Lineback v. Wake County Bd. of Com'rs

• Decision Date: 01 July 1997
• Docket Number: No. COA96-1386,COA96-1386
• Parties: William B. LINEBACK, Employee, Plaintiff; v. WAKE COUNTY BOARD OF COMMISSIONERS, Employer; Self-Insured, Defendant.
• Court: North Carolina Court of Appeals

Page 252

486 S.E.2d 252

126 N.C.App. 678

William B. LINEBACK, Employee, Plaintiff; v. WAKE COUNTY BOARD OF COMMISSIONERS, Employer;

Self-Insured, Defendant.

No. COA96-1386.

Court of Appeals of North Carolina.

July 1, 1997.

Patterson, Harkavy & Lawrence, L.L.P. by Henry N. Patterson, Jr., and Martha A. Geer, Raleigh, for plaintiff-appellant.

Brooks, Stevens & Pope, P.A. by Robert H. Stevens, Jr., Patricia Wilson Medynski, and Claire Fried Drake, Cary, for defendant-appellee.

JOHN C. MARTIN, Judge.

Plaintiff, a paramedic for Wake County, filed this claim seeking workers' compensation benefits for a knee injury which he sustained at work. Evidence before the Industrial Commission tended to show that on 23 July 1994, plaintiff responded to an emergency call at the Sundown Inn at approximately 3:30 a.m. Upon arriving at the scene, plaintiff exited the ambulance by first extending his left leg out of the truck. Due to the height of the vehicle, his left foot was eight to nine inches above the parking lot surface, which was uneven. When plaintiff landed on his left foot, and turned to head for the oxygen compartment, he felt a "popping and crunching sensation" in his left knee. Plaintiff continued to work, but reported his knee injury to his partner before the end of their shift.

Plaintiff sought treatment from his general practitioner, who removed him from work due to a "severe knee sprain." On 26 July 1994 plaintiff went to the emergency room for further treatment and was referred to an orthopedic surgeon. That same day, plaintiff reported his injury to the Assistant Director of Emergency Medical Services who completed an Industrial Commission Form 19. Plaintiff was diagnosed with a left knee medial meniscus tear and underwent surgery. He was released to work on 7 September 1994 with a five percent permanent partial disability to the left leg.

The deputy commissioner denied plaintiff's claim for workers' compensation benefits and plaintiff appealed to the Full Commission. By an opinion and award filed 31 July 1996, the Full Commission affirmed the decision of the deputy commissioner, finding that plaintiff injured his knee while carrying on the usual and customary duties of a paramedic in the usual and normal way and concluding that he did not sustain an injury by accident arising out of and in the course of his employment with defendant-employer. Plaintiff appeals from the opinion and award of the Full Commission.

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Plaintiff contends on appeal that the Industrial Commission erred in denying his claim for benefits because it did not consider testimony of his orthopedic surgeon, Dr. Michael Comstock, regarding the cause of plaintiff's injury. Thus, plaintiff contends, the Commission's conclusion of law that he did not sustain an "injury by accident" within the meaning of G.S. § 97-2(6) is supported by neither sufficient findings of fact nor competent evidence.

The standard of appellate review of an opinion and award of the Industrial Commission in a workers' compensation case is whether there is any competent evidence in the record to support the Commission's findings of fact and whether these findings support the Commission's conclusions of law. Sidney v. Raleigh Paving & Patching, 109 N.C.App. 254, 426 S.E.2d 424 (1993). The findings of fact made by the Commission are conclusive upon appeal when supported by competent evidence, even when there is evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). In weighing the evidence, the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject a witness' testimony entirely if warranted by disbelief of that witness. Russell v. Lowes Product Distribution, 108 N.C.App. 762, 425 S.E.2d 454 (1993). However, before finding the facts, the Industrial Commission must consider and evaluate all of the evidence. Although the Commission may choose not to believe the evidence after considering it, it may not wholly disregard or ignore competent evidence. Weaver v. American National Can Corp., 123 N.C.App. 507, 473 S.E.2d 10 (1996); Harrell v. J.P. Stevens & Co., 45 N.C.App. 197, 262 S.E.2d 830, disc. review denied, 300 N.C. 196, 269 S.E.2d 623 (1980).

In the present case, the Industrial Commission made findings of fact regarding the events of 23 July 1994 as follows:

9. On July 26, plaintiff formally reported his injury to Linwood Barham, the assistant director of defendant's emergency medical service. Mr. Barham completed the Industrial Commission Form 19 in plaintiff's presence based on information provided by plaintiff during this interview. The Form reported that the injury was caused by a "twisting motion." The plaintiff stated that the injury occurred during the emergency call while getting out of the driver's side of the ambulance. Plaintiff stated that he placed his left foot on the ground; and while completing the exit from the vehicle, he must have twisted his left knee and felt a pop in his left knee. However, plaintiff's recorded statement taken July 27, 1994 was that the motion involved while exiting his ambulance was a "normal motion, that it wasn't like I stepped out and lost my balance and violently twisted it or anything like that. It was just a normal motion."

Plaintiff's orthopedic surgeon, Dr. Comstock, was qualified as an expert medical witness and rendered his opinion with respect to the cause of plaintiff's medial meniscus tear. Dr. Comstock testified:

It is--it is not typical for that type of injury...