An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 18 July 2006
N.C. Industrial Commission
I.C. No. 215326
FIVE STAR FOOD SERVICE, INC.
ST. PAUL FIRE & MARINE
Appeal by plaintiff from opinion and award entered 1 March
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 22 March 2006.
Keel O'Malley, LLP, by Joseph P. Tunstall, III, for plaintiff-
Lewis & Roberts, P.L.L.C., by Winston L. Page, Jr. and Bryant
D. Paris, III, for defendants-appellees.
Carol Swaney (plaintiff) appeals the Opinion and Award by the
Full Commission entered 1 March 2005 and also the denial of her
Motion for Reconsideration and for Additional Findings of Fact.
For the reasons that follow, we affirm.
Plaintiff was employed as a delivery driver for Five Star Food
Service, Inc. (Five Star) beginning in January of 2000. As a
delivery driver, plaintiff pulled orders for potato chips, candy,coffee, sandwiches, paper products, and snack crackers. Plaintiff
delivered boxes of these products to individual locations to be
loaded into vending machines. Plaintiff testified that she
unloaded boxes with an average weight of fifty to one hundred
pounds. Plaintiff's supervisor, Ralph Litwitz (Mr. Litwitz),
testified that the boxes ranged in weight but the heaviest item
would be thirty-five pounds.
On 15 October 2001 plaintiff was unloading boxes from the back
of the delivery truck onto a handcart at the Perdue plant in
Robersonville, North Carolina. Plaintiff testified that she turned
to place a box on the handcart and felt a severe pain in the middle
of her back. Plaintiff stood still for a few minutes to see if the
pain would subside, but it did not. Plaintiff finished unloading
the delivery at Perdue, delivered sandwiches to National Spinning
in Washington, North Carolina, and then returned to the Five Star
office in Kinston. According to plaintiff, she informed her
supervisor, Mr. Litwitz, that she had injured her back. However,
Mr. Litwitz testified that plaintiff did not report a back injury
following her route that day.
Dr. Kenneth L. Johnson, II (Dr. Johnson), an internal medicine
specialist, began treating plaintiff for osteoarthritis of her
hands in August of 2000. Dr. Johnson prescribed Vioxx for her
osteoarthritis. When plaintiff returned to Dr. Johnson on 10
August 2001, Dr. Johnson noted that plaintiff continued to suffer
from symptoms of osteoarthritis. On 15 October 2001, the day of
her alleged injury, plaintiff returned to Dr. Johnson for anappointment scheduled prior to that day. Plaintiff reported back
pain between her shoulders that had been going on for the past
week. Dr. Johnson diagnosed plaintiff with a mild paraspinal
strain with muscle spasm. Dr. Johnson made no note in plaintiff's
records of a work-related injury to her back. On 23 October 2001
plaintiff presented with continued back pain.
On 5 November 2001 plaintiff was evaluated by Dr. Kurt Voos
(Dr. Voos), a specialist in spinal surgery. Dr. Voos testified
that plaintiff reported to him that she had been having neck and
low back pain over the past six to eight months but that it had
significantly worsened over the past three to four weeks. Dr. Voos
recommended a cervical spine MRI. The MRI revealed that plaintiff
had a disk herniation at C5-6. Dr. Voos then recommended physical
therapy and epidural steroid injections for plaintiff. During
plaintiff's visit on 13 May 2002, when she presented with low back
pain, Dr. Voos ordered a lumbar MRI. Plaintiff returned to Dr.
Voos on 5 June 2002. Dr. Voos reviewed the lumbar MRI and
determined that plaintiff had some foraminal stenosis at L4-5. Dr.
Voos noted in plaintiff's medical records that he could not
determine the etiology of her low back pain. After reviewing a CT
myelogram on 28 August 2002, Dr. Voos noted that the results were
essentially normal with a mild disk bulge at L4-5. On 23 July
2003 Dr. Voos recommended proceeding with an anterior cervical
diskectomy and fusion at C5-6.
Plaintiff continued to perform light duty work for a week
following her alleged injury of 15 October 2001. On 21 February2002 plaintiff filed a Form 18 with the North Carolina Industrial
Commission reporting a back injury that occurred in October of
2001. Deputy Commissioner Phillip A. Holmes entered an Opinion and
Award on 23 January 2004. Deputy Commissioner Holmes concluded
that plaintiff failed to prove by the greater weight of the
evidence that she sustained an injury by accident on 15 October
2001. Plaintiff appealed to the Full Commission, which entered its
Opinion and Award on 1 March 2005. The Commission affirmed the
deputy commissioner's decision with minor modifications.
Commissioner Bernadine S. Ballance dissented from the majority
opinion. Plaintiff filed a motion for reconsideration, which was
denied by the Commission in an order entered 6 May 2005.
Plaintiff's notice of appeal to this Court was filed on 9 May 2005.
Our review of a decision of the North Carolina Industrial
Commission 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). [F]indings of fact by the Commission may be set aside on
appeal when there is a complete lack of evidence to support
them[.] Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538
S.E.2d 912, 914 (2000). But, when there is any competent evidence
in the record to support a finding of fact, that finding is binding
upon the appellate court even where there is contradictoryevidence. See Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d
411, 414 (1998).
Plaintiff assigns error to the Commission's findings on the
credibility of the testimony by plaintiff's treating physician Dr.
Johnson. The Commission made the following pertinent finding of
17. Based upon the expert testimony of record,
the Full Commission gives greater weight to
the causation opinions of Dr. Voos,
plaintiff's treating spine specialist than to
Dr. Johnson, who bases his opinion of causal
relation on his memory of events that occurred
two years earlier rather than his own medical
records which are in contradiction to his
memory. Dr. Voos concludes that he is unable
to determine the etiology of plaintiff's
cervical complaints. Therefore the Full
Commission finds based upon the greater weight
of the evidence that plaintiff has failed to
prove that she sustained an injury by accident
or a specific traumatic incident of the work
assigned arising out of and in the course of
her employment with defendant-employer.
With respect to plaintiff's contention that there is no
competent evidence to support the Commission's finding on the
credibility of Dr. Johnson, we note initially that this Court may
not re-weigh the testimony of an expert witness. See Deese, 352
N.C. at 115, 530 S.E.2d at 552 (the Commission is the sole judge of
the weight to be given witness testimony; appellate court may not
weigh the evidence because Commission is the fact finding body);
see also Adams, 349 N.C. at 680-81, 509 S.E.2d at 413.
Plaintiff asserts that Dr. Johnson's testimony on causation
should be entitled to more weight. More specifically, plaintiffargues that Dr. Johnson was plaintiff's family physician and that
his testimony should be given more weight than the testimony of Dr.
Voos, who treated plaintiff during the time period from November
2001 through July 2003. However, this Court is bound by a
credibility determination of the Commission where there is any
competent evidence to support it. See Drakeford v. Charlotte
Express, 158 N.C. App. 432, 441, 581 S.E.2d 97, 103 (2003) ([T]he
Full Commission is the 'sole judge of the weight and credibility of
the evidence' and does not have to explain its findings of fact by
attempting to distinguish which evidence or witnesses it finds
credible.) (quoting Deese, 352 N.C. at 116, 530 S.E.2d at 553).
Dr. Johnson testified that he recalled plaintiff informing him
that she was moving a box with a twisting movement when she felt
pain in her back. Dr. Johnson stated that he did not remember why
he failed to record in plaintiff's medical documents this statement
made by her about the cause of her injury. On cross-examination,
Dr. Johnson stated that he determined on the day of his deposition
that he should convey this information about plaintiff's injury.
As stated previously, determinations of credibility are the role of
the Commission. See Deese, 352 N.C. at 115, 530 S.E.2d at 552;
Dolbow v. Holland Industrial, 64 N.C. App. 695, 697, 308 S.E.2d
335, 336 (1983) ([T]he Commission may assign more weight and
credibility to certain testimony than other.), disc. review
denied, 310 N.C. 308, 312 S.E.2d 651 (1984). The Commission could
have properly determined that, given Dr. Johnson's failure to
record any note regarding an injury at work during the severalvisits in that time period plaintiff made to him, his testimony was
Notwithstanding this Court's limited review of the
Commission's credibility determinations, plaintiff argues that Dr.
Johnson's testimony was the only opinion on causation and that the
Commission erred in failing to enter a finding consistent with this
testimony. But the Commission is not required to accept as true
Dr. Johnson's testimony on causation. See Pittman v. International
Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709 (in
considering and evaluating all the evidence, the Commission may
choose to reject certain testimony of an expert witness), disc.
review denied, 350 N.C. 310, 534 S.E.2d 596, aff'd, 351 N.C. 42,
519 S.E.2d 524 (1999).
Next, plaintiff challenges the Commission's finding that she
did not sustain a back injury resulting from a specific traumatic
incident of the work assigned arising out of and in the course of
her employment. This determination was stated in finding of fact
number 17, supra
. The following other findings of fact by the
Commission are also relevant to plaintiff's challenge:
3. On October 15, 2001, plaintiff made a
delivery in Robersonville. Plaintiff alleges
that while unloading boxes, she picked up a
box to place it on a handcart. Plaintiff
alleges that when she turned to place the box
on the handcart, she felt a pain in her upper
4. Plaintiff completed her route, delivered
sandwich trays to National Spinning in
Washington, and returned to Kinston.
5. After she completed her delivery route on
October 15, 2001, plaintiff alleges that she
reported her injury to her supervisor, Mr.
Ralph Litwitz. However, Mr. Litwitz testified
that plaintiff did not report that she had
injured her back during her route.
6. Mr. Litwitz did not receive a report of a
back injury from plaintiff on October 15,
2001. Accordingly, Mr. Litwitz did not report
that plaintiff injured her back on October 15,
2001 as required by company policy.
9. Dr. Johnson never recorded in his October
15, 2001 office note that plaintiff reported a
workplace injury. However, over two years
later at his deposition, he testified that he
remembered on the day of the deposition that
plaintiff said her pain was work related.
10. On October 23, 2001, plaintiff returned to
Dr. Johnson for additional treatment of her
back. At that time, he referred plaintiff to
Dr. Hardy in Greenville for consultation with
regard to plaintiff's back pain.
11. Dr. Johnson never recorded in his October
23, 2001 office note that plaintiff reported a
16. Plaintiff failed to inform defendant-
employer of her alleged injury within thirty
days after the alleged injury.
Whether an injury arose out of and in the course of
employment is a mixed question of law and fact, and where there is
evidence to support the Commissioner's findings in this regard,
[the appellate court is] bound by those findings. Barham v. Food
, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). We now
determine whether there is competent evidence in the record to
support the Commission's finding that plaintiff failed to establish
her injury arose out of and in the course of her employment with
Five Star. Plaintiff does not dispute that Dr. Johnson failed to record
a work-related injury in his office notes on either of the two
occasions that he evaluated plaintiff in October of 2001 and then,
over two years later during his deposition, asserted that plaintiff
mentioned a work-related injury to him. Also, plaintiff does not
contest finding of fact number four, which states that plaintiff
completed her delivery route before returning to Kinston on 15
October 2001. The failure of plaintiff's treating physician to
record any indication of a work-related back injury supports the
Commission's finding that plaintiff's back pain did not arise out
of a specific incident at work. The fact that plaintiff was
physically able to complete her delivery route before returning to
the Five Star office on 15 October 2001 was further support for the
Additionally, the record contained competent evidence that
plaintiff did not report to her supervisor any back injury caused
by unloading boxes on 15 October 2001 during her delivery route.
Mr. Litwitz, plaintiff's supervisor, testified that plaintiff did
not report to him on 15 October 2001 that she had injured her back
during her delivery route. Instead, Mr. Litwitz testified that
during the year prior to October of 2001, plaintiff had on occasion
complained that her back was hurting her. He stated that if
plaintiff had informed him of a specific back injury following a
delivery route, that he would have followed the company policy of
reporting the injury. Although plaintiff's testimony contradicts
this evidence, we are nonetheless bound by the Commission's findingas there is competent evidence to support it. See Pittman
N.C. App. at 156, 510 S.E.2d at 709 (where there is any competent
evidence to support a finding of the Commission, even if there is
evidence to the contrary, then that finding is conclusive on
After a careful review of plaintiff's assignments of error and
the record on appeal, we hold that the Commission's findings are
supported by competent evidence and its conclusions of law are
supported by the findings. Accordingly, we also hold that the
Commission did not err in denying plaintiff's motion for
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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