TIMOTHY AMBROSE,
Employee,
Plaintiff;
v
.
North Carolina
I.C. File No. 967002
TIDEWATER CONSTRUCTION COMPANY,
Employer;
LIBERTY MUTUAL INSURANCE COMPANY,
Carrier,
Defendants.
Taft, Taft & Haigler, P.A., by Thomas F. Taft, Sr., and
Patterson, Harkavy & Lawrence, L.L.P., by Valerie A. Johnson,
for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by P. Collins Barwick, III
and Tracy C. Myatt, for defendant-appellants.
ELMORE, Judge.
Tidewater Construction Company (“Tidewater”) and Liberty
Mutual Insurance Company (collectively, “defendants”) appeal from
the Industrial Commission's (“Commission”) opinion and award, which
concluded that Timothy Ambrose (“plaintiff”) sustained bilateral
inguinal hernias resulting from an injury by accident arising out
of and in the course of his employment, and awarded plaintiff (1)temporary partial disability compensation, (2) temporary total
disability compensation, (3) all medical expenses, and (4)
reasonable attorney fees and costs. We find that the Commission's
findings of fact are supported by competent evidence, and that the
Commission's conclusions of law are in turn supported by its
findings of fact. Accordingly, we affirm the Commission's opinion
and award.
Plaintiff, who was twenty-two years old at the time of his
injury, was hired by Tidewater on 9 August 1999 to work on
construction of a bridge in Fairfield, North Carolina. Although
hired as a pile driver, plaintiff's primary job responsibilities
were driving a truck hauling girders and helping to set girders.
Plaintiff had a history of hernias, having been diagnosed at age
eighteen with bilateral hernias which were surgically repaired by
Dr. Robert W. Youngblood (“Dr. Youngblood”). Between his earlier
hernia repair and his employment by Tidewater, plaintiff worked at
various times as a farmer, a welder, a pallet builder, a forklift
operator, and a pile driver.
According to plaintiff, on 3 September 1999, a Friday, he was
directed to secure the job site in preparation for an approaching
hurricane. These preparations consisted of tying everything down
and securing all loose materials. After stacking several sheets of
plywood, plaintiff decided to place an anchor chain across the
plywood to secure it against the wind. When plaintiff attempted to
lift the anchor chain, which weighed over 300 pounds, he felt a
“pop” as he pulled it across the plywood. Despite the “pop” andsubsequent nagging pain in his groin, plaintiff did not immediately
tell anyone at Tidewater about the incident, and he continued to
work the remainder of the day securing the job site.
Plaintiff's discomfort eased somewhat over the long Labor Day
weekend, which contributed to his initial belief that the injury
was a muscle pull which would heal with time. However, plaintiff
did not report to work on 7 September 1999, the next work day
following the incident, because the roads were flooded and
impassable by motorcycle, plaintiff's only means of transportation.
Plaintiff maintains that he called Christy Davenport, Tidewater's
field administrator, that morning and told her he would not be
coming in, but he did not tell her about the previous Friday's
incident or the resulting pain. Plaintiff contends that he rode to
and from work in the rain the next day, and as a result got sick,
causing him to miss work for the rest of the week. Plaintiff
continued to experience pain in his groin area but did not inform
anyone at Tidewater about his injury.
Plaintiff reported to work on Monday, 13 September 1999, and
was told by Davenport that because of his absences due to illness,
he had to get a doctor's authorization before returning to work.
Plaintiff left work and went to his family physician, M.K. Jeon
(“Dr. Jeon”). Plaintiff told Dr. Jeon about the incident at work
and the pain in his groin area. Dr. Jeon examined plaintiff and
determined that he had a hernia. Plaintiff returned home and
called Davenport, telling her for the first time about the incident
with the anchor chain and informing her of Dr. Jeon's herniadiagnosis. Davenport made an appointment for plaintiff to see Dr.
Charles O. Boyette (“Dr. Boyette”) the next day.
On 14 September 1999, Dr. Boyette examined plaintiff and noted
pain and tenderness in the groin area bilaterally and a bulge.
Plaintiff told Dr. Boyette's nurse practitioner that he had
“sustained an injury lifting an anchor chain at work . . . a couple
of weeks prior to being seen and felt a pull in his groin.”
Plaintiff also disclosed his prior history of bilateral hernias.
Dr. Boyette diagnosed bilateral inguinal hernias and referred
plaintiff to Dr. Youngblood for a surgical consultation. Dr.
Boyette released plaintiff to return to work on light duty
restrictions, with instructions not to lift over five pounds.
Plaintiff contends he then went to the job site and asked for
work assignments within these parameters and also asked if he could
ride to work with one of the foremen, since he was no longer
allowed to lift his motorcycle onto its center parking stand.
According to plaintiff, Tidewater's job superintendent indicated
that he did not care whether plaintiff returned to work and refused
to offer any light-duty work. Plaintiff thereafter remained out of
work and was terminated by Tidewater on 29 September 1999.
Plaintiff then secured light-duty employment as a carpenter for
A.R. Chesson, but the project on which he was working ended after
approximately three weeks and he was let go. Plaintiff filed a
Form 18 notice of accident and claim on 15 October 1999, which
claim defendants subsequently denied. On 11 November 1999,plaintiff filed a Form 33 request that his claim be assigned for
hearing.
Plaintiff's pain persisted and he was examined by Dr.
Youngblood on 6 December 1999, by Dr. Walter J. Pories on 20
December 1999, and by Dr. Youngblood again on 14 February 2000.
Dr. Youngblood diagnosed bilateral inguinal hernias and recommended
surgery, which he performed on 2 March 2000. Approximately one
month after the surgery, plaintiff accepted a position with
Barnhill Construction Company as a flag man, earning approximately
the same wages as he had at Tidewater.
On 15 August 2000, plaintiff's claim was heard by Deputy
Commissioner W. Bain Jones, Jr. By amended opinion and award filed
18 January 2001, Deputy Commissioner Jones concluded that plaintiff
had “sustained an injury by accident as a result of a specific
traumatic incident of work assigned” and awarded plaintiff (1)
temporary total disability compensation, (2) temporary partial
disability compensation, (3) all medical expenses, and (4)
reasonable attorney fees and costs. The Full Commission heard
defendants' appeal on 20 August 2001. By opinion and award filed
28 September 2001, the Commission affirmed Deputy Commissioner
Jones' decision, with modifications as to how the disability
payments were to be calculated. Defendants gave notice of appeal
to this Court on 29 October 2001.
Defendants bring forth eight assignments of error challenging
a number of the Commission's findings of fact and conclusions of
law. However, in their brief defendants have combined them allinto a single argument under a general heading stating that the
“Commission's findings of fact relating to the issue of whether
plaintiff sustained a compensable injury on September 3, 1999, are
not supported by competent evidence in the record, and its
conclusions of law on this issue are not supported by competent
findings of fact.” Although defendants list all eight assignments
of error under this heading, their brief does not specifically
discuss any particular finding of fact. Defendants instead argue
that “plaintiff did not establish the necessary 'causal relation'
between his hernia and his employment, and the Full Commission
erred in awarding compensation in this instance.” Defendants
proceed to challenge this “causal relation” by contending that
there is no competent evidence that plaintiff was even at work on
3 September 1999, the date he claims to have suffered the job-
related injury which gave rise to his bilateral hernias.
Defendants also contend that the evidence shows the condition for
which plaintiff seeks compensation was a gradual recurrence of his
previous hernias and unrelated to any specific work-related injury,
and therefore “causally unrelated” to his employment by Tidewater.
We thus review the Commission's findings and conclusions in light
of these contentions.
It is well-settled that when reviewing an opinion and award of
the Commission, this Court 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, 530S.E.2d 549, 553 (2000). The Commission's findings of fact are
conclusive if they are supported by any competent evidence in the
record, even though there is evidence that would support contrary
findings. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998). “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. The Commission's conclusions
of law, however, are reviewed de novo by this Court. Allen v.
Roberts Elec. Contr'rs, 143 N.C. App. 55, 63, 546 S.E.2d 133, 139
(2001).
Here, the Commission made findings of fact, in pertinent part,
as follows:
8. On September 3, 1999, Hurricane Dennis was
approaching the North Carolina coast. Plaintiff was
working that day and after lunch he was instructed to
secure the jobsite in preparation for the hurricane.
Plaintiff had never performed this type of work.
9. Plaintiff stacked four or five 4x8 sheets of plywood
and looked for something to place across the plywood to
secure it against the wind. Plaintiff saw an anchor
chain and decided the weight of the chain would be
sufficient to hold the wood.
10. Plaintiff walked over to the chain, bent down and
when he attempted to lift the chain, he realized the
chain was heavier than expected. The chain weighed over
300 pounds. Plaintiff felt a pop as he pulled the chain.
Plaintiff felt nagging pain in his groin area and thought
that he had pulled a muscle which would resolve in a
matter of days.
. . .
14. . . . Dr. Boyette diagnosed plaintiff with bilateral
inguinal hernias and felt that this was the result of
plaintiff's injury while picking up the anchor chain.
. . .
26. Dr. Youngblood indicated the most reasonable
explanation for the hernia was the lifting of the anchor
chain.
. . .
31. Plaintiff described feeling a pop and subsequent
nagging pain right above his groin area after pulling on
the heavy chain on September 3, 1999. Ten days later
plaintiff received medical treatment for the pain and
tenderness in his groin. The Full Commission finds that
plaintiff's testimony regarding the specific incident
leading to his bilateral hernias is credible.
32. After considering the greater weight of the
evidence, the Full Commission finds that plaintiff's
bilateral hernias appeared suddenly on or about September
3, 1999 as the result of a specific traumatic incident of
the work assigned. Plaintiff's prior bilateral hernias
had resolved and he did not have a hernia prior to the
injury by accident on September 3, 1999.
Defendants argue that these findings are erroneous because
certain evidence of record, specifically (1) a warning notice to
plaintiff concerning absenteeism, (2) plaintiff's time card from 3
September 1999, and (3) Davenport's testimony, indicates that
plaintiff was not at work on 3 September 1999 and could not have
suffered a work-related injury on that date. We stress that the
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, and this
Court's “task on appeal is not to weigh the respective evidence but
to assess the competency of the evidence in support of the Full
Commission's conclusions.” Calloway v. Memorial Mission Hosp., 137
N.C. App. 480, 486, 528 S.E.2d 397, 401 (2000). Further, if there
is any “evidence of substance which directly or by reasonable
inference tends to support the findings, this Court is bound bysuch evidence, even though there is evidence that would have
supported a finding to the contrary.” Porterfield v. RPC Corp., 47
N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980).
With these principles in mind, we hold that there was plenary
evidence in the record to support the Commission's findings of fact
numbers 8, 9, 10, 31, and 32, in which the Commission found that
plaintiff was indeed at work on 3 September 1999 and that he
suffered an injury by accident on that date when he lifted the
anchor chain while securing materials at the job site. Plaintiff
specifically testified before the Commission that he worked on 3
September 1999 and was injured on that date when he tried to lift
the anchor chain, testimony consistent with plaintiff's assertions
in his Forms 18 and 33. Plaintiff gave oral and written statements
on 14 September 1999 in which he dated his injury as occurring
while securing the job site on 3 September 1999. At his
deposition, Dr. Boyette testified that his nurse practitioner's
notes indicate that plaintiff “picked up the chain, pulling on the
chain at work on September the 3rd with a tearing sensation in the
groin.” Further, plaintiff's supervisor at Tidewater, Karl Riedel,
testified concerning preparations on 3 September 1999 for the
approaching hurricane as follows:
I was [plaintiff's] direct supervisor in the field and in
the process of building the bridge, but in this
particular situation, I sent him along with another _ a
couple _ another man _ I can't think who it was _ to work
on the north side because they had so much more activity
to secure.
Riedel also testified that he later observed the anchor chain “laid
[sic] across the plywood,” consistent with plaintiff's descriptionof how he was injured. We hold the Commission's findings of fact
that plaintiff was at work on 3 September 1999 and suffered an
injury while lifting the anchor chain on that date are supported by
the evidence.
As to findings of fact numbers 14, 26, and 32, in which the
Commission found Dr. Boyette and Dr. Youngblood each believed that
plaintiff's bilateral hernias resulted from the incident in which
he lifted the anchor chain, and that he did not have a hernia prior
to the injury by accident on 3 September 1999, we hold that these
findings are also supported by competent evidence. At his
deposition, Dr. Boyette testified that “[p]icking up an anchor
chain certainly can cause a herniation. And the symptoms that he
presented with were consistent with an individual who had suffered
an inguinal strain or an inguinal recurrent herniation.”
Similarly, Dr. Youngblood testified at his deposition that “the
most reasonable explanation for the hernia was that [plaintiff] had
a very considerable force to disrupt the previous surgery . . . I
think that it's reasonable to believe that this disruption of his
previous operative sites were secondary to the injury which he
described.” Despite evidence that plaintiff had previously
sustained bilateral hernias, the deposition testimony of Dr.
Boyette and Dr. Youngblood supports the Commission's findings that
“he did not have a hernia prior to the injury by accident on
September 3, 1999.” Thus, we hold the Commission's findings of
fact relating to whether plaintiff sustained a compensable injury
on September 3, 1999 are supported by the evidence. Next, we must determine whether these findings of fact support
the Commission's conclusions that plaintiff suffered a compensable
injury on 3 September 1999. Deese, 352 N.C. at 116, 530 S.E.2d at
553. Defendants except to the Commission's conclusions as follows:
2. As a result of the incident on September 3, 1999,
plaintiff sustained bilateral hernias that appeared
suddenly and immediately following an injury by accident
within the course and scope of his employment with
defendant-employer as [a] result of a specific traumatic
incident of work assigned. N.C. Gen. Stat. § 97-2(18).
3. As a result of plaintiff's specific traumatic
incident on September 3, 1999, plaintiff is entitled to
payment by defendants of all medical expenses related to
the treatment of the bilateral hernias. N.C. Gen. Stat.
§ 97-25.
4. Plaintiff was justified in not returning to work due
to defendant-employer's refusal to provide work within
his restrictions. N.C. Gen. Stat. § 97-32.
5. As a result of his compensable injury, plaintiff was
partially disabled from work and is entitled to receive
temporary partial disability compensation . . . for the
period from the date of his discharge from employment on
September 29, 1999 through March 1, 2000. N.C. Gen.
Stat. § 97-30.
6. As a result of his compensable injury by accident,
plaintiff was temporarily totally disabled from any
employment and is entitled to receive temporary total
disability compensation from the date of his hernia
surgery, March 2, 2000, until April 1, 2000, when
plaintiff reached maximum medical improvement and
regained his wage earning capacity by returning to work
at wages greater than his preinjury wages. N.C. Gen.
Stat. § 97-29.
We hold that the Commission's findings of fact justify its
conclusions of law. The Workers' Compensation Act provides that in
order to recover compensation for a hernia, plaintiff must prove
(1) there was an injury resulting in hernia or rupture; (2) the
hernia or rupture appeared suddenly; (3) the hernia or ruptureimmediately followed an accident or specific traumatic incident;
and (4) the hernia or rupture did not exist prior to the accident
for which compensation is claimed. N.C. Gen. Stat. § 97-2(18)
(2001).
The Commission found that plaintiff was working to secure the
job site on 3 September 1999 when he attempted to lift the anchor
chain and place it on top of a stack of plywood, and that plaintiff
“felt a pop as he pulled the chain” and thereafter “felt nagging
pain in his groin area.” The Commission further found that
plaintiff was subsequently diagnosed with bilateral inguinal
hernias, which “appeared suddenly on or about September 3, 1999 as
the result of a specific traumatic incident of the work assigned,”
and that “[p]laintiff's prior bilateral hernias had resolved and he
did not have a hernia prior to the injury by accident on September
3, 1999.” The Commission's findings of fact support its
conclusions that plaintiff's bilateral hernias were compensable as
defined by N.C. Gen. Stat. § 97-2(18) and as interpreted by case
law. Pernell v. Piedmont Circuits, 104 N.C. App. 289, 292, 409
S.E.2d 618, 619 (1991), rev. denied, 330 N.C. 613, 412 S.E.2d 87
(1992). Accordingly, the award of the Commission is
Affirmed.
Judge HUNTER and Judge BRYANT concur.
Report per Rule 30(e).
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