Opinion
I.C. No. 367779
Filed 26 September 1995
This matter was reviewed by the Full Commission on August 23, 1995 upon the Appeal of plaintiff from an Opinion and Award filed on March 30, 1995 by Deputy Commissioner Edward Garner, Jr. who initially heard this case on June 7, 1994.
APPEARANCES
Plaintiff: Wilson, Biesecker, Tripp Sink, Attorneys, Lexington, North Carolina; Roger S. Tripp, appearing.
Defendants: Brinkley, Walser, McGirt, Miller, Smith Coles, Attorneys, Lexington, North Carolina; G. Thompson Miller, appearing.
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The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Garner. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Opinion and Award.
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The Full Commission finds as facts and concludes as matters of law the following, which were entered into by the parties at the hearing as:
STIPULATIONS
1. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
2. The employer-employee relationship existed between the plaintiff and the defendant-employer.
3. The Liberty Mutual Insurance Company was the compensation carrier on the risk.
4. Defendant-employer had indicated a Form 22 (Wage Chart) would be submitted; however, it was never submitted.
5. Plaintiff is alleging an injury by accident on July 23, 1993, resulting in an injury to the neck and back.
6. The defendant-employer has denied liability, and the issue to be determined by the Commission is whether plaintiff in fact suffered an injury by accident.
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The Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:
FINDINGS OF FACT
1. Plaintiff was employed by defendant-employer as a fork lift operator.
2. On or about July 23, 1993, plaintiff backed a fork lift, while going an estimated four (4) to five (5) miles per hour, into a dock board which had malfunctioned and popped up on its own. At the time this occurred, plaintiff was thrown backwards, then forward in a whiplash type motion.
3. Plaintiff reported to his supervisor that the dock board malfunctioned and that someone could get hurt if it wasn't repaired. Plaintiff did not believe at the time that he was injured.
4. Plaintiff worked regularly until August 5, 1993, when he almost passed out at work. He was taken to the emergency room at Lexington Memorial Hospital, at which time his neck was found to be supple and he was diagnosed as treated and noted in the records. Plaintiff did relate a history of migraine headaches, but the records contain no history of a neck injury at work on July 23, 1993 and no history of headaches dating back to on or about July 23, 1993. The records indicate that the headache started the day before, resolved when he fell asleep, then returned at work August 5, 1993.
5. Plaintiff returned to work the following day, August 6, 1993, and worked regularly until September 17, 1993.
6. On September 1, 1993, plaintiff went to a chiropractor for headaches. After asking plaintiff if he had been in any accidents and being told about the July 23, 1993 incident, the chiropractor suggested to plaintiff that he had suffered a neck injury on July 23, 1993. After seeing the chiropractor, plaintiff, for the first time, told his employer he had been injured on July 23, 1993.
7. Dr. Miller has doubts as to whether or not the incident of July 23, 1993 was truly the offending incident that caused plaintiff's neck problems, based on the above facts.
8. Plaintiff did not prove, by the greater weight of the evidence, that the incident on the fork lift on July 23, 1993 caused his neck injury. Plaintiff did not believe it himself, until the chiropractor suggested it.
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Based upon the findings of fact, the Full Commission concludes as follows:
CONCLUSIONS OF LAW
1. It is the plaintiff's burden of proving, not only the occurrence of an incident, but also that the disabling physical injury resulted therefrom. Lettley v. Trash Removal Service, 91 N.C. App. 625 (1988).
2. Since plaintiff did not carry the burden of proving that his present condition is causally related to the original incident, he is not entitled to benefits under the Workers' Compensation Act.
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Based upon the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:
AWARD
1. Plaintiff's claim for workers' compensation benefits is hereby DENIED.
2. Each side shall pay its own costs.
S/ ________________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/ ________________ THOMAS J. BOLCH COMMISSIONER
DISSENTING:
S/ ________________ COY M. VANCE COMMISSIONER
When reviewing the findings made by the Deputy Commissioner, the Full Commission may review, modify, adopt or reject the finding of fact of the hearing commissioner. Watkins v. Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).
The Deputy Commissioner found as fact that on or about July 23, 1993 plaintiff backed a forklift, while going an estimated 4-5 miles per hour, into a dock board which had malfunctioned and popped up on its own. At the time this occurred, plaintiff was thrown backward, then forward in a whiplash-type motion. The Deputy Commissioner also found as fact that plaintiff had reported to his supervisor the dock board malfunction and the fact that someone could get hurt if it was not repaired. However, the Deputy Commissioner found plaintiff did not believe at the time that he was injured. The Deputy Commissioner further found as fact that after seeing a chiropractor on September 1, 1993, plaintiff, for the first time, told his employer that he had been injured on July 23, 1993.
The Deputy Commissioner appears to have placed great weight on his finding that plaintiff did not believe at the time (July 23, 1993) that he was injured. It is totally irrelevant whether or not plaintiff believed that he was injured at the time of the accident, or whether or not he reported an injury to his supervisor on that date, although there is ample evidence to the contrary. Nor is it relevant that Mr. Allen waited until on or about September 1, 1993, after seeing a chiropractor, to tell his employer he had been injured on July 23, 1993.
In Roach v. Lupoli Construction Company, 88 N.C. App. 271, 362 S.E.2d 823 (1987) the court held a worker was not precluded from recovering workers' compensation benefits by virtue of the fact that he alleged he sustained on-the-job injury, as injury and pain did not have to occur simultaneously to establish the injury was caused by "specific traumatic incident" that "occurred at a recognizable time."
Finally, the Deputy Commissioner found in Finding of Fact No. 7 that, "Dr. Miller has doubts as to whether or not the incident of July 23, 1993 was truly the offending incident that caused plaintiff's neck problems, based on the above facts."
This finding by the Deputy Commissioner is in direct conflict with Dr. Miller's deposition testimony, given on page 8, lines 13-25. The testimony was as follows:
Q. And as a result of your findings, did you make a diagnosis?
A. I felt that he did have a cervical and lumbar strain, that the muscles were strained in his neck and lower back. Seemed to be worse in his neck.
Q. And were your findings and your diagnosis, were they consistent with the history that you took from Mr. Allen?
A. Yes. I felt they were.
Q. Do you have an opinion satisfactory to yourself as to what, based on your history and your examination and your diagnosis of Mr. Allen as to what, may have caused those findings that you found in him on that day?
A. Based on my history and physical exam, I feel that the accident in July of 1993 caused the neck and low back strain that he had.
Based on the above facts, I would give greater weight to the opinions of Dr. Miller, the chiropractor, and the plaintiff. However, the majority does not share my opinion; therefore, I must respectfully DISSENT.
S/ ________________ COY M. VANCE COMMISSIONER
CMV/cnp/mj 9/21/95