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Spano v. Mail Contractors of America11/15/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Mail Contractors of America ("MCA") and its insurance carrier, Lumbermen's Mutual Casualty Company (collectively "defendants"), appeal from an opinion and award of the North Carolina Industrial Commission (the "Commission") awarding Carl J. Spano ("plaintiff") ongoing total disability benefits as a result of a back injury . We reverse. MCA hired plaintiff as a truck driver in July of 2000. Plaintiff's job duties involved inspecting and driving a tractor- trailer truck; picking up, loading, unloading, and delivering wheeled mail containers; and hooking and unhooking the trailer from the truck. The mail containers weighed, at times, in excess of 300 pounds.
Prior to 25 October 2001, plaintiff testified he suffered from occasional back pain but had not missed work due to back problems or sought medical attention. On 25 October 2001, plaintiff was loading and transporting bulk mail between Greensboro and Charlotte. Although plaintiff was not involved in an accident and could not recall an exact time that he began experiencing back pain, plaintiff's back began bothering him during his return trip from Charlotte. Plaintiff differentiated the pain he felt in his back on 25 October 2001 from his previous aches and pains and described the pain as "a real sharp pain in lower back, running across hip[.]"
Plaintiff did not initially report the pain; however, as the pain worsened the following day, plaintiff contacted MCA to report it on the advice of his family doctor. MCA's physician evaluated plaintiff and placed him on light duty with restrictions of lifting, pushing, and pulling no more than ten to twenty pounds, but MCA did not have any positions consistent with those restrictions. On 7 November 2001, plaintiff presented to MCA's treating physician for the final time and was referred to his family doctor. Dr. Avva, plaintiff's family doctor, evaluatedplaintiff, took him out of work entirely, and sent plaintiff for an evaluation with Dr. Kramer, a physical medicine expert in an orthopedic surgeon group. Dr. Kramer concurred with Dr. Avva that plaintiff should be held entirely out of work. A subsequent MRI revealed a ruptured disc at L5-S1 and a bulging disc between L3-L4. Plaintiff filed a claim for workers' compensation, which was denied by defendants on 2 November 2001. After a hearing on the matter, a deputy commissioner entered an order on 3 December 2003 denying plaintiff's claim. On 12 October 2004, the Commission reversed. The Commission found plaintiff "suffered an injury during his shift on the night of 25 October 2001" that resulted in his inability to work. Based on this finding, the Commission concluded plaintiff sustained a compensable injury "when he suffered a specific traumatic incident when, while driving a truck after unloading heavy objects, he felt a severe sharp pain in his back." The Commission awarded temporary total disability compensation from 26 October 2001 until plaintiff returned to work or other order of the Commission. From this opinion and award, defendants appeal.
This Court's review of an opinion and award of the Industrial Commission is "limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). " he full Commission is the sole judge of the weight andcredibility of the evidence," see id.
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