Taylor v. Carolina Restaurant Group, Inc.

• Decision Date: 07 June 2005
• Docket Number: No. COA04-981.,COA04-981.
• Citation: 613 S.E.2d 510
• Parties: Rebecca TAYLOR, Employee, Plaintiff, v. CAROLINA RESTAURANT GROUP, INC., Employer, The Hartford, Carrier, Defendants.
• Court: North Carolina Supreme Court

613 S.E.2d 510

Rebecca TAYLOR, Employee, Plaintiff, v. CAROLINA RESTAURANT GROUP, INC., Employer The Hartford, Carrier, Defendants.

No. COA04-981.

Court of Appeals of North Carolina.

June 7, 2005.

Appeal by Defendants from Opinion and Award of the North Carolina Industrial Commission entered 2 April 2004. Heard in the Court of Appeals 22 March 2005.

Poisson, Poisson, Bower & Clodfelter, P.L.L.C., by E. Stewart Poisson and Fred D. Poisson, Jr., Wadesboro, for plaintiff-appellee.

Cranfill, Sumner & Hartzog, L.L.P., by Jaye E. Bingham and Erin F. Taylor, Raleigh, for defendant-appellants.

WYNN, Judge.

Where the Industrial Commission's findings of fact are supported by any competent evidence, those findings are binding on appeal. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Here, Defendants contend that there was no competent evidence to support the Industrial Commission's findings that Plaintiff's right knee injury caused her disability. We disagree and find that competent evidence supports the Industrial Commission's findings of fact, which in turn support its conclusions of law.

The record reflects that Plaintiff Rebecca Taylor was employed by Carolina Restaurant Group as an attendant to the hot bar of a Wendy's restaurant in July 1994. Additionally, at that time, Ms. Taylor drove a school bus (her primary employment), and cleaned houses. On 22 July 1994, in the course of her employment with the Carolina Restaurant Group, Ms. Taylor slipped on degreaser at Wendy's and struck her right knee on a wall. Ms. Taylor attempted to return to work with the Carolina Restaurant Group and her bus driving employment following the accidental injury but was unable to perform because she "couldn't take the pain." As a consequence of the July 1994 fall, Ms. Taylor underwent right knee replacement surgery in 1996. Since the July 1994 injury, Ms. Taylor has also undergone several arthroscopic surgeries, inter alia, to remove scar tissue from her right knee. Ms. Taylor's primary treating physician is Ward S. Oakley, Jr., M.D.

The record tends to show that while Ms. Taylor's condition eventually improved somewhat, she experienced continuing pain and swelling in the right knee. On 23 June 1998, Ms. Taylor was treated by Dr. Oakley for pain in her right knee. Dr. Oakley's assessment was "[r]ight knee pain" and "[r]ight knee failure of implant." Defendants then referred Ms. Taylor to David Mauerhan, M.D., of The Miller Clinic for further evaluation. Dr. Mauerhan recommended no further surgery and that Ms. Taylor should continue to try to work. Dr. Mauerhan also noted as his impression:

Continued pain following total knee replacement on the right knee. This unfortunate lady has had continued pain when reviewing her history from her very initial problem on through to the present. No surgical procedure including her arthroscopies nor the total knee have given her significant or continued relief.

Dr. Mauerhan also found that Ms. Taylor had a fifty-percent permanent disability and "a painful total knee replacement which is giving her difficulty."

In January 2000, Ms. Taylor fell on black ice in the parking lot of Richmond Community College, where she was employed as a janitor. (Ms. Taylor was at that time no longer working for the Carolina Restaurant Group.) Ms. Taylor stated that, when she realized she was going to fall, she guarded her right knee and took the blow to the left knee. The fall injured the left knee, which became increasingly painful. On 27 April 2000, Dr. Oakley performed an arthroscopic revision to the left knee. On 2 October 2001, Dr. Oakley assigned a twenty-percent impairment rating to the left knee and issued standard restrictions following the surgery to the left knee. On 13 December 2001, Ms. Taylor entered a settlement agreement with Richmond Community College for all liability under the Workers' Compensation Act.

By the Fall 2001, Ms. Taylor's left knee had healed well and required only light, if any, work restrictions. However, her right knee had become ever more painful. In September 2001, she reported to Dr. Oakley that she was experiencing increased pain, popping, and swelling in her right knee. Dr. Oakley noted that "she didn't relate it to any particular injury or trauma...." In performing an arthroscopic surgery on her right knee in 2002, Dr. Oakley found shedding and plastic deformation of the stem, or weight-bearing part, of her knee replacement appliance. Dr. Oakley stated that such deterioration of the plastic appliance was "not uncommon," and would lead to more pain and a need for the deformed part to be replaced. Moreover, Dr. Oakley indicated that knee replacements typically do not last as long in younger, overweight persons, such as Ms. Taylor, and that there is a twenty- to thirty-percent chance of an appliance failing within ten years. Dr. Oakley also stated that he thought there was a better than fifty-percent chance that, within the next five years, the deformed part of Ms. Taylor's knee appliance would need to be replaced.

Ms. Taylor's 1994 and 2000 injury claims were consolidated before the Industrial Commission, and on 3 October 2002, Deputy Commissioner Phillip A. Holmes found, inter alia, that Ms. Taylor's 2000 accident resulted in her total disability, her prior right knee injury was aggravated as a consequence of her 2000 injury, and the aggravation of the right knee injury was compensable, as was her total disability, but that Ms. Taylor relinquished her right to recover from Richmond Community College under the settlement agreement she entered with them. Ms. Taylor appealed to the full Industrial Commission, which, with Chairman Lattimore dissenting, reached the opposite conclusions, determining that Ms. Taylor's 1994 right knee injury caused her disability and that Defendants were liable for her disability and medical compensation. Defendants appeal.

On appeal, our review of the Commission's Opinion and Award is "limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese, 352 N.C. at 116, 530 S.E.2d at 553. The Industrial Commission is the "sole judge of the weight and credibility of the evidence," and this Court "`does not have the right to weigh the evidence and decide the issue on the basis of its weight.'" Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). Indeed, "so long as there is some `evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.'" Shah v. Howard Johnson, 140 N.C.App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (quoting Porterfield v. RPC Corp., 47 N.C.App. 140, 144, 266 S.E.2d 760, 762 (1980)), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001).

"`In order to obtain compensation under the Workers' Compensation Act, the claimant has the burden of proving the existence of his disability and its extent.'" Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). "Under the Workers' Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity." Id. at 764, 487 S.E.2d at 750 (citing N.C. Gen.Stat. § 97-2(9) (1991)). The employee may show 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 work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a 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.

Knight v. Wal-Mart Stores, Inc., 149 N.C.App. 1, 7, 562 S.E.2d 434, 439 (2002), aff'd, 357 N.C. 44, 577 S.E.2d 620 (2003) (quotation omitted). Further, "[i]n determining if plaintiff has met this burden, the Commission must consider not only the plaintiff's physical limitations, but also his testimony as to his pain in determining the extent of incapacity to work and earn wages such pain might cause." Webb v. Power Circuit, Inc., 141 N.C.App. 507, 512, 540 S.E.2d 790, 793 (2000) (citing Matthews v. Petroleum Tank Serv., Inc., 108 N.C.App. 259, 265, 423 S.E.2d 532, 535 (1992)), cert. denied, 353 N.C. 398, 548 S.E.2d 159 (2001); see also Knight, 149 N.C.App. at 7-8, 562 S.E.2d at 439-40 (same).

Here, Defendants contend, that "[t]he Record is entirely devoid of any evidence to support these findings" that "(1) `[w]ere it not for the right knee injury, plaintiff would be able to work,' and (2) plaintiff's failed knee replacement caused her disability...." We disagree.

Defendants have not excepted to the Industrial Commission's finding that in July 1994, "plaintiff sustained an accidental injury to her right knee arising out of and in the course of employment with Wendy's...." Defendants also have not excepted to the fact that Defendant's carrier, The Hartford, "eventually paid all of the medical procedures on the right knee." These findings are thus binding. Pollock v. Reeves Bros., Inc., 313 N.C. 287, 292, 328 S.E.2d 282, 286 (1985) (holding that where defendants do not except to finding in a workers' compensation case, it is binding on appeal); Creel v. Town of Dover, 126 N.C.App. 547, 552, 486 S.E.2d 478, 480-81 (1997) ("[W]hen there are no exceptions to the [Industrial] Commission's...