Fipps v. Babson and Smith Trucking, No. COA07-1361 (N.C. App. 7/15/2008), COA07-1361

• Court: North Carolina Court of Appeals
• Writing for the Court: Calabria
• Decision Date: 15 July 2008
• Docket Number: No. COA07-1361,COA07-1361
• Citation: Fipps v. Babson and Smith Trucking, No. COA07-1361 (N.C. App. 7/15/2008), No. COA07-1361 (N.C. App. Jul 15, 2008)
• Parties: WANDA FIPPS, Employee, Plaintiff-Appellee v. BABSON AND SMITH TRUCKING, Employer, and KEY RISK MANAGEMENT SERVICES, Carrier, Defendants-Appellants

Page 1

Unpublished Opinion

WANDA FIPPS, Employee, Plaintiff-Appellee v. BABSON AND SMITH TRUCKING, Employer, and KEY RISK MANAGEMENT SERVICES, Carrier, Defendants-Appellants

No. COA07-1361

Court of Appeals of North Carolina

Filed July 15, 2008

This case not for publication

North Carolina Industrial Commission I.C. No. 433843.

Appeal by employer from Opinion and Award of the North Carolina Industrial Commission entered 20 August 2007 by Commissioner Pamela T. Young. Heard in the Court of Appeals 9 June 2008.

Brumbaugh, Mu & King, P.A., by Nicole D. Wray, for plaintiff-appellee.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Susan J. Vanderweert, for defendants-appellants.

CALABRIA, Judge.

Babson and Smith Trucking ("defendant-employer") and Key Risk Insurance Company (collectively, "defendants") appeal from an Opinion and Award of the North Carolina Industrial Commission ("the Commission") concluding Wanda Fipps ("plaintiff") sustained a compensable injury by accident to her cervical spine arising out of and in the course of her employment. We affirm. The record shows that on 1 March 2003, plaintiff began her employment with the defendant-employer as a dump truck driver. Mr. Sammie Smith ("Sammie Smith") and his son, Mr. Donald Smith ("Donald Smith"), are co-owners of defendant-employer's business. Plaintiff's job duties involved driving a dump truck to various locations, hauling materials from the locations and lowering and raising the bed of the truck using a lever that was adjacent to the driver's seat. Before plaintiff began her work day, she first drove to defendant-employer's location and retrieved the dump truck and then drove the dump truck to the work site.

On or about 13 October 2003, as plaintiff was driving the dump truck, she hit "something" in the road causing her to bounce in her seat and strike her head against the ceiling of the cab. Plaintiff stopped operating the dump truck for a few minutes and experienced a headache and soreness in her neck. On the date of the incident plaintiff was fifty-two years old. On 18 October 2003, plaintiff voluntarily resigned her position with defendant-employer because she could not use her right arm due to the pain she experienced and therefore was no longer able to operate the dump truck.

Since plaintiff believed defendant-employer did not possess workers' compensation insurance, she did not immediately seek medical attention. However, the pain in plaintiff's right arm and shoulder continued, and on 22 October 2003, plaintiff attempted to schedule an appointment with Dr. Gregory F. Schimizzi ("Dr. Schimizzi"), a rheumatologist, who had previously treated plaintiff for arthritis. Since plaintiff arrived late for her appointment with Dr. Schimizzi, he was unable to examine her, however, plaintiff was examined the same day by Jason Fedak, a physician assistant for Dr. David Esposito ("Dr. Esposito"). Plaintiff was diagnosed with right shoulder impingement syndrome, given an injection of Cortisone, and told to follow up with Dr. Schimizzi. Plaintiff also was told she could return to work on 30 October 2003.

On 29 October 2003, plaintiff was evaluated by Dr. Schimizzi and complained of increasing right shoulder pain occurring for the last several weeks. Dr. Schimizzi's evaluation revealed that plaintiff had a right acromioclavicular joint inflammation and pain. He gave plaintiff an injection in that joint, prescribed medication, ordered an MRI of her cervical spine and recommended she avoid strenuous use of her shoulder by not working. On 10 November 2003, Dr. Schimizzi reviewed plaintiff's MRI results and opined that the results showed plaintiff had "multi-level right paracentral disc and osteophyte complexes with mild to moderate cord compression, and right-sided foramenal stenosis that was greatest at C5-6 where the right neuroforamen was completely occluded." Dr. Schimizzi recommended that plaintiff seek treatment from neurosurgeon Dr. George VanBuren Huffmon, III ("Dr. Huffmon").

On 2 December 2003, plaintiff was evaluated by Dr. Huffmon at Atlantic Neurosurgical and Spine Specialists due to neck pain and low back pain. At the visit, plaintiff reported to Dr. Huffmon that she began having neck pain that arose from an incident when she struck her head on the ceiling of the cab of the dump truck she was driving for the defendant-employer. After reviewing the MRI scan, Dr. Huffmon diagnosed plaintiff with cervical spondylosis and stenosis at C4-C7. Dr. Huffmon also noted that plaintiff had been disabled from work since 10 October 2003.

On 12 January 2004, plaintiff was evaluated by Dr. John H. Knab ("Dr. Knab") at the Center for Pain Management. During the evaluation, plaintiff reported the work-related injury that occurred on 10 October 2003 which caused an immediate onset of pain. Plaintiff reported pain in her neck, shoulder, and right arm. Dr. Knab administered epidural steroid injections to plaintiff's neck on 14 January 2004 and 11 February 2004.

Plaintiff continued to see Dr. Huffmon for follow-up visits. During a follow-up visit on 26 August 2004, plaintiff reported to Dr. Huffmon that she continued to experience neck pain which radiated down her right arm, and also was experiencing numbness and tingling in her right fingers. She also experienced occasional neck pain which radiated down her left arm. A cervical myelogram revealed stenosis at C3-C7, with significant foraminal stenosis on the right at 3-4, and disc and bone spurs. Dr. Huffmon recommended that plaintiff receive selective nerve root blocks at C3-7 to determine which levels were the worst. Between 28 October 2004 and 14 December 2004, plaintiff received a series of cervical nerve root blocks performed by Dr. Knab at the Center for Pain Management. On 8 February 2005, plaintiff returned to Dr. Huffmon's office due to right neck pain radiating down her right arm and numbness in her right hand. Plaintiff also complained of low back pain radiating down her left leg. Dr. Huffmon ultimately recommended surgery.

On 30 March 2005, defendant-employer's carrier denied plaintiff's claim due to (I) plaintiff's failure to report the claim within thirty days pursuant to N.C. Gen. Stat. § 97-22 (2005); (II) plaintiff did not suffer an injury by accident; and (III) plaintiff's injuries were related to a pre-existing condition. On 13 December 2005, Deputy Commissioner J. Brad Donovan ("Deputy Commissioner Donovan") determined that plaintiff sustained an injury by accident arising out of her employment. Deputy Commissioner Donovan ordered defendants to pay all existing and future medical expenses incurred as a result of plaintiff's compensable injury, including the surgery recommended by Dr. Huffmon, as well as temporary total disability benefits from the date of the accident until the Commission decided otherwise. Defendants appealed to the Commission. On 21 November 2006, the Commission entered an order declaring that defendants had shown good grounds to receive further evidence. The Commission reopened and remanded the case to Deputy Commissioner Donovan for receipt of further evidence regarding whether plaintiff's disc herniation at C5-C6 and the surgery recommended were related to the incident that plaintiff described occurring on or about 13 October 2003.

On 20 August 2007, after reviewing new evidence, the Commission entered an Opinion and Award concluding that plaintiff sustained an injury to her cervical spine by accident arising out of her employment with defendant-employer. The Commission awarded plaintiff temporary total disability benefits in the amount of $266.68 per week beginning 18 October 2003 and medical compensation for all existing and future medical expenses incurred as a result of plaintiff's compensable injury, including the surgery recommended by Dr. Huffmon. Defendants appeal from the opinion and award of the Commission.

On appeal, defendants contend the Commission erred by (I) concluding that plaintiff met her burden of proving she sustained an injury by accident and (II) determining medical evidence presented by plaintiff was sufficient to show causation.

I. Standard of Review

Our Supreme Court has "repeatedly held `that our Workers' Compensation Act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow, and strict construction.'" Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968)). In reviewing the Commission's decision, our case law readily establishes that "(1) the full Commission is the sole judge of the weight and credibility of the evidence, and (2) appellate courts reviewing Commission decisions are limited to reviewing 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) (citation omitted). Our review "goes no further than to determine whether the record contains any evidence tending to support the finding." Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quotation omitted). "[E]vidence 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." Id. (citation omitted). The Commission's findings of fact are binding "even though there be evidence that would support findings to the contrary." Id. (quotation omitted). However, we review de novo the Commission's conclusions of law. Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 127, 532 S.E.2d 583, 585 (2000).

II. Injury by Accident

Defendant first argues that the Commission erred by concluding that plaintiff presented sufficient competent evidence to satisfy her burden of...