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Lowe v. Branson Auto.

Court of Appeals of North Carolina

April 21, 2015

TIMOTHY LOWE, Employee, Plaintiff,

Heard in the Court of Appeals February 18, 2015

Page 912

From the N.C. Industrial Commission. I.C. No. X89669.


Casey S. Francis, for plaintiff.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Lindsay N. Wise and M. Duane Jones, for defendants.

Judges GEER and INMAN concur.


Page 913

Appeal by plaintiff from Opinion and Award entered 26 June 2014 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 February 2015.

ELMORE, Judge.

Plaintiff appeals from the North Carolina Industrial Commission's (" the Commission" or " the Full Commission" ) Opinion and Award denying his claim for Workers' Compensation benefits. After careful consideration, we affirm.

I. Facts

Timothy Lowe (plaintiff) was employed as a tire technician by Branson Automotive (defendant-employer) for over six years as of the date of review by the Commission. Plaintiff's duties as a tire technician included mounting, dismounting, and balancing tires and conducting oil changes. The job also required frequent lifting of 50-100 pounds, bending, and squatting.

Plaintiff filed a Form 18 (" Notice of Accident to Employer" ) on 28 February 2012 seeking workers' compensation benefits, alleging that on 8 February 2012:

[He] was lifting a wheel and tire, which weighed approximately 110 pounds with both hands. As he was lifting the tire he felt a pop and an immediate onset of pain in his neck. [He] went to grab his neck with one hand, leaving the wheel and tire in his other hand. While supporting the weight of the wheel and tire with one hand, [he] felt another pop in his lower back an[d] immediately began to experience pain in his lower back with radiating tingling and numbness in his bilateral hands and feet.

Plaintiff's claim was heard before Deputy Commissioner Kim Ledford on 12 December 2012. The Deputy Commissioner entered an Opinion and Award concluding that plaintiff " sustained an injury by accident in the form of a specific traumatic incident arising out of and in the course of his employment with [defendant-employer], resulting in injury to his neck and lower back." The Deputy Commissioner ordered defendant-employer and defendant Hartford Insurance Company (collectively " defendants" ), the insurer on the risk on the date of the alleged injury, to pay for: 1.) all medical treatment reasonably necessary for plaintiff's injury and 2.) temporary total disability benefits to plaintiff at the rate of $443.18. Defendants appealed to the Full Commission.

After reviewing defendants' appeal, the Commission reversed the Deputy Commissioner's Opinion and Award, concluding that " [p]laintiff did not sustain an injury by accident or suffer an injury to his back as a result of a specific traumatic incident of the work assigned, on February 8, 2012. . . . Therefore, [p]laintiff's claim for benefits under the North Carolina Workers' Compensation Act must be denied."

The Commission found the following relevant facts in support of its legal conclusion: during both the discovery period and hearing before the Deputy Commissioner, plaintiff did not fully disclose his history of treatment for back problems that occurred before the alleged 8 February 2012 injury. Although plaintiff conceded his back ached on occasion and that he saw his primary care physician, Dr. Thomas Milton Futrell, for back pain, evidence presented at the hearing indicated that plaintiff sought treatment on numerous occasions for re-occurring back pain before 8 February 2012.

On 9 and 15 February 2012, plaintiff sought medical treatment at Medzone. Nurse Martha Jo Denton met with plaintiff. Ms. Denton testified that plaintiff gave her no indication that his back pain resulted from a specific incident at work. Rather, Ms. Denton stated that plaintiff reported having suffered daily back pain for the past two years and the pain had worsened within the last two days.

Page 914

Similarly, Mrs. Patti Branson, wife of Elliott Branson (the owner of defendant-employer) and defendant-employer's benefits manager, testified that plaintiff did not contact her about his alleged back injury even though he had previously reported a workers' compensation claim to her on 14 June 2010 related to a knee injury. She learned about the alleged 8 February 2012 injury 16 days after the purported incident, when she called plaintiff at home to inform him of his short-term disability benefits.

After the alleged work-related injury, plaintiff saw several specialists to help treat his back pain, including Dr. Mark Dumonski, Dr. Hao Wang, and Dr. Andreas David Runheim. All three doctors gave expert witness deposition testimony before the Deputy Commissioner and stated they had no knowledge of plaintiff's preexisting history of back pain when they evaluated plaintiff and reached their conclusions about the cause of his back problems.

Accordingly, the Full Commission also found plaintiff's lack of credibility as a key factor in denying his claim:

11. Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff's testimony that he sustained an injury to his neck and back at work on February 8, 2012 is not accepted as credible. Since the inception of the litigation of this claim, Plaintiff has given varying descriptions of how his alleged injury occurred. Plaintiff did not disclose his prior back problems to Defendants in discovery and did not tell Drs. Dumonski, Wang, or Runheim about his prior back problems. Plaintiff did not report a work-related injury to Mr. Branson on the alleged date of injury, and when he saw Nurse Denton, he did not relate his low back pain to an injury or incident occurring at work on February 8, 2012. To the extent that Plaintiff's wife, Manda Lowe, and Plaintiff's life-long friend, Joey Creasey, testified that Plaintiff told them he was injured at work, the Full Commission places greater weight on the testimony of Mr. and Mrs. Branson and the records and testimony of Nurse Denton.

II. Analysis

a.) Findings of Fact

Plaintiff challenges numerous findings of fact in the Commission's Opinion and Award. We examine each of plaintiff's contentions below.

Review of an opinion and award of the Industrial Commission " is limited to consideration of whether competent evidence supports the Commission's findings of fact and whether the findings support the Commission's conclusions of law. This court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citations and quotation marks omitted). We review the Full Commission's conclusions of law de novo. Starr v. Gaston Cnty. Bd. of Educ., 191 N.C.App. 301, 305, 663 S.E.2d 322, 325 (2008). " Unchallenged findings of fact are presumed to be supported by competent evidence and are binding on appeal." Bishop v. Ingles Markets, Inc., __ N.C.App. __, __, 756 S.E.2d 115, 118 (2014) (citation and quotation marks omitted).

i.) Finding #2

2. Plaintiff had a significant history of treatment for back problems prior to February 8, 2012, which he failed to disclose in his discovery responses and in his testimony on direct examination at the hearing before the Deputy Commissioner. The most that Plaintiff would concede about his back at the hearing was that his back would ache from time to time due to lifting heavy tires all day, and that he saw his primary care physician, Dr. Thomas Milton Futrell, for back pain from lifting tires. In actuality, Plaintiff sought treatment multiple times for ongoing back complaints and was prescribed various medications for treatment of back pain. When Plaintiff was seen by Dr. Harrison A. Latimer for treatment of his knee on June 21, 2010, Plaintiff told Dr. Latimer that he had been treating for low back pain for the past three to four years. From December 6, 2010 to January 26, 2011, Plaintiff treated

Page 915

with Dr. Futrell for back pain and spasms. Dr. Futrell prescribed multiple medications to treat the back pain and ultimately referred Plaintiff to ...

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