Effingham v. THE KROGER CO.

561 S.E.2d 287, 149 N.C. App. 105, 2002 N.C. App. LEXIS 141
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 2002
DocketCOA01-24
StatusPublished
Cited by51 cases

This text of 561 S.E.2d 287 (Effingham v. THE KROGER 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
Effingham v. THE KROGER CO., 561 S.E.2d 287, 149 N.C. App. 105, 2002 N.C. App. LEXIS 141 (N.C. Ct. App. 2002).

Opinions

[108]*108TYSON, Judge.

Jennifer J. Effingham (“plaintiff”) appeals the denial of her claim for permanent total disability by the North Carolina Industrial Commission (“Commission”). Defendants, The Kroger Company (“defendant-employer”) and CNA Continental Casualty (“defendant-carrier”), appeal an award of temporary total disability by the Commission. We affirm in part and reverse in part.

I. Facts

Plaintiff filed a motion for payment of past due workers’ compensation benefits, ten percent penalty pursuant to N.C.G.S. § 97-18, and attorney’s fees pursuant to N.C.G.S. § 97-88.1 in her Form 33, Request for Hearing, on 5 February 1998. Defendants filed a response to plaintiff’s motions on 17 February 1998.

The Commission unanimously made the following findings of fact: Plaintiff began working for defendant-employer as a cashier in May 1995. Plaintiff’s job duties included lifting and scanning grocery items.

While at work on 18 December 1995, plaintiff felt a pain in her lower back, after she lifted a bag of cat liter from the bottom of the shopping cart and onto the scanner. Plaintiff’s injury was accepted as compensable by defendants pursuant to a Form 60, Employer’s Admission of Employee’s Right to Compensation, filed 14 February 1996.

Plaintiff had surgery on 24 January 1996. Dr. Fulghum removed two large disc fragments at L4-5. On 30 July 1996, Dr. Derian performed a decompression at plaintiff’s L4-5.

The Commission found that plaintiff had degenerative disc disease, prior to her accident, and that the compensable injury on 18 December 1995 significantly aggravated her back condition, resulting in a herniated disc at L4-5. The surgeries performed by Dr. Fulghum and Dr. Derian were reasonably necessary to treat plaintiff’s back injury and provide her relief from pain.

As a result of her injury, plaintiff has a condition known as failed low back syndrome. The Commission found that plaintiff will need ongoing treatment, including medication, to manage her pain. The Commission also found that because of her back pain, plaintiff is not capable of working full-time and that plaintiff is unable to compete for part-time jobs available for unskilled workers.

[109]*109The Commission further found that plaintiffs neck problems and herniated cervical disc were not caused by her compensable injury and that the treatment and neck surgery by Dr. Haglund on 12 October 1997 were not compensable.

The Commission concluded that plaintiff is entitled to temporary total disability benefits at the rate of $229.34 per week, beginning 27 January 1997 and continuing until further order. Defendants are entitled to offset wages paid to plaintiff while employed. Plaintiff and defendants appeal.

II. Issues

The issues presented by plaintiff are whether: (1) the Commission erred by finding and concluding that plaintiff’s herniated cervical disc was not caused by her compensable injury, (2) the Commission erred by failing to award plaintiff permanent and total disability benefits, (3) the Commission erred by failing to find and conclude that plaintiff was entitled to a late payment penalty, and (4) the Commission erred by failing to award plaintiff her attorney’s fees for defendants’ unreasonable denial and defense of this claim.

The issues presented by defendants are whether: (1) the Commission erred in awarding plaintiff temporary total disability benefits, (2) the Commission erred by failing to allow defendants a credit for payment of partial disability, and (3) the Commission erred by failing to tailor the award of medical expenses in conformity with the Workers’ Compensation Act. Those assignments of error relating to the findings of facts and conclusions of law that are not argued are deemed abandoned. N.C.R. App. R. 28(b)(5) (1999).

III. Standard of Review

This Court’s review is limited to a determination of (1) whether the Commission’s findings of fact are supported by competent evidence, and (2) whether the Commissioner’s conclusions of law are supported by the findings of fact. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986). The Commission’s findings of fact are conclusive on appeal if supported by competent evidence, even where there is evidence to support contrary findings. Id. The Commission’s conclusions of law, however, are reviewable de novo by this Court. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). The Commission is the sole judge of the credibility of the witnesses and the weight accorded to their testi[110]*110mony. Anderson v. Northwestern Motor Co., 233 N.C. 372, 376, 64 S.E.2d 265, 268 (1951).

IV. Plaintiff’s Appeal

A. Herniated cervical disc not compensable

Plaintiff argues the Commission’s findings, that her herniated cervical disc was not caused by her compensable accident, are contrary to the undisputed evidence and other findings of fact. We disagree.

On 14 February 1997, plaintiff contacted Dr. Blackburn with a burning sensation in her upper back. Dr. Blackburn prescribed muscle relaxants. Plaintiff then sought treatment from Dr. Esposito, an orthopaedic surgeon, with complaints of neck pain on 1 May 1997.

In July 1997, Dr. Esposito diagnosed plaintiff with a herniated disc at C5-6. Dr. Esposito referred plaintiff to Duke University Medical Center for further treatment. Plaintiff was examined by Dr. Haglund on 6 October 1997, at Duke. Plaintiff reported to Dr. Haglund a history of neck pain that was continuous from the date of her com-pensable injury. Dr. Haglund performed an anterior cervical discec-tomy and fusion on 12 October 1997.

Plaintiff was not treated for neck pain by her prior doctors, Fulghum and Derian, and did not report any neck pain to either until her last visits. Dr. Esposito did not treat plaintiff until eighteen months after her injury. Plaintiff told Dr. Esposito that her neck pain had developed over the last couple of months.

Dr. Haglund opined that plaintiff’s herniated cervical disc was caused or aggravated by her injury on 18 December 1995. The Commission determined that Dr. Haglund relied on the medical history provided by plaintiff which was inconsistent, unsupported by medical documentation, and not credible. The Commission concluded that: (1) plaintiff’s neck problems and herniated cervical disc were not caused by her compensable injury and (2) the treatment and neck surgery by Dr. Haglund were not compensable.

We hold that there is competent evidence in the record to support the Commission’s finding that the history plaintiff provided to Dr. Haglund was not credible. The Commission is the sole judge of the credibility of the witnesses and it rejected plaintiff’s evidence that her neck problems resulted from her back injury. See Anderson, 233 N.C. at 376, 64 S.E.2d at 268. This assignment of error is overruled.

[111]*111B. Disability Award

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thompson v. Cranfill, Sumner, & Hartzog
Court of Appeals of North Carolina, 2025
Reed v. Carolina Holdings
796 S.E.2d 102 (Court of Appeals of North Carolina, 2017)
Saunders v. ADP TotalSource Fi Xi, Inc.
791 S.E.2d 466 (Court of Appeals of North Carolina, 2016)
Pait v. Southeastern General Hospital
724 S.E.2d 618 (Court of Appeals of North Carolina, 2012)
Malloy v. Davis Mechanical, Inc.
720 S.E.2d 739 (Court of Appeals of North Carolina, 2011)
Polston v. Ingles Markets
North Carolina Industrial Commission, 2011
Turnage v. Ronile
North Carolina Industrial Commission, 2011
Wynn v. United Health Services/Two Rivers Health-Trent Campus
716 S.E.2d 373 (Court of Appeals of North Carolina, 2011)
Canterbury v. Savasenior Care Moores. Operat. Co.
North Carolina Industrial Commission, 2011
Dudley v. Nova Behavioral Healthcare Corp.
North Carolina Industrial Commission, 2011
Stevens v. United States Cold Storage, Inc.
North Carolina Industrial Commission, 2011
Aguirre-Gallentan v. Bassett Seamless Guttering
North Carolina Industrial Commission, 2010
Taylor v. Inmar
North Carolina Industrial Commission, 2010
Polston v. Markets
North Carolina Industrial Commission, 2010
Holt v. PETE WALL PLUMBING
674 S.E.2d 478 (Court of Appeals of North Carolina, 2009)
Castaneda v. INTERNATIONAL LEG WEAR GROUP
668 S.E.2d 909 (Court of Appeals of North Carolina, 2008)
Meares v. Dana Corp.
666 S.E.2d 819 (Court of Appeals of North Carolina, 2008)
Deason v. Owens-Illinois, Inc.
664 S.E.2d 665 (Court of Appeals of North Carolina, 2008)
Cross v. Falk Integrated Technologies, Inc.
661 S.E.2d 249 (Court of Appeals of North Carolina, 2008)
Cullifer v. McLane Company
North Carolina Industrial Commission, 2008

Cite This Page — Counsel Stack

Bluebook (online)
561 S.E.2d 287, 149 N.C. App. 105, 2002 N.C. App. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/effingham-v-the-kroger-co-ncctapp-2002.