{ "id": 8353158, "name": "AMY TERASAKA, Plaintiff v. AT&T, Defendant", "name_abbreviation": "Terasaka v. AT&T", "decision_date": "2005-12-06", "docket_number": "No. COA04-1572", "first_page": "735", "last_page": "745", "citations": [ { "type": "official", "cite": "174 N.C. App. 735" } ], "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": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "opinion_index": -1, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "561 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127792 ], "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0338-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "citations omitted" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "530 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "876" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 243", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079288 ], "year": 2000, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0243-01" ] }, { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "749" } ], "opinion_index": 0 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "year": 1997, "pin_cites": [ { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "weight": 2, "pin_cites": [ { "page": "765", "parenthetical": "citations omitted" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "603 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "558", "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 1 }, { "cite": "166 N.C. App. 563", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412225 ], "year": 2004, "pin_cites": [ { "page": "573", "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/nc-app/166/0563-01" ] }, { "cite": "610 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 1 }, { "cite": "359 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797423 ], "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0403-01" ] }, { "cite": "64 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "268" } ], "opinion_index": 1 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "year": 1951, "pin_cites": [ { "page": "376" } ], "opinion_index": 1, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "543 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "351 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155778, 1155688, 1155729, 1155570, 1155866 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/351/0473-01", "/nc/351/0473-05", "/nc/351/0473-04", "/nc/351/0473-02", "/nc/351/0473-03" ] }, { "cite": "524 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "371" } ], "opinion_index": 1 }, { "cite": "136 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239575 ], "pin_cites": [ { "page": "354" } ], "opinion_index": 1, "case_paths": [ "/nc-app/136/0351-01" ] }, { "cite": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "196, 200" } ], "opinion_index": 1 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "pin_cites": [ { "page": "468, 475" } ], "opinion_index": 1, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 1 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "52" } ], "opinion_index": 1, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(13)" } ], "opinion_index": 1 }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "365" }, { "page": "365" }, { "page": "369-70" } ], "opinion_index": 1 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "93" }, { "page": "101" } ], "opinion_index": 1, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "463" } ], "opinion_index": 1 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "6" } ], "opinion_index": 1, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "565 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "355 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219949, 220049, 219988, 220057, 219994 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/355/0747-05", "/nc/355/0747-01", "/nc/355/0747-03", "/nc/355/0747-02", "/nc/355/0747-04" ] }, { "cite": "606 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "399" }, { "page": "399-400", "parenthetical": "affirming award of total disability for closed period based on the Commission's finding that the plaintiff, during that period, made unsuccessful efforts to find suitable work" } ], "opinion_index": 1 }, { "cite": "167 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413338 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "672" }, { "page": "673" } ], "opinion_index": 1, "case_paths": [ "/nc-app/167/0658-01" ] }, { "cite": "561 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "302" }, { "page": "302" } ], "opinion_index": 1 }, { "cite": "149 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127792 ], "weight": 2, "pin_cites": [ { "page": "342" }, { "page": "343-44" } ], "opinion_index": 1, "case_paths": [ "/nc-app/149/0338-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 1 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "internal citations omitted" }, { "page": "457" } ], "opinion_index": 1 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "weight": 2, "pin_cites": [ { "page": "765" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0762-01" ] } ], "analysis": { "cardinality": 998, "char_count": 22371, "ocr_confidence": 0.749, "pagerank": { "raw": 3.923780523329119e-07, "percentile": 0.9027300433345727 }, "sha256": "d5fb1cf9d2d996935353f743a349c1c4edf027cf818c928d3c9332048ec52915", "simhash": "1:dcc404984f8778c6", "word_count": 3640 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge GEER dissents with a separate opinion." ], "parties": [ "AMY TERASAKA, Plaintiff v. AT&T, Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nAT&T (\u201cdefendant\u201d) appeals the award of the North Carolina Industrial Commission (the \u201cCommission\u201d) granting benefits to Amy Terasaka (\u201cplaintiff\u2019) based on a diagnosis of carpal tunnel syndrome. We reverse.\nOn 14 February 2002, plaintiff filed a Form 18 alleging she developed pain in both of her hands on or about 17 October 2001 while typing during an intense three-day customer service representative training course. In response, defendant filed a Form 61 denying plaintiffs claim. At the time, plaintiff was in her early forties and had consistently worked in the secretarial field throughout her adult life.\nOn 30 December 1996, plaintiff started her employment with defendant in New Jersey as a senior records clerk. Her duties included typing approximately four hours of every eight hour workday. On 1 February .1997, she transferred to a different division in the New Jersey office, retained her position as a senior records clerk, and spent approximately six hours of each ten hour workday typing.\nOn 13 September 2001, plaintiff transferred to the Gastonia, North Carolina office of defendant to become a customer service representative. On or about that date, she started a three week customer service representative training course. Two days into the course, she contracted the flu and missed the remainder of the course. She then undertook an intensive three day course to learn what she had missed. During this course, she typed approximately eight hours a day for all three days. Toward the end of the course, on or about 17 October 2001, she felt tingling and numbness in her hands. Shortly thereafter, she started work as a customer service representative.\nOn 23 October 2001, she experienced numbness in both hands with phin extending from her hands to her shoulders, which prevented her from working. She visited several doctors and was eventually seen by Dr. David S. Baker (\u201cDr. Baker\u201d) on 13 March 2002. After examining plaintiff and reviewing her nerve conduction tests, Dr. Baker diagnosed plaintiff with carpal tunnel syndrome in both wrists. He injected cortisone into her wrists, and her symptoms briefly subsided but returned. On 24 April 2002, Dr. Baker performed surgery on her left wrist to release pressure on the nerve in the carpal tunnel. On 15 May 2002, plaintiff reported relief of symptoms in her left hand, and on 27 June 2002, Dr. Baker performed surgery on her right wrist. On 25 September 2002, plaintiff reported severe pain in both hands and wrists, which prevented her from using her hands for approximately two to three weeks. Dr. Baker\u2019s exam indicated tendinitis of the wrists, and he injected both her wrists with cortisone at the location of the pain.\nOn 9 October 2003, after returning to work for four days, plaintiff reported severe pain and an inability to use her hands for normal activities. Dr. Baker stated he could not explain her level of pain and dysfunction on any medical or scientific basis and told her there were no other diagnostic or treatment options in his specialty that would benefit her. He further opined that typing is a repetitive activity that could cause carpal tunnel syndrome. However, he could only say plaintiff\u2019s typing might be an influencing factor and could not quantify to what degree typing was the cause as compared to other possible factors.\nTwice in December 2002, plaintiff saw Dr. Raymond C. Sweet (\u201cDr. Sweet\u201d), a neurosurgeon. Dr. Sweet\u2019s physical examination of plaintiff\u2019s hands and wrists indicated some type of nerve condition. However, her nerve conduction tests indicated normal functioning. He stated he had never seen a patient with normal nerve conduction tests have positive indicators for a nerve' condition based on physical examination and would not recommend another operation when presented with normal nerve conduction tests. He stated repetitive hand motions, such as typing six hours out of a ten hour workday, created a greater risk of developing carpal tunnel syndrome, and carpal tunnel syndrome could develop in certain individuals in as little as three to four months. Moreover, Dr. Sweet stated that in his medical opinion plaintiff\u2019s work history of typing was a significant factor in her developing carpal tunnel syndrome. He stated that with the exception of the nerve conduction tests, her physical exam signs and history were consistent with her complaints of pain and that plaintiff likely damaged the median nerve running through her wrist. Additionally, he noted if her condition had not changed since her visits to him in December 2002, it would be unlikely she would be able to return to a job that involves repetitive hand and wrist motion.\nAfter a 19 May 2004 hearing on this matter, the Commission concluded: (1) \u201cplaintiff developed bilateral carpal tunnel syndrome, an occupational disease, due to causes and conditions characteristic of and peculiar to her employment that was not an ordinary disease of life to which the general public is equally exposed\u201d; (2) plaintiff proved \u201cthat she was temporarily totally disabled from 13 March 2002, less four days, and continuing thereafter\u201d; (3) \u201c[p]laintiff is entitled to receive total disability benefits in the weekly amount of $502.36 from 13 March 2002, less four days, and continuing until further order of the [Commission]\u201d; and (4) \u201cdefendants shall pay all medical expenses incurred for the treatment of her occupational injuries, including those arising from future treatment by a suitable physician addressing pain disorders].]\u201d Defendant appeals.\nDefendant raises several assignments of error on appeal. We initially address whether plaintiff met her burden of proving disability. Because we hold that plaintiff failed to meet her burden, we do not address defendant\u2019s remaining assignments of error.\nTo obtain workers\u2019 compensation benefits, a claimant bears the burden of proving both the existence and the extent of disability. Saums v. Raleigh Community Hospital, 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997). Specifically, in the absence of a Form 21 or other admission of liability for compensation, the employee bears the burden of proving she is disabled. Demery v. Converse, Inc., 138 N.C. App. 243, 249, 530 S.E.2d 871, 876 (2000). An employee injured in the course of her employment is disabled under the Act if the injury results in an \u201cincapacity ... to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.\u201d N.C. Gen. Stat. \u00a7 97-2(9) (2003). An employee may meet the burden of showing 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.\nRussell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (citations omitted) (emphasis added).\nThe determination that an employee is disabled is a conclusion of law that must be based upon findings of fact supported by competent evidence. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). In support of its conclusion that plaintiff is temporarily totally disabled, the Commission made the following pertinent findings of fact:\n4. . . . Plaintiff also saw Dr. David Baker, who first examined her on 13 March 2002, when plaintiff presented with severe hand and arm pain with numbness and tingling. ... At that point, Dr. Baker did not believe plaintiff could work and took her out of work on 13 March 2002.\n5. On 25 September 2002, plaintiff complained of severe pain in both hands and wrists.... [Doctor Baker] excused her from work until 9 October 2002. ... On 20 November 2002, Dr. Baker believed that there was no more he could offer her in terms of treatment. ... He was unable to make any recommendations about her future employment.\n7. . . . [Dr. Sweet] last saw plaintiff on 23 December 2002. ... Dr. Sweet was of the opinion that plaintiff could not return to any job which required repetitive motion of the hands and wrists.\n10. ... As of 13 March 2002, plaintiff was unable to work in any capacity due to her carpal tunnel syndrome and, except for four days when she later attempted to return to work, plaintiff remained disabled.\n11. In that plaintiff has continued to experience debilitating symptoms that Dr. Baker refused to address, it appears that plaintiff should be seen by a doctor qualified to diagnose pain disorders. There is no evidence that plaintiff has reached maximum medical improvement.\n(Emphasis added).\nFinding of fact 10 is supported by competent evidence because plaintiff testified as follows:\nQ: . . . [C]an you return to your past work that involved so much typing [?]\nA: No, sir, I can\u2019t. ... I won\u2019t be able to use my hands ever.\nQ: Besides typing, do you have any other problems using your hands?\nA: My activity of daily living is severely compromised. . . . My husband has to dress me, has to turn knobs for me, meaning water faucets, door handles. He has taken on all of the household duties, laundry, vacuuming, feeding us, grocery shopping, driving. ... I can\u2019t really do much of anything.\nQ: How about driving a car?\nA: No. ... I have hand cramps inconsistently. I would be afraid of causing injury to myself or others.\nQ: But are you able to use your hands on a regular basis for a job?\nA: No.\nBecause finding 10 is supported by competent evidence it is conclusive on appeal. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Since the Commission conclusively found \u201cplaintiff was unable to work in any capacity due to her carpal tunnel syndrome,\u201d the only Russell prong applicable on these facts is the first prong. The dissent contends we have improperly applied the Russell test by holding \u201cthat because plaintiff Amy Terasaka failed to offer medical evidence meeting the first method of proof, she has necessarily failed to prove total disability.\u201d The dissent misconstrues our holding. While we agree that a plaintiff can ordinarily prove disability under any of the four Russell prongs, see Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 342, 561 S.E.2d 298, 302, on these particular facts, the Commission\u2019s finding 10 is conclusively established and precludes us from considering any of the other Russell prongs.\nThus, under the only Russell prong applicable on these facts, in order for plaintiff to meet her burden of proving disability, she had to produce medical evidence that she is physically or mentally, as a consequence of the work related injury, incapable of work in any employment. Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. However, the Commission found in finding 7, however, that the medical evidence merely showed \u201cplaintiff could not return to any job which required repetitive motion of the hands and wrists.\u201d This finding does not amount to a finding that plaintiff could not work in any employment. Finding 7 is supported by competent evidence in that Dr. Sweet testified that \u201cit\u2019s unlikely [plaintiff] would be able to return to a job that involves repetitive hand motion and wrist motion\u201d based on his medical analysis. Moreover, we cannot remand for additional findings because the transcripts reveal no medical evidence that could support a finding that plaintiff was incapable of work in any employment. Accordingly, because plaintiff failed to meet her burden of establishing disability under Russell, we hold the Commission erred in concluding that plaintiff \u201cprove [d] that she was temporarily totally disabled from 13 March 2002, less four days, and continuing thereafter.\u201d Furthermore, the Commission\u2019s award based on this conclusion was likewise in error, and we reverse the opinion and award of the Commission.\nReversed.\nJudge ELMORE concurs.\nJudge GEER dissents with a separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "GEER, Judge,\ndissenting.\nI believe that the majority has failed to properly apply the test in Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993) and, therefore, respectfully dissent. As the majority acknowledges, an employee may meet her burden of proving 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.\nId. at 765, 425 S.E.2d at 457 (internal citations omitted). The majority, however, holds that because plaintiff Amy Terasaka failed to offer medical evidence meeting the first method of proof, she has necessarily failed to prove total disability.\nAn employee contending that she is totally disabled is not limited to proving by medical evidence her incapacity to work at any employment. As this Court emphasized in White v. Weyerhaeuser Co., 167 N.C. App. 658, 672, 606 S.E.2d 389, 399 (2005), \u201c[t]he absence of medical evidence does not preclude a finding of disability under one of the other three [Russell] tests.\u201d See also Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 342, 561 S.E.2d 298, 302 (\u201cWhile we agree that plaintiffs medical evidence is insufficient to show disability, we conclude that plaintiff has met his initial burden of production through other evidence.\u201d), disc. review denied, 355 N.C. 747, 565 S.E.2d 193 (2002).\nThe second and third methods of proof under Russell lead to the same conclusion as the first method of proof: that the employee is unable to work in any capacity. The first method establishes that the employee is medically incapable of working, while the second and third methods focus on the vocational component of disability. Under those two methods, an employee is deemed totally disabled because even though the employee may be medically capable of performing work, employers nonetheless will not hire the employee. See White, 167 N.C. App. at 673, 606 S.E.2d at 399-400 (affirming award of total disability for closed period based on the Commission\u2019s finding that the plaintiff, during that period, made unsuccessful efforts to find suitable work); Bridwell, 149 N.C. App. at 343-44, 561 S.E.2d at 302 (holding that even though the medical evidence did not support the Commission\u2019s findings that the plaintiff was restricted from any and all employment, the award of total disability should be affirmed based on findings that the plaintiff had unsuccessfully sought suitable employment). I can find no basis upon which to distinguish White and Bridwell from this case.\nThus, Terasaka was permitted to meet her burden of proving total disability by producing, as she did, \u201cevidlence that [she] is capable of some work, but that [she] has, after a reasonable effort on [her] part, been unsuccessful in [her] effort to obtain employment.\u201d Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. I disagree with the majority\u2019s suggestion that the Commission considered only the first Russell method of proof. Nothing in the opinion and award indicates such a limitation. To the contrary, the Commission specifically found that \u201c[p]rior to the hearing before the deputy commissioner, plaintiff had looked extensively for other types of work and had not received any job offers.\u201d This finding of fact specifically refers to the second method of proof set out in Russell.\nThat finding is in turn supported by Terasaka\u2019s testimony that she had made approximately 500 attempts to find jobs, using the Internet, the newspaper, and the telephone, but that she received no job offers. Defendants challenge the credibility of that testimony and argues that \u201cthe greater weight of the evidence\u201d shows \u2014 despite this testimony\u2014 that Terasaka was not disabled. This argument fails to recognize the appropriate standard of review. The Commission\u2019s findings of fact are conclusive upon appeal if supported by any competent evidence, even if there is evidence to support a contrary finding. Morrison v. Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981). Moreover, on appeal, this Court may not re-iveigh the evidence or assess credibility. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).\nSince the Commission\u2019s finding of fact regarding Terasaka\u2019s job search is supported by competent evidence and since that finding is sufficient to support the conclusion that Terasaka met her burden of proving a total incapacity to earn wages, I would uphold the Commission\u2019s determination that Terasaka is totally disabled. With respect to defendants\u2019 remaining arguments, I do not find them persuasive.\nDefendants argue that the evidence is insufficient to support the Commission\u2019s determination that Terasaka suffered an occupational disease. As our Supreme Court explained in Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), to be considered an occupational disease under N.C. Gen. Stat. \u00a7 97-53(13) (2003), a condition must be:\n(1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be \u201ca causal connection between the disease and the [claimant\u2019s] employment.\u201d\n308 N.C. at 93, 301 S.E.2d at 365 (quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)); see also Booker v. Duke Med. Gtr., 297 N.C. 458, 468, 475, 256 S.E.2d 189, 196, 200 (1979). The Court further held that the first two elements \u201care satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally.\u201d Id. at 93-94, 301 S.E.2d at 365. The causation requirement \u201cis satisfied if the employment \u2018significantly contributed to, or was a significant causal factor in, the disease\u2019s development.\u2019 \u201d Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 354, 524 S.E.2d 368, 371 (quoting Rutledge, 308 N.C. at 101, 301 S.E.2d at 369-70), disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000).\nDefendants argue that the evidence is insufficient to permit a finding either that Terasaka was at increased risk of suffering carpal tunnel syndrome or that her work caused her carpal tunnel syndrome. Dr. Sweet, however, specifically testified that a person who types four to six hours a day \u2014 as Terasaka testified she did \u2014 is at a greater risk of developing carpal tunnel syndrome than the general public. Dr. Baker similarly confirmed that employees who do a lot of typing have an increased risk of carpal tunnel syndrome, although he indicated that the number of hours of typing required to trigger the syndrome varies from person to person. Further, after plaintiff\u2019s counsel set out a hypothetical question that extended over three pages of transcript and specified the pertinent facts relating to Terasaka\u2019s work and medical history, Dr. Sweet expressed the opinion that Terasaka\u2019s work was a \u201csignificant contributing factor\u201d to her carpal tunnel syndrome. This testimony is sufficient to meet the requirements of Rutledge.\nDefendants\u2019 arguments regarding Dr. Sweet\u2019s testimony relate to questions of credibility and weight, issues that this Court may not revisit. It is well-established that the Commission is the \u201csole judge of the credibility of the witnesses, and of the weight to be given to their testimony[;] ... it may accept or reject the testimony of a witness ... in whole or in part. . . .\u201d Anderson v. Northwestern Motor Co., 233 N.C. 372, 376, 64 S.E.2d 265, 268 (1951). Defendants point to portions of Dr. Sweet\u2019s testimony that they contend show speculation. As, however, Judge Hudson stated in a dissenting opinion adopted by the Supreme Court in Alexander v. Wal-Mart Stores, Inc., 359 N.C. 403, 610 S.E.2d 374 (2005) (per curiam), it is not \u201cthe role of this Court to comb through the testimony and view it in the light most favorable to the defendant, when the Supreme Court has clearly instructed us to do the opposite. Although by doing so, it is possible to find a few excerpts that might be speculative, this Court\u2019s role is not to engage in such a weighing of the evidence.\u201d Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting).\nFinally, defendants argue that Terasaka\u2019s current symptoms are unrelated to any occupational disease that she may have suffered. Again, to agree with defendants, this Court would have to accept their dismissal of Dr. Sweet\u2019s testimony. I do not believe that we have the authority to do so. Accordingly, I would affirm the decision of the Full Commission.", "type": "dissent", "author": "GEER, Judge," } ], "attorneys": [ "Frederick R. Stann for plaintiff-appellee.", "Brooks, Stevens & Pope, P.A., by Joy H. Brewer for defendant-appellant." ], "corrections": "", "head_matter": "AMY TERASAKA, Plaintiff v. AT&T, Defendant\nNo. COA04-1572\n(Filed 6 December 2005)\nWorkers\u2019 Compensation\u2014 carpal tunnel \u2014 disability\u2014incapacity for any work \u2014 medical evidence inadequate\nA workers\u2019 compensation disability award for carpal tunnel syndrome was reversed where plaintiff failed to meet her burden under the only prong of Russell v. Lowes, 108 N.C. App. 762, applicable to these facts. She did not produce medical evidence that she was physically or mentally incapable of work in any employment.\nJudge Geer dissenting.\nAppeal by defendant from Opinion and Award of the Industrial Commission entered 1 July 2004 by Commissioners Bernadine S. Ballance, Pamela T. Young, and Thomas Bolch. Heard in the Court of Appeals 8 June 2005.\nFrederick R. Stann for plaintiff-appellee.\nBrooks, Stevens & Pope, P.A., by Joy H. Brewer for defendant-appellant." }, "file_name": "0735-01", "first_page_order": 765, "last_page_order": 775 }