Appeal by Plaintiff from Opinion and Award entered 17 June
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 20 September 2005.
Brimbaugh, Mu & King, by Nicole D. Wray, for plaintiff-
appellant.
Hedrick, Eatman, Gardner & Kincheloe, LLP, by Tracie H.
Brisson and Erica B. Lewis, for defendant-appellees.
WYNN, Judge.
In this workers' compensation appeal, Kevin Rooker contends
that the full Commission erred in concluding that his medical
condition of shingles was not related to his compensable back
injury, and that he was no longer disabled as a result of his
original compensable back injury. After carefully reviewing the
record on appeal, we hold the Commission's findings of fact aresupported by competent evidence and those findings of fact support
its conclusions of law. Therefore, we affirm the Opinion and Award
of the Industrial Commission.
The evidence in the record tends to show that Mr. Rooker
worked as an assistant manager at Food Lion in New Bern, North
Carolina. On 5 February 2000, while disassembling a display, Mr.
Rooker twisted his back, causing immediate pain in his back and his
right leg. The next day he sought treatment at a local emergency
room where he was diagnosed with a back strain and given two days
off from work, and, thereafter, eight to ten days of light duty.
On 8 February 2000, Mr. Rooker saw Dr. Joseph McCabe for
complaints of lower back pain. Dr. McCabe diagnosed Mr. Rooker
with low back pain in his right side and herpes zoster to the right
inguinal area. On 14 February 2000, Dr. McCabe released Mr. Rooker
to return to work with a five pound lifting restriction and no
bending, prolonged standing, squatting or pulling for seven days.
Dr. McCabe continued treating Mr. Rooker for his low back pain
and his herpes zoster from February 2000 through April 2000. An
MRI of Mr. Rooker's lumber spine on 22 February 2000 revealed no
disc abnormalities. By 25 February 2000, Dr. McCabe's notes state
that Mr. Rooker's back pain was “significantly better,” but that
Mr. Rooker still had a right inguinal rash from the herpes zoster
condition. Dr. McCabe expected full discharge regarding Mr.
Rooker's injury within one month.
On 14 March 2000, at Mr. Rooker's request, Dr. McCabe referred
him to Dr. Cynthia Lopez, a board certified expert in the field ofneurology and nerve conduction studies. Mr. Rooker began treating
with Dr. Lopez on 21 March 2000. Dr. Lopez testified that Mr.
Rooker had two separate issues: (1) back pain; and (2) shingles.
Dr. Lopez conducted nerve conduction studies to determine the cause
of the pain in Mr. Rooker's anterior thigh. Dr. Lopez found there
was no “evidence on the EMG to suggest that the right thigh
numbness was caused by a radicular process in his [Mr. Rooker's]
back.” Dr. Lopez opined that Mr. Rooker's symptoms of numbness,
tingling, and pain were associated with the shingles outbreak, and
that he did not need further diagnostic testing. She further
testified that Mr. Rooker's shingles and post-herpetic neuralgia
were separate conditions from his back/pain lifting injury, but
that she was “not sure” whether a physical injury such as Mr.
Rooker's back strain could trigger the shingles virus.
Mr. Rooker next received treatment from Dr. Angelo Tellis from
19 July 2000 through 8 November 2000. Dr. Tellis diagnosed Mr.
Rooker with myfascial pain and ordered a course of physical therapy
and prolotherapy. Dr. Tellis also noted that Mr. Rooker suffered
from lateral femoral cutaneous neuropathy which accounted for Mr.
Rooker's neurologic pain complaints. Dr. Tellis opined that Mr.
Rooker's lumbar strain and shingles were very different disease
processes, and explained that “I don't think that it can be
determined with any degree of confidence exactly what causes an
outbreak of shingles.” On 8 November 2000, Dr. Tellis released Mr.
Rooker at maximum medical improvement with a zero percent permanentpartial disability rating to his back from the February 2000
lifting injury.
After being released by Dr. Tellis, Mr. Rooker requested a
second opinion and specifically requested a referral to Dr. William
Richardson, an orthopaedic surgeon at Duke. Food Lion made the
referral. Dr. Richardson reviewed the records, determined Mr.
Rooker did not likely need to see a surgeon, and instead
recommended Mr. Rooker to Dr. Anna Bettendorf.
Dr. Bettendorf, a board certified physician in both physical
medicine and rehabilitation and electrodiagnostic studies,
performed a battery of tests on Mr. Rooker to address a plethora of
complaints, including lower back discomfort, right side numbness,
aching, pain in his shoulders, constipation, and trouble sleeping.
All of the tests performed by Dr. Bettendorf on Mr. Rooker were
well within normal limits. Dr. Bettendorf also opined that Mr.
Rooker's shingles condition was a separate problem that was not
caused by his lifting incident. She testified that there is no
medical literature linking shingles to a back strain, and that a
lumbar strain would not cause a shingles flare-up. Dr. Bettendorf
concluded that Mr. Rooker had no permanent impairment and that he
should resume his normal daily activities, including work as an
assistant store manager.
On 12 February 2001, Mr. Rooker sought treatment with Dr. Paul
B. Suh of the North Carolina Spine Center. Dr. Suh diagnosed Mr.
Rooker with “lumbar degenerative disc disease” and recommended Mr.
Rooker undergo a thorocolombar diskogram. This was performed on 20February 2001, and the results were normal. Mr. Rooker returned to
Dr. Suh on 26 March 2001. Dr. Suh diagnosed Mr. Rooker with low
back pain and issued work restrictions.
During his treatment with the various physicians, Mr. Rooker
returned to work on several occasions. He was in and out of work
between 5 February 2000 and 18 March 2001. On 2 March 2000, Food
Lion filed a Form 19, reporting Mr. Rooker's injury. Block 26 of
the form indicates Mr. Rooker did not miss work due to his injury.
Because Mr. Rooker initially lost no time from work, Food Lion
treated his claim as a medical-only claim and paid Mr. Rooker his
regular salary when he missed sporadic time from work. Food Lion
completed a Form 60 when Mr. Rooker went completely out of work in
August 2000, formally accepting Mr. Rooker's claim for a low back
strain stemming from the 5 February 2000 juice lifting incident.
At that time, Mr. Rooker began receiving workers' compensation
indemnity benefits.
Food Lion filed a Form 28B with the Industrial Commission
after Mr. Rooker returned to work his regular job with a full-duty
release on 19 March 2001. Although Mr. Rooker returned to his pre-
injury job at the same wages, he left within a few hours
complaining of pain. After 19 March 2001, Mr. Rooker requested a
one year leave of absence. Mr. Rooker was terminated when he did
not return to work after his one year leave of absence.
This case came for hearing before Deputy Commissioner Adrian
A. Phillips, who concluded that Mr. Rooker's shingles and
depression were not related to his compensable back injury, andthat Mr. Rooker was no longer disabled as a result of his original
compensable back injury. On 17 June 2004, the full Commission
filed an Opinion and Award affirming the prior award. Mr. Rooker
appealed.
In his first argument on appeal, Mr. Rooker contends that Food
Lion accepted his shingles claim by failing to file the appropriate
workers' compensation forms and by paying medical bills related to
his shingles condition. Though we question the validity of these
arguments, we do not reach the merits of either argument because
there are no corresponding assignments of error in the record on
appeal.
See N.C. R. App. P. 10(a) (2004)
(“[T]he scope of review
on appeal is confined to consideration of those assignments of
error set out in the record on appeal[.]”). North Carolina Rule of
Appellate Procedure Rule 28(b)(6) states, “[a]ssignments of error
not set out in the appellant's brief, or in support of which no
reason or argument is stated or authority cited, will be taken as
abandoned.”
See N.C. R. App. P. 28(b)(6)
(2004).
Thus, the
arguments contained in Mr. Rooker's brief which do not correspond
to an appropriate assignment of error are not properly before this
Court.
Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11
(1994) (holding that, if the issues presented in an appellant's
brief do not correspond to an assignment of error, the issues
raised in the brief will not be considered by this Court);
see also
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360,
361 (2005) (holding that the North Carolina Rules of AppellateProcedure are mandatory). Furthermore, Mr. Rooker's failure to
raise these issues before the full Commission waives appellate
review of these issues.
See N.C. R. App. P. 10(b)(1) (2004) (“In
order to preserve a question for appellate review, a party must
have presented to the trial [tribunal] a timely request, objection
or motion stating the specific grounds for the ruling the party
desired the [tribunal] to make . . .”).
Mr. Rooker next contends that the full Commission's findings
of fact are not supported by any competent evidence of record or go
against the greater weight of the competent evidence of record. In
particular, he contests the following findings of fact by the
Commission:
9. Dr. Lopez testified that she could not
give an opinion to any reasonable degree of
medical certainty that physical stress or
injury could even possibly trigger the dormant
shingles virus, and that to do so would be
nothing more than mere speculation. Dr. Lopez
further testified she was unaware of any
empirical or scientific evidence to show
correlation between the back strain and
shingles outbreak.
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29. There is no competent medical evidence of
record showing that plaintiff's shingles was
caused by, or is related to, his compensable
back strain. The totality of the medical
evidence shows that there is no known causal
link between a back strain and the development
of shingles. There is also no medical
evidence that plaintiff's back strain caused
him to develop a stress condition or that
plaintiff suffered from stress related
shingles.
30. There is no competent evidence that
defendant knowingly paid for plaintiff'sshingles treatment or ever led plaintiff to
believe he had a compensable shingles claim.
The only accepted injury in this matter was
plaintiff's low back strain of February 5,
2000, which resolved in or around November
2000.
31. Plaintiff has remained capable of working
in his job as an assistant store manager since
November 8, 2000.
“Under our Workers' Compensation Act, 'the Commission is the
fact finding body.'”
Adams v. AVX Corp., 349 N.C. 676, 680, 509
S.E.2d 411, 413 (1998) (quoting
Brewer v. Powers Trucking Co., 256
N.C. 175, 182, 123 S.E.2d 608, 613 (1962)). “'The Commission is
the sole judge of the credibility of the witnesses and the weight
to be given their testimony.'”
Adams, 349 N.C. at 680, 509 S.E.2d
at 413 (quoting
Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-
34, 144 S.E.2d 272, 274 (1965)). The full Commission's findings of
fact “'are conclusive on appeal if supported by any competent
evidence.'”
Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting
Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529,
531 (1977)). Thus, this Court is precluded from weighing the
evidence on appeal; rather, we can do no more than “'determine
whether the record contains any evidence tending to support the
[challenged] finding.'”
Adams, 349 N.C. at 681, 509 S.E.2d at 414
(citation omitted).
Mr. Rooker first challenges finding of fact nine, that Dr.
Lopez could not give an opinion to any reasonable degree of medical
certainty that physical stress or injury could trigger dormant
shingles and that she was unaware of any empirical or scientificevidence to show a correlation between the back strain and the
shingles outbreak. This argument is without merit.
The record on appeal shows that Dr. Lopez testified that she
was unaware of any empirical studies showing a correlation between
a back strain and an outbreak of shingles. She further testified
that it was mere speculation to say that “anything is possible” as
it relates to a correlation between shingles and back pain. Thus,
the record includes competent evidence to support the full
Commission's finding of fact that Dr. Lopez testified that she
could not give an opinion to a reasonable degree of medical
probability that physical stress or injury could trigger dormant
shingles and that she was unaware of any empirical or scientific
evidence to show a correlation between Mr. Rooker's back strain and
his shingles outbreak. Therefore, finding of fact nine is binding
on appeal.
Mr. Rooker next challenges finding of fact twenty-nine, that
there is no competent evidence of record to show that his shingles
was caused by or related to his compensable back strain. The
record reveals that Dr. Lopez testified that Mr. Rooker's shingles
and back injuries were separate conditions. Dr. Bettendorf also
opined that Mr. Rooker's shingles condition was a separate problem
that was not caused by his lifting incident at work.
In fact,
every physician deposed in this case agreed that there is no
medical literature, empirical studies, or evidence of any kind that
a back strain could result in a shingles outbreak. Thus, the
record shows competent evidence to support the Commission's findingthat there is no evidence that Mr. Rooker's shingles was caused by
or related to his compensable back strain. Therefore, finding of
fact twenty-nine is binding on appeal.
Mr. Rooker next assigns error to finding of fact number
thirty, that there is no competent evidence that Food Lion
knowingly paid for his shingles treatment or ever led him to
believe that he had a compensable shingles claim. The record shows
that the billing code sheets stipulated into evidence have “lumbar
radiculopathy” circled. The forms also contained options for
treatment, including herpes zoster and post-herpetic neuralgia,
which were not circled. The only code checked and submitted to the
insurance carrier for payment was with regard to a back issue. The
record further shows that Mr. Rooker never made a claim for
shingles. In fact, when Mr. Rooker filed a written claim on a Form
18 in September 2000, he did not list “shingles” as a claim for
injury in this matter. He only listed injuries to his back, his
right leg, and headaches. Thus, the record contains competent
evidence to support the Commission's finding that Food Lion did not
knowingly pay for Mr. Rooker's shingles treatment and that Food
Lion only accepted injury to Mr. Rooker's low back strain.
Therefore, finding of fact thirty is binding on appeal.
Mr. Rooker also challenges finding of fact thirty-one, that he
was capable of working in his job as an assistant store manager
since 8 November 2000. He contends that the full Commission had no
competent evidence of record that he was able to work in his job asassistant store manager, and therefore, the full Commission should
be reversed. This argument is without merit as well.
Here, the record on appeal contains evidence that Dr. Tellis
released Mr. Rooker from his care on 8 November 2000, because Mr.
Rooker had reached maximum medical improvement with regard to his
back injury and retained zero percent (0%) permanent partial
disability. Dr. Tellis saw no reason Mr. Rooker could not have
resumed being as active as possible. Accordingly, there is
competent evidence of record that Mr. Rooker was able to return to
his job as assistant store manager. Following
Adams, we conclude
that finding of fact thirty-one is supported by competent evidence.
Therefore, finding of fact thirty-one is binding on appeal.
Having determined that the full Commission's findings of fact
are supported by competent evidence, we turn to the full
Commission's conclusions of law, which we review
de novo. Snead v.
Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331, 335, 499
S.E.2d 470, 472 (1998).
In his appeal, Mr. Rooker selects particular sentences from
the full Commission's findings of fact 21, 22, 23, 24, and 25, and
argues that if the full Commission accepts these findings as
correct, then they misapprehended the law. This reliance is
misplaced. Even assuming that the full Commission did find some
facts favoring Mr. Rooker, this would not mandate a conclusion in
favor of Mr. Rooker. Rather, Mr. Rooker bears the burden of
proving his case by the “greater weight of the evidence.”
Bailey
v. Sears Roebuck & Co., 131 N.C. App. 649, 654, 508 S.E.2d 831, 835(1998). Thus, even if the full Commission recited facts tending to
support Mr. Rooker, the Commission has the duty to weigh the
evidence and the authority to conclude that Mr. Rooker's evidence
was outweighed by Food Lion's evidence.
Hawley v. Wayne Dale
Constr., 146 N.C. App. 423, 428, 552 S.E.2d 269, 272 (2001)
(holding that the “Commission may weigh the evidence and believe
all, none or some of the evidence”) (citation omitted).
In sum, because “there is some competent evidence in the
record to support” the Commission's findings of fact, “we hold that
the full Commission's findings of fact [are] conclusive on appeal.”
Adams, 349 N.C. at 682, 509 S.E.2d at 414. We also conclude that
these findings of fact support the Commission's conclusions of law
and award.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
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