All opinions are subject to
modification and technical correction prior to official publication in the
North Carolina Reports and North Carolina Court of Appeals Reports. In the
event of discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NO. COA03-1475
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
JAMES THOMAS GOFORTH
v. North Carolina Industrial Commission
I.C. File No. 109053
K-MART CORPORATION
Appeal by Defendant from Opinion and Award entered 16 June 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 13 September 2004.
Lyndon
R. Helton and Scudder & Hedrick, by Samuel A. Scudder, for
plaintiff-appellee.
Gene
Thomas Leicht, for defendant-appellant.
WYNN,
Judge.
James
Thomas Goforth, working in the garden department of K-Mart since April 2000,
brought this worker’s compensation claim alleging that he injured his back in
early May 2000 when he attempted to load two bags of peat moss into a
customer’s car. Initially, a deputy commissioner denied benefits to Goforth for
his work-related back injury claim. But following his successful appeal to the
full Commission awarding him total disability from 27 August 2000 continuing
until further order of the Commission, K-Mart appealed to this Court. After
careful review, we affirm.
__________________________________________
The
standard of review for this Court in reviewing an appeal from the Commission is
limited to determining “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). Our review “‘goes no further than to
determine whether the record contains any evidence tending to support the
finding.’“ Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)
(citation omitted). The Commission’s findings of fact “are conclusive on appeal
when supported by competent evidence,” even if there is evidence to support a
contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282
S.E.2d 458, 463 (1981), and may be set aside on appeal only “when there is a
complete lack of competent evidence to support them[.]” Young v. Hickory
Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). Further, all
evidence must be taken in the light most favorable to the plaintiff, and the
plaintiff “is entitled to the benefit of every reasonable inference to be drawn
from the evidence.” Deese, 352 N.C. at 115, 530 S.E.2d at 553.
In
this appeal, K-Mart assigns error to the following paragraphs in the Opinion
and Award:
Findings of Fact
***
13. His
back injury, which occurred at a judicially cognizable period of time, was a
compensable specific traumatic incident of the work assigned.
***
16. The
uncontroverted medical evidence in this case establishes that plaintiff is
permanently and totally disabled as a result of the injury he suffered working
at K-Mart in early May 2000.
17. Defendant’s
contention and supporting evidence that plaintiff was not credible because his
Form 18 stated that the injury occurred “approx. May 10, 2000,” and defendant’s
records showed that plaintiff did not work on May 10, 2000, is without
merit.
18. Defendant’s
contention and supporting evidence that plaintiff’s back condition following
the peat moss bag incident of early May 2000 was a natural progression of an
earlier workers’ compensation injury is also without merit.
19. Defendant
has defended this matter without reasonable cause. At the conclusion of the
hearing of this claim before the Deputy Commissioner, plaintiff’s counsel of
record gave notice that sanctions would be requested. Nevertheless, defendant
proceeded to further delay the administration of justice in this claim by
forcing the deposition of Dr. Chewning not once, but twice. The gravamen of
defendant’s position was that because Mr. Goforth had a history of multiple
back surgeries, he was negligent in taking work in K-Mart’s garden department.
What the record discloses is that while Mr. Goforth had eight cervical and
lumbar spinal surgeries prior to the injury of May 10, 2000, his last surgery
had been over two years prior to the date of injury. He had not undergone a
lumbar surgery since 1991. Further, the record establishes that Dr. Chewning
had advised Mr. Goforth that he could attempt a return to work. In an attempt
to remove himself from the rolls of Social Security disability, Mr. Goforth
came to work for K-Mart. Never did he fail to disclose his medical history. Mr.
Goforth’s efforts should be applauded, not derided.
***
Conclusions of Law
1. Sometime
around May 10, 2000, plaintiff sustained a compensable injury to his back
arising out of and in the course and scope of his employment with
defendant-employer by way of a specific traumatic incident of the work
assigned. N.C. Gen. Stat. §97-2(6).
2. As
a result of plaintiff’s compensable injury, plaintiff is entitled to receive
ongoing weekly benefits from August 27, 2000, at the compensation rate of
$226.67 per week and continuing until further order of the Commission. N.C.
Gen. Stat. §97-29.
3. Plaintiff
is entitled to have defendant provide all medical treatment arising out of
plaintiff’s compensable injury to the extent it tends to affect a cure, give
relief or lessen plaintiff’s period of disability. This will include all care
directed by Dr. Samuel J. Chewning. N.C. Gen. Stat. §97-25.
4. Defendant
has defended this claim without a good faith basis for doing so. This defense
constitutes unreasonable defense of this claim and defendant shall pay
plaintiff’s attorney’s fees, which shall be taxed as costs. N.C. Gen. Stat.
§97-88.1.
Defendant
argues that the Commission erred in concluding that Goforth’s back condition
was causally related to the May 2000 work accident and not to the preexisting
back condition. To support the contention that the May 2000 injury was a direct
and natural result of Goforth’s original injury, Defendant cites Heatherly
v. Montgomery Components, Inc., 71 N.C. App. 377, 381, 323 S.E.2d 29, 31
(1984) (refracture of a bone in the same place as an earlier compensable
fracture was the direct and natural result of the original injury).
But
in the more recent case of Ruffin v. Compass Group USA, 150 N.C. App.
480, 481, 563 S.E.2d 633, 635 (2002), the plaintiff injured her back when she
pulled a forty-pound box from a truck. Id. A MRI revealed that the
plaintiff had preexisting problems including “an unusual curvature of the spine
and disc herniations.” Id. at 482, 563 S.E.2d at 635. The plaintiff’s
medical provider concluded that the injury aggravated the preexisting
condition. Id. This Court, in Ruffin, held that aggravation of a
preexisting condition which results in loss of wage earning capacity is
compensable. Id. at 484, 563 S.E.2d at 637. See also Smith v.
Champion Int’l., 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999)
(plaintiff had compensable injury when work related specific traumatic incident
aggravated severe preexisting back problems).
Moreover,
the “work-related injury need not be the sole cause of the problems to render
an injury compensable.” Hoyle v. Carolina Associated Mills, 122 N.C.
App. 462, 465, 470 S.E.2d 357, 359 (1996). “If the work-related accident
‘contributed in some reasonable degree’ to plaintiff’s disability, she is
entitled to compensation.” Id. at 466, 470 S.E.2d at 359 (citing Kendrick
v. City of Greensboro, 80 N.C. App. 183, 187, 341 S.E.2d 122, 124, disc.
review denied, 317 N.C. 335, 346 S.E.2d 500 (1986)).
When
a pre-existing, nondisabling, non-job-related condition is
aggravated or accelerated by an accidental injury arising out of and in the
course of employment or by an occupational disease so that disability results,
then the employer must compensate the employee for the entire resulting
disability even though it would not have disabled a normal person to that
extent.
Morrison, 304 N.C. at 18, 282 S.E.2d at 470
(emphasis original).
Here,
the record shows that Goforth had a preexisting back condition due to prior
injuries and surgeries. But there is evidence showing that Goforth experienced
a specific traumatic incident when he attempted to load a bag of peat moss into
a customer’s car in early May 2000.
Under
the specific traumatic incident provision of section 97-2(6) of the North
Carolina General Statutes, a plaintiff must prove an injury at a judicially
cognizable point in time. N.C. Gen. Stat. §97-2(6) (2003). The term “judicially
cognizable” requires “‘a showing by plaintiff which enables the Industrial
Commission to determine when, within a reasonable period, the specific injury
occurred.’“ Ruffin, 150 N.C. App. at 484, 563 S.E.2d at 636 (citation
omitted). In this case, there was evidence showing that the peat moss incident
occurred in early May 2000, which was a judicially cognizable period of time.
Goforth’s testimony and Dr. Chewning’s deposition supported this time period.
While a person with no preexisting back problems might not have sustained
Goforth’s level of injury, the evidence supports the Commission’s determination
that the aggravation of his preexisting condition by the May 2000 specific
traumatic incident is a compensable injury.
K-Mart
next argues that the Commission erred in finding Goforth permanently and
totally disabled as a result of the May 2000 injury. We disagree.
The
Commission found in Finding of Fact 16 that,
The
uncontroverted medical evidence in this case establishes that plaintiff is
permanently and totally disabled as a result of the injury he suffered working
at K-Mart in early May 2000.
Dr. Chewning testified that he wrote a
letter verifying that Goforth should be considered disabled from working as of
24 August 2000. At the time of the hearing, Dr. Chewning could not give an
updated report because Goforth was no longer his patient. But at the time of
the hearing, Goforth continued to wear a leg brace. Also, there was evidence of
Goforth’s lack of prior work experience and limited education.
If
preexisting conditions such as the employee’s age, education and work
experience are such that an injury causes the employee a greater degree of
incapacity for work than the same injury would cause some other person, the employee
must be compensated for the actual incapacity he or she suffers, and not for
the degree of disability which would be suffered by someone younger or who
possesses superior education or work experience.
Peoples v. Cone Mills Corp., 316 N.C. 426, 441, 342 S.E.2d 798, 808
(1986). We hold that there is competent evidence supporting the Commission’s
finding of fact of permanent and total disability. Morrison, 304 N.C. at
6, 282 S.E.2d at 463.
Defendant
further contends the Commission abused its discretion in awarding attorney fees
to Goforth under section97-88.1 of the North Carolina General Statutes. N.C.
Gen. Stat. §97-88.1 (2003). We disagree.
“The
decision of whether to make such an award, and the amount of the award, is in
the discretion of the Commission, and its award or denial of an award will not
be disturbed absent an abuse of discretion.” Troutman v. White &
Simpson, Inc., 121 N.C. App. 48, 54-55, 464 S.E.2d 481, 486 (1995). An
abuse of discretion results only where a decision is “‘manifestly unsupported
by reason or . . . so arbitrary that it could not have been the result of a
reasoned decision.’“ Long v. Harris, 137 N.C. App. 461, 465, 528 S.E.2d
633, 636 (2000) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d
523, 527 (1988)). This requirement ensures that defendants do not bring
hearings out of stubborn, unfounded litigiousness. Troutman, 121 N.C.
App. at 51, 464 S.E.2d at 484. Attorney fees can be awarded, “[i]f the
Industrial Commission shall determine that any hearing has been brought,
prosecuted, or defended without reasonable ground, it may assess the whole cost
of the proceedings including reasonable [attorney] fees . . . upon the party
who has brought or defended them.” N.C. Gen. Stat. §97-88.1.
Here,
K-Mart argued that Goforth’s preexisting back condition caused the injury, and
Goforth lacked credibility. But as we pointed our earlier, neither the facts
nor North Carolina law support K-Mart’s causation contention. Moreover, while
K-Mart’s claim that Goforth lacked credibility might have some merit[Note 1],
this Court does not review the credibility of witnesses, that is the role of
the Commission. Adams, 349 N.C. at 680, 509 S.E.2d at 413. Therefore, we
find no abuse of discretion by the Commission.
K-Mart
also argues that Goforth’s injury did not impair his wage earning capacity;
however, K-Mart did not properly present this in an assignment of error. This
Court’s review on appeal is limited to issues presented by assignment of error.
N.C. R. App. P. 10(a).
Affirmed.
Chief
Judge MARTIN and Judge MCGEE concur.
1. In the Opinion and Award by the Deputy Commissioner, a finding of fact was made that Goforth had a long history of substance abuse of prescription pain killers. However, the Commission declined to adopt this finding of fact. Also, Goforth did not file a worker’s compensation claim until eight months after the injury.