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NO. COA03-1328
NORTH CAROLINA COURT OF APPEALS
Filed: 7 December 2004
CATHERINE P. JARRETT
, Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C. File No. 102343
MCCREARY MODERN, INC.,
Self-Insured,
Employer,
and
THE PHOENIX FUND/NATIONAL
BENEFITS GROUP, INC.,
Servicing Agent,
Defendants
Appeal by defendants from opinion and award entered 15 May 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 June 2004.
McGuire
Woods, by John J. Cacheris, for plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Thomas W. Page and Terry L.
Wallace, for defendant-appellants.
ELMORE,
Judge.
McCreary
Modern, Inc. and National Benefits Group (collectively, defendants) appeal from
an opinion and award of the North Carolina Industrial Commission awarding
Catherine P. Jarrett (plaintiff) workers’ compensation disability and medical
benefits for bilateral carpal tunnel syndrome. For the reasons stated herein,
we affirm.
An
opinion and award was entered on 16 August 2002 by a deputy commissioner
denying plaintiff’s claim because plaintiff “failed to establish that her
condition was characteristic of and peculiar to her employment, that she was at
an increased risk of developing the condition, or that her condition was caused
by her employment.” The deputy commissioner specifically concluded that
the testimony of one of plaintiff’s treating physicians, Dr. Anthony DeFranzo,
that plaintiff’s job could or might have caused her bilateral carpal tunnel
syndrome was based “on speculation and false assumptions such as [sic] that his
testimony was not competent to be considered.”
Plaintiff
thereafter appealed to the Full Commission. The Commission found as a fact that
plaintiff was 55 years old at the time of the hearing before the deputy
commissioner and that she began working for defendant McCreary Modern in April
1995. Plaintiff worked as an attach skirt sewer, operating a sewing machine to
sew skirts onto furniture covers. Plaintiff worked between seven and eight
hours per shift, five or six days per week, with a ten-minute morning break, a
thirty-minute lunch break, and a ten-minute afternoon break. A videotape of
plaintiff performing her job duties was stipulated into evidence, which
plaintiff agreed accurately depicted her job. The process of sewing a skirt
onto a furniture cover involved plaintiff picking up the furniture cover, which
typically weighed between two and seven pounds; laying the cover and the skirt
on the sewing machine, under the needle arm; guiding the cover and skirt
through the machine; stapling a ticket to the cover; and throwing the completed
product into a bin. Plaintiff spent approximately eight minutes sewing one sofa
skirt, and she sewed between 50 and 60 covers per shift.
The
Commission further found that on 29 May 2000 plaintiff sought treatment from
Dr. Mark McGinnis, complaining of a two-year history of pain in her right hand,
wrist, and forearm. Plaintiff also complained of numbness in her right hand but
did not then report any left-hand symptoms, and plaintiff did not notify
defendants at that time that she needed medical care for a work-related
condition. Plaintiff returned to Dr. McGinnis on 13 June2000, at which time Dr.
McGinnis found no muscle atrophy, indicating plaintiff was using her hands
normally. Dr. McGinnis released plaintiff to return to work, without
restrictions.
The
Commission further found that plaintiff returned to Dr. McGinnis on 23 March
2001, this time complaining of pain, numbness, and tingling in both her right
and left hands and arms. Dr. McGinnis diagnosed bilateral carpal tunnel syndrome
and thereafter performed a right carpal tunnel release on 29 March 2001,
followed by a left carpal tunnel release on 26 April 2001. Post-surgery,
plaintiff’s right-hand symptoms almost completely resolved, but plaintiff
continued to experience pain in her left hand, and nerve conduction tests on
her left hand yielded abnormal results. Nevertheless, on 27 July 2001 Dr.
McGinnis released plaintiff without restrictions. Plaintiff returned to work
with defendant McCreary Modern on 6 August 2001, after her job was specifically
modified to eliminate any lifting over 10 pounds.
The
Commission further found that Dr. McGinnis continued to treat plaintiff through
31 January 2002 for complaints of right arm pain and pain in the fingers of her
left hand. After reviewing the videotape of plaintiff performing her job
duties, Dr. McGinnis opined that plaintiff’s job was not highly repetitive;
that it placed plaintiff at a mild risk for developing carpal tunnel syndrome
compared with the general public; and that it may have contributed to or
exacerbated the development of plaintiff’s carpal tunnel syndrome.
The
Commission further found that on 13 December 2001 plaintiff sought treatment
from a second physician, Dr. DeFranzo, for complaints of pain and numbness in
her left arm and hand, for which plaintiff received a cortisone injection.
Plaintiff returned to Dr. DeFranzo on 24 January 2002 and reported no
significant improvement in her left-hand symptoms. Dr. DeFranzo recommended
that plaintiff undergo another nerve conduction study and ultrasound on her
left hand, but defendants did not authorize this additional testing. Dr.
DeFranzo found plaintiff’s right hand to be at maximum medical improvement and
assigned an 11% permanent partial impairment rating for her right hand, as well
as a 10% permanent partial impairment rating to her right upper extremity,
under the American Medical Association (AMA) guidelines. Dr. DeFranzo found
plaintiff’s left hand not to be at maximum medical improvement but nevertheless
assigned a 17% permanent partial impairment rating to her left hand, as well as
a 15% permanent partial impairment rating to her left upper extremity.
The
Commission further found that Dr. DeFranzo assigned plaintiff permanent work
restrictions of light duty, non-repetitive work with a 20-pound lifting
restriction when lifting with both hands. By letter dated 28 January 2002,
defendant McCreary Modern informed plaintiff it could accommodate these
restrictions. However, by a subsequent letter dated 12 February 2002, defendant
McCreary Modern informed plaintiff it had received additional information from
Dr. DeFranzo which caused it to conclude that plaintiff’s work restrictions
could not be accommodated. Dr. DeFranzo did not believe that plaintiff could
return to her position as an attach skirt sewer, and plaintiff did not work for
defendant McCreary Modern in any capacity after 25 January 2002.
The
Commission further found that after reviewing the videotape of plaintiff
performing her job duties, Dr. DeFranzo opined that plaintiff’s job was highly
repetitive, that it exposed her to a higher risk of developing carpal tunnel
syndrome than the general public, and that it could have caused her bilateral
carpal tunnel syndrome. At his deposition, Dr. DeFranzo testified that he
determined from viewing the videotape that plaintiff’s job required more than
2,000 hand motions per hour, and that several of these motions were indicated
in the development of carpal tunnel syndrome. Dr. DeFranzo testified that in
making this determination, he did not actually count the number of hand motions
plaintiff made in one full hour.
The
Commission determined that the greater weight of the credible record evidence
supports a finding that plaintiff’s employment was a significant contributing factor
in the development of her carpal tunnel syndrome, which the Commission
concluded was a compensable occupational disease. The Commission further
determined that “[a]s the result of plaintiff’s repetitive use of her hands in
her work with defendant [McCreary Modern], plaintiff contracted carpal tunnel
syndrome[,]” and that as a result of plaintiff’s bilateral carpal tunnel
syndrome, she was “disabled and was unable to earn wages in her regular
employment or any employment for the periods March 23, 2001 through July 27,
2001 and January 25, 2002 and continuing.” Accordingly, on 15 May 2003, the
Commission entered its opinion and award reversing the deputy commissioner and
awarding plaintiff temporary total disability and medical benefits. From the
opinion and award of the Commission, defendants appeal.
By
their sole assignment of error, defendants contend that there is insufficient
competent record evidence to support the Commission’s findings and conclusion
that plaintiff’s employment was a significant contributing factor to the
development of her bilateral carpal tunnel syndrome. After a careful review of
the record, particularly the deposition transcripts of plaintiff’s two treating
physicians, Dr. McGinnis and Dr. DeFranzo, we disagree with defendants’
assertion.
It
is well settled that this Court’s review of an opinion and award of the
Industrial Commission is limited to two questions: “(1) whether there is any
competent evidence of record to support the Commission’s findings of fact; and
(2) whether the Commission’s findings of fact support its conclusions of law.” Hardin
v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc.
review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). “The findings of the
Commission are conclusive on appeal when such competent evidence exists, even
if there is plenary evidence for contrary findings.” Id.
Section
97-57 of our General Statutes provides that a defendant employer is liable to
an employee for onset of an occupational disease if the employee demonstrates
that he (1) suffers from a compensable occupational disease, and (2) was last
injuriously exposed to the hazards of the disease while employed by the
defendant employer. N.C. Gen. Stat. §97-57 (2003); see also Hardin,
136 N.C. App. at 354, 524 S.E.2d at 371. While carpal tunnel syndrome is not
among the compensable occupational diseases listed in N.C. Gen. Stat. §97-53,
under N.C. Gen. Stat. §97-53(13), a disease or condition not specifically
enumerated in the statute may nonetheless qualify as a compensable occupational
disease if the plaintiff shows that:
(1)
[the disease is] characteristic of persons engaged in the particular trade or
occupation in which the claimant is engaged; (2) [the disease is] 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 [is] ‘a
causal connection between the disease and the [claimant’s] employment.’
Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365
(1983) (quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d
101, 106 (1981)); N.C. Gen. Stat. §97-53(13) (2003). The burden of proving each
element of compensability is upon the employee seeking workers’ compensation
benefits. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 750, 269
S.E.2d 159, 163, disc. review denied, 301 N.C. 401, 274 S.E.2d 226
(1980).
This
Court has previously stated that “[t]he first two elements of the Rutledge
test are satisfied where the claimant can show that ‘the employment exposed the
worker to a greater risk of contracting the disease than the public
generally.’“ Robbins v. Wake Cty. Bd. of Educ., 151 N.C. App. 518, 521,
566 S.E.2d 139, 142 (2002) (quoting Rutledge, 308 N.C. at 94, 301 S.E.2d
at 369-70). In the present case, the Commission made the following pertinent
findings regarding plaintiff’s employment and her risk, relative to that of the
general public, of developing carpal tunnel syndrome:
14. Dr.
McGinnis felt that plaintiff’s job placed her at a mild increased risk compared
to the general public and that her position may have contributed to or
exacerbated the development of carpal tunnel syndrome.
. . .
20. Dr.
DeFranzo testified plaintiff was “without question” exposed to a greater risk
of developing carpal tunnel syndrome through her employment than members of the
general public.
Our
examination of the record reveals that findings of fact numbers 14 and 20 are
supported by competent record evidence, specifically the deposition testimony
of plaintiff’s two treating physicians. Dr. McGinnis testified at his
deposition that “[i]n my estimation, this particular job may place [plaintiff]
at a mildly increased risk [of developing carpal tunnel syndrome] compared to
the general population.” Moreover, Dr. DeFranzo testified at his deposition
that in his opinion, plaintiff’s job “without question” exposed her to a higher
risk of developing carpal tunnel syndrome than the general public. Since
findings of fact numbers 14 and 20 are supported by competent record evidence,
they are conclusive on appeal. Hardin, 136 N.C. App. at 353, 524 S.E.2d
at 371. Because we conclude that these findings in turn support the
Commission’s conclusion that “[p]laintiff’s bilateral carpal tunnel syndrome is
not an ordinary disease of life to which the general public . . . not so
employed is equally exposed[,]” plaintiff has carried her burden of proving the
first two elements of the Rutledge test. Robbins, 151 N.C. App.
at 521, 566 S.E.2d at 142.
Defendants
therefore correctly assert in their brief that “this case hinges primarily on
the issue of whether there is competent evidence to support the findings and
conclusions that Plaintiff’s job as a sewer caused her bilateral carpal tunnel
syndrome[,]” i.e., the third element of the Rutledge test.
An
employee seeking workers’ compensation benefits can establish the third element
of the Rutledge test by showing that the job was a significant
causal factor in, or significantly contributed to, the development of
the occupational disease. Locklear v. Stedman Corp., 131 N.C. App. 389,
393, 508 S.E.2d 795, 798 (1998). In the context of determining the relationship
between workplace exposure and development of an occupational disease, our
Supreme Court has stated as follows:
Significant means “having or likely to have
influence or effect: deserving to be considered: important, weighty, notable.”
. . . Significant is to be contrasted with negligible, unimportant,
present but not worthy of note, miniscule, or of little moment. The
factual inquiry, in other words, should be whether the occupational exposure
was such a significant factor in the disease’s development that without it the
disease would not have developed to such an extent that it caused the physical
disability which resulted in claimant’s incapacity for work.
Rutledge, 308 N.C. at 101-02, 301 S.E.2d at 370.
“Although it is not necessary for doctors to use the exact wording of
‘significantly contribut[ing],’ there must be some indication of the degree of
contribution such as ‘more likely than not’ to meet the Rutledge test.” Hardin,
136 N.C. App. at 355, 524 S.E.2d at 372.
Here,
the Commission made the following finding of fact regarding the degree to which
plaintiff’s employment contributed to plaintiff’s development of bilateral
carpal tunnel syndrome:
26. The
Full Commission finds the greater weight of competent credible evidence in the
record supports a finding that plaintiff’s employment was a significant
contributing factor the development of plaintiff’s carpal tunnel syndrome.
Once
again, our examination of the record reveals that finding of fact number 26 is
supported by competent evidence, specifically the deposition testimony of Dr.
DeFranzo. At his deposition, Dr. DeFranzo testified as follows:
Q. Dr.
Defranzo, I’m going to be asking you some opinion questions. And, in forming
your opinions, I understand that you had a chance to review, at some point, all
[plaintiff’s] medical records, the job description and videotape?
A. .
. . I have reviewed the pertinent records in regard to this problem. And, yes,
I reviewed a videotape of her job. And I have kind of a written summary what
was in the tape . . .
. . .
Q. .
. . To a reasonable degree of medical certainty, did [plaintiff’s] job -- could
it or might it have caused her bilateral carpal tunnel syndrome?
A. Yes.
. . .
Q. You
-- did she work -- you mentioned a high incidence of carpal tunnel syndrome
being repetitive workplaces [sic]. In your opinion, was [plaintiff] working in
a repetitive work environment?
A. Yes.
MS.
NEEL: Objection.
A. There’s
no question about that.
Q. And
why --
A. By
any criterion, this patient had more than 2,000 separate motions an hour. And
all the motions that are the worst motions for causing carpal tunnel syndrome
were clearly demonstrated repetitively on that videotape.
Dr.
DeFranzo clearly answered in the affirmative when questioned by plaintiff’s
counsel as to whether plaintiff’s job “could” or “might” have caused
plaintiff’s bilateral carpal tunnel syndrome. Our Supreme Court has stated that
“could” or “might” expert testimony is probative and competent evidence to
prove causation, where there is no additional evidence showing the expert’s
opinion to be a guess or mere speculation. Holley v. ACTS, Inc., 357
N.C. 228, 233, 581 S.E.2d 750, 753 (2003); Young v. Hickory Bus. Furniture,
353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000).
We
are not persuaded by defendants’ characterization of Dr. DeFranzo’s opinion
testimony as being based on mere guesswork or speculation. When asked whether
plaintiff’s employment “could” or “might” have caused her bilateral carpal
tunnel syndrome, Dr. DeFranzo unequivocally responded “Yes.” Moreover, after
reviewing plaintiff’s job duties, Dr. DeFranzo definitively characterized her
job as involving repetitive hand motions, including several of the motions most
closely associated with the development of carpal tunnel syndrome, and
testified that plaintiff’s employment “without question” exposed her to a
greater risk of developing the disease than members of the general public not
so employed. Finally, Dr. DeFranzo considered other potential causes of carpal
tunnel syndrome and discounted them as possibilities in the present case. Cf.
Young, 353 N.C. at 231-32, 538 S.E.2d at 915-16 (evidence insufficient to
support Commission’s findings and conclusions that employee’s work-related back
injury significantly contributed to her fibromyalgia where treating physician
testified that he was frequently unable to ascribe a cause for fibromylagia in
his patients, that he was aware from employee’s medical history of at least
three potential causes for her fibromyalgia other than her work-related injury,
and that tests to rule out these other potential causes had not been
conducted); Holley, 357 N.C. at 233, 581 S.E.2d at 753-54 (same, where
employee’s first treating physician testified that he could not say to a
reasonable degree of medical certainty that employee’s work-related accident
led to her development of deep vein thrombosis and that “a galaxy of
possibilities” could have led to her DVT, and employee’s second treating
physician testified that she “was unable to say with any degree of certainty”
whether employee’s work-related injury led to her development of DVT).
We
therefore conclude that the Commission’s findings and conclusions that
plaintiff’s bilateral carpal tunnel syndrome was caused by the conditions of
her employment were supported by competent evidence.
Affirmed.
Judges
MCGEE and McCULLOUGH concur.