Appeal by defendants from the Opinion and Award of the North
Carolina Industrial Commission filed 2 November 2001. Heard in the
Court of Appeals 30 October 2002.
Taft, Taft & Haigler, P.A., by Thomas F. Taft, Sr., and
Patterson, Harkavy & Lawrence, L.L.P., by Martha A. Geer, for
plaintiff-appellee.
Lewis & Roberts, P.L.L.C., by Jack S. Holmes and by
Christopher M. West, for defendant-appellant
TYSON, Judge.
Bear Grass Logging Corporation (“employer”) and N.C. Forestry
Association Mutual Insurance Company, collectively referred to as
“defendants”, appeal the award of temporary total disability
compensation to Jim H. Harrison, Jr. (“plaintiff”) by the NorthCarolina Industrial Commission (“Commission”). We affirm the
Commission's order.
I. Background
Plaintiff worked for his father's company, Bear Grass Logging
Corporation. Plaintiff was employed as a foreman and was
responsible for cutting trees, loading logs, operating equipment
and any job duties of crew members who did not show up for work.
On 28 January 1999, while performing his regular duties,
plaintiff manually lifted the landing gear on a logging trailer and
immediately felt pain in his lower back. Plaintiff reported his
injury to the president of employer, his mother, who instructed
him to obtain medical attention.
Later that day, Dennis A. Czuchra, P.A., of Family Medical
Care, examined plaintiff and diagnosed him with acute muscular
strain of the lower back with a history of spondylosis. Mr.
Czuchra prescribed medication and gave plaintiff a note for light
duty work after plaintiff declined a note to stay out of work. Mr.
Czuchra also instructed plaintiff to follow up with an orthopedic
physician.
Plaintiff did not return to light duty work with employer, and
failed to keep the two separate appointments with Talley Lassiter,
M.D., an orthopedic physician with Orthopaedics East. Plaintiff
testified that his failures were due to his wife's emergency
surgery and to Hurricane Floyd. On his third scheduled appointment
on 5 October 1999, more than eight months after the incident,
plaintiff was examined by Dr. Lassiter, who diagnosed plaintiffwith Grade 1 spondylolisthesis at the L5-S1 vertebrae. Plaintiff
was treated conservatively with a prescription for a lumbar corset,
Vioxx and a Sterapred Dosepak.
On 17 February 2000 plaintiff was examined by James C.
Harvell, M.D., another physician with Orthopaedics East. Dr.
Harvell took x-rays, confirmed Dr. Lassiter's diagnosis, and
continued plaintiff's conservative treatment. A myelogram taken in
May 2000 again confirmed the diagnosis of isthmic spondylolisthesis
of L5-S1. Dr. Harvell opined that (1) plaintiff had a pre-existing
condition of isthmic spondylolisthesis at L5-S1, (2) plaintiff's 28
January 1999 lifting incident exacerbated that pre-existing
condition and provoked symptoms of low back, buttock and some
element of leg pain, and (3) with treatment, plaintiff's symptoms
would settle, but that sudden flare ups and exacerbations might
occur with increasing intensity. Dr. Harvell restricted plaintiff
from bending, stooping, lifting or operating heavy equipment and
restricted plaintiff to light or sedentary work.
The Commission concluded in part:
1. On 28 January 1999, plaintiff sustained a
compensable injury by accident or specific
traumatic incident arising out of and in the
course of his employment.
2. As a direct and proximate result of
plaintiff's compensable injury, plaintiff has
been incapable of earning wages which he was
receiving at the time of his compensable
injury at the same or in any other employment
from 28 January 1999 and continuing.
The Commission awarded plaintiff temporary total disability
compensation from 29 January 1999 and continuing until furtherorder of the Commission. The Commission also awarded “past and
future medical expenses incurred by plaintiff which reasonably
related to his compensable injury by accident and reasonably
designed to effect a cure, give relief or lessen the period of
disability when bills for the same have been approved by procedures
adopted by the Commission.” Defendants appeal.
II. Issues
Defendants contend that the Commission erred by finding that
the plaintiff was disabled as a result of the injury by accident or
a specific traumatic incident and argue (1) the testimony of Dr.
Harvell is neither credible nor competent evidence and (2) the
Commission ignored pertinent evidence.
III. Standard of Review
Upon appeal of an award from the Commission, this Court's
review is limited to whether competent evidence supports the
Commission's findings of fact and whether those findings support
the Commission's conclusions of law.
Effingham v. Kroger Co., 149
N.C. App. 105, 109, 561 S.E.2d 287, 291 (2002). The findings of
fact are conclusive on appeal if there is competent evidence to
support them, even if evidence is presented to the contrary.
Id.
The Commission's conclusions of law are reviewable
de novo.
Id.
IV. Testimony of Dr. Harvell
Defendants contend Dr. Harvell's testimony is neither credible
nor competent evidence to support a finding by the Commission. We
disagree.
This Court noted in
Effingham that
“[t]he Commission is the
sole judge of the credibility of the witnesses and the weight
accorded to their
testimony.” 149 N.C. App. at 109-10, 561 S.E.2d
at 291. The Commission “may reject entirely the testimony of a
witness if warranted by disbelief of the witness.”
Russell v.
Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454,
457 (1993).
[T]he Commission does not have to explain its
findings of fact by attempting to distinguish
which evidence or witness it finds credible.
Requiring the Commission to explain its
credibility determinations 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 over another or believes one piece
of evidence is more credible than another.
Skillin v. Magna Corp./Greene's Tree Serv., Inc., 152 N.C. App. 41,
47-48, 566 S.E.2d 717
, 721-22 (2002) (citing
Deese v. Champion
Int'l Corp., 352 N.C. 109, 116-17, 530 S.E.2d 549, 553 (2000)).
Defendants argue that Dr. Harvell's testimony is neither
credible nor competent, and assert factors including the length of
time between the 28 January 1999 incident and the date Dr. Harvell
first examined plaintiff and contrary opinions offered by Mr.
Czuchra, the physician's assistant who examined plaintiff the day
of the incident. Defendants suggest that the record contains
evidence of Dr. Harvell's bias, and attempt to discredit Dr.
Harvell's explanation of his conclusions concerning plaintiff's
condition. Defendants argued these credibility issues to the Commission
at the hearing. The Commission's findings of fact reflect its
acceptance of Dr. Harvell's credibility. Defendants are asking
this Court to substitute our credibility determination for that of
the Commission.
Although the defendants do not directly address their
contention that Dr. Harvell's testimony is not competent, we note
that this testimony is competent evidence. Dr. Harvell testified
that,
[i]t is my opinion that Mr. Harrison had a
pre-existing condition involving his lumbar
spine; namely, that of isthmic
spondylolisthesis involving the lowest mobile
segment, or L5-S1. It is my opinion that on
January 28, 1999, Mr. Harrison exacerbated the
pre-existing condition involving his lumbar
spine and prevoked symptomatology of low back,
buttock, and some element of leg pain.
This testimony does not demonstrate an opinion “based solely on
supposition and conjecture.”
Young v. Hickory Bus. Furn., 353 N.C.
227, 233, 538 S.E.2d 912, 917 (2000). Any delay between
plaintiff's injury and seeking treatment from Dr. Harvell would
affect the weight of the testimony not its admissibility as
competent evidence. Credibility and weight of the evidence rests
in the hands of the Commission not this Court.
Effingham, 149 N.C.
App. at 109-10, 561 S.E.2d at 291. This testimony is competent
evidence on which the Commission may base its decision.
See, Young
353 N.C. 227, 538 S.E.2d 912. This assignment of error is
overruled.
V. Pertinent Evidence
Defendants contend the Commission ignored pertinent evidence
in making its findings of fact.
The Commission must adjudicate and may not ignore competent
evidence. It is free to choose not to believe the evidence after
considering it.
Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71,
78, 541 S.E.2d 510, 515 (2001). The Commission is not required to
make “exhaustive findings as to each statement made by any given
witness or make findings rejecting specific evidence.”
Smith v.
Beasley Enters. Inc., 148 N.C. App. 559, 562, ___ S.E.2d ___, ___
(2002) (quoting
Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 139,
502 S.E.2d 58, 62 (1998)). “The Commission must make findings from
which this Court may reasonably infer that it gave proper
consideration to all [competent] testimony.”
Id. at 562, ___
S.E.2d at ___.
Here, defendants argue that the Commission ignored certain
evidence in determining its findings of fact. Defendants point out
plaintiff's testimony that his condition got progressively worse
and that he was not able to do anything other than sit and walk
about the house. This testimony was contradicted by evidence that
plaintiff (1) passed a Department of Transportation physical, (2)
was able to care for his wife, and (3) used his boat. Plaintiff
also testified to the absence of prior back problems which was
contradicted by undisputed evidence that he suffered from a pre-
existing back condition. Defendants also claim the Commission
accepted Dr. Harvell's testimony in some instances and not in
others. Defendants assert that the Commission failed to considerthat plaintiff certified that he was able to work on his
unemployment application. Finally, defendants argue the Commission
failed to consider plaintiff's failure to seek additional medical
treatment from an orthopedist until October of 1999, more than
eight months after the injury.
The Commission began its decision, “[u]pon review of the
competent evidence of [the] record.” The record consists of
depositions of Dr. Harvell and Mr. Czuchra, and a transcript of the
evidence from the hearing before Deputy Commissioner Wanda Taylor,
with attached exhibits, including medical records. All of the
evidence defendants argue is contained in this record.
“Upon review of the competent evidence of [the] record,” the
Commission is not required to make “exhaustive findings as to each
statement made by any given witness or make findings rejecting
specific evidence.”
Smith, 148 N.C. at 561-2, ___ S.E.2d at ___.
This assignment of error is overruled.