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NO. COA04-58
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
RONALD C. ROGERS,
Plaintiff-Appellant,
v. North
Carolina Industrial Commission
I.C.
File No. 141241
SMOKY MOUNTAIN
PETROLEUM COMPANY,
Employer,
FEDERATED INSURANCE COMPANY,
Defendant-Appellees.
Appeal by plaintiff from an Opinion and Award dated 12 September 2003 by the Full Commission. Heard in the Court of Appeals 23 September 2004.
Gary A. Dodd for plaintiff-appellant.
Hedrick, Eatman, Gardner & Kincheloe,
L.L.P., by Sharon E. Dent, for
defendant-appellees.
BRYANT, Judge.
Ronald C. Rogers (plaintiff) appeals from an
Opinion and Award from the Full Commission dated 12 September 2003 denying
benefits for his back injury under the North Carolina Workers’ Compensation
Act.
On 16 May 2001, plaintiff was employed as a
duct cleaner for Smoky Mountain Petroleum Company and Federated Insurance
Company (defendants). In fulfillment of
his job duties as a “helper” on that day, he assisted installers Todd Fountain
(Fountain) and Art Hollis (Hollis) in replacing an old furnace with a new
heating and air conditioning system. To
complete the task, they used a hand truck to move heavier items. Plaintiff testified he felt pain across his
back and down his leg as he assumed the weight of the heat pump; however,
Fountain and Hollis both testified they noticed no change in his performance,
nor did plaintiff mention he had hurt himself.
At the time of the alleged injury, plaintiff
was receiving treatment for back problems and had discontinued work from a
different employer in November 2000 due to low back pain. He began working for defendant in February
2001. On 17 May 2001, one day after the
alleged injury, plaintiff received an epidural steroid injection from Dr.
Cleveland Thompson. This was one
injection in a series of three that had been planned in advance to treat plaintiff’s
existing back pain. However, during the
visit, plaintiff did not mention to Dr. Thompson the alleged injury on the
preceding day and, according to Dr. Thompson, plaintiff tolerated the procedure
well. On 18 May 2001 plaintiff saw Dr.
Terry White, his treating physician, complaining of more intense back pain and
attributing the increased pain to having worked two days earlier. On 18 May 2001, Dr. White wrote plaintiff
out of work until 24 May 2001. Despite
Dr. White’s work release plaintiff returned to work that same day. Plaintiff continued to work with defendant
until he was referred by Dr. White to Dr. Keith Maxwell in September 2001 for
continued back problems.
On 25 May 2001, plaintiff filed a Form 18,
thereby initiating his claim against defendants for benefits pursuant to the
Workers Compensation Act. Plaintiff’s
claim was denied by defendants.
This matter was heard before a Deputy
Commissioner in Asheville on 29 April 2002.
The deposition testimony of Dr. Maxwell and Dr. White was taken. After the hearing, on 8 May 2002, the Deputy
Commissioner considered Dr. Maxwell’s deposition testimony, in addition to Dr.
White’s testimony, to determine whether plaintiff was entitled to receive
benefits. By Opinion and Award filed 27
November 2002, the Deputy Commissioner rejected plaintiff’s testimony as not
credible and denied plaintiff’s claim concluding plaintiff failed to meet his
burden of proving by competent evidence that he sustained a compensable injury
on 16 May 2001.
In its Opinion and Award dated 12 September
2003, the Full Commission affirmed the Opinion and Award of the Deputy
Commission with minor modifications.
________________________________
Plaintiff raises five issues on appeal: whether the Commission erred in (I) finding
plaintiff failed to prove by the greater weight of the evidence that he
sustained a work-related back injury on 16 May 2001; (II) finding plaintiff’s
pre-existing condition to be a bar to recovery; (III) determining as a matter
of law plaintiff failed to meet his burden of proof supported by competent
evidence that his back injury resulted from a traumatic incident on 16 May
2001; (IV) determining as a matter of law that plaintiff’s testimony lacked
credibility; (V) failing to consider all the competent (and material) evidence
of record in making its findings of fact and conclusions of law.
I
Plaintiff first argues the Commission erred
in finding plaintiff failed to prove by a greater weight of the evidence that
he sustained a work-related back injury on 16 May 2001.
Pursuant to N.C. Gen. Stat. §97-2(6):
“Injury” . . . shall mean only injury by
accident arising out of and in the course of the
employment. . . . 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.G.S. §97-2(6) (2003). Our Supreme Court has consistently held that
“[o]n appeal from the Industrial Commission, the findings of the Commission are
conclusive if supported by competent evidence and when the findings are so
supported, appellate review is limited to review of the Commission’s legal
conclusions.” Pittman v. Twin City
Laundry & Cleaners, 61 N.C. App. 468, 471, 300 S.E.2d 899, 901
(1983) (citations omitted). Under the
North Carolina Workers’ Compensation Act, an employee seeking benefits “bears
the burden of proving every element of compensability.” Gibbs v. Leggett & Platt, 112
N.C. App. 103, 107, 434 S.E.2d 653, 656 (1993) (citation omitted). The degree of proof required of a claimant
is the “greater weight” or the preponderance of the evidence. Phillips v. U.S. Air, 120 N.C. App.
538, 541-42, 463 S.E.2d 259, 261 (1995) (citations omitted). The Court’s “duty goes no further than to
determine whether the record contains any evidence tending to support the
finding.” Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).
Here, the Commission did not err in finding
plaintiff failed to meet his burden of proof to establish that he suffered a
back injury resulting from a specific traumatic incident on 16 May 2001. Plaintiff’s testimony revealed several
inconsistencies in the medical information he shared with his treating
physicians.
In assessing plaintiff’s credibility, the
Commission made the following pertinent findings of fact:
2. Plaintiff was employed by defendant . . . since February 1998 as a duct cleaner . . . [plaintiff] occasionally . . . assist[ed] install[ing] heating and air conditioning systems. On 16 May 2001, plaintiff was employed as a helper for defendant [to] assist . . . installers [Fountain and Hollis] . . . in removing an old furnace and installing a new heating and air conditioning system.
3. Plaintiff
had pre-existing back problems. While working for a different employer, he
suffered a back injury in October 1996 and following treatment, was released to
return to work in March 1997 with a 5% permanent partial disability rating to
his back. Upon his release, plaintiff continued to complain of pain while
sitting, and was diagnosed with disc degeneration at L5-S1. Plaintiff returned
to work in March 1997, but continued to receive chiropractic treatment.
4. Plaintiff
continued to receive treatment for low back pain into
1998. . . . In July 1998, [his treating physician] Dr. Robertson
diagnosed plaintiff with probable fibromyalgia. . . .
5. On
24 November 1999, [after receiving an epidural block to control his back and
neck pain] plaintiff [saw] Dr. Terry White, upon referral by Dr.
Robertson. . . who reviewed an MRI of plaintiff’s lumbar region
and diagnosed [him] with fibromyalgia and sacroiliac pain secondary to
. . . degenerative disc disease [and prescribed plaintiff with
medications]. . . .
6. Plaintiff
continued to receive treatment [and physical therapy] by Dr. Robertson [and]
Dr. White throughout 2000[.]
. . .
8. Plaintiff
alleges that he injured his back while lowering the new unit [on 16 May 2001
and] . . . maintains [having] reported the incident to his
supervisor, Sammy Parker on 18 May 2001. However, both [Fountain and Hollis] testified
that plaintiff did not mention an injury to them . . . [on] 16
May 2001, nor did they notice any change in plaintiff’s physical activities
during the day.
9. There
is no mention in Dr. Thompson’s report of a work-related injury [on 17 May
2001, when plaintiff went to receive a previously scheduled epidural injection
from him.]
. . .
11. Plaintiff
continued to work for defendant . . . doing primarily light duty. On 4 June
2001, Dr. Robertson restricted plaintiff to lifting no more than 50 pounds due
to plaintiff’s continuing complaints of back pain.
12. On
7 September 2001, plaintiff [saw Dr. Maxwell] for evaluation and treatment upon
referral from Dr. White. Plaintiff did not inform Dr. Maxwell that he had been
undergoing treatment for back pain prior to [16 May 2001], nor did Dr. Maxwell
receive any medical records of plaintiff’s prior back treatment. In addition, Dr. Maxwell’s notes indicate
that plaintiff informed him that he had been out of work since May 2001 despite
information to the contrary in Dr. Robertson’s treatment notes of June 2001.
“The Commission is the sole judge of the
credibility of witnesses and may believe all or a part or none of any witness’s
testimony[.]” Faison v. Allen
Canning Co., 163 N.C. App. 755, 757, 594 S.E.2d 446, 448 (2004) (quotation
omitted). In the instant case,
plaintiff’s statements to both Drs. White and Maxwell, when compared to
plaintiff’s recorded history of treatment for back problems, cast serious doubt
on whether a work-related injury occurred as plaintiff represented. The findings of fact as determined by the
Commission are supported by competent evidence. We overrule this assignment of error.
II
Plaintiff next argues the Commission erred in
finding his pre-existing condition to be a bar to recovery.
Plaintiff must prove a work-related accident was a causal factor
[of his injury] by a “preponderance of the evidence.” Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C.
155, 158-59, 357 S.E.2d 683, 685 (1987).
“Although medical certainty is not required, an expert’s ‘speculation’
is insufficient to establish causation” between a pre-existing condition and a
work-related injury. Holley v. ACTS,
Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003). Our Supreme Court has held:
(1) [A]n employer takes the employee as he
finds her with all her pre-existing infirmities and weaknesses. (2) When a
pre-existing, nondisabling, non-job-related condition is aggravated or
accelerated by an accidental injury arising out of and in the course of
employment or by an occupational disease so that disability results, then the
employer must compensate the employee for the entire resulting disability even
though it would not have disabled a normal person to that extent. (3) On the
other hand, when a pre-existing, nondisabling, non-job-related disease or
infirmity eventually causes an incapacity for work without any aggravation or
acceleration of it by a compensable accident or by an occupational disease, the
resulting incapacity so caused is not compensable. . . .
Morrison v. Burlington Indus., 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981)
(emphasis added).
As found by the Commission, plaintiff had
pre-existing back problems, due to a 1996 workplace injury with a former
employer. In 1999, plaintiff was
diagnosed with fibromyalgia and sacroiliac pain due to degenerative
disease. Through the year, plaintiff
received pain treatment and physical therapy, including the series of epidural
injections plaintiff was undergoing at the time of the alleged injury on 16 May
2001. Plaintiff’s testimony of an
injury by accident on 16 May 2001 was not supported by other competent
evidence. The expert medical testimony
failed to establish plaintiff’s current back problem was either caused or aggravated
by an accident or specific traumatic work-related event. This assignment of error is overruled.
III
Plaintiff’s third assignment of error is
substantially related to his first two arguments. Plaintiff contends the Commission erred in determining as a
matter of law that no competent evidence supports a conclusion that plaintiff’s
back injury occurred as a result of a traumatic incident on 16 May 2001.
Plaintiff argues the Commission improperly
concluded that in order for back injuries to be compensable there must be a
specific traumatic incident that occurred at a cognizable time and that back
injuries occurring gradually are not compensable. We disagree.
Plaintiff relies on Fish v. Steelcase
to support his argument that if he shows his injury was caused by an event
occurring within a “judicially cognizable” period, and is not simply a gradual
deterioration, then a work-related compensable back injury exists. Fish v. Steelcase, Inc., 116 N.C.
App. 703, 708, 449 S.E.2d 233, 237 (1994).
In Fish, the plaintiff testified he felt a pull in his back while
moving a desk at work, thought he would be fine, and continued working. Later the pain worsened, and finally his
condition was diagnosed as a herniated disc.
The Industrial Commission concluded plaintiff suffered no injury as a
matter of law, holding plaintiff had failed to show a traumatic incident had
occurred. This Court reversed the
Industrial Commission and held the event causing the injury must be “judicially
cognizable”, but the event does not have to be “ascertainable on an exact date.” Fish, 116 N.C. App. at 709, 449
S.E.2d at 238. The case sub judice
is distinguishable from Fish in that the actual date of the alleged
injury is not in issue. Rather it is
plaintiff’s credibility as it relates to his testimony about the events that
caused his back injury as well as the competency of his medical causation
evidence that is at issue.
Despite the Commission’s broad ability to
determine its factual findings, “where the exact nature and probable genesis of
a particular type of injury involves complicated medical questions far removed
from the ordinary experience and knowledge of laymen, only an expert can give
competent opinion evidence as to the cause of the injury.” Peagler v. Tyson Foods, Inc., 138
N.C. App. 593, 598, 532 S.E.2d 207, 210-11 (2000) (quotations and citation
omitted). “However, when such expert
opinion testimony is based merely upon speculation and conjecture, it can be of
no more value than that of a layman’s opinion.
As such, it is not sufficiently reliable to qualify as competent
evidence on issues of medical causation.”
Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d
912, 915 (2000) (citations omitted). In
this case, the causation of plaintiff’s particular back injury is at
issue. Therefore, only an expert can
render an opinion regarding causation.
The two medical experts who were asked to testify in the case failed to
present clear evidence as to the cause of plaintiff’s back injury. Dr. White, plaintiff’s treating physician,
stated he “assumed plaintiff’s back pain had come from moving the unit at
work.” Dr. White also said he observed
muscle spasms on both sides of plaintiff’s back on 18 May 2001 and that “he had
never seen the spasms, especially visible [muscle] spasms until that
time.” On cross-examination, Dr. White
testified that he had observed plaintiff “hav[ing] some spasm[s] in his back
intermittently” prior to 18 May 2001.
Meanwhile, Dr. Maxwell stated, and the Commission found:
On 7 September 2001
. . . plaintiff did not inform Dr. Maxwell that he had been
undergoing treatment for back pain prior to the alleged work-related
injury. . . . In addition, Dr. Maxwell’s notes indicate[d] that
the plaintiff informed [Dr. Maxwell] that he had been out of work since May
2001, despite information to the contrary in . . . treatment notes of June
2001.
Under these circumstances, the evidence
regarding the causation of plaintiff’s alleged back injury amounts to little
more than speculation. Since the
medical evidence of causation here is not competent evidence, the Commission’s
finding of fact and conclusion that plaintiff failed to prove he sustained a
work-related injury to his back on 16 May 2001 was proper. Therefore, this assignment of error is
overruled.
IV & V
In his fourth and fifth assignments of error,
plaintiff contends the Commission erred in failing to consider all the
competent (and material) evidence of record in making its findings of fact and
conclusions of law and determining as a matter of law that plaintiff’s
testimony lacked credibility.
Plaintiff accurately asserts the Commission
must consider the evidence presented to it.
“Before making findings of fact, the Industrial Commission must consider
all of the evidence. The
Industrial Commission may not discount or disregard any evidence, but may
choose not to believe the evidence after considering it.” Weaver v. Am. Nat’l Can Corp., 123
N.C. App. 507, 510, 473 S.E.2d 10, 12 (1996) (citation omitted); see also
Lineback v. Wake County Bd. of Comm’rs, 126 N.C. App. 678, 486 S.E.2d 252
(1997). The Industrial Commission “is
the sole judge of the credibility of the witnesses and the weight to be given
to their testimony, and may reject a witness’[s] testimony entirely if
warranted by disbelief of that witness.”
Lineback, 126 N.C. App. at 680, 486 S.E.2d at 254 (citing Russell
v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993)).
This Court in Adams made it clear that
the Commission does not have to explain its findings of fact by attempting to
distinguish which evidence or witnesses it finds credible. Requiring the
Commission to explain its credibility determinations and allowing the Court of
Appeals to review the Commission’s explanation of those credibility
determinations would be inconsistent with our legal system’s tradition of not
requiring the fact finder to explain why he or she believes one witness over
another or believes one piece of evidence is more credible than another.
Deese v. Champion Int’l Corp., 352 N.C. 109, 116-17, 530 S.E.2d 549, 553
(2000); see also Sheehan v. Perry M. Alexander Constr. Co., 150 N.C.
App. 506, 563 S.E.2d 300 (2002).
Plaintiff also argues the Commission erred in
finding his testimony lacked credibility as a matter of law. Just as the Commission is not required to
make specific findings on the credibility of evidence, “[t]he Commission is not
required . . . to find facts as to all credible evidence. That requirement would place an unreasonable
burden on the Commission. Instead the
Commission must find those facts which are necessary to support its conclusions
of law.” Peagler, 138 N.C. App.
at 602, 532 S.E.2d at 213 (2000) (quotation and citation omitted).
Therefore, we find the following conclusion
of the Commission to be supported by its findings of fact: “Plaintiff has
failed to carry the burden of proof to establish by competent evidence that he
suffered a back injury resulting from a specific traumatic incident on 16 May
2001 . . . [and his] testimony regarding the alleged injury is
not accepted as credible.” Accordingly,
plaintiff’s assignments of error are overruled.
Affirmed.
Judges TYSON and LEVINSON concur.