Smith v. CHAMPION INTERN.

• Court: North Carolina Court of Appeals
• Writing for the Court: HUNTER.
• Citation: Smith v. CHAMPION INTERN., 517 S.E.2d 164, 134 NC App. 180 (N.C. App. 1999)
• Decision Date: 06 July 1999
• Docket Number: No. COA98-1226.,COA98-1226.
• Parties: Billie Ruth SMITH, Employee, Plaintiff, v. CHAMPION INTERNATIONAL, Employer, Self-Insured/(Sedwick James of the Carolinas, Servicing Agent), Defendants.

517 S.E.2d 164

134 NC App. 180

Billie Ruth SMITH, Employee, Plaintiff, v. CHAMPION INTERNATIONAL, Employer, Self-Insured/(Sedwick James of the Carolinas, Servicing Agent), Defendants.

No. COA98-1226.

Court of Appeals of North Carolina.

July 6, 1999.

The Jernigan Law Firm, by N. Victor Farah and Leonard T. Jernigan, Raleigh, for plaintiff-appellee.

Robinson & Lawing, L.L.P., by Jolinda J. Steinbacher, Winston-Salem, for defendant-appellants.

HUNTER, Judge.

This workers' compensation case arises from proceedings before the Industrial Commission where plaintiff alleged she exacerbated her pre-existing back condition in an accident occurring on 18 October 1994 while disassembling metal scaffolding at the Champion paper manufacturing facility in Canton, North Carolina. At the hearing, plaintiff's evidence tended to show that Smith ("plaintiff"), 49-years-old at the time of the alleged incident, first experienced pain immediately after handing a piece of scaffolding down to her co-worker. The pain increased throughout the day, and by the following day, plaintiff was unable to complete her job responsibilities. She reported to the clinic and saw Mr. Stegall, a physician's assistant. Mr. Stegall diagnosed an acute exacerbation of her pre-existing back problems and, along with Albert J. Osbahr III, M.D., the company physician, recommended lighter duty assignments. Plaintiff was assigned lighter responsibilities and performed them until 7 November 1994. Plaintiff was scheduled to start a new position but was prevented from doing so by a supervisor and Dr. Osbahr.

Before and after this incident, plaintiff was treated by a chiropractor and several other physicians at the Champion physical therapy/fitness program but therapy was discontinued when the pain steadily increased. On 19 June 1995, Richard E. Weiss, M.D., a neurosurgeon, performed a L4-5 laminotomy and medial facetectomy which significantly reduced her left hip and leg pain. Her back pain continued and Dr. Weiss performed a L4-5 posterior lateral fusion on 17 October 1995. Dr. Weiss opined that plaintiff was totally disabled.

Defendants' evidence indicated that plaintiff had a long-standing history of back problems which would eventually require surgery. Plaintiff freely admits her pre-existing back condition.

Plaintiff filed a workers' compensation claim with her employer which was denied. The deputy commissioner issued an opinion awarding plaintiff benefits and defendants appealed. The Full Commission affirmed the award and adopted the opinion of the deputy commissioner. Defendants appeal to this Court.

Defendants' primary argument is that the Full Commission erred in concluding that plaintiff's back condition was causally related to a minor alleged work accident and not to a severe, debilitating pre-existing back condition. We disagree.

N.C. Gen.Stat. § 97-86 provides that "[t]he award of the Industrial Commission..., as provided in G.S. 97-85, shall be conclusive and binding as to all questions of fact...." N.C. Gen.Stat. § 97-86 (Supp.1998). "The findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary." Jones v. Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965) (per curiam). See also Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), reh'g denied, 350 N.C. 108, ___ S.E.2d ___ (1999). "Thus, on appeal, 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, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Anderson v. Construction Co., 265...