{ "id": 4160312, "name": "JEFFREY T. LANIER, Employee, Plaintiff v. EDDIE ROMANELLE'S, Employer, KEY RISK MANAGEMENT SERVICES, Carrier, Defendants", "name_abbreviation": "Lanier v. Eddie Romanelle's", "decision_date": "2008-08-19", "docket_number": "No. COA07-1154", "first_page": "166", "last_page": "178", "citations": [ { "type": "official", "cite": "192 N.C. App. 166" } ], "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": "637 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637253 ], "year": 2006, "pin_cites": [ { "page": "303", "parenthetical": "\"An expert's opinion that was solicited through the assumption of facts unsupported by the record is entirely based on conjecture.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0299-01" ] }, { "cite": "657 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640599 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "906", "parenthetical": "citation and quotation omitted" }, { "page": "906" }, { "page": "906", "parenthetical": "\"Defendants concede that plaintiff's injury to his cervical spine was a back injury [subject to the] specific traumatic incident [standard].\" (Original brackets and quotation marks omitted.)" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0899-01" ] }, { "cite": "646 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638857 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "608", "parenthetical": "citation and quotation marks omitted" }, { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0604-01" ] }, { "cite": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "652 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639665, 12639666 ], "year": 2007, "pin_cites": [ { "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0254-01", "/se2d/652/0254-02" ] }, { "cite": "361 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738880, 3744162, 3740355, 3737259, 3740972, 3736277, 12640024, 3743483, 3742814 ], "year": 2007, "pin_cites": [ { "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0690-05", "/nc/361/0690-01", "/nc/361/0690-04", "/nc/361/0690-02", "/nc/361/0690-06", "/nc/361/0690-07", "/se2d/654/0248-02", "/nc/361/0690-03", "/nc/361/0690-08" ] }, { "cite": "180 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242879 ], "year": 2006, "pin_cites": [ { "page": "437", "parenthetical": "\"An expert's opinion that was solicited through the assumption of facts unsupported by the record is entirely based on conjecture.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0432-01" ] }, { "cite": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "200", "parenthetical": "emphasis added, citation and quotation marks omitted" }, { "page": "200", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "475", "parenthetical": "emphasis added, citation and quotation marks omitted" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "603 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "551", "parenthetical": "affirming an award of compensation for a left arm injury when a medical expert testified that the left arm injury was caused by overuse of the left arm while working under restrictions imposed because of a compensable right arm injury" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411176 ], "year": 2004, "pin_cites": [ { "page": "254", "parenthetical": "affirming an award of compensation for a left arm injury when a medical expert testified that the left arm injury was caused by overuse of the left arm while working under restrictions imposed because of a compensable right arm injury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0251-01" ] }, { "cite": "66 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "234 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619057 ], "year": 1951, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0126-01" ] }, { "cite": "66 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1951, "pin_cites": [ { "page": "25" }, { "page": "25" } ], "opinion_index": 0 }, { "cite": "234 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618114 ], "year": 1951, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0086-01" ] }, { "cite": "409 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "105" }, { "page": "104" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521328 ], "year": 1991, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0284-01" ] }, { "cite": "335 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "504" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524140 ], "year": 1985, "pin_cites": [ { "page": "550" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0547-01" ] }, { "cite": "189 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156196 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "284", "parenthetical": "citation and quotation omitted" }, { "page": "284" }, { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0277-01" ] }, { "cite": "184 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8186439 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "503", "parenthetical": "citation and quotation marks omitted" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0497-01" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "year": 2005, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "642 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "pin_cites": [ { "page": "259-60", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8173561 ], "year": 2007, "pin_cites": [ { "page": "496", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0493-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "citation and quotation marks omitted" } ], "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": "684" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "473 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "123 N.C. 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App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916104 ], "year": 1995, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0491-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 15, "pin_cites": [ { "page": "(13)" }, { "page": "(20)" }, { "page": "(13)" }, { "page": "(20)" }, { "page": "(13)" }, { "page": "(20)" }, { "page": "(20)" }, { "page": "(20)" }, { "page": "(13)" }, { "page": "(13)" }, { "page": "(13)" }, { "page": "(13)" }, { "page": "(13)" }, { "page": "(13)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(6)" }, { "page": "(6)" }, { "page": "(6)" }, { "page": "(6)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 971, "char_count": 28836, "ocr_confidence": 0.75, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13562933591881227 }, "sha256": "d55d2a802ce961c45fcdc01edf0263debf3c2d370ad3c3cda6df78e39eff62c6", "simhash": "1:d46364ebbe5e6b76", "word_count": 4621 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ELMORE concur." ], "parties": [ "JEFFREY T. LANIER, Employee, Plaintiff v. EDDIE ROMANELLE\u2019S, Employer, KEY RISK MANAGEMENT SERVICES, Carrier, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff appeals from the Opinion and Award of the Industrial Commission entered on 22 June 2007, denying benefits to plaintiff based upon its conclusions that plaintiff sustained neither an injury by accident nor a compensable occupational disease arising out of and in the course of his employment. For the reasons stated herein, we affirm.\nI. Background\nPlaintiff began his employment with defendant-employer Eddie Romanelle\u2019s in 1996 as a part-time saut\u00e9 cook. He became a full-time employee in about May 1999, working as kitchen supervisor. In this role, he was responsible for all of the kitchen activities as well as remaining an active cook. He spent most of his ten hour shifts working as a saut\u00e9 cook. At the end of each shift, as part of his normal job duties, plaintiff removed and cleaned two saut\u00e9 grates which weighed approximately forty pounds each. On 12 May 2004, plaintiff was lifting a saut\u00e9 grate in his usual manner when he allegedly experienced a \u201cshocking type sensation\u201d followed by numbness in his left arm and hand. Plaintiff finished his shift but reported his alleged injury the next day, complaining that his arm felt \u201cdead.\u201d Plaintiff then began a complicated course of treatment with several doctors over the next two years which resulted in at least four diagnoses involving his cervical spine, left arm, and wrist.\nPlaintiff filed Form 18 with the North Carolina Industrial Commission on or about 20 August 2004 alleging that he had injured his \u201cleft hand and arm\u201d as a result of \u201clifting [a] saut\u00e9 grate from the grill\u201d \u201cabout 5/12/04[.]\u201d He filed an amended Form 18 on 29 July 2005, alleging additional injury to his neck arising from the same incident. Defendants denied compensability on the grounds that plaintiff had not been injured by accident at work and had no compensable occupational disease. The case was heard by Deputy Commissioner Bradley W. Houser on 23 August 2005. On 12 October 2006 the deputy commissioner concluded that plaintiffs injuries and diseases had not been caused by his employment with defendant-employer and denied workers\u2019 compensation benefits accordingly. Plaintiff appealed to the Full Commission.\nThe Full Commission heard plaintiff\u2019s case on 16 March 2007. In an Opinion and Award entered 22 June 2007, the Full Commission also concluded that plaintiff\u2019s injuries and diseases had not been caused by his employment with defendant-employer and denied workers\u2019 compensation benefits. Plaintiff appeals.\nII. Issues\nThe argument in plaintiff\u2019s brief focuses primarily on the long course of plaintiff\u2019s medical treatment which he alleges arose from one incident, lifting a saut\u00e9 grate, on 12 May 2004. His treatment was complex as he was eventually diagnosed with and treated for four separate medical conditions involving three parts of his body: a cervical radiculopathy in his neck, a ulnar neuropathy in his left elbow, and a scapholunate tear and synovitis in his left wrist.\nPlaintiff\u2019s brief conflates the various theories and standards for injury by accident, specific traumatic incident, and occupational disease as to all of plaintiff\u2019s four conditions. However, after we have sorted out all of the various theories and contentions, the real issue is causation of plaintiff\u2019s injuries, not whether he suffered from the alleged injuries or conditions.\nPlaintiff primarily argues that the Commission erred by concluding that plaintiff\u2019s neck, wrist, and elbow conditions were not caused by a compensable injury by accident or occupational disease because the Commission\u2019s findings of fact were not supported by competent evidence and its conclusions were based upon unsupported findings and misapprehension of applicable law. His specific contentions are: (1) the neck injury was compensable as an injury by accident under N.C. Gen. Stat. \u00a7 97-2(6) because it arose from a specific traumatic incident; (2) the elbow injury is compensable because ulnar neuropathy meets the criteria for an unlisted occupational disease set forth in N.C. Gen. Stat. \u00a7 97-53(13); and (3) the wrist injuries are compensable as occupational diseases because synovitis is specifically listed in N.C. Gen. Stat. \u00a7 97-53(20). Plaintiff additionally argues that the Commission erred by failing to make findings of fact and conclusions of law on the extent of plaintiff\u2019s disability.\nIII. Standard of Review\nIn order to prevail on a disability claim for workers\u2019 compensation, the plaintiff bears the burden of proving by a preponderance of the evidence the existence and extent of his disability, Fletcher v. Dana Corporation, 119 N.C. App. 491, 494, 459 S.E.2d 31, 34, disc. review denied, 342 N.C. 191, 463 S.E.2d 235 (1995), and that the disability was caused by a disease or injury reasonably related to his employment. Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003). In deciding whether a plaintiff has met his burden, the Industrial Commission must consider all competent evidence presented, Weaver v. American National Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12 (1996), and make specific findings of fact to support its conclusions for all \u201ccrucial questions.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 596, 290 S.E.2d 682, 684 (1982).\n\u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (citation and quotation marks omitted). The Commission is given deference as finder of fact on appeal to this Court, and if \u201cthere is some evidence 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.\u201d Ard v. Owens-Illinois, 182 N.C. App. 493, 496, 642 S.E.2d 257, 259-60, disc, review denied, 361 N.C. 690, 652 S.E.2d 254 (2007) (citations and quotation marks omitted). The Commission\u2019s legal conclusions will not be disturbed on appeal if the Commission has correctly apprehended the relevant law, Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005), and \u201cthere are sufficient findings of fact based on competent evidence to support the [Commission\u2019s] conclusions, [even if there are also] erroneous findings which do not affect the conclusions.\u201d Estate of Gainey v. Southern Flooring and Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608 (2007) (citation and quotation marks omitted).\nIV. Injury by Accident\nPlaintiff first contends that the Commission erred in concluding his neck injury was not compensable as an injury by accident. Plaintiff assigns error to the Commission\u2019s fifteenth and sixteenth findings of fact:\n15. On the issue of causation, Dr. Brown initially testified in his deposition that if plaintiff never experienced neck problems prior to May 12, 2004, then he was comfortable stating to a medical degree of probability that lifting of the grate as described by plaintiff caused the neck condition for which surgery was performed. Dr. Brown further testified that the lifting incident could have aggravated a pre-existing cervical condition. However, upon further questioning, Dr. Brown stated that he did not have any documented cause for plaintiff\u2019s cervical condition and that, ultimately, any causation opinion he rendered was \u201cmere speculation.\u201d\n16. There is insufficient competent medical evidence of record upon which to find by the greater weight that the incident at work on May 12, 2004 was the cause of the neck condition for which plaintiff underwent surgery.\nPlaintiff argues \u201cthe Commission has made findings against the competent evidence of record on the compensability of the neck injury\u201d because:\nIn the case at hand, the plaintiff was able to pin down exactly what he was doing when he injured his neck, arm and wrist. He described a severe, sharp shooting pain upon the lifting of the grate. This is the specific traumatic incident and nothing further is required by the law.\nWe disagree.\nGenerally, a compensable \u201cinjury by accident\u201d requires a showing of an unusual and unanticipated event which is not part of an \u201cemployee\u2019s normal work routine and normal working conditions[.]\u201d Raper v. Mansfield Sys., Inc., 189 N.C. App. 277, 284, 657 S.E.2d 899, 906 (2008) (citation and quotation omitted). \u201c[O]nce an activity, even a strenuous or otherwise unusual activity, becomes part of the employee\u2019s normal work routine, an injury caused by such activity is not the result of an interruption of the work routine or otherwise an \u2018injury by accident\u2019 under the Workers\u2019 Compensation Act.\u201d Bowles v. CTS of Asheville, 77 N.C. App. 547, 550, 335 S.E.2d 502, 504 (1985). However, in the case of a back injury, the requirement of an unusual circumstance is relaxed and an injury by accident may also be proved \u201cwhere 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[.]\u201d N.C. Gen. Stat. \u00a7 97-2(6) (2005); Raper, 189 N.C. App. at 284, 657 S.E.2d at 906.\nAlthough plaintiff testified that his neck injury arose from \u201ca specific traumatic incident,\u201d this was not all that the law required. The law required plaintiff to prove by a preponderance of the evidence, Holley, 357 N.C. at 232, 581 S.E.2d at 752, that his neck injury was \u201cthe direct result of a specific traumatic incident of the work assigned,\u201d N.C. Gen. Stat. \u00a7 97-2(6). The Commission, as finder of fact, was .free to reject plaintiff\u2019s testimony as to the cause of his neck injury and rely on other testimony of causation. Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 288, 409 S.E.2d 103, 105 (1991). Because the Commission is afforded deference as finder of fact, our review is limited to whether the Commission\u2019s findings on causation were supported by competent evidence in the record. Id. at 285, 409 S.E.2d at 104.\nThe Commission\u2019s fifteenth finding of fact expressly relies on Dr. Brown\u2019s testimony as to the causation of plaintiff\u2019s neck injury. Dr. Brown testified on direct examination as follows:\nQ: Okay. Assuming the facts I\u2019ve provided to you are true, do you have an opinion to a medical degree of probability as to whether the lifting incident as described by Mr. Lanier on May 12, 2004 was a cause for the C4-C5, C5-C6 problem which required the anterior cervical diskectomy and fusion?\nA: It\u2019s a tough question. It certainly could be \u2014 it certainly could be a \u2014 is it possible; yes. Is it a certainty; no. Could it be a contributing factor; I would say probably so.\nQ: And what would your opinion be to a medical degree of probability versus certainty?\nA: I don\u2019t know. I don\u2019t know if I can answer that question. It\u2019s a year and a half before I saw him. I didn\u2019t \u2014 because I didn\u2019t know [injury from lifting saut\u00e9 grates] was a possibility I didn\u2019t ask him specifically about it, nor did he tell me. Can I say that this is too difficult a question to answer?\nIt would be difficult to interpret this testimony as providing evidence that plaintiff\u2019s neck injury was caused by plaintiff\u2019s lifting of the grates on 12 May 2004. However, even if it could be so construed, Dr. Brown further acknowledged on cross examination that he did not have any documented cause for plaintiff\u2019s cervical condition and that his opinion on causation was \u201cmere speculation.\u201d The Commission considered Dr. Brown\u2019s testimony on both direct and cross examination and did not err in finding that the plaintiff\u2019s cervical condition was not caused by lifting the saut\u00e9 grate. The Commission\u2019s findings as to the cause of plaintiff\u2019s neck injury were therefore based upon competent evidence. This assignment of error is without merit.\nV. Occupational Disease\nA. Synovitis in Wrist\nPlaintiff assigns error to the Commission\u2019s nineteenth finding of fact:\n19. Although based upon Dr. Moore\u2019s expert opinion, plaintiff\u2019s partial ligament tear was causally related to plaintiff\u2019s job duties, there is no medical evidence of record that plaintiff\u2019s employment with defendant-employer exposed him to an increased risk of developing a partial scapholunate ligament tear. There also is no medical evidence of record that plaintiff\u2019s synovitis was caused by trauma in the employment, in that the medical evidence showed that the abnormality of the ligament tear within the wrist led to the synovitis. Therefore, the Commission finds by the greater weight of the medical evidence that these conditions are not compensable occupational diseases.\nPlaintiff argues the Commission misapprehended the law because synovitis is a listed occupational disease and a workers\u2019 compensation plaintiff therefore does not need to show \u201chis job placed him at an increased risk for developing the disease [,]\u201d as is required for unlisted occupational diseases under N.C. Gen. Stat. \u00a7 97-53(13). Plaintiff correctly states that N.C. Gen. Stat. \u00a7 97-53(20) deems \u201c[s]ynovitis, caused by trauma in employment\u201d as an occupational disease. Plaintiff then argues that the record contains evidence that his wrist synovitis was caused by the trauma of lifting saut\u00e9 grates over the years of his employment with defendant-employer, and if the Commission had used the correct standard, it would have found that plaintiff\u2019s synovitis was compensable as an occupational disease.\nHowever, plaintiff has misapprehended the Commission\u2019s findings. The Commission found that \u201cthere is no medical evidence of record that plaintiff\u2019s employment with defendant-employer exposed him to an increased risk of developing a partial scapholunate ligament tear[,]\u201d a disease which is not included on the list and for which plaintiff was required to prove it was \u201cdue to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.\u201d N.C. Gen. Stat. \u00a7 97-53(13) (2005).\nThough synovitis is identified on the list of occupational diseases, N.C. Gen. Stat. \u00a7 97-53(20), inclusion on the list did not \u201crelax[] the fundamental principle which requires proof of causal relation between injury and employment.... [A]n occupational disease [is not compensable] unless it [is] shown that the disease was incident to or the result of the particular employment in which the work[er] was engaged.\u201d Duncan v. Charlotte, 234 N.C. 86, 91, 66 S.E.2d 22, 25 (1951). Accordingly, N.C. Gen. Stat. \u00a7 97-53(20) requires a plaintiff to show that the synovitis was \u201ccaused by trauma in employment.\u201d The \u201cphrase, \u2018caused by trauma in employment\u2019. . . necessarily mean[s] a series of events in employment occurring regularly, or at frequent intervals, over an extended period of time, and culminating in the condition technically known as [[synovitis.\u201d Henry v. A. C. Lawrence Leather Co., 234 N.C. 126, 131, 66 S.E.2d 693, 697 (1951). Furthermore, a plaintiff may not bootstrap a disease which results from a prior injury without appropriate medical testimony to link the disease to a compensable injury. See Coe v. Haworth Wood Seating, 166 N.C. App. 251, 254, 603 S.E.2d 549, 551 (2004) (affirming an award of compensation for a left arm injury when a medical expert testified that the left arm injury was caused by overuse of the left arm while working under restrictions imposed because of a compensable right arm injury).\nDr. Moore examined plaintiff in November 2005. According to Dr. Moore, a scapholunate ligament tear normally is caused by an acute injury, not by a repetitive process. He testified that \u201cthe synovitis is probably a result of the [partial scapholunate] ligament tear.\u201d Dr. Moore also testified that plaintiff had given a history of wrist pain dating back to 2002, and he had no way of knowing whether the scaphoid injury pre-dated the 12 May 2004 incident. He further testified that the likelihood of a scapholunate ligament tear from \u201cpure[ly] lifting\u201d the grate \u201cwould be low.\u201d The Commission\u2019s nin\u00e9teenth finding quoted supra is therefore fully supported by Dr. Moore\u2019s testimony and binding on appeal.\nIn sum, the evidence shows plaintiff\u2019s synovitis did result from the tear, but the Commission found that the tear was not caused by plaintiff\u2019s employment. The Commission therefore applied the correct standard to plaintiff\u2019s synovitis under N.C. Gen. Stat. \u00a7 97-53(20) and found based upon the evidence that the synovitis was caused not by \u201ctrauma in employment,\u201d but as a consequence of the scapholunate tear, a condition which it properly evaluated under N.C. Gen. Stat. \u00a7 97-53(13) and determined was not caused by plaintiff\u2019s employment. This assignment of error is without merit.\nB. Ulnar Neuropathy in Elbow\nPlaintiff contends the Commission erred in failing to conclude that his ulnar neuropathy was an \u201coccupational disease\u201d under N.C. Gen. Stat. \u00a7 97-53(13). Again, we disagree.\nPlaintiff specifically argues:\nIn regards to the plaintiff\u2019s ulnar neuropathy for which he primarily treated with Dr. Bahner, the Commission erred by finding that there was no evidence that plaintiff\u2019s job with the defendant employer exposed him to an increased risk of developing these conditions [and] that the plaintiff did not contract a compensable occupation [sic] disease pursuant to N.C. Gen. Stat. \u00a7 97-53(13).\nDr. Bahner [said] that he could state to a medical degree of certainty that \u201ca job of the labor and repetitive action and use that he described and related to me and that I have observed by being a patron in the restaurant, by the way, could aggravate an existing ulnar neuritis or ulnar neuropathy.\u201d\n[Therefore, t]he Commission erred on this issue and should be reversed with a finding that the plaintiffs employment significantly aggravated his pre-existing ulnar condition and it is therefore compensable.\nN.C. Gen. Stat. \u00a7 97-53 lists twenty-eight different types of occupational diseases and includes provision for compensability of an unlisted disease not in the list, if the disease \u201cis proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.\u201d N.C. Gen. Stat. \u00a7 97-53(13). In other words, for an unlisted disease to be deemed an \u201coccupational disease\u201d under N.C. Gen. Stat. \u00a7 97-53(13), the plaintiff must show that he \u201cwas exposed in his employment to the risk of contracting [the disease] in a far greater degree and in a wholly different manner than is the public generally.\u201d Booker v. Duke Medical Center, 297 N.C. 458, 475, 256 S.E.2d 189, 200 (1979) (emphasis added, citation and quotation marks omitted). Furthermore, in addition to showing that the disease should be deemed an \u201coccupational disease\u201d pursuant to N.C. Gen. Stat. \u00a7 97-53(13), plaintiff bears the burden of proving that his contraction of the disease was caused by his employment rather than some other means. Booker at 475-76, 256 S.E.2d at 200 (citing Duncan at 91, 66 S.E.2d at 25).\nOn careful review of the record, we find no evidence that plaintiff was exposed to an increased risk of developing ulnar neuropathy in his job to a \u201cfar greater degree and in a wholly different manner than is the public generally.\u201d Booker, 297 N.C. at 475, 256 S.E.2d at 200 (citation and quotation marks omitted). At best, plaintiff presented some evidence that repetitive motions such as those he used in his job as a saut\u00e9-cook could aggravate a preexisting ulnar neuropathy, but no evidence comparing plaintiffs job duties or his development of the neuropathy to the manner and degree of the development of this same disease as it occurs in the general public.\nThe Commission\u2019s tenth and eleventh findings state in pertinent part:\n10. ... The therapist reported to Dr. Bahner that plaintiff had no swelling or discoloration, but demonstrated a lot of facial grimacing with attempted use. Dr. Bahner testified that this supported his opinion that plaintiff\u2019s reports of symptoms might be out of proportion to the objective medical evidence.\n11. At his deposition Dr. Bahner was unable to state with medical certainty that plaintiff\u2019s job duties caused the ulnar neuropathy, but did give an opinion that the labor and repetitive action of plaintiff\u2019s job could aggravate an existing ulnar neuritis or neuropathy.\nPlaintiff did not assign error to either of those findings; therefore they are binding on appeal, Gainey, 184 N.C. App. at 501, 646 S.E.2d at 607, and they support the Commission\u2019s conclusion that plaintiff\u2019s ulnar neuropathy was not compensable.\nPlaintiff also has not pointed us to any record evidence which was improperly ignored by the Commission, and we find none, that plaintiff\u2019s ulnar neuropathy existed before he began his employment with defendant-employer or before he lifted the saut\u00e9 grate on 12 May 2004. Dr. Bahner\u2019s opinion which plaintiff quoted in his brief, supra, as to aggravation of a pre-existing ulnar neuropathy was therefore conjectural and could not have been relied on by the Commission to conclude plaintiff\u2019s ulnar neuropathy was compensable. Seay v. Wal-Mart Stores, Inc., 180 N.C. App. 432, 437, 637 S.E.2d 299, 303 (2006) (\u201cAn expert\u2019s opinion that was solicited through the assumption of facts unsupported by the record is entirely based on conjecture.\u201d). Without competent evidence in the record that plaintiff\u2019s ulnar neuropathy was caused by his employment with defendant-employer, we conclude that this assignment of error is also without merit.\nVI. Extent of Disability\nPlaintiff last argues that the Commission failed to make findings of fact and conclusions of law on all of the issues that were before the Commission, specifically as to the extent of plaintiff\u2019s disability. However, given our ruling above that the Commission did not err by its findings and conclusions that plaintiff did not suffer a compensable injury by accident or from a compensable occupational disease, there was no need for the Commission to address the extent of plaintiffs disability. There is likewise no need for us to address this issue.\nVII. Conclusion\nThe Industrial Commission concluded that plaintiff had not proven that any of his diseases or injuries resulted from plaintiffs employment with defendant-employer. Because its conclusions were based on correct apprehension of the law and supported by its findings of fact which in turn were supported by competent evidence, we affirm the Commission\u2019s 22 June 2007 Opinion and Award.\nAFFIRMED.\nJudges HUNTER and ELMORE concur.\n. The employer is identified as Atlantic Quest Corporation on the initial filings and on the deposition transcripts. Later, for no apparent reason, the employer\u2019s name changes to Eddie Romanelle\u2019s. As best we can tell, Atlantic Quest Corporation was doing business as Eddie Romanelli\u2019s restaurant. We also note.that \u201cRomanelle\u2019s\u201d appears to be misspelling of \u201cRomanelli\u2019s.\u201d\n. Plaintiff consistently refers to his cervical radiculopathy as a \u201cneck injury.\u201d However, defendants do not dispute that cervical radiculopathy is a back injury for purposes of N.C. Gen. Stat. \u00a7 97-2(6) or argue that the \u201cspecific traumatic incident\u201d standard is inapplicable. See Raper, 189 N.C. App. at 284, 657 S.E.2d at 906 (\u201cDefendants concede that plaintiff\u2019s injury to his cervical spine was a back injury [subject to the] specific traumatic incident [standard].\u201d (Original brackets and quotation marks omitted.)).\n. Plaintiff also assigned error to the Commission\u2019s twentieth finding of fact. However, because plaintiff did not bring this assignment of error forward and argue it in the brief it is deemed abandoned. N.C.R. App. P. 28(b)(6).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Brumbaugh, Mu & King, P.A., by Leah L. King, for plaintiff - appellant.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P, by Erica B. Lewis and Erin T. Collins, for defendant-appellees." ], "corrections": "", "head_matter": "JEFFREY T. LANIER, Employee, Plaintiff v. EDDIE ROMANELLE\u2019S, Employer, KEY RISK MANAGEMENT SERVICES, Carrier, Defendants\nNo. COA07-1154\n(Filed 19 August 2008)\n1. Workers\u2019 Compensation\u2014 injury by accident \u2014 neck\u2014specific traumatic incident\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding plaintiff employee\u2019s neck injury was not compensable as an injury by accident because: (1) although plaintiff testified that his neck injury arose from a specific traumatic incident, the law required plaintiff to prove by a preponderance of the evidence that his neck injury was the direct result of a specific traumatic incident of the work assigned; (2) the Commission, as fact-finder, was free to reject plaintiff\u2019s testimony as to the cause of his neck injury and rely on other testimony of causation; and (3) the Commission expressly relied on a doctor\u2019s testimony as to the causation of plaintiff\u2019s neck injury, and the doctor acknowledged on cross-examination that he did not haye any documented cause for plaintiff\u2019s cervical condition and that his opinion on causation was mere speculation.\n2. Workers\u2019 Compensation\u2014 occupational disease \u2014 synovitis in wrist \u2014 trauma in employment\nThe Industrial Commission did not err in a workers\u2019 compensation case by its finding of fact that plaintiff employee\u2019s synovitis in his wrist was not compensable as an injury by accident because: (1) although plaintiff contends the Commission misapprehended the law since synovitis is a listed occupational disease that did not require plaintiff to show his job placed him at an increased risk for developing the disease, the Commission found that there was no medical evidence of record that plaintiff\u2019s employment with defendant employer exposed him to an increased risk of developing a partial scapholunate ligament tear, a disease which was not included on the occupational disease list and for which plaintiff was required to prove it was due to causes and conditions which were characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of employment; (2) N.C.G.S. \u00a7 97-53(20) required plaintiff to show that the synovitis was caused by trauma in employment, meaning a series of events in employment occurring regularly, or at frequent intervals, over an extended period of time and culminating in the condition technically known as synovitis; (3) a doctor who examined plaintiff testified that a scapholunate ligament tear normally is caused by an acute injury and not by a repetitive process, and that the synovitis was probably the result of the ligament tear; and (4) although the evidence showed plaintiff\u2019s synovitis did result from the tear, the tear was not caused by plaintiff\u2019s employment.\n3. Workers\u2019 Compensation\u2014 occupational disease \u2014 ulnar neuropathy \u2014 no showing of increased risk\nThe Industrial Commission did not err in a workers\u2019 compensation case by failing to conclude that plaintiff employee\u2019s ulnar neuropathy in his elbow was an occupational disease under N.C.G.S. \u00a7 97-53(13) because: (1) there was no evidence that plaintiff was exposed to an increased risk of developing ulnar neuropathy in his job to a far greater degree and in a wholly different manner than is the public generally; (2) at best, plaintiff presented some evidence that repetitive motions such as those he used in his job as a saut\u00e9 cook could aggravate a pre-existing ulnar neuropathy; (3) the Commission\u2019s findings of fact support its conclusion that plaintiff\u2019s ulnar neuropathy was not compensable, and plaintiff failed to assign error to those findings, thus making them binding on appeal; and (4) plaintiff did not point to any record evidence that was improperly ignored by the Commission, nor was any found, that plaintiff\u2019s ulnar neuropathy existed before he began his employment with defendant or before he lifted the saut\u00e9 grate on 12 May 2004, and thus, a doctor\u2019s opinion that plaintiff quoted in his brief regarding the aggravation of a pre-existing ulnar neuropathy was therefore conjectural and could not have been relied upon by the Commission to conclude it was compensable.\n4. Workers\u2019 Compensation\u2014 disability \u2014 findings of fact\u2014 conclusions of law\nAlthough plaintiff employee contends the Industrial Commission erred in a workers\u2019 compensation case by its findings of fact and conclusions of law on all of the issues before the Commission regarding the extent of plaintiff\u2019s disability, there was no need for the Commission to address the extent of plaintiff\u2019s disability because of its findings and conclusions that plaintiff did not suffer a compensable injury by accident or from a compensable occupational disease.\nAppeal by plaintiff from Opinion and Award entered 22 June 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 March 2008.\nBrumbaugh, Mu & King, P.A., by Leah L. King, for plaintiff - appellant.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P, by Erica B. Lewis and Erin T. Collins, for defendant-appellees." }, "file_name": "0166-01", "first_page_order": 194, "last_page_order": 206 }