{ "id": 8470746, "name": "PAUL COOPER, Plaintiff v. COOPER ENTERPRISES, INC., Employer, COMPTRUST AGC, Carrier, Defendants", "name_abbreviation": "Cooper v. Cooper Enterprises, Inc.", "decision_date": "2005-02-15", "docket_number": "No. COA04-147", "first_page": "562", "last_page": "566", "citations": [ { "type": "official", "cite": "168 N.C. App. 562" } ], "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": "459 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "800-01" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917098 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0682-01" ] }, { "cite": "23 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "222 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630398 ], "year": 1942, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0358-01" ] }, { "cite": "323 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "30", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525367 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "379-80", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0377-01" ] }, { "cite": "175 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1970, "pin_cites": [ { "page": "347" }, { "page": "346-47" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 604", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554313 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0604-01" ] }, { "cite": "391 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "195", "parenthetical": "citing Starr v. Charlotte Paper Co., 8 N.C. App. 604, 610, 175 S.E.2d 342, 347 (1970)" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525024 ], "year": 1990, "pin_cites": [ { "page": "461", "parenthetical": "citing Starr v. Charlotte Paper Co., 8 N.C. App. 604, 610, 175 S.E.2d 342, 347 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0458-01" ] }, { "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": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "quoting Anderson v. Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "quoting Anderson v. Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "752" }, { "page": "753" }, { "page": "753", "parenthetical": "internal quotation and citations omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "231" }, { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] } ], "analysis": { "cardinality": 584, "char_count": 11642, "ocr_confidence": 0.743, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3944490586130697 }, "sha256": "ea24e116ac6fa462fe2c37ab01dc829c20040f04a5e056febc224bbc0ff7b72f", "simhash": "1:43f141128c7a3848", "word_count": 1866 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and ELMORE concur." ], "parties": [ "PAUL COOPER, Plaintiff v. COOPER ENTERPRISES, INC., Employer, COMPTRUST AGC, Carrier, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff Paul Cooper asserts that the full Industrial Commission committed prejudicial error in denying his claim. Cooper contends he submitted sufficient evidence for the Industrial Commission to determine that the lack of mobility in his right arm prevented him from regaining control of his automobile and avoiding his 17 October 1998 automobile accident. Cooper contends that the automobile accident was therefore a direct and natural result of his prior compensable injury. For the reasons stated herein, we disagree and affirm the Industrial Commission\u2019s Opinion and Award.\nThe procedural and factual history of the instant appeal is as follows: Cooper had worked in the construction field since 1966. From 1986 through 1996, Cooper worked at Cooper Enterprises, Inc., a firm owned in part by Cooper\u2019s brother. Cooper had a history of problems with his right shoulder. These were exacerbated when, on 26 September 1993, Cooper stepped on a piece of rebar while carrying a roll of mesh wiring, lost his balance, and fell into an embankment. He sustained crush injuries to the right side of his upper body and had to undergo, inter alia, five surgical procedures on his right shoulder.\nCooper Enterprises admitted the compensability of Cooper\u2019s resulting workers\u2019 compensation claim and paid Cooper medical compensation and disability benefits. In December 1997, Cooper\u2019s physician, Donald D\u2019Alessandro, M.D., found that, despite treatment, Cooper retained a fifty percent partial impairment of his right upper extremity and a one-hundred percent impairment of his right shoulder. However, in March 1998, Dr. D\u2019Alessandro also noted that Cooper \u201chas done quite well[,]\u201d that Cooper\u2019s shoulder \u201chas not been bothering him[,]\u201d and that \u201c[n]o further treatment is necessary.\u201d\nOn 17 October 1998, Cooper was involved in a single-car automobile accident. Cooper testified that gravel on the roadway caused his vehicle to slide toward the right shoulder of the road, where there was a steep drop-off. To avoid the embankment on the right, Cooper turned his steering wheel sharply to the left, causing his vehicle to veer toward an embankment on the other side of the road. In Cooper\u2019s own words, \u201cwhen I started sliding, [the car] went off just a little bit. Then when I pulled it back, you know, I guess I jerked it or whatever and [the car], you know, shot across the road.\u201d Cooper was unable to regain control, and his vehicle went off the road and flipped over. As a result, Cooper sustained serious injuries, including hip and leg fractures and lacerations. Cooper alleged that his inability to regain control of his vehicle and the subsequent accident and injuries were due to his prior work injury to his right arm.\nOn 13 October 2000, Cooper filed a notice of accident, alleging that his automobile accident constituted a compensable claim because it was caused by his prior right upper extremity disability. Defendants denied the claim. Deputy Commissioner Bradley W. Houser filed an Opinion and Award on 21 August 2002, amended on 26 August 2002, awarding benefits to Cooper. Defendants appealed to the full Industrial Commission, which, on 29 September 2003, overturned Deputy Commissioner Houser\u2019s Opinion and Award and held that Cooper had failed to present sufficient evidence to show that the 17 October 1998 automobile accident was a direct and natural result of Cooper\u2019s prior compensable injury. Cooper appealed.\nIt is well-settled that the employee bears the burden of establishing the compensability of a workers\u2019 compensation claim. Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003). Our review of the Commission\u2019s opinion and award 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). The Industrial Commission is the \u201csole judge of the weight and credibility of the evidence,\u201d and this Court \u201c \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).\nCooper contends that the lack of mobility in his right arm prevented him from regaining control of his automobile and that the accident was therefore a direct and natural result of his prior com-pensable injury. \u201cA subsequent injury to an employee, whether an aggravation of the original injury or a new and distinct injury, is compensable only if it is the direct and natural result of a prior com-pensable injury.\u201d Vandiford v. Stewart Equip. Co., 98 N.C. App. 458, 461, 391 S.E.2d 193, 195 (1990) (citing Starr v. Charlotte Paper Co., 8 N.C. App. 604, 610, 175 S.E.2d 342, 347 (1970)). An injury is not com-pensable, however, if \u201cit is the result of an independent intervening cause attributable to claimant\u2019s own intentional conduct. Our supreme court defines intervening cause ... as an occurrence entirely independent of a prior cause.\u201d Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 379-80, 323 S.E.2d 29, 30 (1984) (citations omitted).\nTo show that the prior compensable injury caused the subsequent injury, the \u201c \u2018evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation.\u2019 \u201d Holley, 357 N.C. at 232, 581 S.E.2d at 753 (quoting Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). \u201cAlthough expert testimony as to the possible cause of a medical condition is admissible . . ., it is insufficient to prove causation, particularly when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\u201d Id. at 233, 581 S.E.2d at 753 (internal quotation and citations omitted).\nHere, the record reflects that, as Cooper approached a curve in the roadway, gravel caused his vehicle to slide to the right. In an attempt to avoid failing into an embankment on the right, Cooper intentionally steered sharply to the left, in his own words \u201cjerking\u201d his vehicle and thereby causing it to veer toward an embankment on the other side of the road. While Cooper alleged that his prior work injury to his right arm caused the accident, the record reveals little evidence to support this contention. The only relevant medical evidence produced was limited testimony by Dr. D\u2019Alessandro, who characterized his testimony as \u201cjust conjecture\u201d by someone who is \u201cno expert in th[e] area\u201d of driving with impaired extremities. Dr. D\u2019Alessandro stated that \u201cit\u2019s just conjecture, but I imagine that the right arm could really only be used to steady the wheel to re-grip it with the left[.]\u201d Meanwhile, prior to the accident, Dr. D\u2019Alessandro noted that Cooper \u201chas done quite well[,]\u201d that Cooper\u2019s shoulder \u201chas not been bothering him[,]\u201d and that \u201c[n]o further treatment is necessary.\u201d Moreover, Dr. D\u2019Alessandro testified that he did not see Cooper for ten months after the automobile accident, that he was not involved in any way with the accident, and that the accident was not relevant at the time that he saw Cooper for treatment.\nTo support his argument that his accident was a result of his prior compensable injury, Cooper cited several cases where a subsequent accident was found to be a direct and natural result of a prior compensable injury. These cases are, however, easily distinguishable. In Home v. Universal Leaf Tobacco Processors, 119 N.C. App. 682, 459 S.E.2d 797 (1995), the plaintiff sustained a compensable injury to his back. While the plaintiff was still in the process of recovering from that injury, he was involved in an automobile accident. The plaintiff\u2019s work injury had not yet stabilized at the time of the accident, and it was undisputed that the accident was not caused by the plaintiff\u2019s \u201c \u2018own intentional conduct.\u2019 \u201d Id. at 687, 459 S.E.2d at 800-01. The injuries resulting from the automobile accident were therefore not the product of an independent, intervening cause and were thus compensable. Similarly, in Heatherly, 71 N.C. App. 377, 323 S.E.2d 29, the plaintiff fractured a bone that was still healing from a prior compensable fracture. The evidence showed that the relevant bone had been weakened by the prior compensable fracture, and the subsequent injury was therefore compensable. In Starr, 8 N.C. App. 604, 175 S.E.2d 342, the plaintiff had been paralyzed from the waist down in a work-related accident. Several years later, while in bed, the plaintiff sustained severe burns from a fire started by his cigarette. This Court affirmed the Industrial Commission\u2019s finding that the burns were compensable, both because the plaintiff put his cigarette on his wheelchair due to muscle spasms in his legs resulting from his prior compensable injury, and because the plaintiff was incapable of perceiving that his bed and legs had caught on fire because of the prior compensable injury. Id. at 609-11, 175 S.E.2d at 346-47.\nHere, in contrast, the Industrial Commission found that the evidence was insufficient from which to find that the 17 October 1998 car accident was the result of Cooper\u2019s prior compensable injury. Indeed, there was competent evidence that the accident and injuries were caused by Cooper\u2019s jerking his car to the left upon hitting gravel in the road. Though Cooper testified that, had he retained full use of his arm, he would have had more control over his vehicle, the evidence supports the Industrial Commission\u2019s finding that the evidence did not suffice to show that he would have avoided the accident. The evidence also showed that Cooper\u2019s prior injury had stabilized by the time Cooper had the accident. The Industrial Commission therefore did not err in finding that there was insufficient evidence to find that Cooper\u2019s automobile accident was caused by, or a natural and direct result of, his prior compensable injury. These findings in turn support the Industrial Commission\u2019s conclusion that Cooper\u2019s automobile accident injuries were not compensable.\nAccordingly, we affirm the Industrial Commission\u2019s Opinion and Award.\nAffirmed.\nJudges HUDSON and ELMORE concur.\n. However, this opinion does not address and does not preclude Cooper\u2019s possible ongoing entitlement to disability benefits and medical treatment for his admittedly compensable prior right arm injury.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Hyler & Lopez, P.A., by George B. Hyler, Jr., for plaintiff - appellant.", "Morris York Williams Surles & Barringer, LLP, by John F. Morris, for defendant-appellees." ], "corrections": "", "head_matter": "PAUL COOPER, Plaintiff v. COOPER ENTERPRISES, INC., Employer, COMPTRUST AGC, Carrier, Defendants\nNo. COA04-147\n(Filed 15 February 2005)\nWorkers\u2019 Compensation\u2014 prior arm injury \u2014 not the direct cause of auto accident\nAn Industrial Commission opinion denying compensation was affirmed where plaintiff contended that an automobile accident was a direct and natural result of his prior compensable arm injury, but there was competent evidence that the accident was caused by plaintiff jerking his car to the left upon hitting gravel in the road. The employee bears the burden of establishing the com-pensability of the claim, and the Commission did not err by finding that there was insufficient evidence that the accident was caused by the prior compensable injury.\nAppeal by Plaintiff from Opinion and Award of the North Carolina Industrial Commission entered 29 September 2003. Heard in the Court of Appeals 30 November 2004.\nHyler & Lopez, P.A., by George B. Hyler, Jr., for plaintiff - appellant.\nMorris York Williams Surles & Barringer, LLP, by John F. Morris, for defendant-appellees." }, "file_name": "0562-01", "first_page_order": 592, "last_page_order": 596 }