FRANCIS J. HALE, III
Employee, Plaintiff
v.
NOVO NORDISK PHARMACEUTICAL INDUSTRIES, INC.,
Employer,
ZURICH INSURANCE COMPANY,
Carrier, Defendants.
Scudder & Hedrick, by John A. Hedrick, for the plaintiff-
appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce Hamilton
and Tracey L. Jones, for the defendants-appellees.
WYNN, Judge.
Plaintiff-employee Francis J. Hale appeals from the Industrial
Commission's opinion and award concluding that his carpal tunnel
syndrome was not a compensable occupational disease under the North
Carolina Workers' Compensation Act. He presents two issues: (1)
Were the Industrial Commission's findings of fact supported by any
competent evidence?; and (2) Were the Commission's conclusions of
law supported by the Commission's findings of fact? We answer bothquestions, yes; accordingly, we affirm the Commission's opinion and
award.
While employed by defendant Novo Nordisk Pharmaceutical
Industries, Inc. for two years, through 20 November 1995, Mr. Hale
used a hand-held calculator to verify calibration reports. Mr.
Hale is right hand dominant, and entered the calculations with his
middle and index fingers. According to Mr. Hale, the calculator
was unusually stiff and lacked flexibility: “Depression of the keys
required some pressure and some force.”
Mr. Hale began experiencing stiffness, soreness, and swelling
in his right hand; however, while employed by Novo Nordisk, he did
not report this discomfort to his supervisor at any time. On 20
November 1995, Mr. Hale was terminated by Novo Nordisk for cause,
and for reasons unrelated to the use of his right hand. After his
termination, Mr. Hale worked for Environmental Specialties from
January through May 1996. Mr. Hale experienced pain in his right
hand when using a crimping tool and when handwriting.
On 8 May 1996, Mr. Hale sought medical treatment from Dr.
Bertics, a neurologist. Mr. Hale told Dr. Bertics that his hand
difficulties began in November 1995 after an automobile accident,
and that his former job with Novo Nordisk required “a lot of
keyboarding” that made his hand feel particularly sore and “funny.”
Dr. Bertics diagnosed Mr. Hale with carpal tunnel syndrome in hisright hand. After receiving “a course of conservative treatment,”
Dr. Bertics did not recommend surgery.
(See footnote 1)
On 28 June 1996, Mr. Hale filed form 18 notifying the
Commission and Novo Nordisk of his workers' compensation claim. On
12 September 2000, after a full hearing before a Deputy
Commissioner, Mr. Hale's claim was denied. Following the full
Commission's rejection of Mr. Hale's appeal from that denial, he
appealed to this Court.
On appeal, Mr. Hale contends that the Commission's findings of
fact are not supported by any competent evidence. In particular,
he contests the following findings of fact by the Commission:
2. Prior to contracting the alleged
occupational disease, plaintiff's hobbies
included riding a motorcycle, playing the
saxophone, and using and selling firearms.
. . . All of these activities involved a
significant use of plaintiff's hands and arms
14. Dr. Bertics opined that plaintiff's job
as a validation technician with defendant-
employer caused plaintiff's carpal tunnel
syndrome and placed him at an increased risk
of developing carpal tunnel syndrome.
However, a consideration of the totality of
the circumstances of this case leads to a
different conclusion. . . . [P]laintiff's
other activities and hobbies as well as his
part-time job all involved the use of hishands and arms . . . . [T]he jobs held by
plaintiff after leaving defendant-employer
also involved many of the same tasks required
by his job with defendant-employer, and it was
during his [subsequent] employment that he
first sought medical treatment for carpal
tunnel problems. There is a lack of temporal
relationship between the alleged onset of
plaintiff's carpal tunnel syndrome and when he
first sought medical treatment. . . .
[Moreover], plaintiff had a diagnosed
herniated cervical disc which was previously
noted to have caused numbness in his upper
right extremity. It does not appear that Dr.
Bertics was aware of this condition.
15. Likewise, there is insufficient evidence
to find by the greater weight of the evidence
that the plaintiff's carpal tunnel condition,
as presented in 1996 to Dr. Bertics and prior
to [plaintiff's] 1997 automobile accident,
precluded plaintiff from performing his work
duties for the defendant-employer, or other
similar work.
“Under our Workers' Compensation Act, 'the Commission is the
fact finding body.'” Adams v. AVX Corp., 349 N.C. 676, 680, 509
S.E.2d 411, 413 (1998) (quoting Brewer v. Powers Trucking Co., 256
N.C. 175, 182, 123 S.E.2d 608, 613 (1962)). “'The Commission is
the sole judge of the credibility of the witnesses and the weight
to be given their testimony.'” Adams, 349 N.C. at 680, 509 S.E.2d
at 413 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-
34, 144 S.E.2d 272, 274 (1965)). The Commission's findings of fact
“'are conclusive on appeal if supported by any competent
evidence.'” Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quotingGallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529,
531 (1977)). Thus, this Court is precluded from weighing the
evidence on appeal; rather, we can do no more than “'determine
whether the record contains any evidence tending to support the
[challenged] finding.'” Adams, 349 N.C. at 681, 509 S.E.2d at 414
(citation omitted).
Mr. Hale first challenges finding of fact two, that Mr. Hale's
hobbies, activities, and part-time employment “involved a
significant use of [Mr. Hale's] hands.” He contends that the
Commission had no evidence presented concerning the use of his
hands during these activities, and therefore, the Commission could
not possibly conclude that this use, if any, was “significant.”
This argument is without merit.
As noted in Mr. Hale's and Novo Nordisk's briefs, the
Commission's findings of fact “'are conclusive on appeal if
supported by any competent evidence.'” Adams, 349 N.C. at 681, 509
S.E.2d at 414 (citation omitted). Here, the record contained
evidence that Mr. Hale: (1) played his saxophone twenty minutes a
day; (2) handled baggage and cleaned airplanes at the airport as a
part-time employee; and (3) drove a motorcycle. Mr. Hale testified
that these activities “bothered” his hands. Accordingly, Mr. Hale
must have used his hands if these activities “bothered” his hands.
Following Adams, we conclude that finding of fact two is supportedby competent evidence. Therefore, finding of fact two is binding
on appeal.
Mr. Hale next challenges two separate aspects of the
Commission's finding of fact fourteen. He contends that “the
Commission's 'findings' that [Mr. Hale's] carpal tunnel syndrome
was caused by something other than his work with [Novo Nordisk] are
not supported by any competent evidence and must be set aside.”
However, the Commission found, and the record reveals, that other
possible causes of Mr. Hale's carpal tunnel syndrome included his
part-time employment, his subsequent work after being terminated by
Novo Nordisk, his hobbies, his motorcycle accident in 1995, his car
accident in 1997, and Mr. Hale's preexisting cervical condition.
Thus, the record shows competent evidence that Mr. Hale's carpal
tunnel syndrome was caused by something other than his work with
Novo Nordisk. Therefore, this aspect of finding of fact fourteen
is binding on appeal.
Mr. Hale also challenges the aspect of the Commission's
finding of fact fourteen holding that it did not “appear that Dr.
Bertics was aware of [Mr. Hale's cervical disc] condition.” He
contends that this finding of fact unreasonably discredited the
testimony of Dr. Bertics. He argues that, as of 23 July 1997,
there is clear evidence in the record that Dr. Bertics knew of his
disc condition. However, the issue before the Commission was notwhether Dr. Bertics knew of the condition, but rather, whether Dr.
Bertics knew that the condition “caused numbness in [Mr. Hale's]
upper right extremity.” The record reflects that Dr. Bertics wrote
a letter on 18 November 1997 relating Mr. Hale's arm and neck pain
to the 26 February 1997 automobile accident, rather than to Mr.
Hale's cervical disc condition. Thus, there was competent evidence
that Dr. Bertics was unaware that Mr. Hale's disc condition caused
numbness in Mr. Hale's extremities. Therefore, this aspect of
finding of fact fourteen is binding on appeal.
Mr. Hale also challenges the Commission's finding of fact
fifteen that “there is insufficient evidence . . . that the
plaintiff's carpal tunnel condition . . . precluded plaintiff from
performing his work duties for the defendant-employer, or other
similar work.” However, the record is replete with evidence that
Mr. Hale continued working and engaging in activities requiring
significant use of his hands. Mr. Hale worked for two and a half
years after his termination by Novo Nordisk. Mr. Hale's subsequent
employment included computer work and technical writing. Thus, the
record shows competent evidence to find fact fifteen; accordingly,
finding of fact fifteen is binding on appeal.
Having determined that the Commission's findings of fact are
supported by competent evidence, we turn to the Commission's
conclusions of law, which we review de novo. Snead v. CarolinaPre-cast Concrete, Inc., 129 N.C. App. 331, 335, 499 S.E.2d 470,
472 (1998).
In his appeal, Mr. Hale selects particular sentences from the
Commission's findings of fact 14 and 16, and argues that these
findings support a conclusion of law in his favor. For instance,
Mr. Hale notes that the Commission found that “Dr. Bertics opined
that plaintiff's job as a validation technician with defendant-
employer caused plaintiff's carpal tunnel syndrome and placed him
at an increased risk of developing carpal tunnel syndrome.” Mr.
Hale relies on this statement to support the proposition that “the
Commission's findings of fact lead to a conclusion of law opposite
from the conclusion reached by the Commission.” This reliance is
misplaced. In the very next sentence, the Commission states:
“However, a consideration of the totality of the circumstances of
this case leads to a different conclusion.”
Even assuming that the Commission did find some facts favoring
Mr. Hale, this would not mandate a conclusion in favor of Mr. Hale.
Rather, Mr. Hale bears the burden of proving his case by the
“greater weight of the evidence.” Bailey v. Sears Roebuck & Co.,
131 N.C. App. 649, 654, 508 S.E.2d 831, 835 (1998). Thus, even if
the Commission recited facts tending to support Mr. Hale, the
Commission has the duty to weigh the evidence and the authority to
conclude that Mr. Hale's evidence was outweighed by Defendants'evidence. Hawley v. Wayne Dale Const., 146 N.C. App. 423, 428, 552
S.E.2d 269, 272 (2001) (holding that the “Commission may weigh the
evidence and believe all, none or some of the evidence”) (citations
omitted).
In sum, because “there is some competent evidence in the
record to support” the Commission's findings of fact, “we hold that
the Commission's findings of fact [are] conclusive on appeal.”
Adams, 349 N.C. at 682, 509 S.E.2d at 414. We also conclude that
these findings of fact support the Commission's conclusions of law.
Affirmed.
Judges CAMPBELL and HUNTER concur.
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