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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 April 2007
N. C. Industrial Commission
v. I.C. Nos. 331785
GOODYEAR TIRE & RUBBER COMPANY
d/b/a Kelly Springfield Tire,
LIBERTY MUTUAL GROUP,
Appeal by defendants from Opinion and Award of the Full
Commission of the North Carolina Industrial Commission entered 02
March 2006. Heard in the Court of Appeals 23 January 2007.
The Jernigan Law Group, by Gina E. Cammarano, for plaintiff-
Cranfill, Sumner & Hartzog, L.L.P., by Jaye E. Bingham and
Erin F. Taylor, for defendants-appellants.
In general, our review of findings supporting an Opinion and
Award of the North Carolina Industrial Commission is limited to
determining whether any evidence supports the findings of fact.
(See footnote 1)
Here, the defendant essentially asks us to re-weigh the evidenceand determine that the Full Commission erred in its findings.
Because the standard of review for workers' compensation cases
prohibits the re-weighing of evidence on appeal, we affirm the
Opinion and Award.
Plaintiff Doreen Fincher began working as a tire builder
Defendant Goodyear Tire & Rubber Company, doing business as Kelly
Springfield Tire, in November 1997. Initially, Plaintiff worked
twelve-hour shifts for Kelly Springfield, until she went on the
third shift, from 11:00 p.m. to 7:00 a.m., six days a week, in
2001. Prior to her employment at Kelly Springfield, Plaintiff gave
birth to four children after three pregnancies. She underwent a
tubal ligation procedure after the birth of her last child in
September 1997 and a tummy tuck procedure in 2000.
Plaintiff's work as a tire builder for Kelly Springfield
involved lifting, pushing, and pulling significant amounts of
weight during the course of a shift. In March 2003, Plaintiff
began experiencing health problems, including leaking urine and
feeling pressure in her abdomen and pain in her lower back. After
consulting her family physician and a specialist, Plaintiff was
diagnosed with first-degree uterine prolapse and drop in the
urethrovesical angle. She was then taken out of work by her
doctor, before undergoing surgery on 6 May 2003 for a hysterectomy
and procedures to resolve her urinary incontinence.
On 21 May 2003, Plaintiff filed a Form 18, Notice of Accident
to Employer and Claim of Employee, with the Industrial Commission,
alleging that her prolapsed uterus and fallen bladder wereattributable to her work at Kelly Springfield. She returned to
Kelly Springfield on 7 July 2003 but performed only light duty work
due to her conditions. Kelly Springfield filed a Form 61, Denial
of Workers' Compensation Claim, on 24 July 2003, contending that
Plaintiff had not sustained an injury by accident arising out of
and in the course and scope of employment and that her condition
was the result of a prior condition and not causally related to her
employment. Kelly Springfield sent Plaintiff home from work on 10
October 2003, informing her that there was no longer any light duty
work available within her restrictions; she has not returned to the
job since then.
On 21 April 2005, Deputy Commissioner Theresa B. Stephenson
filed an Opinion and Award in favor of Kelly Springfield,
concluding that Plaintiff had failed to establish that her injuries
were characteristic to her employment and were not a disease to
which the general public was equally exposed, or that they were
causally connected to her employment. Plaintiff appealed to the
Full Commission, which reviewed the case on 8 December 2005, and
filed an Opinion and Award reversing that of Deputy Commissioner
Stephenson and finding instead in favor of Plaintiff. In its
findings of fact, the Full Commission stated that, contrary to
Deputy Commissioner Stephenson, it g[a]ve greater weight to the
opinions of . . . [Plaintiff's] treating physician, as [Kelly
Springfield's] expert witness . . . has never met with or examined
[Plaintiff]. Additionally, the Full Commission found that the
greater weight of the evidence showed that Plaintiff was atincreased risk of her injuries than the general public because of
her employment with Kelly Springfield, and that the heavy lifting
at her job was a significant, or very important, contributing
factor in her injuries.
Kelly Springfield now appeals that Opinion and Award, arguing
that (I) the findings of fact concerning whether Plaintiff suffered
from a compensable occupational disease were not supported by
competent evidence, and its conclusions of law and subsequent award
based on this issue were not supported by the findings of fact or
the applicable law, and (II) the Commission erred in failing to
make necessary findings regarding the required elements of an
occupational disease claim.
First, Kelly Springfield contends that the Full Commission's
findings of fact concerning whether Plaintiff suffered from a
compensable occupational disease were not supported by competent
evidence and, accordingly, the Commission's conclusions of law and
award based on those findings were erroneous. We disagree.
On review of an Opinion and Award from the Full Commission of
the North Carolina Industrial Commission, this Court 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). In particular, this
Court does not have the right to weigh the evidence and decide the
issue on the basis of its weight. The court's duty goes no furtherthan to determine whether the record contains any evidence tending
to support the finding. Adams v. AVX Corp., 349 N.C. 676, 681,
509 S.E.2d 411, 414 (1998) (quoting Anderson v. Construction Co.,
265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), reh'g denied, 350
N.C. 108, 532 S.E.2d 522 (1999).
If there is any evidence at all, taken in the light most
favorable to the plaintiff, the finding of fact stands, even if
there is substantial evidence supporting the opposing position,
id., and findings may be set aside on appeal only where there is
a complete lack of competent evidence to support them. Rhodes v.
Price Bros., Inc., 175 N.C. App. 219, 221, 622 S.E.2d 710, 712
(2005) (quotation omitted). However, we review the Commission's
conclusions of law de novo. Griggs v. Eastern Omni Constructors,
158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).
After a careful review of the record before us, we conclude
that there is competent evidence to support each of the Full
Commission's findings of fact challenged by Kelly Springfield.
First, Kelly Springfield objects to the Full Commission's finding
that Plaintiff's doctor took [her] out of work due to the lifting
requirements of her job. In his deposition, however, Plaintiff's
doctor stated that he was concerned by the manual labor nature of
Plaintiff's job and how that was contributing to her lower back
pain, which was linked to her prolapsed uterus. He then confirmed
that he took her out of work at the time of that appointment and
discussion regarding her pain. These statements constitute
competent evidence to support the Full Commission's finding. Likewise, although Kelly Springfield challenges the Full
Commission's finding that Plaintiff's employment was a
contributing factor for developing uterine prolapse and cystocele
[fallen bladder], the doctor answered, I believe it was, in
direct response to that question during his deposition, and later
stated that [the heavy lifting] is a contributing factor. Again,
this is sufficient evidence to support the finding of fact and to
withstand our review at the appellate level.
The remaining three findings of fact challenged by Kelly
Springfield all refer to the Commission's determination to give
greater weight to certain evidence, including the testimony of
Plaintiff's doctor rather than the expert witness for the defense.
As this Court does not have the right to weigh the evidence and
decide the issue on the basis of its weight
, Adams, 349 N.C. at
681, 509 S.E.2d at 414, and we have found competent evidence to
support the Full Commission's determinations, we conclude that
these findings of fact are binding upon this Court.
Kelly Springfield also argues that the Commission's conclusion
of law that Plaintiff's pelvic prolapse is an occupational disease
is not supported by its findings of fact.
North Carolina General Statute § 97-53(13) provides that an
occupational disease is [a]ny disease . . . which is proven to be
due to causes and conditions which are characteristic of and
peculiar to a particular trade, occupation or employment, but
excluding all ordinary diseases of life to which the general public
is equally exposed outside of the employment. N.C. Gen. Stat. §97-53(13) (2005). In construing these requirements, our State
Supreme Court has stated that,
To satisfy the first and second elements it is
not necessary that the disease originate
exclusively from or be unique to the
particular trade or occupation in question.
All ordinary diseases of life are not excluded
from the statute's coverage. Only such
ordinary diseases of life to which the general
public is exposed equally with workers in the
particular trade or occupation are excluded.
Thus, the first two elements are satisfied if,
as a matter of fact, the employment exposed
the worker to a greater risk of contracting
the disease than the public generally. The
greater risk in such cases provides the nexus
between the disease and the employment which
makes them an appropriate subject for
Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93-94, 301 S.E.2d
359, 365 (1983) (internal citations and quotation omitted).
The Commission's findings of fact that Plaintiff's employment
was a contributing factor to her injuries and that her job placed
her at increased risk for such injuries support their conclusion
that her condition was an occupational disease, even if not
exclusive to those in her type of employment. An award based on
that conclusion of law was appropriate.
These assignments of error
are accordingly overruled.
Kelly Springfield next argues that the Commission erred in
failing to make necessary findings regarding the required elements
of an occupational disease claim. We disagree.
As this Court has noted in the past, the Industrial
Commission is not required to make specific findings of fact onevery issue raised by the evidence, but only on crucial facts
upon which the right to compensation depends. Watts v. Borg
Warner Automotive, Inc.
, 171 N.C. App. 1, 5, 613 S.E.2d 715, 719,
aff'd per curiam
, 360 N.C. 169, 622 S.E.2d 492 (2005). Here, the
Full Commission made findings sufficient to determine the right to
compensation; Kelly Springfield objects only that the Full
Commission failed to make findings that would have supported its
position rather than Plaintiff's. We find that argument to be
Judges HUNTER and STEELMAN concur.
Report per rule 30(e).
Adams v. AVX Corp.
, 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998) (quoting Anderson v. Construction Co.
, 265 N.C. 431, 434,
144 S.E.2d 272, 274 (1965)), reh'g denied
, 350 N.C. 108, 532
S.E.2d 522 (1999)
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