PATRICIA S. GIGOUS,
Employee,
Plaintiff;
v
.
North Carolina
I.C. File No. 302307
CITY OF GREENSBORO,
Employer,
and
KEY RISK MANAGEMENT
SERVICES, INC.
Servicing Agent,
Defendant.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner and
Jeanette L. Foust, for plaintiff appellant.
Smith Moore L.L.P., by Caroline H. Lock and Manning A.
Connors, for defendant appellees.
ELMORE, Judge.
Plaintiff Patricia S. Gigous appeals from an opinion and award
of the Full Commission of the North Carolina Industrial Commission
(Commission), which concluded that plaintiff was not entitled to
compensation under the North Carolina Workers' Compensation Act for
her back condition. The Commission's findings of fact aresupported by competent evidence, and the Commission's conclusions
of law are in turn supported by its findings of fact. Accordingly,
we affirm the Commission's opinion and award denying compensation
to plaintiff.
The underlying facts tend to show plaintiff was employed for
approximately eight years by defendant City of Greensboro (City),
first as a groundskeeper from 1988-1990 and later as supervisor of
Keeley Nursery (Nursery), a City-owned facility where plants are
grown for use in public areas, from 1990-1996. Plaintiff's duties
at the Nursery included plant propagation activities such as
pruning, weeding, and fertilizing, as well as managerial tasks such
as budget analysis and supervising, hiring and firing employees.
During her employment by the City, plaintiff's supervisor was Mark
Bush (Bush).
At the initial Industrial Commission hearing before Deputy
Commissioner George Glenn, plaintiff testified that on 21 September
1992 she was helping another City employee repair an irrigation
leak in a ditch by pouring cement on top of the break. While
plaintiff was in the ditch her fellow employee handed down a bucket
of cement, and when plaintiff turned to dump the cement, she “felt
something pull in [her] back,” followed by a “sharp pain.”
Plaintiff testified she missed several days of work following her
alleged injury. Plaintiff testified that Bush was out of town on
the date of her alleged injury, but that she called Bush after he
returned “to let him know what had happened and why I was out.”
According to plaintiff, she had experienced back pain prior to thisalleged incident, but it was never severe enough that she sought
medical attention. Plaintiff also testified that on 28 September
1992 she went to her family physician, Dr. Kevin Little (Dr.
Little), and that she told Dr. Little she had injured her back
while repairing the irrigation leak. Dr. Little took X-rays and an
MRI and diagnosed “spondylolisthesis,” or slippage of the vertebral
bodies, at the L5-S1 vertebrae, caused in his opinion by a
congenital pars defect at the L5 vertebra. Dr. Little also noted
a bulging disc and prescribed physical therapy.
After her third and final physical therapy session, plaintiff
reported significant improvement with minimal complaints of pain.
The City paid for plaintiff's MRI and for her three physical
therapy sessions, with the last payment occurring on 1 June 1993.
Plaintiff continued to work for the City until May 1996, when she
left to open her own plant nursery, and never filed a workers'
compensation claim in connection with her alleged 21 September 1992
injury. For the next six years plaintiff sought no further
treatment for her back condition, until presenting to Dr. Little on
15 June 1999 complaining of “a couple of months history of chronic
low left back pain,” accompanied now by pain “radiating down her
leg at times all the way to her left heel.” Dr. Little referred
plaintiff to a neurosurgeon, Dr. Robert Nudelman (Dr. Nudelman),
who performed an L5-S1 diskectomy, interbody fusion, and posterior
lateral fusion on 2 November 2000. Plaintiff returned to work
full-time three to four months later, and she has done well since
this surgery. In his testimony before the Deputy Commissioner, Bush
testified that, contrary to plaintiff's assertions, plaintiff first
informed him on 13 October 1992 that she had injured her back.
Bush did not recall plaintiff ever saying her back injury resulted
from dumping a bucket of cement while repairing an irrigation-ditch
leak. Bush testified that on 13 October 1992, he and plaintiff sat
down in the Nursery's office and together completed a Form 19
“Employer's Report of Injury to Employee.” The Form 19 was
admitted into evidence and read, in pertinent part, as follows:
6. Date of injury[:] 21 Sept. 1992 . . .
. . .
8. Date disability began[:] 28 Sept. 1992 6:30 A.M.
9. When did you or your supervisor first know of
injury[:] 13 Oct. '92
. . .
19. Machine, tool or thing causing injury[:] Continual
bending, stooping, lifting (SEE ATTACHMENT)
. . .
24. Describe fully how injury occurred, and state what
employee was doing when injured[:] No one incident _
Apparently caused by continual bending, stooping &
lifting over a period of time
. . .
The “attachment” referenced in Line 19 stated: “Employee maintains
that she could site [sic] no one incident that would have caused
this injury. She further indicates that Dr. Little suggests the
problem has resulted due to Patricia's continual bending, stooping,
and lifting.” Bush testified that if plaintiff had told him that
her injury was caused by a specific incident, he would havedescribed the incident in the Form 19, “even if it had meant
[adding] another attachment.” Bush testified that he never led
plaintiff to believe that her alleged back injury would be covered
under the Workers' Compensation Act, and that he did not in fact
have the authority to make such a determination.
Evidence considered by the Commission also included Dr.
Little's deposition testimony. Dr. Little testified that the
history he took from plaintiff on her 28 September 1992 visit
indicated she had been having low back pain for a week and that
“[s]he awoke with it one morning, no previous injury or overuse.”
Contrary to plaintiff's testimony, Dr. Little's medical records do
not reflect any indication from plaintiff that she injured her back
while repairing the irrigation leak or lifting a bucket of cement.
Dr. Little testified that he first learned of plaintiff's alleged
injury involving the irrigation leak repair and bucket of cement at
his deposition on 1 August 2001.
The Commission also considered Dr. Nudelman's deposition
testimony. Dr. Nudelman testified that plaintiff suffered from a
congenital condition which resulted in the slippage at L5-S1, and
that this slippage caused or significantly contributed to the
degenerative disc disease and bulging disc with which plaintiff was
diagnosed in 1992. Dr. Nudelman further testified that it was
possible, but not probable, that plaintiff's alleged 21 September
1992 irrigation-ditch incident caused or contributed to the
condition for which he treated plaintiff in 2000. On 17 February 2000, for the first time, plaintiff filed a
Form 18 “Claim of Employee,” and on 18 February 2000 plaintiff
filed a Form 33 “Request That Claim Be Assigned for Hearing.” By
opinion and award filed 14 December 2001, Deputy Commissioner Glenn
concluded that plaintiff was not entitled to compensation. The
Full Commission reviewed Deputy Commissioner Glenn's decision
without receiving further evidence, and by opinion and award filed
6 June 2002, the Full Commission modified and affirmed Deputy
Commissioner Glenn's decision. Plaintiff gave notice of appeal to
this Court on 28 June 2002.
Plaintiff brings forth twenty-three assignments of error
challenging a number of the Commission's findings of fact and
conclusions of law. The four issues presented in plaintiff's brief
are (1) whether various actions of the City constituted acceptance
of liability for plaintiff's claim, such that the City is “estopped
from subsequently denying the injured worker's workers'
compensation claim;” (2) whether various actions of the City
estopped the City from asserting plaintiff's failure to file her
claim within the then-applicable statutory filing period as a
defense to plaintiff's claim; (3) whether the Commission
incorrectly placed the burden of proof on plaintiff to show a
causal connection between her 1992 “injury by accident or specific
traumatic incident” and her 1999 condition and surgery; and (4)
whether plaintiff “is entitled to have defendants provide all
medical compensation arising from her injury by accident and/orspecific traumatic incident to her back” under the authority of
Hyler v. GTE Products Co., 333 N.C. 258, 425 S.E.2d 698 (1993).
It is well-settled that “appellate courts reviewing Commission
decisions are 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'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), reh'g
denied, 350 N.C. 108, 532 S.E.2d 522 (1999). The Commission's
conclusions of law 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:
3. On October 13, 1992, plaintiff first informed Mr.
Bush that she was experiencing back pain. Plaintiff was
unable to cite any specific incident that caused her back
pain and suggested only that it could have been due to
continual bending, stooping, and lifting. On October 13,
1992 Mr. Bush and plaintiff together completed a Form 19
in the nursery office. Consistent with what plaintiff
reported to Mr. Bush, the Form 19 reflects that plaintiff
could not cite any specific incident that caused her back
pain. . . .
4. At the hearing before the Deputy Commissioner,
plaintiff testified that she hurt her back while
repairing an irrigation leak in a ditch when she lifted
a bucket of cement. However, plaintiff never reported
this incident to Mr. Bush. Mr. Bush had no authority to
make any decision about whether plaintiff's alleged back
injury was accepted or denied as a compensable workers'compensation claim. . . . Mr. Bush did not tell
plaintiff “not to worry about it” or that the claim would
be covered by workers' compensation. As a supervisor
herself, plaintiff knew that Mr. Bush had no authority to
make compensability decisions.
5. Prior to October 13, 1992 plaintiff received
treatment for her back from her family physician, Dr.
Kevin L. Little. When plaintiff first saw Dr. Little on
September 28, 1992 complaining of back pain, she did not
give him a history that included a specific incident or
any injury to her back at work. Instead, plaintiff told
Dr. Little that she simply awoke with back pain one
morning[.] . . . Dr. Little testified that he first
learned of plaintiff's alleged incident involving a
bucket of cement at his deposition taken on August 1,
2001.
. . .
7. . . . Plaintiff's spondylolisthesis was caused by a
congenital pars defect at the L5 vertebra.
. . .
10. Defendant paid for plaintiff's medical expenses
related to the MRI and three sessions of physical therapy
with Mr. Brockmann. The last payment for these expenses
was made on June 1, 1993.
11. During her employment with the City of Greensboro,
plaintiff never sought or received any compensation for
disability pursuant to the Workers' Compensation Act. .
. .
12. . . . Plaintiff's responsibilities as a nursery owner
include heavy physical labor, heavy lifting, and a
substantial amount of stooping, bending, and twisting.
13. Plaintiff did not seek or receive any treatment for
back or spine problems again until June 15, 1999, when
she returned to Dr. Little. Between September 28, 1992
and June 15, 1999 . . . plaintiff never complained of
back pain, and neither Dr. Little nor any of his
associates noted any symptoms consistent with back pain
or radiculopathy.
14. . . . Dr. Little opined, and the Commission hereby
finds, that the symptoms and condition for which Dr.
Little treated plaintiff in 1999 were caused by the work
plaintiff was doing as a self-employed nursery owner,which included a substantial amount of lifting, bending,
stooping, and digging.
. . .
16. Dr. Nudelman reviewed films and an MRI scan, which
revealed spondylolisthesis of L5 on S1 due to bilateral
L5 pars interarticularis defects with associated
degenerative change at the L5-S1 disc and a superimposed
left L5-S1 disc herniation. Each of these conditions was
congenital or degenerative in nature.
17. . . . Dr. Nudelman was unable to state that
plaintiff's alleged September 1992 accident caused,
resulted in, or significantly contributed to the
condition for which he treated plaintiff beginning in
March 2000 or the subsequent surgery.
. . .
19. Plaintiff first filed a claim for workers'
compensation benefits with the Industrial Commission on
February 17, 2000. On that date, she filed a Form 18 and
for the first time identified a specific incident that
she alleged caused her back problems. . . .
20. The Deputy Commissioner who heard this case did not
accept as credible plaintiff's testimony as to a specific
lifting incident in 1992 involving a cement bucket in
which she alleges that she injured her back. The Full
Commission declines to reverse the credibility
determination of the Deputy Commissioner and finds that
plaintiff's back condition in 1992 developed gradually
over a period of time and not as a result of a specific
traumatic incident or injury by accident. In addition,
the greater weight of the evidence showed that
plaintiff's back symptoms in November 2000 developed as
the result of her job duties in her own nursery business.
21. Assuming arguendo that plaintiff injured her back
dumping a bucket of cement while working in an irrigation
ditch, plaintiff failed to file a claim with the
Commission within two years after the last payment of
medical compensation that occurred on June 1, 1993.
Plaintiff filed her Form 18 with the Commission on
February 17, 2000[,] which was over six years from the
last payment of medical compensation. There is
insufficient evidence of record from which to determine
by its greater weight that defendant induced plaintiff
into any delay in filing a claim with the Industrial
Commission.
After a careful review of the record, we hold that the
Commission's findings of fact are supported by the record evidence.
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 our “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) (emphasis
in original). The record is replete with evidence that plaintiff
did not initially attribute her 1992 back pain to the incident she
now alleges occurred while repairing the irrigation leak on 21
September 1992. Further, both Dr. Little and Dr. Nudelman
testified that plaintiff suffers from a congenital spine
abnormality which increased her likelihood for developing
degenerative disc disease. Plaintiff's own testimony establishes
that her job duties after leaving the City's employ in 1996
required substantial lifting, stooping, bending, and twisting.
Finally, the record is clear that plaintiff first filed her claim
for workers' compensation benefits on 17 February 2000, and that
the City's last payment for plaintiff's limited 1992 back-related
medical treatment occurred on 1 June 1993.
The next, and final, of this Court's limited tasks on appeal
is to determine whether these detailed findings of fact support the
Commission's conclusions of law. Deese, 352 N.C. at 116, 530
S.E.2d at 553. Based on the foregoing findings, the Commission
concluded as follows: 1. Plaintiff did not sustain an injury by accident
arising out of and in the course of her employment or a
specific traumatic incident of the work assigned on or
about September 21, 1992. N.C. Gen. Stat. § 97-2(6).
Therefore, plaintiff's back condition in November 2000 is
not causally related to any work-related incident that
occurred in 1992 while plaintiff was employed by
defendant-employer.
2. Assuming arguendo that plaintiff sustained an injury
by accident on September 21, 1992, plaintiff failed to
file a claim with the Industrial Commission within two
years after the alleged injury. Proper filing of a claim
by an employee within two years is a condition precedent
to jurisdiction by the North Carolina Industrial
Commission. N.C. Gen. Stat. § 97-24. Therefore,
plaintiff's claim is time barred and the Industrial
Commission has no jurisdiction over th[e] matter. . . .
3. The payment in 1993 of nominal medical bills for
treatment received by plaintiff in 1992 does not estop
defendant from asserting the jurisdictional bar of N.C.
Gen. Stat. § 97-24) [sic]. Abels v. Renfro Corp., 100
N.C. App. 186, 187, 394 S.E.2d 658, 659 (1990).
4. Defendant did not make any false representations or
conceal any material facts with the intent of misleading
plaintiff. Moreover, plaintiff did not reasonably rely
on any statements made to her by the employer.
Therefore, defendant is not equitably estopped from
asserting N.C. Gen. Stat. § 97-24 as a defense to this
claim. Weston v. Sears Roebuck & Co., 65 N.C. App. 309,
314, 309 S.E.2d 273, 276 (1983).
5. Plaintiff is entitled to no compensation under the
North Carolina Workers' Compensation Act.
We hold that the Commission's findings of fact justify its
conclusions of law. For purposes of the Workers' Compensation Act,
N.C. Gen. Stat. § 97-2(6)(2001) defines a compensable back injury
as an injury arising “out of and in the course of the employment[,]
and [which] is the direct result of a specific traumatic incident
of the work assigned.” There are two scenarios upon which a back
injury may be found compensable under the Workers' Compensation
Act: “(1) if the claimant was injured by accident; or (2) if theinjury arose from a specific traumatic incident.” Glynn v. Pepcom
Industries, 122 N.C. App. 348, 354, 469 S.E.2d 588, 591 (1996).
Conclusion of law number one, wherein the Commission determined
that plaintiff's back condition was not compensable under the
Workers' Compensation Act, is supported by the Commission's
findings of fact that “[p]laintiff was unable to cite any specific
incident that caused her back pain” and that plaintiff suffered
from a congenital spine condition that increased her likelihood of
developing degenerative disc disease. The Commission's findings
that plaintiff's back condition was at least partially
“degenerative in nature” and that plaintiff's job duties after
leaving the City's employ in 1996 involved substantial lifting,
stooping, bending, and twisting also support this conclusion of
law.
Similarly, “assuming arguendo,” as did the Commission in
conclusion of law number two, “that plaintiff sustained an injury
by accident on September 21, 1992,” we hold the Commission's
findings of fact support its conclusion of law that “plaintiff's
claim is time barred and the Industrial Commission has no
jurisdiction over this matter.” The version of N.C. Gen. Stat. §
97-24(a) which was in effect in 1992 provided that “[t]he right to
compensation under [the Workers' Compensation Act] shall be forever
barred unless a claim be filed with the Industrial Commission
within two years after the accident.” N.C. Gen. Stat. § 97-24(a)
was amended in 1994 to its current form, which added to the 1992
version as follows: The right to compensation under this Article shall be
forever barred unless (i) a claim . . . is filed with the
Commission . . . within two years after the accident or
(ii) a claim . . . is filed with the Commission within
two years after the last payment of medical compensation
when no other compensation has been paid and when the
employer's liability has not otherwise been established
under this Article.
N.C. Gen. Stat. § 97-24(a) (2001). It is well-settled that “the
timely filing of a claim for compensation is a condition precedent
to the right to receive compensation and failure to file timely is
a jurisdictional bar for the Industrial Commission.” Reinhardt v.
Women's Pavillion, 102 N.C. App. 83, 86, 401 S.E.2d 138, 140
(1991). Ordinarily, estoppel is insufficient to overcome a
jurisdictional bar, absent circumstances which are deemed
egregious. Id. at 87, 401 S.E.2d at 140.
In the case at bar, plaintiff alleges that she was injured on
21 September 1992, yet she did not file her claim until 17 February
2000, as the Commission found in its finding of fact number
nineteen. This was well beyond two years after both plaintiff's
alleged 21 September 1992 accident and the 1 June 1993 date of
defendant's last payment of medical compensation. Findings of fact
numbers three, four, ten, and twenty-one support the Commission's
conclusions of law numbers three and four that the City is not
equitably estopped from asserting the jurisdictional bar of N.C.
Gen. Stat. § 97-24(a) as a defense to plaintiff's claim.
Accordingly, the opinion and award of the Commission denying
compensation to plaintiff is
Affirmed.
Judge MARTIN and Judge HUDSON concur.
Report per Rule 30(e).
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