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. COA04-981
NORTH CAROLINA
COURT OF APPEALS
Filed: 7 June 2005
REBECCA TAYLOR,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 466926
CAROLINA RESTAURANT
GROUP, INC.,
Employer,
THE HARTFORD,
Carrier,
Defendants.
Appeal by Defendants from Opinion and Award of the North Carolina Industrial Commission entered 2 April 2004. Heard in the Court of Appeals 22 March 2005.
Poisson, Poisson, Bower & Clodfelter, PLLC, by E. Stewart Poisson and Fred D. Poisson, Jr., for plaintiff-appellee.
Cranfill, Sumner & Hartzog,
L.L.P., by Jaye E. Bingham and Erin F. Taylor, for defendant-appellants.
WYNN, Judge.
Where the Industrial Commission’s
findings of fact are supported by any competent evidence, those findings are
binding on appeal. Deese v. Champion
Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Here, Defendants contend that there was no
competent evidence to support the Industrial Commission’s findings that
Plaintiff’s right knee injury caused her disability. We disagree and find that competent evidence supports the
Industrial Commission’s findings of fact, which in turn support its conclusions
of law.
The record reflects that Plaintiff
Rebecca Taylor was employed by Carolina Restaurant Group as an attendant to the
hot bar of a Wendy’s restaurant in July 1994.
Additionally, at that time, Ms. Taylor drove a school bus (her primary
employment), and cleaned houses. On 22
July 1994, in the course of her employment with the Carolina Restaurant Group,
Ms. Taylor slipped on degreaser at Wendy’s and struck her right knee on a
wall. Ms. Taylor attempted to return to
work with the Carolina Restaurant Group and her bus driving employment
following the accidental injury but was unable to perform because she “couldn’t
take the pain.” As a consequence of the
July 1994 fall, Ms. Taylor underwent right knee replacement surgery in
1996. Since the July 1994 injury, Ms.
Taylor has also undergone several arthroscopic surgeries, inter alia, to
remove scar tissue from her right knee.
Ms. Taylor’s primary treating physician is Ward S. Oakley, Jr., M.D.
The record tends to show that while
Ms. Taylor’s condition eventually improved somewhat, she experienced continuing
pain and swelling in the right knee. On
23 June 1998, Ms. Taylor was treated by Dr. Oakley for pain in her right
knee. Dr. Oakley’s assessment was
“[r]ight knee pain” and “[r]ight knee failure of implant.” Defendants then referred Ms. Taylor to David
Mauerhan, M.D., of The Miller Clinic for further evaluation. Dr. Mauerhan recommended no further surgery
and that Ms. Taylor should continue to try to work. Dr. Mauerhan also noted as his impression:
Continued pain
following total knee replacement on the right knee. This unfortunate lady has had continued pain when reviewing her
history from her very initial problem on through to the present. No surgical procedure including her
arthroscopies nor the total knee have given her significant or continued
relief.
Dr. Mauerhan also found that Ms. Taylor had a fifty-percent permanent disability and “a painful total knee replacement which is giving her difficulty.”
In January 2000, Ms. Taylor fell on
black ice in the parking lot of Richmond Community College, where she was
employed as a janitor. (Ms. Taylor was
at that time no longer working for the Carolina Restaurant Group.) Ms. Taylor stated that, when she realized
she was going to fall, she guarded her right knee and took the blow to the left
knee. The fall injured the left knee,
which became increasingly painful. On 27
April 2000, Dr. Oakley performed an arthroscopic revision to the left
knee. On 2 October 2001, Dr. Oakley
assigned a twenty-percent impairment rating to the left knee and issued
standard restrictions following the surgery to the left knee. On 13 December 2001, Ms. Taylor entered a
settlement agreement with Richmond Community College for all liability under
the Workers’ Compensation Act.
By the Fall 2001, Ms. Taylor’s left
knee had healed well and required only light, if any, work restrictions. However, her right knee had become ever more
painful. In September 2001, she
reported to Dr. Oakley that she was experiencing increased pain, popping, and
swelling in her right knee. Dr. Oakley
noted that “she didn’t relate it to any particular injury or trauma . . ..” In performing an arthroscopic surgery on her
right knee in 2002, Dr. Oakley found shedding and plastic deformation of the
stem, or weight-bearing part, of her knee replacement appliance. Dr. Oakley stated that such deterioration of
the plastic appliance was “not uncommon,” and would lead to more pain and a
need for the deformed part to be replaced.
Moreover, Dr. Oakley indicated that knee replacements typically do not
last as long in younger, overweight persons, such as Ms. Taylor, and that there
is a twenty- to thirty-percent chance of an appliance failing within ten years. Dr. Oakley also stated that he thought there
was a better than fifty-percent chance that, within the next five years, the
deformed part of Ms. Taylor’s knee appliance would need to be replaced.
Ms. Taylor’s 1994 and 2000 injury
claims were consolidated before the Industrial Commission, and on 3 October
2002, Deputy Commissioner Phillip A. Holmes found, inter alia, that Ms.
Taylor’s 2000 accident resulted in her total disability, her prior right knee
injury was aggravated as a consequence of her 2000 injury, and the aggravation
of the right knee injury was compensable, as was her total disability, but that
Ms. Taylor relinquished her right to recover from Richmond Community College
under the settlement agreement she entered with them. Ms. Taylor appealed to the full Industrial Commission, which,
with Chairman Lattimore dissenting, reached the opposite conclusions,
determining that Ms. Taylor’s 1994 right knee injury caused her disability and
that Defendants were liable for her disability and medical compensation. Defendants appeal.
______________________________________________
On appeal, 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, 352 N.C. at 116, 530 S.E.2d at 553. 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)). Indeed, “so long as 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.’” Shah v. Howard Johnson, 140 N.C. App.
58, 61-62, 535 S.E.2d 577, 580 (2000) (quoting Porterfield v. RPC Corp.,
47 N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980)), disc. review denied,
353 N.C. 381, 547 S.E.2d 17 (2001).
“‘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.’”
Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 763, 487 S.E.2d 746,
749 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185,
345 S.E.2d 374, 378 (1986)). “Under the
Workers’ Compensation Act, disability is defined by a diminished capacity to
earn wages, not by physical infirmity.”
Id. at 764, 487 S.E.2d at 750 (citing N.C. Gen. Stat. §97-2(9)
(1991)). The employee may show
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.
Knight v.
Wal-Mart Stores, Inc., 149 N.C. App. 1, 7, 562 S.E.2d 434, 439
(2002), aff’d, 357 N.C. 44, 577 S.E.2d 620 (2003) (quotation
omitted). Further, “[i]n determining if
plaintiff has met this burden, the Commission must consider not only the
plaintiff’s physical limitations, but also his testimony as to his pain in
determining the extent of incapacity to work and earn wages such pain might
cause.” Webb v. Power Circuit, Inc.,
141 N.C. App. 507, 512, 540 S.E.2d 790, 793 (2000) (citing Matthews v.
Petroleum Tank Serv., Inc., 108 N.C. App. 259, 265, 423 S.E.2d 532, 535
(1992)), cert. denied, 353 N.C. 398, 548 S.E.2d 159 (2001); see also
Knight, 149 N.C. App. at 7-8, 562 S.E.2d at 439-40 (same).
Here, Defendants contend, that
“[t]he Record is entirely devoid of any evidence to support these
findings” that “(1) ‘[w]ere it not for the right knee injury, plaintiff would
be able to work,’ and (2) plaintiff’s failed knee replacement caused her
disability . . ..” We disagree.
Defendants have not excepted to the
Industrial Commission’s finding that in July 1994, “plaintiff sustained an
accidental injury to her right knee arising out of and in the course of
employment with Wendy’s . . ..”
Defendants also have not excepted to the fact that Defendant’s carrier,
The Hartford, “eventually paid all of
the medical procedures on the right knee.”
These findings are thus binding.
Pollock v. Reeves Bros., Inc., 313 N.C. 287, 292, 328 S.E.2d 282,
286 (1983) (holding that where defendants do not except to finding in a
workers’ compensation case, it is binding on appeal); Creel v. Town of Dover,
126 N.C. App. 547, 552, 486 S.E.2d 478, 480-81 (1997) (“[W]hen there are no
exceptions to the [Industrial] Commission’s findings, they are binding on
appeal.” (citation omitted)).
Moreover, the record shows some
competent evidence to support the Industrial Commission’s findings that, as a
result of her right knee injury, Ms. Taylor experienced pain and swelling that
ultimately caused her total disability.
For example, Dr. Oakley testified during his deposition that there were
“recurrent episodes of discomfort, [and] swelling” after Ms. Taylor’s knee
replacement, that Ms. Taylor reported “persistent discomfort” in her right
knee, that after her knee replacement Ms. Taylor was “struggling with it . .
..” Dr. Mauerhan, Defendants’ doctor,
also noted in 1998 that Ms. Taylor complained of “global knee pain. She says it hurts her all the time. There is no particular time when it doesn’t
hurt.” Dr. Mauerhan had the impression
that “[n]o surgical procedure . . . ha[d] given her significant continued
relief,” and found that Ms. Taylor “probably will have chronic pain in the
knee.” The Industrial Commission made a
finding, to which Defendants did not except and which is thus binding, that Dr.
Mauerhan found Ms. Taylor’s “chronic right knee pain” would be “permanent and
progressive.” Ms. Taylor testified, inter
alia, that her right knee “stayed in pain, it stayed swollen[,]” that her
right knee pain “got steadily worse[,]” and that her knee “get[s] cramps[,]”
needs to be moved all the time, and is painful. Ms. Taylor also testified that, inter alia, if her right
leg were normal and not painful, and taking into consideration the injury to
her left knee, she believes she could perform her former job at Richmond
Community College, which she now cannot perform; she testified that, “if my
right knee was normal, I could do it . . ..”
Dr. Oakley confirmed that Ms. Taylor’s belief that she could return to
work but for her right knee troubles was possible.
Additionally, the record shows some
competent evidence to support the Industrial Commission’s findings that Ms.
Taylor’s right knee replacement failed and deteriorated. For example, as early as June 1998, i.e.,
well before Ms. Taylor’s January 2000 fall, Dr. Oakley’s assessment of Ms.
Taylor’s condition was “[r]ight knee failure of implant.” Moreover, the Industrial Commission made a
finding not excepted to and thus binding on appeal that Dr. Mauerhan, as early
as 1998, found Ms. Taylor’s right knee condition to be “permanent and
progressive.” Dr. Mauerhan also noted
that, while he believed Ms. Taylor could still work in 1998, she had at that
time a permanent fifty-percent impairment in her right knee. Dr. Oakley testified extensively as to
shedding and deformation of part of Ms. Taylor’s right knee replacement
appliance. Dr. Oakley found shedding
and plastic deformation of the stem, or weight-bearing part, of Ms. Taylor’s
right knee replacement appliance and stated that such deterioration of the
plastic appliance was “not uncommon[.]”
Dr. Oakley stated that the shedding and deformation would lead to more
pain and a need for the deformed stem to be replaced. Moreover, Dr. Oakley indicated that knee replacements typically
do not last as long in younger, overweight persons, such as Ms. Taylor, and
that generally there is a twenty- to thirty-percent chance of an appliance failing
within ten years. Dr. Oakley testified
there was a better than fifty-percent chance that, within the next five years,
the deformed part of Ms. Taylor’s knee appliance would need to be replaced. And Dr. Oakley testified that, because of
her right knee, Ms. Taylor could not:
work on her knees, kneel down, squat, climb more than a few steps, sit
for prolonged periods, stand for prolonged periods, or do continuous walking.
Moreover, the record shows some
competent evidence to support the Industrial Commission’s findings that Ms.
Taylor is totally disabled. For
example, Dr. Oakley, in his deposition, testified that, with respect to Ms.
Taylor’s right knee, Ms. Taylor would not be able to: work on her knees, kneel down, squat, climb more than a few steps,
sit for prolonged periods, stand for prolonged periods, or do continuous
walking. Dr. Oakley testified that Ms.
Taylor would not be able to sit for longer than ten to fifteen minutes. Ms. Taylor testified that, inter alia,
if her right leg were normal and not painful, and taking into consideration the
injury to her left knee, she believes she could perform her former job at
Richmond Community College, which she now cannot perform; she testified that,
“if my right knee was normal, I could do it . . ..” Dr. Oakley confirmed that Ms. Taylor’s belief that she could
return to work but for her right knee troubles was possible. Further, Ms. Taylor, now fifty-seven years
old, testified that she attended school only through the tenth grade, has never
had an office job, is not qualified for such a job, and has worked her whole
life in physical labor positions that she can no longer perform.
We further find in the record some
competent evidence to support the Industrial Commission’s findings that the
cause of Ms. Taylor’s disability was not the later left knee injury. For example, Dr. Oakley testified that Ms.
Taylor “didn’t relate [her right knee’s popping and tenderness] to any
particular injury or trauma that I’m aware of, at least none that my notes
associate with it.” Dr. Oakley
testified that, while it would not have been unusual for Ms. Taylor to have had
to rely more on her right leg as a consequence of the left knee injury, his
records did not support that testimony.
Dr. Oakley also indicated that Ms. Taylor’s left knee had healed well
and required only light, if any, work restrictions.
Defendants point in particular to
(1) Ms. Taylor’s statement that her right knee “got worse. It’s got more painful from -- I guess, from
having to switch back and forth on legs like I have to do -- had to do []” after her left knee surgery, (2) Ms.
Taylor’s statement that her right knee symptoms worsened after her left knee
surgery because she “was putting more weight on it, and . . . that’s when my
knee really started giving me a lot of problems[,]” and (3) Dr. Oakley’s
testimony that he viewed Ms. Taylor’s injury to her left knee as “the straw
that breaks the -- you know, the camel[]” and “[j]ust one more little thing
just kind of pushed her over the edge[]” to disability. While this and other evidence might have
supported findings contrary to those made by the Industrial Commission, that is
not of consequence. Because there is
some evidence that directly or by reasonable inference tends to support the
Industrial Commission’s findings, this Court is bound, even though there is
evidence that would have supported a finding to the contrary. Shah, 140 N.C. App. at 61-62, 535
S.E.2d at 580 (“Where there is 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.”) (quotation omitted).
In support of their argument that
Ms. Taylor’s disability was caused by her January 2000 fall and not her 1994
injury, Defendants rely heavily on Wilder v. Barbour Boat Works, 84 N.C.
App. 188, 352 S.E.2d 690 (1987). This
case is, however, inapposite. In Wilder,
unlike here, the plaintiff sustained a subsequent injury to the same knee that
had previously undergone a knee replacement.
This Court found that “the evidence clearly indicates that plaintiff’s
[subsequent] injury aggravated a latent condition” and that “uncontradicted
evidence” showed the plaintiff’s “disability was the result of a work-related
injury which aggravated an existing infirmity.” Id. at 196-97, 352 S.E.2d at 695. Here, in contrast, the January 2000 injury
was not to the same knee that Ms. Taylor injured in the course of her
employment with the Carolina Restaurant Group but rather to her other
knee. Moreover, as discussed above,
there is not “uncontradicted evidence” that “clearly indicates” that the
January 2000 fall caused Ms. Taylor’s disability.
In sum, we do not find, as
Defendants contend, that “[t]he Record is entirely devoid of any
evidence to support” its findings that “(1) ‘[w]ere it not for the right knee
injury , plaintiff would be able to work,’ and (2) plaintiff’s failed knee
replacement caused her disability . . ..”
Moreover, we hold that the Industrial Commission’s findings of fact
support its conclusions of law and award.
Defendants also contend that the
conclusions of law and award are “not supported by the applicable law.” However, in their assignments of error,
Defendants excepted to the conclusions and award only on the basis that the
conclusions of law were “not supported by competent Findings of Fact” and that
the award was “not supported by the Findings of Fact and the Conclusions of
Law.” This argument is therefore not
properly before us. N.C. R. App. P.
10(a) (“the scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal”); Dep’t of Transp. v.
Elm Land Co., 163 N.C. App. 257, 264, 593 S.E.2d 131, 136 (quoting N.C. R.
App. P. 10(a) and refraining from addressing an argument regarding a conclusion
of law where the assignment of error in the record excepted to the conclusion
under a different theory), disc. review denied, 358 N.C. 542, 599 S.E.2d
42 (2004).
For the foregoing reasons, we affirm
the Industrial Commission’s Opinion and Award.
Affirmed.
Judge ELMORE concurs.
Judge TYSON dissents.
NO.
COA04-981
NORTH CAROLINA
COURT OF APPEALS
Filed: 7 June 2005
REBECCA TAYLOR,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 466926
CAROLINA RESTAURANT
GROUP, INC.,
Employer,
THE HARTFORD,
Carrier,
Defendants.
Tyson, Judge
dissenting.
The majority’s opinion holds “some”
competent evidence exists to support the Commission’s findings of fact, which
in turn support its conclusions of law, and affirms the Commission’s opinion
and award. There is no evidence to
sustain the Commission’s findings of fact.
The majorities’ opinions from the Commission and here are erroneous as a
matter of law. I respectfully dissent.
I. Standard of Review
The Commission is the sole judge of
issues of fact. Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683-84 (1982). The Commission’s findings of fact are
binding on appeal when supported by competent evidence, Deese, 352 N.C.
at 116, 530 S.E.2d at 553, and prevail “even though there is evidence that
would support a finding [of fact] to the contrary.” Mica Co. v. Board of Education, 246 N.C. 714, 717, 100
S.E.2d 72, 74 (1957) (citations
omitted). The Commission’s findings
must support its conclusions of law. Creel
v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 480 (1997)
(citing Moore v. Davis Auto Service, 118 N.C. App. 624, 627, 456 S.E.2d
847, 850 (1995)). We review “the
Commission’s conclusions of law . . . de novo.” McRae v. Toastmaster, Inc., 358 N.C.
488, 496, 597 S.E.2d 695, 701 (2004)
(citing Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491
S.E.2d 678, 681 (1997), disc. rev. denied, 347 N.C. 671, 500 S.E.2d 86
(1998)). Our de novo review
also applies to mixed questions of fact and law. Campbell v. N.C. Dep’t of Transport., 155 N.C. App. 652,
667, 575 S.E.2d 54, 64, disc. rev. denied, 357 N.C. 62, 579 S.E.2d 386
(2003).
II. De Novo Review
Both the opinion and award of the
deputy commissioner and Chairman Lattimore’s dissenting opinion from the
Commission’s opinion and award properly found plaintiff’s right knee injury was
a pre-existing condition “which was aggravated” by the 31 January 2000 accident
and is “compensable as a part of that injury.”
No evidence before the Commission supports a contrary finding or
conclusion.
A. Aggravation of Pre-existing Injury
“An injury by accident arising out
of and in the course of employment which accelerates or aggravates a
pre-existing disease or infirmity, thus proximately contributing to the . . .
disability of the employee, is compensable.”
Leonard T. Jernigan, North Carolina Workers’ Compensation, §12:8,
at 138 (4th ed. 2004) (citations
omitted). “Because employers must
accept employees as they find them, employers can potentially be liable for
total disability benefits if an on-the-job injury aggravates or accelerates a
pre-existing condition to such an extent that it causes complete disability.” Id., §18:1, at 213 (citations
omitted); Brown v. Family Dollar Distrib. Ctr., 129 N.C. App. 361, 364,
499 S.E.2d 197, 199 (1998) (“Our courts have held that when an accident arising
out of employment materially accelerates or aggravates a pre-existing condition
and proximately contributes to disability, the injury is compensable.”) (citing
N.C. Gen. Stat. §97-2 (1991); Anderson v. Motor Co., 233 N.C. 372, 64
S.E.2d 265 (1951); Buck v. Procter and Gamble Co., 52 N.C. App. 88, 278
S.E.2d 268 (1981); and Wilder v. Barbour Boat Works, 84 N.C. App. 188,
352 S.E.2d 690 (1987)). Undisputed here
is that Richmond Community College was plaintiff’s employer at the time her
1994 pre-existing injury was aggravated in January 2000.
Our Supreme Court stated in Vause
v. Equipment Co.,
[t]he hazards
of employment do not have to set in motion the sole causative force of an
injury in order to make it compensable.
By the weight of authority it is held that where a workman by reason of
constitutional infirmities is predisposed to sustain injuries while engaged in
labor, nevertheless the leniency and humanity of the law permit him to recover
compensation if the physical aspects of the employment contribute in some
reasonable degree to bring about or intensify the condition which renders him
susceptible to such accident and consequent injury. But in such case the employment must have some definite,
discernible relation to the accident.
233 N.C. 88,
92, 63 S.E.2d 173, 176 (1951) (internal citation and quotation omitted).
In Hoyle v. Carolina Associated
Mills, this Court stated:
The
work-related injury need not be the sole cause of the problems to render an
injury compensable. Kendrick v. City
of Greensboro, 80 N.C. App. 183,
186, 341 S.E.2d 122, 123, disc. review denied, 317 N.C. 335, 346 S.E.2d
500 (1986). If the work-related
accident “contributed in ‘some reasonable degree’” to plaintiff’s disability,
she is entitled to compensation. Id.
at 187, 341 S.E.2d at 124. “‘When a pre-existing, non-disabling,
non-job-related condition is aggravated or accelerated by an accidental injury
arising out of and in the course of employment . . . 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.’” Wilder v. Barbour
Boat Works, 84 N.C. App. 188, 196, 352 S.E.2d 690, 694 (1987) (quoting Morrison
v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981)).
122 N.C. App.
462, 465-66, 470 S.E.2d 357, 359 (1996).
In Mabe v. Granite Corp., the
defendant argued certain factors are “beyond the control of an employer and
cannot be considered in determining an employee’s disability.” 15 N.C. App. 253, 256, 189 S.E.2d 804, 807
(1972). This Court responded, “The
answer to this is that an employer accepts an employee as he is. If a compensable injury precipitates a
latent physical condition, such as heart disease, cancer, back weakness and the
like, the entire disability is compensable and no attempt is made to weigh the
relative contribution of the accident and the pre-existing condition.” Id. (citing 2 Larson, Workmen’s
Compensation Law, §59.20, p. 88.109).
“‘When the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence
that flows from the injury arises out of the employment, unless it is the
result of an independent intervening cause attributable to claimant’s own
intentional conduct.’” Roper v. J.P.
Stevens & Co., 65 N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983) (quotation
omitted), disc. rev. denied, 310 N.C. 309, 312 S.E.2d 652 (1984).
B. Analysis
Undisputed evidence from the record
shows plaintiff’s pre-existing right knee injury was “aggravated” by the 31
January 2000 accident. Plaintiff was
working full-time as a custodian for Richmond Community College while
undergoing treatment for her right knee.
Her position required “climbing stairs, bending, stopping, and prolonged
standing and walking, all of which were in excess of her restrictions.” Plaintiff continued working until her
accident in January 2000.
The Commission found “plaintiff’s
condition stabilized until she slipped at work on an ink pen [in June 1997] and
suffered a patella sprain to the right knee” and after treatment “the right
knee pain resolved . . . .” However,
after the 31 January 2000 accident, the Commission found: (1) “[p]laintiff used her left leg to
compensate for her right knee, and would use her left leg to pull up her right
leg when climbing stairs;” (2) “plaintiff could not favor her right knee by
relying on her left knee;” and (3) “Dr. Oakley, the treating physician for both
knee injuries, . . . opined that the [January] 2000 left knee injury was the
straw that broke . . . that put her over the edge.”
Plaintiff admitted the aggravation
of injuries to her right knee after the 31 January 2000 accident: “Well, it’s got worse. It’s got more painful from -- I guess, from
having to switch back and forth on legs like I have to do.” She testified her right knee worsened after
the surgery on her left knee: “[I]t wasn’t long after the surgery because I was
having to use . . . my right knee more, you know. Like I said, to walk and all, I was putting more weight on it,
and . . . that’s when my [right] knee really started giving me a lot more
problems.” (emphasis supplied).
Undisputed evidence shows plaintiff’s
previously existing right knee injury was “materially accelerated and
aggravated” by the 31 January 2000 accident while employed at Richmond
Community College. Brown, 129
N.C. App. at 364, 499 S.E.2d at 199.
Prior to the accident, plaintiff performed her employment duties and
exceeded the work restrictions imposed by her physicians. Plaintiff was unable to physically
compensate for her injured right knee as a “natural consequence” of her
accident at Richmond Community College, and its condition worsened. See Roper, 65 N.C. App. at 73, 308
S.E.2d at 488 (“When the primary injury is shown to have arisen out of and in
the course of employment, every natural consequence that flows from the injury
arises out of the employment, unless it is the result of an independent
intervening cause attributable to claimant’s own intentional conduct.”). Richmond Community College “accepted”
plaintiff with her pre-existing right knee injury. As her employer at that time, Richmond Community College is
liable for the “aggravation” of plaintiff’s pre-existing injury.
Plaintiff relinquished all her
claims against Richmond Community College pursuant to the settlement agreement
approved by the Commission. As Chairman
Lattimore’s dissenting opinion noted, “[p]laintiff should not be permitted to
settle with Richmond Community College, then recover from defendants in this
case that which would be paid by Richmond Community College but for the
settlement agreement.”
III. Conclusion
Plaintiff’s accident on 31 January
2000 is “compensable,” but not by defendants at bar. The injury to her left knee in 2000 “aggravated” her pre-existing
right knee injury from 1994,
“accelerated” its failure, and led to her eventual total
disability. Jernigan, supra
§12:8, at 138. Additional injury to
plaintiff’s right knee was a “natural consequence” of the accident in the
course of her employment with Richmond Community College. Roper, 65 N.C. App. at 73, 308 S.E.2d
at 488. As her employer, Richmond
Community College accepted plaintiff as it found her with the previously
injured right knee. The majorities’
opinions both at the Commission and at this Court erroneously places liability
on defendants at bar. That liability rightfully
and legally belongs to Richmond Community College. I respectfully dissent.