinion and award entered 5
October 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 September
2006.
Peter
Grear for plaintiff-appellee.
Cranfill,
Sumner & Hartzog, L.L.P., by Cameron D. Simmons and Meredith T. Black, for
defendant-appellants.
MARTIN, Chief Judge.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission awarding plaintiff ongoing temporary total
disability compensation. Plaintiff
suffered an admittedly compensable injury to her right wrist when she was
involved in a car accident on 12 December 2000 while driving as part of her job
as a social worker with defendant Well Care & Nursing Services (“Well
Care”). After the accident, plaintiff
experienced right wrist pain, and x-rays revealed no fracture. A subsequent MR arthrogram of plaintiff’s
wrist revealed a partial TFC tear with no evidence of major ligamentous
injury. Initial treatment involved
splinting and injection therapy. When
those treatments were unsuccessful, plaintiff underwent arthroscopic surgery on
her right wrist on 3 May 2001. Well
Care and its carrier, Discovery Insurance Company, filed a Form 60 admitting
compensability of plaintiff’s injury to her right wrist. Defendants paid plaintiff temporary total
disability while she was unable to work.
Plaintiff received treatment for the injury to her right wrist until 14
December 2001, when she was found to have reached maximum medical improvement
with a ten percent permanent partial impairment rating on the right wrist. Her physician stated that her wrist injury
did not impair her ability to perform her job as a social worker.
On 23 July 2001, eleven weeks after her wrist surgery,
plaintiff was leaving her house when she slipped on her back steps and fell,
fracturing her left ankle. Plaintiff
contends that she was unable to break her fall because of the injury to her
right wrist. She testified that “when I
realized I was slipping, I think my natural instinct kicked in. I didn’t have strength in my hand to grab
the [door]knob or the security bar . . . .
As a result, to keep from re-injuring this hand, I just let it go, and I
fell on my left side.” Her left ankle
fracture was addressed by two surgical procedures. Plaintiff continued to see her physician for her left ankle
injury until July 2002 when she reached maximum medical improvement.
On 26 June 2002, plaintiff filed a request for hearing with
the Industrial Commission seeking continuing temporary total disability
compensation for her right wrist and alleging that the injury to her left ankle
from the fall at home was causally related to the earlier injury to her right
wrist and, therefore, was compensable.
She contended that she was unable to work in any capacity. At the hearing before the deputy
commissioner, plaintiff testified as follows:
THE COURT: . . . [A]fter you finished your physical therapy,
. . . you’re saying you never asked either the physical therapist or your
doctor whether you could return to work or, you know, what work restrictions
you would have. You also - you didn’t
contact, I’m assuming, your employer to see at that point if they would be
willing to have you return to work; is that right?
THE WITNESS: Sir, I was not physically able to work.
THE COURT: But how do you know? I guess what my question is if you never asked the doctor, work
restrictions have never been addressed, how is it that you determined that you
are not able to work at all?
THE WITNESS: Because of the constant pain level and my
movement. My job required me to do a
lot of physical driving from county to county.
Not only that, I was in and out of my truck or car, in and out, in and
out. I was barely able to move, sir.
. . . .
THE COURT: . . . [H]ave you thought about other types of jobs that you might be able
to do with your current condition?
THE WITNESS: I have thought about it, sir. But with my physical being the way it is and my pain and my conversations back and forth and going still back and forth to the doctor--- I’m currently in physical therapy trying to get this ankle and leg to some type of normalcy where I’ll be able to function like I did before I was injured. So, no, I had not inquired about it and neither had the doctor said anything to me about it.
Plaintiff
offered no evidence from her doctors, chiropractor, or occupational therapist
indicating that she was unable to work in any capacity.
The deputy commissioner denied compensability of the left
ankle injury and awarded permanent partial disability compensation to plaintiff
for the ten percent impairment rating on her right wrist. Plaintiff appealed the opinion and award to
the Full Commission.
The Full Commission reversed, awarding plaintiff temporary
total disability compensation for both the right wrist and the left ankle. Specifically, the Commission found that “but
for the plaintiff’s lack of use of her right hand due to her compensable injury
by accident, she would have not fallen in the manner in which she fell and
likely would not have fractured her left ankle.” The Commission found that the slip and fall was work related
because it was a direct and natural consequence of the compensable right wrist
injury. The Commission also found that
“[f]ollowing her slip and fall at home
on July 23, 2001, the plaintiff was unable to work due to her fractured left
ankle” and found that she had been temporarily and totally disabled since 23
July 2001, notwithstanding its finding that she had reached maximum medical
improvement for her left ankle injury in July 2002. The Commission concluded that although plaintiff was entitled to
permanent partial disability compensation for the ten percent disability to her
right wrist, “her greater remedy at the present time” was to receive
compensation for temporary total disability pursuant to N.C.G.S. §97-29. Thus, the Commission awarded plaintiff
continuing compensation for temporary total disability until “further order of
the Commission,” as well as medical treatment for her left ankle and right
wrist.
Defendants appealed the Commission’s determination that
plaintiff’s left ankle injury is compensable as arising out of and in the
course of her employment, as well as its determination that she is entitled to
ongoing compensation for temporary total disability.
_______________________
Defendants make two arguments on appeal. First, defendants
argue that the Commission erred in finding that plaintiff’s left ankle injury
was causally related to her right wrist injury because such findings were not
supported by competent evidence and the findings did not support the
conclusions of law that the injury was compensable. Second, defendants argue that the Commission erred in finding
that plaintiff was and continues to be disabled as a result of her right wrist
and left ankle injuries because the findings are not supported by competent
evidence and do not support the conclusions of law that plaintiff is entitled
to temporary total disability beginning on 23 July 2002 and continuing.
We first consider the issue of causation. Defendants argue that the Commission’s
finding of fact that the left ankle injury was causally related to the right
wrist injury is not supported by any competent evidence and therefore the
Commission erred in awarding compensation.
An injury is only compensable if it “aris[es] out of and in the course
of the employment.” N.C. Gen. Stat.
§97-2(6) (2005). “‘[A]rising out of’
refers to the origin or causal connection of the accidental injury to the
employment.” Gallimore v. Marilyn’s
Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). The plaintiff bears the burden of proving
each element of compensability, including causation, by “a preponderance of the
evidence.” Holley v. ACTS, Inc.,
357 N.C. 228, 231-32, 234, 581 S.E.2d 750, 752, 754 (2003). Upon review, however, if there is any
competent evidence to support the Commission’s findings of fact, this Court
must accept them as true. Adams v.
AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
Finding of fact 10 addresses causation where it states: “The
Full Commission finds that, but for the plaintiff’s lack of use of her right
hand due to her compensable injury by accident, she would have not fallen in
the manner in which she fell and likely would not have fractured her left
ankle.” Plaintiff testified:
A: Well, when I realized I was slipping, I think my natural
instinct kicked in. I didn’t have
strength in my hand to grab the knob or the security bar here in the
picture. As a result, to keep from
re-injuring this hand, I just let it go, and I fell on my left side.
. . . .
A: . . . It was just that when I felt myself slipping, I did not have the strength in my hand to break my fall.
. . . .
Q: . . .[Y]ou said you let go of the door, because you
didn’t want to re-injure your right wrist.?
A: As I stepped down, I could not – I had turned
around. I could not grab the knob, the
handle here, and I fell. I could not
break my fall.
. . . .
THE WITNESS: . . . When I went to push the doorknob, when I
went out to step down --
THE COURT: Right.
THE WITNESS: — I slipped.
And when I did, I could not grab.
My hand was not strong enough for me to hold onto the doorknob. That knob is there, since I didn’t have a
railing, to hold onto, coming in and out of the door.
THE COURT: So the
doorknob didn’t have anything to do with you falling. You’re saying that once you slipped and you were falling, had you
had the use of your hand, you would have been able to catch yourself by
grabbing onto the doorknob; is that right?
THE WITNESS: Yes, sir, that’s what I contend.
Reviewing
this evidence in the light most favorable to plaintiff, it reasonably supports
the Commission’s finding that her wrist injury prevented her from breaking her
fall. We note that in cases involving “complicated medical questions far
removed from the ordinary experience and knowledge of laymen, only an expert
can give competent opinion evidence as to the cause of the injury.” Click v. Freight Carriers, 300 N.C.
164, 167, 265 S.E.2d 389, 391 (1980); see also Holley, 357 N.C.
at 232, 581 S.E.2d at 753. The present
case does not involve a complicated medical question; therefore, plaintiff’s
testimony alone is sufficient to support the finding of fact.
Even if the evidence supports the Commission’s finding of
fact, defendants argue that the finding of fact does not support conclusion of
law 1, which states “[t]he plaintiff’s left ankle injury resulted from an
accident arising out of and in the course of her employment in that the
incident was a direct and natural consequence that flowed from her December 12,
2000, compensable injury by accident.”
The Commission correctly cited that, where a second injury arises from
an earlier injury and the primary injury arises out of and in the course of
employment, every natural consequence that flows from the injury likewise
arises out of the employment. Starr
v. Paper Co., 8 N.C. App. 604, 611, 175 S.E.2d 342, 347 (1970). To show causal relation, “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 . . . .” Gilmore v. Board of Education,
222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942).
The Commission’s finding of fact takes the case out of the realm of
conjecture by finding that plaintiff “likely would not have fractured her left
ankle.” This finding is sufficient to
support the Commission’s conclusion of law.
Accordingly, we affirm the Commission’s findings and conclusions with
regard to the issue of causation.
Defendants next contend that the Commission erred in
awarding compensation because plaintiff did not prove by medical evidence that
she is entitled to temporary and total disability as a result of her
injuries. The Commission found
“[f]ollowing her slip and fall at home on July 23, 2001, the plaintiff was
unable to work due to her fractured left ankle.” This finding is supported by plaintiff’s own testimony that she
was not physically able to work and that the amount of pain she suffered
prohibited her from working in any capacity.
Thus, we must accept it as true.
See Adams, 349 N.C. at 681, 509 S.E.2d at 414. The Commission also found “[plaintiff] has
been temporarily and totally disabled . . . as a result of her admittedly
compensable automobile accident . . . and her slip and fall.” This statement is actually a conclusion of
law, and we must review it as such. See
Johnson v. Adolf, 149 N.C. App. 876, 878 n.1, 561 S.E.2d 588, 589 n.1
(2002). We therefore consider whether
the finding that plaintiff has been unable to work supports the conclusion of
law that she is temporarily and totally disabled.
“In order to obtain compensation under the Workers’
Compensation Act, the claimant has the burden of proving the existence of his
disability and its extent.” Hendrix v. Linn-Corriher Corp., 317 N.C.
179, 185, 345 S.E.2d 374, 378 (1986).
Where the compensability of a claimant’s claim is admitted via Form 60,
no presumption of disability attaches. Barbour
v. Regis Corp., 167 N.C. App. 449, 456-57, 606 S.E.2d 119, 125 (2004).
[I]n order to
support a conclusion of disability, the Commission must find: (1) that
plaintiff was incapable after his injury of earning the same wages he had
earned before his injury in the same employment, (2) that plaintiff was
incapable after his injury of earning the same wages he had earned before his
injury in any other employment, and (3) that this individual’s incapacity to
earn was caused by plaintiff’s injury.
Hilliard
v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683
(1982). An employee injured in the
course of her employment is disabled under the Act if the injury results in an
“incapacity . . . to earn the wages which the employee was receiving
at the time of the injury in the same or any other employment.” N.C. Gen. Stat. §97-2(9) (2005). An employee may meet the burden of showing
disability in one of four ways:
(1) the
production of medical evidence that he is physically or mentally, as a
consequence of the work related injury, incapable of work in any employment;
(2) the production of evidence that he is capable of some work, but that he
has, after a reasonable effort on his part, been unsuccessful in his effort to
obtain employment; (3) the production of evidence that he is capable of some
work but that it would be futile because of preexisting conditions, i.e., age,
inexperience, lack of education, to seek other employment; or (4) the
production of evidence that he has obtained other employment at a wage less
than that earned prior to the injury.
Russell
v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993) (citations omitted).
Plaintiff claims that her left ankle injury arose from her
compensable claim for her right wrist injury pursuant to Form 60; therefore,
she bears the burden of proving that she was disabled as a result of her ankle
injury. The Commission made the
requisite findings that plaintiff was unable to work at her old job or at
another job as a result of the ankle injury.
However, this finding was based only on the plaintiff’s testimony, and
was not based on any medical evidence.
Thus, plaintiff did not meet the burden established in Russell of
showing “medical evidence that [s]he is physically or mentally, as a
consequence of the work related injury, incapable of work in any
employment.” Russell, 108 N.C.
App. at 765, 425 S.E.2d at 457 (emphasis added). The Commission’s conclusion of law that plaintiff has been
temporarily and totally disabled is, therefore, not supported by its findings
of fact and is error.
The award of ongoing compensation for temporary total
disability is reversed and this case is remanded for the entry of an award of
compensation pursuant to N.C.G.S. §97-30.
Reversed and Remanded.
Judges ELMORE and JACKSON concur.