BOBBY ALLGOOD,
Plaintiff-Appellant
North Carolina
v. Industrial Commission
I.C. No. 633701
PARSONS TRUCKING
COMPANY,
Defendant-Appellee;
SELF-INSURED (AIG CLAIMS
SERVICES, INC.),
Servicing Agent.
Franklin Smith for plaintiff-appellant.
Teague, Campbell, Dennis, & Gorham, L.L.P., by Melissa R.
Garrell and Tara L. Davidson, for defendant-appellee.
BRYANT, Judge.
Plaintiff appeals from the denial of his claim for workers'
compensation benefits. Plaintiff, employed by defendant as a long
distance truck driver, sought compensation for injuries he
allegedly sustained to his knee and back when he fell while
disembarking from his truck cab on 12 February 1996. He filed a
request for a hearing on 12 February 1998. Defendant responded to
the request for a hearing by denying compensability on the ground
that plaintiff did not sustain an injury by accident arising out of
and in the course of employment or develop an occupational disease. Deputy Commissioner Edward Garner, Jr., heard lay testimony on
3 December 1998 and after receiving deposition testimony of two
medical witnesses, filed an opinion and award denying compensation.
Plaintiff appealed to the Full Commission, which also denied
compensation based upon the following findings of fact:
1. Plaintiff, who was sixty-one years old at
the time of the hearing before the Deputy
Commissioner, worked as a truck driver most of
his adult life.
2. On 12 February 1996, plaintiff was
employed by defendant as a long distance truck
driver. On that date, as he was climbing out
of the cab of his truck in his usual and
customary fashion, he experienced a sharp pain
in his knee and fell to the ground. Plaintiff
did not sustain an injury to his back or knee
as a result of the fall.
3. When plaintiff returned to North Carolina
with his truck on 13 February 1996, he did not
indicate on the driver inspection report for
that trip that the truck seat was broken.
4. On 16 February 1996, plaintiff was seen by
Larry A. Pearce, M.D., for complaints of neck
and back pain. Plaintiff reported a history
of worsening back and neck pain over the
preceding year. He also indicated that his
pain was aggravated by his job as a long
distance truck driver. Plaintiff did not
describe injuring himself as the result of a
fall from his truck, and he did not initially
report that his truck seat was broken.
5. Plaintiff suffers from degenerative disc
disease of the cervical and lumbar spine.
This is an ordinary disease of life which is
common in persons of plaintiff's age due to
wear and tear of the body which accumulates
over time.
6. Plaintiff's claim that he injured his back
when he fell from his truck on 12 February
1996 is not accepted as credible.
7. The greater weight of the evidence failsto show that plaintiff's degenerative disc
disease of the lumbar and cervical spine was
caused or significantly contributed to by his
employment with defendant or that plaintiff's
job placed him at an increased risk for
contracting his condition as compared to
members of the general public not so employed.
8. Even if plaintiff made three to six trips
with a broken seat, the repetitive slapping of
that seat may have aggravated his symptoms,
but it did not cause, aggravate, or accelerate
the degenerative changes present in
plaintiff's spine.
Based upon these findings of fact, the Full Commission concluded
plaintiff did not sustain an injury by accident arising out of and
in the course of his employment with defendant. It also concluded
plaintiff failed to prove that his degenerative disc disease was
characteristic of and peculiar to his employment with defendant and
that his employment caused, or significantly contributed to, the
development of the condition.
Plaintiff contends that the Commission's findings of fact,
conclusions of law, and award are contrary to the greater weight of
the evidence. We disagree.
Appellate review of an opinion and award of the Industrial
Commission is limited to a determination of whether the
Commission's findings of fact are supported by the evidence and
whether the findings support the conclusions of law. Norton v.
Waste Management, Inc., ___ N.C. App. ___, ___, 552 S.E.2d 702, 704
(2001). The appellate court does not weigh the evidence but merely
determines whether competent evidence exists to support the
findings made by the Commission. Norton, ___ N.C. App. at ___, 552
S.E.2d at 705. If such evidence exists, then the Commission'sfindings are conclusive and binding even though the record may
contain evidence to support contrary findings. Oliver v. Lane Co.,
143 N.C. App. 167, 170, 554 S.E.2d 606, 608 (2001).
“To be compensable, any incapacity to earn wages, resulting
either from an injury by accident arising out of and in the course
of the employment or from an occupational disease, must spring from
the employment.” Morrison v. Burlington Industries, 304 N.C. 1,
13, 282 S.E.2d 458, 467 (1981). Disability that is caused by and
resulting from a disease is compensable only when the disease is an
occupational disease or is aggravated or accelerated by an
occupational disease or injury by accident arising out of and in
the course of the employment. Walston v. Burlington Industries,
304 N.C. 670, 679-80, 285 S.E.2d 822, 828 (1982). Since
degenerative disc disease is not among the occupational diseases
listed in N.C.G.S. § 97-53, it qualifies as one under the catchall
definition of N.C.G.S. § 97-53(13) only if it 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. See Griffitts v. Thomasville
Furniture Co., 65 N.C. App. 369, 371, 309 S.E.2d 277, 279 (1983),
review denied by 310 N.C. 477, 312 S.E.2d 884 (1984).
Applying these principles to the present case, we find
evidentiary support in the record for the Commission's findings of
fact and decision. Dr. Larry A. Pearce testified that plaintiff's
degenerative disc disease was not caused by any specific injury butby chronic repetitive motion. Dr. David N. DuPuy testified that
plaintiff's degenerative disc disease was not caused by or
aggravated by any unsecured or loose seat. Dr. DuPuy also
testified that studies show “almost conclusively that no occupation
causes a degenerative disc. It's familial. It's genetic. It has
to do with how the DNA forms the disc in embryonic development.”
We hold the Commission correctly concluded that plaintiff
failed to show he has an occupational disease because the condition
was not shown to be characteristic of and peculiar to his
employment. Plaintiff also failed to show he sustained an injury
by accident arising out of and in the course of his employment.
The opinion and award is affirmed.
Affirmed.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
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