{ "id": 8521373, "name": "DONALD PERNELL, Employee-Plaintiff v. PIEDMONT CIRCUITS and CRAWFORD & CO., Employer-Carrier/Defendants", "name_abbreviation": "Pernell v. Piedmont Circuits", "decision_date": "1991-10-15", "docket_number": "No. 9010IC1316", "first_page": "289", "last_page": "294", "citations": [ { "type": "official", "cite": "104 N.C. App. 289" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "214 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631123 ], "opinion_index": -1, "case_paths": [ "/nc/214/0424-01" ] }, { "cite": "2 ALR3d 434", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "316 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527996 ], "year": 1984, "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0783-01" ] }, { "cite": "199 S.E. 605", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "361 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572390 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0082-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "276 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "750", "parenthetical": "quoting Anderson v. Constr. Co., 265 N.C. 431, 144 S.E.2d 272 (1965)" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644529 ], "year": 1981, "pin_cites": [ { "page": "406", "parenthetical": "quoting Anderson v. Constr. Co., 265 N.C. 431, 144 S.E.2d 272 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0402-01" ] }, { "cite": "232 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567907 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0210-01" ] }, { "cite": "214 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631123 ], "opinion_index": 0, "case_paths": [ "/nc/214/0424-01" ] } ], "analysis": { "cardinality": 507, "char_count": 11607, "ocr_confidence": 0.743, "pagerank": { "raw": 3.1368419998661887e-07, "percentile": 0.8616289984473998 }, "sha256": "77d537f18e90266e6287999bcf8323fa98e3c129cd53c6cb72b77b32c205a945", "simhash": "1:e763858b3ef753d8", "word_count": 1801 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and ORR concur." ], "parties": [ "DONALD PERNELL, Employee-Plaintiff v. PIEDMONT CIRCUITS and CRAWFORD & CO., Employer-Carrier/Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nPlaintiff-employee was a 46 year old man who had experienced recurrent incisional hernias prior to and during his employment with defendant Piedmont Circuits. The initial hernia was diagnosed and repaired in 1978. This initial hernia site required five subsequent surgical repairs between 1978 and 1987. Plaintiff-employee\u2019s previous hernia was diagnosed in October 1987.\nOn 5 April 1988, plaintiff-employee fell while performing a job related task. Plaintiff-employee felt his hernia site \u201cbust loose\u201d immediately after his fall. Two days later, he felt a \u201cbulge in his stomach.\u201d Eight days after the fall, plaintiff-employee went to see a physician who diagnosed a hernia at the same site as plaintiff\u2019s five previous hernias. Plaintiff attributes this hernia to his work related fall and, as such, he seeks compensation from the defendants. The Commission\u2019s findings of fact indicate that it cannot be determined whether the hernia resulted from his fall on 5 April 1988.\nOn 28 December 1989, the Deputy Commissioner filed an opinion denying plaintiff-employee\u2019s claim. Plaintiff appealed to the Full Commission which affirmed the Deputy Commissioner in an order filed 31 August 1990.\nPlaintiff-employee brings forth several assignments of error. First, plaintiff claims that the Industrial Commission erred in finding that plaintiff had a recurrent incisional hernia prior to his work related fall. Plaintiff alleges that the Commission inappropriately defined the term hernia under the North Carolina Workers\u2019 Compensation Act N.C.G.S. \u00a7 97-2(18) (cum. supp. 1990) which definition was then applied to plaintiff\u2019s detriment. Plaintiff contends that the Commission committed reversible error by applying a lower standard of review to the Deputy Commissioner\u2019s decision than required.\nThis Court\u2019s review of an Industrial Commission decision is limited to determining whether there is competent evidence to support the Commission\u2019s findings and whether the findings of fact support its conclusions of law. Inscoe v. DeRose Indus. Inc., 292 N.C. 210, 232 S.E.2d 449 (1977). Once determined, these facts are conclusive and will not be set aside unless there is a \u201ccomplete lack of competent evidence to support them.\u201d Mayo v. City of Washington, 51 N.C. App. 402, 406, 276 S.E.2d 747, 750 (1981) (quoting Anderson v. Constr. Co., 265 N.C. 431, 144 S.E.2d 272 (1965)).\nTo establish a prima facie case for compensation under the Workers\u2019 Compensation Act (Act), plaintiff must prove: 1) an injury resulting in hernia or rupture, 2) which appeared suddenly, 3) immediately following a work related accident, and 4) did not exist prior to the accident. N.C.G.S. \u00a7 97-2(18) (cum. supp. 1990). Plaintiff must definitively prove each element to the \u201csatisfaction of the Commission.\u201d Id. The Commission dismissed plaintiff-employee\u2019s claim because he failed to carry his burden as to the fourth element of the prima facie case. The Commission found that it could not be determined whether or not plaintiff\u2019s hernia developed before or after the accident. Plaintiff did not except to this finding; therefore, it is binding on appeal. Long v. Morganton Dyeing & Finishing Co., 321 N.C. 82, 361 S.E.2d 575 (1987).\nThe Commission\u2019s finding that it cannot be determined whether or not plaintiff\u2019s hernia occurred prior to the accident is also a conclusive fact because it is supported by competent evidence. Though there was evidence indicating that prior hernias had been repaired, the frequency of this recurrent problem, its proximity to the last diagnosed hernia, and evidence that plaintiff\u2019s other, medical conditions may have been equally culpable constitutes sufficient evidence to support the Commission\u2019s finding that the hernia existed before the plaintiff\u2019s work related accident. This Court agrees that plaintiff failed to carry his burden as to the fourth statutory requirement; therefore, the Commission\u2019s finding for the defendants is affirmed.\nPlaintiff alleges that the Commission applied an incorrect definition of \u201chernia.\u201d As a question of law, this Court may review the definition applied. The medical condition known as \u201chernia\u201d is not specifically defined in either the Act or in the case law.\nThis Court declines to define the term hernia, but, the legislature\u2019s use of the term hernia in conjunction with the word rupture in the statute, \u201chernia or rupture,\u201d seems to indicate that something less than full extension through the organ wall is contemplated. N.C.G.S. \u00a7 97-2(18) (cum. supp. 1990). In Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605 (1938), the Court indicated that a hernia begins with the abdominal wall weakening and ends with protrusion.\nThe Commission\u2019s findings do not indicate a precise definition of hernia. Plaintiff insists that the definition of hernia is limited to a protrusion of an organ or tissue through an abnormal opening. Plaintiff\u2019s definition would make the statute redundant where.it states \u201chernia and rupture.\u201d Protrusion logically follows once a hole is created by rupture. Defendants\u2019 definition of hernia as a defect in or a weakening of an organ wall which allows protrusion of another organ is more plausible and comports with Moore. As both parties\u2019 definitions are cognizable under the statute, plaintiff\u2019s contention that the Commission relied upon an inappropriate definition of a hernia has no merit.\nThe defendants urge us to pronounce as a matter of law that a recurring hernia is never of \u201crecent origin.\u201d This would prevent plaintiffs with prior hernias from ever meeting their burden as to the fourth statutory element. Because this would unduly extend the statute, we decline to do so.\nPlaintiff alleges that the Commission erred in finding that he had a recurrent hernia and that he had a hernia prior to the accident in question. As a question of fact, this Court\u2019s review is limited to determining whether there is any competent evidence to support the finding. Here, there is just such competent evidence. According to the Industrial Commission\u2019s findings, plaintiff has had five hernia repairs at the same site in nine years. Hence, plaintiff\u2019s contention that he does not have a \u201crecurrent\u201d hernia flies in the face of the popular definition of \u201crecurrent.\u201d Plaintiff\u2019s medical records also refer to his hernia as \u201crecurrent.\u201d The frequency of hernia recurrence creates a firm basis to infer that the hernia existed prior to the accident. As the Commission is the sole judge of the weight of the evidence, Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272 (1965), this Court accepts the Commission\u2019s decision on the question of whether plaintiff\u2019s hernia predated the accident. Because plaintiff was unable to definitively prove to the satisfaction of the Commission that the hernia did not exist prior to the accident, plaintiff has not carried his burden and dismissal of his claim is appropriate.\nLast, plaintiff alleges that the Commission committed reversible error by applying a lower standard of review to the Deputy Commissioner\u2019s decision than required. Upon appeal, the Full Commission is required to \u201creview the award.\u201d N.C.G.S. \u00a7 97-85 (1985). Neither the plaintiff nor the statute states the standard of review. Plaintiff alleges that the Commission\u2019s use of the words \u201creversible error\u201d indicates that the Commission used a lower standard of review even though the Commission\u2019s plenary powers would permit the application of a higher standard which encompasses the power to \u201cadopt, modify, or reject\u201d the deputy\u2019s findings. Hobgood v. Anchor Motor Freight, 68 N.C. App. 783, 785, 316 S.E.2d 86, 87 (1984). Plaintiff argues that the Commission did not use its full powers. We disagree. It appears that the Full Commission reviewed all of the evidence as its opinion indicates that the deputy\u2019s decision is \u201csupported by strong implication of the evidence. . . .\u201d Without a review of all of the evidence, this statement could not have been made. Hence, the Commission\u2019s use of the words \u201creversible error\u201d refers to the Commission\u2019s decision to adopt the deputy\u2019s decision, not to indicate that a lower standard of review was utilized. The Commission\u2019s decision is affirmed.\nAffirmed.\nJudges COZORT and ORR concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "McCreary & Read, by Daniel F. Read, for plaintiff-appellant.", "Haywood, Denny, Miller, Johnson, Sessoms & Patrick, by E. Elizabeth Lefler and George W. Miller, Jr., for defendant-appellees." ], "corrections": "", "head_matter": "DONALD PERNELL, Employee-Plaintiff v. PIEDMONT CIRCUITS and CRAWFORD & CO., Employer-Carrier/Defendants\nNo. 9010IC1316\n(Filed 15 October 1991)\n1. Master and Servant \u00a7 65.1 (NCI3d)\u2014 workers\u2019 compensation \u2014 recurrent hernia\nThe Industrial Commission correctly found for defendants in a workers\u2019 compensation action in which plaintiff sought compensation for a hernia. The finding that it could not be determined whether plaintiff\u2019s hernia developed before or after the accident is binding on appeal because plaintiff did not except to this finding; moreover, the frequency of this recurrent problem, its proximity to the last diagnosed hernia, and evidence that plaintiff\u2019s other medical conditions may have been equally culpable constitutes sufficient evidence to support the. Commission\u2019s finding.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 229, 300.\nSufficiency of proof that hernia resulted from accident or incident in suit rather than from pre-existing condition. 2 ALR3d 434.\n2. Master and Servant \u00a7 65.1 (NCI3d)\u2014 workers\u2019 compensation-definition of hernia\nPlaintiffs contention in a workers\u2019 compensation action that the Industrial Commission relied on an inappropriate definition of hernia had no merit. Although the findings do not indicate a precise definition of hernia and the Court of Appeals declined to define the term, defendants\u2019 definition of hernia as a defect or weakening of an organ wall which allows protrusion of another organ is more plausible and comports with Moore v. Engineering & Sales' Co., 214 N.C. 424. The Court also declined to pronounce as a matter of law that a recurring hernia is never of \u201crecent origin.\u201d\nAm Jur 2d, Workmen\u2019s Compensation \u00a7 300.\n3. Master and Servant \u00a7 65.1 (NCI3d)\u2014 workers\u2019 compensation\u2014 hernia \u2014 recurrent\nThe Industrial Commission did not err in a workers\u2019 compensation action by finding that plaintiff had a recurrent hernia and that he had a hernia prior to the accident in question where the Commission found that plaintiff had had five hernia repairs at the same site in nine years and his medical records refer to his hernia as recurrent.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 229, 300.\nSufficiency of proof that hernia resulted from accident or incident in suit rather than from pre-existing condition. 2 ALR3d 434.\n4. Master and Servant \u00a7 93 (NCI3d)\u2014 work\u00e9rs\u2019 compensation \u2014 review of Deputy Commissioner\u2019s decision \u2014 standard of review\nThe decision of the Industrial Commission in a workers\u2019 compensation action was affirmed despite plaintiff\u2019s contention that the Commission applied a lower standard of review to the Deputy Commissioner\u2019s decision than required. The Commission\u2019s use of the words \u201creversible error\u201d refer to the Commission\u2019s decision to adopt the deputy\u2019s decision, not to indicate that a lower standard of review was utilized.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 630, 631.\nAPPEAL by plaintiff from the North Carolina Industrial Commission. Opinion and Award filed 31 August 1990. Heard in the Court of Appeals 17 September 1991.\nOn 28 December 1989 the Deputy Commissioner filed an Opinion and Award in favor of defendant. Upon plaintiff\u2019s appeal, the Full Commission affirmed. Plaintiff appeals.\nMcCreary & Read, by Daniel F. Read, for plaintiff-appellant.\nHaywood, Denny, Miller, Johnson, Sessoms & Patrick, by E. Elizabeth Lefler and George W. Miller, Jr., for defendant-appellees." }, "file_name": "0289-01", "first_page_order": 317, "last_page_order": 322 }