ROBERT J. HOLCOMB,
Employee, Plaintiff;
v
.
BUTLER MANUFACTURING COMPANY,
Employer;
LIBERTY MUTUAL INSURANCE COMPANY,
Carrier, Defendants.
Jones Marcari Russotto Walker & Spencer, P.C., by David W.
Spencer, for plaintiff appellant.
Cranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan and
Dan H. Hartzog, for defendant appellees.
ELMORE, Judge.
From an opinion and award of the North Carolina Industrial
Commission denying his workers' compensation claim, plaintiff,
Robert J. Holcomb, appeals. After a careful review of the record,
we hold that the Commission's findings of fact are conclusive on
appeal because competent evidence in the record supports those
findings. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998), reh'g denied, 350 N.C. 108,532 S.E.2d 522 (1999). We
also find that the Commission's findings of fact support its
conclusion of law. Accordingly, we affirm the full Commission's
opinion and award denying plaintiff's claim. Plaintiff began working for defendant Butler Manufacturing
Company (Butler) as a temporary employee in May 1994 and became a
permanent employee in June 1994. Plaintiff worked as a press
operator; his duties included setting up the press, changing the
die in the press, loading machinery, and operating the press.
Plaintiff contends that on 29 June 1995 he was assisting a co-
worker, Ralph Graham (Graham), in lifting and stacking several 100-
pound “top cords” when he felt a “pop” in his back and “fell to one
knee.” Plaintiff testified that he told Graham “something popped
in my back” and “I can't help you no more[,]” whereupon plaintiff
went back to his press and continued working for the rest of his
shift. Graham, however, testified at the Industrial Commission
hearing that he did not recall plaintiff saying he had hurt his
back. Plaintiff did not tell any other Butler employee about his
back injury the rest of that day or the next, when he worked a full
shift. Plaintiff thereafter did not work from 1 July 1995 through
9 July 1995 because he was on vacation with his family at the
beach.
Plaintiff returned to work from vacation on 10 July 1995 but
left early because of back pain. Plaintiff testified he saw his
supervisor, Duncan Stewart (Stewart), that day and “told him I had
hurt my back. I didn't tell him how or why.” Stewart testified
that Butler required its employees to immediately report any work-
related injury to their supervisor and to record the injury in a
logbook, and that Plaintiff failed to follow these directives.
Plaintiff also testified that he saw Butler's plant manager, DanaWilson (Wilson), as he was leaving work on 10 July 1995, and that
he told Wilson “I had hurt my back . . . I was cooking out and got
up out of the chair, and something happened. . . . I don't know
what happened to my back.” At his deposition Wilson testified that
he “specifically asked” plaintiff if his back injury occurred at
work, and plaintiff responded “No, it did not. It occurred while
[plaintiff] was on vacation. . . . He indicated his back popped. .
. . When he was getting up from a chair.” Plaintiff acknowledged
giving Wilson this explanation for his injury, and plaintiff
testified he did so because he was concerned that classifying the
injury as work-related would jeopardize Butler's eligibility for a
corporate safety award and could result in plaintiff losing his
job. Wilson testified that he next spoke with plaintiff in April
1996, at which time plaintiff told Wilson he had actually injured
his back at work but had not reported it for fear of losing his
job.
On 11 July 1995, plaintiff went to his family physician, Dr.
Bradford K. Faulkenberry, complaining of severe lower back pain
radiating into his legs. At his deposition Dr. Faulkenberry
testified that plaintiff presented with “a three-day [] history of
low back pain[]” which plaintiff said began when he “was . . .
cooking out, bent over, and felt a severe pain in his low back.”
Plaintiff, however, testified that he told Dr. Faulkenberry he hurt
his back at work on 29 June 1995 while lifting the top cords. Dr.
Faulkenberry examined plaintiff, initially diagnosed a lumbar
spasm, and prescribed medication and physical therapy. Plaintiff'spain did not improve and he was seen at Scotland Memorial Hospital
on 14 July 1995, where he again indicated that he injured his back
getting out of a chair. Plaintiff subsequently underwent an MRI,
which revealed multiple lumbar disc herniation and nerve
impingement. When asked at his deposition whether it was atypical
for a person to suffer herniated discs from getting out of a chair,
Dr. Faulkenberry replied, “No. . . . I don't think he just got
those that day. I think he'd had them for many years before that.”
Plaintiff saw Dr. Malcolm Shupeck, a neurosurgeon, for a
surgical consultation on 7 August 1995. Dr. Shupeck's notes
indicate plaintiff was injured on 8 July 1995 when he “got out of
[a] chair and felt a snap.” Plaintiff, however, testified that he
told Dr. Shupeck he hurt his back at work when he “was picking up
something, and . . . felt something pop in my back.” Plaintiff
subsequently underwent a disk removal on 6 September 1995. When
his pain did not resolve, plaintiff underwent additional surgery on
8 May 1996. At his deposition, Dr. Shupeck testified that he did
not have a medical opinion as to the cause of plaintiff's injury,
but that “most disc herniations are felt to be related to
degenerative disease” and that it was not probable that lifting the
top cords could have caused plaintiff's injury “unless there's
already some disc abnormality.”
After the second surgery failed to provide relief, plaintiff
was seen at the University of North Carolina Pain Clinic by Dr.
Michael Lee on 24 October 1996. Dr. Lee's notes indicate plaintiff
reported suffering “a back injury in 6/95, after lifting more than100 lbs. over his head at work.” Plaintiff has not worked since 10
July 1995 due to his back pain.
On 30 April 1997, plaintiff filed a Form 18 notice of accident
to employer, asserting that he suffered a work-related injury to
his lower back on 29 June 1995 “caused by stacking beams and
helping material handler pick up steel[.]” Defendants subsequently
denied plaintiff's claim. On 3 April 1998, and again on 16 March
1999, plaintiff filed a Form 33 request that claim be assigned for
hearing. On 24 June 1999, a hearing was held before Deputy
Commissioner Theresa B. Stephenson, and the record was closed on 13
December 2000 after Dr. Faulkenberry, Dr. Shupeck, and Wilson were
deposed. In her opinion and award filed 26 January 2001, Deputy
Commissioner Stephenson concluded that plaintiff had sustained a
work-related compensable injury and awarded temporary total
disability benefits, medical expenses, and costs. The full
Commission reviewed the case without receiving additional evidence
on 27 September 2001. By its opinion and award filed 18 January
2002, the Commission made the following pertinent findings of fact:
2. On June 29, 1995, plaintiff was performing his duties
on second shift and helped Ralph Graham, a materials
handler, pick up a top cord. . . . Plaintiff and Mr.
Graham were stacking these cords so another co-worker
could lift them with a crane. . . . Plaintiff testified
that, when he lifted the top cord overhead, he felt a pop
and sharp pain in his back and fell down to one knee.
Plaintiff also testified . . . that he informed Mr.
Graham he could not help him anymore. In contrast to
this testimony, Mr. Graham testified that he did not
believe that plaintiff went down on a knee, told him that
he was injured, or failed to complete the job, but that,
if plaintiff's testimony were true, then Mr. Graham
simply did not remember such an incident. Mr. Graham did
not recall any incident or injury to plaintiff. . . .
3. Plaintiff did not report his alleged work-related
injury on June 29, 1995. Plaintiff returned to work the
next day. Plaintiff testified that, after working four
hours, he informed Mr. Duncan Stewart, a supervisor, he
had hurt his back and had to go home. Mr. Stewart does
not recall this conversation. . . .
. . .
5. When plaintiff returned to work on July 10, 1995, .
. . [he] informed Mr. [Dana] Wilson that he hurt his back
when he got up from a chair. Plaintiff testified that he
did not inform Mr. Wilson that the injury occurred at
work because the company was eligible for a corporate
safety flag for “no time loss” injuries and plaintiff did
not want to be the one who prevented the company from
receiving this honor.
6. On July 11, 1995, plaintiff sought treatment from .
. . Dr. Bradford Faulkenberry. Plaintiff reported a
three-day history of severe low back pain with some
radiation into his posterior thighs. Plaintiff did not
indicate he injured his back at work but instead told Dr.
Faulkenberry he felt a severe pain in his lower back when
he bent over while cooking out. The three-day history of
pain would be consistent with an injury on July 8, 1995,
while plaintiff was on vacation.
. . .
8. On July 14, 1995, plaintiff received physical therapy
at Scotland Memorial Hospital and indicated he had low
back pain for five days. Plaintiff told them he had pain
when he got out of a chair on July 8, 1995, which is,
again, consistent with an injury occurring while
plaintiff was on vacation.
. . .
10. Plaintiff saw Dr. Shupeck for the first time on
August 7, 1995. Plaintiff reported low back pain, hip
pain and right leg numbness, and that the pain began when
plaintiff got out of a chair. Dr. Shupeck excused
plaintiff from working.
. . .
15. When plaintiff's pain did not improve [after two
surgeries], Dr. Shupeck referred him to Dr. Lee at the
Physical Medicine and Rehabilitation Clinic at UNC
Hospital. The plaintiff saw Dr. Lee on October 24, 1996.
Plaintiff reported to Dr. Lee that he had been injured onthe job. This appears to be the first medical report to
give a history relating the injury to work or indicating
that the date of injury was when plaintiff was working.
. . .
18. Dana Wilson, the plant manager, testified that he
saw plaintiff in July 1995, on plaintiff's first day back
at work following his vacation, and noticed that he was
walking “poorly” and asked plaintiff whether he was
injured at work. Plaintiff reported that something in
his back popped while he was on vacation while getting
out of a chair. In April 1996, plaintiff called Mr.
Wilson and informed him that he was injured at work while
lifting some material. When asked by Mr. Wilson why he
had not reported the injury before, plaintiff told Mr.
Wilson that he was afraid to indicate that he was injured
at work.
. . .
18. [sic] The greater weight of the evidence is that
plaintiff did not injure his back at work on June 29,
1995. Plaintiff was on vacation on July 8, 1995, and the
medical records and deposition testimony of Dr.
Faulkenberry and Dr. Shupeck indicate that this was the
date of plaintiff's symptoms. Plaintiff did not provide
a history of injury at work to either Dr. Faulkenberry or
Dr. Shupeck[.] . . . Mr. Graham was not able to confirm
plaintiff's alleged injury. Plaintiff did not report to
his employer that his injury was related to work until
April 1996. Plaintiff did not indicate to a health care
provider that his injury was caused at work until 15
months after the injury. Neither Dr. Faulkenberry nor
Dr. Shupeck were able to relate plaintiff's back injury
and complaints to the alleged work injury. For these
reasons, the greater weight of the evidence is contrary
to plaintiff's current assertion that he was injured at
work.
Based on these findings of fact, the full Commission, with
Commissioner Thomas J. Bolch dissenting, concluded that plaintiff
“has failed to establish that he suffered a compensable injury
arising out of and in the course of his employment with [Butler] on
29 June 1995.” From this determination, plaintiff appeals. Plaintiff argues that the Commission erred “in finding that
the greater weight of the evidence was that the plaintiff did not
injure his back at work on June 29, 1995" and “in concluding that
the plaintiff failed to establish that he suffered a compensable
injury arising out of and in the course of his employment with the
defendant on June 29, 1995[.]” We disagree.
It is well-settled that this Court, when reviewing an opinion
and award of the Commission, 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 v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000). “The Commission is the sole judge of the
credibility of the witnesses and the weight to be given their
testimony.” Adams v. Avx Corp., 349 N.C. 676, 680, 509 S.E.2d 411,
413 (quoting Anderson v. Lincoln Construction 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 they are supported by any
competent evidence in the record, even though there is evidence
that would support contrary findings. Adams, 349 N.C. at 681, 509
S.E.2d at 414. “The evidence tending to support plaintiff's claim
is to be viewed in the light most favorable to plaintiff, and
plaintiff is entitled to the benefit of every reasonable inference
to be drawn from the evidence.” Id.
After reviewing the arguments set forth in plaintiff's brief
in light of these principles, it is apparent plaintiff's arguments
are without merit. The evidence before the Commission regardingwhen and how plaintiff injured his back was conflicting. Plaintiff
essentially argues that because the Commission resolved this
conflicting evidence in defendants' favor, the Commission did not
properly consider the evidence in the light most favorable to
plaintiff. In considering plaintiff's argument, we stress that
“where the evidence before the Commission is such as to permit
either one of two contrary findings, the determination of the
Commission is conclusive on appeal and the mere fact that an
appellate court disagrees with the findings of the Commission is
not grounds for reversal.” Morrison v. Burlington Industries, 301
N.C. 226, 232, 271 S.E.2d 364, 367 (1980).
The record in the case sub judice is replete with competent
evidence tending to support the Commission's findings of fact,
specifically that plaintiff did not injure his back at work on 29
June 1995. There is plenary evidence from the testimony and
medical records of plaintiff's treating physicians that plaintiff
consistently indicated he injured his back while on vacation around
8 July 1995 when he was getting up out of a chair. Both Dr.
Faulkenberry and Dr. Shupeck testified that plaintiff likely
suffered from degenerative disc disease, and that consequently
trauma would not have been necessary to cause plaintiff's lumbar
disc herniation. Graham and Stewart, plaintiff's co-worker and
supervisor, each testified they could not recall plaintiff
indicating he had injured his back at work on 29 June 1995.
Wilson, Butler's plant manager, testified that plaintiff initially
indicated he had not injured his back at work, but rather when hegot up out of a chair while on vacation, and that plaintiff did not
tell him otherwise until almost a year later. Plaintiff did not
file a claim for worker's compensation benefits until April 1997,
almost two years after the allegedly work-related injury. While
plaintiff's testimony conflicts with much of this evidence or
purports to explain it in a manner favorable to his claim, we again
stress that our Supreme Court has limited this Court's review of
the Commission's findings of fact to whether there was any
competent evidence of record tending to support them. Adams, 349
N.C. at 681, 509 S.E.2d at 413 (“It is the Commission that
ultimately determines credibility, whether from a cold record or
from live testimony.”)
Because the Commission's findings of fact are supported by
competent evidence of record, and those findings in turn support
the Commission's conclusions of law, we affirm the decision of the
full Commission.
Affirmed.
Judges HUNTER and BRYANT concur.
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