       An unpublished opinion of the North Carolina Court of Appeals does not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.
An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedu re.




               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA14-835

                                   Filed: 5 May 2015

From the North Carolina Industrial Commission, I.C. File No. Y18410

MARY TAYLOR, Employee, Plaintiff,

              v.

CAROLINAS HEALTHCARE SYSTEM, Employer, Self-Insured Defendant.


       Appeal by plaintiff from Opinion and Award entered 13 May 2014 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 2 December 2014.


       Hardison & Cochran, PLLC, by J. Jackson Hardison, for plaintiff-appellant.

       Dickie, McCamey & Chilcote, PC, by Susan H. Briggs, for defendant-appellee.


       CALABRIA, Judge.


       Mary Taylor (“plaintiff”) appeals from an Opinion and Award by the Full

Commission of the North Carolina Industrial Commission (“the Commission”)

concluding that she did not sustain a compensable injury by accident as a result of a

specific traumatic incident arising out of and in the course of her employment and

denying her claim for worker’s compensation benefits. We affirm.
                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                  Opinion of the Court



      Plaintiff was employed with Carolinas Healthcare System (“defendant”) as an

Instrument Tech III since May 2006. Plaintiff’s job description included lifting and

scanning (“pulling”) surgical instruments and placing them on carts for scheduled

operating room procedures. On 16 February 2012, since one of plaintiff’s co-workers

was on vacation, plaintiff was handling extra work—both her job and her co-

worker’s—when she began to experience pain in her wrists and burning in her arms

up to her shoulders. Plaintiff reported her pain to the assistant manager, Linda

Stalnaker (“Stalnaker”).

      On 17 February 2012, plaintiff completed a Report of Occupational Injury or

Illness, stating that she injured her wrists and upper shoulder while pulling

instruments for case carts all day. Plaintiff sought treatment at an urgent care

facility on 17 February 2012, and was referred to OrthoCarolina, where she was

treated by John Ternes (“Dr. Ternes”), an orthopedic physician. Dr. Ternes noted

that plaintiff reported that she lifted a heavy instrument on 16 February 2012, felt a

burning sensation in her wrists, and complained of pain in her shoulders, the center

of her back, and the back of her neck. According to Dr. Ternes’s diagnosis, plaintiff

sustained bilateral wrist strains, and was assigned a ten-pound lifting restriction.

Dr. Ternes continued treating plaintiff and placed her on light duty.        Plaintiff

returned to her regular position after approximately six weeks, when Dr. Ternes

released her from the weight restriction.



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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                   Opinion of the Court



      On 19 April 2012, plaintiff sought treatment from Dr. Andrew Sumich (“Dr.

Sumich”), a board certified specialist in physical medicine and rehabilitation, at

Carolina Neurosurgery & Spine. Plaintiff reported a two month history of neck pain,

bilateral upper extremity pain, and numbness in the wrists and hands. Dr. Sumich

ordered physical therapy for plaintiff’s condition. In June 2012, the results of an MRI

indicated that plaintiff sustained a small disc herniation abutting the spinal cord at

C4-C5. Plaintiff was diagnosed with left upper extremity radiculopathy and left C5-

C6 and C6-C7 foraminal stenosis. Dr. Sumich placed plaintiff on work restrictions

and ordered continued physical therapy.         Plaintiff continued to see Dr. Sumich

periodically for her condition.   Dr. Sumich prescribed Gabapentin for pain, and

plaintiff continued physical therapy.

      Defendant sent plaintiff a letter dated 27 July 2012 documenting plaintiff’s

work restrictions. The letter also indicated that plaintiff had the opportunity to apply

for a replacement job within defendant’s system for 90 days, with a deadline of 6

November 2012. Plaintiff applied for several positions with defendant, but did not

receive a job offer before the deadline.        Her employment with defendant was

terminated on 6 November 2012.

      Plaintiff filed a claim alleging to have suffered a compensable injury.

Defendant denied plaintiff’s claim on 25 September 2012, finding that she “did not

suffer a compensable injury by accident or an occupational disease as described under



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                      TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                   Opinion of the Court



the provisions of the NC Workers’ Compensation Act.” Plaintiff requested that her

claim be assigned for hearing, seeking workers’ compensation from defendant.

Deputy Commissioner Bradley W. Houser (“Deputy Commissioner Houser”) heard

the matter on 16 May 2013. On 1 October 2013, Deputy Commissioner Houser

entered an Opinion and Award finding and concluding that plaintiff did not sustain

a compensable injury by accident arising out of or in the course of her employment,

and denied her claim for workers’ compensation benefits. Plaintiff appealed to the

Full Commission.

      On 13 May 2014, the Commission found and concluded that plaintiff “failed to

produce evidence of a specific traumatic incident” on 16 February 2012 that caused

her injury, “and in the absence of an event, the onset of pain is not a specific traumatic

incident.” Since plaintiff did not sustain a compensable injury by accident as a result

of a specific traumatic incident which would entitle her to compensation, the

Commission entered an Opinion and Award upholding Deputy Commissioner

Houser’s ultimate conclusion that plaintiff was not entitled to workers’ compensation

benefits, and denied her claim. Plaintiff appeals.

      Review of an opinion and award of the Industrial Commission “is limited to

consideration of whether competent evidence supports the Commission’s findings of

fact and whether the findings support the Commission’s conclusions of law. This

‘court’s duty goes no further than to determine whether the record contains any



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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                  Opinion of the Court



evidence tending to support the finding.’” Richardson v. Maxim Healthcare/Allegis

Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (quoting Anderson v. Lincoln

Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). “The Commission is the

sole judge of the credibility of the witnesses and the weight to be given their

testimony.” Anderson, 265 N.C. at 433-34, 144 S.E.2d at 274.

      Plaintiff primarily argues that the Commission erred by concluding that she

did not sustain a compensable injury by accident as a result of a specific traumatic

incident arising out of and in the course of her employment. We disagree.

      “In order for an injury to be compensable under the Worker’s Compensation

Act, a claimant must prove: (1) that the injury was caused by an accident; (2) that

the injury arose out of the employment; and (3) that the injury was sustained in the

course of the employment.” Wake County Hosp. Sys. v. Safety Nat. Casualty Corp.,

127 N.C. App. 33, 38-39, 487 S.E.2d 789, 792 (1997). “The terms ‘accident’ and ‘injury’

are separate and distinct concepts, and there must be an ‘accident’ that produces the

complained-of ‘injury’ in order for the injury to be compensable.” Gray v. RDU Airport

Auth., 203 N.C. App. 521, 525, 692 S.E.2d 170, 174 (2010). “‘Accident’ under the Act

means (1) an unlooked for and untoward event which is not expected or designed by

the injured employee; (2) a result produced by a fortuitous cause.”        Woodson v.

Rowland, 329 N.C. 330, 348, 407 S.E.2d 222, 233 (1991) (citation omitted). “Injury”

is defined as



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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                   Opinion of the Court



             only injury by accident arising out of and in the course of
             the employment, and shall not include a disease in any
             form, except where it results naturally and unavoidably
             from the accident. With respect to back injuries, however,
             where injury to the back arises out of and in the course of
             the employment and is the direct result of a specific
             traumatic incident of the work assigned, “injury by
             accident” shall be construed to include any disabling
             physical injury to the back arising out of and causally
             related to such incident.

N.C. Gen. Stat. § 97-2(6) (2013). “[I]ncreased volume of work is not sufficient in itself

to constitute an interruption of the normal work routine or the introduction of new

circumstances not part of the usual work routine[.]” Adams v. Burlington Industries,

61 N.C. App. 258, 261-62, 300 S.E.2d 455, 457 (1983) (citation omitted). Additionally,

“the onset of pain is not a ‘specific traumatic incident’ that will determine whether

compensation will be allowed . . . pain is, rather, as a general rule, the result of a

‘specific traumatic incident.’” Chambers v. Transit Mgmt., 360 N.C. 609, 619, 636

S.E.2d 553, 559 (2006) (citation omitted).

      In the instant case, the Commission found that plaintiff was employed with

defendant as an Instrument Tech, pulling surgical instruments.            Although the

position required lifting between 30 and 50 pounds, the surgical instruments

generally did not weigh more than 40 pounds, and on an average day plaintiff would

handle 600 instruments. The Commission also found

             21. … it is plaintiff’s position that she sustained an injury
             to her neck on February 16, 2012 and that it is this injury
             to the cervical spine that caused the initial symptoms in


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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                  Opinion of the Court



             her wrists and the difficulties she experienced in the
             ensuing months.

             22. Based upon a preponderance of the evidence in view of
             the entire record, the Full Commission finds that plaintiff
             was performing her normal duties in customary fashion on
             February 16, 2012 when, at some point during the day, she
             developed burning in her wrists.        Plaintiff did not
             experience an interruption of her regular work routine and
             the introduction of unusual conditions likely to result in
             unexpected consequences on February 16, 2012.

             23. … [P]laintiff failed to produce evidence of a specific
             traumatic incident on February 16, 2012. The evidence of
             record failed to show that there was some event that caused
             the injury, and in the absence of an event, the onset of pain
             is not a specific traumatic incident.

Based on its findings, the Commission concluded that plaintiff “did not sustain a

compensable injury by accident which would entitle her to compensation” because she

did not experience an interruption of her regular work routine on 16 February 2012.

      As an initial matter, plaintiff contends that the Commission ignored evidence.

However, “the fact that the Commission may not have made a finding of fact

regarding every piece of evidence presented does not mean that the Commission

‘ignored’ that evidence, but only that it did not determine that a finding of fact

regarding such evidence was necessary to support its determination.”         Beard v.

WakeMed, ___ N.C. App. ___, ___, 753 S.E.2d 708, 711 (2014). Additionally, this Court

is “not at liberty to reweigh the evidence and to set aside the findings of the

Commission, simply because other inferences could have been drawn and different



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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                  Opinion of the Court



conclusions might have been reached.” Hill v. Hanes Corp., 319 N.C. 167, 172, 353

S.E.2d 392, 395 (1987) (citation and quotation marks omitted).

      The concept of an injury that is the direct result of a “specific traumatic event”

was decided by the Supreme Court of North Carolina in Chambers v. Transit Mgmt.,

360 N.C. 609, 636 S.E.2d 553 (2006). In Chambers, the plaintiff had been employed

as a bus driver for Transit Management of Charlotte for approximately thirty years.

360 N.C. at 610, 636 S.E.2d at 554. During a shift, the plaintiff experienced severe

pain in his arm, shoulder, and neck. Id. The plaintiff was diagnosed with “double

crush syndrome” as a result of conditions affecting both his elbow and cervical spine.

Id. at 611, 636 S.E.2d at 554. The Commission concluded that the plaintiff’s elbow

and cervical spine conditions were compensable occupational diseases, and that the

injury to the plaintiff’s spine qualified as a specific traumatic incident. Id. When

asked why he believed his pain was related to his work, the plaintiff stated “[b]ecause

I had no prior problems, none at all with my left arm or my hand or anything of that

nature. And – but I still couldn’t be a hundred percent sure that it wasn’t coming

from something else.” Id. at 617-18, 636 S.E.2d at 558. According to the Supreme

Court of North Carolina, since the plaintiff in Chambers knew of no particular

inciting event during his work shift, the plaintiff’s evidence did not constitute

“competent evidence” to support a finding that the plaintiff experienced an event

within a judicially cognizable time to meet the standard to qualify as a specific



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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                  Opinion of the Court



traumatic incident. Id. at 618, 636 S.E.2d at 558. The Court emphasized that a

claimant must demonstrate a causal connection between the specific traumatic event

and the injury. Id., 636 S.E.2d at 559. The fact that the plaintiff could only state he

experienced pain on a particular date while driving was not enough; he also needed

to present evidence linking the pain to the occurrence of an injury. Id. at 618-19, 636

S.E.2d at 559.

      In the instant case, competent evidence supports the Commission’s finding

that “[p]laintiff did not experience an interruption of her regular work routine and

the introduction of unusual conditions likely to result in unexpected consequences on

February 16, 2012.” Plaintiff testified at the hearing that she was performing her

regular duties during a busy shift, but could not point to a specific event that caused

her pain: “I don’t know exactly what instrument. It was just so many. . . . I got hurt

from lifting instruments over a period of time within the day. . . . I can’t say what

actually caused it, whether it was the instruments or the cart.” Just as the plaintiff

in Chambers was unable to link his pain to the occurrence of an injury, plaintiff in

the instant case also described a gradual onset of pain over the course of the day

without any particular inciting event during her work shift. The fact that plaintiff

could only state she experienced pain on a particular date while at work, without

presenting evidence linking the pain to the occurrence of an injury, is not enough to

establish a specific traumatic event. See Chambers, 360 N.C. at 618-19, 636 S.E.2d



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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                   Opinion of the Court



at 559. Additionally, the fact that plaintiff was working during a busy shift does not

in itself provide grounds to find that an accident occurred. See Adams, 61 N.C. App.

at 261-62, 300 S.E.2d at 457. Plaintiff contends that the Commission erred in relying

on Chambers because the occupational disease standard relied on in Chambers is the

wrong legal standard. However, plaintiff is mistaken. Although Chambers relies in

part on the occupational disease standard, it also illustrates the requirements for a

plaintiff to prove a specific traumatic incident.

      Even though the Commission found and concluded that plaintiff failed to

produce evidence of a specific traumatic event, she contends that her injury is

compensable since Dr. Sumich’s testimony indicates an exacerbation of a preexisting

condition. At his deposition, Dr. Sumich testified that it was his opinion that plaintiff

had an “underlying nonsymptomatic neck condition that was aggravated or

exacerbated” by the alleged injury on 16 February 2012. However, Dr. Sumich also

testified that it was possible that plaintiff had a degenerative condition unrelated to

her employment, and that a consult from a rheumatologist indicated that plaintiff’s

symptoms were consistent with osteoarthritis. Dr. Sumich further clarified that the

degenerative changes in plaintiff’s spine would be consistent with arthritic-type

changes. Plaintiff’s medical records indicated that plaintiff had shoulder and back

problems, including numbness and tingling. However, these injuries occurred prior

to 16 February 2012. The stipulated medical records dating from immediately after



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                       TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                    Opinion of the Court



16 February 2012, as well as plaintiff’s own account of her injuries, show that

plaintiff’s cervical complaints occurred over a month after the alleged injury.

         Plaintiff failed to present competent evidence that her current neck complaints

are causally related to the duties she performed on 16 February 2012. Therefore, the

Commission’s conclusion that plaintiff’s injury was not compensable is also supported

by Dr. Sumich’s testimony that it was possible that plaintiff had a degenerative

condition that was not related to her employment. Plaintiff’s argument is without

merit.

         Plaintiff also argues that the greater weight of the evidence established that

she was entitled to temporary total disability compensation. Specifically, plaintiff

argues that she has produced evidence that she is capable of some work, but that

after a reasonable effort on her part she has been unsuccessful in obtaining

employment. We disagree.

         Disability is defined as “incapacity because of injury to earn the wages which

the employee was receiving at the time of injury in the same or any other

employment.” N.C. Gen. Stat. § 97-2(9) (2013). A plaintiff bears the burden of

showing that he is unable to earn the same wages he had earned before the injury,

either in the same employment or in other employment. Russell v. Lowes Product

Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (citing Hilliard v.

Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982)). A plaintiff may



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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                  Opinion of the Court



prove disability in one of four ways:      (1) produce medical evidence that he is,

physically or mentally, as a consequence of the work related injury, incapable of work

in any employment; (2) produce evidence that he is capable of some work, but that

after a reasonable effort on his part he has been unsuccessful in obtaining

employment; (3) produce evidence that he is capable of some work but that it would

be futile to seek other employment because of preexisting conditions like age,

inexperience, or lack of education; or (4) produce evidence that he has obtained other

employment at a wage less than that earned prior to the injury. Russell, 108 N.C.

App. at 765, 425 S.E.2d at 457.

      In the instant case, it is undisputed that plaintiff is capable of some work, has

been unsuccessful in obtaining any other employment, and that seeking other

employment is not futile because of some preexisting condition. Therefore, the only

question is whether plaintiff presented sufficient credible evidence that she made a

reasonable effort to obtain employment.

      Plaintiff testified at the hearing that she continued to work during the time

Dr. Ternes and Dr. Sumich treated her. Plaintiff also presented two logs of her job

search into evidence. The first log indicates that plaintiff applied for eighteen jobs

between August and October 2012. However, plaintiff did not apply for any jobs

between October 2012 and April 2013. The second log indicates plaintiff applied for




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                     TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                  Opinion of the Court



eight jobs during April and May of 2013. Both logs indicate the only applications

plaintiff submitted were for positions with defendant.

      The Commission found that plaintiff applied for several positions with

defendant between August and November 2012. The Commission also found that

“[p]laintiff presented no evidence that she looked for work during the period from

November 6, 2012 to April 9, 2013. Approximately one month prior to the hearing

before the Deputy Commissioner, plaintiff began looking for a job but limited her

search to positions with defendant.” Since the Commission is the sole judge of the

credibility of the witnesses, and it rejected plaintiff’s evidence that she made a

reasonable effort to obtain other employment, plaintiff did not meet her burden of

showing the existence of a disability.

      In conclusion, the Commission found that plaintiff failed to produce evidence

of a specific traumatic incident on 16 February 2012, and concluded that although

plaintiff presented evidence that she experienced pain on that date, “she presented

no evidence linking that pain to the occurrence of a specific incident.” Although

plaintiff was injured, in the absence of an event, the onset of pain is not a specific

traumatic incident. Therefore, plaintiff did not sustain an injury by accident as

defined in N.C. Gen. Stat. § 97-2(6) as a result of a specific traumatic incident on 16

February 2012, and her claim must be denied. Furthermore, plaintiff did not meet

her burden of showing the existence of a disability. Since the evidence supports the



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                    TAYLOR V. CAROLINAS HEALTHCARE SYSTEM

                                 Opinion of the Court



Commission’s findings of fact, and the Commission’s findings support its conclusion

that plaintiff did not sustain a compensable injury, plaintiff is not entitled to

temporary total disability compensation. We affirm the Commission’s Opinion and

Award.

      AFFIRMED.

      Judges STROUD and McCULLOUGH concur.

      Report per Rule 30(e).




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