DENISE J. PARKER,
Employee-Plaintiff
North Carolina
v. Industrial Commission
I.C. No. 210741
THE WACKENHUT CORP.,
Employer-Defendant
and
CAMBRIDGE INTEGRATED SERVICES,
Servicing Agent-Defendant
No brief filed for plaintiff-appellee.
Teague, Campbell, Dennis & Gorham, L.L.P., by Jan N. Pittman
and Jacob H. Wellman, for defendants-appellees.
MARTIN, Chief Judge.
Defendant-employer appeals from an opinion and award of the
North Carolina Industrial Commission (“the Commission”) awarding
temporary total and permanent partial disability benefits to
plaintiff-employee for an injury to her left knee. We affirm.
Competent evidence of record tends to show that plaintiff
began working for The Wackenhut Corporation (“defendant”) on 2
February 2001, as a food service supervisor at Rivers Correctional
Institution in Winton, North Carolina. While at work on themorning of 22 August 2001, plaintiff slipped and fell on a wet
floor in the prison's kitchen, landing on her right hip with her
left leg splayed to the side. Plaintiff did not require medical
attention on 22 August 2001, but sought treatment at the emergency
room of Roanoke-Chowan Hospital on 27 August 2001, where she
complained primarily of pain in her right hip but “let them know
that it was some [left] knee pain, also.” Plaintiff was diagnosed
with a bruised hip and missed work for two days. Plaintiff
returned to work on 3 September 2001, but continued to experience
“knee pain and hip pain,” which she alleviated by “taking breaks
and sitting down.” On 31 October 2001, plaintiff had to leave work
in a wheelchair due to the pain and swelling in her left knee. The
next day, 1 November 2001, she went to see her orthopedist, Dr.
Lawrence Norman Larabee, Jr., who had previously performed an
anterior cruciate ligament (ACL) reconstruction on her left knee in
1999. Based on his examination of plaintiff on 1 November 2001,
Dr. Larabee took plaintiff out of work. A subsequent MRI of the
knee revealed a degenerative meniscal tear and “tenuated fibers” of
the reconstructed ACL. When more conservative treatment proved
unsuccessful, Dr. Larabee performed arthroscopic surgery on
plaintiff's knee on 8 April 2002. In addition to the meniscal tear
revealed by the MRI, arthroscopy confirmed that plaintiff's
reconstructed ACL was torn and stretched. Based upon his findings,
Dr. Larabee performed a “partial medial and lateral meniscectomy,
[a]nterior cruciate ligament debridement of the patello femoral
joint and chondroplasty” on plaintiff's knee. Following defendant's denial of her workers' compensation
claim, plaintiff filed a Form 33 requesting a hearing before a
deputy commissioner. Deputy Commissioner Wanda Blanche Taylor
conducted the hearing on 13 May 2002, and determined that
additional medical evidence was required to resolve plaintiff's
claim. On 7 October 2002, the deputy commissioner submitted
written questions to Dr. Larabee with instructions to “answer all
opinion questions to a reasonable degree of medical certainty, that
is what is probable, but not merely possible.” For purposes of his
responses, Dr. Larabee was asked to assume the following facts,
which are consistent with the subsequent findings of the
Commission:
Plaintiff was initially referred to you in
August 1999 for complaints of the left knee.
Plaintiff was employed with defendant-employer
as a food service supervisor . . . . On
August 22, 2001, plaintiff slipped on the
cement floor landing on her buttocks in an
awkward position. Her right leg was out to
the front of her and her left leg was out to
the side. Plaintiff did not receive medical
treatment that day and finished work. By
August 27, 2001, plaintiff continued to be in
pain and was treated at the Roanoke Chowan
Hospital emergency room where she was
diagnosed with a bruised hip but also
complained of left knee pain. . . . On
September 3, 2001, plaintiff returned to her
job performing her regular duties. On October
31, 2001, plaintiff's pain became so bad that
she had to be wheeled out of her employment in
a wheelchair. . . . [O]n November 1, 2001
plaintiff presented to you complaining of left
knee pain. . . . [F]ollowing conservative
treatment on April 8, 2002, plaintiff
underwent a partial medial and lateral
meniscectomy, interior cruciate ligament
debridement of the patellofemoral joint and
chondroplasty.
He responded to the questions as follows:
Please identify the nature of the condition or
conditions for which you treated [plaintiff]
beginning on November 1, 2001.
Left knee pain[.] Statically intact knees
with mild to moderate degenerative changes.
Was the condition or injury . . . caused,
aggravated or accelerated by the incident on
August 22, 2001 in the assumed facts as noted
above?
Yes.
Based upon the foregoing facts, your
evaluation and treatment of [plaintiff] and
your clinical experience, do you have an
opinion satisfactory to yourself and to a
reasonable degree of medical certainty, what,
if any, injury she sustained to her knee as a
result of the August 22, 2001 fall?
Yes.
Was the condition which plaintiff originally
presented to you in August 1999 one from which
plaintiff retained any permanent impairment .
. . ?
No.
If plaintiff's November 1, 2001 injury was
caused, aggravated or accelerated by the
August 22, 2001 [incident] described above,
did plaintiff sustain any permanent impairment
as a result of the injury or injuries and if
so what percentage of permanent impairment and
to what portion of the body did plaintiff
sustain such impairment?
10% (ten) due to the decreased range of motion
and persistent pain. Left knee[.]
(Italics added to denote responses). In light of Dr. Larabee's
responses, the deputy commissioner awarded plaintiff temporary
total and permanent partial disability benefits to plaintiff on 29
July 2003, finding that she sustained a compensable injury to herknee on 22 August 2001.
Defendant appealed to the Full Commission. On 13 February
2004, the Full Commission entered an order remanding the matter to
allow defendant to depose Dr. Larabee. Dr. Larabee's deposition
was taken on 27 April 2004, and the transcript was transmitted to
the Full Commission as part of the record.
In affirming the deputy commissioner's award with
modifications, the Full Commission found, in pertinent part, as
follows:
3. In 1999, plaintiff was treated by Dr.
Lawrence N. Larabee Jr. for complaints of left
knee pain. Plaintiff . . . was diagnosed with
degenerative changes of her left knee as well
as an ACL tear. Plaintiff underwent an ACL
reconstruction on November 24, 1999, which was
performed by Dr. Larabee. Plaintiff healed
successfully and was able to return to work at
regular duty.
. . . .
6. On August 22, 2001, while performing her
regular duties with defendant-employer,
plaintiff slipped on the cement floor and
landed on her buttocks in an awkward position.
Her right leg was out in front of her and her
left leg was out to the side. This
constituted a compensable injury by accident.
7. By August 27, 2001, plaintiff continued to
be in pain and was treated at the Roanoke
Chowan Hospital emergency room, where she was
diagnosed with a bruised hip but also
complained of left knee pain. Plaintiff was
taken out of work for two days.
. . . .
9. Plaintiff continued to experience left
knee pain, and on October 31, 2001,
plaintiff's pain became so bad that she had to
be wheeled out of her employment in a
wheelchair.
10. On November 1, 2001, plaintiff presented
to Dr. Larabee complaining of knee pain with
decreased motion of her left knee. . . . On
that date, plaintiff indicated that she had
sustained an injury at work. The Full
Commission finds this injury to be compensable
under the Workers' Compensation Act.
11. Dr. Larabee suspected a re-tear of the
cartilage in plaintiff's left knee. An MRI
confirmed a meniscal tear. . . .
. . . .
15. Plaintiff, on April 8, 2002, underwent a
partial medial and lateral meniscectomy,
[a]nterior cruciate ligament debridement of
the patellofemoral joint and chondroplasty of
the left leg, which was performed by Dr.
Larabee.
. . . .
20. Dr. Larabee was of the opinion, and the
Full Commission finds as fact, that
plaintiff's injuries were consistent with a
meniscal injury that occurred from a slip and
fall that likely happened as plaintiff
described on August 2[2], 2001. Dr. Larabee
was further of the opinion, and the Full
Commission finds as fact, that plaintiff has
been reasonable and truthful and has no reason
to suspect that plaintiff was not telling the
truth regarding the August 2[2], 2001, injury
of her left knee.
21. The Deputy Commissioner found, and the
Full Commission equally finds, plaintiff's
testimony to be deemed credible in
consideration of plaintiff's demeanor, her
testimony, and all the other evidence of
record.
22. On August 22, 2001, plaintiff sustained
an injury to her left knee that is compensable
under the NC Workers' Compensation Act.
The Commission awarded plaintiff temporary total disability
compensation of $288.54 per week for the periods of 1 November
through 27 December 2001, and 8 April through 29 May 2002, and permanent partial disability compensation of $288.54 per week for
20 weeks based upon the 10% permanent impairment of her left leg.
On appeal, defendant claims that the evidence before the
Commission did not support a “finding that plaintiff sustained an
injury to her left knee as the result of the incident occurring on
or about August 22, 2001.” We disagree.
Under the familiar standard of review in workers' compensation
cases, the Commission's findings of fact are deemed binding and
conclusive on appeal if supported by any competent evidence of
record. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d
695, 700 (2004). Here, Dr. Larabee's responses to the deputy
commissioner's written questions are competent evidence that
plaintiff's disabling knee injury was “caused, aggravated or
accelerated” by her accidental fall at work on 22 August 2001.
Moreover, when asked at his 27 April 2004 deposition whether his
opinion had changed since making these responses, Dr. Larabee
replied, “No, ma'am.” He explained that the tear to plaintiff's
ACL was indicative of a traumatic injury, rather than degenerative
changes, and was consistent with the history reported by plaintiff
of a slip and fall on 22 August 2001, and subsequent onset of knee
pain. While conceding he had no “independent knowledge of how
[plaintiff] hurt her knee, other than what she's told [me,]” Dr.
Larabee further noted, “but that's how I always find out about a
patient's injuries and . . . what's happened to them is by their
history.”
Defendant points to the absence of any reference to knee painin the records from plaintiff's visit to the emergency room on 27
August 2001. However, plaintiff testified that she presented at
the hospital with both hip and knee pain, although she complained
primarily of the contusion to her hip. As finder of fact, the
Commission was entitled to credit plaintiff's testimony on this
issue. See generally Anderson v. Construction Co., 265 N.C. 431,
433-34, 144 S.E.2d 272, 274 (1965).
Defendant also notes Dr. Larabee's response to a hypothetical
scenario posed by defendant's counsel, in which he was asked to
assume the following:
That when [plaintiff] fell in August of 2001
she did not sustain any injury to her left
knee, that she had . . . a bruise to her right
hip for which she sought medical treatment at
Roanoke-Chowan Hospital on August 27 of 2001.
. . . And on October 31, 2001 she began
experiencing left knee pain. And then she
returned to see you on November 1, 2001 and at
that time reported to you a one-day history of
knee pain.
(Emphasis added). “Based on that information alone and no other
information,” Dr. Larabee agreed that he would be “unable to state
to a reasonable degree of medical certainty that the condition for
which [plaintiff was] treated . . . on November 1, 2001 was related
to a fall she sustained in August, 2001.” Inasmuch as the material
facts of defendant's hypothetical are contrary to those found by
the Commission, however, any opinion based thereon is incompetent
on the issue of causation. See Thacker v. City of Winston-Salem,
125 N.C. App. 671, 675, 482 S.E.2d 20, 23, disc. review denied, 346
N.C. 289, 487 S.E.2d 571 (1997).
In a second, alternative argument, defendant excepts to theCommission's finding “that it had no reason to suspect that
plaintiff was not telling the truth.” We conclude that this
assignment of error does not provide a cognizable ground for relief
on appeal. It is well established that “[t]he Commission is the
sole judge of the credibility of the witnesses and the weight to be
given their testimony.” Anderson, 265 N.C. at 433-34, 144 S.E.2d
at 274. Moreover, “the Commission does not have to explain its
findings of fact by attempting to distinguish which evidence or
witnesses it finds credible. . . . The Commission's credibility
determinations . . . cannot be the basis for reversing the
Commission's order absent other error.” Deese v. Champion Int'l
Corp., 352 N.C. 109, 116-17, 530 S.E.2d 549, 553 (2000).
The record on appeal contains additional assignments of error
not addressed by defendant in its brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
Affirmed
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***