1. Workers' Compensation_-accident-_aggravation of preexisting back condition--
specific traumatic incident
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff's back condition was causally related to the May 2000 work accident and not to a
preexisting back condition, because: (1) aggravation of a preexisting condition which results in
loss of wage earning capacity is compensable; (2) the work-related injury need not be the sole
cause of the problems to render an injury compensable; and (3) although plaintiff had a
preexisting back condition due to prior injuries and surgeries, there was evidence showing that
he experienced a specific traumatic incident when he attempted to load a bag of peat moss into a
customer's car in early May 2000.
2. Workers' Compensation-_disability--permanent and total
The Industrial Commission did not err in a workers' compensation case by finding that
plaintiff was permanently and totally disabled as a result of the May 2000 injury, because: (1) a
doctor testified that he wrote a letter verifying that plaintiff should be considered disabled from
working as of 24 August 2000 even though there was no updated report at the time of the hearing
since plaintiff was no longer his patient; (2) at the time of the hearing, plaintiff continued to wear
a leg brace; and (3) there was evidence of plaintiff's lack of prior work experience and limited
education.
3. Workers' Compensation--attorney fees--abuse of discretion standard
The Industrial Commission did not abuse its discretion by awarding attorney fees to
plaintiff under N.C.G.S. § 97-88.1, because: (1) neither the facts nor North Carolina law
supported defendant's causation contention that plaintiff's preexisting back condition caused the
injury; and (2) while defendant claimed that plaintiff lacked credibility, the Commission reviews
the credibility of witnesses.
4. Appeal and Error--preservation of issues--failure to present assignment of error
Although defendant contends that plaintiff's injury in a workers' compensation case did
not impair his wage earning capacity, defendant failed to properly present this argument in an
assignment of error as required by N.C. R. App. P. 10(a).
Lyndon R. Helton and Scudder & Hedrick, by Samuel A. Scudder,
for plaintiff-appellee.
Gene Thomas Leicht, for defendant-appellant.
WYNN, Judge.
James Thomas Goforth, working in the garden department of K-
Mart since April 2000, brought this worker's compensation claim
alleging that he injured his back in early May 2000 when he
attempted to load two bags of peat moss into a customer's car.
Initially, a deputy commissioner denied benefits to Goforth for his
work-related back injury claim. But following his successful
appeal to the full Commission awarding him total disability from 27
August 2000 continuing until further order of the Commission, K-
Mart appealed to this Court. After careful review, we affirm.
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The standard of review for this Court in reviewing an appeal
from the Commission is limited to determining “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). Our review “'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 omitted). The Commission's
findings of fact “are conclusive on appeal when supported by
competent evidence,” even if there is evidence to support a
contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282
S.E.2d 458, 463 (1981), and may be set aside on appeal only “when
there is a complete lack of competent evidence to support them[.]”Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912,
914 (2000). Further, all evidence must be taken in the light most
favorable to the plaintiff, and the plaintiff “is entitled to the
benefit of every reasonable inference to be drawn from the
evidence.” Deese, 352 N.C. at 115, 530 S.E.2d at 553.
In this appeal, K-Mart assigns error to the following
paragraphs in the Opinion and Award:
Findings of Fact
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13. His back injury, which occurred at a judicially
cognizable period of time, was a compensable specific
traumatic incident of the work assigned.
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16. The uncontroverted medical evidence in this
case establishes that plaintiff is permanently and
totally disabled as a result of the injury he suffered
working at K-Mart in early May 2000.
17. Defendant's contention and supporting evidence
that plaintiff was not credible because his Form 18
stated that the injury occurred “approx. May 10, 2000,”
and defendant's records showed that plaintiff did not
work on May 10, 2000, is without merit.
18. Defendant's contention and supporting evidence
that plaintiff's back condition following the peat moss
bag incident of early May 2000 was a natural progression
of an earlier workers' compensation injury is also
without merit.
19. Defendant has defended this matter without
reasonable cause. At the conclusion of the hearing of
this claim before the Deputy Commissioner, plaintiff's
counsel of record gave notice that sanctions would be
requested. Nevertheless, defendant proceeded to further
delay the administration of justice in this claim by
forcing the deposition of Dr. Chewning not once, but
twice. The gravamen of defendant's position was that
because Mr. Goforth had a history of multiple back
surgeries, he was negligent in taking work in K-Mart's
garden department. What the record discloses is that
while Mr. Goforth had eight cervical and lumbar spinal
surgeries prior to the injury of May 10, 2000, his lastsurgery had been over two years prior to the date of
injury. He had not undergone a lumbar surgery since
1991. Further, the record establishes that Dr. Chewning
had advised Mr. Goforth that he could attempt a return to
work. In an attempt to remove himself from the rolls of
Social Security disability, Mr. Goforth came to work for
K-Mart. Never did he fail to disclose his medical
history. Mr. Goforth's efforts should be applauded, not
derided.
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Conclusions of Law
1. Sometime around May 10, 2000, plaintiff
sustained a compensable injury to his back arising out of
and in the course and scope of his employment with
defendant-employer by way of a specific traumatic
incident of the work assigned. N.C. Gen. Stat. § 97-
2(6).
2. As a result of plaintiff's compensable injury,
plaintiff is entitled to receive ongoing weekly benefits
from August 27, 2000, at the compensation rate of $226.67
per week and continuing until further order of the
Commission. N.C. Gen. Stat. § 97-29.
3. Plaintiff is entitled to have defendant provide
all medical treatment arising out of plaintiff's
compensable injury to the extent it tends to affect a
cure, give relief or lessen plaintiff's period of
disability. This will include all care directed by Dr.
Samuel J. Chewning. N.C. Gen. Stat. § 97-25.
4. Defendant has defended this claim without a good
faith basis for doing so. This defense constitutes
unreasonable defense of this claim and defendant shall
pay plaintiff's attorney's fees, which shall be taxed as
costs. N.C. Gen. Stat. § 97-88.1.
[1] Defendant argues that the Commission erred in concluding
that Goforth's back condition was causally related to the May 2000
work accident and not to the preexisting back condition. To
support the contention that the May 2000 injury was a direct and
natural result of Goforth's original injury, Defendant cites
Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 381,
323 S.E.2d 29, 31 (1984) (refracture of a bone in the same place asan earlier compensable fracture was the direct and natural result
of the original injury).
But in the more recent case of Ruffin v. Compass Group USA,
150 N.C. App. 480, 481, 563 S.E.2d 633, 635 (2002), the plaintiff
injured her back when she pulled a forty-pound box from a truck.
Id. A MRI revealed that the plaintiff had preexisting problems
including “an unusual curvature of the spine and disc herniations.”
Id. at 482, 563 S.E.2d at 635. The plaintiff's medical provider
concluded that the injury aggravated the preexisting condition.
Id. This Court, in Ruffin, held that aggravation of a preexisting
condition which results in loss of wage earning capacity is
compensable. Id. at 484, 563 S.E.2d at 637. See also Smith v.
Champion Int'l., 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999)
(plaintiff had compensable injury when work related specific
traumatic incident aggravated severe preexisting back problems).
Moreover, the “work-related injury need not be the sole cause
of the problems to render an injury compensable.” Hoyle v.
Carolina Associated Mills, 122 N.C. App. 462, 465, 470 S.E.2d 357,
359 (1996). “If the work-related accident 'contributed in some
reasonable degree' to plaintiff's disability, she is entitled to
compensation.” Id. at 466, 470 S.E.2d at 359 (citing Kendrick v.
City of Greensboro, 80 N.C. App. 183, 187, 341 S.E.2d 122, 124,
disc. review denied, 317 N.C. 335, 346 S.E.2d 500 (1986)).
When a pre-existing, nondisabling,
non-job-related condition is aggravated or
accelerated by an accidental injury arising
out of and in the course of employment or by
an occupational disease so that disability
results, then the employer must compensate the
employee for the entire resulting disabilityeven though it would not have disabled a
normal person to that extent.
Morrison, 304 N.C. at 18, 282 S.E.2d at 470 (emphasis original).
Here, the record shows that Goforth had a preexisting back
condition due to prior injuries and surgeries. But there is
evidence showing that Goforth experienced a specific traumatic
incident when he attempted to load a bag of peat moss into a
customer's car in early May 2000.
Under the specific traumatic incident provision of section 97-
2(6) of the North Carolina General Statutes, a plaintiff must prove
an injury at a judicially cognizable point in time. N.C. Gen.
Stat. § 97-2(6) (2003). The term “judicially cognizable” requires
“'a showing by plaintiff which enables the Industrial Commission to
determine when, within a reasonable period, the specific injury
occurred.'” Ruffin, 150 N.C. App. at 484, 563 S.E.2d at 636
(citation omitted). In this case, there was evidence showing that
the peat moss incident occurred in early May 2000, which was a
judicially cognizable period of time. Goforth's testimony and Dr.
Chewning's deposition supported this time period. While a person
with no preexisting back problems might not have sustained
Goforth's level of injury, the evidence supports the Commission's
determination that the aggravation of his preexisting condition by
the May 2000 specific traumatic incident is a compensable injury.
[2] K-Mart next argues that the Commission erred in finding
Goforth permanently and totally disabled as a result of the May
2000 injury. We disagree.
The Commission found in Finding of Fact 16 that, The uncontroverted medical evidence in this case
establishes that plaintiff is permanently and totally
disabled as a result of the injury he suffered working at
K-Mart in early May 2000.
Dr. Chewning testified that he wrote a letter verifying that
Goforth should be considered disabled from working as of 24 August
2000. At the time of the hearing, Dr. Chewning could not give an
updated report because Goforth was no longer his patient. But at
the time of the hearing, Goforth continued to wear a leg brace.
Also, there was evidence of Goforth's lack of prior work experience
and limited education.
If preexisting conditions such as the
employee's age, education and work experience
are such that an injury causes the employee a
greater degree of incapacity for work than the
same injury would cause some other person, the
employee must be compensated for the actual
incapacity he or she suffers, and not for the
degree of disability which would be suffered
by someone younger or who possesses superior
education or work experience.
Peoples v. Cone Mills Corp., 316 N.C. 426, 441, 342 S.E.2d 798, 808
(1986). We hold that there is competent evidence supporting the
Commission's finding of fact of permanent and total disability.
Morrison, 304 N.C. at 6, 282 S.E.2d at 463.
[3] Defendant further contends the Commission abused its
discretion in awarding attorney fees to Goforth under section
97-88.1 of the North Carolina General Statutes. N.C. Gen. Stat. §
97-88.1 (2003). We disagree.
“The decision of whether to make such an award, and the amount
of the award, is in the discretion of the Commission, and its award
or denial of an award will not be disturbed absent an abuse of
discretion.” Troutman v. White & Simpson, Inc., 121 N.C. App. 48,54-55, 464 S.E.2d 481, 486 (1995). An abuse of discretion results
only where a decision is “'manifestly unsupported by reason or . .
. so arbitrary that it could not have been the result of a reasoned
decision.'” Long v. Harris, 137 N.C. App. 461, 465, 528 S.E.2d
633, 636 (2000) (quoting State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988)). This requirement ensures that defendants
do not bring hearings out of stubborn, unfounded litigiousness.
Troutman, 121 N.C. App. at 51, 464 S.E.2d at 484. Attorney fees
can be awarded, “[i]f the Industrial Commission shall determine
that any hearing has been brought, prosecuted, or defended without
reasonable ground, it may assess the whole cost of the proceedings
including reasonable [attorney] fees . . . upon the party who has
brought or defended them.” N.C. Gen. Stat. § 97-88.1.
Here, K-Mart argued that Goforth's preexisting back condition
caused the injury, and Goforth lacked credibility. But as we
pointed our earlier, neither the facts nor North Carolina law
support K-Mart's causation contention. Moreover, while K-Mart's
claim that Goforth lacked credibility might have some merit
(See footnote 1)
, this
Court does not review the credibility of witnesses, that is the
role of the Commission. Adams, 349 N.C. at 680, 509 S.E.2d at 413.
Therefore, we find no abuse of discretion by the Commission.
[4] K-Mart also argues that Goforth's injury did not impair
his wage earning capacity; however, K-Mart did not properly presentthis in an assignment of error. This Court's review on appeal is
limited to issues presented by assignment of error. N.C. R. App.
P. 10(a).
Affirmed.
Chief Judge MARTIN and Judge MCGEE concur.
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