Hale v. Novo Nordisk Pharmaceutical Industries, Inc.

569 S.E.2d 724, 153 N.C. App. 272, 2002 N.C. App. LEXIS 1127
Court of Appeals of North Carolina·Decided October 1, 2002·No. No. COA01-1341·Published·Cited by 1 cases

Opinion

WYNN, Judge.

Plaintiff-employee Francis J. Hale appeals from the Industrial Commission’s opinion and award concluding that his carpal tunnel [274] syndrome was not a compensable occupational disease under the North Carolina Workers’ Compensation Act. He presents two issues: (1) Were the Industrial Commission’s findings of fact supported by any competent evidence?; and (2) Were the Commission’s conclusions of law supported by the Commission’s findings of fact? We answer both questions, yes; accordingly, we affirm the Commission’s opinion and award.

While employed by defendant Novo Nordisk Pharmaceutical Industries, Inc. for two years, through 20 November 1995, Mr. Hale used a hand-held calculator to verify calibration'reports. Mr. Hale is right hand dominant, and entered the calculations with his middle and index fingers. According to Mr. Hale, the calculator was unusually stiff and lacked flexibility: “Depression of the keys required some pressure and some force.”

Mr. Hale began experiencing stiffness, soreness, and swelling in his right hand; however, while employed by Novo Nordisk, he did not report this discomfort to his supervisor at any time. On 20 November 1995, Mr. Hale was terminated by Novo Nordisk for cause, and for reasons unrelated to the use of his right hand. After his termination, Mr. Hale worked for Environmental Specialties from January through May 1996. Mr. Hale experienced pain in his right hand when using a crimping tool and when handwriting.

On 8 May 1996, Mr. Hale sought medical treatment from Dr. Bertics, a neurologist. Mr. Hale told Dr. Bertics that his hand difficulties began in November 1995 after an automobile accident, and that his former job with Novo Nordisk required “a lot of keyboarding” that made his hand feel particularly sore and “funny.” Dr. Bertics diagnosed Mr. Hale with carpal tunnel syndrome in his right hand. After receiving “a course of conservative treatment,” Dr. Bertics did not recommend surgery.1

On 28 June 1996, Mr. Hale filed form 18 notifying the Commission and Novo Nordisk of his workers’ compensation claim. On 12 September 2000, after a full hearing before a Deputy Commissioner, Mr. Hale’s claim was denied. Following the full Commission’s rejection of Mr. Hale’s appeal from that denial, he appealed to this Court.

[275] On appeal, Mr. Hale contends that the Commission’s findings of fact are not supported by any competent evidence. In particular, he contests the following findings of fact by the Commission:

2. Prior to contracting the alleged occupational disease, plaintiff’s hobbies included riding a motorcycle, playing the saxophone, and using and selling firearms. . . . All of these activities involved a significant use of plaintiff’s hands and arms
14. Dr. Bertics opined that plaintiff’s job as a validation technician with defendant-employer caused plaintiff’s carpal tunnel syndrome and placed him at an increased risk of developing carpal tunnel syndrome. However, a consideration of the totality of the circumstances of this case leads to a different conclusion. . . . [Plaintiff’s other activities and hobbies as well as his part-time job all involved the use of his hands and arms .... [T]he jobs held by plaintiff after leaving defendant-employer also involved many of the same tasks required by his job with defendant-employer, and it was during his [subsequent] employment that he first sought medical treatment for carpal tunnel problems. There is a lack of temporal relationship between the alleged onset of plaintiff’s carpal tunnel syndrome and when he first sought medical treatment. . . . [Moreover], plaintiff had a diagnosed herniated cervical disc which was previously noted to have caused numbness in his upper right extremity. It does not appear that Dr. Bertics was aware of this condition.
15. Likewise, there is insufficient evidence to find by the greater weight of the evidence that the plaintiff’s carpal tunnel condition, as presented in 1996 to Dr. Bertics and prior to [plaintiff’s] 1997 automobile accident, precluded plaintiff from performing his work duties for the defendant-employer, or other similar work.

“Under our Workers’ Compensation Act, ‘the Commission is the fact finding body.’ ” Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)). “ ‘The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ ” Adams, 349 N.C. at 680, 509 S.E.2d at 413 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). The Commission’s findings of fact “ ‘are conclusive on appeal if supported by any competent evidence.’ ” Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Gallimore v. Marilyn’s [276] Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). Thus, this Court is precluded from weighing the evidence on appeal; rather, we can do no more than “ ‘determine whether the record contains any evidence tending to support the [challenged] finding.’ "Adams, 349 N.C. at 681, 509 S.E.2d at 414 (citation omitted).

Mr. Hale first challenges finding of fact two, that Mr. Hale’s hobbies, activities, and part-time employment “involved a significant use of [Mr. Hale’s] hands.” He contends that the Commission had no evidence presented concerning the use of his hands during these activities, and therefore, the Commission could not possibly conclude that this use, if any, was “significant.” This argument is without merit.

As noted in Mr. Hale’s and Novo Nordisk’s briefs, the Commission’s findings of fact “ ‘are conclusive on appeal if supported by any competent evidence.’ ” Adams, 349 N.C. at 681, 509 S.E.2d at 414 (citation omitted). Here, the record contained evidence that Mr. Hale: (1) played his saxophone twenty minutes a day; (2) handled baggage and cleaned airplanes at the airport as a part-time employee; and (3) drove a motorcycle. Mr. Hale testified that these activities “bothered” his hands. Accordingly, Mr. Hale must have used his hands if these activities “bothered” his hands. Following Adams, we conclude that finding of fact two is supported by competent evidence. Therefore, finding of fact two is binding on appeal.

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Hale v. Novo Nordisk Pharmaceutical Industries, Inc., 569 S.E.2d 724, 153 N.C. App. 272, 2002 N.C. App. LEXIS 1127 (N.C. Ct. App. 2002).

569 S.E.2d 724 (Hale v. Novo Nordisk Pharmaceutical Industries, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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