Raper v. Mansfield Systems, Inc., COA07-681.

Citation657 S.E.2d 899
Decision Date18 March 2008
Docket NumberNo. COA07-681.,COA07-681.
PartiesTimothy RAPER, Employee, Plaintiff, v. MANSFIELD SYSTEMS, INC. and Federated Mutual Insurance Company, Employer/Carrier, Defendants.
CourtCourt of Appeal of North Carolina (US)

Anderson Law Firm by Michael J. Anderson, Wilson, for plaintiff-appellant/appellee.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Tonya D. Davis, Raleigh, for defendants-appellants/appellees.

JACKSON, Judge.

Timothy Raper ("plaintiff") and Mansfield Systems, Inc. ("defendant-employer"), along with its insurance carrier, Federated Mutual Insurance Co. (collectively, "defendants"), appeal from an Opinion and Award of the Full Commission of the North Carolina Industrial Commission ("Full Commission") filed 2 February 2007. For the following reasons, we affirm in part and remand in part.

Plaintiff was employed by defendant-employer as a driver of gasoline tankers. On 28 May 2003, after filling a gasoline storage tank in his usual manner, plaintiff reached down to pick up the hose and, when he was approximately fifty percent upright, experienced a snapping sensation in his right shoulder area. Upon feeling the snapping sensation, instead of placing the hose in the trough in his usual manner, plaintiff threw the hose onto the trough to avoid dropping it and the possibility of not being able to pick it up again. Plaintiff described the trough as being higher than his shoulders.

Thereafter, plaintiff reported the incident to defendant-employer, and was instructed to seek treatment at Smithfield Urgent Care ("the Urgent Care"). At the time, plaintiff's symptoms included pain extending from the right side of his neck down into his right shoulder and hand. Plaintiff also experienced numbness and tingling of the second, third, and fourth digits on his right hand as well as weakness in his right arm. Previously, plaintiff had presented to the Urgent Care, but plaintiff's medical records from the Urgent Care disclosed no prior pain in his neck, right shoulder, or right hand and no prior numbness or tingling in the fingers on his right hand.

On 29 May 2003, plaintiff presented to the Urgent Care, and medical records from that date describe plaintiff's symptoms in his right trapezius muscle and cervical spine, with the right side being worse than the left. The medical records also indicate that plaintiff was able to rotate his neck and head only half as much as normal. On 2 June 2003, plaintiff returned to the Urgent Care, and was diagnosed as having sustained a cervical sprain and injury to his trapezius muscle. On 9 June 2003, plaintiff again presented to the Urgent Care, and was diagnosed as having cervical radiculopathy.

On 26 September 2003, plaintiff presented to Dr. Carol B. Siegel ("Dr. Siegel") at Raleigh Orthopaedic Clinic, who noted that plaintiff was experiencing numbness and tingling in the fingers on his right hand. Dr. Siegel conducted numerous diagnostic tests, including an electromyography and nerve conduction studies of plaintiff's right upper extremity, and diagnosed plaintiff as having right carpal tunnel syndrome. Dr. Siegel recorded that because plaintiff denied having hand and finger symptoms prior to 28 May 2003, she could attribute his carpal tunnel syndrome only to the injury occurring on that date.

On 3 May 2004, plaintiff presented to Dr. Josephus T. Bloem ("Dr. Bloem"), stating that he was experiencing constant discomfort in his right shoulder and pain in his right wrist. Following his examination, Dr. Bloem diagnosed plaintiff as having right carpal tunnel syndrome and a likely rotator cuff tear. Dr. Bloem stated that there was no manner available to determine the extent of any rotator cuff tear without performing surgery, but with respect to plaintiff's carpal tunnel syndrome, Dr. Bloem recommended that plaintiff attempt conservative therapies before considering surgery. Dr. Bloem opined that plaintiff's right carpal tunnel syndrome was likely the result of a wrist sprain that occurred when plaintiff threw the tanker hose onto the trough on 28 May 2003. Additionally, while acknowledging that plaintiff has diabetes, and the potential relationship between diabetes and carpal tunnel syndrome, Dr. Bloem opined that the trauma of 28 May 2003 was a more likely cause given that plaintiff had symptoms only in his right hand.

Dr. Bloem opined that performing the duties associated with plaintiff's position with defendant-employer would be problematic for plaintiff. He assigned plaintiff restrictions on the use of his right arm, including limitations on over-head work, lifting, pushing, and pulling. Dr. Bloem ultimately assigned plaintiff a ten percent permanent partial impairment rating to his right arm due to the shoulder injury and carpal tunnel syndrome, and he opined that plaintiff has reached maximum medical improvement.

Plaintiff originally filed his claim for the 28 May 2003 injury against Mansfield Oil Co. ("Mansfield Oil") and St. Paul Travelers Insurance Co. ("Travelers"). Travelers initially paid indemnity and medical compensation through 1 October 2003, but on 12 November 2003, Travelers denied compensability of plaintiff's claim on the grounds that plaintiff was not an employee of Mansfield Oil at the time of the accident but instead was an employee of defendant-employer. Plaintiff amended his request for hearing, properly identifying defendants as parties. Defendants filed a response, admitting the employment relationship but denying plaintiff's claim, contending that because Travelers had accepted plaintiff's claim, Travelers was estopped from denying further responsibility for plaintiff's injury. After defendants' response but prior to the hearing, plaintiff reached a settlement with Mansfield Oil and Travelers in the amount of $8,000.00, and this settlement was approved by Deputy Commissioner Bradley W. Houser ("Deputy Commissioner Houser") on 17 August 2005.

A hearing was held before Deputy Commissioner Houser on 28 October 2005, and Deputy Commissioner Houser entered an Opinion and Award in plaintiff's favor on 6 February 2006. Defendants filed notice of appeal to the Full Commission. By Opinion and Award entered 2 February 2007, the Full Commission affirmed with modifications Deputy Commissioner Houser's Opinion and Award; Commissioner Thomas J. Bolch dissented without written opinion. In its Opinion and Award, the Full Commission found that on 28 May 2003, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer in the form of a specific traumatic incident to his cervical spine. The Full Commission also found that plaintiff sustained a compensable injury when he threw the hose and sprained his wrist, resulting in carpal tunnel syndrome. With respect to plaintiff's shoulder injury, however, the Full Commission found that (1) the medical evidence failed to show that plaintiff's right shoulder injury was related to the injury by accident or the specific traumatic incident that occurred on 28 May 2003; and (2) the shoulder injury was not the result of an injury by accident arising out of and in the course of his employment. Thereafter, both plaintiff and defendants filed timely notice of appeal.

On appeal, defendants contend that the Full Commission erred by concluding that plaintiff's right carpel tunnel syndrome is compensable, and plaintiff contends that the Full Commission erred by (1) finding that plaintiff did not suffer a shoulder injury as a result of the 28 May 2003 incident; (2) denying plaintiff disability benefits after 3 May 2004; and (3) failing to award plaintiff attorneys' fees as a result of defendants' unreasonable defense of his claim.

"[A]ppellate review of an award from the Commission is generally limited to two issues: (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact." Johnson v. S. Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512 (2004). "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 the Commission may reject entirely any testimony which it disbelieves." Hedrick v. PPG Indus., 126 N.C.App. 354, 357, 484 S.E.2d 853, 856, disc. rev. denied, 346 N.C. 546, 488 S.E.2d 801 (1997). "The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C.App. 351, 353, 524 S.E.2d 368, 371, disc. rev. denied, 351 N.C. 473, 543 S.E.2d 488 (2000). "This Court `does not have the right to weigh the evidence and decide the issue on the basis of its weight. 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 Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Additionally, "failure to assign error to the Commission's findings of fact renders them binding on appellate review." Estate of Gainey v. S. Flooring & Acoustical Co., Inc., ___ N.C.App. ___, ___, 646 S.E.2d 604, 607 (2007). "This Court reviews the Commission's conclusions of law de novo." Britt v. Gator Wood, Inc., ___ N.C.App. ___, ___, 648 S.E.2d 917, 920 (2007).

In their sole argument on appeal, defendants contend that Dr. Siegel's and Dr. Bloem's opinions as to the causation of plaintiff's right carpal tunnel syndrome constituted incompetent evidence and that the Full Commission, therefore, erred in awarding workers' compensation...

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