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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JOHNNIE DRAKEFORD, Employee, Plaintiff, v. CHARLOTTE EXPRESS,
Employer, and NATIONAL UNION FIRE, Carrier; Defendants
Filed: 17 June 2003
Workers' Compensation_continuing disability_underlying cause
The Court of Appeals affirmed an Industrial Commission decision terminating workers'
compensation benefits based on a finding that plaintiff's back pain and disability were caused by
a neurological disorder rather than a fall at work. Although plaintiff presented evidence to the
contrary, the evidence in the record supports the Commission's findings, and the Commission is
the sole judge of the weight and credibility of the evidence.
Appeal by plaintiff from opinion and award entered 9 October
2001 by the Industrial Commission. Heard in the Court of Appeals
29 January 2003.
Johnnie J. Drakeford, plaintiff-appellant, pro se.
Pinto, Coates, Kyre & Brown, P.L.L.C,, by Martha P. Brown, for
Plaintiff Johnnie Drakeford appeals an opinion and award
entered 9 October 2001 by the North Carolina Industrial Commission
that terminated his temporary total disability benefits. We
Plaintiff, who was employed as a driver/trainer for Charlotte
Express, was in the course of driving a tractor-trailer when he
stopped at a truck stop on 4 May 1995. On his way to the shower,
he slipped on the wet floor and fell to the ground. He then felt
pain in his neck and lower back. Charlotte Express and Charlotte
Express's carrier, National Union Fire c/o Liberty Bell Agency
(defendants), accepted compensability by paying benefits, withoutfiling Form 21 or Form 60, and have paid plaintiff temporary total
disability benefits since the date of the accident. Defendants
filed a Form 24 on 6 August 1999, requesting that plaintiff's
benefits be terminated on the grounds that plaintiff's current
disability is the result of a non-work-related condition and is not
caused or in any way related to his work-related injury sustained
in May 1995. Special Deputy Commissioner Ronnie E. Rowell held an
informal telephone hearing on 9 September 1999, after which he
denied defendants' application for termination of benefits.
Defendants then requested that the claim be assigned for hearing
before the Industrial Commission.
The claim was heard 15 August 2000, and, in an opinion and
award filed on 30 November 2000, Deputy Commissioner Pamela T.
Young found that plaintiff's current condition was not caused by
nor aggravated by the work-related injury of May 1995. The deputy
commissioner also found that plaintiff's current medical condition
and his disability were caused by a rare neurological disorder
called Chronic Inflammatory Demyelinating Polyneuropathy (CIDP),
which pre-existed plaintiff's injuries that had resulted from the
May 1995 fall. Accordingly, the deputy commissioner granted
defendants' motion to terminate plaintiff's benefits.
In an opinion and award filed 9 October 2001, the Full
Commission affirmed and adopted in whole the deputy commissioner's
findings of fact, conclusions of law, and award. Plaintiff now
Below are some of the facts found by the Full Commission: 1. At the time of the hearing before the Deputy
Commissioner, plaintiff was 47 years old and employed as a
truck driver by defendant-employer. Plaintiff began working
for defendant-employer in 1993.
2. Prior to 4 May 1995, plaintiff had suffered back
problems. In 1981, plaintiff reported that he sought
medical care for persistent back problems. Again, in 1987,
plaintiff suffered a back injury while lifting materials at
work. He was taken out of work for a period of nine months,
but did not undergo any type of surgical intervention.
3. On 4 May 1995, plaintiff was in the course of driving a
tractor-trailer for defendant-employer when he stopped at a
truck stop. On his way to the shower, plaintiff slipped on
the wet floor and fell to the ground. Thereafter, he felt
pain in his neck and lower back.
. . .
5. Plaintiff complained of neck and back pain after his
injury. After plaintiff completed his truck route and
returned home, he went to the emergency room at Moore
6. On 8 May 1995, plaintiff presented to his local primary
care facility complaining of back and neck pain. Dr. Ed
Carey examined plaintiff. Dr. Carey diagnosed plaintiff
with lumbosacral strain and prescribed anti-inflammatory
medication. Initially, plaintiff's condition seemed to
7. Plaintiff was evaluated by Dr. Shupeck on 26 June 1995.
Dr. Shupeck diagnosed plaintiff with musculoskeletal pain
with multiple diffuse symptoms. He recommended that
plaintiff undergo physical therapy to alleviate his
symptoms. After a regime of physical therapy, Dr. Shupeck
found that plaintiff still had residual back pain and give-
way weakness in his right leg; however, plaintiff's
neurological examination was stable and his strength intact.
A bone scan performed on 18 August 1995 was normal. By 23
October 1995, plaintiff was improving. He was able to
perform yard work without complaints of pain, able to walk
long distances without any giving way of his right leg and
able to drive for at least 45 minutes.
8. Sometime thereafter, plaintiff's condition deteriorated
with plaintiff complaining of increased weakness in his
right leg. Dr. Shupeck ordered a myelogram and CT scans to
rule out any disc problems. These tests were unremarkable,
indicating some degenerative changes but no herniated discs.
9. Plaintiff was referred to a neurologist for another
opinion as to his condition. Dr. Bruce Solomon examinedplaintiff on 13 December 1995. Dr. Solomon's examination of
plaintiff was normal and he diagnosed plaintiff with chronic
low back pain due to plaintiff's subjective complaints of
back pain. Dr. Solomon noted that many of plaintiff's
symptoms were not physiologic and recommended a
neuropsychological examination. In Dr. Solomon's opinion,
plaintiff's sensory examination did not follow any pattern
and his gait problems were clearly not typical of any
neurological disease. Dr. Solomon ordered additional MRI's
of the lower thoracic spine and lumbar spine for
completeness, both of which were generally normal with mild
10. Dr. Solomon referred plaintiff to the Fayetteville Pain
Clinic for management of plaintiff's continued symptoms.
Plaintiff was initially evaluated at the Cape Fear Valley
Pain Management Center on 21 February 1996. At that time,
it was noted that plaintiff complained of stiffness in his
neck, give-way weakness in his right leg and weakness in his
left arm. A plan was established in which plaintiff was to
receive nerve block injections, trigger point injections and
11. Plaintiff underwent one series of nerve block
injections and trigger point injections and although the
Pain Clinic doctors recommended additional injections,
plaintiff refused this treatment. On 26 November 1996, Dr.
Kenneth Oswalt discharged plaintiff from the Pain Clinic,
finding that plaintiff was very functional in spite of the
pain. He further found that plaintiff had maximized his
rehabilitation and had reached maximum medical improvement.
Dr. Oswalt found no evidence of any functional disability or
any permanent impairment.
12. On 27 February 1997, plaintiff returned to his family
physician, Dr. Lam, for follow-up treatment and medication
management. Dr. Lam continued to monitor plaintiff's
condition, noting that his condition was generally unchanged
during this period of time.
13. On 2 June 1998, plaintiff received an evaluation from
Dr. Mark E. Brenner at the Pinehurst Surgical Center. Dr.
Brenner found that plaintiff was exhibiting symptoms
consistent with a myofascial pain syndrome. However,
plaintiff's objective findings did not correlate with his
subjective complaints. Dr. Brenner found that plaintiff was
able to return to full-time work with some restrictions,
specifically no lifting greater than 50 pounds and no
bending, stooping, crawling and long distance truck driving.
Dr. Brenner found that plaintiff had reached maximum medical
improvement and that the objective findings from the
examination did not support any permanent disability rating.
14. Plaintiff was also seen for an independent medicalevaluation by Dr. Robert Elkins, an orthopaedic specialist,
on 24 June 1999. Dr. Elkins performed a complete physical
examination on plaintiff and noted many instances of symptom
magnification and pain accentuation. Based on his
examination of plaintiff and the medical records which he
reviewed, Dr. Elkins diagnosed plaintiff with low back pain
by history, moderate symptom magnification and pain
accentuation, probable malingering and a conversion reaction
and/or psychophysiologic disorder. Dr. Elkins did not
recommend any further treatment and could not find an
orthopaedic basis for restricting plaintiff from further
employment. Dr. Elkins also found that plaintiff's
condition did not warrant any permanent disability rating.
15. Plaintiff was ultimately referred to and examined by
Dr. David P. Fedder, an orthopaedic specialist, on 22
September 1998. At the time of this examination, plaintiff
complained of give-way weakness in his right leg. Dr.
Fedder ordered nerve conduction studies, EMG/NCV, in order
to determine the cause for plaintiff's problems. These
studies, which were performed on 26 October 1998, indicated
evidence of an acquired sensory motor neuropathy with axonal
and demyelinating features. Based on the results of this
study, Dr. Fedder referred plaintiff to Dr. Henry Tellez, a
16. Dr. Tellez began treating plaintiff on 4 December 1998.
By examination and the performance of a series of laboratory
work, Dr. Tellez diagnosed plaintiff with Chronic
Inflammatory Demyelinating Polyneuropathy, CIDP, a
neurological disorder which affect the nerves and causes
damage not only to the nerves but also to their covering.
17. Dr. Tellez opined that CIDP is not associated with nor
caused by trauma and that plaintiff's CIDP was not caused by
plaintiff's work-related injury of 4 May 1995. Dr. Tellez
further stated that CIDP cannot be aggravated or exacerbated
by trauma and that plaintiff's fall in May 1995 was not a
significant contributing factor to his current neurological
18. Plaintiff suffered from problems with pain and weakness
in his lower extremities prior to his work related injury on
4 May 1995. Nine months prior to plaintiff's fall at work,
plaintiff sought treatment from Dr. Lam for a balance and
gait problem. At that time, plaintiff noted that his
balance and gait were a life-long problem which had worsened
within the past few months.
19. Plaintiff's CIDP pre-existed plaintiff's injuries
suffered as a result of his fall on 4 May 1995. Plaintiff's
current disability is caused by his neurological condition,
20. The competent evidence in the record establishes that
plaintiff no longer suffers from any condition which may be
related to his fall of 4 May 1995. Plaintiff's continued
complaints are related to his neurological condition, CIDP,
and are not associated with any type of injury that may be
related to his fall in May 1995.
21. Due to plaintiff's CIDP, permanent restrictions have
been placed on his ability to work. These restrictions
include: no working at heights, avoiding extreme changes in
temperature, no prolonged standing, no stooping, no bending,
light lifting, no skillful manipulations with fingers and
hands, no commercial driving and no driving over two hours
per day. Notwithstanding these restrictions, plaintiff is
able to return to gainful employment.
The Full Commission concluded that plaintiff was not
entitled to benefits and that:
1. Plaintiff suffers from a rare neurological disorder
which has been diagnosed as Chronic Inflammatory
Demyelinating POlyneuropathy (CIDP), and which pre-existed
plaintiff's injuries suffered as a result of his fall on 4
May 1995. In the instant case, the competent evidence is
insufficient to establish that plaintiff's current condition
is related to any type of injury that plaintiff may have
sustained related to his fall in May 1995. Plaintiff's fall
in May 1995 was not a significant contributing factor to his
current condition, nor did the fall aggravate or exacerbate
plaintiff's condition; therefore, plaintiff is not entitled
to continuing compensation under the Act. N.C. Gen. Stat. §
2. Since no Industrial Commission Form 21 Agreement was
entered into by the parties, plaintiff retains the burden of
proving the nature and extent of his disability and that
this disability is causally related to his work-related
injury on 4 May 1995. However, plaintiff failed to carry
his burden of proof in this case and therefore, he is not
entitled to continuing benefits under the North Carolina
Workers' Compensation Act. N.C. Gen. Stat. § 97-2.
Plaintiff now appeals.
On appeal of a worker's compensation decision, we are limited
to reviewing whether any competent evidence supports theCommission'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). An
appellate court reviewing a worker's 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. Adams v. AVX Corp., 349 N.C. 676, 681, 509
S.E.2d 411, 414 (1998) (citation and quotation marks omitted),
reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). 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
The Full Commission is the sole judge of the weight and
credibility of the evidence. Deese, 352 N.C. at 116, 530 S.E.2d
at 553. Furthermore,
the Commission does not have to explain its findings of fact
by attempting to distinguish which evidence or witnesses it
finds credible. Requiring the Commission to explain its
credibility determination and allowing the Court of Appeals to
review the Commission's explanation of those credibility
determinations would be inconsistent with our legal system's
tradition of not requiring the fact finder to explain why he
or she believes one witness or another or believes one piece
of evidence is more credible than another.
Id. at 116-17, 530 S.E.2d at 553.
Plaintiff argues that the Commission erred when it concluded
that his May 1995 injury was not a significant contributing factor
to his current condition and that the fall did not aggravate or
exacerbate his condition. We disagree. Here, the parties stipulated that plaintiff's injury was work-
related. The primary issue before the Commission was whether
plaintiff's compensable injury resulted in his continuing inability
to earn wages. Plaintiff argued that it did, and defendant argued
that any disability suffered by plaintiff was unrelated to his
injury. Our courts have held that when a pre-existing, non-job-
related disease or infirmity eventually causes an incapacity to
work without any aggravation or acceleration of it by a compensable
accident or by an occupational disease, the resulting incapacity so
caused is not compensable. Morrison v. Burlington Indus., 304 N.C.
1, 18, 282 S.E.2d 458, 470 (1981). Here, the Commission found that
plaintiff suffered from a neurological disease, CIDP, that pre-
existed his May 1995 fall but that his condition was not aggravated
or affected by his injury. The Commission also found that
plaintiff no longer suffers any effects from his accident and that
his continued complaints are related to the neurological condition.
Although plaintiff presented evidence to the contrary, we
conclude, after careful review, that evidence in the record
supports the Commission's findings. First, three doctors--doctors
Tellez, Elkins, and Lam--all agreed that CIDP is not associated
with nor caused by trauma. As Dr. Tellez testified:
Q: Are you, Doctor, connecting his condition with the
fall of 1995?
A: No ma'am.
Q: Okay. Okay. You are not--it is not your opinion
that the fall caused Mr. Drakeford's condition, is it?
A: You're right, uh-huh.
Moreover, there was evidence to support the finding that
plaintiff suffered from CIDP prior to the date of the work-related
injury. The stipulated medical records indicate that plaintiffsought treatment from his family doctor nine months prior to his
fall in May 1995. On 22 August 1994, Dr. Lam evaluated plaintiff
for his complaints of unsteady balance and ataxic gait, symptoms of
CIDP. Plaintiff described the problem as a life-long one that had
worsened within the past few months.
Plaintiff also saw a neurologist, Dr. Malcolm Shupeck, for
his continued complaints of pain. Many of the symptoms of which he
complained--pain in the right leg, numbness in the right leg to the
ankle, and weakness in the right leg--were symptoms associated with
the as-yet-undiagnosed CIDP. In addition, several diagnostic tests
were performed on plaintiff, all with negative results. A bone
scan was performed in August 1995, which was normal. A myelogram
was performed in November 1995--again, the results were normal. A
post-myelogram CT scan of the lumbar spine and a CT scan of the
cervical spine were performed in November 1995. These too were
essentially normal. An MRI of plaintiff's lower thoracic spine and
lumbar spine, in December 1995, was normal, with the exception of
some mild degenerative changes. An MRI of plaintiff's neck, in
July 1997, was also normal with some degenerative changes noted.
The doctors and specialists who examined and treated plaintiff
after his injury all failed to find any objective basis for
plaintiff's complaints of neck and back pain. Dr. Solomon, who
treated plaintiff from December 1995 through January 1996, found
that plaintiff's examination was normal and that many of his
symptoms were not physiologic in nature. Dr. Oswalt, who treated
plaintiff from February 1996 through November 1996, found that
plaintiff was very functional and that he had maximized hisrehabilitation and showed no evidence of any functional impairment.
Plaintiff was also seen by two orthopaedic specialists, Dr. Brenner
in June 1998 and Dr. Elkins in 1999. Neither found any objective
findings to support plaintiff's subjective complaints, and both
agreed that plaintiff needed no further treatment from an
orthopaedic standpoint. Dr. Brenner also opined that plaintiff had
reached his pre-accident status at the time he examined him, in
We do note that Dr. Lam testified that he believed that
plaintiff suffered from mild degenerative disc disease and
myofascial pain syndrome and that these conditions were either
caused by or materially aggravated by plaintiff's accident. Dr.
Lam is a family practitioner, however, and is not an orthopaedic
doctor. Moreover, Dr. Elkins, who is certified in orthopaedics,
disagreed with Dr. Lam's assessment. He did not find any
indication that plaintiff suffered from either degenerative disc
disease or myofascial pain syndrome:
Q: . . . Sir, we have taken the deposition of Dr. Lam
in this matter, and Dr. Lam has diagnosed or has found that
Mr. Drakeford had a degenerative disk disease. Did you find
any indication that Mr. Drakeford had a degenerative disk
A: No, but--I didn't find any evidence of degenerative
disk disease, but everybody who drives a truck at his age has
degenerative disk disease, including me and probably half the
people at this table. So degenerative disk disease means that
your disks are getting old. It doesn't necessarily mean that
they are responsible for a problem.
. . .
Q: Did you find any--did you find that Mr. Drakeford
had symptoms of degenerative disk disease?
The Full Commission chose to credit Dr. Elkins' testimony as
opposed to that given by Dr. Lam. As indicated earlier, the Full
Commission is the sole judge of the weight and credibility of the
evidence and does not have to explain its findings of fact by
attempting to distinguish which evidence or witnesses it finds
credible. Deese, 352 N.C. at 116, 530 S.E.2d at 553. We conclude
that ample evidence in the record supported the Commission's
findings of fact.
Next, we examine whether the findings of fact support the
Commission's conclusions of law. We believe that they do.
Findings of fact numbers 2, 6, 7, 9, 13, 14, 16, 17, 18, 19, and
20, among others, specifically describe plaintiff's injury, his
subsequent improvement, and his ongoing and pre-existing
neurological condition. Thus, we reject plaintiff's argument.
For the reasons set forth above, we affirm the decision of the
Judges MARTIN and STEELMAN concur.
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