All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA08-937
Filed:
7 April 2009
ANITA BIGGERSTAFF,
Employee,
Plaintiff,
v.
I.C.
File Nos. 639313 & 639733
PETSMART, INC.,
Employer,
Carrier,
Defendants.
Appeal
by defendants from Opinion and Award entered 22 May 2008 by the Full Commission
in the North Carolina Industrial Commission.
Heard in the Court of Appeals 10 December 2008.
Scudder &
Hedrick, PLLC, by John A. Hedrick, for plaintiff-appellee.
Cranfill, Sumner
& Hartzog, L.L.P., by J. Michael Ricci and Ashley Baker White, for
defendant-appellants.
BRYANT,
Judge.
Defendants
Petsmart, Inc. and St. Paul Travelers appeal from an Opinion and Award entered
22 May 2008 in the North Carolina Industrial Commission which denied plaintiff
Anita Biggerstaff’s claim of injury to her back but awarded total disability
compensation at a weekly rate of $730.00 for Biggerstaff’s claim of bilateral
carpal tunnel syndrome arising out of the course of her employment. For the reasons stated herein, we affirm in
part and reverse and remand in part the Opinion and Award of the Commission.
On 14
July 2006, Petsmart filed a Form 19, employer’s report of employee’s injury or
occupational disease to the Industrial Commission, in which it stated that on 6
July 2006 Biggerstaff reported a lower back or lumbar area injury. The injury was alleged to have occurred on 20
June 2006. Also, on 14 July 2006,
Petsmart filed a Form 61, denial of worker’s compensation claim. On 19 July 2006, Biggerstaff filed a Form 18,
notice of accident to employer and claim, in which Biggerstaff described that
on 20 June 2006 “while lifting a large dog onto [a] grooming table, [she]
experienced back pain.” She also filed a
Form 33, request that her claim be assigned for hearing, stating that the
injury affected her back and hands. On
21 August 2006, Petsmart filed a Form 33R, response to request that Biggerstaff’s
claim be assigned for hearing, and, on 6 October 2006, filed a Form 61, denial
of worker’s compensation claim.
At an
initial pre-trial conference, the parties identified the issues for decision by
the Commission: (a) whether Biggerstaff sustained a low back injury as a result
of an accident or specific traumatic incident arising out of and in the course
of her employment on 20 June 2006; (b) whether Biggerstaff contracted the occupational
disease carpal tunnel syndrome as a result of her employment; and (c) what
compensation was Biggerstaff entitled to receive as a result of her lower back
injury and alleged carpal tunnel syndrome.
A
hearing was held before Deputy Commissioner Philip A. Holmes on 17 April
2007. Deputy Commissioner Holmes
concluded as follows:
1. [Biggerstaff] did not sustain a
compensable injury by accident or specific traumatic incident arising out of
and in the course of her employment with Petsmart on or about 20 June 2006.
2. The expert testimony was insufficient
to establish the causal connection between [Biggerstaff’s] alleged work injury
on June 20, 2006 and her current condition.
Deputy Commissioner
Holmes denied Biggerstaff’s claim for workers’ compensation benefits. Biggerstaff filed notice of appeal to the
Full Commission.
On 19
March 2008, the Full Commission reviewed the prior Opinion and Award of the
deputy commissioner, reviewed the briefs of the parties, and heard oral
arguments. Therefore, the Commission
made the following findings of fact regarding Biggerstaff’s occupational
disease claim — carpal tunnel:
39. Defendants retained Allan Gorrod, an
ergonomist, to evaluate and prepare an ergonomic report in regard to plaintiff’s
Salon Manager position with [Petsmart].
Although Mr. Gorrod was unable to quantify what amount of vibration is
necessary to increase exposure to conditions consistent with cumulative trauma,
as [Biggerstaff] has alleged, he expressed in his report that the duties of a
Salon Manager did not place persons employed in the positions at “increased
exposure to conditions consistent with cumulative trauma.” However, the Full
Commission finds that Mr. Gorrod mistakenly believed that approximately forty
percent (40%) of [Biggerstaff’s] duties were clerical in nature, when the
greater weight of the evidence shows that approximately ninety percent (90%) of
plaintiff’s duties involved “hands-on” grooming of animals. In his testimony, Mr. Gorrod stated that he
knew nothing about [Biggerstaff] or how she performed her work, and
acknowledged that if [Biggerstaff’s] duties involved more grooming than he had
originally understood, the job would place her at greater risk of developing a
cumulative trauma disorder, such as bilateral carpel [sic] tunnel syndrome,
than was shown in his report. Also, the
Full Commission finds that Mr. Gorrod observed [Petsmart’s] groomers on, what
the record shows, to be a slow day.
Therefore, the work observed by Mr. Gorrod did not accurately reflect
the typical pace of the work performed by [Biggerstaff].
. . .
41. Dr. Edwards and Dr. Krakauer,
[Biggerstaff’s] treating physician, are equally experienced and qualified to
offer expert opinion evidence regarding the cause of carpal tunnel syndrome and
whether an employment places an employee at an increased risk of developing
that condition as compared to members of the general public not so
employed. In reviewing the testimony of
each physician in this matter, the Full Commission gives greater weight to the
[o]pinions of Dr. Krakauer as opposed to Dr. Edwards. The Full Commission finds that Dr. Edwards
opinions were based in part on Mr. Gorrod’s report, which inaccurately
represented that [Biggerstaff] performed clerical duties for forty percent
(40%) of her day. Finally, Dr. Edwards
never examined or evaluated [Biggerstaff].
42. Conversely, Dr. Krakauer was of the
opinion that [Biggerstaff’s] employment with [Petsmart] caused or significanly
aggravated [Biggerstaff’s] bilateral carpal tunnel syndrome. He also expressed
the opinion that [Biggerstaff’s] employment placed her at an increased risk of
developing bilateral carpal tunnel syndrome as compared to members of the
general public. The Full Commission
finds that Dr. Krakauer, as [Biggerstaff’s] treating physician, personally
examined an[d] evaluated [Biggerstaff]. Further, Dr. Krakauer testified that he
was aware of the duties of a dog groomer, including exposure to vibrating
clippers, and the hand, wrist, and arm motions necessary to perform those
duties. In addition, Dr. Krakauer was
aware that [Biggerstaff’s] grooming duties consumed approximately 85 to 90% of
her work day, as opposed to 40 to 60%, as assumed by Dr. Edwards and Mr.
Gorrod.
43. Based on the greater weight of the
evidence of record, the Full Commission finds that [Biggerstaff’s] employment
with [Petsmart] significantly contributed to her development of bilateral
carpal tunnel syndrome. Further, [Biggerstaff’s] employment placed her at an
increased risk of developing bilateral carpal tunnel syndrome as compared to
members of the general public.
. . .
45. The Full Commission finds that all
medical treatment, examinations, and evaluations received by plaintiff for her
hands, wrists and arms were reasonably necessary to effect a cure, provide relief,
or lessen her period of disability.
Based
on these findings, the Commission concluded that “[Biggerstaff] has shown
through the greater weight of evidence of record that her bilateral carpal
tunnel syndrome is due to causes and conditions that were characteristic of and
peculiar to her employment with [Petsmart] and is, thus, an occupational
disease.” The Commission denied
Biggerstaff’s claim for injury by accident to her back. The Commission then awarded Biggerstaff
temporary total disability compensation at the weekly rate of $730.00 from 28
June 2006 and continuing until further order of the Commission. Defendants appeal.
____________________________________
On
appeal, defendants question whether the Commission’s findings of fact were
supported by competent evidence in (I) determining Biggerstaff suffered from a
compensable occupational disease and (II) awarding Biggerstaff temporary total
disability.
Standard
of Review
“The
standard of review on appeal to this Court of a workers’ compensation case is
whether there is any competent evidence in the record to support the Commission’s
findings of fact, and whether these findings support the conclusions of the
Commission.” Russell v. Lowes Prod.
Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (citation
omitted).
An appellate court reviewing a workers’
compensation claim does not have the right to weigh the evidence and decide the
issue on the basis of its weight. The court’s duty goes no further than to
determine whether the record contains any evidence tending to support the
finding. In reviewing the evidence, we
are required, in accordance with the Supreme Court’s mandate of liberal
construction in favor of awarding benefits, to take the evidence in the light
most favorable to plaintiff.
Trivette v.
Mid-South Mgmt., Inc.,
154 N.C. App. 140, 143-44, 571 S.E.2d 692, 695 (2002) (internal citations and
quotations omitted).
I
First,
defendants question whether the Commission’s findings of fact supporting its
conclusion that Biggerstaff suffered from a compensable occupational disease as
described under N.C. Gen. Stat. §97-53(13) were supported by competent
evidence.
The Commission may not wholly disregard
competent evidence; however, as the sole judge of witness credibility and the
weight to be given to witness testimony, the Commission may believe all or a
part or none of any witness’s testimony. The Commission is not required to
accept the testimony of a witness, even if the testimony is uncontradicted. Nor
is the Commission required to offer reasons for its credibility determinations.
Hassell v. Onslow
County Bd. of Educ., 362
N.C. 299, 306‑07, 661 S.E.2d 709, 715 (2008) (internal citations and
quotations omitted).
In
order to show entitlement to compensation for disability resulting from an
occupational disease covered by N.C.G.S. §97-53(13), a plaintiff must show the
following:
(1) that her disablement results from an
occupational disease encompassed by G.S. 97‑53(13), i.e., an occupational
disease due to causes and conditions which are characteristic of and peculiar
to a particular trade, occupation or employment as distinguished from an
ordinary disease of life to which the general public is equally exposed outside
of the employment; and (2) the extent of the disablement resulting from said
occupational disease, i.e., whether she is totally or partially disabled as a
result of the disease.
Morrison v.
Burlington Indus., 304
N.C. 1, 12, 282 S.E.2d 458, 466-67 (1981) (emphasis omitted). Defendants challenge the Commission’s
findings of fact numbered 39, 41, 42, 43, and 45.
Defendants
first challenge finding of fact number 39 that “Mr. Gorrod mistakenly believed
that approximately forty percent (40%) of [Biggerstaff’s] duties were clerical
in nature, when the greater weight of evidence shows that approximately ninety
percent (90%) of [Biggerstaff’s] duties involved ‘hands-on’ grooming of
animals.”
Natalie
Kurtz, a Petsmart Salon Manager who worked with Biggerstaff while she was
employed at Petsmart, testified that she
groomed seven to eight dogs a day and, on average, grooming took one to two
hours per dog. Biggerstaff also
testified that during 2005 and 2006, on an average day, she would groom seven
to eight dogs, and it would take seven and a half hours or more depending on
what she had to do that day. Further,
Biggerstaff testified that she spent “[p]robably ninety-five percent” of her
average work day grooming animals.
Therefore, we hold there was sufficient evidence for the Commission to
find that the “evidence shows that approximately ninety percent (90%) of
[Biggerstaff’s] duties involved ‘hands-on’ grooming of animals.”
Also,
under finding of fact number 39, defendants contest the Commission’s finding
that “Mr. Gorrod . . . acknowledged that if [Biggerstaff’s] duties involved
more grooming than he had originally understood, the job would place her at
greater risk of developing a cumulative trauma disorder, such as bilateral
carpel [sic] tunnel syndrome, than was shown in his report.”
During
his deposition, Gorrod testified that he was familiar with NIOSH studies
regarding cumulative trauma disorders.
And, those studies state that vibration is an ergo stressor or risk
factor for cumulative trauma disorders that is to be considered within a job. Gorrod testified that if Biggerstaff’s
workday was split eighty percent (80%) grooming and twenty percent (20%)
administrative, rather than his initial assessment of sixty percent (60%)
grooming and forty percent (40%) salon management, her risk factor / ergo
stressor on a scale of zero to ten (0 - 10) would increase from two, low risk,
and “more likely be a five, moderate.”
Therefore, we hold there was sufficient evidence for the Commission to
find that “Mr. Gorrod . . . acknowledged that if [Biggerstaff’s] duties
involved more grooming than he had originally understood, the job would place
her at greater risk of developing a cumulative trauma disorder, such as
bilateral carpel [sic] tunnel syndrome, than as shown in his report.”
Also,
under finding of fact number 39, defendants contest the Commission’s finding
that “Mr. Gorrod stated that he knew nothing about [Biggerstaff] or how she
performed her work . . . .” However,
Gorrod testified as follows during his deposition:
Counsel: For the record, Mr. Gorrod, you’ve
never met Ms. Biggerstaff?
Gorrod: No, sir.
Counsel: You’ve never spoken with Ms.
Biggerstaff?
Gorrod: Not that I’m aware of. No, sir.
Counsel: You’ve never had an opportunity to
observe her working as a groomer?
Gorrod: No.
Therefore, we hold
there was sufficient evidence presented for the Commission to find that Gorrod
stated that he “knew nothing about [Biggerstaff] or how she performed her work
. . . .”
Also,
under finding of fact number 39, defendants contest the Commission’s finding
that “Mr. Gorrod observed [Petsmart’s] groomers on, what the record shows, to
be a slow day. Therefore, the work
observed by Mr. Gorrod did not accurately reflect the typical work or the
typical pace of the work performed by [Biggerstaff].”
Gorrod
testified that he observed the groomers in the Petsmart grooming salon for
approximately an hour and fifty minutes.
Tommy Wayne Fulcher, the store director at the Petsmart at which
Biggerstaff was employed, testified that he was present when Gorrod came to assess
the groomers. Fulcher testified that
Gorrod “spent a couple of hours” with the groomers along with the salon
manager. When asked if “it was a normal
day at the store as far as the pace of work[,]” Fulcher responded, “If
anything, it might have been a little slow.”
Natalie Kurtz, the salon manager on duty when Gorrod performed his
assessment also testified that “[i]t was slower that day. There weren’t as many dogs.” Therefore, we hold there was sufficient
evidence presented for the Commission to find that “Mr. Gorrod observed
[Petsmart’s] groomers on, what the record shows, to be a slow day. Therefore, the work observed by Gorrod did
not accurately reflect the typical work or the typical pace of the work
performed by [Biggerstaff].”
Defendants
next challenge the Commission’s finding of fact number 41 that after “reviewing
the testimony of each physician in this matter, the Full Commission gives
greater weight to the [o]pinions of Dr. Krakauer as opposed to Dr. Edwards.” Defendants contest the Commission’s finding
that “Dr. Edwards opinions were based in part on Mr. Gorrod’s report, which
inaccurately represented that [Biggerstaff] performed clerical duties for forty
percent (40%) of her day.” After a
review of the record evidence, we cannot conclusively determine that Dr.
Edwards’ opinion was based on Gorrod’s report; however, as previously stated,
the Commission is “the sole judge of witness credibility and the weight to be
given to witness testimony . . . .” Hassell,
362 N.C. at 306, 661 S.E.2d at 715 (citations and quotations omitted). Therefore, we overrule defendants’ argument.
Defendants
next challenge the Commission’s findings of fact numbers 42 and 43. In finding of fact number 42, the Commission
found that Dr. Krakauer had examined Biggerstaff and he was aware of the duties
of a dog groomer as well as the “hand, wrist, and arm motions necessary to
perform those duties. In addition, Dr. Krakauer was aware [Biggerstaff] groomed
pets for approximately 85 to 90% of her work day . . . .”
Dr.
Krakauer testified that he first saw Biggerstaff as a patient on 11 July 2006
when she exhibited numbness and tingling in her hands. Dr. Krakauer testified that he reviewed a
video and letter provided to him by Biggerstaff. The video was of a self-employed dog groomer
illustrating the physical activity involved in dog grooming. The letter described the video as well as
disparities between the actions illustrated on the video and actions
Biggerstaff took when she groomed dogs.
The letter also included two questions involving the potential effects
dog grooming may have had on Biggerstaff.
Dr. Krakauer testified that he had responded in the affirmative to the
first question:
Considering the physical demands of Ms.
Biggerstaff’s duties as a dog groomer, specifically including the pace of her
work, her use of vibrating clippers and the use of her hands and wrists, in
your opinion, to a reasonable degree of medical certainty, did Ms. Biggerstaff’s
work as a dog groomer cause or significantly contribute to her
development of carpal tunnel syndrome?
(Emphasis
added). But, Dr. Krakauer further
testified that, as opposed to counsel, he felt more comfortable putting greater
emphasis on the phrase “significantly contributed to.”
Krakauer: I think we feel more comfortable
talking about contributing factors, and as she described the work to me and as
I reviewed it, coming to the conclusion that that work put her at increased
risk compared to the general population, I feel comfortable with that. The view that the work is a – was – a
contributor to her development of carpal tunnel syndrome, I feel comfortable
with that.
Counsel: Okay.
Do you hold those opinions, Doctor, to a reasonable degree of medical
certainty?
Krakauer: Yes.
Counsel: Would your opinions that you just
expressed change any if the Industrial Commission was to find that Ms.
Biggerstaff groomed for less than seven and a half hours a day, for instance,
for seven hours a day?
Krakauer: No.
Therefore,
we hold that there was sufficient evidence of record for the Commission to find
that Dr. Krakauer was aware of the duties of a dog groomer as well as the “hand,
wrist, and arm motions necessary to perform those duties. [And,] [i]n addition,
Dr. Krakauer was aware [Biggerstaff] groomed pets for approximately 85 to 90%
of her work day . . . .”
In finding
of fact number 43, the Commission found that “[Biggerstaff’s] employment with
[Petsmart] significantly contributed to her development of bilateral carpal
tunnel syndrome. Further, [Biggerstaff’s]
employment placed her at an increased risk of developing bilateral carpal
tunnel syndrome as compared to members of the general public.” Based upon the previous discussion, we hold
there was sufficient evidence to support this finding.
In
finding of fact number 45, the Commission found that “all medical treatment,
examinations, and evaluations received by [Biggerstaff] for her hands, wrists
and arms were reasonably necessary to effect, provide relief, or lessen her
period of disability.” Though defendants
assigned error to this finding, they failed to present us with an argument on
this issue. Thus, we deem this
assignment of error abandoned. See
N.C. R. App. P. 28(a) (“Questions raised by assignments of error in appeals
from trial tribunals but not then presented and discussed in a party’s brief
are deemed abandoned.”).
For
the aforementioned reasons, we hold the Commission’s findings of fact numbers
39, 41, 42, and 43 were supported by competent evidence in the record that in
turn support the conclusion of law that Biggerstaff suffered a compensable
occupational disease. Accordingly, these
arguments and assignments of error are overruled.
II
Next,
defendants argue that the Commission’s award of temporary total disability
benefits from the date of injury and continuing are not supported by competent
evidence of record. We agree.
“The
term ‘disability’ means incapacity because of injury to earn the wages which
the employee was receiving at the time of injury in the same or any other
employment.” Hilliard v. Apex Cabinet
Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). “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 Community Hospital, 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997)
(citation omitted).
[T]o 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, 305 N.C. at 595, 290 S.E.2d at 683.
[A] plaintiff may satisfy this initial
burden by one of several approaches: (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, experience, 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.
Trivette, 154 N.C. App. 140, 146, 571 S.E.2d 692,
696 (2002) (citing Russell, 108 N.C. App. at 765‑66, 425 S.E.2d at
457 (internal citations omitted)).
Dr.
Krakauer saw Biggerstaff on 11 July 2006.
An EMG test was performed 18 July 2006 which showed that she suffered
from “‘[l]eft mild to moderate median neuropathy,’ that’s carpal tunnel. ‘Median neuropathy at the wrist as evidenced
by left median motor distal latency that was relatively prolonged. Right borderline median neuropathy at the
wrist. No evidence of ulnar
neuropathy. No evidence of cervical
radiculopathy or brachioplexopathy.’” On
21 September 2006, Dr. Krakauer performed a right carpal tunnel release surgery
and, on 27 November 2006, performed a left carpal tunnel release surgery. On 3 January 2007, Dr. Krakauer wrote
Biggerstaff a note that she was not to return to work. On 22 February 2007, Dr. Krakauer wrote that
Biggerstaff may return to work 19 March 2007 but due to her injury was
restricted from lifting, pushing, or pulling twenty-five pounds or more with
both hands.
In an
affidavit submitted to the Commission along with a motion to receive additional
evidence, Biggerstaff asserts that the last day she worked for Petsmart was 27
June 2006 whereupon she did not work again until 7 December 2007 at which time
she was employed by Johnston County Public Schools as a substitute teacher who
earned $140.00 during that month. On 22
March 2008, the Commission awarded Biggerstaff “temporary total disability
compensation at the weekly rate of $730.00 from June 28, 2006, and continuing
until further order of the Commission.”
We
cannot determine from the record evidence whether plaintiff earned wages in any
employment between 28 June 2006 and 7 December 2007 and, if so, whether her
injury prevented her from earning any wages or prevented her from earning the
same wages as before her injury.
Therefore, we reverse the Commission’s award of temporary total
disability payments and remand for further findings as to whether Biggerstaff
(1) was incapable after her injury of earning the same wages she had earned
before her injury in the same employment, (2) was incapable after her injury of
earning the same wages she had earned before her injury in any other
employment, and (3) whether her incapacity was caused by her injury.
Affirmed
in part; reversed and remanded in part.
Judges
MCGEE and GEER concur.