Taylor v. Carolina Restaurant Group, Inc.

613 S.E.2d 510, 170 N.C. App. 532, 2005 N.C. App. LEXIS 1079
CourtCourt of Appeals of North Carolina
DecidedJune 7, 2005
DocketCOA04-981
StatusPublished
Cited by2 cases

This text of 613 S.E.2d 510 (Taylor v. Carolina Restaurant Group, 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
Taylor v. Carolina Restaurant Group, Inc., 613 S.E.2d 510, 170 N.C. App. 532, 2005 N.C. App. LEXIS 1079 (N.C. Ct. App. 2005).

Opinions

WYNN, Judge.

Where the Industrial Commission’s findings of fact are supported by any competent evidence, those findings are binding on appeal. Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Here, Defendants contend that there was no competent evidence to support the Industrial Commission’s findings that Plaintiff’s right knee injury caused her disability. We disagree and find that competent evidence supports the Industrial Commission’s findings of fact, which in turn support its conclusions of law.

The record reflects that Plaintiff Rebecca Taylor was employed by Carolina Restaurant Group as an attendant to the hot bar of a Wendy’s restaurant in July 1994. Additionally, at that time, Ms. Taylor drove a school bus (her primary employment), and cleaned houses. On 22 July 1994, in the course of her employment with the Carolina Restaurant Group, Ms. Taylor slipped on degreaser at Wendy’s and struck her right knee on a wall. Ms. Taylor attempted to return to work with the Carolina Restaurant Group and her bus driving employment following the accidental injury but was unable to perform because she “couldn’t take the pain.” As a consequence of the July 1994 fall, Ms. Taylor underwent right knee replacement surgery in 1996. Since the July 1994 injury, Ms. Taylor has also undergone several arthroscopic surgeries, inter alia, to remove scar tissue from her right knee. Ms. Taylor’s primary treating physician is Ward S. Oakley, Jr., M.D.

The record tends to show that while Ms. Taylor’s condition eventually improved somewhat, she experienced continuing pain and swelling in the right knee. On 23 June 1998, Ms. Taylor was treated by Dr. Oakley for pain in her right knee. Dr. Oakley’s assessment was “[r]ight knee pain” and “[r]ight knee failure of implant.” Defendants then referred Ms. Taylor to David Mauerhan, M.D., of The Miller Clinic for further evaluation. Dr. Mauerhan recommended no further [534]*534surgery and that Ms. Taylor should continue to try to work. Dr. Mauerhan also noted as his impression:

Continued pain following total knee replacement on the right knee. This unfortunate lady has had continued pain when reviewing her history from her very initial problem on through to the present. No surgical procedure including her arthroscopies nor the total knee have given her significant or continued relief.

Dr. Mauerhan also found that Ms. Taylor had a fifty-percent permanent disability and “a painful total knee replacement which is giving her difficulty.”

In January 2000, Ms. Taylor fell on black ice in the parking lot of Richmond Community College, where she was employed as a janitor. (Ms. Taylor was at that time no longer working for the Carolina Restaurant Group.) Ms. Taylor stated that, when she realized she was going to fall, she guarded her right knee and took the blow to the left knee. The fall injured the left knee, which became increasingly painful. On 27 April 2000, Dr. Oakley performed an arthroscopic revision to the left knee. On 2 October 2001, Dr. Oakley assigned a twenty-percent impairment rating to the left knee and issued standard restrictions following the surgery to the left knee. On 13 December 2001, Ms. Taylor entered a settlement agreement with Richmond Community College for all liability under the Workers’ Compensation Act.

By the Fall 2001, Ms. Taylor’s left knee had healed well and required only light, if any, work restrictions. However, her right knee had become ever more painful. In September 2001, she reported to Dr. Oakley that she was experiencing increased pain, popping, and swelling in her right knee. Dr. Oakley noted that “she didn’t relate it to any particular injury or trauma....” In performing an arthroscopic surgery on her right knee in 2002, Dr. Oakley found shedding and plastic deformation of the stem, or weight-bearing part, of her knee replacement appliance. Dr. Oakley stated that such deterioration of the plastic appliance was “not uncommon,” and would lead to more pain and a need for the deformed part to be replaced. Moreover, Dr. Oakley indicated that knee replacements typically do not last as long in younger, overweight persons, such as Ms. Taylor, and that there is a twenty- to thirty-percent chance of an appliance failing within ten years. Dr. Oakley also stated that he thought there was a better than fifty-percent chance that, within the next five years, the deformed part of Ms. Taylor’s knee appliance would need to be replaced.

[535]*535Ms. Taylor’s 1994 and 2000 injury claims were consolidated before the Industrial Commission, and on 3 October 2002, Deputy Commissioner Phillip A. Holmes found, inter alia, that Ms. Taylor’s 2000 accident resulted in her total disability, her prior right knee injury was aggravated as a consequence of her 2000 injury, and the aggravation of the right knee injury was compensable, as was her total disability, but that Ms. Taylor relinquished her right to recover from Richmond Community College under the settlement agreement she entered with them. Ms. Taylor appealed to the full Industrial Commission, which, with Chairman Lattimore dissenting, reached the opposite conclusions, determining that Ms. Taylor’s 1994 right knee injury caused her disability and that Defendants were liable for her disability and medical compensation. Defendants appeal.

On appeal, our review of the Commission’s Opinion and Award 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, 352 N.C. at 116, 530 S.E.2d at 553. The Industrial Commission is the “sole judge of the weight and credibility of the evidence,” and this Court “ ‘does not have the right to weigh the evidence and decide the issue on the basis of its weight.’ ” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). Indeed, “so long as there is some ‘evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.’ ” Shah v. Howard Johnson, 140 N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (quoting Porterfield v. RPC Corp., 47 N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980)), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001).

“ ‘In order to obtain compensation under the Workers’ Compensation Act, the claimant has the bürden of proving the existence of his disability and its extent.’ ” Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). “Under the Workers’ Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity.” Id. at 764, 487 S.E.2d at 750 (citing N.C. Gen. Stat. § 97-2(9) (1991)). The employee may show disability in one of four ways:

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Taylor v. Carolina Restaurant Group, Inc.
613 S.E.2d 510 (Court of Appeals of North Carolina, 2005)

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613 S.E.2d 510, 170 N.C. App. 532, 2005 N.C. App. LEXIS 1079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-carolina-restaurant-group-inc-ncctapp-2005.