Ballenger v. Burris Industries, Inc.

• Decision Date: 21 February 1984
• Docket Number: No. 8210IC1177,8210IC1177
• Citation: 66 N.C.App. 556,311 S.E.2d 881
• Court: North Carolina Court of Appeals
• Parties: Johnny W. BALLENGER v. BURRIS INDUSTRIES, INC. and St. Paul Fire and Marine Insurance Company.

Page 881

311 S.E.2d 881

66 N.C.App. 556

Johnny W. BALLENGER v. BURRIS INDUSTRIES, INC. and St. Paul Fire and Marine

Insurance Company.

No. 8210IC1177.

Court of Appeals of North Carolina.

Feb. 21, 1984.

Whitesides, Robinson & Blue by Henry M. Whitesides, Gastonia, for plaintiff-appellant.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Mel J. Garofalo, Charlotte, for defendants-appellees.

JOHNSON, Judge.

The various questions claimant has presented for review concern whether the Industrial Commission erred in finding and concluding that the claimant's preexisting condition was not aggravated or accelerated by his compensable accidental injury and subsequent convalescence, and consequently that his disability was entirely caused by his nerve disease. For the reasons set forth below, we hold that the crucial findings of fact on the lack of causal relation between claimant's disability and the industrial accident are not supported by any sufficient competent evidence of record, and therefore may not serve as the basis for denial of workers' compensation benefits to the claimant.

After hearing evidence for claimant and defendants, Deputy Commissioner Scott concluded that claimant's "preexisting degenerative nerve disease was neither caused by nor aggravated by the injury by accident on September 21, 1979 or the resulting inactivity while his leg was in a cast." This conclusion was based in part on the following summarized factual findings to which no exception has been taken: Plaintiff was 47 years old on 21 June 1981. He began working for defendant employer, a furniture manufacturing company in 1957. In September, 1979, plaintiff's duties included upholstering furniture, a job that required him to stand and use his hands and arms a great deal. He was also quite active at home, reupholstered furniture an additional ten to fifteen hours per week for individuals, grew vegetables in his greenhouse to sell, and kept up a five-acre garden.

On 21 September 1979, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant employer when he fell at work and fractured his left tibia. Dr. Sanders (an orthopedic surgeon) saw him in the emergency room and placed his left leg in a cast. Plaintiff had to use crutches and to keep his weight off his left leg until he was given a shortleg walking cast. On 11 February 1980, he was advised to resume weight bearing. His cast was removed on 28 April 1980.

During the next few months, plaintiff developed weakness in his legs, low back pain and then weakness in his hands. Dr. Sanders recommended a leg brace and physical therapy. By August, 1980, plaintiff was complaining of increasing weakness throughout his body. Dr. Sanders referred him to Dr. Nesbit, a neurologist.

Based upon Dr. Nesbit's deposition, the Deputy Commissioner made the following finding of fact:

4. Dr. Nesbit examined plaintiff on September 21, 1979 and found him to have moderately severe muscle wasting of his trunk and extremities. He diagnosed plaintiff's condition as chronic peripheral neuropathy of uncertain cause. He was unable to determine the cause of plaintiff's condition and in that plaintiff was totally disabled after having previously been fully functional, Dr. Nesbit referred him to Dr. Hurwitz at Duke University Medical Center for a complete evaluation.

In addition, it was also found that claimant's brother, who is a couple of years older, has Charcot-Marie-Tooth disease.

The following pertinent findings of fact were excepted to by the claimant:

5. Dr. Hurwitz first saw plaintiff on December 10, 1980. He conducted various tests which revealed moderately severe degenerative changes of the nerves which indicated the presence of a problem over a prolonged period of time. Dr. Hurwitz diagnosed plaintiff's condition as Charcot-Marie-Tooth disease, a hereditary degenerative nerve disease which manifests itself in different ways from family to family and case to case. It sometimes, however, runs a similar course in the same family. Dr. Hurwitz was of the opinion that the fracture of one leg would not be related to weakness in all four extremities.

7. Before his accident in September 1979, plaintiff had some problems with his hands and a drop-foot limp with his right foot, but these problems did not give him enough trouble to affect his work or other activities. Since his accident, he has been totally disabled and his condition is not likely to improve. Plaintiff is permanently and totally disabled as a result of his hereditary Charcot-Marie-Tooth disease.

8. Plaintiff's injury by accident on September 21, 1979 and his subsequent convalescence, during which is leg was in a cast and he was comparatively inactive did not cause or aggravate his preexisting degenerative nerve disease. He would be disabled as a result of the disease had he not broken his leg.

The statutes controlling the claimant's right to an award for total disability provide that "where the incapacity for work resulting from the injury is total, the employer shall pay ..." G.S. 97-29. G.S. 97-2(6) defines "injury" to mean "only injury by accident arising out of and in the course of the employment ..." G.S. 97-2(9) defines the term "disability" to mean "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment." The principles of law determining compensability in those cases in which the claimant suffers from a preexisting illness are summarized in Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981) as follows:

In summary: (1) an employer takes the employee as he finds her with all her pre-existing infirmities and weaknesses. (2) When a pre-existing, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of an in the course of employment ... then the employer must compensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent. (3) On the other hand, when a pre-existing, nondisabling, non-job-related disease or infirmity eventually causes an incapacity for work without any aggravation or acceleration of it by a compensable accident ... the resulting incapacity so caused is not compensable. (Emphasis original.)

It is well established that, except as to questions of jurisdiction, the findings of fact made by the Commission are conclusive on appeal when supported by competent evidence, even though there is evidence to support a contrary finding of fact. Morrison v. Burlington Industries, supra. The appellate court merely determines from the proceedings before the Commission whether sufficient competent evidence exists to support its findings of fact. Id.; Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923 (1953). However, a finding not supported by any sufficient competent, evidence or a finding based on incompetent evidence, is not conclusive and such findings must be set aside. 8 Strong's N.C. Index 3d, Master and Servant, § 96.1, p. 698.

The claimant first contends that the deposition of Dr. Barrie Hurwitz, which forms the basis for the Commission's denial of total disability, was never offered in evidence and therefore was not properly before the Commission and that portions of the Hurwitz testimony were inadmissible hearsay and were erroneously admitted into evidence. We do not agree. The record discloses that at the conclusion of the initial hearing, claimant's counsel advised the Deputy Commissioner that he wished to take the testimony of Dr. Nesbit in Charlotte. Defense counsel then indicated that they wished to take the testimony of Dr. Hurwitz at Duke University Medical Center. Deputy Commissioner Scott entered an order on 7 December 1981, giving the parties 60 days in which to depose Dr. Nesbit and Dr. Hurwitz.

Pursuant to Rule XXA of the Rules of the Industrial Commission, when additional medical testimony is necessary to the disposition of a case, the original hearing officer may order the deposition of medical witnesses. The rule does not detail any specific procedure following the taking of such depositions for their formal offer into evidence. In this case, once Dr. Hurwitz's deposition was completed, the original transcript was forwarded to Deputy Commissioner Scott by the court reporter, with a copy of the transcript sent to each attorney. This procedure would appear to be sufficient to comply with Rule XXA, supra, and, as such, the testimony of Dr. Hurwitz is of record in this case.

Each additional deposition begins with stipulations that all questions were deemed objected and excepted to in the same manner as if objections and exceptions were noted and appeared of record, and that the answers of the witnesses to each question were deemed to have been subjected to a motion to strike and that exception to the ruling of each such motion is reserved. Further, that the right to enter such objections and exceptions to each question, and the right to move to strike each answer and to except to an adverse ruling on such a motion at the time of the offering of the depositions into evidence is reserved and that such objections and motions may be passed upon by the judge at the time of the offering of the depositions into evidence. Claimant's counsel contends that he was not given the opportunity to exercise these rights, with the result that erroneous and incompetent testimony by Dr. Hurwitz regarding, inter alia, claimant's brother was admitted into evidence. Further, that a written request was made that the Deputy Commissioner make evidentiary rulings, but that "this was never done, or if it was done, plaintiff was not given a copy of any such rulings."

Rule XXA does not establish a specific procedure by which counsel can obtain rulings on their objections or motions to strike in a situation like this. However, we are of the opinion that general...