Nale v. Ethan Allen, COA09-55.

Decision Date01 September 2009
Docket NumberNo. COA09-55.,COA09-55.
Citation682 S.E.2d 231
PartiesLinda Weatherly NALE, Plaintiff, v. ETHAN ALLEN, and St. Paul Travelers, Defendants.
CourtNorth Carolina Court of Appeals

The Sumwalt Law Firm, by Vernon Sumwalt and Mark T. Sumwalt, Charlotte, for employee-plaintiff-appellee.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Jeremy T. Canipe and M. Duane Jones, Charlotte, for employer-carrier-defendant-appellants.

STEELMAN, Judge.

Plaintiff was required to prove, by expert medical testimony, that her right knee injury was a direct and natural result of her compensable left knee injury. This causal link was not established by plaintiff's expert witness. As to defendant's second argument, there is a conflict in the findings of the Industrial Commission, and this matter is remanded for additional findings of fact.

I. Factual and Procedural Background

In July 2005, Linda Weatherly Nale (plaintiff) was employed as an interior designer in Charlotte at Ethan Allen Interiors Inc. (Ethan Allen). Her duties included greeting people when they came to the store, going to clients' residences to deliver accessories, and picking up materials and supplies from the warehouse. Plaintiff was on her feet "quite a bit," and "would walk quite a ways around into the store."

On 14 July 2005, plaintiff was in the warehouse searching for fabric when her left foot became wedged in between boxes. She fell forward and twisted her left knee. Plaintiff continued working without reporting the incident. That weekend, plaintiff went on vacation, and her pain "continued to get worse. ..." Plaintiff went to the emergency room upon her return to Charlotte.

On 26 July 2005, plaintiff went to Northcross Urgent Care in Huntersville complaining of left knee pain and a swollen, numb foot. Dr. Hal Armistead (Dr. Armistead) imposed work restrictions including wearing a splint, lifting no more than ten pounds, and no stooping, bending or twisting. The work restrictions were delivered to plaintiff's manager, Michelle Jones (Jones) that same day. Plaintiff continued to work. Over the next several months, plaintiff saw four different doctors seeking treatment for her left knee.

On 13 September 2005, Ethan Allen completed Industrial Commission (Commission) Form 19 reporting plaintiff's left knee injury. On 16 September 2005, Ethan Allen's carrier filed a Form 61 with the Commission denying the claim, pending further investigation and receipt of medical records from all treating physicians. On 21 October 2005, Ethan Allen's carrier filed another Form 61 denying the claim based on plaintiff's failure to execute a medical authorization sheet listing her physicians and their contact information.

On 29 November 2005, Dr. Christopher Bensen (Dr. Bensen), an orthopaedic surgeon, directed that plaintiff not work until 12 December 2005. On 19 December 2005, Dr. Scott L. Smith (Dr. Smith), who practiced with Dr. Bensen, placed plaintiff on work restrictions "with sedentary work only with no walking more than 15 minutes an hour and no bending, stooping, squatting, or kneeling." Plaintiff was further restricted from climbing stairs or ladders.

On 24 August 2006, plaintiff sought treatment from Dr. H. Del Schutte, Jr. (Dr. Schutte). Dr. Schutte recommended arthroscopic surgery on plaintiff's left knee. On 7 September 2006, Dr. Schutte performed a chondroplasty, shaving loose or frayed cartilage from her knee. Dr. Schutte's surgical note stated that plaintiff had "some injury to the cartilage and some fraying of her meniscus." Following surgery, plaintiff experienced a significant reduction in pain. Dr. Schutte encouraged her to be active, and she resumed running for exercise.

The Commission found that plaintiff voluntarily left her employment with Ethan Allen on 1 May 2006, drew unemployment compensation from that date, and returned to work on 28 December 2006. On 26 February 2007, plaintiff requested that her claim be assigned for hearing.

On 7 March 2007, plaintiff returned to Dr. Schutte complaining of pain in her left knee and that "her left knee needs to be lubricated." X-rays taken of her left knee revealed "medial wear and joint space narrowing in the medial aspect with some bone spurs." Dr. Schutte injected her left knee with steroids.

On 9 May 2007, plaintiff returned to Dr. Schutte, complaining of pain in her right knee. Earlier that week, plaintiff twisted her right knee and "felt a pop." Dr. Schutte administered a cortisone injection. The injection relieved the pain until she tried to get into her vehicle and felt another pop in her right knee. On 16 May 2007, plaintiff told Dr. Schutte that her right knee had "just started hurting a few weeks ago," and she thought "it [was] because her left knee had been hurting in the past." Plaintiff stated she had been placing more weight on her right knee.

On 26 June 2007, Dr. Schutte performed a chondroplasty and excision of plica on plaintiff's right knee. Plica is scar tissue on the inner lining of the capsule in the knee. Dr. Schutte also removed fluid from plaintiff's right knee. On 11 July 2007, Dr. Schutte opined that she had "a greater than 50% chance of requiring bilateral total knee anthroplasties in the future."

On 10 September 2008, the Commission filed an Opinion and Award ruling that plaintiff's left knee injury was a compensable injury, and plaintiff's right knee condition was causally related to her compensable left knee injury. The Commission awarded plaintiff total disability compensation for 241 days based on an average weekly wage of $770.97, a total of $17,695.60 pursuant to N.C. Gen.Stat. § 97-29. Past, present, and future medical expenses related to her left and right knee injuries were also awarded.

Defendants appeal.

II. Standard of Review

This Court's standard of review of an Opinion and Award of the Industrial Commission 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." Lineback v. Wake County Board of Commissioners, 126 N.C.App. 678, 680, 486 S.E.2d 252, 254 (1997) (citing Sidney v. Raleigh Paving & Patching, 109 N.C.App. 254, 426 S.E.2d 424 (1993)). The Commission's findings of fact are conclusive on appeal if supported by competent evidence. This is true even if there is evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981) (citations omitted). "The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). In determining whether competent evidence supports the findings of fact, the evidence is to be viewed in the light most favorable to plaintiff. Davis v. Harrah's Cherokee Casino, 362 N.C. 133, 137, 655 S.E.2d 392, 395 (2008) (citations omitted). Plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence. Id.

III. Left Knee Injury

Defendants assigned error to the Commission's award pertaining to plaintiff's left knee injury but have failed to argue the assignment of error in their brief. It is thus deemed abandoned pursuant to N.C.R.App. P. 28(b)(6).

IV. Right Knee Injury Not Causally Related to Left Knee Injury

In their first argument, defendants contend the Commission erred in finding that plaintiff's right knee injury was causally related to the compensable left knee injury. We agree.

The Worker's Compensation Act "was never intended to provide the equivalent of general accident or health insurance." Vause v. Vause Farm Equipment Co., 233 N.C. 88, 92, 63 S.E.2d 173, 176 (1951). An injury is only compensable if it arises "out of and in the course of the employment." N.C. Gen.Stat. § 97-2(6) (2007). Plaintiff bears the burden of proving each element of compensability. Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003) (citing Harvey v. Raleigh Police Dept., 96 N.C.App 28, 35, 384 S.E.2d 549, 553, disc. rev. denied, 325 N.C. 706, 388 S.E.2d 454 (1989)). A subsequent injury is compensable if it is the direct and natural result of a compensable primary injury. As long as the primary injury is shown to have arisen out of and in the course of employment, then every natural consequence flowing from that injury likewise arises out of the employment. Starr v. Charlotte Paper Co., 8 N.C.App. 604, 611, 175 S.E.2d 342, 347 (1970) (quoting Larson's Workmen's Compensation Law § 13.00). The subsequent injury is not compensable if it is the result of an independent, intervening cause. "`An intervening cause is one occurring entirely independent of a prior cause. When a first cause produces a second cause that produces a result, the first cause is a cause of that result.'" Cannon v. Goodyear Tire & Rubber Co., 171 N.C.App. 254, 260, 614 S.E.2d 440, 445 (2005) (quoting Petty v. Associated Transport, Inc., 276 N.C. 417, 426, 173 S.E.2d 321, 328 (1970)), disc. review denied, 360 N.C. 61, 621 S.E.2d 177 (2005). "To show causal relation, `the evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation ....'" Everett v. Well Care & Nursing Servs., 180 N.C.App. 314, 319, 636 S.E.2d 824, 828 (2006) (quoting Gilmore v. Hoke County Board of Education, 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)).

Defendants contend that the evidence does not support the following findings of fact of the Commission:

20. Plaintiff's left knee has continued to hurt since September 2006. Several weeks before May 2007, Plaintiff's right knee started to hurt...

To continue reading

Request your trial
17 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT