Opinion
I.C. NOS. 841838, 851924
Filed 30 April 2002.
This matter was reviewed by the Full Commission on September 24, 2001 upon the appeal of defendant from an Opinion and Award filed on February 28, 2001 by Deputy Commissioner Wanda Blanche Taylor who initially heard this matter in Wilmington, North Carolina.
Plaintiff: Brumbaugh, Mu King, Jacksonville, NC; Leah D. Lassiter King, appearing.
Defendants: Cranfill, Sumner Hartzog, Charlotte, NC; Anthony T. Lathrop, appearing.
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The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Taylor. The appealing party has shown good grounds to reconsider the evidence. Accordingly, the Full Commission reverses the Deputy Commissioner's Opinion and Award and enters the following Opinion and Award.
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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties in a pretrial agreement and at the hearing before the Deputy Commissioner as:
STIPULATIONS
1. The parties are subject to the North Carolina Workers' Compensation Act.
2. An employee-employer relationship existed between the named employee and named employer.
3. The carrier liable on the risk is correctly named.
4. Plaintiff's average weekly wage will be determined from an I.C. Form 22, Wage Chart, to be provided by defendant-employer.
5. The parties stipulated into evidence as Stipulated Exhibit 1, a packet of plaintiff's medical records.
6. The parties stipulated into evidence as Stipulated Exhibit 2, Defendants' Answers to Plaintiff's First Set of Interrogatories and Request for Production of Documents, Industrial Commission forms and two recorded statements.
7. The parties stipulated into evidence as Stipulated Exhibit 3, Plaintiff's Answers to Defendants' First Set of Interrogatories and First Request for Production of Documents.
8. The parties also stipulated into evidence the following: Plaintiff's Responses to Defendants' Second Set of Interrogatories and Request for Production, medical records from Southeastern Center for Mental Health and Employment Security Commission records.
9. I.C. File No. 841838 deals with an alleged injury by accident on November 23, 1997 and I.C. File No. 851924 deals with an alleged injury by accident on July 15, 1998.
10. The depositions of Dr. Thomas Parent, Lawrence M. Shall, M.D. and Kevin P. Speer, M.D. are a part of the evidentiary record in this case.
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Based on the greater weight of the competent evidence of, the Full Commission finds as follows:
FINDINGS OF FACT
1. At the time of the hearing in this matter, plaintiff was a 20-year-old female, born February 4, 1980. Plaintiff only went through the sixth grade but obtained her GED, high school equivalency, in 1997. Plaintiff's only work experience is as a cashier and an exotic dancer.
2. Plaintiff has a history of narcotic abuse with street drugs, a history of sexual abuse, a history of suicidal attempts and attempts to harm herself and a history of depression with borderline personality disorder. Plaintiff is a member of Narcotics Anonymous.
3. Plaintiff became employed with defendant-employer as a cashier on June 28, 1997. From June 28, 1997 through November 22, 1997, plaintiff earned $1,569.65. Plaintiff was a part time employee who worked 25 to 30 hours per week.
4. On November 23, 1997, plaintiff was working the second shift. As she was ringing up groceries, plaintiff testified at the deputy commissioner hearing that she reached across her body with her left arm to pull and lift a one-gallon container of milk from the grocery cart located to her right in an attempt to scan the item. Plaintiff now alleges that as she lifted and pulled the one-gallon container of milk toward her, plaintiff's shoulder popped, dislocated and she felt immediate sharp pain and asserts that this occurred because the container was wet with condensation. Before the deputy commissioner's hearing, however, plaintiff gave a recorded statement to defendant-carrier wherein plaintiff stated that she was scanning a container of water, that it did not slip, and there was nothing unusual about this activity. Plaintiff did not describe condensation, slipping, or any untoward event in the recorded statement and the Full Commission finds that plaintiff's testimony before the deputy commissioner was not credible and that she has changed her story in an effort to create a compensable claim. The Commission further finds that it was not an unusual event for plaintiff to lift and pull a one-gallon container of milk or water toward her; plaintiff regularly performed this action during the course of her shift ringing up groceries. Thus, the Full Commission concludes from the greater weight of the competent evidence that plaintiff did not sustain an injury from an accidental or untoward event.
5. Plaintiff was taken from work to the emergency room at New Hanover Regional Medical Center where she was referred to an orthopedic surgeon, Dr. Thomas Parent.
6. Plaintiff presented to Dr. Parent on November 24, 1997 and was diagnosed with shoulder instability. Plaintiff's shoulder was reduced under local anesthesia, and she was instructed not to work with her left upper extremity. At the time, plaintiff was seventeen (17) years old. In December 1997, plaintiff underwent an arthroscopic left anterior stabilization performed by Dr. Parent.
7. Dr. Parent was of the opinion that plaintiff did not exhibit any drug seeking behaviors while she was under his treatment. Dr. Parent was of the opinion that plaintiff might be purposely dislocating her shoulder. Plaintiff continued to complain to Dr. Parent of a painful automatically dislocating shoulder through her last treatment with him on June 18, 1998. Dr. Parent was of the opinion that as of June 1, 1998 plaintiff could return to work.
8. Plaintiff returned to work with Hannaford in July 1998 and attempted to perform her job duties. Plaintiff was told that she would receive assistance in lifting, but on July 15, 1998 after repeated requests for assistance, she lifted a bag of dog food to scan when her left shoulder again dislocated.
9. On July 27, 1998, plaintiff sought treatment with Dr. Kevin Speer, a board-certified orthopedic surgeon with Duke University Medical Center. On September 1, 1998, Dr. Speer performed an arthroscopic surgery and Bankart repair. In the course of that surgery, Dr. Speer found that plaintiff's first surgery, which had been performed by Dr. Parent, had failed and that the ligaments and cartilage in plaintiff's left shoulder were torn explaining plaintiff's dislocations.
10. On October 16, 1998, plaintiff underwent a third surgery, which was also performed by Dr. Speer, as her operative construct had torn apart and her shoulder had redislocated. Plaintiff had not suffered an additional injury.
11. Plaintiff was taken out of work by Dr. Speer from September 27, 1998 through and including January 16, 1999.
12. Dr. Speer indicated that he was never under the impression that plaintiff was voluntarily dislocating her shoulder. He was further of the opinion that based upon what he discovered in the surgeries, it would not be unusual for plaintiff's shoulder to dislocate.
13. Dr. Speer was of the opinion that plaintiff would definitely have a permanent disability rating which would be at least 5% for each surgery and possibly more depending the results of a shoulder assessment. Dr. Speer also indicated that plaintiff might ultimately need a shoulder fusion.
13. Plaintiff did not wish to have a shoulder fusion and sought another opinion with Dr. Esposito on March 18, 1999. Dr. Esposito recommended nerve conduction studies but plaintiff was unable to pay for these studies. Plaintiff saw Dr. Esposito one additional time but due to lack of financial resources she was unable to continue treatment with him.
14. Plaintiff eventually returned to Virginia for family financial assistance and sought treatment with Dr. Lawrence Shall, a board-certified orthopedic surgeon. Plaintiff presented to Dr. Shall on July 21, 1999. While under examination in the doctor's office, plaintiff's shoulder spontaneously popped part of the way out. Plaintiff was diagnosed with a recurrent anterior inferior and some other directional instability of the left shoulder without any new trauma.
15. On July 30, 1999, plaintiff underwent a thermal-capsular shrinkage surgery to tighten the shoulder joint capsule with heat.
16. On August 5, 1999, plaintiff returned with a post-operative subluxation from a non-functioning deltoid muscle. Plaintiff was prescribed a muscle stimulator and one was used on her that date.
17. On August 9, 1999, plaintiff reported that she had an infection and returned to Dr. Shall on August 12, 1999 with her shoulder still out of place. Plaintiff did not have the financial resources to obtain a muscle stimulator and indeed never did so. On that same date, plaintiff underwent a fifth surgery to address the infection in her joint.
18. Plaintiff returned on September 15, 1999 with her wound healed and her shoulder coming back into joint. At that time, Dr. Shall continued to recommend a muscle stimulator and physical therapy but plaintiff was unable to afford the same.
19. From July 20, 1999 through and including November 15, 1999, plaintiff was restricted to no use of her left shoulder by Dr. Shall.
20. Dr. Shall was of the opinion that while the prognosis for someone undergoing thermal capsular shrinkage is generally good, the fact that plaintiff has multi-directional instability and three prior surgeries greatly diminishes her chances for a good prognosis.
21. Plaintiff was unable to continue to treat with Dr. Shall for financial reasons. She has improved since her last surgery and has not had any further shoulder dislocations. However, plaintiff continues to have limitations with her shoulder and pain. Plaintiff additionally has a large scar that measures of an inch in width and runs from the top of her shoulder to where the arm meets the body on the front and a smaller scar on her back.
22. As explained in Finding of Fact No. 4, Plaintiff provided highly inconsistent accounts in her recorded statement with a representative of the carrier-defendant and testimony at the deputy commissioner hearing detailing these alleged workplace incidents; therefore, her testimony is not credible.
23. Plaintiff's alleged incident at work on November 23, 1997 resulting in a left shoulder injury did not constitute an injury by accident arising out of and in the course of her employment with defendant-employer as Plaintiff's work as a cashier often involved the handling of a one-gallon container of milk or water. Further, as explained in Finding of Fact No. 4, the Commission does not accept as credible, plaintiff's current testimony that the gallon of milk slipped because it was wet with condensation. The Commission accepts as credible plaintiff's original statement that the item did not slip and that there was nothing unusual about the circumstance. Thus, this incident was not an unusual occurrence interrupting plaintiff's normal and customary work duties.
24. The Commission further finds that plaintiff had a pre-existing deformity with her shoulder which allowed plaintiff to voluntarily dislocate her shoulder and that this condition was not caused, aggravated, or accelerated by the alleged incident at work.
25. As plaintiff's alleged incident of November 23, 1997 is not a compensable injury by accident, Plaintiff's alleged left shoulder dislocation while at work on July 15, 1998 cannot be a direct and natural result of a prior work-related injury. Further, the alleged incident on July 15, 1998 does not constitute an injury by accident arising out of and in the course of her employment with defendant-employer because part of Plaintiff's normal and customary duties as a cashier was to lift customers' groceries if a bagger was not available. The evidence does not support that this dislocation was caused by an accident or untoward event.
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Based upon the findings of fact, the Full Commission concludes as follows:
CONCLUSIONS OF LAW
1. Plaintiff has failed to carry her burden of proving with credible evidence that she sustained an injury by accident on November 23, 1997 arising out of and in the course of her employment with Defendant-Employer. N.C.G.S. § 97-2(6). An injury that occurs in the normal course of work duties are not compensable. See Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231 (1940); Swindell v. Davis Boat Works, 78 N.C. App. 393, 337 S.E.2d 592 (1985), cert. denied, 316 N.C. 385, 342 S.E.2d 908 (1986).
2. Plaintiff has failed to carry her burden of proving with credible evidence that she sustained an injury by accident on July 15, 1998 arising out of and in the course of her employment with Defendant-Employer. N.C.G.S. § 97-2(6).
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Based on the foregoing findings of fact and conclusions of law, the Full Commission enters the following:
ORDER
1. Plaintiff's claim for benefits is, and under the law must be DENIED.
2. Defendant(s) shall pay the costs due the Commission for the initial hearing before the Deputy Commissioner and each side shall bear its own costs for hearing before the Full Commission.
This the ___ day of November 2001.
S/____________ BUCK LATTIMORE CHAIRMAN
CONCURRING WITH SEPARATE OPINION:
S/______________ RENE C. RIGGSBEE COMMISSIONER
DISSENTING WITH SEPARATE OPINION:
S/_____________ THOMAS J. BOLCH COMMISSIONER
I concur in the majority opinion in this case, but write separately to specifically disagree with the dissenting opinion's reference to an appellate standard of review in weighing the evidence in this case.
The Full Commission is not an appellate body. When review is brought from a deputy commissioner's decision to the Full Commission, the Full Commission sits as the ultimate trier of fact rather than as an appellate body. N.C.G.S. § 97-85; Adams v. AVX Corporation, 349 N.C. 676, 509 S.E.2d 411 (1998). In contrast to appellate review of a Full Commission decision by the appellate courts, the determinations made by a deputy commissioner are not conclusive on the Full Commission. See Adams v. AVX Corporation, supra; compare N.C.G.S. § 97-85 (full Commission shall review the award, receive further evidence, rehear the parties) with N.C.G.S. § 97-86 (award of Commission shall be binding as to all questions of fact). Thus, the Full Commission decides claims on the evidence before the Commission based on the greater weight of the credible evidence. See Adams v. AVX Corporation, supra (Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony).
The dissenting opinion inappropriately cites an appellate standard of review when it quotes Adams to say:
"The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence."
This statement is taken out of context from the Adams decision. When this statement is placed in context, it is apparent that the Supreme Court was referring to appellate review, not the ultimate fact-finding of the Full Commission:
"`The findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.' Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529 at 531 (1977). Thus on appeal, this Court `does not have the right to weigh the evidence and decide the issue on the basis of weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding. Anderson, 265 N.C. at 434, 144 S.E.2d at 274. "N.C.G.S. § 97-86 provides that an `award of the Commission upon such review, as provided in G.S. § 97-85, shall be conclusive and binding as to all questions of fact.' N.C.G.S. § 97-86 (1991). As we stated in Jones v. Myrtle Desk Co., 264 N.C. 401, 141 S.E.2d 632 (1965), `[t]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary" Id. at 402, 141 S.E.2d at 633. The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence."
Adams v. AVX Corp., supra, 349 at 681. When placed in proper context, it is apparent that the Supreme Court was stating that on appeal the findings of the Full Commission awarding benefits for the plaintiff-employee are to be viewed in the light most favorable to plaintiff because he was the successful party before the Commission. Under Section 97-86 the findings of the Commission are binding unless there is no competent evidence to support the findings.
Under these circumstances, it is no more reasonable for a Commissioner to cite the "viewed in the light most favorable to plaintiff" language of Adams, than it would be for another Commissioner to hold that the evidence is to be viewed in the light favorable to defendant as found in Bosley v. Alexander, 114 N.C. App. 470, 442 S.E.2d 82 (1994) ("viewed in light most favorable to defendant" used to determine jury question), Guilford County v. Kane, 114 N.C. App. 243, 441 S.E.2d 556 (1994) (denial of directed verdict judged under "viewed in light most favorable to defendant" standard) and numerous other decisions. This is an appellate standard of review applicable to legal sufficiency issues such as an appeal to the appellate courts from a directed verdict, summary judgment, jury issue submission, and other proceedings. This standard is not applicable to the trier of fact. The image of fairness, represented by the slogan that "justice is blind," requires that the Commission review the case with fairness to all parties rather than merely review a claim through rose colored glasses that favors one party over another.
Moreover, the suggestion that the Commission is to weigh evidence in favor of one party has frequently been rejected by our appellate courts in workers' compensation cases. In Rooks v. Ideal Cement Co., 9 N.C. App. 57, 175 S.E.2d 324 (1970), the Court of Appeals rejected this position when it stated:
"Appellant also argues that where the medical opinions of two physicians conflict as to the condition of the claimant in a workers' compensation claim the conflict should always be resolved in favor of the claimant rather than against him. Appellant's argument completely overlooks the necessity for someone to pass upon the credibility of witnesses. The Industrial Commission has the duty and authority to resolve conflicts in testimony whether medical or not. If the findings made by the Commission are supported by competent evidence they must be accepted as final truth."
Thus, the Court of Appeals in Rooks affirmed a Full Commission decision in favor of the defendant despite contrary evidence in the record favoring plaintiff's claim.
Similarly, the Courts of Appeals in Cauble v. The Macke Co., 78 N.C. App. 793, 338 S.E.2d 320 (1986) and Wagoner v. Douglas Battery Manufacturing Co., 80 N.C. App. 163, 341 S.E.2d 120 (1986) reversed decisions of the Full Commission because the Commission improperly applied a "viewed in the light most favorable to plaintiff" standard. In Cauble, the Court of Appeals explained:
"The plenary powers of the Commission are such that upon review, it may adopt, modify or reject the findings of fact of the Hearing Commissioner, and in doing so may weigh the evidence and make its own determination as to the weight and credibility of the evidence. [citation omitted] The Industrial Commission has the duty and authority to resolve conflicts in the testimony whether medical or not, and the conflict should not always be resolved in favor of the claimant ."
Wagoner, supra (emphasis added). In Wagoner, the Court of Appeals explained the error of the Industrial Commission in applying an appellate standard rather than completing its obligation to weigh the evidence:
"Here, as in Cauble, the Commission did not weigh the evidence. The . . . language from the Opinion and Award indicates that the Commission `apparently acted under the mistaken impression that the law required a finding for the plaintiff if there was any competent evidence [, viewed in the light most favorable to plaintiff,] to support such a finding.' [citation omitted] The authority cited by the Commission, Buck v. Procter Gamble Co., 52 N.C. App. 88, 278 S.E.2d 268 (1981), applies to review of evidence by appellate courts upon appeal from the Industrial Commission. Appellate courts must follow the "any competent evidence" standard in deciding whether the evidence permits a determination by the Industrial Commission, which is the fact-finder. Buck, supra. The fact-finder, however, is not required to so view the evidence. Rather, its duty is to weigh the evidence, resolve conflicts therein, and make its own determination as to weight and credibility."
Wagoner, supra. The application of the "viewed in the light most favorable to plaintiff" standard by the Full Commission is reversible error. See Wagoner, supra; Cauble, supra; Rook, supra.
There may be some "appeal" in the simplicity of reviewing the record to determine whether plaintiff has presented some evidence to support his case, and, if so, then finding in favor of the plaintiff. This, however, is not our job as Commissioners. The Full Commission is the trier of fact, and our review does not end with determining whether plaintiff has presented a prima facie case. Rather, we must determine the competency of the evidence and then weigh and consider all competent evidence in rendering the decision on the merits. As a fair and impartial tribunal for the administration of claims, we cannot give preference to certain evidence solely because it was offered by one party or another.
In the instant case, the majority has applied the correct standard of review as expressed in G.S. § 97-85, and the findings are made on the greater weight of the credible evidence.
S/______________ RENE C. RIGGSBEE COMMISSIONER
RCR/gas
Plaintiff sustained an injury by accident as it is defined by N.C. Gen. Stat. § 97-2(6). Plaintiff was lifting a gallon of milk in an awkward position when it slipped causing her shoulder to dislocate. The slippage was caused by water that had condensed on the surface of the container. The awkward position of the plaintiff's body together with the slippage of the milk was an unlooked for and untoward event which produced a fortuitous cause. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982). This injury was subsequently aggravated on July 15, 1998, upon plaintiff's first return to work with Hannaford when she lifted a bag of dog food. "The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937), cited with approval in Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).
This 21st day of March 2002.
S/_____________ THOMAS J. BOLCH COMMISSIONER