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Poe v. Raleigh/Durham Airport Authority12/19/1995
ffirming Deputy Commissioner Willis' Opinion and Award. Deputy Commissioner Charles A. Clay filed a Dissenting opinion. Plaintiff filed Notice of Appeal to this Court on 16 September 1994 and the appeal was, subsequently, timely perfected.
Plaintiff first assigns as error the Full Commission's Finding of Fact that he was not disabled as a result of the 6 August 1990 accident, since it was not supported by the evidence in the record. Further, plaintiff argues that the finding that there had been a "temporary flare-up" of his condition was an insupportable medical assumption. We do not agree.
On appellate review in workers' compensation cases, our Court's inquiry is limited to whether there is any competent evidence to support the Industrial Commission's findings and whether the Commission's findings support its Conclusions. Watkins v. City of Asheville, 99 N.C. App. 302, 303, 392 S.E.2d 754, 756, disc. review denied, 327 N.C. 488, 397 S.E.2d 238 (1990)(quoting Dolbow v. Holland Industrial, 64 N.C. App. 695, 696, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984)). If a finding of fact is a mixed question of fact and law, the Commission's finding is not binding on appeal. See Haponski v. Constructor's, Inc., 87 N.C. App. 95, 360 S.E.2d 109 (1987). In Haponski, this Court confronted the issue of causation where plaintiff had suffered an injury and thereafter began to suffer psychological problems. Therein, this Court held that a finding concerning causation of that plaintiff's disability was a mixed question of law and fact. Id. However, if there is sufficient evidence to sustain the facts involved, the North Carolina Supreme Court has found that such a mixed finding will also be conclusive on appeal. Lewter v. Enterprises, Inc., 240 N.C. 399, 403, 82 S.E.2d 410, 413 (1954)(citing Perley v. Paving Co., 228 N.C. 479, 46 S.E.2d 298 (1948); Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515 (1941); Thomas v. Gas Co., 218 N.C. 429, 11 S.E.2d 297 (1940)). The Full Commission, in its Opinion and Award, adopted and affirmed Deputy Commissioner Willis' Findings of Fact. Plaintiff takes issue with the following findings:
11. The incident on 6 August 1990 was an interruption of plaintiff's regular work routine by unusual circumstances which resulted in unexpected consequences, and the incident exacerbated a pre-existing condition by causing an increase in back and leg pain. However, the exacerbation was a temporary flare-up which did not cause plaintiff to be unable to be gainfully employed for any period of time.
14. Dr. Jariwala ordered a x-ray of plaintiff's lumbar spine in January 1991, this would be between the August 1990 incident with Britt Services and the later MRI of June 1991. At the time of the January 1991 x-ray: there was mild indentation of the endplates at inferior aspects of disks L3, L4, L5, which were not of clinical significance; there was faint calcification centrally within the disk space at level L5-S1, which was also not of clinical significance; and the vertebral bodies and their appendages were outlined normally and there was no disk reduction.
24. The undersigned finds limited weight in the testimony and opinions of Stephen Carpenter because of his heavy reliance on restrictions placed on plaintiff's activities only days after his surgery, when it is clear that those restrictions were not intended to be permanent.
The Commission concluded, therefore, that plaintiff had not been disabled as a result of the 6 August 1990 incident and that plaintiff had not experienced a substantial change of condition from his 3 May 1988 on-the-job accident.
The evidence tends to show that plaintiff, who
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