{
  "id": 8527423,
  "name": "ALICE NELSON, Employee, Plaintiff v. FOOD LION, INCORPORATED, Employer, SELF-INSURED, (Alexsis, Incorporated) Defendants",
  "name_abbreviation": "Nelson v. Food Lion, Inc.",
  "decision_date": "1989-01-17",
  "docket_number": "No. 8810IC501",
  "first_page": "592",
  "last_page": "594",
  "citations": [
    {
      "type": "official",
      "cite": "92 N.C. App. 592"
    }
  ],
  "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": "284 S.E. 2d 183",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1981,
      "opinion_index": 0
    },
    {
      "cite": "54 N.C. App. 607",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8524360
      ],
      "year": 1981,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/54/0607-01"
      ]
    },
    {
      "cite": "327 S.E. 2d 890",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "313 N.C. 329",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4718689,
        4718243,
        4721833,
        4725486,
        4720539
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/nc/313/0329-05",
        "/nc/313/0329-01",
        "/nc/313/0329-04",
        "/nc/313/0329-02",
        "/nc/313/0329-03"
      ]
    },
    {
      "cite": "323 S.E. 2d 29",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
      "opinion_index": 0
    },
    {
      "cite": "71 N.C. App. 377",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8525367
      ],
      "year": 1984,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/71/0377-01"
      ]
    },
    {
      "cite": "277 N.C. 112",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8562441,
        8562409,
        8562347,
        8562380,
        8562316,
        8562292
      ],
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/nc/277/0112-06",
        "/nc/277/0112-05",
        "/nc/277/0112-03",
        "/nc/277/0112-04",
        "/nc/277/0112-02",
        "/nc/277/0112-01"
      ]
    },
    {
      "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": "612"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/8/0604-01"
      ]
    },
    {
      "cite": "70 S.E. 2d 706",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1952,
      "opinion_index": 0
    },
    {
      "cite": "235 N.C. 602",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8626215
      ],
      "year": 1952,
      "opinion_index": 0,
      "case_paths": [
        "/nc/235/0602-01"
      ]
    },
    {
      "cite": "269 S.E. 2d 667",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1980,
      "opinion_index": 0
    },
    {
      "cite": "48 N.C. App. 489",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8551366
      ],
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/48/0489-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 395,
    "char_count": 6429,
    "ocr_confidence": 0.808,
    "pagerank": {
      "raw": 2.3728075846420702e-07,
      "percentile": 0.7957313341434191
    },
    "sha256": "50020ba63f6bc2029080ab34f36c9500dc90aa79449d887666f3af1857816a2b",
    "simhash": "1:463e702a089410cc",
    "word_count": 1030
  },
  "last_updated": "2023-07-14T21:55:11.858082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges BECTON and Greene concur."
    ],
    "parties": [
      "ALICE NELSON, Employee, Plaintiff v. FOOD LION, INCORPORATED, Employer, SELF-INSURED, (Alexsis, Incorporated) Defendants"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nIn this workers\u2019 compensation action plaintiff argues that the Industrial Commission (Commission) should have found that the ankle injury she suffered on 21 June 1986 was compensable under the Act because it was a direct and natural result of a previous compensable ankle injury. We hold that the Commission\u2019s findings of fact are insufficient because they do not address whether or not plaintiffs injury was caused or related to her earlier injury for which she had been compensated. Accordingly, we vacate and remand for additional findings of fact.\nThe standard of review in workers\u2019 compensation cases is limited. We may determine only whether the findings of fact are supported by any competent evidence and whether they, in turn, support the Commission\u2019s conclusions of law. Hollar v. Furniture Co., 48 N.C. App. 489, 269 S.E. 2d 667 (1980). If, however, the Commission\u2019s findings of fact do not determine all of the issues arising from the action, we must remand the case to the Industrial Commission for additional findings. Thomason v. Cab Co., 235 N.C. 602, 70 S.E. 2d 706 (1952).\nPlaintiff argues that the ankle injury she suffered on 21 June 1986 was a direct result of an earlier work related injury. Her first injury occurred on 5 July 1983 when she fell from a milk crate while stocking shelves at defendant\u2019s store. Plaintiff testified that she severely sprained her ankle and received workers\u2019 compensation benefits for her injuries caused by this fall. She contends that this first injury never properly healed because of numerous subsequent ankle sprains. Further, her doctor, Dr. Maultsby, stated that these later sprains were directly related \u201cto some instability that [plaintiff] had in her ankle from her first injury.\u201d Dr. Maultsby also observed that once a person sprains an ankle it requires \u201clittle provocation\u201d to resprain it. Plaintiff contends that this evidence shows that her 21 June 1986 injury was directly caused by her 5 July 1983 injury.\nIn Starr v. Paper Co., 8 N.C. App. 604, 612, 175 S.E. 2d 342, 347, cert. denied, 277 N.C. 112 (1970), we held \u201cthat a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.\u201d See also Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 323 S.E. 2d 29 (1984), disc. rev. denied, 313 N.C. 329, 327 S.E. 2d 890 (1985). Here plaintiff presented sufficient evidence that a fact finder might determine that the 5 July 1983 injury was the proximate cause of the 21 June 1986 injury. A finding in plaintiffs favor on this issue would entitle her to workers\u2019 compensation benefits irrespective of the other issues raised here. The Commission\u2019s findings of fact, however, are silent on the proximate cause issue. Accordingly, we vacate and remand to the Industrial Commission for additional findings of fact.\nDefendant further argues that plaintiffs action is a request for a change of condition regarding her 5 July 1983 injury and, therefore, is barred because it was not timely brought pursuant to G.S. 97-47. Assuming arguendo that G.S. 97-47 applies, we hold that defendant may not raise this technical defense for the first time on appeal. This defense must be affirmatively raised prior to a hearing on the merits or it is waived. Gragg v. Harris & Son, 54 N.C. App. 607, 284 S.E. 2d 183 (1981). Our holding here makes it unnecessary to address plaintiffs additional assignment of error.\nVacate and remand.\nJudges BECTON and Greene concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Leigh Rodenbough for plaintiff-appellant.",
      "Smith Helms Mulliss & Moore, by Jeri L. Whitfield and J. Donald Cowan, Jr., for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "ALICE NELSON, Employee, Plaintiff v. FOOD LION, INCORPORATED, Employer, SELF-INSURED, (Alexsis, Incorporated) Defendants\nNo. 8810IC501\n(Filed 17 January 1989)\n1. Master and Servant \u00a7 94.1\u2014 workers\u2019 compensation \u2014 relation of injury to previous injury \u2014 failure of Commission to make required findings\nFindings of fact by the Industrial Commission were insufficient because they did not address whether plaintiffs knee injury was caused by or related to her earlier ankle injury for which she had received workers\u2019 compensation benefits.\n2. Master and Servant g 77.2\u2014 workers\u2019 compensation \u2014 timeliness of request for change of condition \u2014 affirmative defense\nDefendant\u2019s defense in a workers\u2019 compensation case that plaintiffs action was a request for a change of condition regarding her earlier injury and was therefore barred because it was not timely brought pursuant to N.C.G.S \u00a7 97-47 could not be raised for the first time on appeal; rather, it should have been affirmatively raised prior to a hearing on the merits.\nAppeal by plaintiff from an opinion and award of the North Carolina Industrial Commission entered on 21 January 1988. Heard in the Court of Appeals 27 October 1988.\nPlaintiff, Alice Nelson, brought this action to recover workers\u2019 compensation benefits for injuries sustained on or about 21 June 1986 to her right ankle and right knee while working for Food Lion, Incorporated (defendant). The evidence here tended to show that while working at defendant\u2019s store on 21 June 1986 plaintiff was in the office counting the money in the cash register tills. As she left the office to get another till, she had to take a step or two down because the office was elevated above the main floor level. While stepping onto the floor plaintiff testified that \u201cmy ankle and my knee gave away.\u201d Consequently, plaintiff sprained her ankle and twisted her knee. She was able to maintain her balance without falling to the floor. Her doctor subsequently discovered damage to her knee which he attributed to plaintiffs history of multiple ankle sprains. In order to repair plaintiffs knee she underwent two arthroscopic operations.\nDefendant, a self-insurer, denied coverage under the Workers\u2019 Compensation Act (Act). Plaintiff requested a hearing. On 16 April 1987 Deputy Commissioner Tamara R. Warstler heard the case and ruled that plaintiff was not entitled to receive workers\u2019 compensation benefits. The Deputy Commissioner found that plaintiffs injury \u201cwas not caused by an accident,\u201d but rather \u201cwas caused solely by an idiopathic condition, i.e., right ankle instability.\u201d Plaintiff appealed to the full Commission which affirmed and adopted Deputy Commissioner Warstler\u2019s opinion as its own. Plaintiff appeals.\nLeigh Rodenbough for plaintiff-appellant.\nSmith Helms Mulliss & Moore, by Jeri L. Whitfield and J. Donald Cowan, Jr., for defendant-appellees."
  },
  "file_name": "0592-01",
  "first_page_order": 622,
  "last_page_order": 624
}
