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NO. COA04-864
NORTH CAROLINA COURT OF APPEALS
Filed:
20 December 2005
MAMIE L. DAVIS,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 881706
COLUMBUS COUNTY SCHOOLS,
Employer,
SELF-INSURED,
KEY RISK MANAGEMENT,
Servicing Agent,
Defendants.
Appeal by defendants from opinion and award
entered by the North Carolina Industrial Commission on 22 March 2004. Heard in the Court of Appeals 21 March 2005.
Attorney
General Roy Cooper, by Assistant Attorney General Stacey A. Phipps, for the
State.
Brumbaugh, Mu & King, P.A., by Nicole D.
Wray, for plaintiff-appellee.
HUDSON, Judge.
Plaintiff alleges that she sustained a
work-related injury on 26 October 1998.
Shortly thereafter, defendants filed a Form 19, recording that a
co-worker grabbed plaintiff by the arm, and spun her around, causing pain. Defendants paid plaintiff’s medical bills
from 26 October to 10 November 1998 while the claim was being
investigated. Some time later that
fall, plaintiff filed a Form 33 requesting a hearing and further compensation. Defendants responded by filing a Form 33R on
7 December 2000, in which they denied compensability for lack of
causation. After a hearing on 9 May
2002, Deputy Commissioner Morgan S. Chapman granted several extensions for the
parties to complete medical depositions and filed an opinion and award on 30
April 2003, denying plaintiff’s claim for workers’ compensation. Deputy Commissioner Chapman held that
plaintiff “did not sustain an injury by accident arising out of and in the
course of her employment.” Plaintiff
appealed to the Full Commission, which reversed the Deputy Commissioner’s
decision on 22 March 2004. Defendants
appeal. We affirm.
The facts as found by the Commission show
that plaintiff was employed as a school social worker with the Columbus County
Schools. On 26 October 1998, plaintiff
was standing in the hall talking to students when the band teacher, who wished
to speak with her, came up behind her, grabbed her by the arm, and spun her
around. Plaintiff felt immediate pain
in her left arm. Prior to this
incident, plaintiff had been experiencing problems with her left shoulder and
Dr. Ogden, an orthopedic surgeon, had diagnosed her with a frozen shoulder and
given her an injection on 1 October 1998.
Immediately after the incident on 26 October 1998, plaintiff received
medical treatment from Dr. Hodgson, her family physician. She informed Dr. Hodgson of her prior
shoulder problems and her diagnosis of a frozen shoulder and explained the
event from earlier in the day. Dr.
Hodgson’s exam revealed significant reduction of range of motion with exquisite
tenderness in the shoulder and left upper back. He diagnosed her with shoulder and arm pain of unclear etiology.
Plaintiff returned to Dr. Hodgson on 3
November 1998 and reported severe pain and swelling in her left arm and the
left side of her neck. He diagnosed her
with pericervical hypersthesias and paresthesias of undetermined etiology. Dr. Hodgson advised plaintiff not to
work. On 2 February 1999, he instructed
her that she could return to work on 15 February 1999.
On 16 December 1998, plaintiff began
treatment with Dr. Speer, an orthopedic surgeon at Duke University Medical
Center, while continuing treatment with Dr. Hodgson. Dr. Speer diagnosed her with a frozen shoulder and possible
reflex sympathetic dystrophy and recommended that she wear a sling and cold
therapy pads. On 27 January 1999,
plaintiff returned to Dr. Speer and reported improvement and Dr. Speer
recommended gentle physical therapy. On
14 June 1999, plaintiff reported tremendous improvement and Dr. Speer
recommended another month of physical therapy and released her from his
care. Plaintiff returned to work in
March 1999.
Before reaching the merits of defendants’
arguments, we must address certain violations of the rules of appellate
procedure. Rule 10(c)(1) requires an appellant,
in assigning error, to set forth the legal basis for the assignment and to
“direct[] the attention of the appellate court to the particular error about
which the question is made, with clear and specific record or transcript
references.” N.C. R. App. P. 10(c)(1)
(2004). Here, defendants made the
following three assignments of error:
I. The
Full Commission erred in finding Plaintiff sustained an injury by accident
to her left arm arising out of and in the course of her employment with
defendant that aggravated or exacerbated her pre-existing left shoulder
condition. (R p 20)
II. The
Full Commission erred in ordering that benefits and medical expenses be paid to
Plaintiff by Defendant. (R p 20)
III. The
Full Commission’s findings and conclusions are not supported by competent
evidence. (R p 20)
(emphasis added). Defendants failed to specify any enumerated findings of fact or conclusions of law, but each assignment of error refers to page twenty of the record, and on page twenty, the following finding of fact appears:
11. The competent evidence in the record
establishes that plaintiff sustained an injury by accident to her left
shoulder arising out of and in the course of her employment with defendant that
aggravated or exacerbated her pre-existing left shoulder condition.
(emphasis added). Defendants’ first assignment of error, which they bring forward
with Argument I in their brief, quotes from this finding of fact verbatim. Thus, we have no trouble discerning which
finding of fact defendants challenge by this assignment of error. Similarly, the second assignment of error
clearly corresponds to the second and third conclusions of law, which granted
plaintiff disability compensation and medical expenses, respectively. The third assignment of error, by itself, is
too general to preserve for review objections to specific findings of
fact. See In Re Adoption of Shuler,
162 N.C. App. 328, 331, 590 S.E.2d 458, 460 (2004). However, we conclude that when considered along with the first
two assignments of error, it adequately sets forth the legal basis for the
other assignments of error.
Rule 2 of the Appellate Rules of Procedure
allows this Court to review an appeal, despite rules violations. N.C. R. App. P. 2 (2005). In Viar v. N.C. DOT, our Supreme
Court admonished this Court not to use Rule 2 to “create an appeal for an
appellant,” and vacated the decision of the Court of Appeals. 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005). However, in Viar,
neither of appellant’s assignments of error made specific record references and
the Court of Appeals had reviewed an assignment of error which was not argued
in appellant’s brief, as required by Rule 28(b)(6). Id. Here,
defendants did bring forth their assignments of error with record references in
their brief.
Furthermore, this Court, after Viar,
has chosen to review certain appeals in spite of rules violations. In Youse v. Duke Energy Corp., this
Court reviewed appellant’s appeal in spite of at least eight rules violations,
because “[d]espite the Rules violations, we are able to determine the issues in
this case on appeal.” ____ N.C. App. ____, 614 S.E.2d 396, 400 (2005). The Court noted that appellee, “in filing a
brief that thoroughly responds to [appellant’s] arguments on appeal, was put on
sufficient notice of the issues on appeal.”
Id., citing Viar. See
also Coley v. State, ____ N.C. App. ___, 620 S.E.2d 25, 27 (2005)
(“Plaintiff’s noncompliance with the [appellate] rules . . . is not substantive
nor egregious enough to warrant dismissal of plaintiff’s appeal”). In contrast, the Court declined to address
appellant’s broadside assignments of error that were not “followed by citations
to the record or transcript [and] none of the assignments of error specify
which findings respondent challenges.” N.C.
Dep’t of Crime Control and Public Safety v. Greene, ____ N.C. App. ____, 616 S.E.2d 594, 599 (2005). The Court noted that as one assignment of
error could have referred to several of the ALJ’s and the trial court’s
findings of fact, it could not “determine which findings of fact respondent
challenges and therefore cannot review this assignment of error.” Id.
Here, as discussed, we can easily determine which finding of fact
defendants challenge. Cf., In Re
A.E., J.E., ____ N.C. App. ____,
615 S.E.2d 53, 56 (2005) (holding that review not properly before court where
appellant failed to object at trial and to assign error to challenged
testimony); State v. Buchanan, ____ N.C. App. ____, 613 S.E.2d 356, 358 (2005) (holding that appellate
review not preserved where criminal defendant failed to properly move for
dismissal at end of trial).
Defendants argue first that the Commission
erred in finding that plaintiff sustained an injury by accident arising out of
and in the course of her employment that aggravated or exacerbated her
pre-existing left shoulder condition.
We disagree.
We review decisions of the Industrial
Commission to determine “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 SE.2d 549, 553 (2000)
(citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998)). This Court may not “weigh the evidence and
decide the issue on the basis of its weight,” but must only determine whether
the record contains “any evidence tending to support the finding.” Adams, 349 N.C. at 681, 509 S.E.2d at
414 (internal citation and quotation marks omitted). The Commission is the “sole judge of the weight and credibility
of the evidence,” and thus, its findings are binding if supported by any
evidence, even if the evidence could also have supported a contrary finding. Deese,
352 N.C. at 115-16, 530 S.E.2d at 552-53.
Furthermore, on appeal, this Court must view the evidence in the light
most favorable to plaintiff. Adams,
349 N.C. at 681, 509 S.E.2d at 414.
The Workers’ Compensation Act states that
“‘[i]njury and personal injury’ shall mean only injury by accident arising out
of and in the course of the employment.”
N.C. Gen. Stat. §97-2 (6).
[A]n injury arising out of and in the course of employment is compensable only if it is caused by an accident . . . . The term accident, under the Act, has been defined as an unlooked for and untoward event, and a result produced by a fortuitous cause. Unusualness and unexpectedness are its essence. To justify an award of compensation, the injury must involve more than the carrying on of usual and customary duties in the usual way.
Davis v. Raleigh Rental Center, 58 N.C. App. 113, 116, 292 S.E.2d 763,
765-66 (1982)(internal quotation marks and citations omitted). Here, the Commission found and concluded, in
relevant part, that:
4. On October 26, 1998 plaintiff reported
for work with her arm in a sling. As
she stood in a hallway talking to a student, the band teacher came up from
behind her, grabbed her left arm and spun her around to face him so that he
could ask her a question. Plaintiff
experienced an immediate onset of pain when this occurred . . .
***
10. The circumstances of plaintiff’s October 26,1998 injury constituted an interruption of her normal work routine and the introduction thereby of unusual conditions likely to result in unexpected circumstances.
11. The competent evidence in the record establishes
that plaintiff sustained an injury by accident to her left shoulder arising out
of and in the course of her employment with defendant that aggravated or
exacerbated her pre-existing left shoulder condition.
***
1. On October 26, 1998, plaintiff
sustained an injury by accident to her left arm arising out of and in the
course of her employment.
Because defendants only preserved review of
finding of fact eleven, the other unchallenged findings of fact are conclusive
on appeal. First Union Nat’l Bank v.
Bob Dunn Ford, Inc., 118 N.C. App. 444, 446, 455 S.E.2d 453, 454 (1995).
Defendants argue that the Commission erred by
finding and concluding that plaintiff sustained an injury arising out of and in
the course of her employment. This
argument addresses finding of fact number eleven, which is a mixed finding of
fact and conclusion of law.
“Whether an accident arises out of the
employment is a mixed question of fact and law, and the [factual] finding of
the Commission is conclusive if supported by any competent evidence.” Lee v. F. M. Henderson & Associates,
284 N.C. 126, 131, 200 S.E.2d 32, 36 (1973) (internal citation and quotation
marks omitted). Here, the Commission
found, in finding of fact four, that plaintiff was injured while at work, “[a]s
she stood in a hallway talking to a student” and “the band teacher came up
behind her, grabbed her left arm and spun her around so that he could ask her a
question,” and concluded that plaintiff’s injury arose from her employment. As discussed above, findings four and ten
are conclusive on appeal, and we conclude that they support finding eleven and
the Commission’s conclusion, as plaintiff’s injury “had its origin in a risk
connected with the employment, and [] flowed from that source as a rational
consequence.” Pittman v. Twin City
Laundry & Cleaners, 61 N.C. App. 468 , 472, 300 S.E.2d 899, 902 (1983). Plaintiff was grabbed by a co-worker
who wished to ask her a question, a situation which had its origin in the
employment.
It is well-established that in order to be
compensable, an accident must both “arise out of” and happen “in the course of
employment,” and the two phrases are not synonymous, but impose separate
conditions which must each be satisfied.
N.C. Gen. Stat. §97-2(6); Murray v. Biggerstaff, 81 N.C. App.
377, 380, 344 S.E.2d 550, 552, disc. review denied, 318 N.C. 696, 350
S.E.2d 858 (1986). However, defendants
here contend only that the accident did not arise out of plaintiff’s
employment. The term “arising out of”
refers to the connection of the accident to the employment. Pittman, 61 N.C. App. at 472, 300
S.E.2d at 902.. “To be compensable an injury must spring from the employment or
have its origin therein.” Perry v.
American Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d 643, 645 (1964). Furthermore, “[f]or an accident to ‘arise
out of’ the employment, it is necessary that the conditions or obligations of
the employment put the employee in the position or at the place where the
accident occurs.” Pittman, 61
N.C. App. at 472, 300 S.E.2d at 902 (internal citation omitted). The accident “need not have been foreseen or
expected, but after the event it must appear to have had its origin in a risk
connected with the employment, and to have flowed from that source as a
rational consequence.” Id. (internal citation omitted).
In order for a Workers’ Compensation claim to
be compensable, there must be proof of a causal relationship between the injury
and the employment. Anderson v.
Northwestern Motor Co., 233 N.C. 372, 374, 64 S.E.2d 265, 266 (1951). “[W]here the exact nature and probable
genesis of a particular type of injury involves complicated medical questions
far removed from the ordinary experience and knowledge of laymen, only an
expert can give competent opinion evidence as to the cause of the injury.” Click v. Freight Carriers, Inc., 300
N.C. 164, 167, 265 S.E.2d 389, 391 (1980).
Expert testimony need not show that the work incident caused the injury
to a reasonable degree of medical certainty; “[a]ll that is necessary is that
an expert express an opinion that a particular cause was capable of
producing this injurious result.” Peagler v. Tyson Foods, Inc., 138
N.C. App. 593, 599-600, 532 S.E.2d 207, 211-12 (2000) (emphasis added). When an injury by accident accelerates or
aggravates an employee’s pre-existing condition, the injury is
compensable. Anderson, 233 N.C.
at 374, 64 S.E.2d at 267. “In such a
case, where an injury has aggravated an existing condition and thus proximately
caused the incapacity, the relative contributions of the accident and the
pre-existing condition will not be weighed.”
Wilder v. Barbour Boat Works, 84 N.C. App. 188, 196, 352 S.E.2d
690, 694 (1987). We conclude that
there was sufficient competent evidence to support finding of fact number
eleven, and that this finding, in turn, supports the Commission’s conclusions
that plaintiff’s injury by accident exacerbated her pre-existing condition and
thus entitled her to temporary total disability compensation.
In their next argument, defendants assert
that the Commission erred in ordering medical benefits be paid by
defendants. Defendants argue that
because the Commission erred in concluding that plaintiff’s accident aggravated
her pre-existing shoulder condition, it improperly awarded medical benefits for
it. Because we have concluded
otherwise, for the reasons discussed above, the Commission’s award of medical
benefits for plaintiff’s compensable injury is proper.
Affirmed.
Chief Judge MARTIN and Judge JACKSON concur.