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Sheehan v. Perry M. Alexander Construction Co.6/4/2002
PUBLISHED
Wendle Sheehan ("plaintiff") appeals from an opinion and award of the North Carolina Industrial Commission (the "Commission") denying him workers' compensation benefits. We affirm.
Plaintiff was born on 19 June 1948. He has a ninth-grade education and served in the U.S. Army from 1966 until 1969. Since his discharge from the Army, plaintiff has worked primarily in heavy equipment and construction. Prior to his employment with Perry M. Alexander Construction Company ("defendant"), plaintiff had a history of lower back problems and work-related injuries. He underwent three lumbar procedures in 1980, 1982, and 1990. Although plaintiff continued to experience pain and discomfort in his back following the 1990 surgery, he was able to work.
Plaintiff began working as a bulldozer operator for defendant in November 1990. He alleges that on 13 April 1992, while he was working at a construction site in Marion, North Carolina, he hurt his back while operating the bulldozer. According to plaintiff's testimony before the Deputy Commissioner, he backed up his bulldozer over a large rock, and the bulldozer fell about three to four feet, jarring him and causing pain in his back and down his leg.
On 4 May 1992, plaintiff went to the emergency room at Transylvania Community Hospital, where he reported that he had hurt his back in a bulldozer accident. Plaintiff continued to work, although he experienced continual pain and discomfort. On 19 May 1992, plaintiff was terminated from his job with defendant.
On 27 July 1992, plaintiff began a course of treatment at the Veteran's Administration Medical Center (the "VAMC"). He reported to medical personnel at the VAMC that he had injured his back in a bulldozer accident. He was first seen in the orthopaedic clinic of the VAMC on 17 August 1992. On 8 November 1993, after his leg gave way causing him to fall at home, plaintiff was seen by Glyndon B. Shaver, Jr., M.D., Chief of Orthopaedic Surgery at the VAMC.
Plaintiff filed a Form 18, Notice of Accident to Employer, on 18 September 1992, and defendant denied workers' compensation to plaintiff. Plaintiff's claim was heard by a Deputy Commissioner on 26 November 1996. The Deputy Commissioner awarded compensation, and defendant appealed. On 1 September 1999, the Full Commission reversed the Deputy Commissioner's opinion and award, and plaintiff appealed to this Court.
In an unpublished opinion, we vacated the opinion and award of the Full Commission. We overruled several assignments of error to certain of the Commission's findings of fact, but we found merit in plaintiff's assignment of error to the following findings: 11. Plaintiff's claim that he injured his back while operating a bulldozer on 13 April 1992 is not credible.
13. Given our finding that plaintiff's claim that he suffered an accidental, work-related injury is not credible, his current condition is due to non-compensable causes.
We held as follows:
In the case at bar, the Commission impermissibly disregarded the testimony of Dr. Shaver. The Commission made no reference to Dr. Shaver's testimony in its findings of fact or conclusion of law. This omission was error, particularly because Dr. Shaver's testimony corroborated plaintiff's testimony. Accordingly, we vacate the opinion and remand the case to the Commission for it to consider all of the evidence, make complete findings of fact and proper conclusions of law, and enter an appropriate award.
On remand, the Commission replaced the findings of fact quoted above with the following new findings: 11. Plaintiff sought medical treatment for his back on 4 May 1992 at Transyl
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