An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 7 November 2006
JERRY R. SMITH,
v. N.C. Industrial Commission
I.C. File No. 191193
SOUTHLAND PINE NEEDLES,
Appeal by plaintiff from opinion and award entered by the
North Carolina Industrial Commission on 16 August 2005. Heard in
the Court of Appeals 22 August 2006.
Brumbaugh, Mu & King, P.A., by Angela D. Vandivier-Stanley,
Womble Carlyle Sandridge & Rice, P.L.L.C., by Clayton M.
Custer and Julie B. Bradburn, for defendant-appellees.
In February 2004, Deputy Commissioner J. Brad Donovan entered
an opinion and award granting plaintiff temporary total disability
benefits and medical treatment for injury to his back. Defendants
appealed to the Full Commission, which reversed the Deputy
Commissioner. Plaintiff appeals. We affirm the Full Commission's
opinion and award. The facts as found by the Commission show that plaintiff was
employed as an assistant plant manager with defendant-employer. On
24 July 2001, plaintiff injured his right leg in a non-work-related
softball game. He was diagnosed with a muscle strain and put on
crutches, but he continued to experience pain in his hip, leg,
knee, and back. On 20 August 2001, plaintiff saw orthopedist Dr.
Jason Guevera, who diagnosed him with greater trochanteric bursitis
and a hamstring pull. Dr. Guevara ordered physical therapy, and
plaintiff returned to light duty work the following week.
Plaintiff claims that on 5 September 2001, while at work, he
stepped back onto a piece of wood and fell. Plaintiff claims that
he reported the incident to the general manager but admits that he
did not fill out an accident report. Plaintiff did not seek
medical attention following the accident. The general manager
subsequently assigned plaintiff to run a front-end loader.
Plaintiff claims that the vibration and abrupt movements of the
loader, which had a broken seat, caused him further back pain. On
23 September 2001, plaintiff left work and did not return, due to
his back pain. Plaintiff claimed that he went to the doctor's
office, but he produced no medical records or testimony.
On 23 October 2001, plaintiff returned to see Dr. Guevara for
his previously scheduled follow-up appointment. Plaintiff did not
report a fall at work nor that the type of work he had beenperforming aggravated his condition. On 24 October 2001, plaintiff
saw Todd Zeh, a chiropractor recommended by Dr. Guevara. Mr. Zeh's
examination of plaintiff revealed low back muscle spasm, decreased
range of motion in the lower back, diminished Achilles and patellar
reflexes, and some muscle weakness. He opined that plaintiff's
test results were consistent with sacroiliac joint problems. On 4
December 2001, plaintiff returned to see Dr. Guevara and
specifically requested that the doctor note in his records that
plaintiff had fallen at work on 12 August 2001. In December 2001,
plaintiff underwent an MRI, which showed several bulged disks.
In January 2002, plaintiff saw orthopedist Dr. Malcomb
Shupeck, who noted minimal disk disease and was unable to explain
plaintiff's complaint of leg pain. On 7 February 2002, orthopedic
spine specialist Dr. Dion Arthur examined plaintiff. He suspected
symptom magnification by plaintiff and concluded that the MRI did
not indicate a recent injury, such as a fall, but was more
consistent with a chronic type of degenerative condition. In June
2002, plaintiff saw his family physician, Dr. Ohadugha, who
diagnosed sciatica. In October 2002, plaintiff presented to Dr.
Rene Kotzen, a neurosurgeon, who diagnosed him with disc bulging.
Dr. Rajesh Khurana, a family practitioner, also testified that he
saw plaintiff in 1997 and 1999 for several complaints, including
mild back pain. On 7 November 2001, plaintiff gave a recorded interview to
Barbara Jones of AmComp. He stated that his back first began
hurting on 5 September 2001, but that two weeks prior to the
interview (approximately 24 October 2001), he was driving the
front-end loader when he could no longer take the pain. He claimed
that he went to his doctor that day and told Jones that he would
provide her with this doctor's name. At the hearing, several of
plaintiff's co-workers testified that they never saw him fall on 5
Plaintiff argues that the overwhelming weight of the
competent, credible evidence establishes that he sustained a
compensable injury by accident. We disagree.
This Court's review
of an Industrial Commission decision 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) (citing Adams v. AVX Corp., 349
N.C. 676, 509 S.E.2d 411 (1998). [T]he full Commission is the
sole judge of the weight and credibility of the evidence. Id.
the sole judge of the credibility of witnesses, the Commission
may accept or reject any of a claimant's evidence. Grant v.
Burlington Indus., Inc., 77 N.C. App. 241, 247, 335 S.E.2d 327, 332
(1985). On appeal,
if the record contains any evidence tending tosupport the findings, such findings will be conclusive even if
there be evidence that would support findings to the contrary.
Adams, 349 N.C. at 681, 509 S.E.2d at 414 (internal citation and
quotation marks omitted).
It is well established that a workers' compensation claimant
bears the burden of proving that he or she sustained an injury by
accident arising out of and in the course of employment. N.C.
Gen. Stat. § 97-2(6) (2003); Smith v. Dacotah Cotton Mills, Inc.,
31 N.C. App. 687, 690, 230 S.E.2d 772, 774 (1976). Here, the
Commission made the following pertinent finding:
26. The greater weight of the competent and
credible evidence of record supports a finding
that plaintiff did not sustain an injury by
accident or specific traumatic incident on or
about September 5
, 2001. Specifically, the
plaintiff is not accepted as a credible
witness as to the testimony offered at the
hearing before the deputy commissioner
regarding the history of the alleged injury as
well as the numerous inconsistent accounts
plaintiff gave to the medical providers and
The record reveals that plaintiff did make inconsistent statements
regarding his injury, and as the Commission is the sole judge of
credibility and is free to
accept or reject any of a claimant's
77 N.C. App. at 247, 335 S.E.2d at 332
, it is not
our role to question this credibility determination or to re-weigh
the evidence. Affirmed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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