Thornburg v. Rainbow Transport, No. COA05-1279 (N.C. App. 8/1/2006)

• Decision Date: 01 August 2006
• Docket Number: No. COA05-1279,COA05-1279
• Court: North Carolina Court of Appeals
• Parties: THOMAS THORNBURG, Employee, Plaintiff, v. RAINBOW TRANSPORT, Employer, and AM COMP ASSURANCE COMPANY, Carrier, Defendants.

Page 1

Unpublished Opinion

THOMAS THORNBURG, Employee, Plaintiff, v.RAINBOW TRANSPORT, Employer, and AM COMP ASSURANCE COMPANY, Carrier, Defendants.

No. COA05-1279

Court of Appeals of North Carolina.

Filed August 1, 2006

This case not for publication

N.C. Industrial Commission I.C. No. 295626.

Appeal by Plaintiff from Opinion and Award entered 12 April 2005 by the N.C. Industrial Commission. Heard in the Court of Appeals 12 April 2006.

Crumley & Associates, P.C., by J. William Snyder, Jr., for Plaintiff-Appellant.

Orbock Ruark & Dillard, PC, by Barbara E. Ruark and Tina F. Rizzi, for Defendant-Appellees.

STEPHENS, Judge.

Plaintiff appeals from an Opinion and Award of the North Carolina Industrial Commission(Commission), which denied his claim for workers' compensation benefits.In support of his appeal, Plaintiff brings forward nine assignments of error challenging six of the Commission's findings of fact and three of its conclusions of law.For the reasons stated herein, we affirm.

Plaintiff is a high school graduate who was fifty years old at the time of the hearing on 30 October 2003.He worked as a truck driver for Defendant-Employer (Employer) for almost two years.During his employment, he weighed more than 350 pounds and suffered from poorly controlled hypertension, diabetes, and high cholesterol.His job duties included "hauling trash" to landfills in Kernersville, Charlotte and sometimes Gastonia from a waste management facility in Spencer.He was paid $40.00 per load and usually hauled three or four loads per day.

On the morning of 22 August 2002, Plaintiff delivered two loads of garbage to the Kernersville landfill and returned to Spencer for his third load, arriving at "somewhere around maybe after twelve[]" p.m.He pulled his truck into the parking lot at the Spencer facility and rolled up the tarp to open up the top of the trailer.He then pulled the truck into a "pit" where another employee used a front-end loader to load trash into the trailer.On this occasion, Scott Moore, site operator for Waste Management in Spencer, was loading Plaintiff's truck.Plaintiff testified that the loading process would generally take fifteen to thirty minutes, depending on the amount of garbage to be loaded.While the loading was underway, Plaintiff climbed the stairs to the top deck and sat on a box where the fire hose lines came through.He was sitting in the sun and "it was hot . . . just like any other day[.]"Mr. Moore estimated that the temperature was in the nineties, and National Weather Service records admitted in evidence established that the high temperature in the area that day was ninety-two degrees Fahrenheit.

After about ten to fifteen minutes of loading, Mr. Moore was thirsty and asked Plaintiff to go get them a drink from the on-site vending machine.Plaintiff walked across the parking lot about 100 yards to the drink machine and purchased two drinks, walked back across the parking lot and handed Mr. Moore his drink, and sat down in a chair next to the building to drink his drink.He"took a drink or two" and then noticed that his left hand "went sort of numb" and he"felt kind of funny . . . like, dizzy."He saw that his drink had fallen out of his hand and spilled.Mr. Moore was behind him, talking to him, but Plaintiff"couldn't talk" back to him.

Mr. Moore testified that when Plaintiff set his drink down, "it fell back on him and was pouring on his shirt[][a]nd [Plaintiff] just started laughing."Not knowing what was happening and being concerned that Plaintiff had been drinking alcohol, Mr. Moore immediately drove his front-end loader to the area where Employer's mobile mechanic, Darren Corn, was working and asked Mr. Corn to come "check [Plaintiff] out."Mr. Corn, who had recently been certified as a medical responder, drove his service truck to the place where Plaintiff was sitting and noticed that Plaintiff had a "glazed look in his eyes[,]" his face was "flushed, and he was sweating."Plaintiff was slow to respond to Mr. Corn, so Mr. Corn drove Plaintiff to the office.According to Plaintiff, he continued to feel "weird," could not "get [his] bearings," and had "no balance."Mr. Corn checked Plaintiff's pulse, and it was "a little elevated,""right around a hundred[]" beats per minute.Because he did not have his medical bag, Mr. Corn was not able to check Plaintiff's blood pressure.He gave Plaintiff some wet towels to wipe his face and a cup of water to drink.After five to six minutes, Mr. Corn checked Plaintiff's pulse again, and it "was back down to about eighty . . . eighty-five[]""which is pretty much normal."Plaintiff knew who he was, who Mr. Corn was, and where they were.Although Plaintiff expressed his desire to deliver his load of garbage to the landfill, Mr. Corn convinced him to let Mr. Corn drive him back to Employer's terminal in Mt. Airy instead.Mr. Corn also asked Plaintiff if he wanted to go to the hospital before they left Spencer, but Plaintiff declined.

During the drive back to Mt. Airy, which took an hour and fifteen minutes to an hour and a half, Mr. Corn continued to observe Plaintiff and to talk to him.He noticed that Plaintiff was alert, although he"had a little trouble, . . . with his speech."They arrived at the terminal "close to four o'clock[]" and Mr. Corn offered to drive Plaintiff home, but Plaintiff indicated that he was able to drive himself home.Plaintiff testified that he was still having trouble "find[ing][his] words[,]" and he"hung around [the terminal] for a little while[]" talking to "a couple of more people there at the yard[.]"He then drove to his home about ten miles away.When he arrived, he told his wife that "something ain't right, and I ain't feeling too good."His wife took him to the emergency room at Northern Hospital of Surry County in Mt. Airy.

At the hospital, Plaintiff complained of an onset of left arm pain and tingling and difficulty speaking at work earlier that day.He was examined by his family physician, Dr. Nelson Gardner, who admitted him to the Intensive Care Unit (ICU) and ordered various diagnostic evaluations, including a CT scan of Plaintiff's head, which was interpreted as normal, and a doppler echocardiogram which, according to the physician who performed that study, did not "rule out the presence of intracardiac thrombi or other cardiac source of systemic emboli."Plaintiff remained in the hospital until 26 August 2002, at which time Dr. Gardner discharged him with orders for an outpatient MRI and MRA of the cerebral vessels as well as speech therapy for Plaintiff's persistent difficulties in expressing himself.Dr. Gardner's discharge diagnoses included left parietal acute thrombotic cerebrovascular accident (CVA), expressive dysphasia (loss of or difficulty in ability to use or understand language) secondary to CVA, poorly controlled diabetes, hypertension, and high cholesterol.The MRI and MRA of Plaintiff's head performed at North Carolina Baptist Hospital in Winston-Salem on 29 August 2002 confirmed an acute left posterior middle cerebral artery infarct, or stroke, and demonstrated narrowing of the left middle cerebral artery "in the exact distribution" as the infarct.Plaintiff testified that he has not worked since 22 August 2002 because "I can't function."He complained of continued difficulties with his speech and memory, problems with balance, and depression.Additional evidence necessary to an understanding of the errors assigned will be discussed below.

Employer completed an I.C. Form 19 report to the Industrial Commission on 30 August 2002, and by an I.C. Form 61 dated 3 October 2002, Defendants denied that Plaintiff was owed workers' compensation benefits.On 8 October 2002, Plaintiff filed an I.C. Form 18 notice of claim, and subsequently, an I.C. Form 33 requesting a hearing.Following an evidentiary hearing and the completion of expert medical depositions, Deputy Commissioner Lorrie Dollar denied Plaintiff's claim for workers' compensation benefits in an Opinion and Award filed 24 May 2004.Plaintiff filed a timely notice of appeal to the Full Commission, and on 12 April 2005, Commissioner Bernadine S. Ballance, writing for the Full Commission, affirmed the Opinion and Award of the deputy commissioner with modifications.Plaintiff appeals.

By his first argument, Plaintiff brings forward his assignment of error five challenging the Commission's finding of fact twenty-eight on grounds that the Commission erred in rejecting the testimony of Dr. Gardner.Specifically, Plaintiff argues that the Commission erroneously determined that Dr. Gardner's testimony was not competent because it was based on an inaccurate history provided by Plaintiff's wife.Finding of fact twenty-eight is as follows:

Dr. Gardner was provided written weather information in response to which he wrote an opinion letter relating plaintiff's stroke to heat.In a 4 June 2003 opinion letter, Dr. Gardner wrote that plaintiff's exposure to the high temperature played a "participating factor in the left middle cerebral artery CVA."However, this opinion was based upon an inaccurate history of plaintiff's physical activity prior to onset of the symptoms.When given a correct history of onset, he gave the opinion that it was possible for a diabetic like plaintiff to be more sensitive to heat and thereby at an increased risk of sustaining a stroke.

Our standard of review of challenged findings of fact in workers' compensation cases is limited to a determination of whether the record contains any evidence to support the disputed findings.Adams v. AVX Corp.,349 N.C. 676, 681, 509 S.E.2d 411, 414(1998), reh'g denied,350 N.C. 108, 532 S.E.2d 522(1999).Indeed, it is a fundamental tenet of North Carolina workers' compensation law that "'[t]he 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...