Cooper v. Cooper Enterprises, Inc.

608 S.E.2d 104, 168 N.C. App. 562, 2005 N.C. App. LEXIS 336
CourtCourt of Appeals of North Carolina
DecidedFebruary 15, 2005
DocketCOA04-147
StatusPublished
Cited by3 cases

This text of 608 S.E.2d 104 (Cooper v. Cooper Enterprises, Inc.) 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
Cooper v. Cooper Enterprises, Inc., 608 S.E.2d 104, 168 N.C. App. 562, 2005 N.C. App. LEXIS 336 (N.C. Ct. App. 2005).

Opinion

WYNN, Judge.

Plaintiff Paul Cooper asserts that the full Industrial Commission committed prejudicial error in denying his claim. Cooper contends he submitted sufficient evidence for the Industrial Commission to determine that the lack of mobility in his right arm prevented him from regaining control of his automobile and avoiding his 17 October 1998 automobile accident. Cooper contends that the automobile accident was therefore a direct and natural result of his prior compensable injury. For the reasons stated herein, we disagree and affirm the Industrial Commission’s Opinion and Award.

The procedural and factual history of the instant appeal is as follows: Cooper had worked in the construction field since 1966. From 1986 through 1996, Cooper worked at Cooper Enterprises, Inc., a firm owned in part by Cooper’s brother. Cooper had a history of *563 problems with his right shoulder. These were exacerbated when, on 26 September 1993, Cooper stepped on a piece of rebar while carrying a roll of mesh wiring, lost his balance, and fell into an embankment. He sustained crush injuries to the right side of his upper body and had to undergo, inter alia, five surgical procedures on his right shoulder.

Cooper Enterprises admitted the compensability of Cooper’s resulting workers’ compensation claim and paid Cooper medical compensation and disability benefits. In December 1997, Cooper’s physician, Donald D’Alessandro, M.D., found that, despite treatment, Cooper retained a fifty percent partial impairment of his right upper extremity and a one-hundred percent impairment of his right shoulder. However, in March 1998, Dr. D’Alessandro also noted that Cooper “has done quite well[,]” that Cooper’s shoulder “has not been bothering him[,]” and that “[n]o further treatment is necessary.”

On 17 October 1998, Cooper was involved in a single-car automobile accident. Cooper testified that gravel on the roadway caused his vehicle to slide toward the right shoulder of the road, where there was a steep drop-off. To avoid the embankment on the right, Cooper turned his steering wheel sharply to the left, causing his vehicle to veer toward an embankment on the other side of the road. In Cooper’s own words, “when I started sliding, [the car] went off just a little bit. Then when I pulled it back, you know, I guess I jerked it or whatever and [the car], you know, shot across the road.” Cooper was unable to regain control, and his vehicle went off the road and flipped over. As a result, Cooper sustained serious injuries, including hip and leg fractures and lacerations. Cooper alleged that his inability to regain control of his vehicle and the subsequent accident and injuries were due to his prior work injury to his right arm.

On 13 October 2000, Cooper filed a notice of accident, alleging that his automobile accident constituted a compensable claim because it was caused by his prior right upper extremity disability. Defendants denied the claim. Deputy Commissioner Bradley W. Houser filed an Opinion and Award on 21 August 2002, amended on 26 August 2002, awarding benefits to Cooper. Defendants appealed to the full Industrial Commission, which, on 29 September 2003, overturned Deputy Commissioner Houser’s Opinion and Award and held that Cooper had failed to present sufficient evidence to show that the 17 October 1998 automobile accident was a direct and natural result of Cooper’s prior compensable injury. Cooper appealed.

*564 It is well-settled that the employee bears the burden of establishing the compensability of a workers’ compensation claim. Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003). Our review of the Commission’s opinion and award is “limited to reviewing 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, 116, 530 S.E.2d 549, 553 (2000). The Industrial Commission is the “sole judge of the weight and credibility of the evidence,” and this Court “ ‘does not have the right to weigh the evidence and decide the issue on the basis of its weight.’ ” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).

Cooper contends that the lack of mobility in his right arm prevented him from regaining control of his automobile and that the accident was therefore a direct and natural result of his prior com-pensable injury. “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 com-pensable injury.” Vandiford v. Stewart Equip. Co., 98 N.C. App. 458, 461, 391 S.E.2d 193, 195 (1990) (citing Starr v. Charlotte Paper Co., 8 N.C. App. 604, 610, 175 S.E.2d 342, 347 (1970)). An injury is not com-pensable, however, if “it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. Our supreme court defines intervening cause ... as an occurrence entirely independent of a prior cause.” Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 379-80, 323 S.E.2d 29, 30 (1984) (citations omitted).

To show that the prior compensable injury caused the subsequent injury, the “ ‘evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation.’ ” Holley, 357 N.C. at 232, 581 S.E.2d at 753 (quoting Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). “Although expert testimony as to the possible cause of a medical condition is admissible . . ., it is insufficient to prove causation, particularly when there is additional evidence or testimony showing the expert’s opinion to be a guess or mere speculation.” Id. at 233, 581 S.E.2d at 753 (internal quotation and citations omitted).

Here, the record reflects that, as Cooper approached a curve in the roadway, gravel caused his vehicle to slide to the right. In an *565 attempt to avoid failing into an embankment on the right, Cooper intentionally steered sharply to the left, in his own words “jerking” his vehicle and thereby causing it to veer toward an embankment on the other side of the road. While Cooper alleged that his prior work injury to his right arm caused the accident, the record reveals little evidence to support this contention.

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608 S.E.2d 104, 168 N.C. App. 562, 2005 N.C. App. LEXIS 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-cooper-enterprises-inc-ncctapp-2005.