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are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO.
COA07-1154
NORTH
CAROLINA COURT OF APPEALS
Filed: 19
August 2008
JEFFREY T.
LANIER,
Employee,
Plaintiff,
v.
North Carolina Industrial Commission
I.C. File No. 437288
EDDIE
ROMANELLE’S,
Employer,
KEY RISK
MANAGEMENT SERVICES,
Carrier,
Defendants.
Appeal by
plaintiff from Opinion and Award entered 22 June 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 5 March 2008.
Brumbaugh, Mu
& King, P.A., by Leah L. King, for plaintiff-appellant.
Hedrick,
Gardner, Kincheloe & Garofalo, L.L.P., by Erica B. Lewis and Erin T.
Collins, for defendant-appellees.
STROUD,
Judge.
Plaintiff
appeals from the Opinion and Award of the Industrial Commission entered on 22
June 2007, denying benefits to plaintiff based upon its conclusions that
plaintiff sustained neither an injury by accident nor a compensable occupational
disease arising out of and in the course of his employment. For the reasons stated herein, we
affirm.
I. Background
Plaintiff
began his employment with defendant-employer Eddie Romanelle’s[Note 1] in
1996 as a part-time sauté cook. He
became a full-time employee in about May 1999, working as kitchen
supervisor. In this role, he was
responsible for all of the kitchen activities as well as remaining an active
cook. He spent most of his ten hour
shifts working as a sauté cook. At
the end of each shift, as part of his normal job duties, plaintiff removed and
cleaned two sauté grates which weighed approximately forty pounds each. On 12 May 2004, plaintiff was lifting a
sauté grate in his usual manner when he allegedly experienced a “shocking type
sensation” followed by numbness in his left arm and hand. Plaintiff finished his shift but
reported his alleged injury the next day, complaining that his arm felt
“dead.” Plaintiff then began a
complicated course of treatment with several doctors over the next two years
which resulted in at least four diagnoses involving his cervical spine, left
arm, and wrist.
Plaintiff
filed Form 18 with the North Carolina Industrial Commission on or about 20
August 2004 alleging that he had injured his “left hand and arm” as a result of
“lifting [a] sauté grate from the grill” “about 5/12/04[.]” He filed an amended Form 18 on 29 July
2005, alleging additional injury to his neck arising from the same
incident. Defendants denied
compensability on the grounds that plaintiff had not been injured by accident at
work and had no compensable occupational disease. The case was heard by Deputy
Commissioner Bradley W. Houser on 23 August 2005. On 12 October 2006 the deputy
commissioner concluded that plaintiff’s injuries and diseases had not been
caused by his employment with defendant-employer and denied workers’
compensation benefits accordingly. Plaintiff appealed to the Full
Commission.
The Full
Commission heard plaintiff’s case on 16 March 2007. In an Opinion and Award
entered 22 June 2007, the Full Commission also concluded that plaintiff’s
injuries and diseases had not been caused by his employment with
defendant-employer and denied workers’ compensation benefits. Plaintiff appeals.
II. Issues
The argument
in plaintiff’s brief focuses primarily on the long course of plaintiff’s medical
treatment which he alleges arose from one incident, lifting a sauté grate, on 12
May 2004. His treatment was complex
as he was eventually diagnosed with and treated for four separate medical
conditions involving three parts of his body: a cervical radiculopathy in his
neck, a ulnar neuropathy in his left elbow, and a scapholunate tear and
synovitis in his left wrist.
Plaintiff’s
brief conflates the various theories and standards for injury by accident,
specific traumatic incident, and occupational disease as to all of plaintiff’s
four conditions. However, after we have sorted out all of the various theories
and contentions, the real issue is causation of plaintiff’s injuries, not
whether he suffered from the alleged injuries or
conditions.
Plaintiff
primarily argues that the Commission erred by concluding that plaintiff’s neck,
wrist, and elbow conditions were not caused by a compensable injury by accident
or occupational disease because the Commission’s findings of fact were not
supported by competent evidence and its conclusions were based upon unsupported
findings and misapprehension of applicable law. His specific contentions are: (1) the
neck injury was compensable as an injury by accident under N.C. Gen. Stat.
§97-2(6) because it arose from a specific traumatic incident; (2) the elbow
injury is compensable because ulnar neuropathy meets the criteria for an
unlisted occupational disease set forth in N.C. Gen. Stat. §97-53(13); and (3)
the wrist injuries are compensable as occupational diseases because synovitis is
specifically listed in N.C. Gen. Stat. §97-53(20). Plaintiff additionally argues that the
Commission erred by failing to make findings of fact and conclusions of law on
the extent of plaintiff’s disability.
III. Standard of Review
In order to
prevail on a disability claim for workers’ compensation, the plaintiff bears the
burden of proving by a preponderance of the evidence the existence and extent of
his disability, Fletcher v. Dana Corporation, 119 N.C. App. 491, 494, 459
S.E.2d 31, 34, disc. review denied, 342 N.C. 191, 463 S.E.2d 235 (1995),
and that the disability was caused by a disease or injury reasonably related to
his employment. Holley v. ACTS,
Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003). In deciding whether a plaintiff has met
his burden, the Industrial Commission must consider all competent evidence
presented, Weaver v. American National Can Corp., 123 N.C. App. 507, 510,
473 S.E.2d 10, 12 (1996), and make specific findings of fact to support its
conclusions for all “crucial questions.”
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 596, 290 S.E.2d 682,
684 (1982).
“The
Commission is the sole judge of the credibility of the witnesses and the weight
to be given their testimony.”
Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998)
(citation and quotation marks omitted).
The Commission is given deference as finder of fact on appeal to this
Court, and if “there is some evidence of substance which directly or by
reasonable inference tends to support the findings, this Court is bound by such
evidence, even though there is evidence that would have supported a finding to
the contrary.” Ard v.
Owens-Illinois, 182 N.C. App. 493, 496, 642 S.E.2d 257, 259-60, disc.
review denied, 361 N.C. 690, 652 S.E.2d 254 (2007) (citations and quotation
marks omitted). The Commission’s
legal conclusions will not be disturbed on appeal if the Commission has
correctly apprehended the relevant law, Clark v. Wal-Mart, 360 N.C. 41,
43, 619 S.E.2d 491, 492 (2005), and “there are sufficient findings of fact based
on competent evidence to support the [Commission’s] conclusions, [even if there
are also] erroneous findings which do not affect the conclusions.” Estate of Gainey v. Southern Flooring and
Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608 (2007) (citation
and quotation marks omitted).
IV. Injury by Accident
Plaintiff
first contends that the Commission erred in concluding his neck injury was not
compensable as an injury by accident.
Plaintiff assigns error to the Commission’s fifteenth and sixteenth
findings of fact:
15. On the issue of causation, Dr. Brown initially testified in his deposition that if plaintiff never experienced neck problems prior to May 12, 2004, then he was comfortable stating to a medical degree of probability that lifting of the grate as described by plaintiff caused the neck condition for which surgery was performed. Dr. Brown further testified that the lifting incident could have aggravated a pre-existing cervical condition. However, upon further questioning, Dr. Brown stated that he did not have any documented cause for plaintiff’s cervical condition and that, ultimately, any causation opinion he rendered was “mere speculation.”
16. There is insufficient competent medical
evidence of record upon which to find by the greater weight that the incident at
work on May 12, 2004 was the cause of the neck condition for which plaintiff
underwent surgery.
Plaintiff
argues “the Commission has made findings against the competent evidence of
record on the compensability of the neck injury” because:
In the case
at hand, the plaintiff was able to pin down exactly what he was doing when he
injured his neck, arm and wrist. He
described a severe, sharp shooting pain upon the lifting of the grate. This is the specific traumatic incident
and nothing further is required by the law.
We
disagree.
Generally, a
compensable “injury by accident” requires a showing of an unusual and
unanticipated event which is not part of an “employee’s normal work routine and
normal working conditions[.]”
Raper v. Mansfield Systems, Inc., ___ N.C. App. ___, ___, 657
S.E.2d 899, 906 (2008) (citation and quotation omitted). “[O]nce an activity, even a strenuous or
otherwise unusual activity, becomes part of the employee’s normal work routine,
an injury caused by such activity is not the result of an interruption of the
work routine or otherwise an ‘injury by accident’ under the Workers’
Compensation Act.” Bowles v. CTS
of Asheville, 77 N.C. App. 547, 550, 335 S.E.2d 502, 504 (1985). However, in
the case of a back injury, the requirement of an unusual circumstance is relaxed
and an injury by accident may also be proved “where injury to the back arises
out of and in the course of the employment and is the direct result of a
specific traumatic incident of the work assigned[.]” N.C. Gen. Stat. §97-2(6) (2005);
Raper, ___ N.C. App. at ___, 657 S.E.2d at 906.
Although
plaintiff testified that his neck injury[Note 2] arose from “a specific
traumatic incident,” this was not all that the law required. The law required plaintiff to prove by a
preponderance of the evidence, Holley, 357 N.C. at 232, 581 S.E.2d at
752, that his neck injury was “the direct result of a specific traumatic
incident of the work assigned,” N.C. Gen. Stat. §97-2(6). The Commission, as finder of fact, was
free to reject plaintiff’s testimony as to the cause of his neck injury and rely
on other testimony of causation.
Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 288, 409
S.E.2d 103, 105 (1991). Because the
Commission is afforded deference as finder of fact, our review is limited to
whether the Commission’s findings on causation were supported by competent
evidence in the record.
Id. at 285, 409 S.E.2d at 104.
The
Commission’s fifteenth finding of fact expressly relies on Dr. Brown’s testimony
as to the causation of plaintiff’s neck injury. Dr. Brown testified on direct
examination as follows:
Q: Okay.
Assuming the facts I’ve provided to you are true, do you have an opinion
to a medical degree of probability as to whether the lifting incident as
described by Mr. Lanier on May 12, 2004 was a cause for the C4-C5, C5-C6 problem
which required the anterior cervical diskectomy and
fusion?
A: It’s a tough question. It certainly could be –– it certainly
could be a -- is it possible; yes.
Is it a certainty; no. Could
it be a contributing factor; I would say probably so.
Q: And what would your opinion be to a medical
degree of probability versus certainty?
A: I don’t know. I don’t know if I can answer that
question. It’s a year and a half
before I saw him. I didn’t --
because I didn’t know [injury from lifting sauté grates] was a possibility I
didn’t ask him specifically about it, nor did he tell me. Can I say that this is too difficult a
question to answer?
It would be
difficult to interpret this testimony as providing evidence that plaintiff’s
neck injury was caused by plaintiff’s lifting of the grates on 12 May 2004. However, even if it could be so
construed, Dr. Brown further acknowledged on cross examination that he did not
have any documented cause for plaintiff’s cervical condition and that his
opinion on causation was “mere speculation.” The Commission considered Dr.
Brown’s testimony on both direct and cross examination and did not err in
finding that the plaintiff’s cervical condition was not caused by lifting the
sauté grate. The Commission’s
findings as to the cause of plaintiff’s neck injury were therefore based upon
competent evidence. This assignment
of error is without merit.
V. Occupational
Disease
A.
Synovitis in Wrist
Plaintiff
assigns error to the Commission’s nineteenth finding of fact:[Note
3]
19. Although based upon Dr. Moore’s expert opinion, plaintiff’s partial ligament tear was causally related to plaintiff’s job duties, there is no medical evidence of record that plaintiff’s employment with defendant-employer exposed him to an increased risk of developing a partial scapholunate ligament tear. There also is no medical evidence of record that plaintiff’s synovitis was caused by trauma in the employment, in that the medical evidence showed that the abnormality of the ligament tear within the wrist led to the synovitis. Therefore, the Commission finds by the greater weight of the medical evidence that these conditions are not compensable occupational diseases.
Plaintiff
argues the Commission misapprehended the law because synovitis is a listed
occupational disease and a workers’ compensation plaintiff therefore does not
need to show “his job placed him at an increased risk for developing the
disease[,]” as is required for unlisted occupational diseases under N.C. Gen.
Stat. §97-53(13). Plaintiff
correctly states that N.C. Gen. Stat. §97-53(20) deems “[s]ynovitis, caused by
trauma in employment” as an occupational disease. Plaintiff then argues that the record
contains evidence that his wrist synovitis was caused by the trauma of lifting
sauté grates over the years of his employment with defendant-employer, and if
the Commission had used the correct standard, it would have found that
plaintiff’s synovitis was compensable as an occupational
disease.
However,
plaintiff has misapprehended the Commission’s findings. The Commission found that “there is no
medical evidence of record that plaintiff’s employment with defendant-employer
exposed him to an increased risk of developing a partial scapholunate
ligament tear[,]” a disease which is not included on the list and for which
plaintiff was required to prove it was “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)
(2005).
Though
synovitis is identified on the list of occupational diseases, N.C. Gen. Stat.
§97-53(20), inclusion on the list did not “relax[] the fundamental principle
which requires proof of causal relation between injury and employment. . . .
[A]n occupational disease [is not compensable] unless it [is] shown that the
disease was incident to or the result of the particular employment in which the
work[er] was engaged.” Duncan v.
Charlotte, 234 N.C. 86, 91, 66 S.E.2d 22, 25 (1951). Accordingly, N.C. Gen. Stat. §97-53(20)
requires a plaintiff to show that the synovitis was “caused by trauma in
employment.” The “phrase, ‘caused
by trauma in employment’ . . . necessarily mean[s] a series of events in
employment occurring regularly, or at frequent intervals, over an extended
period of time, and culminating in the condition technically known as
[]synovitis.” Henry v. A. C. Lawrence Leather Co., 234 N.C. 126, 131, 66
S.E.2d 693, 697 (1951).
Furthermore, a plaintiff may not bootstrap a disease which results from a
prior injury without appropriate medical testimony to link the disease to a
compensable injury.
See Coe v. Haworth Wood Seating, 166 N.C. App. 251, 254,
603 S.E.2d 549, 551 (2004) (affirming an award of compensation for a left arm
injury when a medical expert testified that the left arm injury was caused by
overuse of the left arm while working under restrictions imposed because of a
compensable right arm injury).
Dr. Moore
examined plaintiff in November 2005.
According to Dr. Moore, a scapholunate ligament tear normally is caused
by an acute injury, not by a repetitive process. He testified that “the synovitis is
probably a result of the [partial scapholunate] ligament tear.” Dr. Moore also testified that plaintiff
had given a history of wrist pain dating back to 2002, and he had no way of
knowing whether the scaphoid injury pre-dated the 12 May 2004 incident. He further testified that the likelihood
of a scapholunate ligament tear from “pure[ly] lifting” the grate “would be
low.” The Commission’s nineteenth
finding quoted supra is therefore fully supported by Dr. Moore’s
testimony and binding on appeal.
In sum, the
evidence shows plaintiff’s synovitis did result from the tear, but the
Commission found that the tear was not caused by plaintiff’s employment. The Commission therefore applied the
correct standard to plaintiff’s synovitis under N.C. Gen. Stat. §97-53(20) and
found based upon the evidence that the synovitis was caused not by “trauma in
employment,” but as a consequence of the scapholunate tear, a condition which it
properly evaluated under N.C. Gen. Stat. §97-53(13) and determined was not
caused by plaintiff’s employment.
This assignment of error is without merit.
B.
Ulnar Neuropathy in Elbow
Plaintiff
contends the Commission erred in failing to conclude that his ulnar neuropathy
was an “occupational disease” under N.C. Gen. Stat. §97-53(13). Again, we
disagree.
Plaintiff
specifically argues:
In regards to
the plaintiff’s ulnar neuropathy for which he primarily treated with Dr. Bahner,
the Commission erred by finding that there was no evidence that plaintiff’s job
with the defendant employer exposed him to an increased risk of developing these
conditions [and] that the plaintiff did not contract a compensable occupation
[sic] disease pursuant to N.C. Gen. Stat. §97-53(13).
. . .
.
Dr. Bahner
[said] that he could state to a medical degree of certainty that “a job of the
labor and repetitive action and use that he described and related to me and that
I have observed by being a patron in the restaurant, by the way, could aggravate
an existing ulnar neuritis or ulnar neuropathy.”
. . .
.
[Therefore,
t]he Commission erred on this issue and should be reversed with a finding that
the plaintiff’s employment significantly aggravated his pre-existing ulnar
condition and it is therefore compensable.
N.C. Gen.
Stat. §97-53 lists twenty-eight different types of occupational diseases and
includes provision for compensability of an unlisted disease not in the list, 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). In other words, for an unlisted disease
to be deemed an “occupational disease” under N.C. Gen. Stat. §97-53(13), the
plaintiff must show that he “was exposed in his employment to the risk of
contracting [the disease] in a far greater degree and in a wholly different
manner than is the public generally.”
Booker v. Duke Medical Center, 297 N.C. 458, 475, 256 S.E.2d 189,
200 (1979) (emphasis added, citation and quotation marks omitted). Furthermore, in addition to showing that
the disease should be deemed an “occupational disease” pursuant to N.C. Gen.
Stat. §97-53(13), plaintiff bears the burden of proving that his contraction of
the disease was caused by his employment rather than some other means. Booker at 475-76, 256 S.E.2d at
200 (citing Duncan at 91, 66 S.E.2d at 25).
On careful
review of the record, we find no evidence that plaintiff was exposed to an
increased risk of developing ulnar neuropathy in his job to a “far greater
degree and in a wholly different manner than is the public generally.” Booker, 297 N.C. at 475, 256
S.E.2d at 200 (citation and quotation marks omitted). At best, plaintiff
presented some evidence that repetitive motions such as those he used in his job
as a sauté cook could aggravate a preexisting ulnar neuropathy, but no evidence
comparing plaintiff’s job duties or his development of the neuropathy to the
manner and degree of the development of this same disease as it occurs in the
general public.
The Commission’s tenth and eleventh
findings state in pertinent part:
10. . . . The therapist reported to Dr. Bahner that
plaintiff had no swelling or discoloration, but demonstrated a lot of facial
grimacing with attempted use. Dr.
Bahner testified that this supported his opinion that plaintiff’s reports of
symptoms might be out of proportion to the objective medical
evidence.
11. At his deposition Dr. Bahner was unable to
state with medical certainty that plaintiff’s job duties caused the ulnar
neuropathy, but did give an opinion that the labor and repetitive action of
plaintiff’s job could aggravate an existing ulnar neuritis or
neuropathy.
Plaintiff did
not assign error to either of those findings; therefore they are binding on
appeal, Gainey, 184 N.C. App. at 501, 646 S.E.2d at 607, and they support
the Commission’s conclusion that plaintiff’s ulnar neuropathy was not
compensable.
Plaintiff
also has not pointed us to any record evidence which was improperly ignored by
the Commission, and we find none, that plaintiff’s ulnar neuropathy existed
before he began his employment with defendant-employer or before he lifted the
sauté grate on 12 May 2004. Dr.
Bahner’s opinion which plaintiff quoted in his brief, supra, as to
aggravation of a pre-existing ulnar neuropathy was therefore conjectural and
could not have been relied on by the Commission to conclude plaintiff’s ulnar
neuropathy was compensable. Seay
v. Wal-Mart Stores, Inc., 180 N.C. App. 432, 437, 637 S.E.2d 299, 303 (2006)
(“An expert’s opinion that was solicited through the assumption of facts
unsupported by the record is entirely based on conjecture.”). Without competent evidence in the record
that plaintiff’s ulnar neuropathy was caused by his employment with
defendant-employer, we conclude that this assignment of error is also without
merit.
VI. Extent of
Disability
Plaintiff
last argues that the Commission failed to make findings of fact and conclusions
of law on all of the issues that were before the Commission, specifically as to
the extent of plaintiff’s disability.
However, given our ruling above that the Commission did not err by its
findings and conclusions that plaintiff did not suffer a compensable injury by
accident or from a compensable occupational disease, there was no need for the
Commission to address the extent of plaintiff’s disability. There is likewise no need for us to
address this issue.
VII. Conclusion
The
Industrial Commission concluded that plaintiff had not proven that any of his
diseases or injuries resulted from plaintiff’s employment with
defendant-employer. Because its
conclusions were based on correct apprehension of the law and supported by its
findings of fact which in turn were supported by competent evidence, we affirm
the Commission’s 22 June 2007 Opinion and Award.
AFFIRMED.
Judges HUNTER
and ELMORE concur.
1.
The employer is identified as Atlantic Quest Corporation on the initial
filings and on the deposition transcripts.
Later, for no apparent reason, the employer’s name changes to Eddie
Romanelle’s. As best we can tell, Atlantic Quest Corporation was doing business
as Eddie Romanelli’s restaurant. We
also note that “Romanelle’s” appears to be misspelling of
“Romanelli’s.”
2.
Plaintiff consistently refers to his cervical radiculopathy as a “neck
injury.” However, defendants do not
dispute that cervical radiculopathy is a back injury for purposes of N.C. Gen.
Stat. §97-2(6) or argue that the “specific traumatic incident” standard is
inapplicable. See
Raper, ___ N.C. App. at ___, 657 S.E.2d at 906 (“Defendants concede that
plaintiff’s injury to his cervical spine was a back injury [subject to the]
specific traumatic incident [standard].” (Original brackets and quotation marks
omitted.)).
3.
Plaintiff also assigned error to the Commission’s twentieth finding of
fact. However, because plaintiff
did not bring this assignment of error forward and argue it in the brief it is
deemed abandoned. N.C.R. App. P.
28(b)(6).