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Rogers v. Smoky Mountain Petroleum Co.8/16/2005
Ronald C. Rogers (plaintiff) appeals from an Opinion and Award from the Full Commission dated 12 September 2003 denying benefits for his back injury under the North Carolina Workers' Compensation Act.
On 16 May 2001, plaintiff was employed as a duct cleaner for Smoky Mountain Petroleum Company and Federated Insurance Company(defendants). In fulfillment of his job duties as a "helper" on that day, he assisted installers Todd Fountain (Fountain) and Art Hollis (Hollis) in replacing an old furnace with a new heating and air conditioning system. To complete the task, they used a hand truck to move heavier items. Plaintiff testified he felt pain across his back and down his leg as he assumed the weight of the heat pump; however, Fountain and Hollis both testified they noticed no change in his performance, nor did plaintiff mention he had hurt himself.
At the time of the alleged injury, plaintiff was receiving treatment for back problems and had discontinued work from a different employer in November 2000 due to low back pain. He began working for defendant in February 2001. On 17 May 2001, one day after the alleged injury, plaintiff received an epidural steroid injection from Dr. Cleveland Thompson. This was one injection in a series of three that had been planned in advance to treat plaintiff's existing back pain. However, during the visit, plaintiff did not mention to Dr. Thompson the alleged injury on the preceding day and, according to Dr. Thompson, plaintiff tolerated the procedure well. On 18 May 2001 plaintiff saw Dr. Terry White, his treating physician, complaining of more intense back pain and attributing the increased pain to having worked two days earlier. On 18 May 2001, Dr. White wrote plaintiff out of work until 24 May2001. Despite Dr. White's work release plaintiff returned to work that same day. Plaintiff continued to work with defendant until he was referred by Dr. White to Dr. Keith Maxwell in September 2001 for continued back problems.
On 25 May 2001, plaintiff filed a Form 18, thereby initiating his claim against defendants for benefits pursuant to the Workers Compensation Act. Plaintiff's claim was denied by defendants.
This matter was heard before a Deputy Commissioner in Asheville on 29 April 2002. The deposition testimony of Dr. Maxwell and Dr. White was taken. After the hearing, on 8 May 2002, the Deputy Commissioner considered Dr. Maxwell's deposition testimony, in addition to Dr. White's testimony, to determine whether plaintiff was entitled to receive benefits. By Opinion and Award filed 27 November 2002, the Deputy Commissioner rejected plaintiff's testimony as not credible and denied plaintiff's claim concluding plaintiff failed to meet his burden of proving by competent evidence that he sustained a compensable injury on 16 May 2001.
In its Opinion and Award dated 12 September 2003, the Full Commission affirmed the Opinion and Award of the Deputy Commission with minor modifications.
Plaintiff raises five issues on appeal: whether theCommission erred in (I) finding plaintiff failed to prove by the greater weight of the evidence that he sustained a work-related back injury on 16 May 2001; (II) finding plaintiff's pre-existing condition to be a bar to recovery; (III) determining as a matter of law plaintiff failed to meet his burden of proof supported by competent evidence that his back injury resulted from a traumatic incident on 16 May 2001; (IV) determining as a matter of law that plaintiff's testimony lacked credibility; (V) failing to consider all the competent (and material) evidence of record in making its findings of fact and conclusions of law.
I.
Plaintiff first argues the Comm
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