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Bondurant v. Estes Express Lines12/7/2004
his brief that his subsequent hernias do not meet the standards as delineated pursuant to N.C. Gen. Stat. § 97-2(18). Plaintiff instead advances the argument that compensability of the subsequent hernias are governed by Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 323 S.E.2d 29 (1984).
In Heatherly, this Court stated: The law in this state is that the aggravation of an injury or a distinct new injury is compensable " hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct."
Heatherly, 71 N.C. App. at 379, 323 S.E.2d at 30 (citation omitted). Even if this Court were to conclude that Heatherly controls, plaintiff's argument nevertheless fails as both Drs. Hill and Garrett testified that just because a person has undergone a hernia repair, it does not necessarily follow that the person will have another hernia. Therefore, plaintiff cannot show that the subsequent hernias were the natural and direct result of the earlier hernias.
Moreover, Heatherly involved a leg fracture that had not completely healed when the claimant was involved in a motor vehicle accident. The compensability of a leg fracture is not governed by the statutory test as enumerated in N.C. Gen. Stat. § 97-2(18).
Plaintiff testified that the third hernia occurred due to being hit by a wave at the beach, and the last two hernias occurred while carrying a door down a set of steps at his home. In addition, subsequent to his employment with defendant, plaintiff was employed in several positions with various employers that involved heavy manual labor. No competent evidence supports plaintiff's contention that the three subsequent hernias were caused by incidents related to his employment with defendant. Moreover, plaintiff failed to assign as error conclusion of law number 2 which reads in pertinent part: "Plaintiff's 1995 and 1996 hernias had resolved and plaintiff did not have a hernia prior to his injuries in 1999, 2000, and 2001." Accordingly, this assignment of error is overruled.
The opinion and award of the Full Commission is affirmed.
Affirmed.
Judges TYSON and LEVINSON concur.
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