{ "id": 9249455, "name": "FRANCIS J. HALE, III, Employee, Plaintiff v. NOVO NORDISK PHARMACEUTICAL INDUSTRIES, INC., Employer, ZURICH INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Hale v. Novo Nordisk Pharmaceutical Industries, Inc.", "decision_date": "2002-10-01", "docket_number": "No. COA01-1341", "first_page": "272", "last_page": "278", "citations": [ { "type": "official", "cite": "153 N.C. App. 272" } ], "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": "552 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "272", "parenthetical": "holding that the \"Commission may weigh the evidence and believe all, none or some of the evidence\"" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11358836 ], "year": 2001, "pin_cites": [ { "page": "428", "parenthetical": "holding that the \"Commission may weigh the evidence and believe all, none or some of the evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0423-01" ] }, { "cite": "508 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11203821 ], "year": 1998, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0649-01" ] }, { "cite": "499 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650004 ], "year": 1998, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0331-01" ] }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "year": 1977, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "123 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "quoting Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)" }, { "page": "413" }, { "page": "414" }, { "page": "414", "parenthetical": "citation omitted" }, { "page": "414", "parenthetical": "citation omitted" }, { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 6, "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "quoting Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)" }, { "page": "680" }, { "page": "681" }, { "page": "681" }, { "page": "681" }, { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] } ], "analysis": { "cardinality": 561, "char_count": 14295, "ocr_confidence": 0.771, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21589868752965907 }, "sha256": "398b3a72869d217178ca055ed668b182d273bf2f92ea19c1cf9df57fafa23235", "simhash": "1:f0b0ee82b0625a45", "word_count": 2199 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CAMPBELL and HUNTER concur." ], "parties": [ "FRANCIS J. HALE, III, Employee, Plaintiff v. NOVO NORDISK PHARMACEUTICAL INDUSTRIES, INC., Employer, ZURICH INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff-employee Francis J. Hale appeals from the Industrial Commission\u2019s opinion and award concluding that his carpal tunnel syndrome was not a compensable occupational disease under the North Carolina Workers\u2019 Compensation Act. He presents two issues: (1) Were the Industrial Commission\u2019s findings of fact supported by any competent evidence?; and (2) Were the Commission\u2019s conclusions of law supported by the Commission\u2019s findings of fact? We answer both questions, yes; accordingly, we affirm the Commission\u2019s opinion and award.\nWhile employed by defendant Novo Nordisk Pharmaceutical Industries, Inc. for two years, through 20 November 1995, Mr. Hale used a hand-held calculator to verify calibration'reports. Mr. Hale is right hand dominant, and entered the calculations with his middle and index fingers. According to Mr. Hale, the calculator was unusually stiff and lacked flexibility: \u201cDepression of the keys required some pressure and some force.\u201d\nMr. Hale began experiencing stiffness, soreness, and swelling in his right hand; however, while employed by Novo Nordisk, he did not report this discomfort to his supervisor at any time. On 20 November 1995, Mr. Hale was terminated by Novo Nordisk for cause, and for reasons unrelated to the use of his right hand. After his termination, Mr. Hale worked for Environmental Specialties from January through May 1996. Mr. Hale experienced pain in his right hand when using a crimping tool and when handwriting.\nOn 8 May 1996, Mr. Hale sought medical treatment from Dr. Bertics, a neurologist. Mr. Hale told Dr. Bertics that his hand difficulties began in November 1995 after an automobile accident, and that his former job with Novo Nordisk required \u201ca lot of keyboarding\u201d that made his hand feel particularly sore and \u201cfunny.\u201d Dr. Bertics diagnosed Mr. Hale with carpal tunnel syndrome in his right hand. After receiving \u201ca course of conservative treatment,\u201d Dr. Bertics did not recommend surgery.\nOn 28 June 1996, Mr. Hale filed form 18 notifying the Commission and Novo Nordisk of his workers\u2019 compensation claim. On 12 September 2000, after a full hearing before a Deputy Commissioner, Mr. Hale\u2019s claim was denied. Following the full Commission\u2019s rejection of Mr. Hale\u2019s appeal from that denial, he appealed to this Court.\nOn appeal, Mr. Hale contends that the Commission\u2019s findings of fact are not supported by any competent evidence. In particular, he contests the following findings of fact by the Commission:\n2. Prior to contracting the alleged occupational disease, plaintiff\u2019s hobbies included riding a motorcycle, playing the saxophone, and using and selling firearms. . . . All of these activities involved a significant use of plaintiff\u2019s hands and arms\n14. Dr. Bertics opined that plaintiff\u2019s job as a validation technician with defendant-employer caused plaintiff\u2019s carpal tunnel syndrome and placed him at an increased risk of developing carpal tunnel syndrome. However, a consideration of the totality of the circumstances of this case leads to a different conclusion. . . . [Plaintiff\u2019s other activities and hobbies as well as his part-time job all involved the use of his hands and arms .... [T]he jobs held by plaintiff after leaving defendant-employer also involved many of the same tasks required by his job with defendant-employer, and it was during his [subsequent] employment that he first sought medical treatment for carpal tunnel problems. There is a lack of temporal relationship between the alleged onset of plaintiff\u2019s carpal tunnel syndrome and when he first sought medical treatment. . . . [Moreover], plaintiff had a diagnosed herniated cervical disc which was previously noted to have caused numbness in his upper right extremity. It does not appear that Dr. Bertics was aware of this condition.\n15. Likewise, there is insufficient evidence to find by the greater weight of the evidence that the plaintiff\u2019s carpal tunnel condition, as presented in 1996 to Dr. Bertics and prior to [plaintiff\u2019s] 1997 automobile accident, precluded plaintiff from performing his work duties for the defendant-employer, or other similar work.\n\u201cUnder our Workers\u2019 Compensation Act, \u2018the Commission is the fact finding body.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)). \u201c \u2018The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Adams, 349 N.C. at 680, 509 S.E.2d at 413 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). The Commission\u2019s findings of fact \u201c \u2018are conclusive on appeal if supported by any competent evidence.\u2019 \u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). Thus, this Court is precluded from weighing the evidence on appeal; rather, we can do no more than \u201c \u2018determine whether the record contains any evidence tending to support the [challenged] finding.\u2019 \"Adams, 349 N.C. at 681, 509 S.E.2d at 414 (citation omitted).\nMr. Hale first challenges finding of fact two, that Mr. Hale\u2019s hobbies, activities, and part-time employment \u201cinvolved a significant use of [Mr. Hale\u2019s] hands.\u201d He contends that the Commission had no evidence presented concerning the use of his hands during these activities, and therefore, the Commission could not possibly conclude that this use, if any, was \u201csignificant.\u201d This argument is without merit.\nAs noted in Mr. Hale\u2019s and Novo Nordisk\u2019s briefs, the Commission\u2019s findings of fact \u201c \u2018are conclusive on appeal if supported by any competent evidence.\u2019 \u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414 (citation omitted). Here, the record contained evidence that Mr. Hale: (1) played his saxophone twenty minutes a day; (2) handled baggage and cleaned airplanes at the airport as a part-time employee; and (3) drove a motorcycle. Mr. Hale testified that these activities \u201cbothered\u201d his hands. Accordingly, Mr. Hale must have used his hands if these activities \u201cbothered\u201d his hands. Following Adams, we conclude that finding of fact two is supported by competent evidence. Therefore, finding of fact two is binding on appeal.\nMr. Hale next challenges two separate aspects of the Commission\u2019s finding of fact fourteen. He contends that \u201cthe Commission\u2019s \u2018findings\u2019 that [Mr. Hale\u2019s] carpal tunnel syndrome was caused by something other than his work with [Novo Nordisk] are not supported by any competent evidence and must be set aside.\u201d However, the Commission found, and the record reveals, that other possible causes of Mr. Hale\u2019s carpal tunnel syndrome included his part-time employment, his subsequent work after being terminated by Novo Nordisk, his hobbies, his motorcycle accident in 1995, his car accident in 1997, and Mr. Hale\u2019s preexisting cervical condition. Thus, the record shows competent evidence that Mr. Hale\u2019s carpal tunnel syndrome was caused by something other than his work with Novo Nordisk. Therefore, this aspect of finding of fact fourteen is binding on appeal.\nMr. Hale also challenges the aspect of the Commission\u2019s finding of fact fourteen holding that it did not \u201cappear that Dr. Bertics was aware of [Mr. Hale\u2019s cervical disc] condition.\u201d He contends that this finding of fact unreasonably discredited the testimony of Dr. Bertics. He argues that, as of 23 July 1997, there is clear evidence in the record that Dr. Bertics knew of his disc condition. However, the issue before the Commission was not whether Dr. Bertics knew of the condition, but rather, whether Dr. Bertics knew that the condition \u201ccaused numbness in [Mr. Hale\u2019s] upper right extremity.\u201d The record reflects that Dr. Bertics wrote a letter on 18 November 1997 relating Mr. Hale\u2019s arm and neck pain to the 26 February 1997 automobile accident, rather than to Mr. Hale\u2019s cervical disc condition. Thus, there was competent evidence that Dr. Bertics was unaware that Mr. Hale\u2019s disc condition caused numbness in Mr. Hale\u2019s extremities. Therefore, this aspect of finding of fact fourteen is binding on appeal.\nMr. Hale also challenges the Commission\u2019s finding of fact fifteen that \u201cthere is insufficient evidence . . . that the plaintiff\u2019s carpal tunnel condition . . . precluded plaintiff from performing his work duties for the defendant-employer, or other similar work.\u201d However, the record is replete with evidence that Mr. Hale continued working and engaging in activities requiring significant use of his hands. Mr. Hale worked for two and a half years after his termination by Novo Nordisk. Mr. Hale\u2019s subsequent employment included computer work and technical writing. Thus, the record shows competent evidence to find fact fifteen; accordingly, finding of fact fifteen is binding on appeal.\nHaving determined that the Commission\u2019s findings of fact are supported by competent evidence, we turn to the Commission\u2019s conclusions of law, which we review de novo. Snead v. Carolina Pre-cast Concrete, Inc., 129 N.C. App. 331, 335, 499 S.E.2d 470, 472 (1998).\nIn his appeal, Mr. Hale selects particular sentences from the Commission\u2019s findings of fact 14 and 16, and argues that these findings support a conclusion of law in his favor. For instance, Mr. Hale notes that the Commission found that \u201cDr. Bertics opined that plaintiff\u2019s job as a validation technician with defendant-employer caused plaintiff\u2019s carpal tunnel syndrome and placed him at an increased risk of developing carpal tunnel syndrome.\u201d Mr. Hale relies on this statement to support the proposition that \u201cthe Commission\u2019s findings of fact lead to a conclusion of law opposite from the conclusion reached by the Commission.\u201d This reliance is misplaced. In the very next sentence, the Commission states: \u201cHowever, a consideration of the totality of the circumstances of this case leads to a different conclusion.\u201d\nEven assuming that the Commission did find some facts favoring Mr. Hale, this would not mandate a conclusion in favor of Mr. Hale. Rather, Mr. Hale bears the burden of proving his case by the \u201cgreater weight of the evidence.\u201d Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 654, 508 S.E.2d 831, 835 (1998). Thus, even if the Commission recited facts tending to support Mr. Hale, the Commission has the duty to weigh the evidence and the authority to conclude that Mr. Hale\u2019s evidence was outweighed by Defendants\u2019 evidence. Hawley v. Wayne Dale Const., 146 N.C. App. 423, 428, 552 S.E.2d 269, 272 (2001) (holding that the \u201cCommission may weigh the evidence and believe all, none or some of the evidence\u201d) (citations omitted).\nIn sum, because \u201cthere is some competent evidence in the record to support\u201d the Commission\u2019s findings of fact, \u201cwe hold that the Commission\u2019s findings of fact [are] conclusive on appeal.\u201d Adams, 349 N.C. at 682, 509 S.E.2d at 414. We also conclude that these findings of fact support the Commission\u2019s conclusions of law.\nAffirmed.\nJudges CAMPBELL and HUNTER concur.\n. However, in February 1997 Mr. Hale was involved in another automobile accident which aggravated a preexisting C7 radiculopathy in his cervical spine. In May 1998 surgery was performed on Mr. Hale\u2019s spine and right hand.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Scudder & Hedrick, by John A. Hedrick, for the plaintiff-appellant.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce Hamilton and Tracey L. Jones, for the defendants-appellees." ], "corrections": "", "head_matter": "FRANCIS J. HALE, III, Employee, Plaintiff v. NOVO NORDISK PHARMACEUTICAL INDUSTRIES, INC., Employer, ZURICH INSURANCE COMPANY, Carrier, Defendants\nNo. COA01-1341\n(Filed 1 October 2002)\n1. Workers\u2019 Compensation\u2014 carpal tunnel syndrome \u2014 findings of fact \u2014 hobbies\nThere was competent evidence to support the Industrial Commission\u2019s finding in a workers\u2019 compensation carpal tunnel case that plaintiff\u2019s hobbies, activities, and part-time employment involved a significant use of his hands where there was evidence that plaintiff played his saxophone twenty minutes a day, handled baggage and cleaned airplanes as a part-time employee, and drove a motorcycle. Furthermore, for plaintiff to testify that these activities bothered his hands, he must have been using his hands.\n2. Workers\u2019 Compensation\u2014 carpal tunnel syndrome \u2014 findings \u2014 causation\nThere was competent evidence to support the Industrial Commission\u2019s finding in a workers\u2019 compensation case that plaintiff\u2019s carpal tunnel syndrome was caused by something other than his work with defendant where the Commission found that other possible causes included his part-time employment, his work after he was terminated by defendant, his hobbies, a motorcycle accident, a car accident, and his preexisting cervical disc condition.\n3. Workers\u2019 Compensation\u2014 carpal tunnel syndrome \u2014 findings \u2014 plaintiffs disc condition\nThere was competent evidence to support the Industrial Commission\u2019s finding in a workers\u2019 compensation carpal tunnel case that plaintiff\u2019s neurologist was not aware of plaintiff\u2019s cervical disc condition where the issue before the Commission was whether plaintiff\u2019s doctor knew that his disc condition caused numbness in plaintiff\u2019s upper right extremity and there was evidence that the doctor wrote a letter relating plaintiff\u2019s pain to an automobile accident rather than to his disc condition.\n4. Workers\u2019 Compensation\u2014 carpal tunnel syndrome \u2014 findings \u2014 ability to work\nThere was competent evidence to support the Industrial Commission\u2019s finding in a workers\u2019 compensation carpal tunnel case that there was insufficient evidence that plaintiff\u2019s carpal tunnel syndrome precluded plaintiff from performing his work duties where the record is replete with evidence that plaintiff continued working and engaging in activities requiring significant use of his hands.\n5. Workers\u2019 Compensation\u2014 carpal tunnel syndrome \u2014 findings \u2014 favorable to plaintiff \u2014 favorable conclusions not mandated\nThe Industrial Commission did not err by not making conclusions favorable to plaintiff after making certain findings favorable to plaintiff. The Commission has the duty to weigh the evidence and the authority to conclude that plaintiff\u2019s evidence was outweighed by defendant\u2019s evidence.\nAppeal by plaintiff from Opinion and Award of the North Carolina Industrial Commission entered 28 August 2001. Heard in the Court of Appeals 21 August 2002.\nScudder & Hedrick, by John A. Hedrick, for the plaintiff-appellant.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Bruce Hamilton and Tracey L. Jones, for the defendants-appellees." }, "file_name": "0272-01", "first_page_order": 302, "last_page_order": 308 }