Holley v. Acts, Inc.

• Citation: 152 NC App. 369,567 S.E.2d 457
• Decision Date: 20 August 2002
• Docket Number: No. COA01-931.,COA01-931.
• Court: North Carolina Court of Appeals
• Parties: Brenda Joyce HOLLEY, Employee, Plaintiff-Appellee, v. ACTS, INC., Employer, Liberty Mutual Insurance Company, Carrier, Defendant-Appellants.

567 S.E.2d 457

152 NC App. 369

Brenda Joyce HOLLEY, Employee, Plaintiff-Appellee, v. ACTS, INC., Employer, Liberty Mutual Insurance Company, Carrier, Defendant-Appellants.

No. COA01-931.

Court of Appeals of North Carolina.

August 20, 2002.

Griffin, Smith, Caldwell, Helder & Lee, P.A., by Annika M. Brock and R. Kenneth Helms, Jr., Monroe, for plaintiff-appellee.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Neil P. Andrews and Terry L. Wallace, Charlotte, for defendant-appellants.

McGEE, Judge.

ACTS, Inc. (defendant-employer) and its insurance carrier Liberty Mutual Insurance Company (collectively defendants) appeal from the opinion and award of the North Carolina Industrial Commission (Industrial Commission) awarding workers' compensation benefits to Brenda Joyce Holley (plaintiff). Plaintiff was hired by defendant-employer in January 1996 to work at Plantation Estates, a medical care facility, as a Certified Nurses Assistant I.

Plaintiff was at Plantation Estates on 13 July 1996 when she saw a patient on the floor. As plaintiff walked down the hall to help lift the patient off the floor, plaintiff's foot became stuck on the carpet. She turned suddenly and injured her lower left leg in the calf. Plaintiff testified she "could hardly walk" and her left leg was in pain. Plaintiff returned to work on 14 July 1996. The pain in her leg continued to worsen and she noticed some swelling. She was examined by Dr. Jason Ratterree (Dr. Ratterree) at Presbyterian Hospital Matthews. Dr. Ratterree diagnosed plaintiff as suffering from muscle strain. He prescribed medication, told plaintiff to wear an ace bandage and use crutches, and ordered plaintiff to stay off her left leg for three days. Plaintiff returned to work on 22 July 1996 and continued to work for defendant-employer. On 3 September 1996, plaintiff went to the doctor, and while at the doctor's office she experienced acute pain and swelling in her left lower leg and had to be hospitalized for three days. While at the hospital, plaintiff was diagnosed with deep venous thrombosis (DVT), which is a disorder involving a thrombus or blood clot in one of the deep veins of the body, causing an obstruction of the blood flow and often resulting in the pooling of blood in a lower extremity. Plaintiff saw Dr. Dietlinde W. Zipkin (Dr. Zipkin) and plaintiff returned to work on 16 November 1996. Plaintiff continued to experience leg pain and was hospitalized again on 16 June 1997 for chronic DVT.

Plaintiff's claim was heard before a deputy commissioner on 22 March 2000. The deputy commissioner filed an opinion and award concluding that "plaintiff's DVT was not the result of the plaintiff's injury by accident to her left leg arising out of and in the course of her employment." Plaintiff appealed to the Industrial Commission.

The Industrial Commission heard the matter on 24 January 2001 and issued an opinion and award concluding that "plaintiff's DVT was the result of the plaintiff's injury by accident to her left leg arising out of and in the course of her employment." The Industrial Commission ordered defendants to pay to plaintiff $20,000.00 plus interest pursuant to N.C. Gen.Stat. § 97-31(24), and seventeen and one-seventh weeks of temporary total disability at the rate of $162.40 per week plus interest. The Industrial Commission also ordered defendants to pay plaintiff's attorneys twenty-five percent of the compensation due plaintiff and to pay plaintiff's medical expenses and expert witness fees. Commissioner Laura Kranifeld Mavretic issued a dissenting opinion. Defendants appeal from the Industrial Commission's opinion and award.

On an appeal from an opinion and award of the Industrial Commission, the standard of review for this Court "is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its conclusions of law." Goff v. Foster Forbes Glass Div., 140 N.C.App. 130, 132-33, 535 S.E.2d 602, 604 (2000). The Industrial Commission's findings of fact are binding on review if the record contains any competent evidence in their support. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). This is true even when the record offers evidence that would support findings to the contrary. Id. The Industrial Commission's conclusions of law, however, are reviewable de novo. Lewis v. Craven Regional Medical Center, 122 N.C.App. 143, 149, 468 S.E.2d 269, 274 (1996)

.

I.

Defendants first argue that the Industrial Commission erred in describing the circumstances surrounding plaintiff's alleged injury by accident.

The parties entered into stipulations at the hearing before the deputy commissioner which the Industrial Commission incorporated as findings of fact and conclusions of law in its opinion and award. Stipulation number five states that "[t]he parties stipulated that the plaintiff injured her left lower leg in the calf area when she turned suddenly while walking down the hall at her place of employment with the defendant-employer on July 13, 1996."

The opinion and award additionally stated in finding number four that

[o]n July 13, 1996, the plaintiff was working for the defendant-employer as a floater. The plaintiff was assigned to help lift a patient off of the floor. As the plaintiff helped to lift the patient, the plaintiff's foot became stuck on the carpet as she turned suddenly and she injured her lower left leg in the calf.... The foot becoming stuck on the carpet as she turned suddenly constituted an accident and the resulting injury was an injury by accident within the meaning of the Workers' Compensation Act.

The Industrial Commission concluded in conclusion of law number one that "[o]n July 13, 1996, the plaintiff sustained an injury by accident to her left leg arising out of and in the course of her employment with defendant-employer."

Defendants argue on appeal that the sentence in finding of fact number four that "as the Plaintiff helped to lift the patient, Plaintiff's foot became stuck on the carpet as she turned suddenly[,]" is not supported by competent evidence in the record. They contend that "at the very least, [the opinion and award] should be modified to the extent it is necessary for a decision in this case."

At the hearing before the deputy commissioner, plaintiff testified as follows:

Q: Do you remember on July 13, 1996?

A: Yes, I do.

Q: Why do you remember that, Ms. Holley?

A: I was working there, and I was on the special care unit, which is the Alzheimer['s] unit. I had [gone] over to go to the bathroom, and Jan Waggey, the nurse there, asked me to go down and check with Ms. Bowman. She couldn't understand—which was a patient that—I was a floater. I floated from both sides. Asked me if I would check and see what she was saying. She couldn't understand her. At that time, I went down and talked with Mrs. Bowles. And as I was coming back up the hall to report to Ms. Waggey what she had said, I [saw] a patient on the floor....

Q: What do you mean "on the floor"?

A: She had fallen. We're not to remove a patient [ ] unless we get the nurse. So Peggy Lee was a CNA, and Jan—we went down and picked her up. But as I hurried up the hall, I turned to go back; and, when I did, it was like my foot stuck to the carpet. They had [ ] new carpet put down; and, when I swerved around, I felt a pull in my leg, and I told Peggy when we got to the room—I said, "I have pulled my leg."

Q: Can you tell us specifically where in your leg?

A: In the calf of my leg.

Q: Which leg?

A: Left leg.

Q: All right. At that point, what did you do?

A: Helped get the patient up off the floor, and then I went back to special care. At that time, I could hardly walk. My leg was hurting[.]

The specific sentence defendants are challenging on appeal is not supported by competent evidence in the record. However, even if we set aside this sentence, there remains competent evidence in the record to support the remainder of finding of fact number four; namely, that plaintiff's foot became stuck on the carpet as she turned suddenly, which was an accident and the resulting injury was an injury by accident. Further, we note that both parties stipulated, and the Industrial Commission additionally found as fact that plaintiff "injured her left lower leg in the calf area when she turned suddenly while walking down the hall at her place of employment[.]" (emphasis added). This stipulation as incorporated in the opinion and award is fully supported by plaintiff's testimony and this stipulation supports conclusion of law number one. Defendants do not dispute that plaintiff's injury by accident arose out of and in the course of her employment with employer-defendant. Defendants' assignments of error as to this issue are overruled.

II.

Defendants next argue that the Industrial Commission erred in finding and concluding that plaintiff's injury by accident caused her DVT because the medical evidence in this case is insufficient to establish a causal link between plaintiff's injury and her DVT.

To establish "a compensable claim for workers' compensation, there must be proof of a causal relationship between the injury and the employment." Peagler v. Tyson Foods, 138 N.C.App. 593, 597, 532 S.E.2d 207, 210 (2000)(citing Booker v. Medical Center, 297 N.C. 458, 475, 256 S.E.2d 189, 200 (1979)). An injury is therefore compensable if "`it is fairly traceable to the employment' or `any reasonable relationship to the employment exists.'" Rivera v. Trapp, 135 N.C.App. 296, 301, 519 S.E.2d 777, 780 (1999) (quoting Shaw v. Smith and Jennings, Inc., 130 N.C.App. 442, 445, 503 S.E.2d 113, 116,disc. review denied, 349 N.C. 363, 525 S.E.2d 175 (1998)). The plaintiff has the burden of proving each element of compensability. Harvey v. Raleigh Police Dept., 96 N.C.App. 28, 35, 384 S.E.2d 549, 553,disc. review denied, 325 N.C. 706, 388 S.E.2d 454 (1989).

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