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  "name": "ROBERT J. HOLCOMB, Employee, Plaintiff v. BUTLER MANUFACTURING COMPANY, Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Holcomb v. Butler Manufacturing Co.",
  "decision_date": "2003-06-03",
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    "judges": [
      "Judges HUNTER and BRYANT concur."
    ],
    "parties": [
      "ROBERT J. HOLCOMB, Employee, Plaintiff v. BUTLER MANUFACTURING COMPANY, Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "ELMORE, Judge.\nFrom an opinion and award of the North Carolina Industrial Commission denying his workers\u2019 compensation claim, plaintiff, Robert J. Holcomb, appeals. After a careful review of the record, we hold that the Commission\u2019s findings of fact are conclusive on appeal because competent evidence in the record supports those findings. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). We also find that the Commission\u2019s findings of fact support its conclusion of law. Accordingly, we affirm the full Commission\u2019s opinion and award denying plaintiff\u2019s claim.\nPlaintiff began working for defendant Butler Manufacturing Company (Butler) as a temporary employee in May 1994 and became a permanent employee in June 1994. Plaintiff worked as a press operator; his duties included setting up the press, changing the die in the press, loading machinery, and operating the press.\nPlaintiff contends that on 29 June 1995 he was assisting a coworker, Ralph Graham (Graham), in lifting and stacking several 100-pound \u201ctop cords\u201d when he felt a \u201cpop\u201d in his back and \u201cfell to one knee.\u201d Plaintiff testified that he told Graham \u201csomething popped in my back\u201d and \u201cI can\u2019t help you no more[,]\u201d whereupon plaintiff went back to his press and continued working for the rest of his shift. Graham, however, testified at the Industrial Commission hearing that he did not recall plaintiff saying he had hurt his back. Plaintiff did not tell any other Butler employee about his back injury the rest of that day or the next, when he worked a full shift. Plaintiff thereafter did not work from 1 July 1995 through 9 July 1995 because he was on vacation with his family at the beach.\nPlaintiff returned to work from vacation on 10 July 1995 but left early because of back pain. Plaintiff testified he saw his supervisor, Duncan Stewart (Stewart), that day and \u201ctold him I had hurt my back. I didn\u2019t tell him how or why.\u201d Stewart testified that Butler required its employees to immediately report any work-related injury to their supervisor and to record the injury in a logbook, and that Plaintiff failed to follow these directives. Plaintiff also testified that he saw Butler\u2019s plant manager, Dana Wilson (Wilson), as he was leaving work on 10 July 1995, and that he told Wilson \u201cI had hurt my back ... I was cooking out and got up out of the chair, and something happened. ... I don\u2019t know what happened to my back.\u201d At his deposition Wilson testified that he \u201cspecifically asked\u201d plaintiff if his back injury occurred at work, and plaintiff responded \u201cNo, it did not. It occurred while [plaintiff] was on vacation. ... He indicated his back popped. . . . When he was getting up from a chair.\u201d Plaintiff acknowledged giving Wilson this explanation for his injury, and plaintiff testified he did so because he was concerned that classifying the injury as work-related would jeopardize Butler\u2019s eligibility for a corporate safety award and could result in plaintiff losing his job. Wilson testified that he next spoke with plaintiff in April 1996, at which time plaintiff told Wilson he had actually injured his back at work but had not reported it for fear of losing his job.\nOn 11 July 1995, plaintiff went to his family physician, Dr. Bradford K. Faulkenberry, complaining of severe lower back pain radiating into his legs. At his deposition Dr. Faulkenberry testified that plaintiff presented with \u201ca three-day [] history of low back pain[]\u201d which plaintiff said began when he \u201cwas . . . cooking out, bent over, and felt a severe pain in his low back.\u201d Plaintiff, however, testified that he told Dr. Faulkenberry he hurt his back at work on 29 June 1995 while lifting the top cords. Dr. Faulkenberry examined plaintiff, initially diagnosed a lumbar spasm, and prescribed medication and physical therapy. Plaintiff\u2019s pain did not improve and he was seen at Scotland Memorial Hospital on 14 July 1995, where he again indicated that he injured his back getting out of a chair. Plaintiff subsequently underwent an MRI, which revealed multiple lumbar disc herniation and nerve impingement. When asked at his deposition whether it was atypical for a person to suffer herniated discs from getting out of a chair, Dr. Faulkenberry replied, \u201cNo.... I don\u2019t think he just got those that day. I think he\u2019d had them for many years before that.\u201d\nPlaintiff saw Dr. Malcolm Shupeck, a neurosurgeon, for a surgical consultation on 7 August 1995. Dr. Shupeck\u2019s notes indicate plaintiff was injured on 8 July 1995 when he \u201cgot out of [a] chair and felt a snap.\u201d Plaintiff, however, testified that he told Dr. Shupeck he hurt his back at work when he \u201cwas picking up something, and . . . felt something pop in my back.\u201d Plaintiff subsequently underwent a disk removal on 6 September 1995. When his pain did not resolve, plaintiff underwent additional surgery on 8 May 1996. At his deposition, Dr. Shupeck testified that he did not have a medical opinion as to the cause of plaintiffs injury, but that \u201cmost disc herniations are felt to be related to degenerative disease\u201d and that it was not probable that lifting the top cords could have caused plaintiffs injury \u201cunless there\u2019s already some disc abnormality.\u201d\nAfter the second surgery failed to provide relief, plaintiff was seen at the University of North Carolina Pain Clinic by Dr. Michael Lee on 24 October 1996. Dr. Lee\u2019s notes indicate plaintiff reported suffering \u201ca back injury in 6/95, after lifting more than 100 lbs. over his head at work.\u201d Plaintiff has not worked since 10 July 1995 due to his back pain.\nOn 30 April 1997, plaintiff filed a Form 18 notice of accident to employer, asserting that he suffered a work-related injury to his lower back on 29 June 1995 \u201ccaused by stacking beams and helping material handler pick up steel[.]\u201d Defendants subsequently denied plaintiff\u2019s claim. On 3 April 1998, and again on 16 March 1999, plaintiff filed a Form 33 request that claim be assigned for hearing. On 24 June 1999, a hearing was held before Deputy Commissioner Theresa B. Stephenson, and the record was closed on 13 December 2000 after Dr. Faulkenberry, Dr. Shupeck, and Wilson were deposed. In her opinion and award filed 26 January 2001, Deputy Commissioner Stephenson concluded that plaintiff had sustained a work-related compensable injury and awarded temporary total disability benefits, medical expenses, and costs. The full Commission reviewed the case without receiving additional evidence on 27 September 2001. By its opinion and award filed 18 January 2002, the Commission made the following pertinent findings of fact:\n2. On June 29, 1995, plaintiff was performing his duties on second shift and helped Ralph Graham, a materials handler, pick up a top cord.... Plaintiff and Mr. Graham were stacking these cords so another co-worker could lift them with a crane. . . . Plaintiff testified that, when he lifted the top cord overhead, he felt a pop and sharp pain in his back and fell down to one knee. Plaintiff also testified . . . that he informed Mr. Graham he could not help him anymore. In contrast to this testimony, Mr. Graham testified that he did not believe that plaintiff went down on a knee, told him that he was injured, or failed to complete the job, but that, if plaintiffs testimony were true, then Mr. Graham simply did not remember such an incident. Mr. Graham did not recall any incident or injury to plaintiff. . . .\n3. Plaintiff did not report his alleged work-related injury on June 29, 1995. Plaintiff returned to work the next day. Plaintiff testified that, after working four hours, he informed Mr. Duncan Stewart, a supervisor, he had hurt his back and had to go home. Mr. Stewart does not recall this conversation. . . .\n5. When plaintiff returned to work on July 10, 1995, . . . [he] informed Mr. [Dana] Wilson that he hurt his back when he got up from a chair. Plaintiff testified that he did not inform Mr. Wilson that the injury occurred at work because the company was eligible for a corporate safety flag for \u201cno time loss\u201d injuries and plaintiff did not want to be the one who prevented the company from receiving this honor.\n6. On July 11, 1995, plaintiff sought treatment from ... Dr. Bradford Faulkenberry. Plaintiff reported a three-day history of severe low back pain with some radiation into his posterior thighs. Plaintiff did not indicate he injured his back at work but instead told Dr. Faulkenberry he felt a severe pain in his lower back when he bent over while cooking out. The three-day history of pain would be consistent with an injury on July 8, 1995, while plaintiff was on vacation.\n8. On July 14, 1995, plaintiff received physical therapy at Scotland Memorial Hospital and indicated he had low back pain for five days. Plaintiff told them he had pain when he got out of a chair on July 8, 1995, which is, again, consistent with an injury occurring while plaintiff was on vacation.\n10. Plaintiff saw Dr. Shupeck for the first time on August 7, 1995. Plaintiff reported low back pain, hip pain and right leg numbness, and that the pain began when plaintiff got out of a chair. Dr. Shupeck excused plaintiff from working.\n15. When plaintiffs pain did not improve [after two surgeries], Dr. Shupeck referred him to Dr. Lee at the Physical Medicine and Rehabilitation Clinic at UNC Hospital. The plaintiff saw Dr. Lee on October 24, 1996. Plaintiff reported to Dr. Lee that he had been injured on the job. This appears to be the first medical report to give a history relating the injury to work or indicating that the date of injury was when plaintiff was working.\n18. Dana Wilson, the plant manager, testified that he saw plaintiff in July 1995, on plaintiffs first day back at work following his vacation, and noticed that he was walking \u201cpoorly\u201d and asked plaintiff whether he was injured at work. Plaintiff reported that something in his back popped while he was on vacation while getting out of a chair. In April 1996, plaintiff called Mr. Wilson and informed him that he was injured at work while lifting some material. When asked by Mr. Wilson why he had not reported the injury before, plaintiff told Mr. Wilson that he was afraid to indicate that he was injured at work.\n18. [sic] The greater weight of the evidence is that plaintiff did not injure his back at work on June 29, 1995. Plaintiff was on vacation on July 8, 1995, and the medical records and deposition testimony of Dr. Faulkenberry and Dr. Shupeck indicate that this was the date of plaintiffs symptoms. Plaintiff did not provide a history of injury at work to either Dr. Faulkenberry or Dr. Shupeck[.] . . . Mr. Graham was not able to confirm plaintiffs alleged injury. Plaintiff did not report to his employer that his injury was related to work until April 1996. Plaintiff did not indicate to a health care provider that his injury was caused at work until 15 months after the injury. Neither Dr. Faulkenberry nor Dr. Shupeck were able to relate plaintiffs back injury and complaints to the alleged work injury. For these reasons, the greater weight of the evidence is contrary to plaintiffs current assertion that he was injured at work.\nBased on these findings of fact, the full Commission, with Commissioner Thomas J. Bolch dissenting, concluded that plaintiff \u201chas failed to establish that he suffered a compensable injury arising out of and in the course of his employment with [Butler] on 29 June 1995.\u201d From this determination, plaintiff appeals.\nPlaintiff argues that the Commission erred \u201cin finding that the greater weight of the evidence was that the plaintiff did not injure his back at work on June 29, 1995\u201d and \u201cin concluding that the plaintiff failed to establish that he suffered a compensable injury arising out of and in the course of his employment with the defendant on June 29, 1995[.]\u201d We disagree.\nIt is well-settled that this Court, when reviewing an opinion and award of the Commission, is \u201climited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). \u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Adams v. Avx Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). The Commission\u2019s findings of fact are conclusive on appeal if they are supported by any competent evidence in the record, even though there is evidence that would support contrary findings. Adams, 349 N.C. at 681, 509 S.E.2d at 414. \u201cThe evidence tending to support plaintiff\u2019s claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Id.\nAfter reviewing the arguments set forth in plaintiff\u2019s brief in light of these principles, it is apparent plaintiff\u2019s arguments are without merit. The evidence before the Commission regarding when and how plaintiff injured his back was conflicting. Plaintiff essentially argues that because the Commission resolved this conflicting evidence in defendants\u2019 favor, the Commission did not properly consider the evidence in the light most favorable to plaintiff. In considering plaintiff\u2019s argument, we stress that \u201cwhere the evidence before the Commission is such as to permit either one of two contrary findings, the determination of the Commission is conclusive on appeal and the mere fact that an appellate court disagrees with the findings of the Commission is not grounds for reversal.\u201d Morrison v. Burlington Industries, 301 N.C. 226, 232, 271 S.E.2d 364, 367 (1980).\nThe record in the case sub judice is replete with competent evidence tending to support the Commission\u2019s findings of fact, specifically that plaintiff did not injure his back at work on 29 June 1995. There is plenary evidence from the testimony and medical records of plaintiffs treating physicians that plaintiff consistently indicated he injured his back while on vacation around 8 July 1995 when he was getting up out of a chair. Both Dr. Faulkenberry and Dr. Shupeck testified that plaintiff likely suffered from degenerative disc disease, and that consequently trauma would not have been necessary to cause plaintiffs lumbar disc herniation. Graham and Stewart, plaintiffs coworker and supervisor, each testified they could not recall plaintiff indicating he had injured his back at work on 29 June 1995. Wilson, Butler\u2019s plant manager, testified that plaintiff initially indicated he had not injured his back at work, but rather when he got up out of a chair while on vacation, and that plaintiff did not tell him otherwise until almost a year later. Plaintiff did not file a claim for worker\u2019s compensation benefits until April 1997, almost two years after the allegedly work-related injury. While plaintiff\u2019s testimony conflicts with much of this evidence or purports to explain it in a manner favorable to his claim, we again stress that our Supreme Court has limited this Court\u2019s review of the Commission\u2019s findings of fact to whether there was any competent evidence of record tending to support them. Adams, 349 N.C. at 681, 509 S.E.2d at 413 (\u201cIt is the Commission that ultimately determines credibility, whether from a cold record or from live testimony.\u201d)\nBecause the Commission\u2019s findings of fact are supported by competent evidence of record, and those findings in turn support the Commission\u2019s conclusions of law, we affirm the decision of the full Commission.\nAffirmed.\nJudges HUNTER and BRYANT concur.",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Jones Marcari Russotto Walker & Spencer, P.C., by David W. Spencer, for plaintiff appellant.",
      "Cranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan and Dan H. Hartzog, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "ROBERT J. HOLCOMB, Employee, Plaintiff v. BUTLER MANUFACTURING COMPANY, Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. COA02-491\n(Filed 3 June 2003)\nWorkers\u2019 Compensation\u2014 injury at work \u2014 Commission\u2019s finding \u2014 evidence supports\nThere was competent evidence to support the Industrial Commission\u2019s findings in a workers\u2019 compensation action that plaintiff did not injure his back at work. Plaintiff initially and repeatedly said that his back popped while rising from a chair while on vacation, he explained these statements by saying that he was afraid to jeopardize a corporate safety award, a co-worker and supervisor did not recall plaintiff indicating that he had injured his back at work, and plaintiff\u2019s doctors testified that plaintiff likely suffered from degenerative disc disease and that trauma would not have been necessary for his injury.\nAppeal by plaintiff from opinion and award filed 18 January 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 11 March 2003.\nJones Marcari Russotto Walker & Spencer, P.C., by David W. Spencer, for plaintiff appellant.\nCranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan and Dan H. Hartzog, for defendant appellees."
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