[T] Sutton v. Mission St. Joseph's Hospital2/3/2004
gs of fact when supported by competent evidence, the Commission's conclusions of law are fully reviewable. Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d 54, 60 (2000).
As a general rule, "aggravation of a pre-existing condition which results in loss of wage earning capacity is compensable under the workers' compensation laws in our state." Smith v. Champion, Int'l., 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999). In a workers' compensation action, the plaintiff bears the burden of proving the claim is compensable. Pitillo v. N.C. Dep't of Envtl. Health & Natural Res., 151 N.C. App. 641, 645, 566 S.E.2d 807, 811 (2002).
"Although the employment-related accident 'need not be the sole causative force to render an injury compensable,' Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 106 (1981), theplaintiff must prove that the accident was a causal factor by a 'preponderance of the evidence.'" Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003)(quoting Ballenger v. ITT Grinnell Industrial Piping, 320 N.C. 155, 158-59, 357 S.E.2d 683, 685 (1987)); See also 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence ยง 41, at 137 (5th ed. 1998). In order to support a conclusion that the disability claim is compensable, the plaintiff must show:
(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual's incapacity to earn was caused by plaintiff's injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
Plaintiff in this case fails to meet his burden of proof. Plaintiff asserts that Dr. Maxwell and Dr. David testified that plaintiff had experienced an aggravation of his pre-existing lower back problems as a result of the incident of 18 July 2000. We have already determined that there existed competent evidence supporting the Commission's findings of fact regarding the testimony of Dr. David and Dr. Maxwell. We reiterate that the Commission's determinations as to weight and credibility to be afforded a witness are conclusive. As to both orthopaedists, the Commission gave little weight to their opinions because the Commission found that plaintiff had not fully disclosed the status of his pre-existing condition to either treating physician. The record isreplete with evidence that plaintiff suffered from degenerative disk disease, cervical and lumbar, prior to 18 July 2000. Also, Dr. Lawrence Blinn, a diagnostic radiologist, and Dr. David, after reviewing the diagnostic tests performed on plaintiff before and after 18 July 2000, agreed that there was no change in the condition of plaintiff's lumbar spine after 18 July 2000.
While plaintiff may have presented conflicting evidence as to the aggravation of his pre-existing condition, we conclude that there was competent evidence in the record to support the Commission's findings of fact. Those findings support the Commission's conclusion of law that plaintiff had failed to prove by a preponderance of the evidence that he sustained an aggravation of his pre-existing condition as a result of the incident of 18 July 2000. Plaintiff's assignments of error are thus overruled.
Plaintiff has failed to present any argument in support of his remaining assignments of error and they are thus deemed abandoned. N.C.R. App. P. 28(b)(6).
Affirmed.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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