Davis v. Harrah's Cherokee Casino

• Decision Date: 25 January 2008
• Docket Number: No. 456A06.,456A06.
• Citation: 362 N.C. 133,655 S.E.2d 392
• Parties: William DAVIS, Employee v. HARRAH'S CHEROKEE CASINO, Employer, Legion Insurance Company (Now assigned to the North Carolina Insurance Guaranty Association), Carrier.
• Court: North Carolina Supreme Court

655 S.E.2d 392

362 N.C. 133

William DAVIS, Employee v. HARRAH'S CHEROKEE CASINO, Employer, Legion Insurance Company (Now assigned to the North Carolina Insurance Guaranty Association), Carrier.

No. 456A06.

Supreme Court of North Carolina.

January 25, 2008.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 178 N.C.App. 605, 632 S.E.2d 576 (2006), affirming an opinion and award filed on 20 June 2005 by the North Carolina Industrial Commission. On 5 October 2006, the Supreme Court allowed defendants' petition for discretionary review of additional issues. Heard in the Supreme Court 15 February 2007.

Law Offices of Lee and Smith, P.A., by D. Andrew Turman, for plaintiff-appellee.

Hedrick Eatman Gardner & Kincheloe, L.L.P., by Allen C. Smith, Andrew S. Culicerto, and Margaret M. Kingston, Charlotte, for defendant-appellants.

Sumwalt Law Firm, by Vernon Sumwalt, Charlotte, for the North Carolina Academy of Trial Lawyers, amicus curiae.

HUDSON, Justice.

Defendant employer challenges the Industrial Commission's determination that plaintiff's ongoing disability and medical treatment were the result of a compensable injury. We hold that the Commission properly found and concluded that plaintiff's ongoing disability and medical treatment were related to and resulted from his compensable injury. We affirm the award.

In May 2001 plaintiff injured his back while removing a monitor from a slot machine at work. Initially, he sought treatment from his chiropractor, Dr. Guy Karcher, who referred plaintiff to a neurosurgeon, Jon M. Silver, M.D., in August of that year. On 7 September 2001, Dr. Silver performed a microlumbar discectomy. Although plaintiff returned to work in October 2001 because he was afraid of being fired if he did not, he continued to have back and leg pain. In early November 2001, plaintiff called Dr. Silver due to ongoing symptoms of pain, which were similar to those he had experienced before the surgery. Dr. Silver ordered an MRI, which was performed on 20 December 2001, and which showed scar tissue and degenerative changes. At a follow-up visit late in December 2001, plaintiff reported that he had felt significant pain in his back and legs since he fell at home in late November. Dr. Silver ordered more tests including a CAT scan performed on 2 April 2002, which revealed degenerative and "postoperative changes," and he performed another surgery later that month. Plaintiff was unable to return to work after the second surgery.

Eventually, Harrah's fired plaintiff for not returning to work. Defendants denied plaintiff's workers' compensation claim for medical treatment and ongoing disability in their Form 19 (report of employee's injury or occupational disease), by Form 61 ("Denial of Workers' Compensation Claim"), in their Form 33R (response to request for hearing), and in multiple assignments of error in the record on appeal. However, although defendants have brought forward assignments of error challenging the entire award to plaintiff, as they did not bring forward to the Court of Appeals any challenges to the compensability of the original work-related injury, those challenges are abandoned. Defendants contended that plaintiff's fall at home broke the chain of causation related to the original injury. The Commission found and concluded otherwise.

The Commission found as fact, inter alia, that as a result of plaintiff's original injury, he had "more of a propensity to develop degenerative changes at that level over time" and that he would have more difficulty recovering from any further injury. The Commission also found that any further injury would be "likely to result in worse symptoms" than if plaintiff had not had the surgery required by the previous work-related injury and that as of the date of the hearing, plaintiff remained totally disabled due to severe back pain radiating down his legs. Thus, the Commission concluded that plaintiff's ongoing pain and disability, as well as the April 2002 surgery and follow-up treatment, were related to his compensable injury and awarded benefits accordingly. The Court of Appeals affirmed the award in a divided opinion.

The majority in the Court of Appeals upheld all but one of the Commission's factual findings, all of its conclusions of law, and its award, based on the overall determination that plaintiff's current medical condition and disability resulted from his injury at work. Davis, 178 N.C.App. at 609-616, 632 S.E.2d at 579-583. The majority also held that plaintiff's fall at home in November 2001 did not amount to an intervening event that broke the chain of causation from the original injury. Id. at 610, 632 S.E.2d at 580. The dissenter would have held that the critical findings of fact in favor of plaintiff were not supported by the medical evidence, and would have reversed the Commission. Id. at 616, 632 S.E.2d at 583. Defendants filed a notice of appeal on the basis of the dissenting opinion in the Court of Appeals, and we granted defendants' petition for discretionary review of additional issues.

In their New Brief, defendants identify sections "I.-B" and "II" as being before this Court based upon the dissenting opinion in the Court of Appeals. Defendants frame these issues as follows:

I.B. THE COURT OF APPEALS ERRED IN RELYING UPON HORNE [Horne v. Universal Leaf Tobacco Processors, 119 N.C.App. 682, 459 S.E.2d 797, disc. rev. denied, 342 N.C. 192, 463 S.E.2d 237 (1995)], AS THERE WAS NO COMPETENT EVIDENCE IN THE INSTANT CASE THAT THE INJURY FOLLOWING THE SLIP AND FALL WAS CAUSALLY RELATED TO THE COMPENSABLE INJURY OF MAY 2001.

II. THE COURT OF APPEALS ERRED IN AFFIRMING THE FULL COMMISSION'S OPINION AND AWARD WHICH CONCLUDED THAT PLAINTIFF-APPELLEE'S SURGERY IN APRIL OF 2002 WAS CAUSALLY RELATED TO THE COMPENSABLE INJURY OF MAY 2001 WHERE NO MEDICAL EVIDENCE ESTABLISHED THE SLIP AND FALL INJURY PRECEDING THE SURGERY WAS AN AGGRAVATION OF THE COMPENSABLE INJURY.

In both of these sections of the brief defendants argue, in essence, that the evidence is insufficient to support the findings underpinning the award in favor of plaintiff, particularly the findings connecting plaintiff's second surgery and ongoing symptoms to the original compensable injury. Although defendants discuss at some length testimony that would have supported different findings, they do not argue that any particular findings of the Commission were unsupported by the evidence. In both arguments I and II, defendants bring forward assignments of error to findings 4 (in part) and 14, 15, and 18. For purposes of our analysis, we consider the evidence in support of findings 14 and 15, which appear to be the primary focus of defendants' arguments here, as in the Court of Appeals. In pertinent part, these findings state:

14. While Dr. Silver opined at his deposition that the second surgery was primarily to correct degenerative changes, he did indicate that changes seen on the MRI relating to scarring and fibrosis around the nerve were related to plaintiff's first surgery . . . .[long quotation from surgical note omitted] It is clear from this description that in addition to the degenerative changes to plaintiff's ligamentous flavum, the second surgery involved removal of scar tissue from the first surgery.

15. As has already been found as fact [in finding 13] above, plaintiff's first surgery would have made him more prone to develop degenerative changes, specifically ligamentous changes. The ligamentum flavum Dr. Silvers [sic] removed is a primary spinal ligament, and was identified, along with the scarring, as a primary cause of the stenosis seen on the April 1, 2002, MRI.

The Workers' Compensation Act provides that the Industrial Commission is the sole judge of the credibility of the witnesses and the weight of the evidence. N.C.G.S. § 97-84,-85,-86 (2005); Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413 (1998) (citing Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). We have repeatedly held that the Commission's findings of fact "are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary." E.g. Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965) (per curiam). Further, "[t]he 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, 349 N.C. at 681, 509 S.E.2d at 414 (citation omitted); accord Deese v. Champion Int'l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 553 (2000). Appellate review of an opinion and award from the Industrial Commission is generally limited to determining "(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact." Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (citing Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986)).

After careful review, we conclude that the evidence fully supports these findings of fact. Referring to finding of fact 14, the surgical note quoted within the finding itself supports the final sentence, which determines that plaintiff's second surgery involved removal of scar tissue from the first surgery. The Court of Appeals noted that the finding contains extensive "recitations of Dr. Silver's testimony and written surgery notes," but that in light of the last sentence, the finding is "adequate." Davis, 178 N.C.App. at 612, 632 S.E.2d at 580. We agree with this analysis.

In finding 15, the Commission determined that plaintiff's first surgery made him more prone to develop degenerative changes, which in turn were a "primary cause" of the second surgery. The Court of Appeals first noted that finding 15 refers back to and relies upon finding 13,...