Opinion
No. COA04-677.
Filed 16 August 2005.
1. Workers' Compensation — appellate review — standard of review
Review of an Industrial Commission decision by the Court of Appeals is limited to whether there is competent evidence to support the Commission's findings of fact and whether those findings support the conclusions of law.
2. Workers' Compensation — specific traumatic injury — compensable occupational disease
There was sufficient evidence in a workers' compensation hearing to support findings by the Industrial Commission that a bus driver who developed a cervical spine condition and an ulnar neuropathy was entitled to disability income as compensation for an injury resulting from a specific traumatic incident as well as for injuries resulting from a compensable occupational disease. The Commission judges the credibility of witnesses and determines the weight to be given the testimony.
Judge JACKSON concurring in part and dissenting in part.
Appeal by defendant from Opinion and Award of the North Carolina Industrial Commission filed 3 February 2004 for the Full Commission by Commissioner Thomas J. Bolch. Heard in the Court of Appeals 27 January 2005.
Sellers, Hinshaw, Ayers, Dortch Lyons, P.A., by Robert A. Whitlow, for plaintiff-appellee. Hedrick, Eatman, Gardner Kincheloe, L.L.P., by John Brem Smith and Jennifer I. Mitchell, for defendant-appellant.
Hubert Chambers (plaintiff) was a fifty-nine-year-old high school graduate who had been employed as a bus driver for Transit Management (defendant) since 9 April 1970. Plaintiff's job duties consisted of driving two types of buses: the Nova bus and the Flexible bus, both of which required plaintiff to operate the parking brake, destination box, toggle switch (for activating the bus' four-way flashers) and adjusting both interior and exterior mirrors on the bus. Plaintiff normally worked seven hour shifts, six days per week. Plaintiff estimated that driving the bus required the use of both hands ninety to one hundred percent of the time, but greater use of his left hand was required to operate the various controls located on the left side of the bus. Drivers were assigned bus routes every three to four months.
On 4 December 2000, plaintiff was assigned a new bus route and began work at approximately 4:00 p.m. Plaintiff began experiencing neck and shoulder problems sometime that afternoon and between 10:00 and 11:00 p.m. he reported his difficulties to his dispatcher and requested a replacement. Plaintiff was unsure whether the cause of his injury was actually work related and did not fill out an injury/illness report until 18 December 2000 at which time he listed only having problems with his left arm.
Plaintiff initially sought treatment from his family physician who subsequently referred plaintiff to Charlotte Orthopedic Specialists. From 29 December 2000 through 16 March 2001, plaintiff was seen by several doctors at Charlotte Orthopedic Specialists and on 2 April 2001, plaintiff was seen by a neurologist, Dr. Tim E. Adamson. An MRI ordered by Dr. Adamson showed plaintiff had, among other things, neural foraminal narrowing at the C5-6 level on the left. Dr. Adamson subsequently performed two surgeries on plaintiff. Following the first surgery, Dr. Adamson cleared plaintiff to return to work on 30 July 2001. Without attempting to return to work, plaintiff contacted Dr. Adamson and told him he felt he could not return to work with defendant. Plaintiff then underwent nerve conduction studies that revealed ulnar neuropathy for which plaintiff underwent surgery on 28 September 2001. On 5 March 2002 plaintiff had a Functional Capacity Evaluation (FCE) which indicated his level of function most closely resembled the category of sedentary to light physical demand. Dr. Adamson gave plaintiff a thirty percent permanent partial impairment rating for his left arm.
On 20 September 2002, plaintiff's claim was heard before Deputy Commissioner Nancy W. Gregory, who filed an Opinion and Award on 24 February 2003 denying plaintiff's claims for workers' compensation benefits. Deputy Commissioner Gregory concluded plaintiff did not sustain an injury by accident or a specific traumatic incident arising out of and in the course of his employment. Plaintiff appealed to the Full Commission (Commission) which filed an Opinion and Award on 3 February 2004, reversing Deputy Commissioner Gregory's denial of workers' compensation benefits to plaintiff. The Commission concluded plaintiff had sustained a cervical spine injury as a result of a specific traumatic incident and that plaintiff's ulnar nerve entrapment neuropathy and cervical spine condition constituted occupational diseases. The Commission ordered defendant to pay plaintiff disability income and his medical expenses arising from the injury and disease. Defendant appeals the Opinion and Award of the Commission.
On appeal, defendant raises three issues: (I) whether the Commission erred in determining plaintiff suffered a cervical spine injury as a result of a specific traumatic incident during the course of his employment on 4 December 2000; (II) whether the Commission erred in determining plaintiff's ulnar neuropathy and cervical spine condition were compensable occupational diseases; and (III) whether the Commission erred in concluding plaintiff is entitled to continuing disability benefits. For the following reasons, we find no error.
It is well-settled that review of an Industrial Commission decision by this Court is limited to the determination of whether there is competent evidence to support the Commission's Findings of Fact and whether those findings support the Conclusions of Law. Cox v. City of Winston-Salem, 157 N.C. App. 228, 232, 578 S.E.2d 669, 673 (2003); Pernell v. Piedmont Circuits, 104 N.C. App. 289, 292, 409 S.E.2d 618, 619 (1991). The Commission's findings of fact are conclusive on appeal even where there is contrary evidence, and such findings may only be set aside where there is a "complete lack of competent evidence to support them." Johnson v. Herbie's Place, 157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation omitted); see also Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Our review "'goes no further than to determine whether the record contains any evidence tending to support the finding.'" Id.
In his deposition, Dr. Adamson provided the following testimony:
Q. And would you have an opinion about whether the type of job duties that have been identified would have placed him at an increased risk of developing these types of symptoms and problems, or aggravation of the condition in the cervical spine as opposed to the general population?
A: I would believe so, yes.
This testimony clearly states, in Dr. Adamson's opinion, that the plaintiff's occupation as a bus driver placed him at higher risk than the general public of developing a cervical spine condition. Admittedly there was conflicting testimony from Dr. Dover as to whether plaintiff's occupation placed him at increased risk. However, the Commission, not the appellate court, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Bailey v. Sears Roebuck Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998).
Additionally, the Commission made the following significant finding of fact concerning plaintiff's claims that his injuries were the result of a compensable occupational disease and qualified as originating from a specific traumatic incident:
9. Dr. Adamson rendered opinions, which the Full Commission finds to be fact, that plaintiff's job duties with defendant caused or aggravated the conditions for which treatment was rendered and that plaintiff's job placed him at an increased risk of developing these conditions. The sudden pain to plaintiff's neck on December 4, 2000, qualifies under North Carolina law as a specific traumatic incident of the work assigned.
The Commission also made the following Conclusions of Law:
1. The medical and testimonial evidence supports compensability of plaintiff's ulnar nerve entrapment neuropathy condition, "double crush syndrome", and aggravation of cervical spine condition as occupational diseases under N.C. Gen. Stat. § 97-53(13). Additionally, since the disabling aggravation of the cervical spine occurred within a cognizable time period, it qualifies as a specific traumatic incident. N.C. Gen. Stat. § 97-2(6).
2. Disability caused by, or death resulting from, a disease is compensable only when 'the disease is an occupational disease, or aggravated or accelerated by' causes and conditions characteristic of and peculiar to claimant's employment, [(emphasis in original) (citations omitted).] Where, as here, there is evidence of both causation and aggravation connected to particular aspects of an employee's job duties (i.e. repetitious activity) to which the general public is not exposed, compensability is logically and legally warranted. . . .
3. The medical and testimonial evidence supports compensability of plaintiff's cervical injury as a specific traumatic incident under N.C. Gen. Stat. § 97-2(6).
This record contains sufficient evidence to support the facts found by the Commission. Acknowledging the Commission's duty to judge the credibility of the witnesses and to determine the weight given to testimony, these facts are sufficient to support the conclusion of the Commission that plaintiff is entitled to disability income as compensation for his injury resulting from a specific traumatic incident as well as for injuries resulting from a compensable occupational disease.
Affirmed.
Judge HUNTER concurs.
Judge JACKSON concurring in part; dissenting in part.