Heard in the Court of Appeals 19 November 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Appeal by plaintiff-appellant and
defendants-appellants from Opinion and Award entered by the North Carolina
Industrial Commission on 17 March 2014.
WALLACE and GRAHAM, PA, by Whitney V. Wallace, for plaintiff-appellant and for plaintiff-appellee.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Neil P. Andrews, M. Duane Jones, and Amanda A. Johnson, for defendants-appellants and for defendants-appellees.
ELMORE, Judge. Judges ERVIN and DAVIS concur.
Ingersoll Rand (" defendant-employer" ) and Travelers (collectively " defendants" ) appeal from the North Carolina Industrial Commission's (" the Commission" or " the Full Commission" ) Opinion and Award on the grounds that the Commission erred in finding and concluding that plaintiff suffered a compensable work-related injury under the North Carolina Workers' Compensation Act. Jerry Seamon (" plaintiff" ) appeals from the Commission's Opinion and Award on the grounds that the Commission erred in finding and concluding that he was not completely disabled after 16 November 2011. After careful consideration, we affirm the Full Commission's Opinion and Award.
Plaintiff, a sixty-year-old man, began his employment with defendant-employer in 1972. Defendant-employer manufactures compressor units for commercial use. During the course of his employment, plaintiff worked in various capacities for defendant-employer. From 2001 to 27 April 2011, plaintiff worked as a machinist in the CENTAC Balance Room. Plaintiff was responsible for balancing the air compressor units to customer specifications. A machinist must balance the units using hand-held grinders. The units that came into the CENTAC Balance Room ranged from four inches in diameter to twenty-five inches in diameter, but the most common units were eight inches in diameter. Plaintiff was responsible for balancing two to three of the small to medium sized units per day. Once a unit became balanced, plaintiff had to disassemble the unit using a rubber mallet. The disassembly process had to be done gently to prevent damaging the unit. Plaintiff testified that he often used the palms of his hands rather than a rubber mallet to dislodge the parts from the units due to the close proximity of the compartments.
In late 2010, plaintiff began waking during the night with pain in his hands. His symptoms worsened in February 2011, when he began to experience numbness in his left index and middle finger. By April 2011, plaintiff's nails were turning black and he was in extreme pain. Plaintiff's primary care physician referred him to Dr. Scott Brandon, an orthopedic specialist, for further evaluation. Dr. Brandon was concerned that plaintiff had a vascular insufficiency and he referred plaintiff to Dr. Louis Andrew Koman, a board-certified orthopedist with a certificate subspecialty in hand surgery. Dr. Koman had been treating patients with hand abnormalities for over thirty years, and he had invented operations for the treatment of peripheral hand-related vascular problems. Dr. Koman diagnosed plaintiff as most-likely suffering from a vaso-occlusive disease and an aneurysm in his hand which was throwing clots into his fingers. Dr. Koman referred plaintiff to Dr. Matthew Edwards, a vascular surgeon, for an arteriography to further evaluate plaintiff's condition. Dr. Edwards diagnosed plaintiff with " ulnar artery aneurysm to the right hand and with distal occlusion and thrombosis to the left hand ulnar artery with aneurysm and distal occlusive disease." Dr. Edwards performed thrombolytic therapy to remove the clots from plaintiff's fingers. On 2, 3, and 5 May 2011, Dr. Koman performed multiple surgical procedures on plaintiff, which included amputations of plaintiff's left index and middle finger.
Plaintiff reached maximum medical improvement on 16 November 2011, at which point Dr. Koman assigned a thirty percent rating to each of defendant's hands and imposed a permanent work restriction of lifting no more than thirty pounds or carrying more than twenty pounds. Dr. Koman advised plaintiff to avoid any physical stress to his hands, including exposure to vibrations or cold. Dr. Koman opined to a reasonable degree of medical certainty that plaintiff's condition was work-related due to plaintiff's use of the palms of his hands to dislodge the rotatory assemblies. He believed plaintiff's use of tools that vibrated exacerbated plaintiff's condition. Dr. Koman testified that it was unnecessary for plaintiff to hit the assembled parts using his palm with much force to cause the injury because it was the repetitive trauma, not the amount of force used, that caused the disease and the necessary finger amputations. On 20 May 2011, Dr. Koman put into writing his diagnosis that plaintiff's condition was work-related. On 16 June 2011, plaintiff filed a Form 18 alleging that he suffered from a work-related injury/disease involving his upper extremities.
William Tom McClure performed an ergonomic evaluation and assessment of the CENTAC Balance Room machinist position to determine whether the machinist position increased plaintiff's risk of developing an upper-extremity musculoskeletal and/or cumulative trauma disorder. Mr. McClure did not have the opportunity to observe plaintiff perform his job duties, but he did watch another machinist use a rubber mallet to disassemble a unit. Based on his observations, Mr. McClure concluded that a machinist did not use forceful exertion of his hands or fingers and was not at an increased risk of developing upper-extremity musculoskeletal and/or cumulative trauma disorders.
Defendants retained Dr. Frank R. Arko, III, a vascular surgeon, to provide his opinion concerning the cause of plaintiff's condition. Dr. Arko did not personally examine plaintiff but he did review plaintiff's medical file, Mr. McClure's findings, and a video of a machinist performing his job duties. Dr. Arko opined to a reasonable degree of medical certainty that plaintiff's job did not cause his condition and did not place him at an increased risk of developing the condition from which he suffered as compared to members of the general public not so employed.
Dr. Brandon testified that he would defer to Dr. Koman's opinion concerning the issue of causation in plaintiff's case. Despite deferring to Dr. Koman on the question of causation, Dr. Brandon did opine that plaintiff's use of tools such as a rubber mallet and low vibration grinding tools placed plaintiff at an increased risk for the development of his bilateral peripheral vascular disorder.
Based upon a preponderance of the evidence in view of the entire record, the Full Commission gave greater weight to the opinions and findings of Dr. Koman than to the contrary testimony and opinions of Dr. Arko and Mr. McClure. The Commission found that plaintiff suffered from a bilateral peripheral vascular disorder/condition and that plaintiff's duties as a machinist caused or significantly contributed to the development of this condition. The Commission also found that plaintiff's job duties placed him at an increased risk of developing a bilateral peripheral vascular disorder as compared to members of the general public not so employed. The Commission determined that from 27 April 2011 to 16 November 2011, plaintiff was physically incapable of earning any wages in any employment as a result of his compensable occupational disease. In addition, it determined that plaintiff failed to prove by a preponderance of the evidence that beginning 16 November 2011, when he was capable of some work, that he made reasonable efforts to find other employment or that such effort would have been futile. Both plaintiff and defendants appeal from portions of the Full Commission's Opinion and Award.
II. Defendants' Appeal
This Court reviews an Opinion and Award of the Industrial Commission to determine whether any competent evidence exists to support the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law. Cross v. Blue Cross/Blue Shield, 104 N.C.App. 284, 285-86, 409 S.E.2d 103, 104 (1991). If supported by competent evidence, the Commission's findings are binding on appeal even when there exists evidence to support findings to the contrary. Allen v. Roberts Elec. Contractors, 143 N.C.App. 55, 60, 546 S.E.2d 133, 137 (2001). The Commission's conclusions of law are reviewed de novo. Id. at 63, 546 S.E.2d at 139.
Defendants primarily argue on appeal that the Full Commission's determination that plaintiff suffered from a compensable occupational disease is unsupported by competent evidence. Specifically, defendants challenge findings of fact #5, #11, #12, #17, #19, #20, #22, #24, and #25 as being unsupported by competent evidence. Defendants likewise challenge the Commission's conclusions of law #2, #3, and #5 to the extent that the Commission concluded that plaintiff met his burden of proving the compensability of his medical condition. We conclude that the Commission did not err in finding and concluding that plaintiff suffered a compensable work-related injury.
For an injury or death to be compensable under the North Carolina Workers' Compensation Act " it must be either the result of an accident arising out of and in the course of the employment or an occupational disease." Keel v. H & V Inc., 107 N.C.App. 536, 539, 421 S.E.2d 362, 365 (1992) (quotation and citation omitted). " Where the Commission awards compensation for disablement due to an occupational disease encompassed by G.S. 97-53(13), the opinion and award must contain findings as to the characteristics, symptoms and manifestations of the disease from which the plaintiff suffers, as well as a conclusion of law as to whether the disease falls within the statutory provision." Hansel v. Sherman Textiles, 304 N.C. 44, 54, 283 S.E.2d 101, 106-07 (1981).
A. Challenged Findings of Fact
Initially, we will address defendants' challenges to the following findings of fact as being ...