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Rierson v. Commercial Service Inc.9/20/1994
JOHNSON, Judge.
This appeal is from an opinion and award entered 23 June 1993 by the Full Commission of the North Carolina Industrial Commission, in which the deputy commissioner's findings of fact and Conclusions of law of 10 November 1992 were fully adopted by the Full Commission.
The facts are as follows: On 18 May 1990, plaintiff, a service contractor for Commercial Service, Inc., while moving a shelf, slipped and fell sustaining a back injury . Plaintiff sought treatment from Dr. Cobb, a chiropractor, who had previously treated plaintiff on a regular basis since 1981.
On 11 July 1990, plaintiff was sent to Dr. Paul Long, M.D., an orthopedic surgeon at Piedmont Orthopedic Associates for lower back pain. Dr. Long examined plaintiff and found no physical abnormalities, diagnosed him with acute low back muscle strain, and recommended physical therapy. After undergoing physical therapy, plaintiff was re-evaluated by Dr. Long on 27 July 1990. Dr. Long found no abnormalities, and opined that there was no permanent disability, that plaintiff had reached maximum medical improvement, and that plaintiff could return to regular employment.
On 2 August 1990, Dr. Cobb referred plaintiff to a second orthopedic surgeon, Dr. Maultsby, who diagnosed him with myofascial pain syndrome. Dr. Maultsby recommended physical therapy. On 3 January 1991, Dr. Maultsby recommended that plaintiff had reached maximum medical improvement with no permanent impairment. On 25 February 1991, plaintiff sought another opinion from Dr. Nitka who determined that plaintiff had a zero to five percent permanent impairment to his lower back.
Plaintiff continued to seek treatment on a regular basis from Dr. Cobb for both the injury to his lower back and for previous injuries. On 12 August 1991, Dr. Cobb referred plaintiff to Dr. Holmberg, M.D., who referred plaintiff to Dr. Vincent E. Paul, M.D. Dr. Paul treated plaintiff for an injury that occurred in April of 1990 and for the 18 May 1990 injury. Plaintiff's major source of pain was his shoulder and neck, and not his lower back. Plaintiff received therapy until 10 February 1992 at which time he was released to go back to his full work. Plaintiff was given a five percent permanent impairment rating to the neck and a five percent permanent impairment rating to the lower back.
Plaintiff claims that he was unable to engage in employment from the time of the injury until March 1992, except for the three months from April to June 1991. However, evidence shows that plaintiff worked for R.H. Barringer and for Perlick installing draft beer systems for several weeks. Plaintiff also continued to engage in other physical activities such as drag-racing and washing his car.
Based on these facts, Deputy Commissioner Roger L. Dillard, Jr. found that plaintiff had completely recovered from his 18 May 1990 injury by 27 July 1990 with no permanent-partial injury and that this injury did not affect plaintiff's ability to earn wages after that date. The Full Commission of the North Carolina Industrial Commission adopted the deputy commissioner's findings of fact and Conclusions of law. From this opinion and award, plaintiff appeals.
Plaintiff's first assignment of error was whether the North Carolina Industrial Commission erred in adopting the findings of fact and Conclusions of law of the deputy commissioner which were adopted from a proposed opinion and award written by defendant's attorney.
The standard of review for a decision of the Industrial Commission is twofold: "(1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether . . . the findings
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