Livingston v. James C. Fields, & Co.

377 S.E.2d 788 (1989)

Stanley LIVINGSTON, Employee Plaintiff, v. JAMES C. FIELDS, & CO., Employer, and Self-Insured, (Carolina Administrators, Incorporated), Carrier Defendant.

No. 8810IC1101.

Court of Appeals of North Carolina.

April 4, 1989.

Donald B. Hunt, Raleigh, for plaintiff-appellant.

Maupin Taylor Ellis & Adams, P.A. by Richard M. Lewis and Jack S. Holmes, Raleigh, for defendant-appellee.

LEWIS, Judge.

In Richards v. Town of Valdese, 92 N.C.App. 222, 374 S.E.2d 116 (1988), this Court faced a similar issue. Citing G.S. 97-2(6), the Court said a claimant may show a back injury by proving either (1) injury by accident, defined as an unlooked for and untoward event which is not expected or designed by the injured person or (2) injury arising from a specific traumatic incident. Id. A "specific traumatic incident" means the "injury must not have developed gradually but must have occurred at a cognizable time." Bradley v. E.B. Sportswear, Inc., 77 N.C.App. 450, 452, 335 S.E.2d 52, 53 (1985). In this context, "cognizable" means capable of being judicially known and determined. Here, over a period of two hours, plaintiff picked up various pieces of trash and threw or carried them to another place. He testified that the pieces were no heavier than things he normally lifted though he usually did not move trash.

*789 In Richards v. Town of Valdese, supra, this Court stated:

We believe that through the [1983] amendment [to G.S. 97-2(6) ], the General Assembly also recognized the complex nature of back injuries, and did not intend to limit the definition of specific traumatic incident to an instantaneous occurrence. Back injuries that occur gradually, over long periods of time, are not specific traumatic incidents; however, we believe that events which occur contemporaneously, during a cognizable time period, and which cause a back injury, do fit the definition intended by the legislature.

Id. 92 N.C.App. at 225, 374 S.E.2d at 118-19. Plaintiff contends there is evidence that his back injury occurred during a cognizable time period and therefore he is entitled to compensation. We disagree.

We recognize that a "specific traumatic incident" could occur during a "cognizable time" of two hours but in every case there must be evidence of proximate cause between the "specific traumatic incident" and the injury. In this case plaintiff's witness, Dr. Rendleman, testified that he did not know the cause of plaintiff's herniated disc. He did not have an opinion satisfactory to himself that the back condition was a result of the activity plaintiff undertook on the 16th of May. Plaintiff testified he had moved his own household goods including appliances and furniture "between March and May" of 1980.

The Full Commission found as fact that "[g]iven the gradual onset of the stiffness and the difficulty suffered by plaintiff, plaintiff's injury to his back, which was later diagnosed and treated as a herniated lumbar disc, was not the result of a specific traumatic incident of his assigned work" and concluded that "[o]n May 16, 1985 the plaintiff did not sustain an injury to his back which was the direct result of a specific traumatic incident of his assigned work. N.C.G.S. 97-2(6)." The findings of fact by the Industrial Commission are conclusive on appeal if there is any competent evidence to support them and even if there is evidence that would support contrary findings. Adams v. Burlington Industries, 61 N.C.App. 258, 300 S.E.2d 455 (1983). Plaintiff's own evidence supports the findings of fact. The Industrial Commission has competent evidence to support its findings and conclusions.

AFFIRMED.

HEDRICK, C.J., and WELLS, J., concur.