PAUL COOPER, Plaintiff, v. COOPER ENTERPRISES, INC., Employer,
COMPTRUST AGC, Carrier, Defendants
An Industrial Commission opinion denying compensation was affirmed where plaintiff
contended that an automobile accident was a direct and natural result of his prior compensable
arm injury, but there was competent evidence that the accident was caused by plaintiff jerking
his car to the left upon hitting gravel in the road. The employee bears the burden of establishing
the compensability of the claim, and the Commission did not err by finding that there was
insufficient evidence that the accident was caused by the prior compensable injury.
Appeal by Plaintiff from Opinion and Award of the North
Carolina Industrial Commission entered 29 September 2003. Heard in
the Court of Appeals 30 November 2004.
Hyler & Lopez, P.A., by George B. Hyler, Jr., for plaintiff-
Morris York Williams Surles & Barringer, LLP, by John F.
Morris, for defendant-appellees.
Plaintiff Paul Cooper asserts that
the full Industrial
Commission committed prejudicial error in denying his claim.
Cooper contends he submitted sufficient evidence for the Industrial
Commission to determine that the lack of mobility in his right arm
prevented him from regaining control of his automobile and avoiding
his 17 October 1998 automobile accident. Cooper contends that theautomobile
accident was therefore a direct and natural result of
his prior compensable injury. For the reasons stated herein, we
disagree and affirm the Industrial Commission's Opinion and Award.
The procedural and factual history of the instant appeal is as
follows: Cooper had worked in the construction field since 1966.
From 1986 through 1996, Cooper worked at Cooper Enterprises, Inc.,
a firm owned in part by Cooper's brother. Cooper had a history of
problems with his right shoulder. These were exacerbated when, on
25 September 1993, Cooper stepped on a piece of rebar while
carrying a roll of mesh wiring, lost his balance, and fell into an
embankment. He sustained crush injuries to the right side of his
upper body and had to undergo, inter alia, five surgical procedures
on his right shoulder.
Cooper Enterprises admitted the compensability of Cooper's
resulting workers' compensation claim and paid Cooper medical
compensation and disability benefits. In December 1997, Cooper's
physician, Donald D'Alessandro, M.D., found that, despite
treatment, Cooper retained a fifty percent partial impairment of
his right upper extremity and a one-hundred percent impairment of
his right shoulder. However, in March 1998, Dr. D'Alessandro
noted that Cooper has done quite well[,] that Cooper's shoulder
has not been bothering him[,] and that [n]o further treatment is
On 17 October 1998, Cooper was involved in a single-carautomobile accident. Cooper testified that gravel on the roadway
caused his vehicle to slide toward the right shoulder of the road,
where there was a steep drop-off. To avoid the embankment on the
right, Cooper turned his steering wheel sharply to the left,
causing his vehicle to veer toward an embankment on the other side
of the road. In Cooper's own words, when I started sliding, [the
car] went off just a little bit. Then when I pulled it back, you
know, I guess I jerked it or whatever and [the car], you know, shot
across the road. Cooper was unable to regain control, and his
vehicle went off the road and flipped over. As a result, Cooper
sustained serious injuries, including hip and leg fractures and
lacerations. Cooper alleged that his inability to regain control
of his vehicle and the subsequent accident and injuries were due to
his prior work injury to his right arm.
On 13 October 2000, Cooper filed a notice of accident,
alleging that his automobile accident constituted a compensable
claim because it was caused by his prior right upper extremity
disability. Defendants denied the claim. Deputy Commissioner
Bradley W. Houser filed an Opinion and Award on 21 August 2002
amended on 26 August 2002, awarding benefits to Cooper. Defendants
appealed to the full Industrial Commission, which, on 29 September
2003, overturned Deputy Commissioner Houser's Opinion and Award and
held that Cooper had failed to present sufficient evidence to show
that the 17 October 1998 automobile accident was a direct andnatural result of Cooper's prior compensable injury. Cooper
It is well-settled that the employee bears the burden of
establishing the compensability of a workers' compensation claim.
Holley v. ACTS, Inc.
, 357 N.C. 228, 231, 581 S.E.2d 750, 752
(2003). Our review of the Commission's opinion and award 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
, 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). The
Industrial Commission is the sole judge of the weight and
credibility of the evidence, and this Court 'does not have the
right to weigh the evidence and decide the issue on the basis of
its weight.' Adams v. AVX Corp.
, 349 N.C. 676, 681, 509 S.E.2d
411, 414 (1998) (quoting Anderson v. Constr. Co.
, 265 N.C. 431,
434, 144 S.E.2d 272, 274 (1965)).
Cooper contends that the lack of mobility in his right arm
prevented him from regaining control of his automobile and that the
accident was therefore a direct and natural result of his prior
compensable injury. A subsequent injury to an employee, whether
an aggravation of the original injury or a new and distinct injury,
is compensable only if it is the direct and natural result of a
prior compensable injury. Vandiford v. Stewart Equip. Co.
, 98N.C. App. 458, 461, 391 S.E.2d 193, 195 (1990) (citing Starr v.
Charlotte Paper Co.
, 8 N.C. App. 604, 610, 175 S.E.2d 342, 347
(1970)). An injury is not compensable, however, if it is the
result of an independent intervening cause attributable to
claimant's own intentional conduct. Our supreme court defines
intervening cause . . . as an occurrence entirely independent of a
prior cause. Heatherly v. Montgomery Components, Inc.
, 71 N.C.
App. 377, 379-80, 323 S.E.2d 29, 30 (1984) (citations omitted).
To show that the prior compensable injury caused the
subsequent injury, the 'evidence must be such as to take the case
out of the realm of conjecture and remote possibility, that is,
there must be sufficient competent evidence tending to show a
proximate causal relation.' Holley
, 357 N.C. at 232, 581 S.E.2d
at 753 (quoting Gilmore v. Hoke County Bd. of Educ.
, 222 N.C. 358,
365, 23 S.E.2d 292, 296 (1942)). Although expert testimony as to
the possible cause of a medical condition is admissible . . ., it
is insufficient to prove causation, particularly when there is
additional evidence or testimony showing the expert's opinion to be
a guess or mere speculation. Id
. at 233, 581 S.E.2d at 753
(internal quotation and citations omitted).
Here, the record reflects that, as Cooper approached a curve
in the roadway, gravel caused his vehicle to slide to the right.
In an attempt to avoid falling into an embankment on the right,
Cooper intentionally steered sharply to the left, in his own wordsjerking his vehicle and thereby causing it to veer toward an
embankment on the other side of the road. While Cooper alleged
that his prior work injury to his right arm
caused the accident,
the record reveals little evidence to support this contention
only relevant medical evidence produced was limited testimony by
Dr. D'Alessandro, who characterized his testimony as
conjecture by someone who is no expert in th[e] area of driving
with impaired extremities. Dr. D'Alessandro
stated that it's just
conjecture, but I imagine that the right arm could really only be
used to steady the wheel to re-grip it with the left[.]
Meanwhile, prior to the accident, Dr. D'Alessandro
Cooper has done quite well[,] that Cooper's shoulder has not
been bothering him[,] and that [n]o further treatment is
necessary. Moreover, Dr. D'Alessandro
testified that he did not
see Cooper for ten months after the automobile accident, that he
was not involved in any way with the accident, and that the
accident was not relevant at the time that he saw Cooper for
To support his argument that his accident was a result of his
prior compensable injury
, Cooper cited several cases where a
subsequent accident was found to be a direct and natural result of
a prior compensable injury. These cases are, however, easily
distinguishable. In Horne v. Universal Leaf Tobacco Processors
119 N.C. App. 682, 459 S.E.2d 797 (1995), the plaintiff sustaineda compensable injury to his back. While the plaintiff was still in
the process of recovering from that injury, he was involved in an
automobile accident. The plaintiff's work injury had not yet
stabilized at the time of the accident, and it was undisputed that
the accident was not caused by the plaintiff's 'own intentional
. at 687, 459 S.E.2d at 800-01.
resulting from the automobile accident
were therefore not the
product of an independent, intervening cause and were thus
compensable. Similarly, in Heatherly
, 71 N.C. App. 377, 323 S.E.2d
29, the plaintiff fractured a bone that was still healing from a
prior compensable fracture. The evidence showed that the relevant
bone had been weakened by the prior compensable fracture, and the
subsequent injury was therefore compensable. In Starr
, 8 N.C. App.
604, 175 S.E.2d 342, the plaintiff had been paralyzed from the
waist down in a work-related accident. Several years later, while
in bed, the plaintiff sustained severe burns from a fire started by
his cigarette. This Court affirmed the Industrial Commission's
finding that the burns were compensable, both because the plaintiff
put his cigarette on his wheelchair due to muscle spasms in his
legs resulting from his prior compensable injury, and because the
plaintiff was incapable of perceiving that his bed and legs had
caught on fire because of the prior compensable injury. Id
609-11, 175 S.E.2d at 346-47.
Here, in contrast, the Industrial Commission found that theevidence was insufficient from which to find that the 17 October
1998 car accident was the result of Cooper's prior compensable
injury. Indeed, there was competent evidence that the accident and
injuries were caused by Cooper's jerking his car to the left upon
hitting gravel in the road. Though Cooper testified that, had he
retained full use of his arm, he would have had more control over
his vehicle, the evidence supports the Industrial Commission's
finding that the evidence did not suffice to show that he would
have avoided the accident. The evidence also showed that Cooper's
prior injury had stabilized by the time Cooper had the accident.
The Industrial Commission therefore did not err in finding that
there was insufficient evidence to find that Cooper's automobile
accident was caused by, or a natural and direct result of, his
prior compensable injury.
These findings in turn support the
Industrial Commission's conclusion that Cooper's automobile
accident injuries were not compensable.
(See footnote 1)
Accordingly, we affirm the Industrial Commission's Opinion and
Judges HUDSON and ELMORE concur.
Footnote: 1 However, this opinion does not address and does not
preclude Cooper's possible ongoing entitlement to disability
benefits and medical treatment for his admittedly compensable
prior right arm injury.
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