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NO.
COA04-1459
NORTH
CAROLINA COURT OF APPEALS
Filed:
18 October 2005
NAOMI SINGLETARY,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 186108
NORTH CAROLINA BAPTIST HOSPITAL,
Employer, SELF-INSURED,
Defendant.
Appeal
by plaintiff and defendant from an opinion and award filed 11 June 2004 by the
North Carolina Industrial Commission.
Heard in the Court of Appeals 15 June 2005.
Jay
Gervasi, P.A., by Jay A. Gervasi, Jr., for plaintiff appellant-appellee.
Womble
Carlyle Sandridge & Rice, P.L.L.C., by Philip J. Mohr, for defendant
appellant-appellee.
McCULLOUGH,
Judge.
Both
parties appeal from an opinion and award of the North Carolina Industrial
Commission (“the Commission”) granting workers’ compensation benefits to
plaintiff Naomi Singletary (“Singletary”) for fibromyalgia arising from an
injury sustained during her employment with defendant North Carolina Baptist
Hospital (“the Hospital”). On appeal,
Singletary contends that the award is insufficient, and the Hospital contends
that no award should have been made at all.
With respect to both appeals, we affirm.
FACTS
On
7 October 2001, Singletary was working at defendant Hospital as a certified
nursing assistant. While Singletary and
a registered nurse were cleaning a very heavy patient, the registered nurse
lost her grip on the patient, who fell onto Singletary’s right arm and
shoulder. Singletary felt a pop and
immediately experienced pain in her back.
Within a few hours of the incident, she sought treatment at the
Hospital’s emergency room. Singletary
was diagnosed as having low back pain and instructed to return to work at light
duty for the next three days.
On
10 October 2001, Singletary visited the Hospital’s employee health services
department for back pain. She was
diagnosed with cervical and lumbar strain and spasm, was told not to return to
work until 15 October, and was given a forty-pound lifting restriction. On 15 October 2001, Singletary returned to
employee health services with complaints of back pain. She was permitted to remain out of work
until 22 October. On 24 October 2001,
Singletary returned to employee health services and reported that she had
attempted to return to light duty two days earlier but was unable to work
because of pain. Singletary was kept
out of work and sent to physical therapy.
As of 16 November 2001,
Singletary had shown little improvement, so employee health services referred
her to an orthopedic specialist. A
physician’s assistant at the Hospital’s orthopedics department diagnosed
Singletary with mechanical low back pain and referred her to Dr. Robert Irwin.
Following an examination on 17 January 2002, Dr. Irwin diagnosed Singletary as
having fibromyalgia and determined that she was “not fit for any duty.” Dr. Irwin drafted a note excusing Singletary
from work until 2 May 2002. In a
deposition submitted to the Commission, Dr. Irwin related Singletary’s
fibromyalgia to the 7 October 2001 incident at work.
Prior to the time when
Singletary sought treatment from Dr. Irwin, the Hospital had been covering her
medical expenses and compensating her for the time that she was excused from
work. However, on 3 December 2001, the
Hospital filed a Form 61 “Denial of Workers’ Compensation Claim,” pursuant to
which the Hospital ceased paying compensation and medical benefits to Singletary. Pursuant to this filing, the Hospital
declined to pay medical bills incurred by Singletary after her 17 January 2002
appointment with Dr. Irwin, and Singletary was unable to receive further
treatment by Dr. Irwin.
In an opinion and award
filed 11 June 2004, the Commission determined that Singletary had sustained an
injury by accident arising out of and in the course of her employment which
caused or aggravated her fibromyalgia.
The Hospital was ordered to pay temporary total disability benefits to
Singletary from 7 October 2001 until 2 May 2002 and to pay past and future
medical expenses related to her injury.
From this opinion and award, both parties now appeal.
SINGLETARY’S APPEAL
We
begin with Singletary’s appeal.
Singletary argues that the Commission erred by (I) determining that she
failed to prove the existence of a disability, as the term is defined by the
Workers’ Compensation Act, after 2 May 2002, (II) failing to apply a
presumption of ongoing disability, (III) determining that the Hospital had
taken sufficient action to deny the compensability of her claim, and (IV)
determining that the Hospital’s defense of her claim was reasonable and by
failing to assess sanctions.
I.
We first address
Singletary’s argument that the Commission erred by finding and concluding that
she had failed to prove that she was under a disability after 2 May 2002. This contention lacks merit.
Section 97-2(9) of the
North Carolina General Statutes defines a disability to mean “incapacity
because of injury to earn the wages which the employee was receiving at the
time of injury in the same or any other employment.” N.C. Gen. Stat. §97-2(9) (2003).
“[A] claimant ordinarily has the burden of proving both the existence of
[a] disability and its degree.” Hilliard
v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). This Court must affirm the Commission’s
disability determination if (1) its findings are supported by competent record
evidence and (2) its conclusions are supported by findings of fact and applicable
law. See Creel v. Town of
Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 480 (1997) (noting this
Court’s standard of review).
In
the instant case, Dr. Irwin wrote a note excusing Singletary from work until 2
May 2002, and neither Dr. Irwin nor any other physician instructed her to
remain out of work thereafter.
Furthermore, the Commission was not required to find as credible any
evidence that she was unable to work after 2 May 2002. See Effingham v. Kroger Co., 149 N.C.
App. 105, 109-10, 561 S.E.2d 287, 291 (2002) (“[T]he Commission is the sole
judge of the credibility of the witnesses and the weight accorded to their
testimony.”). As such, we are
unpersuaded that the Commission erred by finding and concluding that Singletary
had failed to prove disability after 2 May 2002.
II.
We
next address Singletary’s contention that the Commission could not determine
that her disability ended on 2 May 2002 because she was entitled to a
presumption of continuing disability pursuant to Watkins v. Motor Lines, 279
N.C. 132, 137, 181 S.E.2d 588, 592 (1971).
This contention lacks merit.
Under
Watkins, once an employee proves a disability, “there is a presumption
that disability lasts until the employee returns to work and likewise a
presumption that disability ends when the employee returns to work at wages
equal to those he was receiving at the time his injury occurred.” Id.
To avail herself of the Watkins presumption, a claimant must meet
the initial burden of proving a disability in one of two ways: “(1) by a
previous Industrial Commission award of continuing disability, or (2) by
producing a Form 21 or Form 26 settlement agreement approved by the Industrial
Commission.” Cialino v. Wal-Mart
Stores, 156 N.C. App. 463, 470, 577 S.E.2d 345, 350 (2003).
In
the instant case, Singletary is unable to rely upon either a previous
opinion and award of the Commission establishing a continuing disability or a
Commission-approved settlement agreement.
Instead, she argues that, because the Commission’s opinion and award
made a finding of disability, Watkins required the Commission to apply a
presumption of continuing disability in the same opinion and award. Stated differently, it is Singletary’s
contention that, once she had shown the existence of a disability, she was
relieved from proving the extent of it.
However, it is well established that a claimant bears the burden of
proving the extent of her disability. See,
e.g., Hilliard, 305 N.C. at 595, 290 S.E.2d at 683.
This
assignment of error is overruled.
III.
We
next address Singletary’s argument that the Commission erred by determining
that the Hospital had taken sufficient action to deny the compensability of her
claim. Singletary admits that the
Hospital intended to deny her claim, but she insists that its filing failed to
provide the statutorily required statement of the grounds for denying
compensability. This contention lacks
merit.
Section
97-18(d) of the North Carolina General Statutes establishes a procedure
pursuant to which an employer that is “uncertain on reasonable grounds whether
[a] claim is compensable or whether it has liability” may initiate payment of
benefits to an employee without accepting liability if a denial is ultimately
filed within ninety days. N.C. Gen.
Stat. §97-18(d) (2003). The statute
further provides that
[i]f at any time during
the [prescribed] period . . . , the employer . . . contests the compensability
of the claim or its liability therefor, it may suspend payment of compensation
and shall promptly notify the Commission and the employee on a form prescribed
by the Commission. The employer . . . must provide on the
prescribed form a detailed statement of its grounds for denying compensability
of the claim or its liability therefor.
If the employer or insurer does not contest the compensability of the
claim or its liability therefor within 90 days from the date it first has
written or actual notice of the injury or death, or within such additional
period as may be granted by the Commission, it waives the right to contest the
compensability of and its liability for the claim . . . .
Id.
In
the instant case, the Hospital initially paid
benefits to Singletary. However,
approximately two months after Singletary’s accident at work, the Hospital
filed a Form 61 “Denial of Workers’ Compensation Claim,” in which it provided
the following reasons for denying her claim:
1) [Singletary’s] disability is not the
result of an accident or specific traumatic incident occurring on the job.
2) [Singletary] is not currently disabled.
3) Credibility.
Singletary insists that the proffered denial was insufficiently detailed and did not state any actual reasons for denying compensability and liability. However, even a cursory review of the reasons listed on the Form 61 reveals that the Hospital was concerned about whether Singletary was being honest about her condition and that it sought to challenge whether Singletary had, in fact, developed fibromyalgia and, if so, whether the condition was linked to her accident at work. Accordingly, we conclude that the Commission properly determined that the Hospital had provided valid reasons for denying Singletary’s claim and had provided sufficient detail in its statement of such reasons.
This assignment of error
is overruled.
IV.
We next address
Singletary’s argument that the Commission erred by determining that the
Hospital’s defense of her claim was reasonable and by failing to assess
sanctions against the Hospital. We
disagree.
“If the Industrial
Commission shall determine that any hearing has been brought, prosecuted, or
defended without reasonable ground, it may assess the whole cost of the
proceedings including reasonable fees for defendant’s attorney or plaintiff’s
attorney upon the party who has brought or defended them.” N.C. Gen. Stat. §97-88.1 (2003). The decision of whether to take such action
is consigned to the discretion of the Commission, and will be left undisturbed
absent an abuse of discretion. Taylor
v. J.P. Stevens Co., 307 N.C. 392, 398, 298 S.E.2d 681, 685 (1983).
Given the facts and
circumstances of the instant case, we are unpersuaded that the Hospital’s
defense of Singletary’s claims was
necessarily unreasonable. Further, we discern no abuse of discretion in
the Commission’s decision not to impose sanctions.
This assignment of error
is overruled.
THE HOSPITAL’S APPEAL
We
turn now to the Hospital’s appeal. The
Hospital argues that the Commission erred by (I) determining that Singletary’s
fibromyalgia was caused by her 7 October 2001 accident at work, and (II)
determining that Singletary was entitled to benefits through 2 May 2002.
I.
We first address the
Hospital’s argument that the Commission erred by finding that Singletary’s
fibromyalgia was caused by the 7 October 2001 accident at work. The Hospital insists that Dr. Irwin’s
testimony was insufficient to establish such a causal nexus because it was
based solely upon the temporal relationship between the accident and the
development of Singletary’s fibromyalgia and was, therefore, speculative. We disagree.
This
Court must affirm findings of the Industrial Commission that are supported by
competent evidence in the record. Deese
v. Champion Int’l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552
(2000). Where the link between a
plaintiff’s condition and an accident at work involves a complex medical
question, as in the instant case, a finding of causation must be premised upon
the testimony of a medical expert. Click
v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). “Although medical certainty is not required,
an expert’s ‘speculation’ is insufficient to establish causation.” Holley v. ACTS, Inc., 357 N.C. 228,
234, 581 S.E.2d 750, 754 (2003). Thus,
“‘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 v. Hickory Bus. Furniture, 353 N.C. 227, 233, 538 S.E.2d
912, 916 (2000). Accordingly, if an
expert’s opinion as to causation is wholly premised on the notion of post
hoc ergo propter hoc (after it, therefore because of it), then the expert
has not provided competent record evidence of causation. Id. at 232-33, 538 S.E.2d at 916.
For
example, in Young, the Industrial Commission found that a claimant’s
fibromyalgia had been caused by an accident at work based solely on the opinion
testimony of a Dr. Payne, who stated that “I think that [the claimant] does
have fibromyalgia and I relate it to the accident primarily because, as I
noted, it was not there before and she developed it afterwards. And that’s the only
piece of information that relates the two.”
Id. at 232, 538 S.E.2d at 916 (emphasis added). Our Supreme Court held that the Commission
could not make a finding of causation based only upon this opinion because the
opinion was premised entirely on Dr. Payne’s application of post hoc ergo
propter hoc. Id. The Court added:
The speculative nature
of Dr. Payne’s expert opinion is reflected in his testimony that while he
acknowledged that he knew of several other potential causes of Ms. Young’s
fibromyalgia, he did not pursue any testing to determine if they were, in fact,
the cause of her symptoms. For instance, Dr. Payne conceded that he was aware
of osteoarthritis in Ms. Young and that her sister was diagnosed with
rheumatoid arthritis. However, when asked on cross-examination whether he had
performed any tests to rule out other forms of rheumatoid disease or illness
that could account for Ms. Young’s symptoms, Dr. Payne testified that he had
not. Indeed, when asked by defense
counsel whether those tests had been conducted, Dr. Payne simply responded,
“[T]hose studies need to have been done.” Additionally, in response to defense
counsel’s questions about other potential causes of Ms. Young’s symptoms, Dr.
Payne admitted that he did not attempt to ascertain whether plaintiff suffered
from any viral or bacterial illnesses during the time between her injury and
his diagnosis of fibromyalgia. This response followed the doctor’s
acknowledgment of case reports suggesting that fibromyalgia could be associated
with a postbacterial illness reaction or a postviral reaction.
The speculative nature
of the doctor’s opinion is further reflected in his testimony regarding Ms.
Young’s gallbladder surgery in 1994. Plaintiff’s surgery took place two years
after her injury and seven months before her first visit with Dr. Payne. On
cross-examination, the doctor acknowledged that surgery is an “event that is
thought to trigger or aggravate fibromyalgia,” and that, depending on how well
Ms. Young tolerated her gallbladder surgery, it “could have aggravated
[plaintiff’s] fibromyalgia.” The record therefore supports, through Dr. Payne’s
own admissions, at least three potential causes of fibromyalgia in Ms. Young
other than her injury in 1992.
Id.
at
232-33, 538 S.E.2d at 915-16.
The
instant case is distinguishable from Young. It is true that Dr. Irwin’s opinion on causation was informed by
the temporal relation between Singletary’s accident at work and her illness:
“[S]he did not have a problem before the injury. Then starting from the injury, she had the problem and based on
what I know as a result of that, I would say that, yes, they are related.” However, Dr. Irwin also identified other
potential causes of Singletary’s fibromyalgia, and rejected them. For example, during his 17 January 2002
examination of Singletary, Dr. Irwin noted that Singletary had diabetes, and he
tested her for diabetic peripheral neuropathy, another condition which may have
produced her symptoms. The testing
indicated that Singletary was not suffering from diabetic peripheral
neuropathy. Likewise, in his deposition
testimony, Dr. Irwin expressed an opinion that, notwithstanding Singletary’s
pre-existing sleep apnea and diabetes, her 7 October 2001 accident at work played
a role in the development of her fibromyalgia:
[SINGLETARY’S ATTORNEY]: If we assume that Ms. Singletary had been
having sleep apnea, for example, that might be indicative of fibromyalgia or
associated with the causal complex and other problems before October of 2001,
but then she did have the injury that’s described in the Employee Health notes
that you saw . . . would it be your opinion that there was any contribution of
the pre-existing condition to the condition for which you saw her in January of
2002 or would it be separate?
[DR. IRWIN]: [Singletary’s] sleep apnea certainly could
[have] contribute[d] to it and [her] diabetes certainly could [have] as well.
[SINGLETARY’S ATTORNEY]: Okay.
In your opinion, judging from what you see with the notes, would they
likely have caused any disabling fibromyalgia in the absence of the injury she
had in October [2001]?
[DR. IRWIN]: Sleep apnea can cause disabling fibromyalgia on
its own.
[SINGLETARY’S ATTORNEY]: In her case, did it, in your opinion?
[DR. IRWIN]: Since she didn’t have pain prior to the injury,
I would say it didn’t.
[SINGLETARY’S ATTORNEY]: Okay.
If she had some pain prior to the injury but not as much as she had
after the injury, can trauma aggravate a person’s pre-existing fibromyalgia or
activate a pre-existing predisposition toward it?
[DR. IRWIN]: Yes.
[SINGLETARY’S ATTORNEY]: In her case, if she did have some level of pain that allowed her to work and was of a much lesser nature than what she had afterwards and then she had this injury and then had the condition that you’ve been able to observe through the records and also through your own observations, would it be a fair characterization to say that her condition was aggravated by the injury[?]
[DR. IRWIN]: Yes.
Thus,
Dr. Irwin’s causation testimony was not mere speculation and was not entirely
premised on the temporal relationship between Singletary’s injury at work and
her development of fibromyalgia.
Rather, although this temporal relationship played a role in the
diagnosis, Dr. Irwin also considered, tested for, and excluded other causes of
her condition. Therefore, the
Commission’s finding of causation, which was based upon Dr. Irwin’s testimony,
is supported by competent record evidence and must be affirmed.
This
assignment of error is overruled.
II.
The
Hospital next contends that the Commission erred by awarding benefits to
Singletary through 2 May 2002 because she failed to prove the extent of her
disability. However, the record
establishes that Dr. Irwin determined that Singletary was unable to work and
that he wrote a note excusing her from work until 2 May 2002. As such, there is competent evidence to
support the Commission’s finding concerning the extent of Singletary’s
disability. This assignment of error is
overruled.
For
the foregoing reasons, the Commission’s opinion and award is
Affirmed.
Judges
TYSON and BRYANT concur.