{ "id": 8320667, "name": "RONALD C. ROGERS, Plaintiff-Appellant v. SMOKY MOUNTAIN PETROLEUM COMPANY, Employee, FEDERATED INSURANCE COMPANY, Defendant-Appellees", "name_abbreviation": "Rogers v. Smoky Mountain Petroleum Co.", "decision_date": "2005-08-16", "docket_number": "No. COA04-58", "first_page": "521", "last_page": "530", "citations": [ { "type": "official", "cite": "172 N.C. App. 521" } ], "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": "594 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631268 ], "year": 2004, "pin_cites": [ { "page": "448", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/594/0446-01" ] }, { "cite": "163 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920722, 12631268 ], "year": 2004, "pin_cites": [ { "page": "757", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0755-01", "/se2d/594/0446-01" ] }, { "cite": "563 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "150 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081805 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/150/0506-01" ] }, { "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": "116-17" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] }, { "cite": "473 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "12", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914018 ], "year": 1996, "pin_cites": [ { "page": "510", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0507-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "915", "parenthetical": "citations 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": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "532 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "210-11", "parenthetical": "quotations and citation omitted" }, { "page": "213", "parenthetical": "2000" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080920 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "598", "parenthetical": "quotations and citation omitted" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0593-01" ] }, { "cite": "449 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "237" }, { "page": "238" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525497 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "708" }, { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0703-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "470", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "18", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "754" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "year": 2003, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "357 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "320 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728549 ], "year": 1987, "pin_cites": [ { "page": "158-59" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0155-01" ] }, { "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. Lincoln 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. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "463 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "261", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916614 ], "year": 1995, "pin_cites": [ { "page": "541-42", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0538-01" ] }, { "cite": "434 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "656", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520298 ], "year": 1993, "pin_cites": [ { "page": "107", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0103-01" ] }, { "cite": "300 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "901", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521774 ], "year": 1983, "pin_cites": [ { "page": "471", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0468-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 895, "char_count": 20597, "ocr_confidence": 0.763, "pagerank": { "raw": 5.902332822751081e-08, "percentile": 0.36917055782016633 }, "sha256": "913863cf836c9f9cf654f807be94dcffd81f5bdf4c2438bb2301667bdeb00f43", "simhash": "1:b7484fe525875355", "word_count": 3259 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and LEVINSON concur." ], "parties": [ "RONALD C. ROGERS, Plaintiff-Appellant v. SMOKY MOUNTAIN PETROLEUM COMPANY, Employee, FEDERATED INSURANCE COMPANY, Defendant-Appellees" ], "opinions": [ { "text": "BRYANT, Judge.\nRonald C. Rogers (plaintiff) appeals from an Opinion and Award from the Full Commission dated 12 September 2003 denying benefits for his back injury under the North Carolina Workers\u2019 Compensation Act.\nOn 16 May 2001, plaintiff was employed as a duct cleaner for Smoky Mountain Petroleum Company and Federated Insurance Company (defendants). In fulfillment of his job duties as a \u201chelper\u201d on that day, he assisted installers Todd Fountain (Fountain) and Art Hollis (Hollis) in replacing an old furnace with a new heating and air conditioning system. To complete the task, they used a hand truck to move heavier items. Plaintiff testified he felt pain across his back and down his leg as he assumed the weight of the heat pump; however, Fountain and Hollis both testified they noticed no change in his performance, nor did plaintiff mention he had hurt himself.\nAt the time of the alleged injury, plaintiff was receiving treatment for back problems and had discontinued work from a different employer in November 2000 due to low back pain. He began working for defendant in February 2001. On 17 May 2001, one day after the alleged injury, plaintiff received an epidural steroid injection from Dr. Cleveland Thompson. This was one injection in a series of three that had been planned in advance to treat plaintiffs existing back pain. However, during the visit, plaintiff did not mention to Dr. Thompson the alleged injury on the preceding day and, according to Dr. Thompson, plaintiff tolerated the procedure well. On 18 May 2001 plaintiff saw Dr. Terry White, his treating physician, complaining of more intense back pain and attributing the increased pain to having worked two days earlier. On 18 May 2001, Dr. White wrote plaintiff out of work until 24 May 2001. Despite Dr. White\u2019s work release plaintiff returned to work that same day. Plaintiff continued to work with defendant until he was referred by Dr. White to Dr. Keith Maxwell in September 2001 for continued back problems.\nOn 25 May 2001, plaintiff filed a Form 18, thereby initiating his claim against defendants for benefits pursuant to the Workers Compensation Act. Plaintiffs claim was denied by defendants.\nThis matter was heard before a Deputy Commissioner in Asheville on 29 April 2002. The deposition testimony of Dr. Maxwell and Dr. White was taken. After the hearing, on 8 May 2002, the Deputy Commissioner considered Dr. Maxwell\u2019s deposition testimony, in addition to Dr. White\u2019s testimony, to determine whether plaintiff was entitled to receive benefits. By Opinion and Award filed 27 November 2002, the Deputy Commissioner rejected plaintiff\u2019s testimony as not credible and denied plaintiff\u2019s claim concluding plaintiff failed to meet his burden of proving by competent evidence that he sustained a compensable injury on 16 May 2001.\nIn its Opinion and Award dated 12 September 2003, the Full Commission affirmed the Opinion and Award of the Deputy Commission with minor modifications.\nPlaintiff raises five issues on appeal: whether the Commissioner erred in (I) finding plaintiff failed to prove by the greater weight of the evidence that he sustained a work-related back injury on 16 May 2001; (II) finding plaintiff\u2019s pre-existing condition to be a bar to recovery; (III) determining as a matter of law plaintiff failed to meet his burden of proof supported by competent evidence that his back injury resulted from a traumatic incident on 16 May 2001; (IV) determining as a matter of law that plaintiff\u2019s testimony lacked credibility; (V) failing to consider all the competent (and material) evidence of record in making its findings of fact and conclusions of law.\nI\nPlaintiff first argues the Commission erred in finding plaintiff failed to prove by a greater weight of the evidence that he sustained a work-related back injury on 16 May 2001.\nPursuant to N.C. Gen. Stat. \u00a7 97-2(6):\n\u201cInjury\u201d . . . shall mean only injury by accident arising out of and in the course of the employment. . . . With respect to back injuries, however, where injury to the back arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned, \u201cinjury by accident\u201d shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident.\nN.C.G.S. \u00a7 97-2(6) (2003). Our Supreme Court has consistently held that \u201c[o]n appeal from the Industrial Commission, the findings of the Commission are conclusive if supported by competent evidence and when the findings are so supported, appellate review is limited to review of the Commission\u2019s legal conclusions.\u201d Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 471, 300 S.E.2d 899, 901 (1983) (citations omitted). Under the North Carolina Workers\u2019 Compensation Act, an employee seeking benefits \u201cbears the burden of proving every element of compensability.\u201d Gibbs v. Leggett & Platt, 112 N.C. App. 103, 107, 434 S.E.2d 653, 656 (1993) (citation omitted). The degree of proof required of a claimant is the \u201cgreater weight\u201d or the preponderance of the evidence. Phillips v. U.S. Air, 120 N.C. App. 538, 541-42, 463 S.E.2d 259, 261 (1995) (citations omitted). The Court\u2019s \u201cduty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).\nHere, the Commission did not err in finding plaintiff failed to meet his burden of proof to establish that he suffered a back injury resulting from a specific traumatic incident on 16 May 2001. Plaintiff\u2019s testimony revealed several inconsistencies in the medical information he shared with his treating physicians.\nIn assessing plaintiff\u2019s credibility, the Commission made the following pertinent findings of fact:\n2. Plaintiff was employed by defendant. . . since February 1998 as a duct cleaner . . . [plaintiff] occasionally . . . assisted] installing] heating and air conditioning systems. On 16 May 2001, plaintiff was employed as a helper for defendant [to] assist . . . installers [Fountain and Hollis] ... in removing an old furnace and installing a new heating and air conditioning system.\n3. Plaintiff had pre-existing back problems. While working for a different employer, he suffered a back injury in October 1996 and following treatment, was released to return to work in March 1997 with a 5% permanent partial disability rating to his back. Upon his release, plaintiff continued to complain of pain while sitting, and was diagnosed with disc degeneration at L5-S1. Plaintiff returned to work in March 1997, but continued to receive chiropractic treatment.\n4. Plaintiff continued to receive treatment for low back pain into 1998. ... In July 1998, [his treating physician] Dr. Robertson diagnosed plaintiff with probable fibromyalgia. . . .\n5. On 24 November 1999, [after receiving an epidural block to control his back and neck pain] plaintiff [saw] Dr. Terry White, upon referral by Dr. Robertson ... who reviewed an MRI of plaintiff\u2019s lumbar region and diagnosed [him] with fibromyalgia and sacroiliac pain secondary to . . . degenerative disc disease [and prescribed plaintiff with medications]. . . .\n6. Plaintiff continued to receive treatment [and physical therapy] by Dr. Robertson [and] Dr. White throughout 2000[.]\n8. Plaintiff alleges that he injured his back while lowering the new unit [on 16 May 2001 and]... maintains [having] reported the incident to his supervisor, Sammy Parker on 18 May 2001. However, both [Fountain and Hollis] testified that plaintiff did not mention an injury to them . . . [on] 16 May 2001, nor did they notice any change in plaintiffs physical activities during the day.\n9. There is no mention in Dr. Thompson\u2019s report of a work-related injury [on 17 May 2001, when plaintiff went to receive a previously scheduled epidural injection from him.]\n11. Plaintiff continued to work for defendant. . . doing primarily light duty. On 4 June 2001, Dr. Robertson restricted plaintiff to lifting no more'than 50 pounds due to plaintiffs continuing complaints of back pain.\n12. On 7 September 2001, plaintiff [saw Dr. Maxwell] for evaluation and treatment upon referral from Dr. White. Plaintiff did not inform Dr. Maxwell that he had been undergoing treatment for back pain prior to [16 May 2001], nor did Dr. Maxwell receive any medical records of plaintiffs prior back treatment. In addition, Dr. Maxwell\u2019s notes indicate that plaintiff informed him that he had been out of work since May 2001 despite information to the contrary in Dr. Robertson\u2019s treatment notes of June 2001.\n\u201cThe Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness\u2019s testimonyf.]\u201d Faison v. Allen Canning Co., 163 N.C. App. 755, 757, 594 S.E.2d 446, 448 (2004) (quotation omitted). In the instant case, plaintiff\u2019s statements to both Drs. White and Maxwell, when compared to plaintiff\u2019s recorded history of treatment for back problems, cast serious doubt on whether a work-related injury occurred as plaintiff represented. The findings of fact as determined by the Commission are supported by competent evidence. We overrule this assignment of error.\nII\nPlaintiff next argues the Commission erred in finding his preexisting condition to be a bar to recovery.\nPlaintiff must prove a work-related accident was a causal factor [of his injury] by a \u201cpreponderance of the evidence.\u201d Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158-59, 357 S.E.2d 683, 685 (1987). \u201cAlthough medical certainty is not required, an expert\u2019s \u2018speculation\u2019 is insufficient to establish causation\u201d between a pre-existing condition and a work-related injury. Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003). Our Supreme Court has held:\n(1) [A]n employer takes the employee as he finds her with all her pre-existing infirmities and weaknesses. (2) When a pre-existing, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease 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. (3) On the other hand, when a pre-existing, nondisabling, non-job-related disease or infirmity eventually causes an incapacity for work without any aggravation or acceleration of it by a compensable accident or by an occupational disease, the resulting incapacity so caused is not compensable. . . .\nMorrison v. Burlington Indus., 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981) (emphasis added).\nAs found by the Commission, plaintiff had pre-existing back problems, due to a 1996 workplace injury with a former employer. In 1999, plaintiff was diagnosed with fibromyalgia and sacroiliac pain due to degenerative disease. Through the year, plaintiff received pain treatment and physical therapy, including the series of epidural injections plaintiff was undergoing at the time of the alleged injury on 16 May 2001. Plaintiffs testimony of an injury by accident on 16 May 2001 was not supported by other competent evidence. The expert medical testimony failed to establish plaintiffs current back problem was either caused or aggravated by an accident or specific traumatic work-related event. This assignment of error is overruled.\nIll\nPlaintiffs third assignment of error is substantially related to his first two arguments. Plaintiff contends the Commission erred in determining as a matter of law that no competent evidence supports a conclusion that plaintiffs back injury occurred as a result of a traumatic incident on 16 May 2001.\nPlaintiff argues the Commission improperly concluded that in order for back injuries to be compensable there must be a specific traumatic incident that occurred at a cognizable time and that back injuries occurring gradually are not compensable. We disagree.\nPlaintiff relies on Fish v. Steelcase to support his argument that if he shows his injury was caused by an event occurring within a \u201cjudicially cognizable\u201d period, and is not simply a gradual deterioration, then a work-related compensable back injury exists. Fish v. Steelcase, Inc., 116 N.C. App. 703, 708, 449 S.E.2d 233, 237 (1994). In Fish, the plaintiff testified he felt a pull in his back while moving a desk at work, thought he would be fine, and continued working. Later the pain worsened, and finally his condition was diagnosed as a herniated disc. The Industrial Commission concluded plaintiff suffered no injury as a matter of law, holding plaintiff had failed to show a traumatic incident had occurred. This Court reversed the Industrial Commission and held the event causing the injury must be \u201cjudicially cognizable\u201d, but the event does not have to be \u201cascertainable on an exact date.\u201d Fish, 116 N.C. App. at 709, 449 S.E.2d at 238. The case sub judice is distinguishable from Fish in that the actual date of the alleged injury is not in issue. Rather it is plaintiff\u2019s credibility as it relates to his testimony about the events that caused his back injury as well as the competency of his medical causation evidence that is at issue.\nDespite the Commission\u2019s broad ability to determine its factual findings, \u201cwhere the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 598, 532 S.E.2d 207, 210-11 (2000) (quotations and citation omitted). \u201cHowever, when such expert opinion testimony is based merely upon speculation and conjecture, it can be of no more value than that of a layman\u2019s opinion. As such, it is not sufficiently reliable to qualify as competent evidence on issues of medical causation.\u201d Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000) (citations omitted). In this case, the causation of plaintiff\u2019s particular back injury is at issue. Therefore, only an expert can render an opinion regarding causation. The two medical experts who were asked to testify in the case failed to present clear evidence as to the cause of plaintiff\u2019s back injury. Dr. White, plaintiff\u2019s treating physician, stated he \u201cassumed plaintiff\u2019s back pain had come from moving the unit at work.\u201d Dr. White also said he observed muscle spasms on both sides of plaintiff\u2019s back on 18 May 2001 and that \u201che had never seen the spasms, especially visible [muscle] spasms until that time.\u201d On cross-examination, Dr. White testified that he had observed plaintiff \u201chavfing] some spasm[s] in his back intermittently\u201d prior to 18 May 2001. Meanwhile, Dr. Maxwell stated, and the Commission found:\nOn 7 September 2001. . . plaintiff did not inform Dr. Maxwell that he had been undergoing treatment for back pain prior to the alleged work-related injury. ... In addition, Dr. Maxwell\u2019s notes indicate [d] that the plaintiff informed [Dr. Maxwell] that he had been out of work since May 2001, despite information to the contrary in . . . treatment notes of June 2001.\nUnder these circumstances, the evidence regarding the causation of plaintiff\u2019s alleged back injury amounts to little more than speculation. Since the medical evidence of causation here is not competent evidence, the Commission\u2019s finding of fact and conclusion that plaintiff failed to prove he sustained a work-related injury to his back on 16 May 2001 was proper. Therefore, this assignment of error is overruled.\nIV&V\nIn his fourth and fifth assignments of error, plaintiff contends the Commission erred in failing to consider all the competent (and material) evidence of record in making its findings of fact and conclusions of law and determining as a matter of law that plaintiffs testimony lacked credibility.\nPlaintiff accurately asserts the Commission must consider the evidence presented to it. \u201cBefore making findings of fact, the Industrial Commission must consider all of the evidence. The Industrial Commission may not discount or disregard any evidence, but may choose not to believe the evidence after considering it.\u201d Weaver v. Am. Nat\u2019l Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12 (1996) (citation omitted); see also Lineback v. Wake County Bd. of Comm\u2019rs, 126 N.C. App. 678, 486 S.E.2d 252 (1997). The Industrial Commission \u201cis the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject a witnesses] testimony entirely if warranted by disbelief of that witness.\u201d Lineback, 126 N.C. App. at 680, 486 S.E.2d at 254 (citing Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993)).\nThis Court in Adams made it clear that the Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible. Requiring the Commission to explain its credibility determinations and allowing the Court of Appeals to review the Commission\u2019s explanation of those credibility determinations would be inconsistent with our legal system\u2019s tradition of not requiring the fact finder to explain why he or she believes one witness' over another or believes one piece of evidence is more credible than another.\nDeese v. Champion Int'l Corp., 352 N.C. 109, 116-17, 530 S.E.2d 549, 553 (2000); see also Sheehan v. Perry M. Alexander Constr. Co., 150 N.C. App. 506, 563 S.E.2d 300 (2002).\nPlaintiff also argues the Commission erred in finding his testimony lacked credibility as a matter of law. Just as the Commission is not required to make specific findings on the credibility of evidence, \u201c[t]he Commission is not required ... to find facts as to all credible evidence. That requirement would place an unreasonable burden on the Commission. Instead the Commission must find those facts which are necessary to support its conclusions of law.\u201d Peagler, 138 N.C. App. at 602, 532 S.E.2d at 213 (2000) (quotation and citation omitted).\nTherefore, we find the following conclusion of the Commission to be supported by its findings of fact: \u201cPlaintiff has failed to carry the burden of proof to establish by competent evidence that he suffered a back injury resulting from a specific traumatic incident on 16 May 2001 . . . [and his] testimony regarding the alleged injury is not accepted as credible.\u201d Accordingly, plaintiff\u2019s assignments of error are overruled.\nAffirmed.\nJudges TYSON and LEVINSON concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Gary A. Dodd for plaintiff-appellant.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Sharon E. Dent, for defendant-appellees." ], "corrections": "", "head_matter": "RONALD C. ROGERS, Plaintiff-Appellant v. SMOKY MOUNTAIN PETROLEUM COMPANY, Employee, FEDERATED INSURANCE COMPANY, Defendant-Appellees\nNo. COA04-58\n(Filed 16 August 2005)\n1. Workers\u2019 Compensation\u2014 back injury \u2014 specific traumatic incident \u2014 evidence not sufficient\nThe Industrial Commission\u2019s finding that a workers\u2019 compensation plaintiff had not met his burden of establishing that he suffered a back injury from a specific traumatic incident was supported by the evidence where there were inconsistencies in the medical information plaintiff shared with his treating physicians.\n2. Workers\u2019 Compensation\u2014 back injury \u2014 pre-existing condition\nThe Industrial Commission did not err by finding that a preexisting condition barred a workers\u2019 compensation plaintiff from recovery where the expert medical testimony failed to establish that plaintiff\u2019s current back problem was either caused or aggravated by an accident or specific traumatic incident.\n3. Workers\u2019 Compensation\u2014 back injury \u2014 causation\u2014 speculation\nThe Industrial Commission\u2019s finding and conclusion that a workers\u2019 compensation plaintiff failed to prove that he sustained a work-related injury to his back was proper where the evidence of causation was little more than speculation.\n4. Workers\u2019 Compensation\u2014 credibility \u2014 findings\nThe Industrial Commission must consider all of the evidence presented to it in a workers\u2019 compensation case, but is the sole judge of credibility, is not required to make specific findings on credibility, and is not required to find facts as to all credible evidence. The Commission instead must find those facts necessary to support its conclusion, and did not err here.\nAppeal by plaintiff from an Opinion and Award dated 12 September 2003 by the Full Commission. Heard in the Court of Appeals 23 September 2004.\nGary A. Dodd for plaintiff-appellant.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Sharon E. Dent, for defendant-appellees." }, "file_name": "0521-01", "first_page_order": 551, "last_page_order": 560 }