Plaintiff had been employed for four months as a tractor
trailer driver for Defendant Ryder Integrated Logistics, Inc.
(“Ryder”) when, on 23 December 1998, Plaintiff returned to Ryder's
lot on North Carolina Highway 268 to drop off his truck. As he
exited the truck holding on to the truck cab's handrail with his
left hand, Plaintiff's foot slipped on ice which had accumulated on
the truck's running board. As a result, Plaintiff was dangling
from the handrail by his left arm for a few moments before gaining
sure footing on the ground. Plaintiff reported the incident to his
supervisor who instructed Plaintiff to see a doctor as soon as
possible.
On 28 December 1998, Plaintiff was examined by Dr. John L.
Bond. Plaintiff's x rays were normal, so Dr. Bond suspected a
sprain. Dr. Bond prescribed Vicodin for Plaintiff's pain and took
Plaintiff out of work. Shortly thereafter, Ryder filed an
“Employer's Report of Injury to Employee” with the North Carolina
Industrial Commission and began providing Plaintiff with disability
and medical compensation benefits. Over the next three months, Dr.
Bond continued to treat Plaintiff with injections, therapy,
cervical traction, and pain medications. Plaintiff, however,
reported no significant improvements. Dr. Bond determined that
Plaintiff was capable of doing work at a modified level and
recommended that he receive a neurosurgical evaluation.
In March 1999, Dr. John A. Wilson ordered magnetic resonance
imaging (“MRI”) of Plaintiff's neck. The MRI results were normal,showing minimal degenerative changes and osteophytic ridges, and no
compression of the spinal cord and nerve roots. Concluding that
there was no neck injury, Dr. Wilson released Plaintiff to return
to work and recommended he see an orthopedist to address his
shoulder complaints.
In June 1999, Plaintiff received an orthopedic evaluation from
Dr. Walton W. Curl. Dr. Curl's initial examination indicated “no
tenderness over the rotator cuff . . . [and] normal strength in the
bilateral upper extremities.” Dr. Curl ordered an MRI of the
shoulder, but estimated the injury was likely cervical and soft
tissue related. The MRI did not indicate a rotator cuff tear but
did evidence cystic lesions characteristic of a ganglion cyst.
In July 1999, after reviewing the results of Plaintiff's MRI
scans, Dr. Bond diagnosed Plaintiff with a shoulder strain,
recommended he stay on modified work, and estimated that he would
have a 10 percent partial permanent impairment (“PPI”) to his left
upper extremity.
On 21 September 1999, Plaintiff was released from his
employment,
(See footnote 1)
but Ryder continued providing disability and medical
compensation payments. After his release, Plaintiff saw another
doctor for an independent medical examination (“IME”). An
electromyography (“EMG”), a nerve conduction study, and an MRI of
the neck were ordered to determine whether Plaintiff sustained any
neurological injury. The EMG and nerve conduction study yieldednormal results, and the MRI did not reveal any significant change
from Plaintiff's first MRI.
From September 1999 into 2000, all of Plaintiff's objective
tests with Dr. Bond were relatively normal, yet Plaintiff displayed
no signs of improvement and reported escalated pain. A second
nerve conduction study and EMG test to the left upper extremity
yielded normal results. In April 2000, Plaintiff underwent a
functional capacity evaluation (“FCE”) which revealed that despite
his complaints of pain, he was capable of working at the medium
duty level. Dr. Bond opined that Plaintiff would likely have a 35
percent PPI of the left upper extremity. Dr. Bond concluded that
Plaintiff was incapable of driving a truck for extended periods of
time and suggested that he restrict any lifting to fifteen pounds.
When Plaintiff continued to complain of pain, however, Dr. Bond
concluded that he was only able to perform sedentary work at the
waist level on the left side.
In June 2000, at the request of Defendants and in order to
continue receiving benefits, Plaintiff began vocational
rehabilitation in addition to medical treatment. Plaintiff had not
obtained a job by January 2001 and Plaintiff's vocational counselor
began noting his lack of participation in job search efforts.
Also, Plaintiff began demonstrating overt behaviors inconsistent
with a diligent job search.
(See footnote 2)
On 22 February 2001, Defendants fileda motion to compel Plaintiff to fully participate in his vocational
job search. The Commission, however, denied Defendants' motion.
In May 2001, Plaintiff returned to Dr. Curl who re-evaluated
Plaintiff's condition by examining Plaintiff and reviewing his 1999
MRI of the shoulder. The examination and MRI revealed suggestions
of cystic lesions in the suprascapular notch, but did not reveal a
rotator cuff tear or any condition indicating that surgical
intervention would be required. Dr. Curl recommended a
neurosurgical evaluation to ensure surgery was not needed, but Dr.
Curl believed Plaintiff had reached maximum medical improvement
(“MMI”) and was capable of working. Dr. Curl released Plaintiff
for full-time work with a fifteen-pound weight lifting restriction.
Plaintiff still was not fully cooperating with vocational
rehabilitation in August 2001. Therefore, Defendants renewed their
motion to compel participation, and on 21 February 2002, the
Commission ordered Plaintiff to comply with reasonable vocational
rehabilitation efforts pursuant to N.C. Gen. Stat. § 97-25, or risk
a suspension of compensation. Despite the Commission's order,
Plaintiff refused to fully participate in vocational rehabilitation
efforts.
Through June 2002, Plaintiff continued to receive medical
treatment from Dr. Bond. Dr. Bond administered injections and
prescribed pain relief medication, but Plaintiff never reported any
improvements. A third MRI of Plaintiff's neck revealed no changes
from prior testing. On 15 January 2003, Dr. Bond stated that
Plaintiff was no longer capable of working in any employment, andrecommended that Plaintiff be referred to a pain clinic.
Plaintiff's vocational rehabilitation was terminated as a result of
Dr. Bond's opinion.
On 15 April 2003, Plaintiff saw Dr. O. Del Curling for a
neurosurgical consultation and IME regarding his neck. Dr. Curling
reported that “the etiology of [Plaintiff's] symptoms [was]
somewhat unclear,” noting that his assessment was clouded by
Plaintiff's demonstration of “symptom magnification behavior.”
Through testing, Dr. Curling was able to “rule out a left cervical
radiculopathy as a source of [Plaintiff's] pain[.]” Dr. Curling
found that Plaintiff was at MMI and considered him capable of
modified work. Dr. Curling suggested an FCE to pinpoint
Plaintiff's work capability, but warned that Plaintiff might “self
limit his performance as a result of his pain syndrome.” Dr.
Curling found no causal relationship between Plaintiff's current
problems and his 23 December 1998 accident.
Dr. Bond disagreed with Dr. Curling's assessment, and in
September 2003, Dr. Bond estimated that Plaintiff had a 65 percent
PPI of his left upper extremity.
In November 2003, Plaintiff underwent another IME with
orthopedic surgeon Dr. Frank Rowan. Plaintiff told Dr. Rowan that
since the accident, his pain was so severe he could not do chores
around the house or operate a vehicle. Dr. Rowan examined
Plaintiff's medical records as well as surveillance tapes that
showed Plaintiff (1) carrying a ten-to-fifteen-pound bag in his
left arm, (2) using his left hand to lift the bag and place it inthe trunk, and (3) driving with both hands. Dr. Rowan concurred
with Dr. Curling's assessment, concluding that Plaintiff (1) needed
no further treatment, (2) needed to return to work according to his
capabilities under the FCE guidelines, and (3) was likely capable
of doing more. Additionally, Dr Rowan concluded that “Plaintiff
[had] no injury causally related to any incident in 1998.”
On 25 November 2003, Plaintiff's second FCE revealed that he
was capable of performing work at least at the sedentary-light duty
level. The results were deemed inconclusive, however, due to
Plaintiff's “overall symptom exaggeration and failure to comply
with testing[.]” Nevertheless, Dr. Bond expressed his opinion that
Plaintiff was now totally disabled.
Pursuant to Plaintiff's request for a hearing, Plaintiff's
case came before Deputy Commissioner George T. Glenn, II, for
hearings on 24 February 2004 and 1 June 2004. After the hearings,
Deputy Commissioner Glenn issued an order compelling Plaintiff to
“attend and fully participate in[] an assessment with the Wilkes
County Vocational Workshop[.]” Despite the order, Plaintiff
reported to only seven of the thirteen sessions. Additionally,
Plaintiff never stayed for more than one hour on the days he did
attend, and his productivity and participation were very poor.
On 17 November 2004, Plaintiff saw Dr. Hans C. Hansen for a
pain management evaluation. Dr. Hansen recommended some
interventional measures to treat Plaintiff's ongoing complaints of
pain and advised Plaintiff to reduce his pain medication usage. Dr. Hansen suggested that Plaintiff was capable of returning to
work on a graduated basis.
On 30 August 2005, Deputy Commissioner Glenn filed an opinion
and award concluding that Plaintiff's current conditions were not
causally related to his work accident, and that, consequently,
Defendants were entitled to terminate Plaintiff's disability
benefits and medical compensation. The Full Commission affirmed
Deputy Commissioner Glenn's decision by opinion and award filed 20
June 2006. For the reasons which follow, we affirm the decision of
the Full Commission.
In considering an appeal from a decision 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). “The Commission's findings of
fact are conclusive on appeal when supported by such competent
evidence, 'even though there [is] evidence that would support
findings to the contrary.'”
McRae v. Toastmaster, Inc., 358 N.C.
488, 496, 597 S.E.2d 695, 700 (2004) (quoting
Jones v. Myrtle Desk
Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)). “[F]indings
of fact to which [an appellant] has not assigned error and argued
in his brief are conclusively established on appeal.”
Static
Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568
S.E.2d 305, 308 (2002) (citation omitted). “The Commission'sconclusions of law are reviewed
de novo.”
McRae, 358 N.C. at 496,
597 S.E.2d at 701 (citation omitted).
Furthermore, an appellate court “'does not have the right to
weigh the evidence and decide the issue on the basis of its
weight.'”
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998) (quoting
Anderson v. Lincoln Constr. 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). “[T]he full Commission is the sole judge of the
weight and credibility of the evidence . . . .”
Deese, 352 N.C. at
116, 530 S.E.2d at 553.
In his brief, Plaintiff argues that none of the Commission's
findings of fact or conclusions of law “are . . . supported by the
prevailing competent evidence of record.”
Notably, Plaintiff did
not assign error to any of the Commission's twenty-eight findings
of fact or four conclusions of law. Plaintiff's sole assignment of
error states “[t]he Full Commission committed error in overlooking
the diagnoses and opinions given by Dr. Bond and Dr. Hanson [sic],
Plaintiff's treating physicians, and in following the physicians
who had merely conducted an independent medical examination.”
This
assignment of error is insufficient to present any of the
Commission's findings or conclusions for our review.
See N.C. R.
App. P. 10(c)(1) (“An assignment of error is sufficient if it
directs the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references.”). Moreover, even were we to
conclude that this assignment of error properly presented any ofthe Commission's findings or conclusions, the extent of Plaintiff's
argument regarding any of those findings and conclusions is that
“Plaintiff adamantly disputes” the Commission's third conclusion of
law. This statement is no argument at all and is without merit.
See N.C. R. App. P. 28(b) (“An appellant's brief in any appeal
shall contain . . . [a]n argument . . . .”).
We agree with Defendants that the thrust of Plaintiff's
argument on appeal is “that the Commission erred in affording
greater weight to the medical opinions” of certain doctors over
others. Such an argument is not properly made to this Court and is
overruled.
Deese,
supra;
Adams,
supra.
The opinion and award of the North Carolina Industrial
Commission is affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
Footnote: 1