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          "parenthetical": "citing Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. rev. denied, 347 N.C. 671, 500 S.E.2d 86 (1998)"
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    "judges": [
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    "parties": [
      "REBECCA TAYLOR, Employee, Plaintiff v. CAROLINA RESTAURANT GROUP, INC., Employer, THE HARTFORD, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nWhere the Industrial Commission\u2019s findings of fact are supported by any competent evidence, those findings are binding on appeal. Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Here, Defendants contend that there was no competent evidence to support the Industrial Commission\u2019s findings that Plaintiff\u2019s right knee injury caused her disability. We disagree and find that competent evidence supports the Industrial Commission\u2019s findings of fact, which in turn support its conclusions of law.\nThe record reflects that Plaintiff Rebecca Taylor was employed by Carolina Restaurant Group as an attendant to the hot bar of a Wendy\u2019s restaurant in July 1994. Additionally, at that time, Ms. Taylor drove a school bus (her primary employment), and cleaned houses. On 22 July 1994, in the course of her employment with the Carolina Restaurant Group, Ms. Taylor slipped on degreaser at Wendy\u2019s and struck her right knee on a wall. Ms. Taylor attempted to return to work with the Carolina Restaurant Group and her bus driving employment following the accidental injury but was unable to perform because she \u201ccouldn\u2019t take the pain.\u201d As a consequence of the July 1994 fall, Ms. Taylor underwent right knee replacement surgery in 1996. Since the July 1994 injury, Ms. Taylor has also undergone several arthroscopic surgeries, inter alia, to remove scar tissue from her right knee. Ms. Taylor\u2019s primary treating physician is Ward S. Oakley, Jr., M.D.\nThe record tends to show that while Ms. Taylor\u2019s condition eventually improved somewhat, she experienced continuing pain and swelling in the right knee. On 23 June 1998, Ms. Taylor was treated by Dr. Oakley for pain in her right knee. Dr. Oakley\u2019s assessment was \u201c[r]ight knee pain\u201d and \u201c[r]ight knee failure of implant.\u201d Defendants then referred Ms. Taylor to David Mauerhan, M.D., of The Miller Clinic for further evaluation. Dr. Mauerhan recommended no further surgery and that Ms. Taylor should continue to try to work. Dr. Mauerhan also noted as his impression:\nContinued pain following total knee replacement on the right knee. This unfortunate lady has had continued pain when reviewing her history from her very initial problem on through to the present. No surgical procedure including her arthroscopies nor the total knee have given her significant or continued relief.\nDr. Mauerhan also found that Ms. Taylor had a fifty-percent permanent disability and \u201ca painful total knee replacement which is giving her difficulty.\u201d\nIn January 2000, Ms. Taylor fell on black ice in the parking lot of Richmond Community College, where she was employed as a janitor. (Ms. Taylor was at that time no longer working for the Carolina Restaurant Group.) Ms. Taylor stated that, when she realized she was going to fall, she guarded her right knee and took the blow to the left knee. The fall injured the left knee, which became increasingly painful. On 27 April 2000, Dr. Oakley performed an arthroscopic revision to the left knee. On 2 October 2001, Dr. Oakley assigned a twenty-percent impairment rating to the left knee and issued standard restrictions following the surgery to the left knee. On 13 December 2001, Ms. Taylor entered a settlement agreement with Richmond Community College for all liability under the Workers\u2019 Compensation Act.\nBy the Fall 2001, Ms. Taylor\u2019s left knee had healed well and required only light, if any, work restrictions. However, her right knee had become ever more painful. In September 2001, she reported to Dr. Oakley that she was experiencing increased pain, popping, and swelling in her right knee. Dr. Oakley noted that \u201cshe didn\u2019t relate it to any particular injury or trauma....\u201d In performing an arthroscopic surgery on her right knee in 2002, Dr. Oakley found shedding and plastic deformation of the stem, or weight-bearing part, of her knee replacement appliance. Dr. Oakley stated that such deterioration of the plastic appliance was \u201cnot uncommon,\u201d and would lead to more pain and a need for the deformed part to be replaced. Moreover, Dr. Oakley indicated that knee replacements typically do not last as long in younger, overweight persons, such as Ms. Taylor, and that there is a twenty- to thirty-percent chance of an appliance failing within ten years. Dr. Oakley also stated that he thought there was a better than fifty-percent chance that, within the next five years, the deformed part of Ms. Taylor\u2019s knee appliance would need to be replaced.\nMs. Taylor\u2019s 1994 and 2000 injury claims were consolidated before the Industrial Commission, and on 3 October 2002, Deputy Commissioner Phillip A. Holmes found, inter alia, that Ms. Taylor\u2019s 2000 accident resulted in her total disability, her prior right knee injury was aggravated as a consequence of her 2000 injury, and the aggravation of the right knee injury was compensable, as was her total disability, but that Ms. Taylor relinquished her right to recover from Richmond Community College under the settlement agreement she entered with them. Ms. Taylor appealed to the full Industrial Commission, which, with Chairman Lattimore dissenting, reached the opposite conclusions, determining that Ms. Taylor\u2019s 1994 right knee injury caused her disability and that Defendants were liable for her disability and medical compensation. Defendants appeal.\nOn appeal, 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, 352 N.C. at 116, 530 S.E.2d at 553. 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)). Indeed, \u201cso long as there is some \u2018evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.\u2019 \u201d Shah v. Howard Johnson, 140 N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (quoting Porterfield v. RPC Corp., 47 N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980)), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001).\n\u201c \u2018In order to obtain compensation under the Workers\u2019 Compensation Act, the claimant has the b\u00fcrden of proving the existence of his disability and its extent.\u2019 \u201d Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). \u201cUnder the Workers\u2019 Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity.\u201d Id. at 764, 487 S.E.2d at 750 (citing N.C. Gen. Stat. \u00a7 97-2(9) (1991)). The employee may show disability in one of four ways:\n(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some'work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\nKnight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 7, 562 S.E.2d 434, 439 (2002), aff'd, 357 N.C. 44, 577 S.E.2d 620 (2003) (quotation omitted). Further, \u201c[i]n determining if plaintiff has met this burden, the Commission must consider not only the plaintiffs physical limitations, but also his testimony as to his pain in determining the extent of incapacity to work and earn wages such pain might cause.\u201d Webb v. Power Circuit, Inc., 141 N.C. App. 507, 512, 540 S.E.2d 790, 793 (2000) (citing Matthews v. Petroleum Tank Serv., Inc., 108 N.C. App. 259, 265, 423 S.E.2d 532, 535 (1992)), cert. denied, 353 N.C. 398, 548 S.E.2d 159 (2001); see also Knight, 149 N.C. App. at 7-8, 562 S.E.2d at 439-40 (same).\nHere, Defendants contend, that \u201c[t]he Record is entirely devoid of any evidence to support these findings\u201d that \u201c(1) \u2018[w]ere it not for the right knee injury, plaintiff would be able to work,\u2019 and (2) plaintiffs failed knee replacement caused her disability....\u201d We disagree.\nDefendants have not excepted to the Industrial Commission\u2019s finding that in July 1994, \u201cplaintiff sustained an accidental injury to her right knee arising out of and in the course of employment with Wendy\u2019s . . . .\u201d Defendants also have not excepted to the fact that Defendant\u2019s carrier, The Hartford, \u201ceventually paid all of the medical procedures on the right knee.\u201d These findings are thus binding. Pollock v. Reeves Bros., Inc., 313 N.C. 287, 292, 328 S.E.2d 282, 286 (1983) (holding that where defendants do not except to finding in a workers\u2019 compensation case, it is binding on appeal); Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 480-81 (1997) (\u201c[W]hen there are no exceptions to the [Industrial] Commission\u2019s findings, they are binding on appeal.\u201d (citation omitted)).\nMoreover, the record shows some competent evidence to support the Industrial Commission\u2019s findings that, as a result of her right knee injury, Ms. Taylor experienced pain and swelling that ultimately caused her total disability. For example, Dr. Oakley testified during his deposition that there were \u201crecurrent episodes of discomfort, [and] swelling\u201d after Ms. Taylor\u2019s knee replacement, that Ms. Taylor reported \u201cpersistent discomfort\u201d in her right knee, that after her knee replacement Ms. Taylor was \u201cstruggling with it . . . .\u201d Dr. Mauerhan, Defendants\u2019 doctor, also noted in 1998 that Ms. Taylor complained of \u201cglobal knee pain. She says it hurts her all the time. There is no particular time when it doesn\u2019t hurt.\u201d Dr. Mauerhan had the impression that \u201c[n]o surgical procedure . . . ha[d] given her significant continued relief,\u201d and found that Ms. Taylor \u201cprobably will have chronic pain in the knee.\u201d The Industrial Commission made a finding, to which Defendants did not except and which is thus binding, that Dr. Mauerhan found Ms. Taylor\u2019s \u201cchronic right knee pain\u201d would be \u201cpermanent and progressive.\u201d Ms. Taylor testified, inter alia, that her right knee \u201cstayed in pain, it stayed swollenf,]\u201d that her right knee pain \u201cgot steadily worse[,]\u201d and that her knee \u201cget[s] cramps[,]\u201d needs to be moved all the time, and is painful. Ms. Taylor also testified that, inter alia, if her right leg were normal and not painful, and taking into consideration the injury to her left knee, she believes she could perform her former job at Richmond Community College, which she now cannot perform; she testified that, \u201cif my right knee was normal, I could do it. .. .\u201d Dr. Oakley confirmed that Ms. Taylor\u2019s belief that she could return to work but for her right knee troubles was possible.\nAdditionally, the record shows some competent evidence to support the Industrial Commission\u2019s findings that Ms. Taylor\u2019s right knee replacement failed and deteriorated. For example, as early as June 1998, i.e., well before Ms. Taylor\u2019s January 2000 fall, Dr. Oakley\u2019s assessment of Ms. Taylor\u2019s condition was \u201c[r]ight knee failure of implant.\u201d Moreover, the Industrial Commission made a finding not excepted to and thus binding on appeal that Dr. Mauerhan, as early as 1998, found Ms. Taylor\u2019s right knee condition to be \u201cpermanent and progressive.\u201d Dr. Mauerhan also noted that, while he believed Ms. Taylor could still work in 1998, she had at that time a permanent fifty-percent impairment in her right knee. Dr. Oakley testified extensively as to shedding and deformation of part of Ms. Taylor\u2019s right knee replacement appliance. Dr. Oakley' found shedding and plastic deformation of the stem, or weight-bearing part, of Ms. Taylor\u2019s right knee replacement appliance and stated that such deterioration of the plastic appliance was \u201cnot uncommon[.]\u201d Dr. Oakley stated that the shedding and deformation would lead to more pain and a need for the deformed stem to be replaced. Moreover, Dr. Oakley indicated that knee replacements typically do not last as long in younger, overweight persons, such as Ms. Taylor, and that generally there is a twenty- to thirty-percent chance of an appliance failing within ten years. Dr. Oakley testified there was a better than fifty-percent chance that, within the next five years, the deformed-, part of Ms. Taylor\u2019s .knee appliance would need to be replaced. And Dr. Oakley testified that, because of her right knee, Ms. Taylor could not: work on her knees, kneel down, squat, climb more than a few steps, sit for prolonged periods, stand for prolonged periods, or do continuous walking.\nMoreover, the record shows some competent evidence to support the Industrial Commission\u2019s findings that Ms. Taylor is totally disabled. For example, Dr. Oakley, in his deposition, testified that, with respect to Ms. Taylor\u2019s right knee, Ms. Taylor would not be able to: work on her knees, kneel down, squat, climb more than a few steps, sit for prolonged periods, stand for prolonged periods, or do continuous walking. Dr. Oakley testified that Ms. Taylor would not be able to sit for longer than ten to fifteen minutes. Ms. Taylor testified that, inter alia, if her right leg were normal and not painful, and taking into consideration the injury to her left knee, she believes she could perform her former job at Richmond Community College, which she now cannot perform; she testified that, \u201cif my right knee was normal, I could do it... .\u201d Dr. Oakley confirmed that Ms. Taylor\u2019s belief that she could return to work but for her right knee troubles was possible. Further, Ms. Taylor, now fifty-seven years old, testified that she attended school only through the tenth grade, has never had an office job, is not qualified for such a job, and has worked her whole life in physical labor positions that she can no longer perform.\nWe further find in the record some competent evidence to support the Industrial Commission\u2019s findings that the cause of Ms. Taylor\u2019s disability was not the later left knee injury. For example, Dr. Oakley testified that Ms. Taylor \u201cdidn\u2019t relate [her right knee\u2019s popping and tenderness] to any particular injury or trauma that I\u2019m aware of, at least none that my notes associate with it.\u201d Dr. Oakley testified that, while it would not have been unusual for Ms. Taylor to have had to rely more on her right leg as a consequence of the left knee injury, his records did not support that testimony. Dr. Oakley also indicated that Ms. Taylor\u2019s left knee had healed well and required only light, if any, work restrictions.\nDefendants point in particular to (1) Ms. Taylor\u2019s statement that her right knee \u201cgot worse. It\u2019s got more painful from \u2014 I guess, from having to switch back and forth on legs like I have to do \u2014 -had to do []\u201d after her left knee surgery, (2) Ms. Taylor\u2019s statement that her right knee symptoms worsened after her left knee surgery because she \u201cwas putting more weight on it, and . . . that\u2019s when my knee really started giving me a lot of problemsf,]\u201d and (3) Dr. Oakley\u2019s testimony that he viewed Ms. Taylor\u2019s injury to her left knee as \u201cthe straw that breaks the \u2014 you know, the camel[]\u201d and \u201c[)]ust one more little thing just kind of pushed her over the edge[]\u201d to disability. While this and other evidence might have supported findings contrary to those made by the Industrial Commission, that is not of consequence. Because there is some evidence that directly or by reasonable inference tends to support the Industrial Commission\u2019s findings, this Court is bound, even though there is evidence that would have supported a finding to the contrary. Shah, 140 N.C. App. at 61-62, 535 S.E.2d at 580 (\u201cWhere there is evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.\u201d) (quotation omitted).\nIn support of their argument that Ms. Taylor\u2019s disability was caused by her January 2000 fall and not her 1994 injury, Defendants rely heavily on Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690 (1987). This case is, however, inapposite. In Wilder, unlike here, the plaintiff sustained a subsequent injury to the same knee that had previously undergone a knee replacement. This Court found that \u201cthe evidence clearly indicates that plaintiff\u2019s [subsequent] injury aggravated a latent condition\u201d and that \u201cuncontradicted evidence\u201d showed the plaintiff\u2019s \u201cdisability was the result of a work-related injury which aggravated an existing infirmity.\u201d Id. at 196-97, 352 S.E.2d at 695. Here, in contrast, the January 2000 injury was not to the same knee that Ms. Taylor injured in the course of her employment with the Carolina Restaurant Group but rather to her other knee. Moreover, as discussed above, there is not \u201cuncontradicted evidence\u201d that \u201cclearly indicates\u201d that the January 2000 fall caused Ms. Taylor\u2019s disability.\nIn sum, we do not find, as Defendants contend, that \u201c[t]he Record is entirely devoid of any evidence to support\u201d its findings that \u201c(1) \u2018[w]ere it not for the right knee injury, plaintiff would be able to work,\u2019 and (2) plaintiff\u2019s failed knee replacement caused her disability ... .\u201d Moreover, we hold that the Industrial Commission\u2019s findings of fact support its conclusions- of law and award. \u2022\nDefendants also contend that the conclusions of law and award are \u201cnot supported by the applicable law.\u201d However, in their assignments of error, Defendants excepted to the conclusions and award only on the basis that the conclusions of law were \u201cnot supported by competent Findings of Fact\u201d and that the award was \u201cnot supported by the Findings of Fact and the Conclusions of Law.\u201d This argument is therefore not properly before us. N.C. R. App. P. 10(a) (\u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal\u201d); Dep\u2019t of Transp. v. Elm Land Co., 163 N.C. App. 257, 264, 593 S.E.2d 131, 136 (quoting N.C. R. App. P. 10(a) and refraining from addressing an argument regarding a conclusion of law where the assignment of error in the record excepted to the conclusion under a different theory), disc. review denied, 358 N.C. 542, 599 S.E.2d 42 (2004).\nFor the foregoing reasons, we affirm the Industrial Commission\u2019s Opinion and Award.\nAffirmed.\nJudge ELMORE concurs.\nJudge TYSON dissents.",
        "type": "majority",
        "author": "WYNN, Judge."
      },
      {
        "text": "Tyson, Judge\ndissenting.\nThe majority\u2019s opinion holds \u201csome\u201d competent evidence exists to support the Commission\u2019s findings of fact, which in turn support its conclusions of law, and affirms the Commission\u2019s opinion and award. There is no evidence to sustain the Commission\u2019s findings of fact. The majorities\u2019 opinions from the Commission and here are erroneous as a matter of law. I respectfully dissent.\nI. Standard of Review\nThe Commission is the sole judge of issues of fact. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683-84 (1982). The Commission\u2019s findings of fact are binding on appeal when supported by competent evidence, Deese, 352 N.C. at 116, 530 S.E.2d at 553, and prevail \u201ceven though there is evidence that would support a finding [of fact] to the contrary.\u201d Mica Co. v. Board of Education, 246 N.C. 714, 717, 100 S.E.2d 72, 74 (1957) (citations omitted). The Commission\u2019s findings must support its conclusions of law. Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 480 (1997) (citing Moore v. Davis Auto Service, 118 N.C. App. 624, 627, 456 S.E.2d 847, 850 (1995)). We review \u201cthe Commission\u2019s conclusions of law . . . de novo.\u201d McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (citing Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. rev. denied, 347 N.C. 671, 500 S.E.2d 86 (1998)). Our de novo review also applies to mixed questions of fact and law. Campbell v. N.C. Dep\u2019t of Transport., 155 N.C. App. 652, 667, 575 S.E.2d 54, 64, disc. rev. denied, 357 N.C. 62, 579 S.E.2d 386 (2003).\nII. De Novo Review\nBoth the opinion and award of the deputy commissioner and Chairman Lattimore\u2019s dissenting opinion from the Commission\u2019s opinion and award properly found plaintiff\u2019s right knee injury was a preexisting condition \u201cwhich was aggravated\u201d by the 31 January 2000 accident and is \u201ccompensable as a part of that injury.\u201d No evidence before the Commission supports a contrary finding or conclusion.\nA. Aggravation of Pre-existing Injury\n\u201cAn injury by accident arising out of and in the course of employment which accelerates or aggravates a pre-existing disease or infirmity, thus proximately contributing to the . . . disability of the employee, is compensable.\u201d Leonard T. Jernigan, North Carolina Workers\u2019 Compensation, \u00a7 12:8, at 138 (4th ed. 2004) (citations omitted). \u201cBecause employers must accept employees as they find them, employers can potentially be liable for total disability benefits if an on-the-job injury aggravates or accelerates a pre-existing condition to such an extent that it causes complete disability.\u201d Id., \u00a7 18:1, at 213 (citations omitted); Brown v. Family Dollar Distrib. Ctr., 129 N.C. App. 361, 364, 499 S.E.2d 197, 199 (1998) (\u201cOur courts have held that when an accident arising out of employment materially accelerates or aggravates a pre-existing condition and proximately contributes to disability, the injury is compensable.\u201d) (citing N.C. Gen. Stat. \u00a7 97-2 (1991); Anderson v. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951); Buck v. Procter and Gamble Co., 52 N.C. App. 88, 278 S.E.2d 268 (1981); and Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690 (1987)). Undisputed here is that Richmond Community College was plaintiff\u2019s employer at the time her 1994 pre-existing injury was aggravated in January 2000.\nOur Supreme Court stated in Vause v. Equipment Co.,\n[t]he hazards of employment do not have to set in motion the sole causative force of an injury in order to make it compensable. By the weight of authority it is held that where a workman by reason of constitutional infirmities is predisposed to sustain injuries while engaged in labor, nevertheless the leniency and humanity of the law permit him to recover compensation if the physical aspects of the employment contribute in some reasonable degree to bring about or intensify the condition which renders him susceptible to such accident and consequent injury. But in such case the employment must have some definite, discernible relation to the accident.\n233 N.C. 88, 92, 63 S.E.2d 173, 176 (1951) (internal citation and quotation omitted).\nIn Hoyle v. Carolina Associated Mills, this Court stated:\nThe work-related injury need not be the sole cause of the problems to render an injury compensable. Kendrick v. City of Greensboro, 80 N.C. App. 183, 186, 341 S.E.2d 122, 123, disc. review denied, 317 N.C. 335, 346 S.E.2d 500 (1986). If the work-related accident \u201ccontributed in \u2018some reasonable degree\u2019 \u201d to plaintiffs disability, she is entitled to compensation. Id. at 187, 341 S.E.2d at 124. \u201c \u2018When a pre-existing, non-disabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment ... so that disability results, then the employer must compensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent.\u2019 \u201d Wilder v. Barbour Boat Works, 84 N.C. App. 188, 196, 352 S.E.2d 690, 694 (1987) (quoting Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981)).\n122 N.C. App. 462, 465-66, 470 S.E.2d 357, 359 (1996).\nIn Mabe v. Granite Corp., the defendant argued certain factors are \u201cbeyond the control of an employer and cannot be considered in determining an employee\u2019s disability.\u201d 15 N.C. App. 253, 256, 189 S.E.2d 804, 807 (1972). This Court responded, \u201cThe answer to this is that an employer accepts an employee as he is. If a compensable injury precipitates a latent physical condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable and no attempt is made to weigh the relative contribution of the accident and the pre-existing condition.\u201d Id. (citing 2 Larson, Workmen\u2019s Compensation Law, \u00a7 59.20, p. 88.109).\n\u201c \u2018When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant\u2019s own intentional conduct.\u2019 \u201d Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983) (quotation omitted), disc. rev. denied, 310 N.C. 309, 312 S.E.2d 652 (1984).\nB. Analysis\nUndisputed evidence from the record shows plaintiff\u2019s preexisting right knee injury was \u201caggravated\u201d by the 31 January 2000 accident. Plaintiff was working full-time as a custodian for Richmond Community College while undergoing treatment for her right knee. Her position required \u201cclimbing stairs, bending, stopping, and prolonged standing and walking, all of which were in excess of her restrictions.\u201d Plaintiff continued working until her accident in January 2000.\nThe Commission found \u201cplaintiff\u2019s condition stabilized until she slipped at work on an ink pen [in June 1997] and suffered a patella sprain to the right knee\u201d and after treatment \u201cthe right knee pain resolved . . . .\u201d However, after the 31 January 2000 accident, the Commission found: (1) \u201c[p]laintiff used her left leg to compensate for her right knee, and would use her left leg to pull up her right leg when climbing stairs;\u201d (2) \u201cplaintiff could not favor her right knee by relying on her left knee;\u201d and (3) \u201cDr. Oakley, the treating physician for both knee injuries, . . . opined that the [January] 2000 left knee injury was the straw that broke . . . that put her over the edge.\u201d\nPlaintiff admitted the aggravation of injuries to her right knee after the 31 January 2000 accident: \u201cWell, it\u2019s got worse. It\u2019s got more painful from \u2014 I guess, from having to switch back and forth on legs like I have to do.\u201d She testified her right knee worsened after the surgery on her left knee: \u201c[I]t wasn\u2019t long after the surgery because I was having to use . . . my right knee more, you know. Like I said, to walk and all, I was putting more weight on it, and . . . that\u2019s when my [right] knee really started giving me a lot more problems.\" (emphasis supplied).\nUndisputed evidence shows plaintiff\u2019s previously existing right knee injury was \u201cmaterially accelerated and aggravated\u201d by the 31 January 2000 accident while employed at Richmond Community College. Brown, 129 N.C. App. at 364, 499 S.E.2d at 199. Prior to the accident, plaintiff performed her employment duties and exceeded the work restrictions imposed by her physicians. Plaintiff was unable to physically compensate for her injured right knee as a \u201cnatural consequence\u201d of her accident at Richmond Community College, and its condition worsened. See Roper, 65 N.C. App. at 73, 308 S.E.2d at 488 (\u201cWhen the primary .injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant\u2019s own intentional conduct.\u201d). Richmond Community College \u201caccepted\u201d plaintiff with her pre-existing right knee injury. As her employer at that time, Richmond Community College is liable for the \u201caggravation\u201d of plaintiff\u2019s pre-existing injury.\nPlaintiff relinquished all her claims against Richmond Community College pursuant to the settlement agreement approved by the Commission. As Chairman Lattimore\u2019s dissenting opinion noted, \u201c[p]laintiff should not be permitted to settle with Richmond Community College, then recover from defendants in this case that which would be paid by Richmond Community College but for the settlement agreement.\u201d\nIII. Conclusion\nPlaintiff\u2019s accident on 31 January 2000 is \u201ccompensable,\u201d but not by defendants at bar. The injury to her left knee in 2000 \u201caggravated\u201d her pre-existing right knee injury from 1994, \u201caccelerated\u201d its failure, and led to her eventual total disability. Jernigan, supra \u00a7 12:8, at 138. Additional injury to plaintiff\u2019s right knee was a \u201cnatural consequence\u201d of the accident in the course of her employment with Richmond Community College. Roper, 65 N.C. App. at 73, 308 S.E.2d at 488. As her employer, Richmond Community College accepted plaintiff as it found her with the previously injured right knee. The majorities\u2019 opinions both at the Commission and at this Court erroneously places liability on defendants at bar. That liability rightfully and legally belongs to Richmond Community College. I respectfully dissent.",
        "type": "dissent",
        "author": "Tyson, Judge"
      }
    ],
    "attorneys": [
      "Poisson, Poisson, Bower & Clodfelter, PLLG, by E. Stewart Poisson and Fred D. Poisson, Jr., for plaintiff-appellee.",
      "Cranfill, Sumner & Hartzog, L.L.P, by Jaye E. Bingham and Erin F. Taylor, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "REBECCA TAYLOR, Employee, Plaintiff v. CAROLINA RESTAURANT GROUP, INC., Employer, THE HARTFORD, Carrier, Defendants\nNo. COA04-981\n(Filed 7 June 2005)\nWorkers\u2019 Compensation\u2014 disability \u2014 causation\u2014findings and evidence\nThe Industrial Commission\u2019s findings in a workers\u2019 compensation case are binding on appeal when they are supported by competent evidence, even if the evidence might have supported contrary findings. Here, plaintiff slipped on degreaser and struck her knee on a wall while working at Wendy\u2019s. Defendants contended that the record was entirely devoid of evidence supporting findings that plaintiff would be able to work but for her knee injury and that her failed knee replacement caused her disability (rather than a subsequent injury); however, there was in fact evidence supporting the Commission\u2019s findings.\nJudge Tyson dissenting.\nAppeal by Defendants from Opinion and Award of the North Carolina Industrial Commission entered 2 April 2004. Heard in the Court of Appeals 22 March 2005.\nPoisson, Poisson, Bower & Clodfelter, PLLG, by E. Stewart Poisson and Fred D. Poisson, Jr., for plaintiff-appellee.\nCranfill, Sumner & Hartzog, L.L.P, by Jaye E. Bingham and Erin F. Taylor, for defendant-appellants."
  },
  "file_name": "0532-01",
  "first_page_order": 562,
  "last_page_order": 574
}