Gigous v. City of Greensboro

• Court: North Carolina Court of Appeals
• Writing for the Court: Elmore
• Decision Date: 01 July 2003
• Docket Number: NO. COA02-1150.,COA02-1150.
• Citation: Gigous v. City of Greensboro (N.C. App. 2003)
• Parties: PATRICIA S. GIGOUS, Employee, Plaintiff; v. CITY OF GREENSBORO, Employer, and KEY RISK MANAGEMENT SERVICES, INC. Servicing Agent, Defendant.

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PATRICIA S. GIGOUS, Employee, Plaintiff; v. CITY OF GREENSBORO, Employer, and KEY RISK MANAGEMENT SERVICES, INC. Servicing Agent, Defendant.

NO. COA02-1150.

Court of Appeals of North Carolina.

Filed July 1, 2003.

Appeal by plaintiff from opinion and award filed 6 June 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 April 2003.

North Carolina I.C. File No. 302307.

Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner and Jeanette L. Foust, for plaintiff appellant.

Smith Moore L.L.P., by Caroline H. Lock and Manning A. Connors, for defendant appellees.

ELMORE, Judge.

Plaintiff Patricia S. Gigous appeals from an opinion and award of the Full Commission of the North Carolina Industrial Commission (Commission), which concluded that plaintiff was not entitled to compensation under the North Carolina Workers' Compensation Act for her back condition. The Commission's findings of fact aresupported by competent evidence, and the Commission's conclusions of law are in turn supported by its findings of fact. Accordingly, we affirm the Commission's opinion and award denying compensation to plaintiff.

The underlying facts tend to show plaintiff was employed for approximately eight years by defendant City of Greensboro (City), first as a groundskeeper from 1988-1990 and later as supervisor of Keeley Nursery (Nursery), a City-owned facility where plants are grown for use in public areas, from 1990-1996. Plaintiff's duties at the Nursery included plant propagation activities such as pruning, weeding, and fertilizing, as well as managerial tasks such as budget analysis and supervising, hiring and firing employees. During her employment by the City, plaintiff's supervisor was Mark Bush (Bush).

At the initial Industrial Commission hearing before Deputy Commissioner George Glenn, plaintiff testified that on 21 September 1992 she was helping another City employee repair an irrigation leak in a ditch by pouring cement on top of the break. While plaintiff was in the ditch her fellow employee handed down a bucket of cement, and when plaintiff turned to dump the cement, she "felt something pull in [her] back," followed by a "sharp pain." Plaintiff testified she missed several days of work following her alleged injury. Plaintiff testified that Bush was out of town on the date of her alleged injury, but that she called Bush after he returned "to let him know what had happened and why I was out." According to plaintiff, she had experienced back pain prior to thisalleged incident, but it was never severe enough that she sought medical attention. Plaintiff also testified that on 28 September 1992 she went to her family physician, Dr. Kevin Little (Dr. Little), and that she told Dr. Little she had injured her back while repairing the irrigation leak. Dr. Little took X-rays and an MRI and diagnosed "spondylolisthesis," or slippage of the vertebral bodies, at the L5-S1 vertebrae, caused in his opinion by a congenital pars defect at the L5 vertebra. Dr. Little also noted a bulging disc and prescribed physical therapy.

After her third and final physical therapy session, plaintiff reported significant improvement with minimal complaints of pain. The City paid for plaintiff's MRI and for her three physical therapy sessions, with the last payment occurring on 1 June 1993. Plaintiff continued to work for the City until May 1996, when she left to open her own plant nursery, and never filed a workers' compensation claim in connection with her alleged 21 September 1992 injury. For the next six years plaintiff sought no further treatment for her back condition, until presenting to Dr. Little on 15 June 1999 complaining of "a couple of months history of chronic low left back pain," accompanied now by pain "radiating down her leg at times all the way to her left heel." Dr. Little referred plaintiff to a neurosurgeon, Dr. Robert Nudelman (Dr. Nudelman), who performed an L5-S1 diskectomy, interbody fusion, and posterior lateral fusion on 2 November 2000. Plaintiff returned to work full-time three to four months later, and she has done well since this surgery. In his testimony before the Deputy Commissioner, Bush testified that, contrary to plaintiff's assertions, plaintiff first informed him on 13 October 1992 that she had injured her back. Bush did not recall plaintiff ever saying her back injury resulted from dumping a bucket of cement while repairing an irrigation-ditch leak. Bush testified that on 13 October 1992, he and plaintiff sat down in the Nursery's office and together completed a Form 19 "Employer's Report of Injury to Employee." The Form 19 was admitted into evidence and read, in pertinent part, as follows:

6. Date of injury[:] 21 Sept. 1992 . . .

. . .

8. Date disability began[:] 28 Sept. 1992 6:30 A.M.

9. When did you or your supervisor first know of injury[:] 13 Oct. '92

. . .

19. Machine, tool or thing causing injury[:] Continual bending, stooping, lifting (SEE ATTACHMENT)

. . .

24. Describe fully how injury occurred, and state what employee was doing when injured[:] No one incident _ Apparently caused by continual bending, stooping & lifting over a period of time

. . .

The "attachment" referenced in Line 19 stated: "Employee maintains that she could site [sic] no one incident that would have caused this injury. She further indicates that Dr. Little suggests the problem has resulted due to Patricia's continual bending, stooping, and lifting." Bush testified that if plaintiff had told him that her injury was caused by a specific incident, he would havedescribed the incident in the Form 19, "even if it had meant [adding] another attachment." Bush testified that he never led plaintiff to believe that her alleged back injury would be covered under the Workers' Compensation Act, and that he did not in fact have the authority to make such a determination.

Evidence considered by the Commission also included Dr. Little's deposition testimony. Dr. Little testified that the history he took from plaintiff on her 28 September 1992 visit indicated she had been having low back pain for a week and that "[s]he awoke with it one morning, no previous injury or overuse." Contrary to plaintiff's testimony, Dr. Little's medical records do not reflect any indication from plaintiff that she injured her back while repairing the irrigation leak or lifting a bucket of cement. Dr. Little testified that he first learned of plaintiff's alleged injury involving the irrigation leak repair and bucket of cement at his deposition on 1 August 2001.

The Commission also considered Dr. Nudelman's deposition testimony. Dr. Nudelman testified that plaintiff suffered from a congenital condition which resulted in the slippage at L5-S1, and that this slippage caused or significantly contributed to the degenerative disc disease and bulging disc with which plaintiff was diagnosed in 1992. Dr. Nudelman further testified that it was possible, but not probable, that plaintiff's alleged 21 September 1992 irrigation-ditch incident caused or contributed to the condition for which he treated plaintiff in 2000. On 17 February 2000, for the first time, plaintiff filed a Form 18 "Claim of Employee," and on 18 February 2000 plaintiff filed a Form 33 "Request That Claim Be Assigned for Hearing." By opinion and award filed 14 December 2001, Deputy Commissioner Glenn concluded that plaintiff was not entitled to compensation. The Full Commission reviewed Deputy Commissioner Glenn's decision without receiving further evidence, and by opinion and award filed 6 June 2002, the Full Commission modified and affirmed Deputy Commissioner Glenn's decision. Plaintiff gave notice of appeal to this Court on 28 June 2002.

Plaintiff brings forth twenty-three assignments of error challenging a number of the Commission's findings of fact and conclusions of law. The four issues presented in plaintiff's brief are (1) whether various actions of the City constituted acceptance of liability for plaintiff's claim, such that the City is "estopped from subsequently denying the injured worker's workers' compensation claim;" (2) whether various actions of the City estopped the City from asserting plaintiff's failure to file her claim within the then-applicable statutory filing period as a defense to plaintiff's claim; (3) whether the Commission incorrectly placed the burden of proof on plaintiff to show a causal connection between her 1992 "injury by accident or specific traumatic incident" and her 1999 condition and surgery; and (4) whether plaintiff "is entitled to have defendants provide all medical compensation arising from her injury by accident and/orspecific traumatic incident to her back" under the authority of Hyler v. GTE Products Co., 333 N.C. 258, 425 S.E.2d 698 (1993).

It is well-settled that "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). The Commission's findings of fact are conclusive if they are supported by any competent evidence in the record, even though there is evidence that would support contrary findings. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). The Commission's conclusions of law are reviewed de novo by this Court. Allen v. Roberts Elec. Contr'rs, 143 N.C. App. 55, 63, 546 S.E.2d 133, 139 (2001).

Here, the Commission made findings of fact, in pertinent part, as follows:

3. On October 13, 1992, plaintiff first informed Mr. Bush that she was experiencing back pain. Plaintiff was unable to cite any specific incident that caused her back pain and suggested only that it could have been due to continual bending, stooping, and lifting. On October 13, 1992 Mr. Bush and plaintiff together completed a Form...