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Cannon v. Goodyear Tire & Rubber Co.7/5/2005
the kyphotic deformity, he testified that the deformity was "quite fused," and therefore "suggestive of very chronic phenomena" or a "long-standing" condition. He believed that the deformity was either a congenital condition or "due to trauma in the remote past." Dr. Allen testified that it was "potentially" caused by an automobile accident in which plaintiff had been involved when plaintiff was sixteen years old.
Dr. Allen performed surgery on the kyphotic deformity on 27 July 2001. Plaintiff steadily improved after the surgery, returning to work on 26 November 2001. Dr. Allen testified in his deposition that by that time plaintiff had reached maximum medical improvement. Dr. Allen estimated that plaintiff had sustained twenty percent permanent partial disability to his back.
In an opinion and award entered 24 October 2003, the Industrial Commission (the Commission) made the following pertinent findings of fact:
11. Dr. Allen opined that the accident at work could have been an exacerbating or aggravating factor in the onset of plaintiff's cervical myelopathy. He further opined that plaintiff's kyphotic deformity caused plaintiff to be more susceptible to injury after a specific traumatic incident. Dr. Allen opined that given the long-standing kyphotic deformity, any trauma such as the work- related injury or the car accident of 18 April 2001 could have been sufficient to create plaintiff's current symptoms. Dr. Allen was unable to apportion plaintiff's current condition between the automobile accident when plaintiff was 16, the work- related accident of 6 April 2001, and the auto accident on 18 April 2001.
12. Plaintiff's pre-existing condition ofkyphotic deformity was materially aggravated and/or exacerbated by the 1work-related specific traumatic incident of 6 April 2001. Plaintiff's back condition was further materially aggravated and/or exacerbated by the automobile accident of 18 April 2001.
The Commission then made the following pertinent conclusions of law:
1. On 6 April 2001, plaintiff sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment with defendant-employer. N.C. Gen. Stat. § 97-2.
2. On 18 April 2001, plaintiff was in an automobile accident which materially aggravated and/or exacerbated his work- related injury and his pre-existing condition of kyphotic deformity. . . . In the instant case, the subsequent aggravation of plaintiff's condition was not due to an intervening cause attributable to plaintiff's own intentional conduct. Rather, it occurred while plaintiff was on his way to receive treatment for his compensable work- related injury of 6 April 2001; therefore, the aggravation of plaintiff's condition was a direct and natural result of plaintiff's compensable injury. N.C. Gen. Stat. § 97-25.
Chairman Buck Lattimore dissented from the Commission's opinion and award, stating:
laintiff's complaints all regarded a lower back injury on April 6, 2001. Not one of four doctors deposed in this case indicated that plaintiff's lower lumbar pain allegedly experienced on April 6, 2001 definitely caused or aggravated a pre-existing condition in plaintiff's cervical spine.
The Commission awarded plaintiff: (1) temporary total disability at the rate of $620.00 per week from 23 April 2001through 25 November 2001 and (2) permanent partial disability at the rate of $620.00 for sixty weeks for the twenty percent permanent partial disability rating to his back. Defendants appeal.
I.
We first note that plaintiff has argued in his brief that defendants' appeal should be dismissed
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