McCrary v. King Bio, Inc.

737 S.E.2d 761, 225 N.C. App. 378, 2013 WL 427093, 2013 N.C. App. LEXIS 129
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2013
DocketNo. COA12-405
StatusPublished

This text of 737 S.E.2d 761 (McCrary v. King Bio, 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
McCrary v. King Bio, Inc., 737 S.E.2d 761, 225 N.C. App. 378, 2013 WL 427093, 2013 N.C. App. LEXIS 129 (N.C. Ct. App. 2013).

Opinion

ERVIN, Judge.

Defendants King Bio, Inc., and Isurity Insurance Services appeal from a Commission order awarding workers’ compensation medical benefits to Plaintiff Mitzi McCrary. In challenging the Commission’s order, Defendants argue that the Commission erroneously awarded medical benefits to Plaintiff on the grounds that Plaintiff failed to present competent medical evidence to prove that her wrist injury was caused by a workplace accident that occurred on 14 October 2009, and that this Court should rectify this error by simply reversing the Commission’s decision rather than requiring further proceedings on [379]*379remand. After careful consideration of Defendants’ challenges to the Commission’s order in light of the record and the applicable law, we conclude that the Commission’s order should be affirmed.

I. Background

A. Substantive Facts

Defendant King Bio operated King Bio, a homeopathic medical supplier, and Carolina Bison, a supplier of bison meat, at a joint facility. Plaintiff, who was bom on 16 September 1955, started working as an inventory and purchasing manager for both entities on 28 August 1998. In the course of its business, Carolina Bison received packages of meat, which were sometimes frozen and which varied in size. One of the duties that Plaintiff performed for Carolina Bison was to assist with the repackaging of meat into smaller packages.

On 14 October 2009, Plaintiff was assisting Bemave Acevedo, a warehouse manager, in repackaging a bison meat order that had a total weight of approximately fifteen hundred pounds and had been separated into twenty-five packages, each of which weighed approximately sixty pounds. After Mr. Acevedo unloaded the packages of meat and placed them on a work table, Plaintiff lifted each package from the work table onto a scale, wiped it down, weighed it, and labeled it. In addition to being heavier and bulkier than usual, the packages which made up this order had been frozen, were slippery and had to be handled using more force and grip than was normally the case.

As Plaintiff was lifting one of the packages of meat onto the scale, it slipped from her hand. As she tried to catch the falling package, Plaintiff felt a “pop” in her wrist and experienced “very intense” pain. Mr. Acevedo, who was facing Plaintiff and located approximately four to five feet away from her, saw the package of meat fall out of Plaintiff’s hand, observed Plaintiff try to catch the package, and heard Plaintiff’s wrist “pop.” Plaintiff told Mr. Acevedo that “she [had] done something to her wrist.”

In spite of her injury, Plaintiff worked the remainder of the day with assistance from Mr. Acevedo. On the following day, Plaintiff continued to experience pain in her right wrist and reported her injury to her supervisor. At that point, Plaintiff was given a brace for her wrist.

On 23 October 2009, Plaintiff sought treatment from Sisters of Mercy Urgent Care. On 27 October 2009, Sisters of Mercy Urgent Care [380]*380provided Defendant with an “Employee Medical Care Report” which noted that Plaintiff’s 14 October 2009 right wrist injury was work related. On 29 October 2009, Plaintiff sought treatment from Dr. Ronald Neimkin, a hand surgeon with Carolina Hand Surgery Associates. At that time, Plaintiff informed Dr. Neimkin that she had undergone bilateral carpal tunnel releases twenty years earlier. After referring Plaintiff to Dr. Terry McGhee for an EMG, nerve conduction studies, and an MR arthrogram in order to determine whether there were any soft tissue tears in her right wrist, Dr. Neimkin released Plaintiff to work subject to certain restrictions. Plaintiff did not miss any work as a result of her wrist injury and has not sought disability compensation.

B. Procedural History

On 17 December 2009, Plaintiff filed an Industrial Commission Form 18 asserting a claim for workers’ compensation medical benefits on the grounds that she had injured her right hand while “repackaging unusually heavy, frozen meat” on 14 October 2009. On 26 October 2009, Defendants filed a Form 19 in which they reported Plaintiff’s injury to the Commission, indicated that Plaintiff had been working with frozen meat when her “wrist popped,” and noted that the incident had been “witnessed by [a] fellow employee.” On 4 December 2009, Defendants filed a Form 61 in which they denied Plaintiff’s claim on the grounds that “no injury by accident occurred within the course and scope of [Plaintiff’s] employment” but agreed to pay for “authorized medical treatment through 12/04/2009.”1 On 3 June 2010, Plaintiff filed a Form 33 in which she requested that her claim for medical benefits be set for hearing. Defendants filed a Form 33R response to Plaintiff’s request for a hearing in which they alleged, in pertinent part, that:

. . . [P]laintiff did not suffer an injury to her hand and wrist as a result of an accident in that she was performing her normal work duties in the normal manner at the time that she sustained an injury to her wrist. Defendants further contend that [P]laintiff has not been diagnosed with any condition other than an alleged upper-extremity injury. . . .

On 17 November 2010, Deputy Commissioner Victoria M. Homick conducted a hearing concerning the merits of Plaintiff’s claim for [381]*381workers’ compensation medical benefits. On 16 May 2011, Deputy Commissioner Homick entered an order denying Plaintiff’s claim, finding, in pertinent part, that “the incident on October 14, 2009 occurred while [P]laintiff was performing her work duties in the normal manner without any unusual circumstance which would constitute an interruption of her job routine” and that “there is insufficient evidence to show that the condition in [P]laintiff’s right hand was a result of any work injury that she may have sustained on October 14, 2009.” On 23 May 2011, Plaintiff noted an appeal to the Commission from Deputy Commissioner Homick’s order.

The Commission heard Plaintiff’s claim on 19 October 2011. On 23 December 2011, the Commission, by means of an order entered by Commissioner Bernadine S. Ballance with the concurrence of Commissioner Danny McDonald, reversed Deputy Commissioner Homick’s decision and awarded Plaintiff workers’ compensation medical benefits. Commissioner Tammy Nance dissented from the order based upon her inability to conclude that Plaintiff had suffered an injury by accident. Defendants noted an appeal to this Court from the Commission’s decision.

II. Legal Analysis

A. Standard of Review

Appellate review of a Commission order 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), with the Commission having sole responsibility for evaluating the weight and credibility to be given to the record evidence. Id. (citation omitted). “[Findings of fact which are left unchallenged by the parties on appeal are ‘presumed to be supported by competent evidence’ and are, thus ‘conclusively established on appeal.’ ” Chaisson v. Simpson, 195 N.C. App. 463, 470, 673 S.E.2d 149, 156 (2009) (quoting

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Bluebook (online)
737 S.E.2d 761, 225 N.C. App. 378, 2013 WL 427093, 2013 N.C. App. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccrary-v-king-bio-inc-ncctapp-2013.