Mayo v. City of Washington

276 S.E.2d 747, 51 N.C. App. 402, 1981 N.C. App. LEXIS 2259

• Court: Court of Appeals of North Carolina
• Decided: April 7, 1981
• Docket: 8010IC812
• Status: Published

Opinion

MARTIN (Robert M.), Judge.

Defendant first contends that the evidence in the record does not support the finding by the Commission that the injury for which the award was given resulted from an accident arising out of and in the course of the plaintiffs employment. The Workers’ Compensation Act does not provide compensation for injury, but only for injury by accident. Hargus v. Foods, Inc., 271 N.C. 369, 156 S.E. 2d 737 (1967). The defendant concedes in its brief that the evidence is sufficient to support a finding that the plaintiff injured his knee on 29 November 1977 by accident arising out of and in the course of his employment. The defendant argues, however, that the evidence is not sufficient to support a finding that the injuries to the plaintiffs right knee on 25 December 1977 and 3 January 1978 were the direct and natural results of the injury to the knee on 29 November 1977. We disagree.

The extent of the scope of review by this Court of an award of compensation by the Industrial Commission has often been defined by the courts of this State. It is aptly stated in Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E. 2d 389, 390-1 (1980) by Justice Exum, speaking for the Supreme Court, as follows:

It is not for a reviewing court, however, to weigh the evidence before the Industrial Commission in a workmen’s compensation case. By authority of G.S. 97-86 the Commission is the sole judge of the credibility and weight to be accorded to the evidence and testimony before it. Its findings of fact may be set aside on appeal only when there is a complete lack of competent evidence to support them. Anderson v. Construction Co., 265 N.C. 431, 144 S.E. 2d 272 (1965). Thus, if the totality of the evidence, viewed in the light most favorable to the complainant, tends directly or by reasonable inference to support the Commission’s find ings, these findings are conclusive on appeal even though there may be plenary evidence to support findings to the contrary. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E. 2d 874 (1968); Keller v. Wiring Co., 259 N.C. 222, 130 S.E. 2d 342 (1963).

Examining the evidence before the Commission on the issue of whether the injury resulted from an accident arising out of the course of the plaintiffs employment, we hold that there was competent evidence in the record supporting the finding that “[t]he injuries to the plaintiffs right knee on December 25,1977 and January 3,1978, were the direct and natural result of the injury by accident on November 29,1977.” Dr. Horton, the physician who examined plaintiff after the 25 December 1977 accident, stated in Exhibit Two that plaintiff “[w]as injured on the job a month ago, was reinjured today.” This was sufficient medical evidence to establish a causal connection between the 29 November accident and the subsequent injuries. In addition, plaintiffs testimony also links his subsequent injuries to the 29 November accident at work. Plaintiff testified that while pursuing a fleeing suspect in a department store on 29 November 1977, he “got [his] right foot underneath the counter ... which caused the knee to snap backwards and it popped, something inside the knee itself.” Plaintiff also testified that “[r]ight after the incident happened,” he consulted a physician in a hospital emergency room. He further testified:

I had some problems with the same knee on Christmas Day of 1977.1 just got out of the police car I was operating and turned to close the door; and when I turned to close the door, the knee locked. ... I couldn’t straighten it out. ... I was not able to unlock my knee right then. I believe in a couple of days it unlocked itself. ... I had another incident in January ... on or about January 3. It was basically the same. I was in the office at this time and I just returned to — reached for some papers off my desk and when I turned, the knee locked again.

Plaintiffs injury was diagnosed as a tear of the right medial meniscus. The descriptions of the sensations plaintiff experienced supports the finding that the tear occurred on 29 November (the knee snapped backwards and popped, “something in the knee itself’) and that the subsequent incidents resulted from that tear (“the knee locked,” “the knee locked again”). The fact that other evidence in the record does not support such a finding, and seems to contradict it, is of no consequence to this appeal, as the duty of this Court in reviewing the validity of the award on appeal is to ascertain whether there is any competent evidence in the record to support the finding. Click v. Freight Carriers, supra; Gamble v. Borden, Inc., 45 N.C. App. 506, 263 S.E. 2d 280, rev. denied, 300 N.C. 372, 267 S.E. 2d 675 (1980).

Defendant also contends that there is insufficient evidence in the record to support the award of ten percent permanent partial disability to the plaintiff. Again, we are guided by the principles enunciated in Click v. Freight Carriers, supra. The record reveals that Dr. Crisp stated in Exhibits Five, Six and Seven that plaintiff had sustained a ten percent permanent partial disability as a result of his injury. As this constitutes competent medical evidence in the record to^support the Commission’s finding that plaintiff sustained a ten percent permanent partial disability of his right leg, this finding is conclusive on appeal and cannot be set aside by this Court. Id.; Gamble v. Borden, Inc., supra.

We find, therefore, that the evidence was sufficient to support the Industrial Commission’s findings of fact and that these findings justify the Commission’s award. Therefore we affirm the award.

Affirmed.

Chief Judge Morris and Judge Whichard concur.