Armstrong v. W.R. Grace & Co.

623 S.E.2d 820, 175 N.C. App. 528, 2006 N.C. App. LEXIS 127
CourtCourt of Appeals of North Carolina
DecidedJanuary 17, 2006
DocketNo. COA04-581.
StatusPublished
Cited by1 cases

This text of 623 S.E.2d 820 (Armstrong v. W.R. Grace & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. W.R. Grace & Co., 623 S.E.2d 820, 175 N.C. App. 528, 2006 N.C. App. LEXIS 127 (N.C. Ct. App. 2006).

Opinions

JACKSON, Judge.

On 9 April 2002, Deputy Commissioner Amy L. Pfeiffer heard Mark J. Armstrong's ("plaintiff") workers' compensation claim filed against W.R. Grace & Co. ("defendant-employer") and Continental Casualty Company ("defendant-carrier"), collectively defendants. On 8 May 2003, the Deputy Commissioner issued an Opinion and Award in favor of defendants. On 14 October 2003, the full Commission heard plaintiff's appeal. On 5 December 2003, an Opinion and Award in favor of defendants was filed by Commissioner Laura K. Mavretic, with Commissioner Bernadine S. Ballance concurring and Commissioner Thomas J. Bolch dissenting. It is *822from the full Commission's Opinion and Award that plaintiff appeals.

The full Commission's findings of fact tended to show that in 1975, defendant-employer hired plaintiff as a general helper. Plaintiff also worked as a maintenance helper, a machine operator, and a tooling assembler. Plaintiff worked for defendant-employer until he took a leave of absence due to pain and loss of range of motion in his elbows. As a machine operator for approximately thirteen years, plaintiff was required to use his upper extremities frequently and repetitively and with load-bearing force. Plaintiff prepared raw product, finished the product, and cleaned and adjusted the machines. Plaintiff's job duties required lifting, transporting, handling, reaching, and making load bearing movements. Plaintiff began to experience left elbow problems while working in May 1989. Shortly thereafter, plaintiff experienced pain in his right elbow while working. Plaintiff continued to work for defendant but did not seek medical treatment until 26 January 1990, when he was seen by Dr. E.O. Marsigli ("Dr. Marsigli"), an orthopaedist. Plaintiff reported to Dr. Marsigli that he had been unable to fully extend his upper left extremity since May 1989.

On or about 23 December 1991, Dr. Marsigli diagnosed plaintiff with post traumatic arthritis of the left elbow. On 19 February 1996, however, Dr. Marsigli stated by letter that he could not determine the cause of plaintiff's bilateral elbow condition, and that "job related traumatic arthrosis of the elbow has not been described in the literature to his knowledge." On 8 July 1992, Dr. Helen E. Harmon ("Dr. Harmon"), a rheumatologist, diagnosed plaintiff with questionable rheumatoid arthritis. Dr. Harmon did not comment as to whether plaintiff's work situation caused or exacerbated his bilateral elbow symptoms.

On 21 July 1992, plaintiff transferred from the position of operator to tooling assembler, which required the use of both upper extremities to change inserts, change cavities, change needles and clean needles.

Plaintiff sought additional treatment from Dr. Ralph W. Coonrad ("Dr. Coonrad"), an orthopaedic surgeon, in October 1992. On 22 October 1992, plaintiff ceased employment with defendant. On 23 November 1992, Dr. Coonrad performed a left elbow replacement on plaintiff due to plaintiff's left elbow symptoms. After the surgery, Dr. Coonrad diagnosed plaintiff with arthrosis of both elbows due to rheumatoid arthritis.

A second physician, Dr. William Byrd ("Dr. Byrd"), diagnosed plaintiff with severe bilateral synovitis and pain of plaintiff's elbows with uncertain etiology on 3 August 1993. Dr. Byrd could not exclude rheumatoid arthritis as an underlying diagnosis. On 28 September 1993, Dr. Coonrad performed a total right elbow replacement.

Plaintiff received additional medical treatment later in 1993. On 21 December 1993, rheumatologist Dr. David S. Caldwell ("Dr. Caldwell"), determined that plaintiff might have an atypical presentation of rheumatoid arthritis. Dr. Caldwell further stated that plaintiff's job might have had something to do with plaintiff's bilateral elbow problems.

On 12 July 1994, plaintiff filed a Form 18 with the Industrial Commission. In the Form 18, plaintiff claimed that repetitive load bearing movements with his upper extremities caused traumatic arthritis. Plaintiff's bilateral elbow problems had begun five years prior to the filing of the Form 18 with the Industrial Commission; he was diagnosed with traumatic arthritis two and one half years prior to filing his Form 18 with the Industrial Commission; and he was diagnosed with rheumatoid arthritis twenty months prior to filing the Form 18.

Dr. Coonrad informed plaintiff on 3 May 1996, that it was unlikely that plaintiff's job caused his rapidly progressive and severe arthrosis of each elbow, and although it might have been an aggravating condition, Dr. Coonrad could not determine a percentage or degree of aggravation. Dr. Caldwell confirmed plaintiff's diagnosis of atypical presentation of rheumatoid arthritis when x-rays revealed that plaintiff was experiencing erosive changes in his feet in January 2001.

In October 2000, plaintiff filed a Form 33 requesting a hearing on this matter. There is no evidence in the record to show that other employees suffered from hand and arm *823injuries in the course of their employment. The Deputy Commissioner found that there has been no person other than plaintiff who has ever developed complete bilateral elbow joint destruction while performing an operator job with defendant-employer.

In Dr. Caldwell's deposition, he stated that (1) because of plaintiff's pre-existing rheumatoid disease, plaintiff had an increased risk of developing an exacerbation of his underlying rheumatoid arthritis compared to the general public not so employed; (2) plaintiff's job at defendant-employer for a person without rheumatoid arthritis posed no increased risk of the type of elbow problems plaintiff experienced; (3) plaintiff's job contributed to the advanced arthritis and the destruction of his bilateral elbow joints; and (4) plaintiff's elbow aggravation and the underlying disease process resulted in plaintiff's incapacity for continued work after 22 October 1992.

Another orthopaedic surgeon specializing in upper extremities, Dr. George S. Edwards ("Dr. Edwards"), testified that plaintiff's job subjected plaintiff's elbows to microtrauma due to its repetitive nature and that the job could have placed plaintiff at an increased risk of injuring his arms compared to the general public. However, Dr. Edwards testified that the job and plaintiff's performance did not have an effect on the cartilage destruction within plaintiff's elbows and the job did not cause or accelerate any permanent deterioration of his elbow joints.

In addition, Dr. Douglas H. Adams ("Dr. Adams") testified that although plaintiff's job required him to use his upper extremities repetitively, Dr. Adams knew of no studies showing an association between work and the degree of force on the joint and the progression of rheumatoid arthritis and the destruction of joints.

On appeal, plaintiff-appellant argues that the Commission committed reversible error in finding for defendant-appellees, and presents eleven Assignments of Error citing various challenges to the full Commission's disposition of this case. In their response, defendants raise eight cross-assignments of error.

The standard of review in an appeal from the full Commission is limited to determining "whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109

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654 S.E.2d 831 (Court of Appeals of North Carolina, 2008)

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623 S.E.2d 820, 175 N.C. App. 528, 2006 N.C. App. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-wr-grace-co-ncctapp-2006.