Appeal by plaintiff from opinion and award entered 26 July
2006 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 9 May 2007.
Brumbaugh, Mu & King, P.A., by Nicole D. Wray, for plaintiff-
Young Moore and Henderson, P.A., by Jennifer T. Gottsegen, for
Plaintiff Leonard J. Bradshaw appeals from an opinion and
award of the North Carolina Industrial Commission denying his claim
for workers' compensation benefits. In his sole argument on
appeal, plaintiff contends that "[t]he overwhelming weight of the
competent, credible evidence establishes that Plaintiff sustained
a compensable injury by accident . . . ." Under our standard of
review, the Full Commission is the sole judge of the weight and
credibility of the evidence. Because the Commission's findings offact are supported by competent evidence and those findings in turn
support the conclusions of law, the opinion and award is affirmed.
At the time of the hearing in this matter, plaintiff was 43
years old. Before working for defendant-employer, plaintiff worked
in construction, in various jobs for the City of Wilmington, and at
a trailer manufacturing plant. Initially, plaintiff worked for
defendant-employer as an unloader, but at the time that plaintiff
alleged he was injured, on 10 July 2002, he was managing the
furniture department in one of defendant-employer's stores.
According to plaintiff, he injured his lower back when he
squatted down and attempted to lift a box containing an
entertainment center. He testified that he felt something "pop" in
his lower back. He informed his supervisor, Harry Anderson, of the
incident, and, according to plaintiff, Mr. Anderson advised him to
seek medical care if necessary. No accident report was ever
completed. Mr. Anderson testified that he remembered plaintiff
reporting a back injury during the time plaintiff worked as an
unloader, but he was not sure about the precise day. Mr. Anderson
denied recalling any incident related to the lifting of an
entertainment center. According to Mr. Anderson, plaintiff made
multiple complaints of low back pain prior to the date of the
Plaintiff finished his shift and went home. He claimed that,
on that same evening, he went to the emergency room because of
increased pain. Medical records, however, reflected that plaintifffirst visited the emergency room on 15 July 2002. The records
contained no reference to a work-related injury and reported that
plaintiff complained of having experienced low back pain for years.
During the visit, hospital personnel diagnosed plaintiff with
acute lower back pain and referred him to Dr. Richard M. Leighton,
an orthopedist who had previously treated plaintiff for a neck
injury sustained in an automobile accident. Records from Dr.
Leighton's prior treatment of plaintiff indicated that plaintiff
reported having experienced intermittent low back pain for years.
Dr. Leighton examined plaintiff on 24 July 2002 and diagnosed
his condition as low back pain and a lumbar sprain or strain. Dr.
Leighton prescribed physical therapy, but did not remove plaintiff
from work or assign work restrictions. Dr. Leighton's records from
this examination and from a 4 September 2002 visit did not contain
any indication that this was a work-related injury. On 4
September, Dr. Leighton restricted plaintiff to lifting less than
Three months after the date of the alleged injury, on 8
October 2002, plaintiff gave defendant-employer written notice of
his workers' compensation claim. Plaintiff asserts that any delay
in filing his claim was due to the fact that he did not initially
believe his condition to be serious. Also on 8 October 2002,
defendants sent plaintiff to Shallotte Urgent Care, where a
physician's assistant diagnosed him as having low back pain and a
low back strain without radicular symptoms. Plaintiff was released
to return to work with a lifting restriction of no more than 20pounds and a restriction to sitting work only. On 14 October 2002,
plaintiff requested that defendant-employer grant him a leave of
absence because, according to his testimony, defendant-employer did
not have work available for him.
Medical records indicate that plaintiff again visited Dr.
Leighton on 23 October 2002 with complaints that his back condition
had become aggravated. Dr. Leighton referred plaintiff to Dr.
Sunil K. Arora, an anesthetist and pain-management specialist, who
examined plaintiff on 5 December 2002. Despite taking an extensive
history of plaintiff's condition, Dr. Arora made no mention in his
notes that plaintiff had suffered an injury on the job.
Following a hearing, Deputy Commissioner Bradley W. Houser
entered an opinion and award on 6 July 2005 denying plaintiff's
claim. Plaintiff appealed to the Full Commission. In an opinion
and award entered on 26 July 2006, with Commissioner Thomas J.
Bolch dissenting, the Full Commission denied plaintiff's claim for
benefits on the ground that "[p]laintiff has failed to prove by the
greater weight of the evidence that he sustained a compensable
injury by accident or specific traumatic incident as a result of
the work assigned on or about July 10, 2002, or at any other time."
Plaintiff timely appealed to this Court. Defendants have
cross-assigned error, asserting that the Industrial Commission
erred in failing to find that plaintiff's claim was barred by N.C.
Gen. Stat. § 97-22 (2005) ("Every injured employee or his
representative shall immediately on the occurrence of an accident,
or as soon thereafter as practicable, give or cause to be given tothe employer a written notice of the accident, . . . but no
compensation shall be payable unless such written notice is given
within 30 days after the occurrence of the accident or death . . .
Our review of a decision of the Industrial Commission "is
limited to determining whether there is any competent evidence to
support the findings of fact, and whether the findings of fact
justify the conclusions of law." Cross v. Blue Cross/Blue Shield
104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). "The
findings of the Commission are conclusive on appeal when such
competent evidence exists, even if there is plenary evidence for
contrary findings." Hardin v. Motor Panels, Inc.
, 136 N.C. App.
351, 353, 524 S.E.2d 368, 371, disc. review denied
, 351 N.C. 473,
543 S.E.2d 488 (2000). This Court reviews the Commission's
conclusions of law de novo. Deseth v. LensCrafters, Inc.
, 160 N.C.
App. 180, 184, 585 S.E.2d 264, 267 (2003).
Although plaintiff has recited the proper standard of review
in his brief, he has disregarded that standard in arguing that the
Full Commission erred in failing to find that he sustained an
injury by accident. He points to the evidence supporting his
claim, including his testimony that (1) he went to an emergency
room on 10 July 2002 seeking treatment for his pain, and (2) he
informed his supervisor, Mr. Anderson, of the injury to his back.
The Commission was, however, entitled to deem more credible and
give greater weight to other evidence suggesting that no incidentoccurred, including evidence that emergency room records reflected
a visit five days after plaintiff claimed to have visited the
emergency room; the lack of any reference in the emergency room
records or other medical records of a work-related injury;
inconsistencies identified by the Commission in plaintiff's
testimony; and evidence, in the form of medical records and the
testimony of coworkers, of ongoing intermittent low back pain
predating plaintiff's claim.
Since it is well-settled that "'[t]he Commission is the sole
judge of the credibility of the witnesses and the weight to be
given their testimony,'" Adams v. AVX Corp.
, 349 N.C. 676, 680, 509
S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Constr. Co.
265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)), we must reject
plaintiff's invitation to revisit the Commission's determinations
on such matters. The evidence relied upon by the Commission was
sufficient to "cast serious doubt on whether a work-related injury
occurred as plaintiff represented." Rogers v. Smoky Mountain
, 172 N.C. App. 521, 524, 526, 617 S.E.2d 292, 295-96
(2005) (holding "the Commission did not err in finding plaintiff
failed to meet his burden of proof to establish that he suffered a
back injury resulting from a specific traumatic incident on 16 May
2001" where "[p]laintiff's testimony revealed several
inconsistencies in the medical information he shared with his
Plaintiff makes no other argument and, accordingly, we affirm
the Commission's opinion and award. Given our resolution ofplaintiff's appeal, we need not address defendants' cross-
assignment of error. See Goodman Toyota, Inc. v. City of Raleigh
63 N.C. App. 660, 666, 306 S.E.2d 192, 196 (1983), disc. review
, 310 N.C. 477, 312 S.E.2d 884 (1984).
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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