 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Chambers v. Transit Management8/16/2005
ct." Dr. Adamson was then asked, " nd the same thing was basically true for the neck condition, the condition as treated there?" He responded, " ure." This testimony makes clear that, in Dr. Adamson's opinion, plaintiff's job duties placed him at a greater risk of aggravating the conditions, but not of developing them. This testimony is not in conflict with Dr. Adamson's testimony on direct examination, but rather clarifies his response to the compound question asked by plaintiff's attorney.
Nor does this testimony create a conflict between the testimony of different witnesses thus requiring the Commission to weigh the testimony and determine the credibility of conflicting witnesses. There is no conflict between the testimony of Dr. Adamson and Dr. Dover regarding whether plaintiff was at an increased risk of developing his cervical disease due to his job duties. Both doctors' testimony was clear that plaintiff was not at greater risk than the general public. Consequently, the Commission's decision was not based on its judgment of the weight and credibility of witnesses and therefore beyond our scope of review, but rather it was based upon insufficient evidence and is subject to reversal.
Focusing on one portion of a witness' testimony, to the exclusion of other testimony by the same witness that develops or clarifies that testimony, sets a dangerous precedent. To do so will allow a witness' misstatement, an answer based on a misunderstanding of the question, or, as in this case, a simple answer to a compound question to be the basis for an Opinion and Award of the Commission even if the testimony is later corrected or clarified on cross-examination. This clearly would frustrate one of the primary purposes of cross-examination. These are not two separate pieces of evidence to be considered separately, but rather interrelated parts of the same evidence which must be considered in conjunction with each other.
In addition to the assignment of error discussed above, defendant assigned error to the Commission's finding that plaintiff suffered a compensable cervical spine injury on 4 December 2000. Two theories exist upon which a compensable back injury can be based: "(1) injury by accident . . . or (2) injury . . . [resulting] from a specific traumatic incident." Livingston v. James C. Fields & Co., 93 N.C. App. 336, 337, 377 S.E.2d 788 (1989). Plaintiff's cervical spine injury was found to be compensable by the full Commission under the second theory. Defendant contends plaintiff's cervical spine injury cannot be compensable as arising from a specific traumatic injury since the evidence must show that there was some event which caused the injury. Fish v. Steelcase, Inc., 116 N.C. App. 703, 709, 449 S.E.2d 233, 238 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995). The Fish Court explained that a worker is required only to show the injury occurred at a "judicially cognizable" point in time to prove a specific traumatic incident. Id. The Court continued:
Judicially cognizable does not mean "ascertainable on an exact date." Instead, the term should be read to describe a showing by plaintiff which enables the Industrial Commission to determine when, within a reasonable period, the specific injury occurred. The evidence must show that there was some event that caused the injury, not a gradual deterioration. If the window during which the injury occurred can be narrowed to a judicially cognizable period, then the statute is satisfied.
Id.
The full Commission found the pain in plaintiff's neck, left arm, and shoulder occurred within a judicially cognizable period of time on 4 December 2000 while he was performing his job-related duties. This
Page 1 2 3 4 5 6 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|