Hardin v. Motor Panels, Inc., No. COA98-1587.

• Court: North Carolina Court of Appeals
• Writing for the Court: McGEE.
• Citation: Hardin v. Motor Panels, Inc., 524 S.E.2d 368, 136 N.C. App. 351 (N.C. App. 2000)
• Decision Date: 18 January 2000
• Docket Number: No. COA98-1587.
• Parties: Patricia HARDIN, Employee, Plaintiff-Appellant, v. MOTOR PANELS, INC., Employer, and Self-Insured (Key Risk Mgmt.), Carrier, Defendant-Appellees.

524 S.E.2d 368

136 NC App. 351

Patricia HARDIN, Employee, Plaintiff-Appellant, v. MOTOR PANELS, INC., Employer, and Self-Insured (Key Risk Mgmt.), Carrier, Defendant-Appellees.

No. COA98-1587.

Court of Appeals of North Carolina.

January 18, 2000.

Frederick R. Stann, Gastonia, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Thomas Page, Charlotte, for defendant-appellees.

McGEE, Judge.

This case arises from a workers' compensation claim for carpal tunnel syndrome caused by "repetitive motion work" during plaintiff Patricia Hardin's employment with defendant Motor Panels, Inc.

An opinion and award was entered by a deputy commissioner on 29 October 1997 denying plaintiff's claim because "[p]laintiff's last injurious exposure to the risk of developing or augmenting carpal tunnel syndrome occurred subsequent to her employment with defendant-employer." Plaintiff appealed to the Full Commission. The Commission found as a fact that plaintiff was employed by defendant from October 1988 to April 1993. Her duties included typing reports and correspondence, clerical support, and data entry. She worked approximately eight to ten hours a day. Plaintiff received positive reviews for the quality of her work during the first three years of her employment with defendant. However, in December 1992, she received a negative performance appraisal. Plaintiff presented her letter of resignation to defendant on 15 April 1993 to avoid being terminated for deterioration in the quality of her work. The Commission found that after her resignation, plaintiff applied for and received unemployment benefits totaling $5,125. The Commission also noted that to apply for unemployment compensation a person must be capable of working.

The Commission found that plaintiff was examined by Dr. Robert Jones on 26 April 1993 for complaints of hand and wrist numbness. Dr. Jones diagnosed plaintiff as suffering from overuse tendinitis of the arms. Plaintiff was seen by Dr. Stephen J. Naso, Jr. on 7 May 1993. Dr. Naso determined that plaintiff had negative Tinel's and Phalen's signs. As a result, Dr. Naso diagnosed plaintiff as having tendinitis and released her with limited work restrictions.

The Commission further found that in November 1993, plaintiff began working at Belk department store as a layaway clerk, where she handled packages and ran a cash register. Her duties at Belk aggravated her symptoms of pain and swelling in her hands, and she quit that job after approximately three weeks. Plaintiff next obtained employment as a cashier for Burger King, where she took orders, ran a cash register, and bagged items. Her duties as a cashier also aggravated her symptoms, and she resigned after three months. Plaintiff next worked as a home health aide for Communication Network Consultants and left that position due to an aggravation of her symptoms as well. Finally, plaintiff was employed at Petro World in September 1995 as a clerk for two weeks. She left her job because of swelling, numbness, and pain in her hands.

The Commission further found that plaintiff sought treatment from Dr. Leonel P. Limonte, a neurosurgeon, on 22 August 1994. Dr. Limonte found that plaintiff had carpal tunnel syndrome. Dr. Limonte referred plaintiff to Dr. Emmett H. Dyer, a neurosurgeon, in June 1995, to evaluate the possibility of surgery. On 21 June 1995, Dr. Dyer performed a bilateral median nerve release. Plaintiff was released without restrictions in July 1995.

The Commission determined that "[p]laintiff has not proven by a preponderance of the competent, credible evidence of record that her job at defendant-employer caused her carpal tunnel syndrome." Furthermore, the Commission found that "[p]laintiff's work subsequent to her resignation from defendant-employer augmented her symptoms of pain, swelling and numbness in her hands and led to the development of carpal tunnel syndrome after she left her employment as a typist."

The Commission determined that "[p]laintiff was last injuriously exposed to carpal tunnel syndrome while working with employers subsequent to defendant-employer." Finally, the Commission found that the "record does not support a finding that plaintiff's employment with defendant-employer significantly contributed to her carpal tunnel syndrome." Therefore, on 2 October 1998, the Commission upheld the opinion and award of the deputy commissioner. Plaintiff appeals.

Our Court, when reviewing an opinion and award of the Industrial Commission, is limited to two questions: (1) whether there is any competent evidence in the record to support the Commission's findings of fact; and (2) whether those findings of fact support the Commission's conclusions of law. Locklear v. Stedman Corp., 131 N.C.App. 389, 393, 508 S.E.2d 795, 797 (1998) (citation omitted). The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings. Id.

Under N.C. Gen.Stat. § 97-57 (1991), an employer is liable to an employee for an occupational disease if the employee demonstrates that she (1) suffers from a compensable occupational disease and (2) was last injuriously exposed to the hazards of such disease while employed by defendant. Rutledge v. Tultex Corp., 308 N.C. 85, 89, 301 S.E.2d 359, 362-63 (1983). An occupational disease does not become compensable unless it causes incapacity for work. Caulder v. Waverly Mills, 314 N.C. 70, 75, 331 S.E.2d 646, 649 (1985).

The employee seeking workers' compensation benefits bears the burden of proving every element of compensability. Gibbs v. Leggett and Platt, Inc., 112 N.C.App. 103, 107, 434 S.E.2d 653, 656 (1993) (citation omitted). The degree of proof required of a claimant under the Act is the "greater weight" or "preponderance" of the evidence. Phillips v. U.S. Air, Inc., 120 N.C.App. 538, 541-42, 463 S.E.2d 259, 261 (1995), aff'd, 343 N.C. 302, 469 S.E.2d 552 (1996).

I.

Plaintiff argues that the Commission erred in failing to find that employment with defendant caused her carpal tunnel syndrome. We disagree.

To establish a right to workers' compensation benefits for an occupational disease under N.C. Gen.Stat. § 97-53(13)(1991), the employee must show: (1) the disease is characteristic of individuals engaged in the particular trade or occupation in which the claimant is engaged; (2) the disease is not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there is a causal relationship between the disease and the claimant's employment. Rutledge, 308 N.C. at 93, 301 S.E.2d at 365 (citations omitted). The third element of the test is satisfied if the employment "significantly contributed to, or was a significant causal factor in, the disease's development." Id. at 101, 301 S.E.2d at 369-70. For the employment to constitute a "significant contributing" factor, the employee must show that without it the occupational disease "would not have developed to such an extent that it caused the physical disability which resulted in claimant's incapacity for work." Baker v. City of Sanford, 120 N.C.App. 783, 788, 463 S.E.2d 559, 563 (1995) (citation omitted), disc. review denied, 342 N.C. 651, 467 S.E.2d 703 (1996).

Plaintiff was unable to prove that her employment with defendant was a significant contributing cause of her carpal tunnel syndrome. While her treating doctors did state that typing is a known cause for carpal tunnel syndrome, competent evidence shows that her job was not a significant contributing factor in plaintiff's case.

Plaintiff's diagnosing physician/neurosurgeon was unable to connect plaintiff's carpal tunnel syndrome to her employment with defendant. During direct and cross-examination, Dr. Dyer could not say that plaintiff's former employment with defendant was a significant contributing factor in the development of her carpal tunnel syndrome. Dr. Dyer responded to plaintiff's counsel in the following manner:

Q. Do you feel comfortable in finding that her work as a typist, as I've defined it to be, in my words, a significant contributing factor, according to my definition?

MR. PAGE: Objection.

THE WITNESS: My opinion would be that it was a contributing factor, and the degree of contribution that her work made I'm not able to say.

Although it is not necessary for doctors to use the exact wording of "significantly contribut[ing]," there must be some indication of the degree of contribution such as "more likely than not" to meet the Rutledge test. Locklear, 131 N.C.App. at 394, 508 S.E.2d at 798. Here, Dr. Dyer opined only that plaintiff's work as a typist was a "contributing factor" but was unable to specify a degree of contribution.

Plaintiff relies in part on Dr. Naso's testimony that her employment with defendant was a significant contributing factor in the development of her tendinitis. However, Dr. Naso did not testify that her employment was a significant contributing factor to her carpal tunnel syndrome. While Dr. Naso did testify that tendinitis could develop into carpal tunnel syndrome, he also testified that when he examined plaintiff in May 1993, her tendinitis was resolving. Dr. Naso never testified that plaintiff's carpal tunnel syndrome was related to her job with defendant or to the tendinitis. Absent mere conjecture, plaintiff failed to produce any evidence by Dr. Naso relating plaintiff's symptoms at the time he examined her to carpal tunnel syndrome.

Plaintiff argues that Dr. Limonte's testimony provides competent, credible evidence of medical causation. Assuming, arguendo, plaintiff's argument is correct, this Court has stated that "the opinion of the Industrial Commission ... is conclusive on this Court if it is supported by any competent evidence... and can only be set aside if there is a complete lack of competent evidence." Sidney v. Raleigh Paving & Patching, 109 N.C.App. 254, 256, 426...