{ "id": 8436982, "name": "FRANK P. FLYNN, Employee, Plaintiff v. EPSG MANAGEMENT SERVICES, Employer, RSKCO, Carrier, Defendants", "name_abbreviation": "Flynn v. EPSG Management Services", "decision_date": "2005-07-05", "docket_number": "No. COA04-1447", "first_page": "353", "last_page": "358", "citations": [ { "type": "official", "cite": "171 N.C. App. 353" } ], "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": "541 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "517 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "391" }, { "page": "391" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11144668 ], "weight": 2, "pin_cites": [ { "page": "367" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0363-01" ] }, { "cite": "341 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695541, 4694998, 4703717, 4699646 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0202-02", "/nc/316/0202-03", "/nc/316/0202-04", "/nc/316/0202-01" ] }, { "cite": "336 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519976 ], "year": 1985, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0159-01" ] }, { "cite": "468 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "122 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916022 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0143-01" ] }, { "cite": "581 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "783", "parenthetical": "citing Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 468 S.E.2d 269 (1996)" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187488 ], "year": 2003, "pin_cites": [ { "page": "348", "parenthetical": "citing Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 468 S.E.2d 269 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0341-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "570 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "124", "parenthetical": "citation omitted" }, { "page": "124", "parenthetical": "\"As long as the Commission's findings are supported by competent evidence of record, they will not be overturned on appeal.\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250443 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "472", "parenthetical": "citation omitted" }, { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0469-01" ] }, { "cite": "590 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "465", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916550 ], "year": 2004, "pin_cites": [ { "page": "297", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0292-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(20)" }, { "page": "(20)" }, { "page": "(13)" }, { "page": "(13)" }, { "page": "(13)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 609, "char_count": 11015, "ocr_confidence": 0.758, "pagerank": { "raw": 3.0608853620953694e-07, "percentile": 0.8566188607907257 }, "sha256": "8372a652c6ce197c27b065c9414fb6708d9e90e6f6209e33b367716ed70b6486", "simhash": "1:ed3369edb47a4ae4", "word_count": 1745 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and BRYANT concur." ], "parties": [ "FRANK P. FLYNN, Employee, Plaintiff v. EPSG MANAGEMENT SERVICES, Employer, RSKCO, Carrier, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nEPSG Management Services and its insurance carrier, RSKCO, (collectively, \u201cdefendants\u201d) appeal the opinion and award of the Full Commission of the North Carolina Industrial Commission (\u201cthe Commission\u201d) which concluded Frank P. Flynn (\u201cplaintiff\u2019) suffered a compensable occupational disease. We affirm.\nI. Background\nFrom April through July 2001, plaintiff worked as a camera operator on a Showtime Entertainment project entitled, \u201cGoing to California.\u201d On average, he worked twelve hours a day, five to six days per week. Plaintiff utilized a hand-held camera about twenty-five to thirty percent of the time. He would pick the camera up and rest it on his shoulder while moving and contorting his body to obtain the correct filming angle. The camera weighed thirty to forty-five pounds.\nOn 20 July 2001, plaintiff reached across his body with his left arm to pick up his camera. As he lifted the camera, plaintiff experienced a sudden, piercing pain in his left arm. Plaintiff described the pain as stabbing initially, followed by numbness. Prior to 20 July 2001, plaintiff had noted some tightness and stiffness in his shoulder. However, plaintiff presumed it was caused by fatigue from the long hours he worked.\nPlaintiff sought medical attention from his primary physician, Dr. Alan Jackson (\u201cDr. Jackson\u201d), on 30 July 2001 and complained of left shoulder pain. Plaintiff provided Dr. Jackson a history that he had used his left shoulder a \u201cbit too much these past few weeks shooting a movie.\u201d Plaintiff was sent for a shoulder x-ray and an MRI was later performed on 29 August 2001. After receiving the MRI results, Dr. Jackson scheduled an appointment for plaintiff with Dr. David A. Esposito (\u201cDr. Esposito\u201d) on 13 September 2001. At that time, Dr. Jackson\u2019s diagnosis of plaintiff\u2019s complaint was distal supraspinatus tendonosis.\nPlaintiff remained out of work during this time. His first appointment with Dr. Esposito was on 12 October 2001. At that time, Dr. Esposito noted plaintiff to be \u201ctender over the front part of his shoulder.\u201d Dr. Esposito felt plaintiff would benefit from arthroscopic surgery. Dr. Esposito further indicated that he restricted plaintiff to light duty jobs with no use of the left arm, if such work was available.\nOn 6 December 2001, Dr. Esposito performed arthroscopic surgery on plaintiff. Dr. Esposito located a tear in plaintiffs rotator cuff and also noted plaintiff had synovitis, i.e. inflammation of the joint lining. Dr. Esposito testified that the synovitis was \u201cmost likely reactive in nature\u201d from the 20 July 2001 injury. Plaintiff remained out of work and his condition did not improve. Plaintiff underwent a separate treatment for his ailing shoulder by Dr. Esposito.\nPlaintiff made efforts to find other employment which would not require the use of his left shoulder. He enjoyed little success. At the time of the injury, plaintiff was fifty-six years old with a high school education. The majority of his career was spent in the motion picture industry.\nPlaintiff filed a Form 18 on 27 December 2001 describing his injury as \u201cleft shoulder.\u201d An amended Form 18 was filed on 2 July 2002, alleging \u201ctrauma in the employment pursuant to N.C.G.S. 97-53(20)\u201d and adding \u201csynovitus\u201d as a listed injury or occupational disease. \u201cSynovitus, caused by trauma in employment\u201d is enumerated as an occupational disease in N.C. Gen. Stat. \u00a7 97-53(20).\nRSKCO denied plaintiffs claim asserting, \u201cMr. Flynn did not sustain a compensable injury by accident_\u201d and the case was assigned for hearing. A pretrial order was filed declaring the issues to be determined, in part whether plaintiff sustained: (1) a compensable injury by accident under N.C. Gen. Stat. \u00a7 97-2(2); and (2) an occupational disease as defined by N.C. Gen. Stat. \u00a7 97-53(20).\nThe case was heard before the deputy commissioner on 24 September 2002. The deputy commissioner filed an opinion and award on 28 January 2003 finding plaintiffs rotator cuff tear was an occupational disease. The order was later amended on 10 February 2003 to change plaintiffs average weekly wage. Defendants appealed to the Commission and the case was heard on 8 July 2003. The Commission ordered the record to be reopened on 9 July 2003 for plaintiff to undergo a functional capacity evaluation.\nOn 3 June 2004, the Commission filed its opinion and award affirming the deputy commissioner\u2019s opinion and award that plaintiff suffers from a compensable occupational disease. The Commission\u2019s opinion and award included the following stipulations by the parties:\nThe issues before the Full Commission are: (i) whether plaintiff sustained a compensable injury by accident arising out of and in the course of his employment with defendant-employer on 20 July 2001; (ii) whether plaintiff contracted an occupational disease arising out of and in the course of his employment with defendant-employer; and (iii) if so, what compensation, if any, is due plaintiff.\nAn amendment to the opinion and award was filed on 14 June 2004 to change plaintiffs average weekly wage. Defendants appeal.\nII. Issue\nThe issue on appeal is whether competent evidence supports the Commission\u2019s findings of fact and conclusions of law that plaintiff suffered a compensable occupational injury.\nIII. Standard of Review\nThe appropriate appellate standard of review in appeals arising from decisions by the Commission is well established. \u201cIn reviewing an order and award of the Industrial Commission in a case involving workmen\u2019s compensation, [an appellate court] is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings.\u201d Moore v. Federal Express, 162 N.C. App. 292, 297, 590 S.E.2d 461, 465 (2004) (quotation omitted). \u201cAs long as the Commission\u2019s findings are supported by competent evidence of record, they will not be overturned on appeal.\u201d Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002) (citation omitted).\nAlthough on appeal the Commission\u2019s findings of fact are conclusive where supported by competent evidence, \u201cfindings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them.\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (internal citations and quotations omitted). Further, \u201cthe Industrial Commission\u2019s conclusions of law are reviewable de novo.\u201d Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341, 348, 581 S.E.2d 778, 783 (2003) (citing Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 468 S.E.2d 269 (1996)).\nIV. Compensable Occupational Iniurv\nDefendants argue the Commission erred in determining plaintiff\u2019s injury qualified as compensable occupational injury. We disagree.\nAn occupational disease is compensable if the disease \u201cis proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.\u201d N.C. Gen. Stat. \u00a7 97-53(13) (2003); Thomason v. Fiber Indus., 78 N.C. App. 159, 161, 336 S.E.2d 632, 633 (1985), disc. rev. denied, 316 N.C. 202, 341 S.E.2d 573 (1986).\nThere are three elements which are necessary for the plaintiff to prove in order to show the existence of a compensable occupational disease under N.C. Gen. Stat. \u00a7 97-53(13): (1) the disease must be characteristic of persons engaged in a particular trade or occupation in which the plaintiff is engaged; (2) the disease must not be an ordinary disease of life to which the public is equally exposed; and (3) there must be a causal connection between the disease and the plaintiff\u2019s employment.\nJarvis v. Food Lion, Inc., 134 N.C. App. 363, 367, 517 S.E.2d 388, 391 (citing Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)), disc. rev. denied, 351 N.C; 356, 541 S.E.2d 139 (1999).\nPlaintiff proffered substantial evidence that his injury resulted from his employment as a cameraman. Dr. Esposito testified that plaintiff\u2019s job, which involved significant overhead activity, predisposed plaintiff to, and placed him at a greater risk for, rotator cuff and shoulder problems, than the general public. Dr. Esposito stated that plaintiff\u2019s job as a cameraman required him to contort his body into different positions to get the correct camera angle, operate and lift over his head cameras of varying weight, and work long hours. These factors differentiated plaintiff\u2019s employment from that of the general population. Dr. Esposito further opined that because of the constant overhead activity, the incident on 20 July 2001 was \u201cthe final straw that broke the camel\u2019s back.\u201d\nBased on our review of the record, depositions, and transcripts, competent evidence exists to support the Commission\u2019s conclusion of law that: (1) \u201c[p]laintiff developed a rotator cuff tear and further medical complications due to causes and conditions characteristic of and peculiar to his employment. . . and (2) \u201c[t]his rotator cuff tear and further medical complications is not an ordinary disease of life to which the general public not so employed is equally exposed, and is, therefore, an occupational disease.\u201d See Jarvis, 134 N.C. App. at 367, 517 S.E.2d at 391 (three elements necessary to show a com-pensable occupational disease under N.C. Gen. Stat. \u00a7 97-53(13)); Rackley, 153 N.C. App. at 472, 570 S.E.2d at 124 (\u201cAs long as the Commission\u2019s findings are supported by competent evidence of record, they will not be overturned on appeal.\u201d). Defendants\u2019 assignment of error is overruled.\nV. Conclusion\nPlaintiff\u2019s injury resulted from causes and conditions characteristic of his employment as a cameraman. The injury is not an ordinary disease of life to which the general public is exposed. Competent evidence in the record supports the Commission\u2019s findings of fact and conclusions of law. The Commission\u2019s opinion and award is affirmed.\nAffirmed.\nJudges MCCULLOUGH and BRYANT concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Leah L. King, for plaintiff-appellee.", "Hedrick & Morton, L.L.P., by G. Grady Richardson, Jr. and Stephen E. Coble, for defendants-appellants." ], "corrections": "", "head_matter": "FRANK P. FLYNN, Employee, Plaintiff v. EPSG MANAGEMENT SERVICES, Employer, RSKCO, Carrier, Defendants\nNo. COA04-1447\n(Filed 5 July 2005)\nWorkers\u2019 Compensation\u2014 compensable occupational injury\u2014 cameraman\u2019s shoulder\nAn injury to a cameraman\u2019s shoulder resulted from causes and conditions characteristic of his employment as a cameraman, and competent evidence in the record supported the Industrial Commission\u2019s award of workers\u2019 compensation benefits. The injury is not an ordinary disease of life to which the general public is exposed.\nAppeal by defendants from opinion and award entered 3 June 2004 and amendment to opinion and award entered 14 June 2004 by Commissioner Thomas J. Bolch for the North Carolina Industrial Commission. Heard in the Court of Appeals 15 June 2005.\nLeah L. King, for plaintiff-appellee.\nHedrick & Morton, L.L.P., by G. Grady Richardson, Jr. and Stephen E. Coble, for defendants-appellants." }, "file_name": "0353-01", "first_page_order": 383, "last_page_order": 388 }