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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.
FRANK P. FLYNN, Employee, Plaintiff, v. EPSG MANAGEMENT SERVICES,
Employer, RSKCO, Carrier, Defendants
Filed: 5 July 2005
Workers' Compensation--compensable occupational injury--cameraman's shoulder
An injury to a cameraman's shoulder resulted from causes and conditions characteristic
of his employment as a cameraman, and competent evidence in the record supported the
Industrial Commission's award of workers' compensation benefits. The injury is not an ordinary
disease of life to which the general public is exposed.
Appeal by defendants from opinion and award entered 3 June
2004 and amendment to opinion and award entered 14 June 2004 by
Commissioner Thomas J. Bolch for the North Carolina Industrial
Commission. Heard in the Court of Appeals 15 June 2005.
Leah L. King, for plaintiff-appellee.
Hedrick & Morton, L.L.P., by G. Grady Richardson, Jr. and
Stephen E. Coble, for defendants-appellants.
EPSG Management Services and its insurance carrier, RSKCO,
(collectively, defendants) appeal the opinion and award of the
Full Commission of the North Carolina Industrial Commission (the
Commission) which concluded Frank P. Flynn (plaintiff) suffered
a compensable occupational disease. We affirm.
From April through July 2001, plaintiff worked as a camera
operator on a Showtime Entertainment project entitled, Going to
California. On average, he worked twelve hours a day, five to six
days per week. Plaintiff utilized a hand-held camera about twenty-five to thirty percent of the time. He would pick the camera up
and rest it on his shoulder while moving and contorting his body to
obtain the correct filming angle. The camera weighed thirty to
On 20 July 2001, plaintiff reached across his body with his
left arm to pick up his camera. As he lifted the camera, plaintiff
experienced a sudden, piercing pain in his left arm. Plaintiff
described the pain as stabbing initially, followed by numbness.
Prior to 20 July 2001, plaintiff had noted some tightness and
stiffness in his shoulder. However, plaintiff presumed it was
caused by fatigue from the long hours he worked.
Plaintiff sought medical attention from his primary physician,
Dr. Alan Jackson (Dr. Jackson), on 30 July 2001 and complained of
left shoulder pain. Plaintiff provided Dr. Jackson a history that
he had used his left shoulder a bit too much these past few weeks
shooting a movie. Plaintiff was sent for a shoulder x-ray and an
MRI was later performed on 29 August 2001. After receiving the MRI
results, Dr. Jackson scheduled an appointment for plaintiff with
Dr. David A. Esposito (Dr. Esposito) on 13 September 2001. At
that time, Dr. Jackson's diagnosis of plaintiff's complaint was
distal supraspinatus tendonosis.
Plaintiff remained out of work during this time. His first
appointment with Dr. Esposito was on 12 October 2001. At that
time, Dr. Esposito noted plaintiff to be tender over the front
part of his shoulder. Dr. Esposito felt plaintiff would benefit
from arthroscopic surgery. Dr. Esposito further indicated that herestricted plaintiff to light duty jobs with no use of the left
arm, if such work was available.
On 6 December 2001, Dr. Esposito performed arthroscopic
surgery on plaintiff. Dr. Esposito located a tear in plaintiff's
rotator cuff and also noted plaintiff had synovitis, i.e.
inflammation of the joint lining. Dr. Esposito testified that the
synovitis was most likely reactive in nature from the 20 July
2001 injury. Plaintiff remained out of work and his condition did
not improve. Plaintiff underwent a separate treatment for his
ailing shoulder by Dr. Esposito.
Plaintiff made efforts to find other employment which would
not require the use of his left shoulder. He enjoyed little
success. At the time of the injury, plaintiff was fifty-six years
old with a high school education. The majority of his career was
spent in the motion picture industry.
Plaintiff filed a Form 18 on 27 December 2001 describing his
injury as left shoulder. An amended Form 18 was filed on 2 July
2002, alleging trauma in the employment pursuant to N.C.G.S. 97-
53(20) and adding synovitus as a listed injury or occupational
disease. Synovitus, caused by trauma in employment is enumerated
as an occupational disease in N.C. Gen. Stat. § 97-53(20).
RSKCO denied plaintiff's claim asserting, Mr. Flynn did not
sustain a compensable injury by accident . . . . and the case was
assigned for hearing. A pretrial order was filed declaring the
issues to be determined, in part whether plaintiff sustained: (1)
a compensable injury by accident under N.C. Gen. Stat. § 97-2(2);and (2) an occupational disease as defined by N.C. Gen. Stat. § 97-
The case was heard before the deputy commissioner on 24
September 2002. The deputy commissioner filed an opinion and award
on 28 January 2003 finding plaintiff's rotator cuff tear was an
occupational disease. The order was later amended on 10 February
2003 to change plaintiff's average weekly wage. Defendants
appealed to the Commission and the case was heard on 8 July 2003.
The Commission ordered the record to be reopened on 9 July 2003 for
plaintiff to undergo a functional capacity evaluation.
On 3 June 2004, the Commission filed its opinion and award
affirming the deputy commissioner's opinion and award that
plaintiff suffers from a compensable occupational disease. The
Commission's opinion and award included the following stipulations
by the parties:
The issues before the Full Commission are: (i)
whether plaintiff sustained a compensable
injury by accident arising out of and in the
course of his employment with defendant-
employer on 20 July 2001; (ii) whether
plaintiff contracted an occupational disease
arising out of and in the course of his
employment with defendant-employer; and (iii)
if so, what compensation, if any, is due
An amendment to the opinion and award was filed on 14 June
2004 to change plaintiff's average weekly wage. Defendants appeal.
The issue on appeal is whether competent evidence supports the
Commission's findings of fact and conclusions of law that plaintiff
suffered a compensable occupational injury.
III. Standard of Review
The appropriate appellate standard of review in appeals
arising from decisions by the Commission is well established. In
reviewing an order and award of the Industrial Commission in a case
involving workmen's compensation, [an appellate court] is limited
to a determination of (1) whether the findings of fact are
supported by competent evidence, and (2) whether the conclusions of
law are supported by the findings. Moore v. Federal Express, 162
N.C. App. 292, 297, 590 S.E.2d 461, 465 (2004) (quotation omitted).
As long as the Commission's findings are supported by competent
evidence of record, they will not be overturned on appeal.
Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d
121, 124 (2002) (citation omitted).
Although on appeal the Commission's findings of fact are
conclusive where supported by competent evidence, findings of fact
by the Commission may be set aside on appeal when there is a
complete lack of competent evidence to support them. Young v.
Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000)
(internal citations and quotations omitted). Further, the
Industrial Commission's conclusions of law are reviewable de novo.
Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341, 348, 581
S.E.2d 778, 783 (2003) (citing Lewis v. Craven Regional Medical
Center, 122 N.C. App. 143, 468 S.E.2d 269 (1996)).
IV. Compensable Occupational Injury
Defendants argue the Commission erred in determining
plaintiff's injury qualified as compensable occupational injury.
An occupational disease is compensable if the disease is
proven to be due to causes and conditions which are characteristic
of and peculiar to a particular trade, occupation or employment,
but excluding all ordinary diseases of life to which the general
public is equally exposed outside of the employment. N.C. Gen.
Stat. § 97-53(13) (2003); Thomason v. Fiber Indus., 78 N.C. App.
159, 161, 336 S.E.2d 632, 633 (1985), disc. rev. denied, 316 N.C.
202, 341 S.E.2d 573 (1986).
There are three elements which are necessary
for the plaintiff to prove in order to show
the existence of a compensable occupational
disease under N.C. Gen. Stat. § 97-53(13): (1)
the disease must be characteristic of persons
engaged in a particular trade or occupation in
which the plaintiff is engaged; (2) the
disease must not be an ordinary disease of
life to which the public is equally exposed;
and (3) there must be a causal connection
between the disease and the plaintiff's
Jarvis v. Food Lion, Inc., 134 N.C. App. 363, 367, 517 S.E.2d 388,
391 (citing Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d
101, 105-06 (1981)), disc. rev. denied, 351 N.C. 356, 541 S.E.2d
Plaintiff proffered substantial evidence that his injury
resulted from his employment as a cameraman. Dr. Esposito
testified that plaintiff's job, which involved significant overhead
activity, predisposed plaintiff to, and placed him at a greater
risk for, rotator cuff and shoulder problems, than the generalpublic. Dr. Esposito stated that plaintiff's job as a cameraman
required him to contort his body into different positions to get
the correct camera angle, operate and lift over his head cameras of
varying weight, and work long hours. These factors differentiated
plaintiff's employment from that of the general population. Dr.
Esposito further opined that because of the constant overhead
activity, the incident on 20 July 2001 was the final straw that
broke the camel's back.
Based on our review of the record, depositions, and
transcripts, competent evidence exists to support the Commission's
conclusion of law that: (1) [p]laintiff developed a rotator cuff
tear and further medical complications due to causes and conditions
characteristic of and peculiar to his employment . . . .; and (2)
[t]his rotator cuff tear and further medical complications is not
an ordinary disease of life to which the general public not so
employed is equally exposed, and is, therefore, an occupational
disease. See Jarvis, 134 N.C. App. at 367, 517 S.E.2d at 391
(three elements necessary to show a compensable occupational
disease under N.C. Gen. Stat. § 97-53(13)); Rackley, 153 N.C. App.
at 472, 570 S.E.2d at 124 (As long as the Commission's findings
are supported by competent evidence of record, they will not be
overturned on appeal.). Defendants' assignment of error is
Plaintiff's injury resulted from causes and conditions
characteristic of his employment as a cameraman. The injury is notan ordinary disease of life to which the general public is exposed.
Competent evidence in the record supports the Commission's findings
of fact and conclusions of law. The Commission's opinion and award
Judges MCCULLOUGH and BRYANT concur.
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