Allgood v Parsons Trucking Company
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA01-517 NORTH CAROLINA COURT OF APPEALS Filed: 5 February 2002 BOBBY ALLGOOD, Plaintiff-Appellant North Carolina Industrial Commission I.C. No. 633701 v. PARSONS TRUCKING COMPANY, Defendant-Appellee; SELF-INSURED (AIG CLAIMS SERVICES, INC.), Servicing Agent. Appeal by plaintiff from opinion and award entered 21 February 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 January 2002. Franklin Smith for plaintiff-appellant. Teague, Campbell, Dennis, & Gorham, L.L.P., by Melissa R. Garrell and Tara L. Davidson, for defendant-appellee. BRYANT, Judge. Plaintiff appeals from the denial of his claim for workers compensation benefits. distance truck Plaintiff, employed by defendant as a long driver, sought compensation for injuries he allegedly sustained to his knee and back when he fell while disembarking from his truck cab on 12 February 1996. request for a hearing on 12 February 1998. He filed a Defendant responded to the request for a hearing by denying compensability on the ground -2that plaintiff did not sustain an injury by accident arising out of and in the course of employment or develop an occupational disease. Deputy Commissioner Edward Garner, Jr., heard lay testimony on 3 December 1998 and after receiving deposition testimony of two medical witnesses, filed an opinion and award denying compensation. Plaintiff appealed to the Full Commission, which also denied compensation based upon the following findings of fact: 1. Plaintiff, who was sixty-one years old at the time of the hearing before the Deputy Commissioner, worked as a truck driver most of his adult life. 2. On 12 February 1996, plaintiff was employed by defendant as a long distance truck driver. On that date, as he was climbing out of the cab of his truck in his usual and customary fashion, he experienced a sharp pain in his knee and fell to the ground. Plaintiff did not sustain an injury to his back or knee as a result of the fall. 3. When plaintiff returned to North Carolina with his truck on 13 February 1996, he did not indicate on the driver inspection report for that trip that the truck seat was broken. 4. On 16 February 1996, plaintiff was seen by Larry A. Pearce, M.D., for complaints of neck and back pain. Plaintiff reported a history of worsening back and neck pain over the preceding year. He also indicated that his pain was aggravated by his job as a long distance truck driver. Plaintiff did not describe injuring himself as the result of a fall from his truck, and he did not initially report that his truck seat was broken. 5. Plaintiff suffers from degenerative disc disease of the cervical and lumbar spine. This is an ordinary disease of life which is common in persons of plaintiff s age due to wear and tear of the body which accumulates over time. 6. Plaintiff s claim that he injured his back -3when he fell from his truck on 12 February 1996 is not accepted as credible. 7. The greater weight of the evidence fails to show that plaintiff s degenerative disc disease of the lumbar and cervical spine was caused or significantly contributed to by his employment with defendant or that plaintiff s job placed him at an increased risk for contracting his condition as compared to members of the general public not so employed. 8. Even if plaintiff made three to six trips with a broken seat, the repetitive slapping of that seat may have aggravated his symptoms, but it did not cause, aggravate, or accelerate the degenerative changes present in plaintiff s spine. Based upon these findings of fact, the Full Commission concluded plaintiff did not sustain an injury by accident arising out of and in the course of his employment with defendant. It also concluded plaintiff failed to prove that his degenerative disc disease was characteristic of and peculiar to his employment with defendant and that his employment caused, or significantly contributed to, the development of the condition. Plaintiff contends that the Commission s findings of fact, conclusions of law, and award are contrary to the greater weight of the evidence. We disagree. Appellate review of an opinion and award of the Industrial Commission is limited to a determination of whether the Commission s findings of fact are supported by the evidence and whether the findings support the conclusions of law. Norton v. Waste Management, Inc., ___ N.C. App. ___, ___, 552 S.E.2d 702, 704 (2001). The appellate court does not weigh the evidence but merely determines whether competent evidence exists to support the -4findings made by the Commission. S.E.2d at 705. Norton, ___ N.C. App. at ___, 552 If such evidence exists, then the Commission s findings are conclusive and binding even though the record may contain evidence to support contrary findings. Oliver v. Lane Co., 143 N.C. App. 167, 170, 554 S.E.2d 606, 608 (2001). To be compensable, any incapacity to earn wages, resulting either from an injury by accident arising out of and in the course of the employment or from an occupational disease, must spring from the employment. Morrison v. Burlington Industries, 304 N.C. 1, 13, 282 S.E.2d 458, 467 (1981). Disability that is caused by and resulting from a disease is compensable only when the disease is an occupational disease or is aggravated or accelerated by an occupational disease or injury by accident arising out of and in the course of the employment. 304 N.C. 670, 679-80, 285 Walston v. Burlington Industries, S.E.2d 822, 828 (1982). Since degenerative disc disease is not among the occupational diseases listed in N.C.G.S. § 97-53, it qualifies as one under the catchall definition of N.C.G.S. § 97-53(13) only if it is 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. See Griffitts v. Thomasville Furniture Co., 65 N.C. App. 369, 371, 309 S.E.2d 277, 279 (1983), review denied by 310 N.C. 477, 312 S.E.2d 884 (1984). Applying these principles to the present case, we find evidentiary support in the record for the Commission s findings of -5fact and decision. Dr. Larry A. Pearce testified that plaintiff s degenerative disc disease was not caused by any specific injury but by chronic repetitive motion. plaintiff s aggravated degenerative by any disc unsecured Dr. David N. DuPuy testified that disease or loose was not seat. caused Dr. by DuPuy or also testified that studies show almost conclusively that no occupation causes a degenerative disc. It s familial. It s genetic. It has to do with how the DNA forms the disc in embryonic development. We hold the Commission correctly concluded that plaintiff failed to show he has an occupational disease because the condition was not shown employment. to be characteristic of and peculiar to his Plaintiff also failed to show he sustained an injury by accident arising out of and in the course of his employment. The opinion and award is affirmed. Affirmed. Judges WYNN and THOMAS concur. Report per Rule 30(e).
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