{ "id": 8241756, "name": "CHARLENE EVERETT, Employee, Plaintiff v. WELL CARE & NURSING SERVICES, Employer, DISCOVERY INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Everett v. Well Care & Nursing Services", "decision_date": "2006-11-21", "docket_number": "No. COA06-103", "first_page": "314", "last_page": "321", "citations": [ { "type": "official", "cite": "180 N.C. App. 314" } ], "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": "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", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "765", "parenthetical": "citations omitted" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "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": "606 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411620 ], "year": 2004, "pin_cites": [ { "page": "456-57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0449-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "561 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "149 N.C. App. 876", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9132982 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/149/0876-01" ] }, { "cite": "23 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "222 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630398 ], "year": 1942, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0358-01" ] }, { "cite": "175 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 604", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554313 ], "year": 1970, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0604-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "414" }, { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "752, 754" }, { "page": "753" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "231-32, 234" }, { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "year": 1977, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "(6)" }, { "page": "(9)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 715, "char_count": 17104, "ocr_confidence": 0.752, "pagerank": { "raw": 8.966038928235318e-08, "percentile": 0.5022476213864207 }, "sha256": "d23c77c3909aec9e44c26f992db63d42d953ccd08f11748acdf9268fd1182106", "simhash": "1:2486686834c54a67", "word_count": 2852 }, "last_updated": "2023-07-14T16:41:00.069129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and JACKSON concur." ], "parties": [ "CHARLENE EVERETT, Employee, Plaintiff v. WELL CARE & NURSING SERVICES, Employer, DISCOVERY INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendants appeal from an opinion and award of the North Carolina Industrial Commission awarding plaintiff ongoing temporary total disability compensation. Plaintiff suffered an admittedly compensable injury to her right wrist when she was involved in a car accident on 12 December 2000 while driving as part of her job as a social worker with defendant Well Care & Nursing Services (\u201cWell Care\u201d). After the accident, plaintiff experienced right wrist pain, and x-rays revealed no fracture. A subsequent MR arthrogram of plaintiff\u2019s wrist revealed a partial TFC tear with no evidence of major liga-mentous injury. Initial treatment involved splinting and injection therapy. When those treatments were unsuccessful, plaintiff underwent arthroscopic surgery on her right wrist on 3 May 2001. Well Care and its carrier, Discovery Insurance Company, filed a Form 60 admitting compensability of plaintiffs injury to her right wrist. Defendants paid plaintiff temporary total disability while she was unable to work. Plaintiff received treatment for the injury to her right wrist until 14 December 2001, when she was found to have reached maximum medical improvement with a ten percent permanent partial impairment rating on the right wrist. Her physician stated that her wrist injury did not impair her ability to perform her job as a social worker.\nOn 23 July 2001, eleven weeks after her wrist surgery, plaintiff was leaving her house when she slipped on her back steps and fell, fracturing her left ankle. Plaintiff contends that she was unable to break her fall because of the injury to her right wrist. She testified that \u201cwhen I realized I was slipping, I think my natural instinct kicked in. I didn\u2019t have strength in my hand to grab the [door]knob or the security bar .... As a result, to keep from re-injuring this hand, I just let it go, and I fell on my left side.\u201d Her left ankle fracture was addressed by two surgical procedures. Plaintiff continued to see her physician for her left ankle injury until July 2002 when she reached maximum medical improvement.\nOn 26 June 2002, plaintiff filed a request for hearing with the Industrial Commission seeking continuing temporary total disability compensation for her right wrist and alleging that the injury to her left ankle from the fall at home was causally related to the earlier injury to her right wrist and, therefore, was compensable. She contended that she was unable to work in any capacity. At the hearing before the deputy commissioner, plaintiff testified as follows:\nThe Court: . . . [A]fter you finished your physical therapy, \u25a0 \u2022 \u2022 you\u2019re saying you never asked either the physical therapist or your doctor whether you could return to work or, you know, what work restrictions you would have. You also \u2014 you did-n\u2019t contact, I\u2019m assuming, your employer to see at that point if they would be willing to have you return to work; is that right?\nThe Witness: Sir, I was not physically able to work.\nThe Court: But how do you know? I guess what my question is if you never asked the doctor, work restrictions have never been addressed, how is it that you determined that you are not able to work at all?\nThe Witness: Because of the constant pain level and my movement. My job required me to do a lot of physical driving from county to county. Not only that, I was in and out of my truck or car, in and out, in and out. I was barely able to move, sir.\nThe Court: .. . [H]ave you thought about other types of jobs that you might be able to do with your current condition?\nThe Witness: I have thought about it, sir. But with my physical being the way it is and my pain and my conversations back and forth and going still back and forth to the doctor \u2014 I\u2019m currently in physical therapy trying to get this ankle and leg to some type of normalcy where I\u2019ll be able to function like I did before I was injured. So, no, I had not inquired about it and neither had the doctor said anything to me about it.\nPlaintiff offered no evidence from her doctors, chiropractor, or occupational therapist indicating that she was unable to work in any capacity.\nThe deputy commissioner denied compensability of the left ankle injury and awarded permanent partial disability compensation to plaintiff for the ten percent impairment rating on her right wrist. Plaintiff appealed the opinion and award to the Full Commission.\nThe Full Commission reversed, awarding plaintiff temporary total disability compensation for both the right wrist and the left ankle. Specifically, the Commission found that \u201cbut for the plaintiffs lack of use of her right hand due to her compensable injury by accident, she would have not fallen in the manner in which she fell and likely would not have fractured her left ankle.\u201d The Commission found that the slip and fall was work related because it was a direct and natural consequence of the compensable right wrist injury. The Commission also found that \u201c[following her slip and fall at home on July 23, 2001, the plaintiff was unable to work due to her fractured left ankle\u201d and found that she had been temporarily and totally disabled since 23 July 2001, notwithstanding its finding that she had reached maximum medical improvement for her left ankle injury in July 2002. The Commission concluded that although plaintiff was entitled to permanent partial disability compensation for the ten percent disability to her right wrist, \u201cher greater remedy at the present time\u201d was to receive compensation for temporary total disability pursuant to N.C.G.S. \u00a7 97-29. Thus, the Commission awarded plaintiff continuing compensation for temporary total disability until \u201cfurther order of the Commission,\u201d as well as medical treatment for her left ankle and right wrist.\nDefendants appealed the Commission\u2019s determination that plaintiff\u2019s left ankle injury is compensable as arising out of and in the course of her employment, as well as its determination that she is entitled to ongoing compensation for temporary total disability.\nDefendants make two arguments on appeal. First, defendants argue that the Commission erred in finding that plaintiffs left ankle injury was causally related to her right wrist injury because such findings were not supported by competent evidence and the findings did not support the conclusions of law that the injury was compensable. Second, defendants argue that the Commission erred in finding that plaintiff was and continues to be disabled as a result of her right wrist and left ankle injuries because the findings are not supported by competent evidence and do not support the conclusions of law that plaintiff is entitled to temporary total disability beginning on 23 July 2002 and continuing.\nWe first consider the issue of causation. Defendants argue that the Commission\u2019s finding of fact that the left ankle injury was causally related to the right wrist injury is not supported by any competent evidence and therefore the Commission erred in awarding compensation. An injury is only compensable if it \u201caris[es] out of and in the course of the employment.\u201d N.C. Gen. Stat. \u00a7 97-2(6) (2005). \u201c \u2018[A]rising out of\u2019 refers to the origin or causal connection of the accidental injury to the employment.\u201d Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). The plaintiff bears the burden of proving each element of compensability, including causation, by \u201ca preponderance of the evidence.\u201d Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 234, 581 S.E.2d 750, 752, 754 (2003). Upon review, however, if there is any competent evidence to support the Commission\u2019s findings of fact, this Court must accept them as true. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).\nFinding of fact 10 addresses causation where it states: \u201cThe Full Commission finds that, but for the plaintiff\u2019s lack of use of her right hand due to her compensable injury by accident, she would have not fallen in the manner in which she fell and likely would not have fractured her left ankle.\u201d Plaintiff testified:\nA: Well, when I realized I was slipping, I think my natural instinct kicked in. I didn\u2019t have strength in my hand to grab the knob or the security bar here in the picture. As a result, to keep from re-injuring this hand, I just let it go, and I fell on my left side.\nA: ... It was just that when I felt myself slipping, I did not have the strength in my hand to break my fall.\nQ: . . .[Y]ou said you let go of the door, because you didn\u2019t want to re-injure your right wrist.?\nA: As I stepped down, I could not \u2014 I had turned around. I could not grab the knob, the handle here, and I fell. I could not break my fall.\nThe Witness: . . . When I went to push the doorknob, when I went out to step down\u2014\nThe Court: Right.\nThe Witness: \u2014I slipped. And when I did, I could not grab. My hand was not strong enough for me to hold onto the doorknob. That knob is there, since I didn\u2019t have a railing, to hold onto, coming in and out of the door.\nThe Court: So the doorknob didn\u2019t have anything to do with you falling. You\u2019re saying that once you slipped and you were falling, had you had the use of your hand, you would have been able to catch yourself by grabbing onto the doorknob; is that right?\nThe Witness: Yes, sir, that\u2019s what I contend.\nReviewing this evidence in the light most favorable to plaintiff, it reasonably supports the Commission\u2019s finding that her wrist injury prevented her from breaking her fall. We note that in cases involving \u201ccomplicated 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 Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980); see also Holley, 357 N.C. at 232, 581 S.E.2d at 753. The present case does not involve a complicated medical question; therefore, plaintiff\u2019s testimony alone is sufficient to support the finding of fact.\nEven if the evidence supports the Commission\u2019s finding of fact, defendants argue that the finding of fact does not support conclusion of law 1, which states \u201c[t]he plaintiff\u2019s left ankle injury resulted from an accident arising out of and in the course of her employment in that the incident was a direct and natural consequence that flowed from her December 12, 2000, compensable injury by accident.\u201d The Commission correctly cited that, where a second injury arises from an earlier injury and the primary injury arises out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment. Starr v. Paper Co., 8 N.C. App. 604, 611, 175 S.E.2d 342, 347 (1970). To show causal relation, \u201cthe evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation . . . .\u201d Gilmore v. Board of Education, 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942). The Commission\u2019s finding of fact takes the case out of the realm of conjecture by finding that plaintiff \u201clikely would not have fractured her left ankle.\u201d This finding is sufficient to support the Commission\u2019s conclusion of law. Accordingly, we affirm the Commission\u2019s findings and conclusions with regard to the issue of causation.\nDefendants next contend that the Commission erred in awarding compensation because plaintiff did not prove by medical evidence that she is entitled to temporary and total disability as a result of her injuries. The Commission-found \u201c[f]ollowing her slip and fall at home on July 23, 2001, the plaintiff was unable to work due to her fractured left ankle.\u201d This finding is supported by plaintiffs own testimony that she was not physically able to work and that the amount of pain she suffered prohibited her from working in any capacity. Thus, we must accept it as true. See Adams, 349 N.C. at 681, 509 S.E.2d at 414. The Commission also found \u201c[plaintiff] has been temporarily and totally disabled ... as a result of her admittedly compensable automobile accident. . . and her slip and fall.\u201d This statement is actually a conclusion of law, and we must review it as such. See Johnson v. Adolf, 149 N.C. App. 876, 878 n.1, 561 S.E.2d 588, 589 n.1 (2002). We therefore consider whether the finding that plaintiff has been unable to work supports the conclusion of law that she is temporarily and totally disabled.\n\u201cIn order to obtain compensation under the Workers\u2019 Compensation Act, the claimant has the burden of proving the existence of his disability and its extent.\u201d Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). Where the compensability of a claimant\u2019s claim is admitted via Form 60, no presumption of disability attaches. Barbour v. Regis Corp., 167 N.C. App. 449, 456-57, 606 S.E.2d 119, 125 (2004).\n[I]n order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual\u2019s incapacity to earn was caused by plaintiff\u2019s injury.\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). 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) (2005). 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).\nPlaintiff claims that her left ankle injury arose from her com-pensable claim for her right wrist injury pursuant to Form 60; therefore, she bears the burden of proving that she was disabled as a result of her ankle injury. The Commission made the requisite findings that plaintiff was unable to work at her old job or at another job as a result of the ankle injury. However, this finding was based only on the plaintiffs testimony, and was not based on any medical evidence. Thus, plaintiff did not meet the burden established in Russell of showing \u201cmedical evidence that [s]he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment.\u201d Russell, 108 N.C. App. at 765, 425 S.E.2d at 457 (emphasis added). The Commission\u2019s conclusion of law that plaintiff has been temporarily and totally disabled is, therefore, not supported by its findings of fact and is error.\nThe award of ongoing compensation for temporary total disability is reversed and this case is remanded for the entry of an award of compensation pursuant to N.C.G.S. \u00a7 97-30.\nReversed and Remanded.\nJudges ELMORE and JACKSON concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Peter Grear for plaintiff -appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by Cameron D. Simmons and Meredith T. Black, for defendant-appellants." ], "corrections": "", "head_matter": "CHARLENE EVERETT, Employee, Plaintiff v. WELL CARE & NURSING SERVICES, Employer, DISCOVERY INSURANCE COMPANY, Carrier, Defendants\nNo. COA06-103\n(Filed 21 November 2006)\n1. Workers\u2019 Compensation\u2014 causation \u2014 non-medical testimony \u2014 plaintiff unable to break fall following compensable wrist injury\nPlaintiff\u2019s testimony in a workers\u2019 compensation case reasonably supported the Industrial Commission\u2019s finding that her existing compensable wrist injury prevented her from breaking a fall that fractured her ankle. This case does not involve complicated medical questions; plaintiff\u2019s testimony alone is sufficient.\n2. Workers\u2019 Compensation\u2014 injury arising from employment \u2014 fall following earlier injury \u2014 finding supporting conclusion\nA finding that a workers\u2019 compensation plaintiff likely would not have fractured her ankle without an earlier compensable wrist injury supported the conclusion the ankle injury arose from her employment.\n3. Workers\u2019 Compensation\u2014 disability \u2014 burden of proof not met\nA workers\u2019 compensation award for temporary total disability was reversed where the finding that plaintiff was unable to work was based only on her testimony and not on any medical evidence.\nAppeal by defendants from opinion and award entered 5 October 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 September 2006.\nPeter Grear for plaintiff -appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Cameron D. Simmons and Meredith T. Black, for defendant-appellants." }, "file_name": "0314-01", "first_page_order": 344, "last_page_order": 351 }