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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.
JODY CRANE, Employee, Plaintiff, v. BERRY'S CLEAN-UP AND
LANDSCAPING, INC., Employer, NORTH CAROLINA FARM BUREAU MUTUAL
INSURANCE COMPANY, Carrier, Defendants
Filed: 5 April 2005
1. Workers' Compensation--credibility--inconsistent testimony
Although defendants contend the Industrial Commission erred in a workers'
compensation case by finding that a specific traumatic incident occurred on 11 February 1999
based on plaintiff employee's inconsistent reports of when his injury occurred, this assignment
of error is dismissed because: (1) this argument goes only to the credibility of the testimony; and
(2) the Commission is the sole determiner of credibility.
2. Workers' Compensation--misapprehension of law-_date of specific traumatic
Although the Industrial Commission erred in a workers' compensation case by
concluding that plaintiff employee was disabled as a result of the 11 February 1999 specific
traumatic incident instead of the 5 February 1999 incident, the case is remanded based on the
Commission's misapprehension of the law to allow the Commission to make a new
determination applying the correct legal standard because: (1) a claim is sufficient under
N.C.G.S. § 97-24 if it identifies the accident and injury at issue and expresses an intent to invoke
the Commission's jurisdiction with respect to that injury; (2) the Form 18 filed in this case
specifically describes the accident at issue as occurring when plaintiff was changing a tractor
tire, which occurred on 5 February 1999, and to hold that this form is insufficient to constitute a
claim for the injury arising out of that incident simply based on the date of the incident listed on
the form as 11 February 1999 would be inconsistent with the law governing specific traumatic
incidents; (3) disputes as to the date of the actual injury raise a question of credibility that is
solely within the purview of the Industrial Commission; and (4) contrary to defendants'
contention, the doctors did not attribute plaintiff's inability to work solely to his depression.
Appeal by defendants from an Opinion and Award entered 6 May
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 28 April 2004.
Mitchell, Brewer, Richardson, Adams, Burge & Boughman, by
Vickie L. Burge, for plaintiff-appellee.
Lewis & Roberts, P.L.L.C., by Richard M. Lewis and ChristopherM. West, for defendants-appellants.
Defendants Berry's Clean-Up and Landscaping, Inc. and its
insurance carrier, North Carolina Farm Bureau Mutual Insurance
Company, appeal from an opinion and award of the North Carolina
Industrial Commission awarding plaintiff Jody Crane temporary total
disability benefits as a result of a back injury. Because our
review of the record reveals that the Commission may have rendered
its decision under a misapprehension of the law, we reverse and
remand this case for further proceedings.
On Friday, 5 February 1999, Mr. Crane, a landscaper, was
changing a rear tractor tire on his employer's backhoe with the
help of two co-workers. While Mr. Crane was pulling up on one side
of a large star wrench and his co-workers were pushing down, a lug
nut broke loose, jerking Mr. Crane. Mr. Crane first felt stiffness
in his back and then increasing pain in his lower back and right
hip. Mr. Crane had not previously experienced any back problems.
Mr. Crane did not immediately seek medical treatment, but
rather returned to work the next week. On Thursday, 11 February
1999, Mr. Crane was climbing out of his employer's dump truck when
he felt a "pop" in his back. Mr. Crane reported this incident tohis employer and, according to Mr. Crane, "told him it started
about a week ago when I did the tractor tire . . . ." Mr. Crane
testified that he understood from his employer that, as a matter of
policy, he could receive treatment only if he said the injury
occurred on 11 February 1999 rather than 5 February 1999. Mr.
Crane's employer allowed him to go home and agreed to make
arrangements for him to see the company doctor on Monday.
Mr. Crane did not return to work the next day even though he
was scheduled to work. On Saturday, 13 February 1999, he went to
the emergency room complaining of pain in his lower back that
extended into his right hip and down his right leg. Records from
his examination stated that the injury had happened about a week
earlier, but had gotten worse. Also on 13 February 1999, the
employer completed a Form 19 "Employer's Report of Injury to
Employee." The form stated that the injury occurred on 12 February
1999 when plaintiff was working with a tractor and "pulled wrong or
either twisted wrong causing injury to the lower back."
On Monday, 15 February 1999, Mr. Crane was examined by the
company doctors, U.S. Healthworks. The U.S. Healthworks records
report that Mr. Crane hurt his back on 11 February 1999 while
changing a tire and breaking lug nuts loose. U.S. Healthworks
removed Mr. Crane from work and referred him for physical therapy
and an MRI. When Mr. Crane was evaluated at PinehurstRehabilitation Center for Therapy, he reported that his injury was
due to trouble when loosening a nut on a large tire he was changing
and that the following week he had increased discomfort until he
later felt a sharp pinch in his right side when climbing out of a
U.S. Healthworks subsequently released Mr. Crane to return to
"light duty" work beginning 3 March 1999 with no lifting of more
than ten pounds; no prolonged standing or walking; no repetitive
bending or stooping; and no kneeling, squatting, climbing, pushing,
or pulling. Mr. Crane, however, testified that he was unable to
return to work due to his severe pain.
On 11 March 1999, Mr. Crane filed a Form 18 with the
Industrial Commission. He reported that he had suffered a back
injury on 11 February 1999 while "changing a tractor tire on a
company tractor." Defendants denied Mr. Crane's claim on 1 April
1999 and, because of that denial, U.S. Healthworks released him
from their care.
Following an MRI on 5 June 1999, Mr. Crane was referred to Dr.
Martin Chipman, a neurologist. On 15 June 1999, Mr. Crane provided
a history to Dr. Chipman, stating that he sustained an injury while
changing a tire on 5 February 1999 followed by a "pop" in his back
on 11 February 1999 when he exited a truck. When Mr. Crane's
condition did not improve with conservative treatment, Dr. Chipmanreferred him to Dr. Kevin Vaught, a neurosurgeon. Dr. Vaught
diagnosed a severe lumbar strain and severe spinal stenosis at L4
with clear neurogenic claudication symptoms. He recommended
surgery that was performed on 15 October 1999.
Following the surgery, Dr. Vaught referred Mr. Crane to a pain
management clinic where Mr. Crane saw Dr. Kenneth Oswalt. Dr.
Oswalt's report of Mr. Crane's medical examination on 18 April 2000
indicated that the date of the onset of Mr. Crane's condition was
5 February 1999. Dr. Oswalt found that Mr. Crane suffered from
chronic pain secondary to post-laminectomy syndrome of the lumbar
spine, piriformis muscle syndrome of the right lower extremity, and
bilateral L4-L5 facet joint syndrome. Dr. Oswalt also diagnosed
Mr. Crane as suffering from depression. Dr. Oswalt explained that
he had not determined the cause of the depression, but he noted
that Mr. Crane had no history of any problems with depression prior
to the injury.
In an opinion and award filed 28 February 2002, the deputy
commissioner awarded plaintiff temporary total disability benefits
beginning 12 February 1999 after concluding that Mr. Crane had
sustained injuries by accident on 5 February 1999 and 11 February
1999. Defendants appealed to the Full Commission. On 6 May 2003,
the Full Commission issued an opinion and award affirming and
modifying the deputy commissioner's order. The Full Commissionfound that Mr. Crane had injured himself while changing a tractor
tire on 5 February 1999 and had felt a "pop" while exiting his
employer's truck on 11 February 1999. Although the Commission
further found that Mr. Crane reported both incidents to his
employer, it stated that he "did not file a claim with respect to
[the 5 February 1999] incident." The Commission concluded
nonetheless that Mr. Crane's disability arose out of the 11
February 1999 incident and that he was accordingly entitled to
temporary total disability benefits beginning 12 February 1999.
Defendants timely appealed.
Standard of Review
On appeal from a decision of the Industrial Commission, this
Court must determine "'whether the record contains any evidence
tending to support the [Commission's] finding.'" Deese v. Champion
Int'l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000) (quoting
Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272,
274 (1965)). If those findings of fact are supported by competent
evidence, they are conclusive on appeal even though there may be
substantial evidence that would support findings to the contrary.
Id., 530 S.E.2d at 552-53. This Court then determines whether the
findings of fact support the Commission's conclusions of law, which
we review de novo. Boney v. Winn Dixie, Inc., 163 N.C. App. 330,
331, 593 S.E.2d 93, 95 (2004).
Under the Workers' Compensation Act, an employee who has
sustained disability as a result of a back injury is entitled to
compensation when the back injury was "the direct result of a
specific traumatic incident of the work assigned."
N.C. Gen. Stat.
§ 97-2(6) (2003). In their brief on appeal, defendants have not
contested the Full Commission's finding of fact that Mr. Crane was
injured when trying to change a tractor tire on a backhoe on 5
 With respect, however, to 11 February 1999, defendants
argue first that the evidence does not support the Commission's
finding that a specific traumatic incident occurred on that date.
Defendants point to Mr. Crane's inconsistent reports of when his
injury occurred. Since this argument goes only to the credibility
of the testimony and the Commission is the sole determiner of
credibility, we may not revisit this question. Adams v. AVX Corp.
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
 Defendants next argue that the evidence does not support
the Commission's finding that the 11 February 1999 incident caused
Mr. Crane's disability. The parties do not dispute that expert
testimony was required to establish causation in this case. See
Click v. Pilot Freight Carriers, Inc.
, 300 N.C. 164, 167, 265
S.E.2d 389, 391 (1980) (holding that when the exact nature andprobable genesis of a particular type of injury involves
complicated medical questions far removed from the ordinary
experience and knowledge of laymen, only an expert can give
competent evidence as to the cause of the injury).
Our review of the medical evidence reveals no support for the
Commission's finding that Mr. Crane's disability was caused by the
11 February 1999 specific traumatic incident, separate and apart
from the 5 February 1999 incident. All of the evidence attributes
Mr. Crane's back condition and pain to the 5 February 1999 incident
when Mr. Crane was attempting to change the tractor tire; none of
the evidence relates that condition and pain to the 11 February
1999 "pop" as a separate event. Because there was no expert
evidence of causation, we must reverse the Commission's decision
that Mr. Crane was disabled as a result of the 11 February 1999
specific traumatic incident.
Our Supreme Court has, however, mandated that if an appellate
court determines that the Commission made its findings of fact
under a misapprehension of the law, we must remand the case to
allow the Commission to make a new determination applying the
correct legal standard. Holley v. ACTS, Inc.
, 357 N.C. 228, 231,
581 S.E.2d 750, 752 (2003) ("'When the Commission acts under a
misapprehension of the law, the award must be set aside and the
case remanded for a new determination using the correct legalstandard.'" (quoting Ballenger v. ITT Grinnell Indus. Piping, Inc.
320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987))). It appears that
the Commission, in finding that Mr. Crane's disability was caused
by the 11 February 1999 incident, may have been acting under a
mistaken understanding of the law governing when a claim has been
In order for the Industrial Commission to have jurisdiction
over a claim, the employee must timely file a claim under N.C. Gen.
Stat. § 97-24 (2003). Murray v. Associated Insurers, Inc.
N.C. App. 506, 519, 442 S.E.2d 370, 379 (1994) ("Failure to timely
file a claim is a jurisdictional bar . . . ."), rev'd on other
, 341 N.C. 712, 462 S.E.2d 490 (1995). See also Reinhardt
v. Women's Pavilion, Inc.
, 102 N.C. App. 83, 84, 401 S.E.2d 138,
139 (1991) (the timely filing of a claim is a condition precedent
to the right to compensation). Although more informal documents
may be sufficient, "[c]laimants typically satisfy the requirement
that a 'claim' be filed with the Commission with the Industrial
Commission's Form 18, or Form 33, 'Request that Claim Be Assigned
for Hearing.'" J. Randolph Ward, Primary Issues in Compensation
, 17 Campbell L. Rev. 443, 472 (1995).
Here, on 11 March 1999, Mr. Crane filed a Form 18 stating that
he suffered a back injury that "was caused by changing a tractor
tire on a company tractor," resulting in "lower back pain andsometimes . . . pain in [his] right leg" _ an incident that the
parties agree occurred on 5 February 1999. It appears that the
Commission may have believed that because the form specified 11
February 1999 as the date of the injury, the Commission was
required to conclude that no claim was filed as to the 5 February
1999 incident. A "claim," however, is sufficient under
97-24 if it identifies the accident and injury at issue and
expresses an intent to invoke the Commission's jurisdiction with
respect to that injury.
Thus, in Cross v. Fieldcrest Mills, Inc.
, 19 N.C. App. 29, 198
S.E.2d 110 (1973), this Court found sufficient a letter from the
employee's lawyer to the Commission that referred to two injuries
resulting from accidents and requested that one hearing be held as
to both injuries since "[t]here may be some question about
aggravation of the pre-existing injury . . . ." Id.
at 31, 198
S.E.2d at 112. The letter did not mention the date of the first
injury, and as to the second injury, it only stated "the second
week of December 1968. . . . is as close as we can pinpoint it as
to time at this late date." Id.
at 30, 198 S.E.2d at 112. Compare
Tilly v. High Point Sprinkler
, 143 N.C. App. 142, 546 S.E.2d 404
(holding that the plaintiff, who suffered two distinct accidents,
did not timely file a claim as to the second accident when his Form
18 only mentioned the first accident and subsequent filings withthe Commission, although mentioning the second accident, did not
specifically seek review of it by the Commission), disc. review
, 353 N.C. 734, 552 S.E.2d 636 (2001).
Here, the Form 18 specifically describes the accident at issue
as occurring when Mr. Crane was changing a tractor tire. To hold
that this form is insufficient to constitute a claim for the injury
arising out of that incident _ simply because of the date of the
incident listed on the form _ would be inconsistent with the law
governing specific traumatic incidents. "While the case law
interpreting the specific traumatic incident provision of
97-2(6) requires the plaintiff to prove an injury at a
cognizable time, this does not compel the plaintiff to allege the
specific hour or day of the injury." Fish v. Steelcase, Inc.
N.C. App. 703, 708, 449 S.E.2d 233, 237 (1994) (reversing
Commission's denial of benefits when it was based on a finding that
the date specified in the Form 18 could not be accepted as
credible), cert. denied
, 339 N.C. 737, 454 S.E.2d 650 (1995).
Because the Form 18 filed in this case identified the specific
incident at issue and invoked the jurisdiction of the Commission,
it was sufficient to constitute a claim for benefits arising out of
the accident occurring when Mr. Crane was changing the tractor
tire. Disputes as to the date of the actual injury raise a
question of credibility that is solely within the purview of theIndustrial Commission.
Even though the Commission's apparent misapprehension of the
law ordinarily would lead to a remand, defendants have also argued
that the evidence does not support any finding that Mr. Crane's
disability was work-related regardless of the date of the accident.
If that were correct, no remand would be necessary. Specifically,
defendants argue that Mr. Crane's disability is due to his
depression and that there is no expert testimony that his
depression is the result of a work-related injury.
Contrary to defendants' contention, the doctors did not
attribute Mr. Crane's inability to work solely to his depression.
Dr. Vaught based his opinion that Mr. Crane could not work on Mr.
Crane's "need for continued narcotics, his continued back pain and
limitations of his range of motion in his back" and observed that
"there's no question he had a mental impairment as a combination of
frustration and long use of narcotics and chronic pain and
depression." Dr. Oswalt in turn testified that he did not "think
[Mr. Crane] mentally was able to work" and explained that "[h]e had
his pain as the primary problem. I think that was compounded by
Thus, while we agree the doctors' testimony suggests (1) that
they believed that Mr. Crane's depression played a role in his
disability and (2) that they had not yet determined the cause ofthat depression, their testimony also indicates that other work-
related factors _ including pain, use of narcotics for that pain,
and physical limitations _ joined with the depression to render Mr.
Crane unable to work.
Even when a work-related injury combines
with an entirely separate non-work-related disease or injury,
compensation is appropriate upon a showing that the work-related
injury significantly contributed to the employee's disability.
Weaver v. Swedish Imp. Maint., Inc.
, 319 N.C. 243, 252, 354 S.E.2d
477, 483 (1987) (holding that employee was entitled to total
disability benefits when a compensable heart attack combined with
three subsequent non-work-related heart attacks, resulting in a
total incapacity to work). The Commission could, therefore, find
that Mr. Crane's disability was caused by a work-related accident.
We agree with defendants, however, that the record does not support
any finding that this disability arose out of the 11 February 1999
exit from the truck as a separate incident from the 5 February 1999
We must, therefore, reverse the Commission's opinion and award
and remand for further findings. It appears based on the record
before this Court that Mr. Crane did file a claim based on the
tire-changing incident and that the Commission could, based on the
record, conclude that Mr. Crane was disabled as a result of an
injury arising out of that incident. Nonetheless, nothing in thisopinion is intended to preclude defendants from raising any
defenses that may be available with respect to the 5 February 1999
incident. We simply hold that the record as it appears before this
Court does not support the conclusion that Mr. Crane failed to file
a claim with respect to the 5 February 1999 incident.
Reversed and Remanded.
Judges BRYANT and ELMORE concur.
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