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Goforth v. K-Mart Corp.12/21/2004
nal).
Here, the record shows that Goforth had a pre-existing back condition due to prior injuries and surgeries. But there is evidence showing that Goforth experienced a specific traumatic incident when he attempted to load a bag of peat moss into a customer's car in early May 2000.
Under the specific traumatic incident provision of section 97-2(6) of the North Carolina General Statutes, a plaintiff must prove an injury at a judicially cognizable point in time. N.C. Gen. Stat. § 97-2(6) (2003). The term "judicially cognizable" requires "`a showing by plaintiff which enables the Industrial Commission to determine when, within a reasonable period, the specific injury occurred.'" Ruffin, 150 N.C. App. at 484, 563 S.E.2d at 636 (citation omitted). In this case, there was evidence showing that the peat moss incident occurred in early May 2000, which was a judicially cognizable period of time. Goforth's testimony and Dr. Chewning's deposition supported this time period. While a person with no pre-existing back problems might not have sustained Goforth's level of injury, the evidence supports the Commission's determination that the aggravation of his pre-existing condition by the May 2000 specific traumatic incident is a compensable injury. K-Mart next argues that the Commission erred in finding Goforth permanently and totally disabled as a result of the May 2000 injury. We disagree.
The Commission found in Finding of Fact 16 that, The uncontroverted medical evidence in this case establishes that plaintiff is permanently and totally disabled as a result of the injury he suffered working at K-Mart in early May 2000.
Dr. Chewning testified that he wrote a letter verifying that Goforth should be considered disabled from working as of 24 August 2000. At the time of the hearing, Dr. Chewning could not give an updated report because Goforth was no longer his patient. But at the time of the hearing, Goforth continued to wear a leg brace. Also, there was evidence of Goforth's lack of prior work experience and limited education.
If pre-existing conditions such as the employee's age, education and work experience are such that an injury causes the employee a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the actual incapacity he or she suffers, and not for the degree of disability which would be suffered by someone younger or who possesses superior education or work experience.
Peoples v. Cone Mills Corp., 316 N.C. 426, 441, 342 S.E.2d 798, 808 (1986). We hold that there is competent evidence supporting the Commission's finding of fact of permanent and total disability. Morrison, 304 N.C. at 6, 282 S.E.2d at 463.
Defendant further contends the Commission abused its discretion in awarding attorney fees to Goforth under section 97-88.1 of the North Carolina General Statutes. N.C. Gen. Stat. § 97-88.1 (2003). We disagree.
"The decision of whether to make such an award, and the amount of the award, is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion." Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 54-55, 464 S.E.2d 481, 486 (1995). An abuse of discretion results only where a decision is "`manifestly unsupported by reason or . . . so arbitrary that it could not have been the result of a reasoned decision.'" Long v. Harris, 137 N.C. App. 461, 465, 528 S.E.2d 633, 636 (2000) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). This requirement ensures that defendants do not bring hearings out of stubborn, unfounded litigiousness. Troutman, 121 N.C. App.
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