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Kelly v. Carolina Components6/2/1987
Defendant raises questions as to admission of evidence, findings of fact, and conclusions of law. We overrule all of defendant's arguments and affirm the Commissioner's award.
In one argument, defendant contends that the Commission erred in failing to sustain defendant's objections to a hypothetical question asked of plaintiff's medical witness, Dr. David Fajgenbaum, who treated plaintiff for his herniated disc. The objected-to question was as follows:
Q. Doctor, if the Industrial Commission should find by the greater weight of the evidence that in early January 1985 Mr. Kelly was on a ladder and was attempting to slide a 80 to 100 pound door off a shelf and in so doing had the weight of the door on his head, and that he had his left leg below his right leg on a ladder, that he felt the door was too heavy for him to handle but could not put the door back because he had pulled it out too far; that he twisted as he moved the door down the steps and that he felt pressure in the neck area; that the next morning he had stiffness in his neck and eventually had pain in his lower back which progressively got worse until March of 1985 when he sought medical attention for his back pain; and that he had had no back problems prior to January of 1985 and sustained no injury to his back between January and March of 1985 other than this ladder door incident. Based on that hypothetical, do you have an opinion satisfactory to yourself and to a reasonable degree of medical probability as to whether or not the herniated disc you've
diagnosed was proximately caused by Mr. Kelly's activities in removing the door in early January of 1985?
Defendant contends its objection should have been sustained because the question, as stated, did not include any reference to plaintiff's employment with another employer subsequent to plaintiff's employment with defendant but prior to Dr. Fajgenbaum's treatment of plaintiff's back. The evidence before the Commission showed that plaintiff was injured while working for defendant on 2 January 1985, was terminated by defendant on 7 March 1985, began employment with another employer soon thereafter, and sought medical advice and treatment from Dr. Fajgenbaum on 22 March 1985. Relying on the opinion of our Supreme Court in Dean v. Coach Co., 287 N.C. 515, 215 S.E.2d 89 (1975), defendant contends that the objected-to question omitted references to plaintiff's subsequent employment, a fact which goes to the essence of plaintiff's claim, and therefore presented a state of facts so incomplete that an opinion based on it would be obviously unreliable and therefore inadmissible. We disagree. While the question as stated to Dr. Fajgenbaum did not include a specific reference to plaintiff's subsequent employment, it did cover or encompass the time span related to that employment and so contained sufficient elements of reliability in that respect so as to enable Dr. Fajgenbaum to relate plaintiff's back problems to his injury in January. This argument is rejected.
In another argument, defendant contends that the Commission erred in finding and concluding that plaintiff suffered an injury to his back arising out of and in the course of his employment with defendant that was the direct result of a specific traumatic incident of the work assigned. The applicable statute is N.C. Gen. Stat. ยง 97-2(6) (1983), which provides in pertinent part that:
'Injury and personal injury' shall mean only injury by accident arising out of and in the course of the employment, . . . . With respect to back injuries, however, where injury to the back arises out of and in the course of the employmen
Page 1 2 North Carolina Personal Injury Attorneys
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