Bass v. Harnett Cnty. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-261
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
MELISSA B. BASS,
Employee, Plaintiff,
v. From North Carolina Industrial
Commission
I.C. No. X65648
HARNETT COUNTY,
Employer, SELF-INSURED
(Key Risk Management
Services, Servicing Agent),
Defendant.
Appeal by Plaintiff from opinion and award entered 20
November 2013 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 27 August 2014.
Lucas, Denning, & Ellerbe, P.A., by Sarah E. Ellerbe and
Martha S. Bradley, and David F. Mills, P.A., by David F.
Mills, for Plaintiff.
Prather Law Firm, P.C., by J.D. Prather, for Defendant.
STEPHENS, Judge.
Factual and Procedural Background
This appeal arises from Plaintiff Employee Melissa B.
Bass’s claim for workers’ compensation benefits against her
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employer, Defendant Harnett County (“the County”). Based on the
evidence presented, the North Carolina Industrial Commission
(“the Full Commission”) made the following pertinent findings of
fact:
1. At the time of the hearing before the
Full Commission, Plaintiff was 45 years old
and married. She had worked with Defendant-
Employer, Harnett County, for approximately
10 years in various capacities, and at the
time of the alleged injury she was working
as a paramedic. Plaintiff’s job duties
included responding to calls, treatment of
emergency patients, and transporting the
patients to the hospital, if necessary. She
also previously worked for Harnett County as
a secretary (Secretary IV) and as a 911
dispatcher in the sheriff’s office.
2. Before the alleged injury Plaintiff had
been diagnosed with and treated for
rheumatoid arthritis with symptoms beginning
prior to 2004. Dr. Kinga M. Vereczkey-
Porter of Sanford Specialty Clinics began
treating Plaintiff for this condition in
August 2004 and has continued to treat
Plaintiff since that time.
3. In November 2010, Dr. Porter referred
Plaintiff to a neurosurgeon, Dr. Michael
Haglund at Duke to assess MRI findings and
clinical symptoms consistent with
degenerative arthritis. Plaintiff underwent
a three-level cervical fusion from C4-C7
with Dr. Haglund on 17 November 2010.
4. After the November 2010 cervical
fusion, Plaintiff continued treating with
Dr. [Vereczkey-]Porter for her rheumatoid
arthritis. Dr. [Vereczkey-]Porter saw
Plaintiff on 12 January 2011, and she
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complained of neck and upper back pain. At
the 9 March 2011 visit, Plaintiff complained
of hand and hip pain, joint swelling, and
stiffness.
5. Plaintiff was released by Dr. Haglund
to work full-duty as a paramedic in April
2011 without any work restrictions.
6. At a 21 June 2011 visit with Dr.
[Vereczkey-]Porter, Plaintiff complained of
hip pain, left ear discomfort, coughing and
headaches.
7. On 6 July 2011 , Plaintiff was
performing her regular duties working as a
paramedic. On that day, she was working
with a partner, Eddie Woodall of Benhaven
Emergency Services, when they received a
call to go to a personal residence. When
they arrived, the patient was unresponsive.
Plaintiff testified that while she was
assessing the patient, she reached across
her body with her right arm to pick up a
cardiac monitor. Plaintiff slated at that
time she felt a burning sensation in her
neck as she lifted the monitor. Plaintiff
continued assessing the patient, and it was
determined that the patient needed emergency
care. Plaintiff and Woodall transported the
patient to Central Carolina Hospital in
Sanford.
8. Woodall testified:
We had went to a call, and I
believe it was a chest pain call.
Went in the house, we didn’t have
to carry any equipment then,
because we kept all of our
equipment on the stretcher. So
when we rolled the stretcher, we
rolled it up to the front door. I
actually carried the bag and the
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monitor going in, I think. I’m
not for sure. She did her
assessment in the house, decided
we were going to go to the
hospital. I grabbed the bag to
move out to the truck, and she
basically picked the monitor up.
And then when we got to the truck,
after she sat the monitor down
beside the truck so we can — after
we got the patient loaded and
ready to — she said she couldn’t
lift the stretcher. I said,
“okay, I got it.” I picked the
stretcher up. We got the guy in
the truck. And that is when she
told me that she was in a lot of
pain.
The Full Commission finds that Woodall’s
testimony does not describe an injury by
accident or a specific traumatic incident
[of] the work assigned.
9. At the hospital. Plaintiff advised
Woodall that she was experiencing pain in
her neck and arm, therefore, outside
assistance was sought to help transport the
patient into the hospital. Plaintiff and
Woodall then returned to the station in
Harnett County at which time Plaintiff ended
her shift early due to the pain she was
experiencing.
10. On the return trip to Harnett County,
or possibly after she arrived, Plaintiff
contacted her supervisor, West1 Barefoot
(“Barefoot”), by cell phone advising that
she would need to go home because she was
having pain. Barefoot testified that
1
Barefoot is referred to as “Wes” Barefoot in some parts of the
record on appeal.
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Plaintiff called him at approximately 4:38
p.m., and stated that she attributed her
pain to her lupus and “overdoing it” the
past few days. Barefoot testified that
Plaintiff did not mention anything about
injuring her neck or right arm in any work-
related activity.
11. Plaintiff also sent an email to
Barefoot later that evening, stating that
she “had been hurting since Monday but today
it has gotten so bad that [she could not]
take the pain without some relief.”
12. Plaintiff did not seek medical
treatment for her injury at Central Carolina
Hospital immediately after the alleged
injury. She continued treating with the
physician treating her for rheumatoid
arthritis, Dr. [Vereczkey
- ]Porter. Plaintiff only missed part of
one shift and then continued working full-
duty as a paramedic after the alleged
injury. As time went on, the neck pain
continued, and Plaintiff complained that she
was losing the use of the muscles in her
arms as the weakness increased.
13. Plaintiff continued to work fulltime
from 11 July 2011 until 20 September 2011.
14. Following the alleged work-related
injury, Plaintiff continued treating with
Dr. [Vereczkey-]Porter for rheumatoid
arthritis, and saw h[er] on 27 July 2011.
Plaintiff complained of neck stiffness,
tightness, and pain. Dr. [Vereczkey-]Porter
testified that Plaintiff had more muscle
spasms in the upper thoracic spine as well,
but h[er] diagnosis concerning Plaintiff’s
cervical spine did not change from the
diagnosis recorded before the alleged 6 July
2011 injury by accident.
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At a 20 September 2011 appointment with Dr. Vereczkey-Porter,
Plaintiff complained of neck stiffness, tightness, and pain.
Dr. Vereczkey-Porter referred Plaintiff for X rays and took her
out of work. However, Plaintiff did not relate her symptoms to
the alleged incident involving the cardiac monitor.
On 28 September 2011, Plaintiff verbally reported the
alleged incident to the County by contacting Risk Manager
Melinda Bethune. On 30 September 2011, she reported the alleged
work injury to her supervisor, Barefoot. Following her report,
Plaintiff continued to work for the County in a light-duty
position. Regarding Plaintiff’s failure to timely report her
alleged injury, the Full Commission made the following finding
of fact:
18. Plaintiff testified that she did not
tell her supervisor about the cardiac
monitor incident because she did not
appreciate the seriousness of the situation
and she hoped she would feel better after
some rest. She offered additional testimony
that she had just come back to work from her
previous surgery, and she did not want to
admit to herself or anyone else that she had
suffered another injury. Given that
Plaintiff was willing to tell her employer
that she was unable to work due to pain, the
Full Commission finds Plaintiff’s testimony
that she did not want to admit an injury
lacking any credibility. Accordingly, the
Full Commission assigns little or no weight
to Plaintiff’s testimony. The Full
Commission assigns greater weight to the
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testimony of Barefoot than to Plaintiff or
Woodall because Barefoot’s testimony is
supported by the email from Plaintiff to
Barefoot and the medical records.
Plaintiff saw Dr. Vereczkey-Porter again on 19 October
2011, reporting increased pain, numbness, and weakness, along
with headaches, difficulty sleeping, and other symptoms. Dr.
Vereczkey-Porter referred Plaintiff to her neurosurgeon, Dr.
Michael Haglund. Dr. Haglund had previously treated Plaintiff
for degenerative arthritis and performed a three-level cervical
fusion on 17 November 2010. Following that surgery, Plaintiff
had been released to work without restrictions in April 2011.
Following visits in October and November 2011, Dr. Haglund
diagnosed a herniated disk and degenerative changes to
Plaintiff’s spine. On 29 December 2011, Dr. Haglund performed a
second cervical fusion on Plaintiff. On 17 May 2012, Dr.
Haglund set out permanent work restrictions for Plaintiff,
limiting her to lifting no more than 30-50 pounds. Dr. Haglund
believed Plaintiff would reach maximum medical improvement by 29
June 2012 and assigned a 20% permanent partial impairment rating
to Plaintiff’s back with 13% attributable to the November 2010
surgery and 7% to the December 2011 surgery.
Plaintiff returned to light duty work with the County until
31 May 2012 when she was terminated from her job as a paramedic
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because her work restrictions could not be accommodated in that
job. On 1 July 2012, Plaintiff began a clerical job at West
Harnett High School, but quit on 2 August 2012 due to pain. At
the time of the hearing before the Commission, Plaintiff had not
sought further employment.
In its opinion and award filed 20 November 2013, the Full
Commission found as fact that Plaintiff did not suffer an injury
by accident or a specific traumatic incident on 6 July 2011, and
that, even had Plaintiff suffered an injury by accident or a
specific traumatic incident on that date, the County was
prejudiced by her failure to provide timely notice of the
alleged incident without justification. Accordingly, the Full
Commission denied Plaintiff’s claims. From the opinion and
award, Plaintiff appeals.
Discussion
On appeal, Plaintiff argues that the Full Commission erred
in making findings of fact that are not supported by competent
evidence and conclusions of law that are not supported by its
findings of fact. We disagree.
I. Standard of review
Appellate review of an award from the
Industrial Commission is generally limited
to two issues: (1) whether the findings of
fact are supported by competent evidence,
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and (2) whether the conclusions of law are
justified by the findings of fact. Where
there is competent evidence to support the
Commission’s findings, they are binding on
appeal even in light of evidence to support
contrary findings. The Commission’s
conclusions of law are reviewed de novo.
It is the duty of the Commission to decide
the matters in controversy and not the role
of this Court to re-weigh the evidence.
Starr v. Gaston Cty. Bd. Of Educ., 191 N.C. App. 301, 304-05,
663 S.E.2d 322, 325 (2008) (citations and internal quotation
marks omitted). “The Full Commission is the sole judge of the
weight and credibility of the evidence.” Trivette v. Mid-South
Mgmt., Inc., 154 N.C. App. 140, 144, 571 S.E.2d 692, 695 (2002)
(citation and internal quotation marks omitted). This Court’s
role in reviewing an appeal of a Full Commission decision is
settled beyond any question.
II. Findings of fact
Plaintiff first argues that portions of findings of fact 8
and 14 are unsupported by competent evidence. We disagree.
As noted supra, in finding of fact 8, the Full Commission
quoted a portion of Woodall’s testimony and then stated,
“Woodall’s testimony d[id] not describe an injury by accident or
a specific traumatic incident [of] the work assigned” occurring
on 6 July 2011. Plaintiff contends that, while the quoted
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testimony from Woodall does not describe a specific traumatic
incident, other testimony from Woodall did describe a specific
traumatic incident. Plaintiff misperceives this Court’s task on
appeal. We do not reweigh the evidence nor may we sift through
the evidence before the Full Commission in search of evidence
which would contradict the Full Commission’s findings of fact.
We do not second-guess the Full Commission’s credibility
determinations. Here, the Full Commission appears to have found
the quoted portion of Woodall’s testimony the most relevant
and/or credible in undertaking its duty to find the necessary
facts to resolve Plaintiff’s claim. Finding of fact 8 is
supported by competent evidence, and Bass’s argument accordingly
must be overruled.
Plaintiff also contends that no competent evidence supports
the portion of finding of fact 14 which stated that Dr.
Vereczkey-Porter’s “diagnosis concerning Plaintiff’s cervical
spine did not change from the diagnosis recorded before the
alleged 6 July 2011 injury by accident.” However, Plaintiff
then acknowledges that “[t]his finding [of fact] is perhaps
literally true[.]” We agree. Dr. Vereczkey-Porter testified
that there was no change in Plaintiff’s diagnosis concerning her
cervical spine. Because this finding of fact is supported by
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competent evidence, it is binding on appeal. Starr, 191 N.C.
App. at 304-05, 663 S.E.2d at 325. We reject Plaintiff’s
invitation to reweigh the evidence on this point.
Plaintiff further contends that the Full Commission’s
finding of fact that Dr. Vereczkey-Porter’s testimony indicated
there was no change in Plaintiff’s diagnosis did not a fortiori
compel its ultimate finding that Bass suffered no specific
traumatic injury on 6 July 2011. This argument is inapposite.
On appeal, this Court considers only whether the Full
Commission’s determination that Plaintiff did not suffer a
specific traumatic injury on 6 July 2011 is supported by the
other findings of fact. We are not concerned with whether the
evidence and findings of fact might support some other ultimate
finding. Accordingly, Plaintiff’s argument on this issue is
overruled.
Plaintiff next argues that, in finding of fact 18, the Full
Commission did “not provide a basis for the limited credibility
attributed to Plaintiff’s testimony.” This is patently
incorrect. In the challenged finding, the Full Commission was
quite specific about the reasons behind its credibility
determinations:
Given that Plaintiff was willing to tell her
employer that she was unable to work due to
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pain, the Full Commission finds Plaintiff’s
testimony that she did not want to admit an
injury lacking any credibility.
Accordingly, the Full Commission assigns
little or no weight to Plaintiff’s
testimony. The Full Commission assigns
greater weight to the testimony of Barefoot
than to Plaintiff or Woodall because
Barefoot’s testimony is supported by the
email from Plaintiff to Barefoot and the
medical records.
Such credibility determinations are the sole province of the
Full Commission. See Trivette, 154 N.C. App. at 144, 571 S.E.2d
at 695. This argument is overruled.
Plaintiff also argues that no competent evidence supported
the finding of fact that, even if she had suffered a specific
traumatic incident, she did not have a reasonable excuse for
failing to give her employer timely notice. Because we affirm
the Full Commission’s determination that Plaintiff did not, in
fact, suffer a specific traumatic injury on 6 July 2011, any
findings about reasonable excuse in the delay of reporting the
alleged incident are unnecessary, and we need not address this
argument. We likewise need not address Plaintiff’s argument on
the propriety of the conclusions of law on the notice issue.
III. Conclusions of law
Plaintiff’s argument that the Full Commission erred in
concluding as a matter of law that she failed to prove a
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specific traumatic incident and is thus not entitled to benefits
is based upon her allegations of error in the findings of fact
as discussed supra. Having concluded that the Full Commission’s
findings of fact are supported by competent evidence, we again
reject Plaintiff’s contention that, had the Full Commission made
different determinations regarding the weight of the evidence
and the credibility of the witnesses, it would have made
different findings which in turn would have resulted in
different determinations. The opinion and award of the Full
Commission is
AFFIRMED.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).