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Chambers v. Transit Management8/16/2005
e is evidence of both causation and aggravation connected to particular aspects of an employee's job duties (i.e. repetitious activity) to which the general public is not exposed, compensability is logically and legally warranted . . . .
3. The medical and testimonial evidence supports compensability of plaintiff's cervical injury as a specific traumatic incident under N.C. Gen. Stat. ยง 97-2(6).
This record contains sufficient evidence to support the facts found by the Commission. Acknowledging the Commission's duty to judge the credibility of the witnesses and to determine the weight given to testimony, these facts are sufficient to support the conclusion of the Commission that plaintiff is entitled to disability income as compensation for his injury resulting from a specific traumatic incident as well as for injuries resulting from a compensable occupational disease.
Affirmed.
Judge HUNTER concurs.
Judge JACKSON concurring in part; dissenting in part.
JACKSON, Judge, concurring in part; dissenting in part.
For the reasons stated below, I must respectfully dissent from the majority's decision to affirm the Opinion and Award of the Industrial Commission in its entirety.
The majority addresses only defendant's assignment of error that the Commission erred in determining plaintiff's ulnar neuropathy and cervical spine condition were compensable occupational diseases. While I concur with the majority's conclusion that there is competent evidence to support the Commission's finding that plaintiff's ulnar neuropathy was compensable, I am unable to concur with that conclusion regarding plaintiff's cervical spine condition.
The majority bases its decision with regard to plaintiff's cervical spine condition upon Dr. Adamson's response, on direct examination, to the question:
And would you have an opinion about whether the type of job duties that have been identified would have placed him at an increased risk of developing these type of symptoms and problems, or aggravation of the condition in the cervical spine as opposed to the general population?
This question clearly asks if Dr. Adamson had an opinion as to whether plaintiff's job duties would have placed him at a greater risk of either causing or aggravating his cervical spine conditions. A plaintiff's job duties must place him at a greater risk of developing the condition than the general population for it to be compensable under our Workers Compensation Act. N.C. Gen. Stat. . 97-53(13); Rutledge v. Tultex Corp., 308 N.C. 85, 93-95, 301 S.E.2d 359, 365-66 (1983). Dr. Adamson's response to this question, "I, would believe so, yes," is not sufficient to support compensability. Dr. Adamson's response is ambiguous, as it relates to compensability, since it is unclear if Dr. Adamson's opinion is that plaintiff's job duties placed him at a greater risk of developing the condition, aggravating it, or both.
This ambiguity is resolved, however, by Dr. Adamson's testimony upon cross-examination. With regard to the specific testimony cited by the majority, Dr. Adamson was asked:
In response to Mr. Whitlow's question in which he asked you to assume that the job site analysis is accurate and the accuracy of what's in the videotape concerning questions about the left ulnar neuropathy, I want to make sure I'm clear on what you have indicated, am I correct in understanding that in your opinion, you're not able to say that the bus driving activities caused the ulnar neuropathy, but that it could have aggravated the ulnar neuropathy?
(Emphasis added.) Dr. Adamson responded, "I think that's corre
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