An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
THOMAS HUGH FOY,
INTERSTATE BRANDS/MERITA, I.C. File No. 173499
Appeal by defendant from an Opinion and Award filed 25 May
2004 by the Full Commission. Heard in the Court of Appeals 17
Jeffery S. Miller for plaintiff-appellee.
Wilson & Ratledge, PLLC, by Maura K. Gavigan and Kristine L.
Prati, for defendant-appellant.
Defendant Interstate Brands/Merita (Merita) appeals from an
Opinion and Award of the North Carolina Industrial Commission
awarding plaintiff ongoing temporary total disability benefits and
Thomas Hugh Foy (plaintiff) is a fifty-two year old male who
had worked for Interstate Brands/Merita (defendant) for 28 years as
a route salesman delivering bread. His job entailed the delivery
of bread, cakes and rolls, sometimes in large quantities on largetransport racks which weigh up to 450 pounds when fully loaded. On
5 July 2001, plaintiff was moving a fully loaded transport rack
from his truck while making a delivery when the rack became lodged
on the bumper of his truck and became stuck. The rack stopped, but
plaintiff did not. Immediately after the incident with the
transport rack, plaintiff realized something was wrong because his
right leg and arm lost feeling and stopped functioning.
Plaintiff called his supervisor, Kenny King, and advised King
of the loss of function in his leg and arm and that he would not be
able to complete his route. King met plaintiff at the delivery
location and helped plaintiff complete the remainder of his
delivery route. While completing his deliveries, plaintiff could
not move his right arm and had difficulty moving his right leg.
King observed plaintiff's difficulties completing the deliveries,
laughing at plaintiff when he repeatedly dropped bread as he
attempted to take trays off the transport racks. After plaintiff
completed his deliveries, his wife drove him to the emergency room
at Onslow Memorial Hospital.
At the emergency room, plaintiff was diagnosed as having
suffered a mini stroke and was referred to Dr. C.E. Ballenger at
Coastal Neurological Associates for further examination. At his
initial consultation with Dr. Ballenger, Mr. Foy did not mention
the incident at work the previous day since he had been advised by
personnel at the hospital that he had suffered a mini stroke and
therefore did not feel the information was relevant. Dr. Ballengerperformed numerous tests on plaintiff and eventually referred
plaintiff to Dr. Sean Hsu, a neurosurgeon.
Plaintiff was initially seen by Dr. Hsu on 22 August 2001
where Dr. Hsu erroneously noted in his records plaintiff had been
injured at work on 6 June 2001, which he later corrected to 5 July
2001 in a letter to plaintiff's counsel. Dr. Hsu admitted he had
no reason to doubt the actual date of injury was 7-5-01. Dr. Hsu
diagnosed plaintiff as having a cervical myelopathy and recommended
surgery to remove the herniated disc and to decompress the spinal
cord. The surgery was performed on 30 August 2001 and plaintiff
did not return to work following the surgery.
On 27 August 2001, plaintiff completed a Workers Compensation
Claim Reporting Form and submitted it to his supervisor.
Defendant subsequently denied plaintiff's workers' compensation
claim on 6 September 2001. Plaintiff filed a request that his
claim be assigned for hearing on 12 October 2001, and a hearing was
held before Deputy Commissioner Morgan S. Chapman on 3 June 2002.
Subsequent to the hearing depositions of plaintiff's treating
physicians were taken and included in the record. Deputy
Commissioner Chapman filed an Opinion and Award on 26 November
2002, denying plaintiff workers' compensation benefits. Plaintiff
timely filed a Notice of Appeal to the Full Commission.
In an Opinion and Award of the Full Commission filed 25 May
2004, the Commission modified the Opinion and Award of DeputyCommissioner Chapman and awarded plaintiff ongoing temporary total
disability benefits and medical compensation. Defendant appeals.
On appeal, defendant raises the issues of whether the Full
Commission erred by: (I) finding plaintiff sustained an injury by
accident arising out of and in the course and scope of employment
as the result of a specific traumatic event on 5 July 2001; (II)
finding plaintiff did not suffer from a pre-existing injury; (III)
concluding plaintiff is totally disabled and entitled to temporary
total disability benefits and medical compensation; and (IV)
finding plaintiff provided defendant with adequate notice pursuant
to N.C. Gen. Stat. § 97-22. For the following reasons, we affirm.
Standard of Review
Review by this Court of a decision by the North Carolina
Industrial Commission is limited to the determination of whether
any competent evidence supports the Commission's findings of fact
and whether [those] findings . . . support the Commission's
conclusions of law. Deese v. Champion Int'l Corp., 352 N.C. 109,
116, 530 S.E.2d 549, 553 (2000). The Commission's findings of fact
are conclusive on appeal even where there is contrary evidence, and
such findings may only be set aside where there is a complete lack
of competent evidence to support them. Johnson v. Herbie's Place,
157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003); see also Adams
v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Our
review goes no further than to determine whether the record
contains any evidence tending to support the finding. Anderson v.Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
[E]vidence tending to support plaintiff's claim is to be viewed in
the light most favorable to plaintiff, and plaintiff is entitled to
the benefit of every reasonable inference to be drawn from the
evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414, (citing
Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111
(1937); see also Hollman v. City of Raleigh, 273 N.C. 240, 252, 159
S.E.2d 874, 882 (1968) ([O]ur Workmen's Compensation Act should be
liberally construed to effectuate its purpose to provide
compensation for injured employees . . ., and its benefits should
not be denied by a technical, narrow, and strict construction.).
However, the Commission's conclusions of law are reviewed de novo.
McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701
Defendant first argues plaintiff's back injury is not the
result of a specific traumatic event and plaintiff has failed to
present any competent evidence that his back injury was caused by
the alleged 5 July 2001 work accident. An employee arguing his or
her injury is the result of a specific traumatic event must prove
the injury occurred at a judicially cognizable point in time.
Ruffin v. Compass Group USA, 150 N.C. App. 480, 483, 563 S.E.2d
633, 636 (2002); see also, Goforth v. K-Mart Corp., __ N.C. App.
__, __, 605 S.E.2d 709, 712 (2004). The phrase judicially
cognizable point in time has been defined as a determination of
when, within a reasonable period, the specific injury occurred. Fish v. Steelcase, Inc., 116 N.C. App. 703, 709, 449 S.E.2d 233,
In addition to proving a specific traumatic event occurred,
the employee must show the current medical condition he or she is
suffering from is causally related to the work-related accident.
Snead v. Sandhurst Mills, Inc., 8 N.C. App. 447, 451, 174 S.E.2d
699, 702 (1970). On the issue of causation of injuries involving
complicated medical questions[,] the North Carolina Supreme Court
has held only an expert can give competent opinion evidence as to
the cause of the injury. Click v. Pilot Freight Carriers, Inc.,
300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). However, when such
expert opinion testimony is based merely upon speculation and
conjecture . . . it is not sufficiently reliable to qualify as
competent evidence on issues of medical causation. Young v.
Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 915
In its Finding of Fact #2, the Full Commission found
plaintiff's injury occurred when he was attempting to move a fully
loaded transport rack during one of his deliveries on 5 July 2001.
While the wording used by the Commission in a portion of its
finding may not be exactly as quoted in the record (plaintiff's
hands slipped from the rack, causing his head and body to snap
backwards), the Commission's finding that plaintiff felt
immediate pain and loss of feeling in his leg and arm is supported
by competent evidence. Plaintiff testified the onset of his
symptoms arose almost immediately after the incident involving thetransport rack. Before the incident with the transport rack,
plaintiff was moving around normally; he had loaded his truck
earlier that morning and had unloaded several racks without any
indication of a problem with his right arm or leg. The onset of
plaintiff's symptoms occurred only after a transport rack got
caught while plaintiff was pulling it.
Furthermore, Dr. Hsu testified at his deposition that based
on the history, if the symptoms began on July 5, . . . then more
likely than not, that's when the injury occurred . . . . Dr. Hsu
further testified when [c]ervical myelopathy from cord compression
. . . sets in, the condition is more persistent. It doesn't just
come and go. Dr. Hsu's testimony concerning the causation of the
injury is more than mere speculation and is sufficient to establish
the injury was caused by the work-related accident.
are sufficient to support the conclusion of the Commission that
plaintiff sustained an injury resulting from a specific traumatic
arising out of and in the course of his employment. This
assignment of error is overruled.
Defendant next argues the Full Commission erred by finding the
plaintiff did not suffer from a pre-existing injury. As defendant
acknowledges in its brief, it is well established that aggravation
of a pre-existing condition which results in loss of wage earning
capacity is compensable under the workers' compensation laws in our
state. Smith v. Champion Int'l, 134 N.C. App. 180, 182, 517
S.E.2d 164, 166 (1999). Furthermore, [t]he work-related injuryneed not be the sole cause of the problems to render an injury
compensable. If the work-related accident contributed in some
reasonable degree to plaintiff's disability, [he] is entitled to
compensation. Hoyle v. Carolina Associated Mills, 122 N.C. App.
462, 465-66, 470 S.E.2d 357, 359 (1996) (citations omitted).
As discussed in Issue I, there is competent evidence to
support the Commission's finding that plaintiff's injury was
actually caused by a specific traumatic incident arising out of and
in the course of his employment. Therefore, plaintiff has shown
the work-related accident was the sole cause of his injury and not
due to any pre-existing injury. This assignment of error is
Defendant also contends the Full Commission erred by
concluding plaintiff is totally disabled and entitled to temporary
total disability benefits. Defendant assigns error to two
conclusions of law made by the Commission:
3. As a result of the compensable injury of 5
July 2001, plaintiff has incurred medical
expenses that were reasonably necessary to
effect a cure or give relief for his back
injury. Plaintiff has not reached maximum
medical improvement and further medical
treatment may be necessary. Plaintiff is
entitled to have defendants pay for all
medical treatments, past and future,
reasonably related to his compensable injury.
4. As the result of his injury by accident of
5 July 2001, plaintiff is disabled from work
and is entitled to receive compensation for
temporary total disability compensation at the
rate of $546.67 per week for the period
beginning 6 July 2001 and continuingthereafter until further order of the
Industria1 Commission. N.C.G.S. 97-29.
To support a conclusion of disability, the Commission must find:
(1) that plaintiff was incapable after his
injury of earning the same wages he had earned
before his injury in the same employment, (2)
that plaintiff was incapable after his injury
of earning the same wages he had earned before
his injury in any other employment, and (3)
that this [plaintiff's] incapacity to earn was
caused by [his] injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
Plaintiff testified his employment with defendant has been
terminated and he began drawing social security disability in early
2002. Furthermore, defendant has not objected to the Commission's
Finding of Fact #3, which states:
3. The plaintiff sought immediate treatment
from Onslow Memorial Hospital, where he was
initially misdiagnosed as having suffered a
mini-stroke. The plaintiff was referred to
Coastal Nuerological [sic] Associates and was
evaluated there by Dr. Ballenger on 6 July
2001. After numerous tests, Dr. Ballenger
diagnosed plaintiff's condition as a cervical
myelopathy and referred the plaintiff to Dr.
Sean Hsu, a neurosurgeon. Dr. Hsu saw
plaintiff on 22 August 2001, diagnosed a
cervical myelopathy, and recommended surgery
to remove the herniated disc to decompress the
spinal cord. This surgery was performed on 30
August 2001. Plaintiff has been unable to work
since the accident.
(Emphasis added.) This finding is binding upon this Court and,
when considered in light of our analysis in Issue I supra, suffices
to show plaintiff is incapable of earning the same wages he
previously earned because of his injury.
These facts are
sufficient to support the conclusion of the Commission thatplaintiff is entitled to disability income as compensation for his
injury resulting from a specific traumatic incident
assignment of error is overruled.
Finally, defendant claims the Full Commission erred by finding
plaintiff provided defendant with adequate notice pursuant to N.C.
Gen. Stat. § 97-22. N.C. Gen. Stat § 97-22 requires an injured
employee to notify his employer in writing of the occurrence of a
work-place accident. N.C.G.S. § 97-22 (2003). Furthermore, if the
employee does not provide written notice of the accident within
thirty days the employee is not entitled to workers' compensation
benefits unless reasonable excuse is made to the satisfaction of
the Industrial Commission for not giving such notice and the
Commission is satisfied that the employer has not been prejudiced
; see also, Peagler v. Tyson Foods, Inc.
, 138 N.C.
App. 593, 603-04, 532 S.E.2d 207, 214 (2000) (reasonable excuse
found because employee did not know nature and character of injury
where doctors originally told him he had a heart attack, not a
In its Findings of Fact the Full Commission found as follows:
4. On 27 August 2001, the plaintiff completed
a Workers Compensation Claim Reporting Form
and submitted it to his supervisor for
transmittal to the Industrial Commission. On
September 6, 2001, defendants denied liability
using a Form 61.
5. Defendant was given immediate actual notice
of plaintiff's injury and disability and was
not prejudiced by the plaintiff's slight delay
in filing the proper Industrial Commission
Defendant does not assign error to the Commission's Finding of Fact
#4, and therefore, it is binding on this Court. The report
submitted by plaintiff's supervisor, Kenny King, lists the date of
notification of the injury as 5 July 2001. Kenny King is the same
supervisor plaintiff called to report his accident and request
assistance to complete his route. While defendant's Human
Resources manager may not have been informed of the incident until
he received the report from King, defendant was on actual notice of
plaintiff's injury the day it occurred and therefore was not
prejudiced by plaintiff's delay in filing the proper forms. See
Key v. Wagner Woodcraft, Inc.
, 33 N.C. App. 310, 314, 235 S.E.2d
254, 256 (1977) (employer had knowledge of the injury by accident
through notification by plaintiff to his supervisor); Lawton v.
County of Durham
, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987)
(reasonable excuse includes a belief that one's employer is
already cognizant of the accident).
Furthermore, plaintiff established a reasonable excuse for the
delay due to the fact that he was not diagnosed with cervical
myelopathy until he was seen by Dr. Hsu on 22 August 2001. Two
days after this diagnosis, plaintiff contacted defendant's Human
Resources Manager who informed plaintiff he should meet with his
supervisor and fill out the required workers' compensation forms.
These forms were filled out on 27 August 2001, five days after the
diagnosis of plaintiff's injury, giving defendant written notice of
plaintiff's claims. Competent evidence exists in the record beforethis Court to support the Commission's findings. This assignment
of error is overruled.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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