Appeal by defendants from opinion and award entered 5 October
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 18 September 2006.
Peter Grear for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Cameron D. Simmons and
Meredith T. Black, for defendant-appellants.
MARTIN, Chief Judge.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission awarding plaintiff ongoing temporary
total disability compensation. Plaintiff suffered an admittedly
compensable injury to her right wrist when she was involved in acar accident on 12 December 2000 while driving as part of her job
as a social worker with defendant Well Care & Nursing Services
(“Well Care”). After the accident, plaintiff experienced right
wrist pain, and x-rays revealed no fracture. A subsequent MR
arthrogram of plaintiff's wrist revealed a partial TFC tear with no
evidence of major ligamentous injury. Initial treatment involved
splinting and injection therapy. When those treatments were
unsuccessful, plaintiff underwent arthroscopic surgery on her right
wrist on 3 May 2001. Well Care and its carrier, Discovery
Insurance Company, filed a Form 60 admitting compensability of
plaintiff's injury to her right wrist. Defendants paid plaintiff
temporary total disability while she was unable to work. Plaintiff
received treatment for the injury to her right wrist until 14
December 2001, when she was found to have reached maximum medical
improvement with a ten percent permanent partial impairment rating
on the right wrist. Her physician stated that her wrist injury did
not impair her ability to perform her job as a social worker.
On 23 July 2001, eleven weeks after her wrist surgery,
plaintiff was leaving her house when she slipped on her back steps
and fell, fracturing her left ankle. Plaintiff contends that she
was unable to break her fall because of the injury to her right
wrist. She testified that
“when I realized I was slipping, I think
my natural instinct kicked in. I didn't have strength in my hand
to grab the [door]knob or the security bar . . . . As a result, to
keep from re-injuring this hand, I just let it go, and I fell on my
left side.”
Her left ankle fracture was addressed by two surgicalprocedures. Plaintiff continued to see her physician for her left
ankle injury until July 2002 when she reached maximum medical
improvement.
On 26 June 2002, plaintiff filed a request for hearing with
the Industrial Commission seeking continuing temporary total
disability compensation for her right wrist and alleging that the
injury to her left ankle from the fall at home was causally related
to the earlier injury to her right wrist and, therefore, was
compensable. She contended that she was unable to work in any
capacity. At the hearing before the deputy commissioner, plaintiff
testified as follows:
THE COURT: . . . [A]fter you finished
your physical therapy, . . . you're saying you
never asked either the physical therapist or
your doctor whether you could return to work
or, you know, what work restrictions you would
have. You also - you didn't contact, I'm
assuming, your employer to see at that point
if they would be willing to have you return to
work; is that right?
THE WITNESS: Sir, I was not physically
able to work.
THE COURT: But how do you know? I guess
what my question is if you never asked the
doctor, work restrictions have never been
addressed, how is it that you determined that
you are not able to work at all?
THE WITNESS: Because of the constant pain
level and my movement. My job required me to
do a lot of physical driving from county to
county. Not only that, I was in and out of my
truck or car, in and out, in and out. I was
barely able to move, sir.
. . . .
THE COURT: . . . [H]ave you thought about
other types of jobs that you might be able to
do with your current condition?
THE WITNESS: I have thought about it,
sir. But with my physical being the way it is
and my pain and my conversations back and
forth and going still back and forth to thedoctor--- I'm currently in physical therapy
trying to get this ankle and leg to some type
of normalcy where I'll be able to function
like I did before I was injured. So, no, I
had not inquired about it and neither had the
doctor said anything to me about it.
Plaintiff offered no evidence from her doctors, chiropractor, or
occupational therapist indicating that she was unable to work in
any capacity.
The deputy commissioner denied compensability of the left
ankle injury and awarded permanent partial disability compensation
to plaintiff for the ten percent impairment rating on her right
wrist. Plaintiff appealed the opinion and award to the Full
Commission.
The Full Commission reversed, awarding plaintiff temporary
total disability compensation for both the right wrist and the left
ankle. Specifically, the Commission found that “but for the
plaintiff's lack of use of her right hand due to her compensable
injury by accident, she would have not fallen in the manner in
which she fell and likely would not have fractured her left ankle.”
The Commission found that the slip and fall was work related
because it was a direct and natural consequence of the compensable
right wrist injury. The Commission also found that “[f]ollowing
her slip and fall at home on July 23, 2001, the plaintiff was
unable to work due to her fractured left ankle” and found that she
had been temporarily and totally disabled since 23 July 2001,
notwithstanding its finding that she had reached maximum medical
improvement for her left ankle injury in July 2002. The Commission
concluded that although plaintiff was entitled to permanent partialdisability compensation for the ten percent disability to her right
wrist, “her greater remedy at the present time” was to receive
compensation for temporary total disability pursuant to N.C.G.S. §
97-29. Thus, the Commission awarded plaintiff continuing
compensation for temporary total disability until “further order of
the Commission,” as well as medical treatment for her left ankle
and right wrist.
Defendants appealed the Commission's determination that
plaintiff's left ankle injury is compensable as arising out of and
in the course of her employment, as well as its determination that
she is entitled to ongoing compensation for temporary total
disability.
Defendants make two arguments on appeal. First, defendants
argue that the Commission erred in finding that plaintiff's left
ankle injury was causally related to her right wrist injury because
such findings were not supported by competent evidence and the
findings did not support the conclusions of law that the injury was
compensable. Second, defendants argue that the Commission erred in
finding that plaintiff was and continues to be disabled as a result
of her right wrist and left ankle injuries because the findings are
not supported by competent evidence and do not support the
conclusions of law that plaintiff is entitled to temporary total
disability beginning on 23 July 2002 and continuing.
[1] We first consider the issue of causation. Defendants
argue that the Commission's finding of fact that the left ankleinjury was causally related to the right wrist injury is not
supported by any competent evidence and therefore the Commission
erred in awarding compensation. An injury is only compensable if
it “aris[es] out of and in the course of the employment.” N.C.
Gen. Stat. § 97-2(6) (2005). “'[A]rising out of' refers to the
origin or causal connection of the accidental injury to the
employment.”
Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233
S.E.2d 529, 531 (1977). The plaintiff bears the burden of proving
each element of compensability, including causation, by “a
preponderance of the evidence.”
Holley v. ACTS, Inc., 357 N.C.
228, 231-32, 234, 581 S.E.2d 750, 752, 754 (2003). Upon review,
however, if there is any competent evidence to support the
Commission's findings of fact, this Court must accept them as true.
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
Finding of fact 10 addresses causation where it states: “The
Full Commission finds that, but for the plaintiff's lack of use of
her right hand due to her compensable injury by accident, she would
have not fallen in the manner in which she fell and likely would
not have fractured her left ankle.” Plaintiff testified:
A: Well, when I realized I was slipping,
I think my natural instinct kicked in. I
didn't have strength in my hand to grab the
knob or the security bar here in the picture.
As a result, to keep from re-injuring this
hand, I just let it go, and I fell on my left
side.
. . . .
A: . . . It was just that when I felt
myself slipping, I did not have the strength
in my hand to break my fall.
. . . . Q: . . .[Y]ou said you let go of the
door, because you didn't want to re-injure
your right wrist.?
A: As I stepped down, I could not _ I had
turned around. I could not grab the knob, the
handle here, and I fell. I could not break my
fall.
. . . .
THE WITNESS: . . . When I went to push
the doorknob, when I went out to step down --
THE COURT: Right.
THE WITNESS: _- I slipped. And when I
did, I could not grab. My hand was not strong
enough for me to hold onto the doorknob. That
knob is there, since I didn't have a railing,
to hold onto, coming in and out of the door.
THE COURT: So the doorknob didn't have
anything to do with you falling. You're
saying that once you slipped and you were
falling, had you had the use of your hand, you
would have been able to catch yourself by
grabbing onto the doorknob; is that right?
THE WITNESS: Yes, sir, that's what I
contend.
Reviewing this evidence in the light most favorable to plaintiff,
it reasonably supports the Commission's finding that her wrist
injury prevented her from breaking her fall. We note that in cases
involving “complicated medical questions far removed from the
ordinary experience and knowledge of laymen, only an expert can
give competent opinion evidence as to the cause of the injury.”
Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391
(1980);
see also Holley, 357 N.C. at 232, 581 S.E.2d at 753. The
present case does not involve a complicated medical question;
therefore, plaintiff's testimony alone is sufficient to support the
finding of fact.
[2] Even if the evidence supports the Commission's finding of
fact, defendants argue that the finding of fact does not support
conclusion of law 1, which states “[t]he plaintiff's left ankleinjury resulted from an accident arising out of and in the course
of her employment in that the incident was a direct and natural
consequence that flowed from her December 12, 2000, compensable
injury by accident.” The Commission correctly cited that, where a
second injury arises from an earlier injury and the primary injury
arises out of and in the course of employment, every natural
consequence that flows from the injury likewise arises out of the
employment.
Starr v. Paper Co., 8 N.C. App. 604, 611, 175 S.E.2d
342, 347 (1970). To show causal relation, “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 . . . .”
Gilmore v.
Board of Education, 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942).
The Commission's finding of fact takes the case out of the realm of
conjecture by finding that plaintiff “likely would not have
fractured her left ankle.” This finding is sufficient to support
the Commission's conclusion of law. Accordingly, we affirm the
Commission's findings and conclusions with regard to the issue of
causation.
[3] Defendants next contend that the Commission erred in
awarding compensation because plaintiff did not prove by medical
evidence that she is entitled to temporary and total disability as
a result of her injuries. The Commission found “[f]ollowing her
slip and fall at home on July 23, 2001, the plaintiff was unable to
work due to her fractured left ankle.” This finding is supported
by plaintiff's own testimony that she was not physically able towork and that the amount of pain she suffered prohibited her from
working in any capacity. Thus, we must accept it as true.
See
Adams, 349 N.C. at 681, 509 S.E.2d at 414. The Commission also
found “[plaintiff] has been temporarily and totally disabled . . .
as a result of her admittedly compensable automobile accident . .
. and her slip and fall.” This statement is actually a conclusion
of law, and we must review it as such.
See Johnson v. Adolf, 149
N.C. App. 876, 878 n.1, 561 S.E.2d 588, 589 n.1 (2002). We
therefore consider whether the finding that plaintiff has been
unable to work supports the conclusion of law that she is
temporarily and totally disabled.
“In order to obtain compensation under the Workers'
Compensation Act, the claimant has the burden of proving the
existence of his disability and its extent.”
Hendrix v.
Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986).
Where the compensability of a claimant's claim is admitted via Form
60, no presumption of disability attaches.
Barbour v. Regis Corp.,
167 N.C. App. 449, 456-57, 606 S.E.2d 119, 125 (2004).
[I]n order 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 individual's incapacity to earn was
caused by plaintiff's injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982). An employee injured in the course of her employment is
disabled under the Act if the injury results in an “incapacity. . . to earn the wages which the employee was receiving at the
time of the injury in the same or any other employment.” N.C. Gen.
Stat. § 97-2(9) (2005). An employee may meet the burden of showing
disability in one of four ways:
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work in
any employment; (2) the production of evidence
that he is capable of some work, but that he
has, after a reasonable effort on his part,
been unsuccessful in his effort to obtain
employment; (3) the production of evidence
that he is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, inexperience, lack of
education, to seek other employment; or (4)
the production of evidence that he has
obtained other employment at a wage less than
that earned prior to the injury.
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (citations omitted).
Plaintiff claims that her left ankle injury arose from her
compensable claim for her right wrist injury pursuant to Form 60;
therefore, she bears the burden of proving that she was disabled as
a result of her ankle injury. The Commission made the requisite
findings that plaintiff was unable to work at her old job or at
another job as a result of the ankle injury. However, this finding
was based only on the plaintiff's testimony, and was not based on
any medical evidence. Thus, plaintiff did not meet the burden
established in
Russell of showing “
medical evidence that [s]he is
physically or mentally, as a consequence of the work related
injury, incapable of work in any employment.”
Russell, 108 N.C.
App. at 765, 425 S.E.2d at 457 (emphasis added). The Commission'sconclusion of law that plaintiff has been temporarily and totally
disabled is, therefore, not supported by its findings of fact and
is error.
The award of ongoing compensation for temporary total
disability is reversed and this case is remanded for the entry of
an award of compensation pursuant to N.C.G.S. § 97-30.
Reversed and Remanded.
Judges ELMORE and JACKSON concur.
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