Davis v. Harrah's Cherokee Casino

• Decision Date: 01 August 2006
• Docket Number: No. COA05-1153.,COA05-1153.
• Citation: 632 S.E.2d 576
• Court: North Carolina Court of Appeals
• Parties: William DAVIS, Employee, Plaintiff-Appellee, v. HARRAH'S CHEROKEE CASINO, Employer, Legion Insurance Company, (Now Assigned to the North Carolina Insurance Guaranty Association), Carrier, Defendants-Appellants.

632 S.E.2d 576

William DAVIS, Employee, Plaintiff-Appellee, v. HARRAH'S CHEROKEE CASINO, Employer Legion Insurance Company, (Now Assigned to the North Carolina Insurance Guaranty Association), Carrier, Defendants-Appellants.

No. COA05-1153.

Court of Appeals of North Carolina.

August 1, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by defendants from opinion and award entered 20 June 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 April 2006.

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

Hedrick Eatman Gardner & Kincheloe, L.L.P., by C.J. Childrers, Charlotte, for defendants-appellants.

McGEE, Judge.

William Davis (plaintiff) worked as a games performance technician for Harrah's Cherokee Casino (Harrah's). Plaintiff's job duties included repairing and performing preventative maintenance on gaming machines. Plaintiff was lifting a thirty-five-pound monitor out of a slot machine on 26 May 2001 when he felt a pain in his lower back. Plaintiff did not report the injury and continued to work until 26 June 2001, when he sought medical attention for recurring pain in his left leg. Plaintiff was treated by a chiropractor who ordered an MRI scan that revealed a herniated disc in plaintiff's back. Dr. John M. Silver (Dr. Silver) performed back surgery on plaintiff on 7 September 2001. Plaintiff returned to work at Harrah's on 31 October 2001 and continued working until 27 December 2001.

Plaintiff called Dr. Silver's office on 7 November 2001 complaining of pain in his left leg. Plaintiff was prescribed steroid medication. Plaintiff underwent an MRI scan of his back on 20 December 2001, which showed scar tissue around a nerve and "some degenerative changes."

At a follow-up visit with Dr. Silver on 31 December 2001, plaintiff reported he had slipped and fallen onto his back while walking up a ramp at his home. Plaintiff told Dr. Silver he had experienced significant pain in his back and down both legs since his fall. Dr. Silver wrote plaintiff out of work from 27 December 2001 until 1 February 2002. Dr. Silver ordered a myelogram and CAT scan on 2 April 2002, which revealed what Dr. Silver deemed "appropriate degenerative changes for [plaintiff's] age and the postoperative changes[.]" Dr. Silver performed a second back surgery on plaintiff on 22 April 2002. The purpose of the second surgery was to decompress nerves in plaintiff's spinal canal, which had become narrowed. Following his second surgery, plaintiff was kept out of work for a period of time that exhausted his leave under the Family Medical Leave Act. Thereafter, plaintiff was fired by Harrah's for not returning to work.

A hearing on the matter was held before a deputy commissioner on 23 January 2004. The deputy commissioner concluded that plaintiff sustained a compensable injury by accident on 26 May 2001, but that plaintiff had failed to show that his ongoing back problems after October 2001 were related to the 26 May 2001 compensable injury. Plaintiff appealed to the Industrial Commission (the Commission), which heard the matter on 17 May 2005. In an opinion and award filed 20 June 2005, the Commission modified and affirmed the opinion and award of the deputy commissioner. The Commission concluded that plaintiff's second surgery on 22 April 2002 was a consequence of plaintiff's compensable 26 May 2001 injury. The Commission also concluded that plaintiff's slip and fall in late 2001 aggravated the May 2001 injury, and that the pain and medical consequences plaintiff suffered were a "natural progression" of the May 2001 injury. The Commission awarded plaintiff ongoing medical and indemnity benefits from 27 December 2001 forward. Defendants appeal.

Defendants assign error to four findings of fact, arguing the findings are not supported by competent evidence. Defendants assign error to five conclusions of law, arguing the conclusions are not supported by competent findings of fact and are erroneous as a matter of law.

Defendants concede that plaintiff suffered a compensable injury on 26 May 2001. They further concede their responsibility to compensate plaintiff for medical expenses related to his 7 September 2001 surgery and for lost wages from 26 June 2001 through 31 October 2001. The issues on appeal are: (1) whether plaintiff's slip and fall in late 2001 was an intervening event sufficient to bar plaintiff from further compensation after the fall; (2) whether plaintiff's surgery on 22 April 2002 was a consequence of plaintiff's compensable May 2001 injury; and (3) whether plaintiff proved an ongoing disability after returning to work following his September 2001 surgery.

Our Court reviews decisions of the Commission to determine "whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000) (citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998)). The Commission's findings of fact are conclusive on appeal if supported by competent evidence, even when there is evidence to support contrary findings. Id. at 115, 530 S.E.2d 549, 530 S.E.2d at 552-53. "[S]o long as there is some evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary." Shah v. Howard Johnson, 140 N.C.App. 58, 61-62, 535 S.E.2d 577, 580 (2000), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001) (internal quotation omitted). Moreover, "`[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.'" Poole v. Tammy Lynn Ctr., 151 N.C.App. 668, 672, 566 S.E.2d 839, 841 (2002) (quoting Adams at 681, 509 S.E.2d at 414). The Commission's conclusions of law are reviewed de novo by our Court. Grantham v. R.G. Barry Corp., 127 N.C.App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998).

I. Plaintiff's slip and fall

Defendants concede their responsibility for plaintiff's lost wages from 26 June 2001 through 31 October 2001, the period plaintiff was out of work due to his first surgery. Defendants contend that plaintiff's fall in late 2001 barred any recovery by plaintiff thereafter. In concluding that plaintiff's fall was not a bar to recovery, the Commission relied upon our Court's decision in Horne v. Universal Leaf Tobacco Processors, 119 N.C.App. 682, 459 S.E.2d 797, disc. review denied, 342 N.C. 192, 463 S.E.2d 237 (1995). We held in Horne:

The aggravation of an injury is compensable if the primary injury arose out of and in the course of employment, and the subsequent aggravation of that injury is a natural consequence that flows from the primary injury. Unless the subsequent aggravation is the result of an independent, intervening cause attributable to [a] claimant's own intentional conduct, the subsequent aggravation of the primary injury is also compensable.

Id. at 685, 459 S.E.2d at 799 (internal citation omitted). In Horne, the claimant suffered a compensable back injury while removing sheets of tobacco from a conveyer belt, and subsequently was involved in an automobile accident. Id. at 683, 459 S.E.2d at 798. Our Court concluded the automobile accident was compensable because it was an aggravation of the claimant's prior compensable injury, and there was no evidence the accident was attributable to the claimant's own intentional conduct. Id. at 687, 459 S.E.2d at 801.

In the present case, the Commission applied Horne to conclusions six and seven, which defendants contest:

6. Also at issue is whether the fall that plaintiff suffered outside his home in late November or early December 2001 was an intervening causal event sufficient to bar plaintiff from further compensation. For this to be the case, any injury resulting from [plaintiff's] fall would have to be entirely independent of the compensable injury.... The slip and fall on ice aggravated the earlier injury and the pain and medical consequences were a natural progression of the early injury.

7. There has been no allegation that plaintiff's slip and fall on the ice was in any way of his own volition. . . .

First, as defendants do not present any argument in their brief regarding conclusion number seven, their assignment of error to conclusion seven is deemed abandoned. See N.C.R.App. P. 28(b)(6). Accordingly, conclusion of law number seven is binding on appeal.

In conclusion six, the Commission's determination that plaintiff's slip and fall aggravated plaintiff's compensable injury is supported by the Commission's uncontested findings five and six. In finding five, the Commission found as fact that plaintiff complained of pain in his left leg before the fall, and then complained of pain in both legs after the fall. In finding six, the Commission found as fact that plaintiff "was in increased pain from the slip on ice." These uncontested findings support the Commission's conclusion that plaintiff's fall aggravated his compensable back injury.

Under Horne, an aggravation of a compensable injury is compensable "[u]nless [it] is the result of an independent intervening cause attributable to [a] claimant's own intentional conduct[.]" Horne at 685, 459 S.E.2d at 799. As stated above, the Commission determined there was no allegation that plaintiff's slip and fall was in any way a result of his own intentional conduct. Accordingly, the Commission was correct, under Horne, in determining that plaintiff's disability resulting from the slip and fall, which aggravated the May 2001 injury and was not the result of plaintiff's own intentional conduct, was compensable. Plaintiff's slip and fall in late 2001 was not an...