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NO. COA04-1447
NORTH CAROLINA
COURT OF APPEALS
Filed: 5 July
2005
FRANK P. FLYNN,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 200655
EPSG MANAGEMENT SERVICES,
Employer,
RSKCO,
Carrier,
Defendants.
Appeal by defendants from opinion
and award entered 3 June 2004 and amendment to opinion and award entered 14
June 2004 by Commissioner Thomas J. Bolch for the North Carolina Industrial
Commission. Heard in the Court of
Appeals 15 June 2005.
Leah L. King, for
plaintiff-appellee.
Hedrick & Morton, L.L.P., by
G. Grady Richardson, Jr. and Stephen E. Coble, for defendants-appellants.
TYSON, Judge.
EPSG Management Services and its
insurance carrier, RSKCO, (collectively, “defendants”) appeal the opinion and
award of the Full Commission of the North Carolina Industrial Commission (“the
Commission”) which concluded Frank P. Flynn (“plaintiff”) suffered a
compensable occupational disease. We
affirm.
I. Background
From April through July 2001,
plaintiff worked as a camera operator on a Showtime Entertainment project
entitled, “Going to California.” On
average, he worked twelve hours a day, five to six days per week. Plaintiff utilized a hand-held camera about
twenty-five to thirty percent of the time.
He would pick the camera up and rest it on his shoulder while moving and
contorting his body to obtain the correct filming angle. The camera weighed thirty to forty-five
pounds.
On 20 July 2001, plaintiff reached
across his body with his left arm to pick up his camera. As he lifted the camera, plaintiff
experienced a sudden, piercing pain in his left arm. Plaintiff described the pain as stabbing initially, followed by
numbness. Prior to 20 July 2001,
plaintiff had noted some tightness and stiffness in his shoulder. However, plaintiff presumed it was caused by
fatigue from the long hours he worked.
Plaintiff sought medical attention
from his primary physician, Dr. Alan Jackson (“Dr. Jackson”), on 30 July 2001
and complained of left shoulder pain.
Plaintiff provided Dr. Jackson a history that he had used his left
shoulder a “bit too much these past few weeks shooting a movie.” Plaintiff was sent for a shoulder x-ray and
an MRI was later performed on 29 August 2001.
After receiving the MRI results, Dr. Jackson scheduled an appointment
for plaintiff with Dr. David A. Esposito (“Dr. Esposito”) on 13 September
2001. At that time, Dr. Jackson’s
diagnosis of plaintiff’s complaint was distal supraspinatus tendonosis.
Plaintiff remained out of work
during this time. His first appointment with Dr. Esposito was on 12 October
2001. At that time, Dr. Esposito noted
plaintiff to be “tender over the front part of his shoulder.” Dr. Esposito felt plaintiff would benefit
from arthroscopic surgery. Dr. Esposito
further indicated that he restricted plaintiff to light duty jobs with no use
of the left arm, if such work was available.
On 6 December 2001, Dr. Esposito
performed arthroscopic surgery on plaintiff.
Dr. Esposito located a tear in plaintiff’s rotator cuff and also noted
plaintiff had synovitis, i.e. inflammation of the joint lining. Dr. Esposito testified that the synovitis
was “most likely reactive in nature” from the 20 July 2001 injury. Plaintiff remained out of work and his
condition did not improve. Plaintiff
underwent a separate treatment for his ailing shoulder by Dr. Esposito.
Plaintiff made efforts to find other
employment which would not require the use of his left shoulder. He enjoyed little success. At the time of the injury, plaintiff was
fifty-six years old with a high school education. The majority of his career was spent in the motion picture
industry.
Plaintiff filed a Form 18 on 27
December 2001 describing his injury as “left shoulder.” An amended Form 18 was filed on 2 July 2002,
alleging “trauma in the employment pursuant to N.C.G.S. 97-53(20)” and adding
“synovitus” as a listed injury or occupational disease. “Synovitus, caused by trauma in employment”
is enumerated as an occupational disease in N.C. Gen. Stat. §97-53(20).
RSKCO denied plaintiff’s claim
asserting, “Mr. Flynn did not sustain a compensable injury by accident . . . .”
and the case was assigned for hearing.
A pretrial order was filed declaring the issues to be determined, in
part whether plaintiff sustained: (1) a
compensable injury by accident under N.C. Gen. Stat. §97-2(2); and (2) an
occupational disease as defined by N.C. Gen. Stat. §97-53(20).
The case was heard before the deputy
commissioner on 24 September 2002. The
deputy commissioner filed an opinion and award on 28 January 2003 finding
plaintiff’s rotator cuff tear was an occupational disease. The order was later amended on 10 February
2003 to change plaintiff’s average weekly wage. Defendants appealed to the Commission and the case was heard on 8
July 2003. The Commission ordered the
record to be reopened on 9 July 2003 for plaintiff to undergo a functional
capacity evaluation.
On 3 June 2004, the Commission filed
its opinion and award affirming the deputy commissioner’s opinion and award
that plaintiff suffers from a compensable occupational disease. The Commission’s opinion and award included
the following stipulations by the parties:
The issues
before the Full Commission are: (i) whether plaintiff sustained a compensable
injury by accident arising out of and in the course of his employment with
defendant-employer on 20 July 2001; (ii) whether plaintiff contracted an
occupational disease arising out of and in the course of his employment with
defendant-employer; and (iii) if so, what compensation, if any, is due
plaintiff.
An amendment to the opinion and
award was filed on 14 June 2004 to change plaintiff’s average weekly wage. Defendants appeal.
II. Issue
The issue on appeal is whether
competent evidence supports the Commission’s findings of fact and conclusions
of law that plaintiff suffered a compensable occupational injury.
III. Standard of Review
The appropriate appellate standard
of review in appeals arising from decisions by the Commission is well
established. “In reviewing an order and
award of the Industrial Commission in a case involving workmen’s compensation,
[an appellate court] is limited to a determination of (1) whether the findings
of fact are supported by competent evidence, and (2) whether the conclusions of
law are supported by the findings.” Moore
v. Federal Express, 162 N.C. App. 292, 297, 590 S.E.2d 461, 465 (2004) (quotation
omitted). “As long as the Commission’s
findings are supported by competent evidence of record, they will not be
overturned on appeal.” Rackley v.
Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002)
(citation omitted).
Although on appeal the Commission’s
findings of fact are conclusive where supported by competent evidence,
“findings of fact by the Commission may be set aside on appeal when there is a
complete lack of competent evidence to support them.” Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d
912, 914 (2000) (internal citations and quotations omitted). Further, “the Industrial Commission’s
conclusions of law are reviewable de novo.” Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341,
348, 581 S.E.2d 778, 783 (2003) (citing Lewis v. Craven Regional Medical
Center, 122 N.C. App. 143, 468 S.E.2d 269 (1996)).
IV. Compensable Occupational Injury
Defendants argue the Commission
erred in determining plaintiff’s injury qualified as compensable occupational
injury. We disagree.
An occupational disease is
compensable if the disease “is proven to be due to causes and conditions which
are characteristic of and peculiar to a particular trade, occupation or
employment, but excluding all ordinary diseases of life to which the general
public is equally exposed outside of the employment.” N.C. Gen. Stat. §97-53(13) (2003); Thomason v. Fiber Indus.,
78 N.C. App. 159, 161, 336 S.E.2d 632, 633 (1985), disc. rev. denied,
316 N.C. 202, 341 S.E.2d 573 (1986).
There are three
elements which are necessary for the plaintiff to prove in order to show the
existence of a compensable occupational disease under N.C. Gen. Stat.
§97-53(13): (1) the disease must be characteristic of persons engaged in a
particular trade or occupation in which the plaintiff is engaged; (2) the
disease must not be an ordinary disease of life to which the public is equally
exposed; and (3) there must be a causal connection between the disease and the
plaintiff’s employment.
Jarvis v. Food
Lion, Inc.,
134 N.C. App. 363, 367, 517 S.E.2d 388, 391 (citing Hansel v. Sherman
Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)), disc. rev.
denied, 351 N.C. 356, 541 S.E.2d 139 (1999).
Plaintiff proffered substantial
evidence that his injury resulted from his employment as a cameraman. Dr. Esposito testified that plaintiff’s job,
which involved significant overhead activity, predisposed plaintiff to, and
placed him at a greater risk for, rotator cuff and shoulder problems, than the
general public. Dr. Esposito stated
that plaintiff’s job as a cameraman required him to contort his body into
different positions to get the correct camera angle, operate and lift over his
head cameras of varying weight, and work long hours. These factors differentiated plaintiff’s employment from that of
the general population. Dr. Esposito
further opined that because of the constant overhead activity, the incident on
20 July 2001 was “the final straw that broke the camel’s back.”
Based on our review of the record,
depositions, and transcripts, competent evidence exists to support the
Commission’s conclusion of law that:
(1) “[p]laintiff developed a rotator cuff tear and further medical
complications due to causes and conditions characteristic of and peculiar to
his employment . . . .”; and (2) “[t]his rotator cuff tear and further medical
complications is not an ordinary disease of life to which the general public
not so employed is equally exposed, and is, therefore, an occupational
disease.” See Jarvis, 134 N.C.
App. at 367, 517 S.E.2d at 391 (three elements necessary to show a compensable
occupational disease under N.C. Gen. Stat. §97-53(13)); Rackley, 153
N.C. App. at 472, 570 S.E.2d at 124 (“As long as the Commission’s findings are
supported by competent evidence of record, they will not be overturned on
appeal.”). Defendants’ assignment of
error is overruled.
V. Conclusion
Plaintiff’s injury resulted from
causes and conditions characteristic of his employment as a cameraman. The injury is not an ordinary disease of
life to which the general public is exposed.
Competent evidence in the record supports the Commission’s findings of
fact and conclusions of law. The
Commission’s opinion and award is affirmed.
Affirmed.
Judges MCCULLOUGH and BRYANT concur.