An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 21 March 2006
APRIL N. LINDSEY, Employee,
CARDINAL HEALTH, Employer, I.C. File No. 273257
AMERICAN PROTECTION INSURANCE COMPANY,
Appeal by defendants from an opinion and award filed 26
January 2005 by the North Carolina Industrial Commission. Heard in
the Court of Appeals 11 January 2006.
Patterson Harkavy LLP, by Valerie A. Johnson, for plaintiff
Orbock Ruark & Dillard, PC, by Barbara E. Ruark, for defendant
Defendant Cardinal Health and its workers' compensation
carrier, American Protection Insurance Company, appeal from an
opinion and award of the North Carolina Industrial Commission
granting disability and medical benefits to plaintiff April Lindsey
for an injury she suffered while working. We affirm the
Commission's opinion and award.
Defendant Cardinal Health is a pharmaceutical product
distributor. Beginning in September 2001, plaintiff April Lindseybegan working evening shifts at Cardinal to support herself while
During the course of her employment with Cardinal, Lindsey
held several different positions. As an over-the-counter picker
Lindsey filled orders by pulling products from shelves and placing
them into plastic containers, or totes, which were in turn placed
onto a large cart which Lindsey was required to keep with her as
she moved about the company's warehouse. As quality control
personnel, Lindsey removed items from the totes and ensured that
orders had been filled correctly; this position required lifting
totes and placing them either onto the floor or onto a conveyor
In October of 2002, Lindsey suffered an injury by accident at
work when she hurt her left shoulder while reaching for an item on
a high shelf. Her treating physician prescribed physical therapy
and advised Lindsey to observe certain lifting restrictions when
she returned to work. After returning to work, Lindsey was
assigned work running shorts in Cardinal's prescription drug
department. Running shorts involved identifying missing items and
placing them into totes and removing totes from her cart when the
items were not available.
On 24 January 2003, while running shorts in the prescription
drug department, Lindsey bent down to lift a tote and felt a sharp
pain from her left hip to her left toes. Though severe, the pain
quickly subsided. At that time, Lindsey did not associate the
lifting with her leg pain, and she did not believe that sherequired medical attention. After returning home from her shift
and going to bed, Lindsey was awakened by the same left leg pain.
In the ensuing days, Lindsey began to experience the same pain with
Though she continued to work, Lindsey reported her pain to
people in management positions at Cardinal. At one point, she was
given pain medication, and on other occasions, she was permitted to
take brief rest breaks.
After finishing her shift on 29 January, Lindsey sought
treatment for her leg pain at an emergency room. According to
Lindsey, she informed the hospital staff that she first felt pain
in her leg while lifting a tote at work; however, this fact was not
included in the hospital records. She was given pain medication
and told to follow up with her family doctor.
In February of 2003, Lindsey sought treatment with Dr. William
McGough, her family doctor. She reported that she was experiencing
pain in her left hip and leg due to a work injury. Dr. McGough
took Lindsey out of work and ordered an MRI of her lower back. The
MRI was performed on 4 February 2003. It revealed the existence of
a moderately large central disc protrusion at the L4-5 level and a
small disc protrusion at the L5-S1 disc level.
A neurosurgeon, Dr. Ernesto Botero, examined Lindsey on 13
February 2003. The doctor's notes indicate that Lindsey injured
herself while lifting a tote at work. Dr. Botero proceeded with
conservative treatment options, and after this course of action was
unsuccessful, pursued surgical options to address Lindsey's legpain. Despite the surgery, Lindsey's pain persisted. As of 3
November 2003, she remained in the care of Dr. Botero and had been
unable to work since 30 January 2003.
Lindsey filed a claim for workers' compensation. Cardinal
Health and its workers' compensation carrier, American Protection
Insurance Company, (hereinafter referred to collectively as
defendants) denied the claim, contending that Lindsey's injury
did not occur at work. At a hearing before the Industrial
Commission, Lindsey presented her own testimony concerning the
incident at work and the testimony of Drs. Botero and McGough.
Both doctors opined that the injury for which Lindsey sought
compensation was causally related to the incident which occurred
while she was working on 24 January 2003.
A Deputy Commissioner issued a decision denying Lindsey's
claim. Following an appeal by Lindsey, the Full Commission
(hereinafter the Commission) issued an opinion and award granting
compensation and medical benefits to Lindsey.
Defendants now appeal.
On appeal, defendants first contend that the medical testimony
presented by Lindsey failed to support the Commission's
determination that she suffered a work-related injury. This
contention is nonsensical, as both Dr. McGough and Dr. Botero
testified that the injury for which Lindsey sought compensation was
causally related to her 24 January 2003 accident at work. In light
of this unretracted testimony, it is inconsequential whether, asdefendants contend, there is other evidence which, cast in their
favor, permits an inference that Lindsey's treating physicians did
not really believe that an incident at work caused her condition.
See Creel v. Town of Dover
, 126 N.C. App. 547, 552, 486 S.E.2d 478,
480 (1997) (reiterating that the standard of review for an opinion
and award of the North Carolina Industrial Commission is limited to
"(1) whether any competent evidence in the record supports the
Commission's findings of fact, and (2) whether such findings of
fact support the Commission's conclusions of law.); Hobbs v. Clean
, 154 N.C. App. 433, 435, 571 S.E.2d 860, 862 (2002)
(The Commission's findings of fact are conclusive on appeal if
supported by competent evidence, notwithstanding evidence that
might support a contrary finding.).
Defendants next contend that the Commission erred by basing
its findings upon Lindsey's testimony because her testimony was not
credible. In determining the facts of a particular case, [t]he
Commission is the sole judge of the credibility of the witnesses
and the weight accorded to their testimony. Effingham v. Kroger
., 149 N.C. App. 105, 109-10, 561 S.E.2d 287, 291 (2002). In the
instant case, it was the purview of the Commission to determine
whether Lindsey was credible, and we will not revisit that
determination on appeal.
Though we choose not to exercise our discretion to sanction
defendants under Rule 34 of the North Carolina Rules of Appellate
Procedure, we note that the present appeal is entirely frivolous.
The issues raised by defendants are easily resolved by theapplication of well-established and oft-repeated principles of
appellate review. Defendants and their counsel are admonished that
it was inappropriate to file this appeal.
The assignments of error are overruled. The Commission's
opinion and award is
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***