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are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO. COA04-168
NORTH CAROLINA
COURT OF APPEALS
Filed: 5 July
2005
THOMAS NEIL CANNON,
Employee,
Plaintiff-Appellee,
v. North Carolina Industrial Commission
I.C.
File No. 168908
GOODYEAR TIRE & RUBBER COMPANY,
Employer,
LIBERTY MUTUAL INSURANCE COMPANY,
Carrier,
Defendants-Appellants.
Appeal by defendants from opinion
and award entered 24 October 2003 by the North Carolina Industrial
Commission. Heard in the Court of
Appeals 25 January 2005.
Law Offices of Kathleen G.
Sumner, by Kathleen G. Sumner, for plaintiff-appellee.
Cranfill, Sumner & Hartzog,
L.L.P., by Nicole Dolph Viele, for defendants-appellants.
McGEE, Judge.
Thomas Neil Cannon (plaintiff) began
working for defendant Goodyear Tire and Rubber Company (Goodyear) in 1976. Plaintiff was employed as a tire builder
throughout his employment at Goodyear.
Plaintiff went to Doctors’ Urgent Care on 22 March 2001 seeking
treatment for blurred vision and “tingling” in his feet. An initial neurological examination by Dr.
Michael Christopher Moore (Dr. Moore) was inconclusive. Dr. Moore referred plaintiff to a neurologist
and an optometrist. Plaintiff scheduled
an appointment with a neurologist, Dr. Rangasamy Ramachandran (Dr.
Ramachandran), for 10 April 2001.
Plaintiff was changing a drum on 6
April 2001, while acting within the scope of his employment. When plaintiff lifted the hoist off the
drum, he felt a sharp pain in the lower part of his back. Plaintiff also experienced a “tingling
numbness” in his feet but testified that it was a different sensation than what
he had complained of on 22 March 2001.
Plaintiff reported the accident to his supervisor and went to the
infirmary. Plaintiff was given light
duty for the remainder of the day. When
plaintiff arrived at work the following day, he returned to the infirmary,
complaining of lower back pain and numbness from his knees down to his
feet. The infirmary nurse, Wanda
Monroe, sent plaintiff to Primary Care Plus.
The doctors at Primary Care Plus diagnosed plaintiff with lumbar strain
and gave plaintiff light duty.
Plaintiff was told to follow up on 9 April 2001 with the company doctor
for further assessment. Plaintiff
testified that he did not follow up on 9 April 2001 because the doctor at
Primary Care Plus “didn’t do nothing to [him].”
Plaintiff missed his appointment
with Dr. Ramachandran on 10 April 2001 due to illness, and rescheduled the
appointment for 18 April 2001. While en
route to this appointment, plaintiff was injured in an automobile
accident. Plaintiff was taken to the
emergency room of Cape Fear Valley Medical Center, where he was diagnosed with
thoracic, lumbar, and cervical spine strain, as well as left knee sprain. Plaintiff was prescribed pain medication,
was given two days off work, and was given light duty for five days.
Plaintiff was finally able to see
Dr. Ramachandran on 23 April 2001. Dr.
Ramachandran ordered an MRI of plaintiff’s cervical spine. The MRI revealed “a large posterior
osteophyte at C-4-5 with indented spinal cord on the left paracentral region.” Dr. Ramachandran referred plaintiff to a
neurosurgeon.
Plaintiff saw Dr. Robert Allen (Dr.
Allen), a neurosurgeon, on 18 May 2001.
Plaintiff did not inform Dr. Allen that plaintiff had been involved in a
work-related accident on 6 April 2001 or that plaintiff had been in a car
accident on 18 April 2001. Plaintiff
did not list either of these events on the “Medical History Questionnaire” (the
Questionnaire) that he filled out before the appointment with Dr. Allen. Plaintiff also listed the onset of the
symptoms as occurring on 1 April 2001.
The Questionnaire also asked whether plaintiff’s visit was “related to
an accident[.]” Plaintiff checked the
“NO” box next to this question.
Finally, Dr. Allen’s notes from plaintiff’s visit states: “There is no
inciting event for [plaintiff’s] symptoms other than he does have a previous history
of a pretty major accident as a teenager back when he was around 16 or 17 years
old.”
Dr. Allen reviewed plaintiff’s MRI
and determined that plaintiff had a kyphotic deformity in the cervical
spine. Dr. Allen described plaintiff’s
kyphotic deformity as “[i]nstead of [having] a straight spine, [plaintiff] had
a very bad angulation to the spine.”
Dr. Allen’s physical examination of plaintiff confirmed this preliminary
diagnosis. Although Dr. Allen did not
know the cause of the kyphotic deformity, he testified that the deformity was
“quite fused,” and therefore “suggestive of very chronic phenomena” or a
“long-standing” condition. He believed
that the deformity was either a congenital condition or “due to trauma in the
remote past.” Dr. Allen testified that
it was “potentially” caused by an automobile accident in which plaintiff had
been involved when plaintiff was sixteen years old.
Dr. Allen performed surgery on the
kyphotic deformity on 27 July 2001.
Plaintiff steadily improved after the surgery, returning to work on 26
November 2001. Dr. Allen testified in
his deposition that by that time plaintiff had reached maximum medical
improvement. Dr. Allen estimated that
plaintiff had sustained twenty percent permanent partial disability to his back.
In an opinion and award entered 24
October 2003, the Industrial Commission (the Commission) made the following
pertinent findings of fact:
11. Dr.
Allen opined that the accident at work could have been an exacerbating or
aggravating factor in the onset of plaintiff’s cervical myelopathy. He further opined that plaintiff’s kyphotic
deformity caused plaintiff to be more susceptible to injury after a specific
traumatic incident. Dr. Allen opined
that given the long-standing kyphotic deformity, any trauma such as the
work-related injury or the car accident of 18 April 2001 could have been
sufficient to create plaintiff’s current symptoms. Dr. Allen was unable to apportion plaintiff’s current condition
between the automobile accident when plaintiff was 16, the work-related
accident of 6 April 2001, and the auto accident on 18 April 2001.
12. Plaintiff’s
pre-existing condition of kyphotic deformity was materially aggravated and/or
exacerbated by the 1work-related specific traumatic incident of 6 April 2001. Plaintiff’s back condition was further
materially aggravated and/or exacerbated by the automobile accident of 18 April
2001.
The Commission then made the
following pertinent conclusions of law:
1. On 6
April 2001, plaintiff sustained an injury to his back as a direct result of a
specific traumatic incident arising out of and in the course of employment with
defendant-employer. N.C. Gen. Stat.
§97-2.
2. On 18
April 2001, plaintiff was in an automobile accident which materially aggravated
and/or exacerbated his work-related injury and his pre-existing condition of
kyphotic deformity. . . .
In the instant case, the subsequent aggravation of plaintiff’s condition
was not due to an intervening cause attributable to plaintiff’s own intentional
conduct. Rather, it occurred while
plaintiff was on his way to receive treatment for his compensable work-related
injury of 6 April 2001; therefore, the aggravation of plaintiff’s condition was
a direct and natural result of plaintiff’s compensable injury. N.C. Gen. Stat. §97-25.
Chairman Buck Lattimore dissented from the Commission’s opinion and award, stating:
[P]laintiff’s
complaints all regarded a lower back injury on April 6, 2001. Not one of four doctors deposed in this case
indicated that plaintiff’s lower lumbar pain allegedly experienced on April 6,
2001 definitely caused or aggravated a pre-existing condition in plaintiff’s
cervical spine.
The Commission awarded plaintiff:
(1) temporary total disability at the rate of $620.00 per week from 23 April 2001
through 25 November 2001 and (2) permanent partial disability at the rate of
$620.00 for sixty weeks for the twenty percent permanent partial disability
rating to his back. Defendants appeal.
I.
We first note that plaintiff has
argued in his brief that defendants’ appeal should be dismissed on the ground
that defendants did not timely file the proposed record on appeal. Plaintiff filed a motion to dismiss this
appeal on 10 June 2004, in which he presented the same argument, verbatim. Our Court determined this matter in an order
denying the motion to dismiss on 23 June 2004.
II.
We have a “quite narrow” standard of
review in workers’ compensation cases. Calloway
v. Memorial Mission Hosp., 137 N.C. App. 480, 484, 528 S.E.2d 397, 400
(2000). Our review is limited to the
consideration of two issues: (1) whether the Commission’s findings of fact are
supported by competent evidence; and (2) whether the conclusions of law are
supported by the findings of fact. Barham
v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). When there is any evidence in the record
that tends to support a finding of fact, the finding of fact is supported by
competent evidence and is conclusive on appeal. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998). Likewise, “[w]e are not bound
by the findings of the Commission when they are not supported by competent
evidence in the record.” English v.
J.P. Stevens & Co., 98 N.C. App. 466, 471, 391 S.E.2d 499, 502 (1990).
Defendants argue that no competent
evidence supports the Commission’s finding of fact that plaintiff sustained an
injury by specific traumatic incident while lifting a drum hoist. We disagree. Plaintiff testified in detail at the hearing about the 6 April
2001 incident. Plaintiff stated that,
while changing a drum, he “pulled on the hoist to lift it off the iron
bar.” Plaintiff testified that this
action caused him to pull the lower part of his back and experience a sharp
pain. Plaintiff then filled out an
accident report and went to the infirmary, where he was put on light duty. Plaintiff returned to the infirmary the
following day, complaining of lower back pain, and the infirmary nurse sent
plaintiff to Primary Care Plus, where he was diagnosed with lumbar strain. Both Harold Brock, plaintiff’s supervisor,
and the infirmary nurse confirmed plaintiff’s testimony at the hearing. We hold that this is competent evidence that
supports the Commission’s finding of fact and conclusion of law that plaintiff
sustained a work-related injury by specific traumatic incident on 6 April 2001.
III.
Defendants next assign error to the
Commission’s finding of fact and conclusion of law that plaintiff’s automobile
accident aggravated and/or exacerbated his work-related injury. All natural consequences that result from a
work-related injury are compensable under the Workers’ Compensation Act. Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 73-74, 308 S.E.2d 485, 488
(1983), disc. review denied, 310 N.C. 309, 312 S.E.2d 652 (1984). Therefore, when a work-related injury leaves
an employee in a weakened state that results in further injury, the subsequent
injury is compensable. Heatherly v.
Montgomery Components, Inc., 71 N.C. App. 377, 381-82, 323 S.E.2d 29, 31
(1984), disc. review denied, 313 N.C. 329, 327 S.E.2d 890 (1985). However, compensation is precluded when “the
subsequent aggravation is the result of an independent intervening cause
attributable to claimant’s own intentional conduct[.]” Horne v. Universal Leaf Tobacco
Processors, 119 N.C. App. 682, 685, 459 S.E.2d 797, 799, disc. review
denied, 342 N.C. 192, 463 S.E.2d 237 (1995). “‘An intervening cause is one occurring entirely independent of a
prior cause. When a first cause
produces a second cause that produces a result, the first cause is a cause of
that result.’“ Petty v. Transport,
Inc., 276 N.C. 417, 426, 173 S.E.2d 321, 328 (1970) (citation omitted).
Defendants argue that the Commission
erred when it found that plaintiff was in the 18 April 2001 automobile accident
while en route to receive treatment for his 6 April 2001 work-related
injury. We find that, regardless of
whether plaintiff was en route to receive treatment for his work-related
injury, the automobile accident was not an independent intervening cause
because it did not result from plaintiff’s own intentional conduct. Rather, the evidence shows, and defendants
do not contend otherwise, that the automobile accident was the result of
another driver’s negligence. Therefore,
the accident was not an intervening cause precluding compensation for
aggravation of plaintiff’s work-related injury. See, e.g., Baker v. City of Sanford, 120 N.C. App.
783, 789, 463 S.E.2d 559, 564 (1995), disc. review denied, 342 N.C. 651,
467 S.E.2d 703 (1996) (since the plaintiff’s brother’s death “was not
attributable to [the] plaintiff’s own intentional conduct,” the plaintiff was
entitled to compensation for the exacerbation of his work-related depression); Horne,
119 N.C. App. at 687, 459 S.E.2d at 800-01 (finding that an automobile accident
was not an independent, intervening cause of the plaintiff’s injury because
there was no evidence that the plaintiff’s own intentional conduct caused the
accident).
Furthermore, we find that competent evidence in the record supports the Commission’s conclusion of law that the automobile accident aggravated plaintiff’s work-related injury. Dr. Jeffrey Baldwin (Dr. Baldwin), plaintiff’s chiropractor, testified that the automobile accident exacerbated the work-related injury:
The
[automobile] accident . . . is a trauma to the spine. Even though the majority of the trauma was
up top, any trauma to the spine, especially if an area is already damaged,
. . . the spine is going to absorb that trauma to some extent
throughout the course of the spine, and it’s going to affect the lower back if
there was a previous existing problem down there . . . .
Therefore, the
Commission did not err in finding as fact and concluding as a matter of law
that the automobile accident aggravated or exacerbated plaintiff’s work-related
injury.
IV.
Defendants’ next assignment of error
contends that competent evidence does not support the Commission’s finding of
fact and conclusion of law that plaintiff’s pre-existing spinal kyphotic
deformity was materially aggravated or exacerbated by the 6 April 2001
work-related injury.
North Carolina law is clear that
“[w]hen 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 . . . so that disability results, then the
employer must compensate the employee for the entire resulting disability[.]” Morrison v. Burlington Industries, 304
N.C. 1, 18, 282 S.E.2d 458, 470 (1981).
As long as “the work-related accident ‘contributed in “some reasonable
degree”‘ to [the] plaintiff’s disability, [the plaintiff] is entitled to
compensation.” Hoyle v. Carolina
Associated Mills, 122 N.C. App. 462, 466, 470 S.E.2d 357, 359 (1996)
(citations omitted). However, a
plaintiff must prove by a “preponderance of the evidence” that the accident was
a causal factor resulting in the disability.
Ballenger v. ITT Grinnell Industrial Piping, 320 N.C. 155,
158-59, 357 S.E.2d 683, 685 (1987).
In workers’ compensation cases that
involve “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.” Click
v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Furthermore, “expert opinion testimony
[that] is based merely upon speculation and conjecture . . . is
not sufficiently reliable to qualify as competent evidence on issues of medical
causation.” Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d
912, 915 (2000); see also Dean v. Coach Co., 287 N.C. 515, 522, 215
S.E.2d 89, 94 (1975) (“[A]n expert is not competent to testify as to a causal
relation which rests upon mere speculation or possibility.”).
In Young, the plaintiff
suffered a lumbo-sacral strain while in the course and scope of her employment. Young, 353 N.C. at 228, 538 S.E.2d at
913. The plaintiff was later diagnosed
with fibromyalgia and argued that the work-related injury was the cause of the
fibromyalgia. Id. at 229-30, 538
S.E.2d at 914. Our Supreme Court held
that there was no competent evidence to support a finding of causation, since
the doctor’s testimony on which the plaintiff relied “was based entirely upon
conjecture and speculation.” Id.
at 231, 538 S.E.2d at 915. Although the
doctor testified that the work-related “‘“injury could have or would have
aggravated or caused the fibromyalgia[,]”‘“ id. at 233, 538 S.E.2d at
916 (quoting Young v. Hickory Bus. Furn., 137 N.C. App. 51, 56, 527
S.E.2d 344, 348 (2000)), the Court stated that “‘could’ or ‘might’ expert
testimony [is] insufficient to support a causal connection when there is
additional evidence or testimony showing the expert’s opinion to be a guess or
mere speculation.” Young, 353
N.C. at 233, 538 S.E.2d at 916.
Our Supreme Court recently
reaffirmed its holding in Young when it adopted the dissents from this
Court’s opinions in Edmonds v. Fresenius Med. Care, 165 N.C. App. 811,
600 S.E.2d 501 (2004) (Steelman, J., dissenting), rev’d per curiam for
reasons stated in the dissent, 359 N.C. 313, 608 S.E.2d 755 (2005), and Alexander
v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 603 S.E.2d 552 (2004) (Hudson,
J., dissenting), rev’d per curiam for reasons stated in the dissent, 359
N.C. 403, 610 S.E.2d 374 (2005). In Edmonds,
the plaintiff suffered from pre-existing kidney problems. 165 N.C. App. at 812-13, 600 S.E.2d at
503. As the result of a compensable
work-related injury, the plaintiff was placed on non-steroidal
anti-inflammatory drugs (non-steroidals).
Id. at 812, 600 S.E.2d at 502-03. The plaintiff claimed that the non-steroidals exacerbated her
pre-existing kidney problems, resulting in renal failure, and sought
compensation from her employer. Id.
at 813, 600 S.E.2d at 503. The dissent
adopted by the Supreme Court found that the plaintiff failed to prove that the
administration of non-steroidals for her work-related injury caused her renal
failure. Id. at 819, 600 S.E.2d
at 506. The dissent relied on the
Commission’s finding of fact that the expert testimony only indicated that the
non-steroidals “possibly” or “could or might” have worsened the plaintiff’s
kidney problems:
19. . . . [The
expert] could not say that it was probable; he could only say that it was
possible. He stated he could not give
an opinion, to a reasonable degree of medical certainty, without knowing all
the information surrounding the drugs. [The expert] testified that [the]
plaintiff’s kidney disease could be attributed to a number of factors,
including diabetes, hypertension, a drug source injury, or a blunt trauma
injury.
Id. at 817-18,
600 S.E.2d at 506. The dissent
concluded that “[t]his testimony does not rise above a guess or mere
speculation” and therefore was not competent evidence to show causation. Id. at 818, 600 S.E.2d at 506.
In contrast, the dissent adopted
from Alexander found that competent evidence supported the plaintiff’s
claim that a work-related injury to his foot caused a ruptured disk in the
plaintiff’s back. 166 N.C. App. at 571,
603 S.E.2d at 558. The dissent stated
that although “it [wa]s possible to find a few excerpts [of the plaintiff’s
doctor’s testimony] that might be speculative[,] . . . much of
the evidence reveals that the doctor expressed her opinions repeatedly and
without equivocation.” Id. at
573, 603 S.E.2d at 558. Therefore,
since the doctor did testify that it was “likely” that the plaintiff’s back
injury occurred during the work-related accident, competent evidence supported
the Commission’s conclusion that the work-related accident caused the back
injury. Id.
Based on these holdings, it appears
that our Supreme Court has created a spectrum by which to determine whether
expert testimony is sufficient to establish causation in worker’s compensation
cases. Expert testimony that a
work-related injury “could” or “might” have caused further injury is
insufficient to prove causation when other evidence shows the testimony to be
“a guess or mere speculation.” Young,
353 N.C. at 233, 538 S.E.2d at 916; see also Edmonds, 165 N.C. App. at
818, 608 S.E.2d at 506. However, when
expert testimony establishes that a work-related injury “likely” caused further
injury, competent evidence exists to support a finding of causation. Alexander, 166 N.C. App. at 573, 603
S.E.2d at 558.
We find that, like in Edmonds,
the expert testimony in this case “does not rise above a guess or mere
speculation.” Edmonds, 165 N.C.
App. at 818, 600 S.E.2d at 506. Dr.
Allen testified that the work-related injury “could have been an
exacerbating or aggravating factor” in plaintiff’s kyphotic deformity, but
further testified that he was uncertain that this was the case:
A What pushed [the kyphotic deformity] over the
edge, I’m not sure if there was anything. . . . I think what he is describing as his
presentation, how it’s due to any one particular event, I think is not clear.
. . . .
Q So it is possible with this condition that,
even if the Industrial Commission finds that [plaintiff] did suffer an
on-the-job injury on April the 6th, 2001, that it could have nothing to do
with the condition that you treated him for here?
A Correct.
Q And there’s no way for you to determine whether
it was totally degenerative or something else specifically caused it?
A Now I think that the evidence would suggest
that he had a major kyphotic deformity present as the major problem. Whether some incident pushed it over the
edge, I think, is less clear.
(emphases
added).
Dr. Allen’s testimony indicates that
he was unable to go beyond a guess or speculation in determining whether
plaintiff’s work-related injury aggravated and/or exacerbated plaintiff’s
kyphotic deformity. Rather, Dr. Allen’s
testimony shows that he was unsure as to whether any single event caused the
onset of plaintiff’s symptoms at all.
Further, Dr. Allen testified that plaintiff’s 6 April 2001 work-related
injury “could have nothing to do with” the kyphotic deformity. The Commission’s findings of fact reflect
Dr. Allen’s uncertainty:
11. Dr.
Allen opined that the accident at work could have been an exacerbating
or aggravating factor in the onset of plaintiff’s cervical myelopathy. . . . Dr. Allen opined that given the
long-standing kyphotic deformity, any trauma such as the work-related injury
or the car accident of 18 April 2001 could have been sufficient to create
plaintiff’s current symptoms.
(emphases
added).
Under Young and Edmonds,
plaintiff has failed to carry his burden of proving that his work-related
injury was a causal factor in his kyphotic deformity. Furthermore, Dr. Allen’s testimony never indicated that, in his
opinion, it was “likely” that the work-related injury caused an aggravation
and/or exacerbation of plaintiff’s kyphotic deformity. See Alexander, 166 N.C. App. at 573,
603 S.E.2d at 558. Therefore, we hold
that the Commission’s finding of fact that the work-related injury aggravated
and/or exacerbated plaintiff’s kyphotic deformity was not supported by
competent evidence. We remand to the
Commission for new findings of fact and conclusions of law in accordance with
the correct legal standard. See
Ballenger, 320 N.C. at 158, 357 S.E.2d at 685 (stating that “[w]hen the
Commission acts under a misapprehension of the law, the award must be set aside
and the case remanded for a new determination using the correct legal
standard.”); see also Edmonds, 165 N.C. App. at 817, 600 S.E.2d at 506
(Steelman, J., dissenting) (“It is not the role of the appellate courts to sift
through the evidence and find facts that are different from those actually
found by the Commission.”).
We vacate the Commission’s 24
October 2003 opinion and award. We
remand for findings of fact and conclusions of law applying the correct legal
standard. We also remand for a
determination as to the proper amount of compensation to which plaintiff is
entitled for his 6 April 2001 work-related injury and its aggravation and/or
exacerbation by the 18 April 2001 automobile accident.
We deem abandoned those assignments of error not addressed in defendants’ brief. N.C.R. App. P. 28(b)(6).
Vacated and remanded.
Judges WYNN and TYSON concur.