{ "id": 8173561, "name": "RAYMOND M. ARD, Employee-Plaintiff v. OWENS-ILLINOIS, Self-Insured Employer, and AIG CLAIMS MANAGEMENT, Administrator, Defendants", "name_abbreviation": "Ard v. Owens-Illinois", "decision_date": "2007-04-03", "docket_number": "No. COA06-376", "first_page": "493", "last_page": "498", "citations": [ { "type": "official", "cite": "182 N.C. App. 493" } ], "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": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "opinion_index": -1, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "464 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "690-91", "parenthetical": "describing plaintiff's compensable injury to his lower back, which was succeeded by four separate re-injuries, each of which was a compensable injury" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915752 ], "year": 1995, "pin_cites": [ { "page": "119-20", "parenthetical": "describing plaintiff's compensable injury to his lower back, which was succeeded by four separate re-injuries, each of which was a compensable injury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0117-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "470" } ], "opinion_index": 0 }, { "cite": "590 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "465" }, { "page": "465" } ], "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" } ], "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.", "year": 2005, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "266 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "300 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561147 ], "year": 1980, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0329-01" ] }, { "cite": "606 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "349", "parenthetical": "citing Barham v. Food World, 300 N.C. 329, 332, 266 S.E.2d 676, 678 (1980)" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411089 ], "year": 2004, "pin_cites": [ { "page": "265", "parenthetical": "citing Barham v. Food World, 300 N.C. 329, 332, 266 S.E.2d 676, 678 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0259-01" ] }, { "cite": "266 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548488 ], "year": 1980, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0140-01" ] }, { "cite": "535 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "580", "parenthetical": "quoting Porterfield v. RPC Corp., 47 N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980)" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121612 ], "year": 2000, "pin_cites": [ { "page": "61-62", "parenthetical": "quoting Porterfield v. RPC Corp., 47 N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0058-01" ] }, { "cite": "296 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "307 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560726 ], "year": 1982, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0099-01" ] }, { "cite": "468 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "422", "parenthetical": "citing McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982)" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919081 ], "year": 1996, "pin_cites": [ { "page": "600", "parenthetical": "citing McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0598-01" ] }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] } ], "analysis": { "cardinality": 699, "char_count": 13687, "ocr_confidence": 0.759, "pagerank": { "raw": 1.5491069619732857e-07, "percentile": 0.6743140237133516 }, "sha256": "4efddbbb73bad4281cd13b349278820bf911c41b1d7654398e67ca17c5e9dbc4", "simhash": "1:3f30517b1c6f0276", "word_count": 2167 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "RAYMOND M. ARD, Employee-Plaintiff v. OWENS-ILLINOIS, Self-Insured Employer, and AIG CLAIMS MANAGEMENT, Administrator, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nA full panel of the North Carolina Industrial Commission (Full Commission) awarded Raymond M. Ard (plaintiff) payments for disability and medical expenses on 14 December 2005. It is from this order and award that Owens-Illinois (Owens) and AIG Claims Management (together, defendants) appeal.\nPlaintiff was first employed by Owens on 8 March 2001 as a stock handler, and later worked in the assembly department. The Full Commission found that \u201c[a]s a stock handler, Plaintiff was required to repetitively move forty-pound boxes. Three different lines fed plastic deodorant caps into boxes, which as they were filled, had to be taped and moved to a pallet. ... As boxes were filled, another box was placed in position for filling.\u201d Plaintiff testified that his job as a stock handler was \u201cprobably the hardest labor job [he had] ever had, and anybody who would work it for two weeks would be hurting and sore.\u201d Although plaintiff had previously worked in construction pouring concrete, he found the Owens job to be more taxing because \u201cthe machines don\u2019t stop,\u201d and \u201cyou\u2019re constantly, all night, working on them.\u201d\nOn 11 May 2001, plaintiff sought treatment for a sore back, reporting that his pain had increased to a severe level. He testified that this back pain had developed gradually. He received treatment from two chiropractic doctors, and did not miss any work as a result of the back pain.\nSeveral months later, on 14 July 2001, plaintiff experienced a sharp pain on the right side of his lower back, above his hip and below his beltline. He immediately notified his supervisor that he had hurt\u2019 his back. Neither plaintiff nor his supervisor filed an injury report. On 16 July 2001, plaintiff was treated by Dr. John Y. Earl after presenting with low back pain that had been radiating down his left leg and foot for the previous few days. Dr. Karl treated plaintiff conservatively, releasing plaintiff from his care on 6 September 2001.\nIn September, 2001, plaintiff\u2019s supervisor assigned plaintiff to a job with lighter duties. This job involved working with a computer, and plaintiff proved unable to perform that job. Plaintiff returned to his heavy labor position at his own request.\nPlaintiff again sought treatment from Dr. Karl on 17 December 2001, complaining of pain in his left buttock and left leg. A 20 December 2001 MRI revealed degenerative disk disease and multiple hernia-tions at L1-L2, L4-L5, and L5-S1.\nPlaintiff suffered another injury at Owens on 23 December 2001 when lifting a forty-pound box filled with empty deodorant caps. He described this incident as \u201cjust the same accident\u201d as had occurred in July, 2001, in \u201cthe same place right there in my back again.\u201d He testified that this pain felt \u201c[l]ike a sharp, hot knife in my back above my hip.\u201d Plaintiff again reported his injury to his supervisor, who filled out an injury report.\nPlaintiff returned to Dr. Karl for treatment, and was referred to Dr. Dion J. Arthur, an orthopedic surgeon. Dr. Arthur examined plaintiff on 10 January 2002, and recommended physical therapy and epidural injections to relieve plaintiffs back pain. Plaintiff then took a medical leave of absence from work until 25 February 2002, at Dr. Arthur\u2019s suggestion.\nBy 21 February 2002, plaintiff \u201cfelt strong\u201d and wanted to return to work. Dr. Arthur released plaintiff to work without restriction. However, plaintiff again injured his back on 22 May 2002. He and another employee were lifting a ninety to one hundred pound box together, when plaintiff felt an immediate, stabbing pain in his lower back that was \u201cfive times worse\u201d than any pain that he had experienced before. This pain occurred in the same area as his 14 July 2001 and 23 December 2001 injuries. Plaintiff underwent back surgery on 11 June 2002. Dr. Dion testified that he \u201cfelt that [plaintiff] would not be a suitable candidate for employment that involved frequent waist bending, lifting, twisting, stooping and straining,\u201d and that plaintiff should limit his lifting to \u201cless than 15 pounds . . . and preferably in distributed weight with the upper extremities.\u201d Because Owens did not have any work available within those restrictions, plaintiff sought other work within those restrictions, but has not been successful. The Full Commission found that \u201c[pjlaintiff\u2019s efforts to find suitable employment have been reasonable,\u201d and concluded that plaintiff was \u201cunable to find suitable employment within his medical restrictions and due to his educational and vocational limitations.\u201d\nIn its order and award, the Full Commission found that \u201c[p]lain-tiff suffered an injury arising out of and in the course of his employment on July 14, 2001, December 23, 2001 and May 22, 2002, as a direct result of a specific traumatic incident of the work assigned by Defendant-Employer.\u201d The Full Commission ordered defendants to \u201cpay compensation to Plaintiff for total disability at the rate of $324.09 per week from December 31, 2001 to February 22, 2002 and from May 23, 2002, and continuing until further order of the Commission. The accrued compensation shall be paid in lump.\u201d Defendants were also ordered to pay all of plaintiff\u2019s medical expenses arising from his injuries on 14 July 2001, 23 December 2001, and 22 May 2002.\nDefendants first argue that the Full Commission erred in finding and concluding that plaintiff incurred compensable injuries on 14 July 2001 and 23 December 2001. Defendants allege that plaintiff did not suffer any disabling physical injury as a result of these 2001 injuries. We disagree.\n\u201cThis Court\u2019s review is limited to a consideration of whether there was any competent evidence to support the Full Commission\u2019s findings of fact and whether these findings of fact support the Commission\u2019s conclusions of law.\u201d Johnson v. Charles Keck Logging, 121 N.C. App. 598, 600, 468 S.E.2d 420, 422 (1996) (citing McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982)). This Court has stated that \u201cso long as there is some \u2018evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.\u2019 \u201d Shah v. Howard Johnson, 140 N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (quoting Porterfield v. RPC Corp., 47 N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980)).\nThe following three conditions must precede \u201cthe right to compensation pursuant to the Workers\u2019 Compensation Act . . . : (1) the; claimant suffered a personal injury by accident; (2) such injury arose in the course of the employment; and (3) such injury arose out of the employment.\u201d Bondurant v. Estes Express Lines, Inc., 167 N.C. App. 259, 265, 606 S.E.2d 345, 349 (2004) (citing Barham v. Food World, 300 N.C. 329, 332, 266 S.E.2d 676, 678 (1980)).\nWith 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 \u25a0physical injury to the back arising out of and causally related to such incident.\nN.C. Gen. Stat. \u00a7 97-2(6) (2005). Furthermore, \u201c[aggravation of a preexisting condition caused by a work-related injury is compensable under the Workers\u2019 Compensation Act.\u201d Moore v. Federal Express, 162 N.C. App. 292, 297, 590 S.E.2d 461, 465 (2004). In Moore, the plaintiff suffered a back injury in 1992, and then a second back injury in 1997. Id. at 298, 590 S.E.2d at 465. This Court held that \u201calthough there may have been some causal connection to plaintiffs original 1992 injury, plaintiffs current back problems were a result of the 3 April 1997 incident, which substantially aggravated his pre-existing back condition.\u201d Id. Thus, \u201cplaintiffs injury was the result of a specific traumatic incident occurring in the course of plaintiff\u2019s employment, and not simply a change in his condition that was a natural consequence of his prior injury.\u201d Id., 490 S.E.2d at 466.\nThe Full Commission\u2019s findings and conclusions regarding plaintiff\u2019s compensable injuries on 14 July 2001 and 23 December 2001 are supported by competent evidence. In his answers to prehearing interrogatories, dated 4 October 2002, plaintiff stated that he \u201cinjured [his] back on July 14, 2001 while working for Owens-Illinois.\u201d Dr. Karl, who treated plaintiff two days after the incident, testified that plaintiff told him that the pain had \u201cbeen going on for approximately two to three days, when [plaintiff] picked up a heavy object, approximately a forty pound box.\u201d Dr. Arthur testified that by reference to Dr. Karl\u2019s notes, he could state that plaintiff had injured himself on July 14.\nAfter plaintiff\u2019s 23 December 2001 injury, his supervisor filled out an accident report stating that plaintiff had injured the right side of his lower back \u201cstacking finished goods boxes on line 61.\u201d In response to this injury, Dr. Karl recommended plaintiff be restricted to \u201clight duty for the next two weeks.\u201d\nAdequate evidence was presented to the Full Commission to meet the three prongs of the \u201ccompensable injury\u201d rule outlined above. First, plaintiff suffered two personal injuries by accident; second, the injury arose during the course of plaintiff\u2019s employment as a stock handler; and third, the injury arose out of plaintiff\u2019s employment at Owens. Accordingly, we hold that the Full Commission did not err in its findings of fact and conclusions of law.\nDefendants next argue that the Full Commission erred in finding and concluding that plaintiff was entitled to disability compensation as a result of the 22 May 2002 incident. The thrust of defendants argument is that on 22 May 2002, plaintiff was disabled by a pre-existing condition, and thus is not compensable. Again, we disagree.\nDefendants rely on Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981), to support their assertion that plaintiff\u2019s 22 May 2002 injury is not compensable because the underlying preexisting condition was disabling. Our Supreme Court, in Morrison, stated that:\n[w]hen 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 ... 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.\nId. at 18, 282 S.E.2d at 470. From this single sentence, defendants mistakenly conclude that if a pre-existing condition is aggravated during employment, leading to disability, the disability can only be com-pensable if the pre-existing condition was not disabling. However, when we view this single sentence, highlighted by defendants in their brief, the language clearly states that the pre-existing condition must be both nondisabling and non-job related to be compensable. The Morrison court placed emphasis on both modifiers, and we read \u201cnondisabling\u201d and \u201cnon-job-related\u201d together, as they were written. Thus, the alleged \u201crule\u201d defendants cite from Morrison, regardless of its validity, does not apply in this case because plaintiff\u2019s previous back injury was job-related. Throughout its text, Morrison repeatedly recites the well-settled law that \u201can employer takes the employee as he finds her with all her pre-existing infirmities and weaknesses.\u201d Id. If these infirmities or weaknesses are derived from previously com-pensable disabilities, the employee is not precluded from suffering a subsequent compensable disability. See, e.g., Poe v. Raleigh/Durham Airport Authority, 121 N.C. App. 117, 119-20, 464 S.E.2d 689, 690-91 (1995) (describing plaintiff\u2019s compensable injury to his lower back, which was succeeded by four separate re-injuries, each of which was \u00e1 compensable injury). Accordingly, defendants\u2019 final argument is without merit.\nAffirmed.\nJudges HUNTER and McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Brooks, Stevens, & Pope, P.A., by Michael G. Sigmon, for defendants-appellants.", "Poisson, Poisson, & Bower, PLLC, by Fred D. Poisson, Jr., for plaintiff-appellee." ], "corrections": "", "head_matter": "RAYMOND M. ARD, Employee-Plaintiff v. OWENS-ILLINOIS, Self-Insured Employer, and AIG CLAIMS MANAGEMENT, Administrator, Defendants\nNo. COA06-376\n(Filed 3 April 2007)\n1. Workers\u2019 Compensation\u2014 compensable injury \u2014 injury by accident\nThe full Industrial Commission did not err in a workers\u2019 compensation case by finding and concluding that plaintiff incurred compensable injuries on 14 July 2001 and 23 December 2001, because adequate evidence was presented that: (1) plaintiff suffered two personal injuries by accident; (2) each injury arose during the course of plaintiff\u2019s employment as a stock handler; and (3) each injury arose out of plaintiff\u2019s employment at defendant employer.\n2. Workers\u2019 Compensation\u2014 disability compensation \u2014 preexisting condition\nThe full Industrial Commission did not err in a workers\u2019 compensation case by finding and concluding that plaintiff .was entitled to disability compensation as a result of the 22 May 2002 incident even though plaintiff had a pre-existing condition, because: (1) the alleged \u201crule\u201d defendants cite from Morrison v. Burlington Industries, 304 N.C. 1 (1981), regardless of its validity, does not apply in this case since plaintiff\u2019s previous back injury was job-related; and (2) it is well-settled law that an employer takes the employee as he finds him with all his preexisting infirmities and weaknesses.\nAppeal by defendants from the opinion and award entered 14 December 2005 by Bernadine S. Ballance, Commissioner, for the Full Commission. Heard in the Court of Appeals 1 November 2006.\nBrooks, Stevens, & Pope, P.A., by Michael G. Sigmon, for defendants-appellants.\nPoisson, Poisson, & Bower, PLLC, by Fred D. Poisson, Jr., for plaintiff-appellee." }, "file_name": "0493-01", "first_page_order": 525, "last_page_order": 530 }