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NO.
COA06-1586
NORTH
CAROLINA COURT OF APPEALS
Filed:
15 January 2008
ZORAIDA WILLIAMS,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 071608
LAW COMPANIES GROUP, INC.,
Employer,
ZURICH,
Carrier,
Defendants.
Appeal
by defendants from opinion and award entered 19 July 2006 by the Full
Commission. Heard in the Court of
Appeals 20 September 2007.
Scudder
and Hedrick, by Samuel A. Scudder, and Exum Law Group, by Annette Exum, for
plaintiff-appellee.
Lewis
& Roberts, P.L.L.C., by Richard M. Lewis and Paul C. McCoy, for
defendant-appellants.
BRYANT,
Judge.
Law
Companies Group, Inc. and Zurich (defendants) appeal from an opinion and award
entered 19 July 2006 by the Full Commission awarding Zoraida Williams
(plaintiff) ongoing temporary total disability from 21 September 2000, all
medical expenses and attorney’s fees. For
the reasons stated herein, we reverse the Full Commission’s opinion and award
and remand.
In
1988 and prior to working for defendants, plaintiff sustained double femur
fracture injuries as a result of a motor vehicle accident. Plaintiff received medical treatment at
Bellevue Hospital for approximately two years for her bilateral femur fractures
which included rod placement and physical therapy.
In
June 1999, plaintiff was employed by defendant Law Companies Group as a soil
technician. Plaintiff’s job required
bending, walking and lifting in order to test five-pound soil samples and
twenty-five pound concrete samples for load bearing capabilities.
On
21 September 2000, plaintiff sustained a back injury as a result of a motor
vehicle accident which occurred during her employment. Following her injury, plaintiff initially
received medical treatment at Johnston Memorial Hospital where Physician’s
Assistant David Baker provided her treatment for complaints of cervical and
lumbar spine pain and chest pain. On 26
September 2000, plaintiff presented to Rex Hospital with complaints of neck,
back, and chest pain. On physical
examination, Robert J. Denton, M.D. noted that plaintiff exhibited: (1) diffuse paralumbar tenderness to
palpation with no palpable muscle spasm; and (2) no extremity swelling or
deformities with full range of motion of all joints. On 29 September 2000, plaintiff began her treatment for back pain
with Dr. Sarah E. DeWitt of Raleigh Orthopaedic Clinic. After taking plaintiff’s history, Dr. DeWitt
noted plaintiff suffered, “bilateral femur fractures at 18 years old and has
rods on both sides, but has no symptoms from this.”
On
9 October 2000, defendants accepted plaintiff’s workers’ compensation claim
pursuant to Industrial Commission Form 63.
On 25 October and 29 December 2001, 10 and 11 January and 10 May 2002,
Regional Investigative Services Company performed surveillance of plaintiff’s
daily activities. On 25 October 2001,
plaintiff was observed sweeping without a limp and without assistance. At the hearing, plaintiff was questioned
regarding the video from 25 October 2001, as well as still photographs taken
that day which accompanied the surveillance reports. Plaintiff testified that she was the person shown in the 25
October 2001 surveillance photo sweeping the porch. On 29 December 2001, plaintiff was also observed entering and
exiting her sister’s car and several places of business without assistance,
which plaintiff admitted during the hearing.
On
13 November 2001, plaintiff began her treatment with Catherine O. Lawrence,
D.O. of the Carolina Back Institute.
Subsequent to Dr. Lawrence’s examination and evaluation of plaintiff,
Dr. Lawrence recommended plaintiff enroll in the Pain Management Program. After plaintiff’s completion of the Pain
Management Program, Dr. Lawrence initially assigned plaintiff a five percent
permanency rating to the left and right legs.
However, on 7 March 2002, Dr. Lawrence retracted her assignment of five
percent permanency ratings to plaintiff’s left and right legs and assigned
plaintiff a five percent rating to the back.
On
13 August 2003, plaintiff began her treatment with Steven A. Olson, M.D., an
orthopaedic surgeon at Duke University Medical Center. Dr. Olson took plaintiff’s history and
performed an examination. On 3 November
2003, Dr. Olson corresponded with plaintiff’s counsel and stated, “[w]ith
regard to your question as to whether the September 21, 2000 automobile
accident aggravated substantially her current problems, my answer is no.” He also stated that, “in my opinion, there
is no reason I can identify as to why this accident should have precipitated
this pain.”
Following
a hearing on 27 February 2003, Deputy Commissioner Deluca filed an opinion on
26 July 2004 concluding that on and after 7 March 2002, plaintiff (1) was
neither disabled due to her 21 September 2000 injury, nor entitled to any
temporary total disability compensation after that date; (2) plaintiff had no
permanent impairment to the back or legs and was not entitled to any permanent
partial disability compensation; and (3) defendants were entitled to a credit
on all temporary total disability compensation paid to plaintiff from 7 March
2002 until defendants terminated benefits.
Plaintiff appealed to the Full Commission.
By
Opinion and Award filed 19 July 2006, the Full Commission reversed the Deputy
Commissioner and awarded plaintiff (1) temporary total disability compensation
from 21 September 2000 and continuing, (2) all past and future medical
expenses, (3) attorney’s fees of twenty-five percent of the compensation paid,
and (4) defendants to pay costs. The
dissenting opinion stated that based on lack of sufficient medical evidence
“plaintiff has failed to prove that she is currently disabled due to her
compensable work injury, and plaintiff needs no further medical treatment for
her compensable injuries.” From the
Full Commission’s Opinion and Award, defendants appeal.
____________________________
On
appeal, defendants argue the Full Commission erred in finding and concluding
plaintiff’s disability was ongoing after 7 March 2002. Defendants contend the medical evidence
failed to support the requisite causal connection between the accident and
plaintiff’s physical impairment. We
agree. For the reasons stated herein we
vacate the Full Commission’s Opinion and Award and remand.
Our
review is limited to a determination of (1) whether the findings of fact are
supported by competent evidence, and (2) whether the conclusions of law are
supported by the findings. Moore v.
Federal Express, 162 N.C. App. 292, 297, 590 S.E.2d 461, 465 (2004). Although the Industrial Commission’s
findings of fact are conclusive where supported by competent evidence,
“findings of fact by the Commission may be set aside on appeal when there is a
complete lack of competent evidence to support them.” Flynn v. EPSG Mgmt. Serv., 171 N.C. App. 353, 357, 614
S.E.2d 460, 463 (2005). Our review of the Industrial Commission’s conclusions
of law is de novo. Ramsey v.
Southern Indus. Constructors Inc., 178 N.C. App. 25, 30, 630 S.E.2d 681,
685 (2006).
Plaintiff
bears the burden of proof by the greater weight of the evidence that she is
disabled and the extent of her disability within the meaning of the Act. Sims v. Charmes/Arby’s Roast Beef,
142
N.C. App. 154, 542 S.E.2d 277 (2001).
Plaintiff must prove “each element of compensability, including
causation, by a preponderance of the evidence.” Everett v. Well Care & Nursing Serv., 180 N.C. App.
314, 318, 636 S.E.2d 824, 827 (2006).
Our Supreme Court has stated medical experts must provide, “sufficient
competent evidence tending to show proximate causal relationship,” between the
alleged injury and the plaintiff’s subsequent medical condition. Holley v. ACTS, Inc., 357 N.C. 228,
232, 581 S.E.2d 750, 753 (2003) (citation omitted). Expert medical testimony
indicating that an incident “possibly” or “could or might” have caused an
injury “does not rise above a guess or mere speculation and therefore was not
competent evidence to show causation.” Edmonds v. Fresenius Medical Care, 165
N.C. App. 811, 819, 600 S.E.2d 501, 506 (2004) (Steelman, J., dissenting),
rev’d per curiam for reasons stated in the dissent, 359 N.C. 313, 608
S.E.2d 755 (2005).
The
Commission made several findings which are not supported by competent evidence
in the medical record. For example, in
finding of fact number four, the Commission found that “on September 21, 2000,
plaintiff sustained injuries to her back, chest and legs” as a result of
the accident at issue. (Emphasis
added.) Similarly, in finding of fact number six, the Commission found that “on
September 29, 2000, plaintiff began treatment for back and leg pain with
Dr. Sarah Dewitt, an orthopaedic specialist.”
(Emphasis added.) However, these
findings regarding plaintiff’s alleged leg injuries and treatment for the same
are not supported by the medical evidence.
The hearing evidence established that immediately following the 21
September 2000 accident, plaintiff was treated by the Johnston County Memorial
Hospital emergency department where she was diagnosed with a lumbar strain and
chest contusion. At that time,
plaintiff neither complained of, nor was diagnosed as having any leg injuries
or leg pain. Moreover, Dr. Olson, who
treated plaintiff for injuries alleged to be related to the 21 September 2000
accident, stated in response to plaintiff’s counsel’s 3 November 2003 letter
and during his deposition, that the accident did not cause plaintiff’s leg
injuries or associated pain. When questioned
regarding whether it was possible that plaintiff’s leg pain was caused by the
broken rod in plaintiff’s leg, Dr. Olson testified:
I think it is possible,
not probable that her thigh pain is caused by this nail (rod). It’s within the
realm of possibility, but I’m not more than 50 percent sure that it is.
Dr.
Olson stated he did not know the cause of plaintiff’s pain and that the
accident did not cause plaintiff’s pain.
Notwithstanding plaintiff’s complaints of chronic leg pain, Dr. Olson
testified he could not find a basis to restrict plaintiff’s work activities on
the basis of any consequences of the 21 September 2000 accident. Similarly, Dr. Lawrence’s testimony and
medical records establish plaintiff has a 0% disability rating, no impairment,
and no work restrictions as result of the accident. However, in finding number thirty-one, the Commission found that
both Drs. Lawrence and Olson testified that the 21 September 2000 accident could
have caused the rod to break in plaintiff’s right leg. The Commission’s findings do not support its
conclusions that plaintiff’s pain and ongoing disability were caused by the
accident. See Edmonds
(medical testimony indicating that an incident “possibly” or “could or might”
have caused an injury was not competent evidence to show causation). Accordingly, based on the absence of any
record reference to leg injuries or pain connected with the 21 September 2000
accident, and given Dr. Olson’s unequivocal statement that any pain plaintiff
experienced was not causally related to, or even aggravated by, the accident,
the Commission’s finding that plaintiff sustained injuries to her legs as a
result of the accident is without evidentiary support. See Flynn, 171 N.C. App. at 357, 614
S.E.2d at 463.
Ultimately,
the Commission’s conclusions are not supported by its findings of fact
regarding the causal connection between the accident and plaintiff’s alleged
pain and disability. The challenged
conclusions of law are:
1. Plaintiff sustained an admittedly
compensable injury by accident to her back, chest and legs on September
21, 2000, and suffers from chronic leg pain as a result of the accident.
N.C. Gen. Stat. §97-2(6).
2. Plaintiff is currently disabled
as a result of her compensable injuries. The medical evidence reveals that as a
result of her compensable injury, (a) Plaintiff is medically unable to return
to her pre-injury employment; (b) Plaintiff has work restrictions of no lifting
and restrictions on pulling, pushing, walking, standing, squatting, kneeling,
bending and use of her lower extremities; (c) Plaintiff needs vocational
assistance to help her locate suitable employment due to her physical
limitations related to her compensable injury; and (d) Plaintiff takes
prescribed medications for her chronic leg pain. Although Plaintiff may be able
to do some work, she must have vocational assistance to help her locate
suitable employment considering her severe physical limitations due to her
compensable injury and her limited education and training. Plaintiff has not refused vocational
assistance offered by Defendants.
. . .
4. As a result of her chronic leg pain
caused by her injury by accident of September 21, 2000, Plaintiff has been
temporarily totally disabled from September 21, 2000 through the date of
hearing before Deputy Commissioner and continuing and is entitled to temporary
total disability compensation during said period. N.C. Gen. Stat. §§92-2(9); 97-29.
5. Defendants are obligated to pay for all
of Plaintiff’s reasonably required medical treatment resulting from her back
and chronic leg pain of September 21, 2000, including past and future
treatment, and vocational rehabilitation assistance for so long as such
treatment is reasonably required to effect a cure, provide relied and/or lessen
her disability. N.C. Gen. Stat.
§§97-2(19); 97-25.
(Emphasis
added). Although the Commission’s legal
conclusions state the accident caused plaintiff’s pain and disability, the
medical evidence presented establishes plaintiff’s alleged ongoing disability
is not causally related to the accident.
In summary, the medical evidence related to any causal link between the
accident and plaintiff’s alleged pain and disability establishes: (1) the 21 September 2000 accident did not
cause plaintiff to suffer leg injuries; (2) the accident did not cause the rod
to break; (3) the accident did not aggravate plaintiff’s leg condition; (4) Dr.
Olson had “no idea what is causing plaintiff’s pain”; (5) that any restrictions
plaintiff may have regarding her ability to work were not caused by the
accident; and (6) plaintiff has “0% disability.” As stated in the dissenting opinion, “the greater weight of the
expert medical evidence . . . is insufficient to prove causation of plaintiff’s
condition, as all of these physicians’ opinions do not rise above the level of
a guess or mere speculation [and] is undoubtedly insufficient to prove that
plaintiff’s current symptoms are related to her compensable injuries.” Plaintiff has failed to meet her burden of
proving causation by a preponderance of the evidence. See Everett, 180 N.C. App. at 317, 636 S.E.2d at 827. Accordingly, the Commission’s conclusions of
law are in error as causation must be established by the evidence “such as to
take the case out of the realm of conjecture and remote possibility.” Holley, 357 N.C. at 232, 581 S.E.2d
at 753. The Commission’s opinion and
award is reversed. See Gutierrez v.
GDX Automotive, 169 N.C. App. 173, 179, 609 S.E.2d 445, 450 (2005)
(reversal of award in conjunction with Commission’s conclusions of law that
plaintiff was disabled where medical evidence was insufficient to support such
conclusion). We reverse and remand to
the Full Commission for disposition consistent with this opinion.
Reversed
and remanded.
Judge
STEELMAN concurs.
Judge
GEER dissents in a separate opinion.
NO. COA06-1586
NORTH
CAROLINA COURT OF APPEALS
Filed:
15 January 2008
ZORAIDA WILLIAMS,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 071608
LAW COMPANIES GROUP, INC.,
Employer,
ZURICH,
Carrier,
Defendants.
GEER,
Judge, dissenting.
In
contrast to the majority opinion, I would remand to the Full Commission for
further findings of fact. I, therefore,
respectfully dissent.
The
Full Commission found that “[t]he primary issue before the Commission is
whether Plaintiff’s temporary total disability benefits should be terminated
effective December 2001, on the ground that Plaintiff did not have any
continuing disability due to her workplace injury after that date.” (Emphasis added.) While plaintiff argues that the presumption set forth in Perez
v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288 (2005), disc.
review improvidently allowed, 360 N.C. 587, 634 S.E.2d 887 (2006), and Parsons
v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), should apply in
this case, the Commission did not address that issue, and plaintiff has failed
to assign error to the omission. As a
result, applicability of the presumption is not properly before this
Court. See N.C.R. App. P. 10(d)
(“Without taking an appeal an appellee may cross-assign as error any action or
omission of the trial court which was properly preserved for appellate review
and which deprived the appellee of an alternative basis in law for supporting
the judgment, order, or other determination from which appeal has been taken.”);
Harllee v. Harllee, 151 N.C. App. 40, 51, 565 S.E.2d 678, 685 (2002)
(“In the instant case, the additional arguments raised in plaintiff-appellee’s
brief, if sustained, would provide an alternative basis for upholding
the trial court’s determination that the premarital agreement is invalid and
unenforceable. However, plaintiff failed to cross-assign error pursuant to Rule
10(d) to the trial court’s failure to render judgment on these alternative
grounds. Therefore, plaintiff has not
properly preserved for appellate review these alternative grounds.”).
On
the causation issue addressed by the Commission, the Commission’s critical
findings of fact state:
31. The Full Commission finds that
Plaintiff’s chronic pain syndrome and the pain in her legs were caused by
Plaintiff’s motor vehicle accident on September 21, 2000. Specifically, both Dr. Lawrence and Dr.
Olson noted that Plaintiff’s onset of leg pain began approximately September
21, 2000, and both testified that a motor vehicle accident could have caused
the rod to break in Plaintiff’s right leg; even though Dr. Olson was of the
opinion that it is unlikely the accident caused the rod to break without
fracturing the bone itself.
32. The Full Commission gives greater weight
to the opinions of Dr. Lawrence versus the opinions of Dr. Olson . . . .
33. On September 21, 2000, Plaintiff
sustained compensable injuries to her back, chest and legs, and suffers from
chronic leg pain as a result of her compensable injury. . . .
I
fully agree with the majority that the finding that the 21 September 2000
accident “could have caused” the rod in plaintiff’s right leg to break is
insufficient to support a conclusion that the accident caused the broken rod.
If
the Commission intended to find that plaintiff’s chronic leg pain was the
result of the broken rod, then there would be no basis for its determination
that the compensable accident caused plaintiff’s current disability. The Commission’s findings of fact are not,
however, that clear. In finding of fact
31, the Commission references plaintiff’s chronic pain syndrome and pain in both
legs, as well as the broken rod in the right leg, while finding of fact 33
finds that the compensable accident caused compensable injuries to plaintiff’s
back, chest, and legs, as well as the chronic leg pain. In finding of fact 19, describing Dr.
Lawrence’s deposition testimony, the Commission differentiated between the
doctor’s opinions regarding chronic pain syndrome and the broken rod.
It
may be, given the Commission’s extensive focus on the broken rod, that the
Commission was basing its finding of causation solely on the broken rod.[Note
1] On the other hand, the
Commission may also have been relying both on the broken rod and the chronic
pain syndrome. There is no clear
finding one way or the other whether the leg pain was related to the chronic
pain syndrome. The record does contain
evidence arguably supporting a finding that the chronic pain syndrome was
caused by the accident. Dr. Lawrence,
whom the Commission found credible, wrote that the pain syndrome “likely
occurred as a result of [plaintiff’s] back injury” and ultimately assigned
plaintiff a five percent rating to the back.
The record also contains evidence supporting defendants’ position.
Because
I cannot determine what the Commission intended to find or whether its
conclusions would change with the omission of the broken rod, I would apply the
principle that when the Commission’s findings of fact “‘are insufficient to
determine the rights of the parties, the court may remand to the Industrial
Commission for additional findings.’“ Johnson
v. Southern Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512
(2004) (quoting Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290
S.E.2d 682, 684 (1982)). I would,
therefore, remand to the Commission to make findings of fact regarding whether
plaintiff’s current disability was caused by the 21 September 2000 accident
without consideration of the broken rod in plaintiff’s femur.
NOTE
1. I do not
agree with plaintiff that the broken femur rod “is the proverbial red
herring.” The broken rod is a primary
focus of the Commission’s opinion and was also the primary subject addressed
during the two medical depositions taken in this case.