Agee v. Thomasville Furniture Products

WALKER, Judge. Plaintiff injured his wrist on 30 April 1991 while working as a master carver for defendant employer. He reported this injury to the company nurse the next day but did not seek further medical treatment at that time. On 3 September 1991, plaintiff allegedly injured his left elbow when he reached to pull his machine and felt something hot run up his arm. The next day, plaintiff was seen by Dr. Futrell, who referred plaintiff to Dr. Sypher for further treatment. The parties entered into a Form 21 agreement to pay plaintiff temporary total disability benefits for a “strain to [left] wrist” arising out of the April 1991 injury by accident. Plaintiff received these benefits from 12 September 1991 until 18 May 1992, at which time Dr. Sypher released plaintiff to return to work. The day before his scheduled return to work, plaintiff broke his right little finger in an accident at home. He was given four weeks’ leave of absence for the injury to his finger. At the end of that period, plaintiff did not report to work, and he was terminated on 26 June 1992. On 16 July 1992, Dr. Sypher determined that plaintiffs left wrist had reached maximum medical improvement and released him with a ten percent permanent partial disability of the left hand. On 9 November 1992, plaintiff filed a new claim seeking compensation for an injury to his left elbow arising out of the incident on 3 September 1991. Defendants did not accept this claim. At the hearing, plaintiff contended that he injured his elbow in the April 1991 accident. Defendants disputed this contention and argued that the alleged incident in September 1991 either did not occur at all or did not occur in the manner alleged by plaintiff. After further discovery, the deputy commissioner filed an Opinion and Award containing the following findings of fact: 1. On April 30, 1991, plaintiff injured his left wrist. . . . This injuiy admittedly resulted from an accident arising out of and in the course of his employment.... Plaintiff has now reached maximum medical improvement from this injury and has been released with a ten percent permanent partial disability rating of the left hand. — 80 — 2. On or about September 3, 1991, plaintiff injured his left arm . . . while pulling on a lever on a machine at work .... 3. In a statement to the carrier taken on September 17, 1991, plaintiff stated that he was doing his normal job when the second injury occurred. When asked if there was something different or unusual, he said, “The same way I always do. I just reached and got it and pulled it to me and when I did it just felt like somebody shot a poker up through my arm pit.” When asked again about nothing being different or unusual, he said, “Same old thing.” 4. In a second statement to the carrier taken on December 14, 1992, he appears to attribute the elbow injury to an additional weight that was on the back of the machine he was operating. This statement is not credible. Johnny Webb, who was plaintiffs supervisor, and Tony Hoglen, who was on the safety committee, both checked the machine after the alleged accident and found no explanation for it sticking as plaintiff alleged. Even the plaintiff acknowledged in his hearing testimony that he could not say that there was additional weight on the machine causing it to stick and had no explanation for why it would stick. . . . 5. Although plaintiff told Johnny Webb immediately after the alleged accident that the machine stuck, such statement is not credible considering the inconsistent statements given the carrier and the lack of any explanation for the machine to stop. 6. Plaintiff also testified that he hurt his elbow on April 30, 1991 when his wrench slipped; however, he received no medical treatment until after his injury on September 3, 1991, and there is no credible evidence, medical or otherwise, that the elbow injury resulted from the first incident.... The deputy commissioner concluded that “the elbow injury was not the result of an accident arising out of and in the course of [plaintiff’s] employment” and that plaintiff was not entitled to compensation and medical treatment for the elbow injury. Plaintiff appealed to the Full Commission and moved to introduce additional evidence relating to medical treatment he had received since the deputy commissioner’s decision. The Full Commission found no good ground to reconsider the evidence, receive further evidence, or amend the Opinion and Award, and affirmed and adopted the deputy commissioner’s findings and conclusions. — 81 — Plaintiff argues that the Full Commission erred by failing to review the deputy commissioner’s Opinion and Award de novo as required by N.C. Gen. Stat. § 97-85 and by failing to allow plaintiff’s motion for additional evidence. N.C. Gen. Stat. § 97-85 (1991) provides that upon a timely appeal of an award of a deputy commissioner, “the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award” (emphasis added). Whether “good ground be shown therefor” in any particular case is a matter within the sound discretion of the Commission, and its decision in that regard will not be reviewed on appeal absent a showing of abuse of discretion. Thompson v. Burlington Industries, 59 N.C. App. 539, 543, 297 S.E.2d 122, 125 (1982), cert. denied, 307 N.C. 582, 299 S.E.2d 650 (1983). Plaintiff has not shown any abuse of discretion in this case, nor has he pointed to any facts indicating that the Full Commission failed to make a thorough review of the deputy commissioner’s Opinion and Award. Accordingly, these assignments of error are overruled. Plaintiff next argues that the Commission erred by failing to make appropriate findings of fact and conclusions of law. Specifically, plaintiff claims that (1) the Commission should have included a finding that plaintiff was entitled to temporary total disability benefits after 18 May 1992 since no evidence existed to show that defendant employer had a suitable job available for plaintiff; (2) the evidence did not support the Commission’s finding that plaintiff’s wrist had reached maximum medical improvement; and (3) the Commission should have found that plaintiff sustained a wage loss due to the wrist injury. It is well settled that appellate review of an award of the Industrial Commission is limited to consideration of whether the Commission’s findings of fact are supported by competent evidence and whether its findings of fact justify its conclusions of law. McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982); Gilbert v. Entenmanns, Inc., 113 N.C. App. 619, 623, 440 S.E.2d 115, 118 (1994). After a careful review of the evidence, we find there was competent evidence to support the Commission’s findings and these findings support its conclusions and award. The evidence showed that Dr. Sypher released plaintiff to return to work on 18 May 1992. His office notes indicate that plaintiff’s wrist — 82 — was doing very well and that any limitations were due to the elbow injury. No further treatment was offered for plaintiffs wrist after 18 May 1992. On the eve of plaintiffs return to work, he sustained a non-compensable injury to his right hand and was given four weeks’ leave, which was to end on 22 June 1992. When this leave expired, plaintiff did not report to work and was terminated by defendant employer. Plaintiff continued to see Dr. Sypher, who indicated in his office notes from 16 July 1992 that plaintiffs wrist had reached maximum medical improvement. Dr. Sypher released plaintiff from his care on that date. This evidence supports the Commission’s finding that plaintiff’s wrist had reached maximum medical improvement. It also supports the inferences that defendant employer had suitable work available for plaintiff on 18 May 1992, the date Dr. Sypher released him to light duty work, and that plaintiff’s wage loss after that date was not due to his compensable wrist injury. Thus, the Commission was correct in not awarding plaintiff temporary total disability benefits after that date. Plaintiff next argues that the Commission erred by concluding that “the elbow injury was not the result of an accident arising out of and in the course of [plaintiff’s] employment” and that plaintiff was not entitled to compensation and medical treatment for the elbow injury. Plaintiff argues that “[he] sustained a compensable left wrist and left arm injury on April 30, 1991, which was exacerbated by the September 3, 1991 accident which arose out of and in the course of his employment, when the cutter bar suddenly stopped, jerking plaintiff’s left arm and left wrist.” Alternatively, he argues that he injured his elbow on 3 September 1991 and that this injury was compensable because it resulted from an accident arising out of and in the course of his employment. The Commission found that plaintiff’s testimony regarding the cause of his alleged elbow injury was not credible. The Commission is the sole judge of the weight and credibility of testimony, and its findings of fact may be set aside on appeal only when there is a complete lack of evidence to support them. Mayo v. City of Washington, 51 N.C. App. 402, 406, 276 S.E.2d 747, 750 (1981). We find there was competent evidence to support the Commission’s finding that plaintiff did not injure his elbow in the April 1991 accident. Plaintiff did not seek medical treatment for any injury until after the alleged September 1991 incident. Following the April accident, plaintiff saw the company nurse, who gave him a wrist — 83 — splint. The Form 21 signed by plaintiff was for a strain to plaintiff’s left wrist. There is no reference in any medical notes to an elbow injury except in connection with the alleged incident in September 1991, and there is no testimony from any medical provider that, to a reasonable degree of certainty, the April 1991 accident could or might have caused the elbow injury. The Commission found plaintiffs assertions to the contrary were not credible, and this finding will not be disturbed on appeal. There was also competent evidence to support the finding that plaintiffs testimony regarding the cause of the alleged September 1991 injury was not credible. Plaintiff testified at the hearing that he injured his elbow when the machine stuck but that he had no explanation why the machine stuck. However, prior to the hearing plaintiff had made inconsistent statements in this regard to defendant carrier. In his first interview, plaintiff was asked whether, at the time he pulled the machine to him and felt the pull in his arm, there was “something different or unusual about the way that happened. . . .” Plaintiff replied, “The same way I always do. I just reached and got it and pulled it to me and when I did it just felt like somebody shot a poker up through my arm pit.” Plaintiff made no mention of the machine sticking during this interview. In his second interview, plaintiff for the first time blamed his injury on the machine sticking due to added weights on the back of it. Plaintiffs supervisor testified that he examined the machine after plaintiff reported his elbow injury and could find no explanation for the machine sticking. This evidence would support a finding that plaintiffs testimony was not credible. Furthermore, the Commission’s finding that the machine did not stick on 3 September 1991 amounts to a finding that plaintiff did not meet his burden of proving that his elbow injury resulted from an accident arising out of and in the course of plaintiff’s employment and fully justifies the Commission’s conclusion that plaintiff was not entitled to compensation for the elbow injury. See N.C. Gen. Stat. § 97-2(6) (Cum. Supp. 1994) (“injury” means “only injury by accident arising out of and in the course of the employment . . .”); Swindell v. Davis Boat Works, 78 N.C. App. 393, 397, 337 S.E.2d 592, 594 (1985) (no matter how great the injury, if it occurred under normal working conditions and the employee was injured while performing his regular duties in the usual and customary manner, no accident has occurred), cert. denied and appeal dismissed, 316 N.C. 385, 342 S.E.2d 908 (1986). We have examined plaintiff’s other assignments of error and find them to be without merit. — 84 — The Opinion and Award of the Full Commission is Affirmed. Judge EAGLES dissents. Judge MARTIN, JOHN C. concurs.