Smith v. Goodyear Tire & Rubber Co., No. COA04-839 (NC 6/7/2005), COA04-839

• Court: North Carolina Supreme Court
• Writing for the Court: Bryant
• Decision Date: 07 June 2005
• Docket Number: No. COA04-839,COA04-839
• Citation: Smith v. Goodyear Tire & Rubber Co., No. COA04-839 (NC 6/7/2005), No. COA04-839 (N.C. Jun 07, 2005)
• Parties: RONNIE SMITH, Plaintiff-Employee, v. GOODYEAR TIRE & RUBBER CO., Defendant-Employer, TRAVELERS INSURANCE CO., Defendant-Carrier.

Page 1

Unpublished Opinion

RONNIE SMITH, Plaintiff-Employee, v. GOODYEAR TIRE & RUBBER CO., Defendant-Employer, TRAVELERS INSURANCE CO., Defendant-Carrier.

No. COA04-839

Court of Appeals of North Carolina.

Filed June 7, 2005

This case not for publication

North Carolina Industrial Commission, No. 456736.

Appeal by defendants from an Opinion and Award dated 31 March 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 3 February 2005.

Cranfill, Sumner & Hartzog, L.L.P., by Nicole Dolph Viele, for defendants appellants.

Gregory B. Thompson for plaintiff appellee.

BRYANT, Judge.

Goodyear Tire & Rubber Company (defendant-employer) and Travelers Insurance Company¹ (defendant-carrier), collectively defendants, appeal from an Opinion and Award of the North Carolina Industrial Commission (Commission) dated 31 March 2004 awarding Ronnie Smith (plaintiff-employee) ongoing total disability compensation at the rate of $466.00 per week from "26 February 1999 and ongoing."

Plaintiff (DOB 9/26/1954) began working for defendant-employer in 1978 and worked as a tire builder for seven years, until 1985, when he became a serviceman, which required him to engage in repetitive lifting of tire-building materials. Plaintiff lifted 100 to 150 pounds independently, and up to 300 pounds with assistance.

On 27 June 1994, plaintiff sustained a compensable back injury (radiculopathy) working for defendant-employer when a tread trap loosened and plaintiff twisted his back to repair it. Plaintiff's injury caused him to be out of work on disability from 27 June until December 1994. Dr. Atassi, a neurosurgeon, treated plaintiff's injury and on 10 October 1995, performed a lumbar laminectomy and discectomy for plaintiff's herniated disc at L4-L5. While he recovered from surgery, plaintiff sustained an additional period of disability from 10 October 1995 through 27 February 1996, at which time he returned to his job as serviceman, experiencing intermittent pain.

In December 1996 and March 1997, plaintiff returned to Dr. Atassi, complaining of moderate pain in his lower back and legs and was advised to avoid frequent bending and prolonged sitting. Dr. Atassi referred plaintiff to Dr. Jaufmann, also a neurosurgeon, on 12 March 1997. MRI results from that visit showed plaintiff had an L4-L5 disc protrusion or possible scarring from the 1995 surgery, with no evidence of nerve root compression or spinal stenosis. In April 1997, plaintiff underwent a myelogram and CT scan, indicating a possible disc protrusion, but otherwise the results were within normal limits. After examining plaintiff, Dr. Jaufmann allowed plaintiff to continue to work without restrictions on 18 April 1997.

On 3 June 1997, after undergoing nerve conduction studies, plaintiff's test results showed he suffered from chronic bilateral L5 and S1 radiculopathies and abnormal diabetic polyneuropathy. The diabetic polyneuropathy was a condition that developed from plaintiff having diabetes, unrelated to his job. On 10 October 1997, Dr. Jaufmann allowed plaintiff to return to work to perform light duty, in observance of permanent restrictions: no lifting over 45 pounds; alternate periods of sitting and standing; and no repetitive bending. Plaintiff returned to see Dr. Jaufmann in April 1998 and September 1998, with continued complaints of leg and back pain. Based on Dr. Jaufmann's 1997 restrictions, defendant-employer's nurse signed a "Modified Work Authorization" for plaintiff on 28 June 1998, limiting the amount plaintiff could lift without assistance and having plaintiff avoid certain repetitive motions and positions at work. While on these light duty work restrictions, plaintiff continued to complain of "very severe right lower extremity pain" and, consequently, was taken out of work for the last time by Dr. Jaufmann on 26 February 1999. Defendants reinstated temporary total disability benefits on 19 March 1999 pursuant to Form 62 based on plaintiff's seven and one-half percent rating of permanent impairment to his back for his 1994 injury.

On 15 March 2002, defendants filed a Form 24 "Application to Terminate Benefits" on grounds that plaintiff's current condition preventing him from being able to work was unrelated to his compensable workplace injury. On 17 April 2002, a Special Deputy Commissioner filed an order approving the termination of plaintiff's benefits effective 15 March 2002. In response to plaintiff's motion for reconsideration, an order dated 21 May 2002 was issued, affirming the Deputy Commissioner's prior decision. Plaintiff's Form 33 "Request for Hearing" before the Deputy Commissioner was filed on 25 July 2002. The parties obtained medical deposition testimony from Dr. Bruce Jaufmann prior to filing Form 24. On 25 September 2002, the parties presented stipulated medical records to the Deputy Commissioner.

At the hearing before the Deputy Commissioner, the sole issue was whether plaintiff was entitled to disability benefits as of 26 February 1999 and ongoing. After hearing live testimony, reviewing deposition testimony, exhibits and other submissions of the parties, the Deputy Commissioner issued an Opinion and Award filed 30 April 2003 denying plaintiff's claim for ongoing total disability compensation benefits.

Plaintiff appealed to the Full Commission on 1 May 2003. At the pre-trial hearing, the parties stipulated to plaintiff having "suffered a compensable injury arising out of and in the course of his employment with defendant-employer" on 27 June 1994. In an Opinion and Award dated 31 March 2004, the Commission reversed the Opinion and Award of the Deputy Commissioner and found plaintiff to be totally disabled. The Commission ordered defendants to pay total disability compensation at the rate of $466.00 per week from "26 February 1999 and ongoing." In addition, defendants were ordered to pay all of plaintiff's medical expenses incurred, or to be incurred, as a result of his work related injury, reasonable attorney's fees and costs . Defendants appealed.

The dispositive issue on appeal is whether the Commission erred in concluding and awarding plaintiff total disability benefits after 26 February 1999 and finding and concluding plaintiff's compensable back injury (radiculopathy) is a contributing factor in his ongoing disability. "[W]hen reviewing Industrial Commission decisions, appellate courts must examine 'whether any competent evidence supports the Commission's findings of fact and whether [those] findings . . . support the Commission's conclusions of law.'" McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)); Cox v. City of Winston-Salem, 157 N.C. App. 228, 231, 578 S.E.2d 669, 673 (2003); Pernell v. Piedmont Circuits, 104 N.C. App. 289, 292, 409 S.E.2d 618, 619 (1991). The Commission's findings of fact are conclusive on appeal even where there is contrary evidence, and such findings may only be set aside where there is a "complete lack of competent evidence to support them." Johnson v. Herbie's Place, 157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation omitted); See also Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). It is the Commission's duty to judge the credibility of the witnesses and to determine the weight given to each testimony. Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998).

Disability under the Workers' Compensation Act is defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen. Stat. § 97-2(9) (2003). Plaintiff may meet his burden of showing disability in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of working in any employment; (2) the production of evidence that he is capable of some kind of work but that he has, after reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e. age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.

Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). "Medical evidence that the plaintiff suffers from pain as a result of physical injury, combined with the plaintiff's own testimony that he is in pain has been held to be sufficient to support a conclusion of total disability." Weatherford v. Am. Nat'l Can Co., ___ N.C. App. ___, ___, 607 S.E.2d 348, 351 (2005) (citation omitted); Webb v. Power Circuit, Inc., 141 N.C. App. 507, 512, 540 S.E.2d 790, 793 (2000); Barber v. Going West Transp. Inc., 134 N.C. App. 428, 436, 517 S.E.2d 914, 920 (1999); Peoples v. Cone Mills Corp., 316 N.C. 426, 443-44, 342 S.E.2d 798, 808-09 (1986) (holding that an injured employee shall retain benefit eligibility if the employee's age, inexperience, lack of education, or any other preexisting factors preclude the employee from procuring alternative employment). "The work-related injury need not be the sole cause of the problems to render an injury compensable. If the work-related accident contributed in some reasonable degree to plaintiff's disability, [he] is entitled to compensation." Smith v. Champion Int'l, 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999) (citing Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 465-66, 470 S.E.2d 357, 359 (1996)). "[A]pportionment is not proper where the evidence before the Commission renders an attempt at apportionment between work-related and non-work related causes speculative or where there is no evidence attributing a percentage of the claimant...