Appeal by plaintiff from opinion and award entered 4 August
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 14 November 2005.
Law Offices of Matthew B. Slotkin, by Matthew B. Slotkin, for
Marshall, Williams & Gorham, L.L.P., by Ronald H. Woodruff,
Deborah LaBrie (plaintiff) began working for Corning,
Incorporated (Corning) on 1 February 1982, performing various job
duties for Corning during the course of her employment. Plaintiff
received two electrical shocks to the right side of her body on 3
January 1996 while cleaning a lathe at Corning. Plaintiff went to
the emergency room for treatment on 3 January 1996 and the
following day, she saw Corning's plant doctor, Dr. John W. Cromer
(Dr. Cromer). Dr. Cromer diagnosed plaintiff as having an electrical injury
to her right arm, prescribed medication, and released plaintiff for
full time work. Plaintiff was restricted from working in the area
where the incident occurred and also was restricted from heavy
exertion and overtime work. Dr. Cromer continued to treat
plaintiff, and released her for full time work with no restrictions
on 23 April 1996. Dr. Cromer referred plaintiff to a number of
specialists who did not find any significant abnormalities with
plaintiff's right arm. Dr. Cromer released plaintiff from his care
in April 1997.
Dr. Cromer again treated plaintiff on 19 February 1999, when
plaintiff sought treatment for right arm pain. Dr. Cromer
diagnosed plaintiff with right ulnar neuralgia. Dr. Cromer
continued to treat plaintiff and diagnosed her with bilateral
epicondylitis and bilateral trapezius strain in 2003.
Plaintiff received compensation for her 3 January 1996 injury
from Corning and Lumbermen's Mutual Casualty Company (collectively
defendants) pursuant to a Form 21 Agreement, which was approved by
the Industrial Commission in an order filed 7 October 1996. Under
the agreement, plaintiff received compensation for the period from
3 January 1996 through 7 June 1996. More than two years later,
plaintiff sought payment of additional compensation. Defendants
denied additional compensation to plaintiff on 25 March 1999.
Plaintiff's claim was heard on 29 January 2002 and the record
closed on 3 April 2003. Plaintiff claimed, inter alia, she was
entitled to benefits for permanent and total disability andadditional compensation from 7 June 1996. A deputy commissioner
filed an opinion and award on 31 July 2003, concluding that
plaintiff was entitled to (1) temporary partial disability
compensation for the period from 3 January 1996 to 28 April 1996,
and (2) permanent partial disability compensation as a result of an
eight percent (8%) permanent partial impairment to plaintiff's
right arm. However, the deputy commissioner also concluded that
plaintiff was not entitled to additional benefits after she reached
maximum medical improvement because there was insufficient evidence
that her electrical injury caused a reduction in her wage-earning
capacity. The deputy commissioner further concluded that plaintiff
was not entitled to compensation for claims related to her
bilateral epicondylitis, trapezius strain, depression and other
unrelated health conditions. Plaintiff appealed to the Industrial
Commission, which affirmed and modified the opinion and award.
On appeal of an opinion and award of the Industrial
Commission, our Court's role is "limited to reviewing whether any
competent evidence supports the Commission's findings of fact and
whether the findings of fact 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 Industrial Commission is the sole
judge of the weight of the evidence, and its findings of fact are
conclusive on appeal if they are supported by any competent
evidence, even if the evidence would have supported contrary
findings. Id. at 115, 530 S.E.2d at 552-53; Adams v. AVX Corp.,349 N.C. 676, 680-81, 509 S.E.2d 411, 413-14 (1998). We do,
however, review the Industrial Commission's conclusions of law de
novo. Crane v. Berry's Clean-Up & Landscaping, Inc., 169 N.C. App.
323, 327, 610 S.E.2d 464, 466, disc. review denied, 359 N.C. 630,
616 S.E.2d 230 (2005).
Plaintiff assigns error to two findings of fact, arguing the
findings are unsupported by the evidence, and to three conclusions
of law, arguing the conclusions are not supported by the findings.
Plaintiff also assigns error to the Industrial Commission's failure
to liberally construe the Workers' Compensation Act in her favor.
Plaintiff argues finding of fact number thirty-eight is not
supported by competent evidence. Finding number thirty-eight reads
On January 29, 2003, Dr. Cromer diagnosed
plaintiff with bilateral lateral epicondylitis
and bilateral trapezius strain, which were
unrelated to the electric shock incident. Dr.
Cromer recommended that plaintiff go out of
work, pending a psychiatric evaluation due to
the extreme stress and anxiety of these
complaints. These conditions, if related to
her work, do not constitute a change of
condition related to the electric shock, but
rather are a new injury or occupational
disease which occurred while Travelers, which
is not a party to this action, was the carrier
on the risk.
This finding is supported by Dr. Cromer's testimony. Dr.
Cromer testified in a 6 March 2003 deposition that he diagnosed
plaintiff's bilateral epicondylitis and bilateral trapezius strain
conditions on 29 January 2003. Dr. Cromer also testified these
conditions were unrelated to the electrical shock suffered byplaintiff in 1996.
Dr. Ramon B. Jenkins, a neurologist, also examined plaintiff
and concluded "there [was] no medical evidence that [plaintiff]
sustained permanent partial disability to her right arm or
elsewhere from the event of [3 January 1996]." Dr. E. Wayne
Massey, a neurologist, concluded "there [was] no long-term damage
to [plaintiff's] ulnar nerve that [was] detected by clinical exam
or electrically." Accordingly, finding number thirty-eight, that
plaintiff's bilateral epicondylitis and bilateral trapezius strain
conditions were unrelated to the electrical shock injury, is
supported by competent evidence.
Plaintiff also assigns error to finding of fact number forty:
Between the date of the hearing and the close
of the record, plaintiff was unable to work
for unrelated personal medical reasons.
However, [plaintiff] was not under any work
restrictions during this time for the
compensable electric shock injury. Therefore,
any inability to earn wages was not [causally]
related to the compensable injury.
The hearing was held on 29 January 2002 and the record closed
on 3 April 2003. Dr. Cromer testified in a deposition on 6 March
2003 that plaintiff was under no work restrictions during 2002.
Dr. Cromer testified that he did place plaintiff on work
restrictions in January 2003, but that the restrictions were for
conditions unrelated to plaintiff's original electrical injury.
Dr. Cromer subsequently took plaintiff out of work on 26 February
2003 for psychiatric problems unrelated to plaintiff's electrical
injury. This evidence supports finding number forty, that
plaintiff's inability to earn wages between the hearing and theclose of the record was not caused by plaintiff's electrical
injury. Because findings thirty-eight and forty are adequately
supported, we overrule these assignments of error.
Plaintiff assigns error to the Industrial Commission's
conclusion of law number one, which provides that "defendants have
successfully rebutted the presumption of continued disability by
showing suitable work has been available for plaintiff since Dr.
Cromer released her; and she has been performing said work since
April 23, 1996." Once an employee proves a disability, there is a
presumption that the disability continues until "'the employee
returns to work at wages equal to those he was receiving at the
time his injury occurred.'" Watson v. Winston-Salem Transit
, 92 N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988)
(quoting Watkins v. Motor Lines
, 279 N.C. 132, 137, 181 S.E.2d 588,
The trial court's conclusion that defendants rebutted the
presumption of continued disability is supported by finding of fact
number five, which is not challenged on appeal. Findings of fact
not excepted to are binding on appeal. Creel v. Town of Dover
N.C. App. 547, 552, 486 S.E.2d 478, 480-81 (1997). In finding
number five, the Industrial Commission found that "[b]y April 23,
1996, Dr. Cromer released plaintiff with no restrictions to full
duty work." The Industrial Commission's conclusion is also
supported by finding number forty-five, in which the Industrial
Commission found that "any reduction in [plaintiff's] wage earningwas not as a result of her compensable injury but due to a
combination of her various absences for unrelated causes, as well
as due to economic changes in the fiber optic cable industry and
the demand for the products from the employer." Accordingly, the
Industrial Commission's conclusion of law number one, that
defendants successfully rebutted the presumption of continued
disability, is adequately supported by the findings.
Plaintiff next assigns error to the Industrial Commission's
conclusion of law number two, in which it concluded:
As the result of the compensable injury,
plaintiff's wage earning capacity was
diminished and she is entitled to temporary
partial disability compensation at the rate of
two-thirds of the difference between her pre-
injury wage and her actual earnings during the
period from January 3, 1996 and April 23,
1996. N.C. Gen. Stat. § 97-30. Defendants
are entitled to a credit for any disability
compensation already paid to plaintiff for
this period. Plaintiff is not entitled to
additional benefits after April 23, 1996, as
there is insufficient evidence to support a
finding that any reduction in her wage earning
capacity was due to the electric shock injury.
The first sentence of conclusion of law two is supported by
findings two through five, which are not challenged. The
Industrial Commission found that plaintiff experienced two electric
shocks to her right side on 3 January 1996 and that Dr. Cromer
authorized plaintiff to continue working full duty. However, the
Industrial Commission recognized that plaintiff was restricted to
no overtime work. The Industrial Commission also recognized that
plaintiff was restricted from working in the area where the
incident occurred and was restricted from tasks that posed a riskof electrical shock due to plaintiff's anxiety. The Industrial
Commission found that Dr. Cromer released plaintiff for full time
work with no restrictions on 23 April 1996. Plaintiff was entitled
to disability compensation for her partial work restrictions.
The second sentence of conclusion of law two is supported by
finding number seven, that defendants paid temporary total
disability benefits to plaintiff pursuant to a Form 21 Agreement.
Because defendants previously paid benefits to plaintiff,
defendants are entitled to a credit in the amount already paid.
Finally, the Industrial Commission's conclusion that plaintiff
is not entitled to additional benefits after 23 April 1996 is
supported by findings 12, 15, 38, 39, 40, and 45. The Industrial
Commission's findings establish that there was insufficient
evidence to show that any of plaintiff's medical conditions and
resulting work restrictions after 23 April 1996 were related to the
electrical shock injury. Rather, the evidence showed that
plaintiff's medical conditions since 23 April 1996 were either
unrelated to her original compensable injury or were entirely
unrelated to work. Accordingly, conclusion of law two is
adequately supported by the findings of fact.
Plaintiff further assigns error to the Industrial Commission's
conclusion of law number four. Conclusion number four provides:
Plaintiff is entitled to have defendants pay
for medical expenses incurred as a result of
the compensable injury as may be required to
provide relief, effect a cure or lessen the
period of disability for the electric shock
injury. N.C. Gen. Stat. §§ 97-2(19);-25. The
authorized medical treatment includes care
rendered by Dr. Cromer and he is approved as[plaintiff's] treating physician. Plaintiff
is not entitled to have defendants provide
treatment under this claim for her bilateral
epicondylitis or trapezius strain.
[Plaintiff] is likewise not entitled to have
defendants provide treatment for her unrelated
depression or other unrelated health
The North Carolina Workers' Compensation Act provides that
"[m]edical compensation shall be provided by the employer." N.C.
Gen. Stat. § 97-25 (2005). The Workers' Compensation Act further
defines medical compensation as
medical, surgical, hospital, nursing, and
rehabilitative services, and medicines, sick
travel, and other treatment, including medical
and surgical supplies, as may reasonably be
required to effect a cure or give relief and
for such additional time as, in the judgment
of the Commission, will tend to lessen the
period of disability[.]
N.C. Gen. Stat. § 97-2(19) (2005). Pursuant to the Act, an
employer must pay future medical expenses of an injured employee
"when the treatment lessens the period of disability, effects a
cure or gives relief." Parsons v. Pantry, Inc.
, 126 N.C. App. 540,
541-42, 485 S.E.2d 867, 869 (1997). However, such future expenses
must be directly related to the original compensable injury. Id
at 542, 485 S.E.2d at 869.
The Industrial Commission found in finding number thirty-eight
that plaintiff's bilateral epicondylitis and bilateral trapezius
strain conditions "do not constitute a change of condition related
to the electric shock, but rather are . . . new injur[ies] or
occupational disease[s] which occurred while Travelers, which is
not a party to this action, was the carrier on the risk." Therefore, plaintiff is not entitled to have defendants provide
treatment for these conditions under this claim.
Findings 18, 19, 20, 24 and 26 also support the Industrial
Commission's conclusion that plaintiff's depression was unrelated
to plaintiff's original electrical injury. These findings
establish that plaintiff's depression and resulting work
restrictions were caused by personal problems unrelated to her work
at Corning. Therefore, conclusion of law number four is adequately
supported by the findings. Because the challenged conclusions of
law are adequately supported, we overrule these assignments of
Plaintiff also assigns error to the Industrial Commission's
failure to liberally construe the Workers' Compensation Act in her
favor. The Workers' Compensation Act should be construed liberally
so as to effectuate its purpose of providing compensation for
injured workers. Hollman v. City of Raleigh
, 273 N.C. 240, 252,
159 S.E.2d 874, 882 (1968). However, "'the courts cannot
judicially expand the employer's liability beyond the statutory
parameters.'" Bondurant v. Estes Express Lines, Inc.
, 167 N.C.
App. 259, 265, 606 S.E.2d 345, 349 (2004) (quoting Hendrix v.
, 317 N.C. 179, 190, 345 S.E.2d 374, 381
(1986)). Because plaintiff is not entitled to compensation for
medical conditions which are unrelated to her original electrical
shock injury, the Industrial Commission did not err by denying
plaintiff's claims for additional compensation. Accordingly, weoverrule this assignment of error.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
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