Bolejack v. Mobilift Of Burlington Inc
| Decision Date | 20 July 2010 |
| Docket Number | IC File No. 655056,NO. COA09-986,COA09-986 |
| Court | North Carolina Court of Appeals |
| Parties | AARON RANDY BOLEJACK, Employee-Plaintiff, v. MOBILIFT OF BURLINGTON, INC., Employer-Defendant, and KEY RISK INSURANCE COMPANY, Carrier-Defendant. |
Robert A. Lauver for employee-plaintiff-appellee.
Prather Law Firm, by J.D. Prather, for employer-carrierdefendant-appellants.
Plaintiff was required to prove, by expert medical testimony, that his pre-existing lower back condition was aggravated as a direct and natural result of his admittedly compensable workrelated injury. This causal link was established by plaintiff's expert witnesses.
In May 2006, Aaron Randy Bolejack (plaintiff) was employed at Mobilift of Burlington, Inc. (defendant) where he worked as a forklift service mechanic. Plaintiff's job required him to lift parts weighing 150-200 pounds. Plaintiff had been employed with defendant since 1990.
Starting in 1994, plaintiff began experiencing problems with his lower back. Plaintiff required intermittent treatment for his back condition prior to the injury giving rise to this case. In August 2003, Dr. Stanley Shaeffer (Dr. Shaeffer) began treating plaintiff for his lower back complaints. Between 2003 and 2006, Dr. Shaeffer continually treated plaintiff for aggravation of his back condition and ordered Magnetic Resonance Imaging (MRI) of his lower back. Dr. Shaeffer diagnosed plaintiff with degenerative disk disease at L4-L5 and disc protrusion at L5-S1 without nerve impingement. Plaintiff's condition allowed him to continue working.
On 1 April 2005, plaintiff's back condition was again evaluated by Dr. Shaeffer. Dr. Shaeffer continued to prescribe only medication and did not remove plaintiff from work.
On 31 May 2006, plaintiff sustained an injury at work. Plaintiff was repairing a forklift when his left foot slipped and he began to fall. Plaintiff jumped off the forklift and landed awkwardly, injuring his hip, right leg, and lower back. Defendants filed Form 60 with the Industrial Commission (Commission) admitting plaintiff's right to compensation for the injury to his right hip.
In June 2006, plaintiff sought treatment from Dr. Shaeffer, mainly for his right hip. Dr. Shaeffer ordered an MRI of plaintiff's hip, which revealed avascular necrosis of the right femoral head with a non-displaced cortical fracture. Dr. Shaeffer referred plaintiff to Dr. W. Bryan Jennings for an orthopaedic evaluation.
On 23 August 2006, plaintiff was referred by Key Risk Insurance Company (Key) to Dr. Peter Dalldorf (Dr. Dalldorf) for further evaluation and treatment. Dr. Dalldorf took a history of the accident as well as a history of plaintiff's lower back problems going back as far as 1994. Dr. Dalldorf concluded that plaintiff's hip condition was a result of his work-related injury. Dr. Dalldorf diagnosed plaintiff with a collapse of his femoral head and recommended a total hip replacement.
On 21 September 2006, Dr. Dalldorf performed a replacement of plaintiff's right hip. Dr. Dalldorf subsequently testified that there was a ninety-five percent chance that plaintiff would not have pain in his hip after surgery, and he would be able to return to work. After surgery, plaintiff had a "waddling gait," which Dr. Dalldorf testified could aggravate plaintiff's pre-existing degenerative lower back condition. The altered walking put more stress on one side of plaintiff's spine. Plaintiff's pre-existing back condition had narrowed the area where the nerves exited the spine. Plaintiff's change in gait resulted in further compression of the nerves as they exited the spine.
On 10 January 2007, plaintiff filed Form 18 with the Commission asserting that his work-related accident caused injury to his right hip, right leg, and back. On 17 January 2007, defendants filed Form 61 with the Commission, denying the claim and asserting there was no evidence that plaintiff had suffered injury to his back. On 26 January 2007, plaintiff requested that his claim be assigned for hearing.
On 7 February 2007, Dr. Dalldorf examined plaintiff and reviewed plaintiff's prior MRIs from 1999 and 2004. Neither of these previous scans revealed stenosis. On 7 March 2007, Dr. Dalldorf again examined plaintiff and determined that he was past the point of adjusting to his hip surgery, and his lower back problems were the significant cause of his continued pain. On 9 August 2007, an MRI of plaintiff's spine was performed. It revealed bilateral stenosis at L3-L4, L4-L5, and L5-S1. These findings were different from the findings of the previous MRIs and were consistent with plaintiff's symptoms of pain.
Dr. Dalldorf concluded that the trauma plaintiff sustained when he fell at work on 31 May 2006, and his subsequent altered gait, resulted in an aggravation of his pre-existing back condition and the compression of the nerves in plaintiff's spine. The compression of the nerves in plaintiff's spine caused pain and resulted in plaintiff's additional medical treatment.
On 2 0 March 2 009, the Commission issued an Opinion and Award in which it concluded that plaintiff's "fall at work on May 31, 2006... materially augmented, significantly aggravated orotherwise combined with plaintiff's pre-existing back condition to produce his current back condition." The Commission awarded plaintiff temporary total disability benefits at the rate of $644.63 per week, continuing until further Order of the Commission. Past, present and future medical expenses were also awarded.
Defendants appeal.
The standard of review of an Opinion and Award of the Industrial Commission is "whether there is any competent evidence in the record to support the Commission's findings of fact and whether these findings support the Commission's conclusions of law." Lineback v. Wake County Board of Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997) (citing Sidney v. Raleigh Paving & Patching, 109 N.C. App. 254, 426 S.E.2d 424 (1993)). The Commission's findings of fact are conclusive on appeal if supported by any competent evidence. Evidence to support a contrary finding does not change this standard. Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981). "The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). To determine if competent evidence supports the findings of fact, the evidence must be viewed in the light most favorable to plaintiff. Davis v. Harrah's Cherokee Casino, 362 N.C. 133, 137, 655 S.E.2d 392, 395 (2008). Plaintiff is entitled to benefit from all reasonable inferences drawn from the evidence. Id.
We first address plaintiff's argument that defendants have violated Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure by failing to present an argument or cite authority for assignments of error in their brief.
Rule 28(b)(6) provides: "Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned." N.C.R. App. P. 28(b)(6) (2010). Although the heading of Argument I of defendants' brief refers to assignments of error 1-15, which challenge several findings of fact and conclusions of law, defendants have presented no argument in the body of their brief regarding any of the individual conclusions of law and have only presented an argument regarding findings of fact 36 and 39. Only assignments of error 5, 6, and 7 pertain to findings of fact 36 and 39. Thus, assignments of error 1-4 and 8-15 (challenging findings 10, 11, 13, 15, 40, 41-45 and conclusions 2, 5, 7 and 8) are deemed abandoned. Hooker v. StokesReynolds Hosp., 161 N.C. App. 111, 114-15, 587 S.E.2d 440, 443 (2003), disc, review denied, 358 N.C. 234, 594 S.E.2d 192 (2004); see also N.C.R. App. P. 28(b)(6).
In their only argument, defendants contend that the Commission erred in finding plaintiff's aggravated back condition was causally related to the compensable hip injury. We disagree.
The Workers' Compensation Act "was never intended to provide the equivalent of general accident or health insurance." Vause v. Equipment Co., 233 N.C. 88, 92, 63 S.E.2d 173, 176 (1951). An injury is compensable only if it arises "out of and in the course of the employment." N.C. Gen. Stat. § 97-2(6) (2009). Plaintiff bears the burden of proving each element of compensability. Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003). A subsequent injury is compensable if it is the direct and natural result of a compensable primary injury. As long as the primary injury is shown to have arisen out of and in the course of employment, then every natural consequence flowing from that injury likewise arises out of the employment. Starr v. Paper Co., 8 N.C. App. 604, 611, 175 S.E.2d 342, 347 (1970).
The subsequent injury is not compensable if it is the result of an independent, intervening cause. " " Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 260, 614 S.E.2d 440, 445 (quoting Petty v. Transport, Inc., 276 N.C. 417, 426, 173 S.E.2d 321, 328 (1970)), disc, review denied, 360 N.C. 61, 621 S.E.2d 177 (2005). "To show causal relation, 'the evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation....'" Everett v. Well Care & Nursing Servs., 180 N.C. App. 314, 319, 636 S.E.2d 824, 828 (2006) (quoting Gilmore v. Board of Education, 222 N.C. 358, 365...
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