Martin v. Martin Bros. Grading

581 S.E.2d 85, 158 N.C. App. 503, 2003 N.C. App. LEXIS 1150
CourtCourt of Appeals of North Carolina
DecidedJune 17, 2003
DocketCOA02-381
StatusPublished
Cited by8 cases

This text of 581 S.E.2d 85 (Martin v. Martin Bros. Grading) 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
Martin v. Martin Bros. Grading, 581 S.E.2d 85, 158 N.C. App. 503, 2003 N.C. App. LEXIS 1150 (N.C. Ct. App. 2003).

Opinion

*504 GEER, Judge.

It is undisputed on this appeal that plaintiff Bobby Martin suffered compensable work-related accidents on 29 November 1996 and 2 April 1997. The sole issue before this Court is whether the Industrial Commission’s decision finding that plaintiff’s disability was caused by those accidents is supported by competent evidence. We hold that it is and affirm.

Defendant Martin Brothers Grading is a grading company owned by plaintiff’s son, Ricky Martin. Martin Brothers clears and grades land prior to new construction. In August 1996, after being laid off from his prior employment, plaintiff went to work full time for his son running a compactor.

On 29 November 1996, a falling tree limb struck plaintiff on the head while plaintiff was helping clear property for a softball field. The force of the blow knocked plaintiff unconscious. Because there were no witnesses, no one knows how long plaintiff lay unconscious. A coworker found plaintiff wandering in the woods and brought him to his son, who then took plaintiff to the hospital.

Plaintiff was hemorrhaging from a large laceration that exposed his skull. The hospital’s triage staff was unable to control plaintiff’s scalp hemorrhage and plaintiff underwent emergency surgery to close and repair the laceration. A CT scan revealed that plaintiff had also suffered a subdural hematoma to the right hemisphere of his brain.

After returning home from the hospital on 1 December 1996, both plaintiff and his wife noticed that plaintiff was having problems with his memory. He was also irritable, anxious, and had begun repeating himself. Dr. Kimberly Livingston, the neurosurgeon who had treated plaintiff in the hospital, reported to plaintiff’s family physician that plaintiff’s symptoms were consistent with a closed head injury. Plaintiff’s medical records prior to 29 November 1996 showed no evidence that plaintiff had ever before experienced any neurological, cognitive, or memory problems.

Dr. Livingston released plaintiff to return to work on 3 March 1997. Because neither plaintiff nor defendant-employer felt that plaintiff was yet ready to return to work, he was assigned to the lightest duty work available: driving a small earth compactor. On 2 April 1997, plaintiff backed the compactor onto a mound of dirt, over *505 turned the compactor, and sustained another head injury. Plaintiff has not worked since 2 April 1997.

Plaintiff has experienced continuing personality, memory, and cognitive problems. He was seen by his family physician who recommended that plaintiff undergo a neurological examination. Subsequently, he revisited Dr. Livingston who suggested that he see a neuropsychologist regarding the nature of his memory and cognitive problems.

On 25 March 1998, the defendant-carrier referred plaintiff to Dr. Thomas Gualtieri for a neuropsychiatric evaluation. After performing complete physical and neurological examinations, Dr. Gualtieri also recommended that plaintiff undergo a battery of neu-ropsychological tests.

On 8 June 1998, plaintiff was referred by his attorney to Dr. Stephen Kramer, an Associate Professor of Psychiatry at the Wake Forest University School of Medicine and the Director of the Wake Forest University Department of Neuropsychiatry. Dr. Kramer consulted with Dr. Jonathan Burdette, a neuroradiologist at Wake Forest, who reviewed plaintiffs 10 December 1996 CT scan and subsequent 9 November 1998 Gadolinium enhanced MRI scan.

On 15 December 1998, 18 January 1999, and 19 August 1999, plaintiff was examined, at the request of defendants, by Alexander A. Manning, Ph.D, an expert in neuropsychology, specializing in the study of how the brain functions and the relationship of brain functions to behavior. Dr. Manning performed a complete battery of neu-ropsychological tests on plaintiff.

Plaintiff filed separate workers’ compensation claims for the November 1996 and April 1997 accidents. The two claims were consolidated and initially heard by Deputy Commissioner Chrystal Stanback who awarded plaintiff temporary total disability benefits. On defendants’ appeal, the Full Commission affirmed the decision of the Deputy Commissioner, finding that “[t]he greater weight of the medical evidence establishes that plaintiff’s disability after April 2, 1997 was the proximate result of either the injury by accident of November 29, 1996 or a combination of the compensable injuries plaintiff sustained on November 29, 1996 and April 2, 1997.” Because the Commission further found that plaintiff was and remains incapable of earning the wages that he was receiving at the time of his injuries by accident at the same or other employment, the *506 Commission awarded plaintiff temporary total disability benefits from 2 April 1997 until further order of the Commission or until plaintiff returns to work.

Defendants argue that the Commission’s finding that plaintiffs disability after 2 April 1997 was the proximate result of his work injuries is unsupported by competent evidence. In reviewing a decision by the Commission, this Court’s role “is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.” Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). The Commission’s findings of fact are conclusive upon appeal if supported by competent evidence, even if there is evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981). On appeal, this Court may not re-weigh the evidence or assess credibility. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Findings of fact may be set aside on appeal only “when there is a complete lack of competent evidence to support them.” Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).

The record contains ample evidence to support the Commission’s finding that plaintiff’s disability was proximately caused by either the November 1996 accident or by a combination of the November 1996 and April 1997 accidents. Although defendant points to plaintiff’s pre-existing small-vessel disease as a cause for plaintiff’s disability, the Commission was entitled to rely upon medical testimony otherwise.

Specifically, in Dr. Kramer’s opinion, “the most likely diagnosis” for plaintiff was persistent post-concussive syndrome resulting from the November 1996 and April 1997 accidents with the November 1996 accident “an essential factor producing the syndrome.” On cross-examination, Dr. Kramer rejected defendants’ contention that plaintiff’s disability arose from the small-vessel disease. According to Dr. Kramer, it was “not likely.” Dr. Gualtieri similarly testified that the injury to the right hemisphere of plaintiff’s brain — occurring in the November 1996 accident — is “more likely” the cause of plaintiff’s problems than the small-vessel disease.

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Bluebook (online)
581 S.E.2d 85, 158 N.C. App. 503, 2003 N.C. App. LEXIS 1150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-martin-bros-grading-ncctapp-2003.