# Terasaka v. AT & T

> Court of Appeals of North Carolina · December 6, 2005 · 174 N.C. App. 735

URL: https://www.frixlaw.com/law-library/cases/9626157

## Case

- **Full name:** AMY TERASAKA, Plaintiff v. AT&T, Defendant
- **Court:** Court of Appeals of North Carolina
- **Decided:** December 6, 2005
- **Citations:** 174 N.C. App. 735; 622 S.E.2d 145; 2005 N.C. App. LEXIS 2591
- **Precedential status:** Published
- **Opinion:** Dissent by Geer
- **Judges:** Calabria, Elmore, Geer
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9626157

## How later opinions describe it (automated extraction)

- holding that medical evidence that plaintiff could not return to job that required repetitive motion of hands and wrists does not amount to finding that "plaintiff could not work in any employment"

## Opinion text

GEER, Judge,
dissenting.
I believe that the majority has failed to properly apply the test in Russell v. Lowes Prod. Distribution, 108 N.C. App. 762 , 425 S.E.2d 454 (1993) and, therefore, respectfully dissent. As the majority acknowledges, an employee may meet her burden of proving disability in one of four ways:
(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
Id. at 765 , 425 S.E.2d at 457 (internal citations omitted). The majority, however, holds that because plaintiff Amy Terasaka failed to offer medical evidence meeting the first method of proof, she has necessarily failed to prove total disability.
*742 An employee contending that she is totally disabled is not limited to proving by medical evidence her incapacity to work at any employment. As this Court emphasized in White v. Weyerhaeuser Co., 167 N.C. App. 658, 672 , 606 S.E.2d 389, 399 (2005), “[t]he absence of medical evidence does not preclude a finding of disability under one of the other three [Russell] tests.” See also Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 342 , 561 S.E.2d 298, 302 (“While we agree that plaintiffs medical evidence is insufficient to show disability, we conclude that plaintiff has met his initial burden of production through other evidence.”), disc. review denied, 355 N.C. 747, 565 S.E.2d 193 (2002).
The second and third methods of proof under Russell lead to the same conclusion as the first method of proof: that the employee is unable to work in any capacity. The first method establishes that the employee is medically incapable of working, while the second and third methods focus on the vocational component of disability. Under those two methods, an employee is deemed totally disabled because even though the employee may be medically capable of performing work, employers nonetheless will not hire the employee. See White, 167 N.C. App. at 673 , 606 S.E.2d at 399-400 (affirming award of total disability for closed period based on the Commission’s finding that the plaintiff, during that period, made unsuccessful efforts to find suitable work); Bridwell, 149 N.C. App. at 343-44 , 561 S.E.2d at 302 (holding that even though the medical evidence did not support the Commission’s findings that the plaintiff was restricted from any and all employment, the award of total disability should be affirmed based on findings that the plaintiff had unsuccessfully sought suitable employment). I can find no basis upon which to distinguish White and Bridwell from this case.
Thus, Terasaka was permitted to meet her burden of proving total disability by producing, as she did, “evidlence that [she] is capable of some work, but that [she] has, after a reasonable effort on [her] part, been unsuccessful in [her] effort to obtain employment.” Russell, 108 N.C. App. at 765 , 425 S.E.2d at 457 . I disagree with the majority’s suggestion that the Commission considered only the first Russell method of proof. Nothing in the opinion and award indicates such a limitation. To the contrary, the Commission specifically found that “[p]rior to the hearing before the deputy commissioner, plaintiff had looked extensively for other types of work and had not received any job offers.” This finding of fact specifically refers to the second method of proof set out in Russell .
*743 That finding is in turn supported by Terasaka’s testimony that she had made approximately 500 attempts to find jobs, using the Internet, the newspaper, and the telephone, but that she received no job offers. Defendants challenge the credibility of that testimony and argues that “the greater weight of the evidence” shows — despite this testimony— that Terasaka was not disabled. This argument fails to recognize the appropriate standard of review. The Commission’s findings of fact are conclusive upon appeal if supported by any competent evidence, even if there is evidence to support a contrary finding. Morrison v. Burlington Indus., 304 N.C. 1, 6 , 282 S.E.2d 458, 463 (1981). Moreover, on appeal, this Court may not re-iveigh the evidence or assess credibility. Adams v. AVX Corp., 349 N.C. 676, 681 , 509 S.E.2d 411, 414 (1998).
Since the Commission’s finding of fact regarding Terasaka’s job search is supported by competent evidence and since that finding is sufficient to support the conclusion that Terasaka met her burden of proving a total incapacity to earn wages, I would uphold the Commission’s determination that Terasaka is totally disabled. With respect to defendants’ remaining arguments, I do not find them persuasive.
Defendants argue that the evidence is insufficient to support the Commission’s determination that Terasaka suffered an occupational disease. As our Supreme Court explained in Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85 , 301 S.E.2d 359 (1983), to be considered an occupational disease under N.C. Gen. Stat. § 97-53 (13) (2003), a condition must be:
(1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be “a causal connection between the disease and the [claimant’s] employment.”
308 N.C. at 93 , 301 S.E.2d at 365 (quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52 , 283 S.E.2d 101, 105-06 (1981)); see also Booker v. Duke Med. Gtr., 297 N.C. 458, 468, 475 , 256 S.E.2d 189, 196, 200 (1979). The Court further held that the first two elements “are satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally.” Id. at 93-94, 301 S.E.2d at 365 . The causation requirement “is satisfied if the employment ‘significantly contributed to, or was a significant causal factor *744 in, the disease’s development.’ ” Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 354 , 524 S.E.2d 368, 371 (quoting Rutledge, 308 N.C. at 101 , 301 S.E.2d at 369-70 ), disc. review denied, 351 N.C. 473 , 543 S.E.2d 488 (2000).
Defendants argue that the evidence is insufficient to permit a finding either that Terasaka was at increased risk of suffering carpal tunnel syndrome or that her work caused her carpal tunnel syndrome. Dr. Sweet, however, specifically testified that a person who types four to six hours a day — as Terasaka testified she did — is at a greater risk of developing carpal tunnel syndrome than the general public. Dr. Baker similarly confirmed that employees who do a lot of typing have an increased risk of carpal tunnel syndrome, although he indicated that the number of hours of typing required to trigger the syndrome varies from person to person. Further, after plaintiff’s counsel set out a hypothetical question that extended over three pages of transcript and specified the pertinent facts relating to Terasaka’s work and medical history, Dr. Sweet expressed the opinion that Terasaka’s work was a “significant contributing factor” to her carpal tunnel syndrome. This testimony is sufficient to meet the requirements of Rutledge .
Defendants’ arguments regarding Dr. Sweet’s testimony relate to questions of credibility and weight, issues that this Court may not revisit. It is well-established that the Commission is the “sole judge of the credibility of the witnesses, and of the weight to be given to their testimony[;] ... it may accept or reject the testimony of a witness ... in whole or in part. . . .” Anderson v. Northwestern Motor Co., 233 N.C. 372, 376 , 64 S.E.2d 265, 268 (1951). Defendants point to portions of Dr. Sweet’s testimony that they contend show speculation. As, however, Judge Hudson stated in a dissenting opinion adopted by the Supreme Court in Alexander v. Wal-Mart Stores, Inc., 359 N.C. 403 , 610 S.E.2d 374 (2005) (per curiam), it is not “the role of this Court to comb through the testimony and view it in the light most favorable to the defendant, when the Supreme Court has clearly instructed us to do the opposite. Although by doing so, it is possible to find a few excerpts that might be speculative, this Court’s role is not to engage in such a weighing of the evidence.” Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 573 , 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting).
Finally, defendants argue that Terasaka’s current symptoms are unrelated to any occupational disease that she may have suffered. Again, to agree with defendants, this Court would have to accept *745 their dismissal of Dr. Sweet’s testimony. I do not believe that we have the authority to do so. Accordingly, I would affirm the decision of the Full Commission.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9626157. Public record. Not legal advice.