Vandiford v. Stewart Equipment Co. , 98 N.C. App. 458 ( 1990 )

LEWIS, Judge.

The issue before this Court is whether plaintiff’s injury and disability from his October 1984 accident arose out of or was in the course of his employment. For these injuries to be compensable, they must result from an injury by accident arising out of and in the course of employment. Barham v. Food World, Inc., 300 N.C. 329, 332, 266 S.E.2d 676, 678 reh’ing denied, 300 N.C. 562, 270 S.E.2d 105 (1980). A subsequent injury to an employee, whether an aggravation of the original injury or a new and distinct injury, is compensable only if it is the direct and natural result of a prior compensable injury. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 610, 175 S.E.2d 342, 347 (1970). The plaintiff must therefore establish a causal relationship between the February 1984 back injury and the October 1984 injury.

Our inquiry is limited solely to whether there was competent evidence before the Commission to support its findings of fact. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 762 (1950). Moreover, if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commissioner is conclusive on appeal. Dolbow v. Holland Industries., Inc., 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), cert. denied, 310 N.C. 308, 312 S.E.2d 651 (1984). The duty of this Court in reviewing the validity of the award on appeal is to ascertain whether there is any competent evidence in the record to support such a finding. Id. at 696, 308 S.E.2d 336.

Defendant argues that because plaintiff’s doctor testified that plaintiff was treated for back pain in 1980 and again in 1982, his thrombophlebitic condition was not necessarily a natural and direct result of the February 1984 accident. Dr. Overby, plaintiffs treating physician for the thrombophlebitis, testified that in his opinion this condition was related to the plaintiff being at bed rest following his back injury of October 1984. Defendant asserts that because plaintiff suffered from some back problems which were treated in 1980 and 1982, his October 1984 injury could have stemmed from the 1980 and 1982 back problems and therefore the throm-bophlebitis does not arise out of his employment. We disagree.

There is a distinction between the proximate cause doctrine in workers’ compensation cases and that applied in cases of tort. Starr v. Charlotte Paper Co., Inc., supra at 610, 175 S.E.2d 347. While there must be some causal connection between the employment and the injury, it is not necessary that the original injury be the sole cause of the second injury. Id.

The hazards of employment do not have to set in motion the sole causative force of an injury in order to make it compen-sable. By the weight of authority it is held that where a workman by reason of constitutional infirmities is predisposed to sustain injuries while engaged in labor, nevertheless the leniency and humanity of the law permit him to recover compensation if the physical aspects of the employment contribute in some reasonable degree to bring about or intensify the condition which renders him susceptible to such accident and consequent injury.

Id. (quoting, Vause v. Equipment Co., 233 N.C. 88, 63 S.E.2d 173 (1951)). Dr. Pelletier’s medical notes regarding the October 1984 injuries indicated that plaintiff had “aggravated his pre-existing back condition.” In Mayo v. City of Washington, the Court affirmed the award of the Commission based upon evidence of the treating physician’s notes which indicated that plaintiff had been injured on the job and “was reinjured today.” The Mayo court held that “[t]his was sufficient medical evidence to establish a causal connection between the [first compensable] . . . accident and the subsequent injuries.” Mayo v. City of Washington, 51 N.C. App. 402, 407, 276 S.E.2d 747, 750 (1981). According to Dr. Pelletier’s deposition testimony, all of the workers’ compensation forms filed by his office, including those filed after the October 1984 incident, indicate the date of injury as February 1984.

The evidence supports the Commission’s findings that as a result of the February 1984 accident, plaintiff suffered additional injuries in October 1984 and we affirm those findings.

Defendants also argue that because the plaintiff was injured in 1984, he is not entitled to recover permanent disability compensation. Both plaintiff’s back and leg injuries are “scheduled injuries.” G.S. § 97-31. Prior to 1986 the Supreme Court had interpreted the Workers’ Compensation Act to limit recovery to an employee only to those benefits enumerated in G.S. § 97-31, if all the injuries were “scheduled injuries.” Plaintiff, under this interpretation of the law, would not be allowed to recover total permanent disability benefits. However, in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336 (1986), our Supreme Court interpreted the Workers’ Compensation Act to allow total permanent disability benefits to an employee who only sustained “scheduled injuries.” Plaintiff’s workers’ compensation hearing was held in 1988. Clearly, the Whitley decision controls this case. See also Niple v. Seawell Realty and Ins. Co., 88 N.C. App. 136, 362 S.E.2d 572, disc. rev. denied, 321 N.C. 744, 365 S.E.2d 903 (1988); Harrington v. Pait Logging Co., 86 N.C. App. 77, 356 S.E.2d 365 (1987).

Defendants further assert that the Industrial Commission erred in finding that the employee was entitled to permanent and total disability benefits. Defendants argue that the plaintiff is able to earn some wages, though less than what he was receiving at the time of his injury, and therefore is not totally disabled. G.S. § 97-29. Defendants primarily rely upon the testimony of Dr. Paul Alston, a vocational rehabilitation expert, who testified that plaintiff could perform certain types of jobs on a part-time basis, three to four hours per day. However, we find ample support in the record to uphold the Commission’s findings.

Dr. Pelletier testified that because of plaintiffs present physical condition, he is unable to sit or stand for a period of more than fifteen to twenty minutes at a time. The plaintiff cannot lift or bend, and he must frequently lie down and rest because of the pain in his back and legs. Furthermore, Dr. Alston conceded on cross-examination that he assumed that the plaintiff would be able to go three to four hours at a time on a regularly scheduled basis without needing to lie down and rest. This testimony is contrary to the testimony of Dr. Pelletier. If the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal. Dolbow v. Holland Indus., Inc., 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), cert. denied, 310 N.C. 308, 312 S.E.2d 651 (1984).

Defendants next argue that they should be credited for a five percent disability assigned by Dr. Pelletier to the 1980 and 1982 back injuries. Dr. Pelletier, in his deposition speculated that he “would have rated [the plaintiff] at five percent.” However, simply because plaintiff is predisposed to sustain injuries while engaged in labor, he is still permitted to recover compensation if the physical aspects of his employment intensifies the pre-existing condition. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 610, 175 S.E.2d 342, 346 (1970). Here, although plaintiff did suffer from some minor disability due to his pre-existing back injuries, they were clearly intensified by the October 1984 flywheel accident. Employers take their employees as they find them. Pruitt v. Knight Pub. Co., 27 N.C. App. 254, 258, 218 S.E.2d 876, 880 (1975), rev’d on other grounds, 289 N.C. 254, 221 S.E.2d 355 (1976). “So long as an individual is capable of doing that for which he was hired, then the employer’s liability for injury due to industrial accident ought not to be reduced due to the existence of a nonincapacitating infirmity.” Id. Defendants are not entitled to a credit.

Finally, defendants contend that the Commission erred in its stipulation number two, which states:

2. Plaintiff’s average weekly wage was $220.00 and his weekly compensation rate was $146.67. Compensation was paid for temporary total disability from February 7 to March 14, 1984, from April 10 to April 26, 1984, and from October 17, 1984 to September 1985.

Defendants assert that the Commission erred in the dates it listed that plaintiff was paid for temporary total disability. The parties themselves, at the request of the Deputy Commissioner, entered into a stipulation as to the relevant dates; they stipulated disability payments from February 7, 1984 through April 26, 1984, and then from October 17, 1984 through October 21, 1985. We agree with the defendants. Defendants are entitled to a credit for the time the parties stipulated plaintiff was paid temporary total disability benefits.

We therefore reverse the Industrial Commission on the issue above and remand for entry of an Order which credits the defendants for payments made to plaintiff from February 7, 1984 through April 26, 1984, and then from October 17, 1984 through October 21, 1985.

Affirmed in part, reversed in part and remanded.

Judge DUNCAN concurs. Judge GREENE concurs in part and dissents in part.