Porter v. Fieldcrest Cannon, Inc.

• Decision Date: 20 April 1999
• Docket Number: No. COA98-85.,COA98-85.
• Citation: 133 NC App. 23,514 S.E.2d 517
• Court: North Carolina Court of Appeals
• Parties: Linda C. PORTER, Employee, Plaintiff, v. FIELDCREST CANNON, INCORPORATED, Employer, Self-Insured, Defendant.

514 S.E.2d 517

133 NC App. 23

Linda C. PORTER, Employee, Plaintiff, v. FIELDCREST CANNON, INCORPORATED, Employer, Self-Insured, Defendant.

No. COA98-85.

Court of Appeals of North Carolina.

April 20, 1999.

Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, Greensboro, for plaintiff-appellant.

Smith Helms Mulliss & Moore, L.L.P., by Jeri L. Whitfield and Manning A. Connors, Greensboro, for defendant-appellee.

HUNTER, Judge.

Pursuant to Rule 18 of the North Carolina Rules of Appellate Procedure, Linda C. Porter (plaintiff) appeals from the Opinion and Award of the North Carolina Industrial Commission (Commission) which denied plaintiff's claim for worker's compensation. Evidence before the Commission tended to show that plaintiff was hired as a financial assistant on 29 July 1994 by Fieldcrest Cannon (defendant). While at work on 9 September 1994, plaintiff was typing at a conference room table and felt a hot sensation with sharp pains radiating down her neck sometime between the hours of 1:00 p.m. and 3:00 p.m. The computer work station plaintiff worked on that particular day had some ergonomic problems. Despite these problems and her pain, plaintiff continued to work at the keyboard in order to complete an assigned project, and worked full days beginning Saturday, 10 September 1994 through Thursday, 15 September 1994. On 15 September 1994, plaintiff reported to Dr. Stephen St. Clair, the occupational physician on duty for defendant, that she was experiencing pain in her left arm, shoulder and elbow and pain on the top of her left hand.

Plaintiff saw Dr. Stephen Robinson on 4 October 1994, complaining of discomfort in her left shoulder and left hand, with discoloration of the fingers after movements of her hands. Dr. Robinson conducted a physical examination, which was normal, and found no evidence of discoloration or a cervical disc problem. Dr. Robinson recommended ergonomic changes in plaintiff's work station and an MRI if the pain did not resolve.

An MRI conducted on 18 October 1994 revealed a herniated disc at the C-5 level of plaintiff's spine and some spondylosis. A cervical diskectomy and fusion at the C5-6 level was performed on plaintiff on 28 October 1994 by Dr. Ernesto Botero.

Plaintiff returned to work with defendant on 9 January 1995. Since her surgery, plaintiff has experienced other medical problems including symptoms consistent with thoracic outlet syndrome and fibromyalgia. An independent medical evaluation by Dr. Scott Spillman assigned a fifteen percent (15%) permanent partial disability rating to plaintiff's back as a result of her herniated disc at C5-6.

The deputy commissioner denied plaintiff's claim for workers' compensation benefits and plaintiff appealed to the full Commission. By an opinion filed 20 August 1997, the Commission affirmed the decision of the deputy commissioner. Plaintiff appeals.

The standard of appellate review of an opinion and award of the Industrial Commission 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 legal conclusions. Aaron v. New Fortis Homes, Inc., 127 N.C.App. 711, 714, 493 S.E.2d 305, 306 (1997) (citations omitted). "The findings of fact by the Industrial Commission are conclusive on appeal, if there is any competent evidence to support them, and even if there is evidence that would support contrary findings." Grantham v. R.G. Barry Corp., 127 N.C.App. 529, 534, 491 S.E.2d 678, 681 (1997) (citing Richards v. Town of Valdese, 92 N.C.App. 222, 225, 374 S.E.2d 116, 118 (1988), disc. review denied, 324 N.C. 337, 378 S.E.2d 799 (1989)). This Court's duty goes no further than to determine whether the record contains any evidence tending to support the finding of the Commission, and it does not have the right to weigh the evidence and then decide the issue on the basis of its weight. Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998). Conclusions of law, including whether there has been a change of condition, are reviewable de novo by this Court. See Richards at 225, 374 S.E.2d at 118; Lewis v. Craven Regional Medical Center, 122 N.C.App. 143, 149, 468 S.E.2d 269, 274 (1996).

Plaintiff contends that the Commission committed reversible error when it allowed plaintiff's prior counsel to withdraw, allowing her to proceed pro se. Plaintiff argues that the Commission erred by not protecting the rights of an injured worker who proceeded pro se in a complicated and involved workers' compensation appeal, who was

not aware that all the medical records were not submitted as evidence, who was unaware that the transcript of the evidence was not complete, who was clearly unable to handle the appeal competently, who was incapable of assigning error appropriately, and who was incapable of addressing the ex parte communications between defense counsel and the treating physician.

The determination of counsel's motion to withdraw is within the discretion of the trial court, whose decision is reversible only for abuse of discretion. Benton v. Mintz, 97 N.C.App. 583, 389 S.E.2d 410 (1990). The Industrial Commission possesses the powers of a court. Sidney v. Raleigh Paving & Patching, 109 N.C.App. 254, 257, 426 S.E.2d 424, 427 (1993)(citing Torain v. Fordham Drug Co., 79 N.C.App. 572, 340 S.E.2d 111 (1986)). "An abuse of discretion occurs when the trial court's ruling `is so arbitrary that it could not have been the result of a reasoned decision.'" Chicora Country Club, Inc. v. Town of Erwin, 128 N.C.App. 101, 109, 493 S.E.2d 797, 802 (1997),disc. review denied, 347 N.C. 670, 500 S.E.2d 84 (1998) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). Plaintiff has presented no authority in this state which supports the proposition that the Commission had a duty to intervene ex mero motu, preventing plaintiff from representing herself. The motion to withdraw by plaintiff's former counsel was made on 26 March 1997 and was consented to at the same time, in writing, by the plaintiff. At the hearing before the Commission, petitioner fully participated and made no objection to her counsel's withdrawal. As no objection was made, this issue is not properly before this Court and we cannot further address plaintiffs' assertion. See N.C.R.App. P. 10(b)(1). Nevertheless, it appears that the Commission did not make an arbitrary decision in allowing counsel to withdraw when plaintiff consented in writing, and never once objected when she appeared before the Commission.

Plaintiff's next assignment of error concerns the Commission's settlement of the record on appeal, which did not include documents "which were necessary to further the assignments of error regarding the allowance of counsel to withdraw." The Commission is vested with the authority to settle the record on appeal. See N.C.R.App. P. 18. Settlement of the record on appeal is the function of the trial tribunal, and not the subject of appellate review absent manifest abuse of discretion. State v. Little, 27 N.C.App. 467, 478, 219 S.E.2d 494, 501, disc. review denied, 288 N.C. 732, 220 S.E.2d 621 (1975). Documents which plaintiff wished to be included in the record were not introduced into evidence at the hearing on the matter. When settling the record on appeal, the Commissioner sustained the majority of the defendant's objections, but did allow certain documents propounded by the plaintiff. Plaintiff fails to show any evidence of abuse of discretion, merely arguing that "[t]hese documents were in the file and were clearly allowed to be a part of the record on appeal." Plaintiff fails to substantiate this claim and, absent a showing of abuse of discretion, this Court finds no error.

Plaintiff contends that the Commission committed reversible error when it admitted and considered certain medical records of the plaintiff prior to the incident in question. Plaintiff made no objection to the records being admitted. As shown by the pre-trial agreement executed by counsel for both parties, plaintiff consented to the inclusion of all of the medical records. Because plaintiff did not preserve this issue for appeal, we cannot address it further. See N.C.R.App. P. 10(b)(1).

Plaintiff also argues that the Commission held her to an improper burden of proof. Plaintiff first relies on Parsons v. Pantry, Inc., 126 N.C.App. 540, 485 S.E.2d 867 (1997), for the proposition that the Commission incorrectly placed the burden on plaintiff to prove she sustained a compensable traumatic incident. Plaintiff's reliance on Parsons is misplaced. It is axiomatic that plaintiff has the burden of initially establishing a causal relationship between a work-related incident and her medical conditions. See Snead v. Mills, Inc., 8 N.C.App. 447, 451, 174 S.E.2d 699, 702 (1970) ("[a] person claiming benefit of compensation has the burden of showing that the injury complained of resulted from the accident"); Harvey v. Raleigh Police Dept., 96 N.C.App. 28, 384 S.E.2d 549, disc. review denied, 325 N.C. 706, 388 S.E.2d 454 (1989).

Parsons concerned a separate set of facts and circumstances not present in this case: the plaintiff was awarded her medical expenses and future medical treatment by the Commission. Subsequently, the defendants refused to continue to pay for medical treatment beyond one visit to a neurologist. Another hearing was held, and the Commission held that the injured worker did not meet her burden to prove that the medical treatment was causally related. Parsons, 126 N.C.App. at 541, 485 S.E.2d at 868. This Court reversed, finding that once the claim is approved the burden shifts to the defendant to prove that the medical treatment is not related. Id. at 542, 485 S.E.2d at 869. There is no such burden on the defendant in the present case as the plaintiff's claim has not been approved by the Commission. The Commission did not err in holding the plaintiff to the proper...