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Lakey v. U.S. Airways12/31/2002
r lower back and left leg pain resulting from her July 17, 1997 accident.
Plaintiff's motion to have these physicians assume her care therefore is reasonable and should be approved. (emphasis added).
This determination is sufficient to find that plaintiff requested approval of her physicians and treatment within in a reasonable time. See Schofield, 299 N.C. at 594, 264 S.E.2d at 64.
Finally, defendants contend the Commission erred in finding that plaintiff's 17 July 1997 injury was a new injury. Defendants argue that the 17 July 1997 injury was only an aggravation of plaintiff's previous back injury. In order to determine the amount of plaintiff's award, the Commission must determine whether plaintiff's injury is compensable as a new injury or whether it is the aggravation of a previous injury.
In reviewing this issue for an abuse of the Commission's discretion, we note that this Court does not have the right to weigh the evidence and decide the issue on the basis of its weight. Timmons v. North Carolina DOT, 351 N.C. 177, 522 S.E.2d 62 (1999). Rather, we can only determine whether the record contains sufficient evidence to support the Commission's findings. Id.
Regarding the occurrence of a new injury , the Commission found:
15. By late June 1997, defendant-employer scheduled plaintiff to work full-time as a flight attendant for 81 hours during the month of July 1997, and plaintiff agreed to return to work as a full-time flight attendant and to work the 81 hours as scheduled. By July 1, 1997, plaintiff had in fact returned to work as a full-time flight attendant, working around 80 hours a month, as authorized by Dr. Jones.
16. On July, 1997, during U.S. Airways Flight No. 3618 while over Solberg, N.J. at about 30,000 feet, the aircraft on which plaintiff was working as a full-time flight attendant encountered turbulence. In his incident report, the pilot referred to this as an "uncommanded roll of 20 to 30 degrees," which caused the aircraft to shutter and buffet. Plaintiff was standing in the galley area at the time, and was thrown off balance and knocked back hard against the galley wall, striking her lower back and legs. She immediately felt pain in her lower back, buttocks, left hip and leg.
17. The events of July 17, 1997 when the aircraft hit unexpected air turbulence and caused plaintiff to strike her lower back and legs against the aircraft's wall and injure her lower back and legs constituted an interruption of plaintiff's work routine and an injury by accident arising out of and in the course of her employment.
18. As a result of the accident on July 17, 1997, plaintiff suffered additional injury to her lower back, resulting in severe lower back pain and left leg pain. Due to her ongoing back and leg pain, plaintiff has been unable to continue to work as a flight attendant. She has been unable to earn wages in the same or any other employment since July 18, 1997.
Although some evidence favors defendants, the Commission is the finder of facts and must determine the weight to be given the evidence presented. Id. In their depositions, Dr. Jones stated plaintiff's 17 July 1997 incident resulted in an "injure " due to "a direct blow to her back," and Dr. McLean concurred that the 17 July 1997 incident "more likely than not caus a disabling lower back injury in Mrs. Lakey" and that "the events of July 17, 1997 probably caused a new back injury." Furthermore, plaintiff had been released to work a full-time schedule and was on track to work at least 70 hours per month. Therefore, we find there is sufficient evidence to support the Commission's determination that plaintiff suffered
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