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NO. COA04-1572
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December
2005
AMY TERASAKA,
Plaintiff
v. North Carolina Industrial Commission
I.C.
File No. 213550
AT&T,
Defendant
Appeal by defendant from Opinion and Award of the Industrial
Commission entered 1 July 2004 by Commissioners Bernadine S. Ballance, Pamela
T. Young, and Thomas Bolch. Heard in
the Court of Appeals 8 June 2005.
Frederick
R. Stann for plaintiff-appellee.
Brooks,
Stevens & Pope, P.A., by Joy H. Brewer for defendant-appellant.
CALABRIA, Judge.
AT&T (“defendant”) appeals the award of the North
Carolina Industrial Commission (the “Commission”) granting benefits to Amy
Terasaka (“plaintiff”) based on a diagnosis of carpal tunnel syndrome. We reverse.
On 14 February 2002, plaintiff filed a Form 18 alleging she
developed pain in both of her hands on or about 17 October 2001 while typing
during an intense three-day customer service representative training
course. In response, defendant filed a
Form 61 denying plaintiff’s claim. At
the time, plaintiff was in her early forties and had consistently worked in the
secretarial field throughout her adult life.
On 30 December 1996, plaintiff started her employment with
defendant in New Jersey as a senior records clerk. Her duties included typing approximately four hours of every
eight hour workday. On 1 February 1997,
she transferred to a different division in the New Jersey office, retained her
position as a senior records clerk, and spent approximately six hours of each
ten hour workday typing.
On 13 September 2001, plaintiff transferred to the Gastonia,
North Carolina office of defendant to become a customer service
representative. On or about that date,
she started a three week customer service representative training course. Two days into the course, she contracted the
flu and missed the remainder of the course.
She then undertook an intensive three day course to learn what she had
missed. During this course, she typed
approximately eight hours a day for all three days. Toward the end of the course, on or about 17 October 2001, she
felt tingling and numbness in her hands.
Shortly thereafter, she started work as a customer service
representative.
On 23 October 2001, she experienced numbness in both hands
with pain extending from her hands to her shoulders, which prevented her from
working. She visited several doctors
and was eventually seen by Dr. David S. Baker (“Dr. Baker”) on 13 March
2002. After examining plaintiff and
reviewing her nerve conduction tests, Dr. Baker diagnosed plaintiff with carpal
tunnel syndrome in both wrists. He
injected cortisone into her wrists, and her symptoms briefly subsided but
returned. On 24 April 2002, Dr. Baker
performed surgery on her left wrist to release pressure on the nerve in the
carpal tunnel. On 15 May 2002,
plaintiff reported relief of symptoms in her left hand, and on 27 June 2002,
Dr. Baker performed surgery on her right wrist. On 25 September 2002, plaintiff reported severe pain in both
hands and wrists, which prevented her from using her hands for approximately
two to three weeks. Dr. Baker’s exam
indicated tendinitis of the wrists, and he injected both her wrists with
cortisone at the location of the pain.
On 9 October 2003, after returning to work for four days,
plaintiff reported severe pain and an inability to use her hands for normal
activities. Dr. Baker stated he could
not explain her level of pain and dysfunction on any medical or scientific
basis and told her there were no other diagnostic or treatment options in his
specialty that would benefit her. He
further opined that typing is a repetitive activity that could cause carpal
tunnel syndrome. However, he could only
say plaintiff’s typing might be an influencing factor and could not quantify to
what degree typing was the cause as compared to other possible factors.
Twice in December 2002, plaintiff saw Dr. Raymond C. Sweet
(“Dr. Sweet”), a neurosurgeon. Dr.
Sweet’s physical examination of plaintiff’s hands and wrists indicated some
type of nerve condition. However, her
nerve conduction tests indicated normal functioning. He stated he had never seen a patient with normal nerve
conduction tests have positive indicators for a nerve condition based on
physical examination and would not recommend another operation when presented
with normal nerve conduction tests. He
stated repetitive hand motions, such as typing six hours out of a ten hour
workday, created a greater risk of developing carpal tunnel syndrome, and
carpal tunnel syndrome could develop in certain individuals in as little as
three to four months. Moreover, Dr. Sweet
stated that in his medical opinion plaintiff’s work history of typing was a
significant factor in her developing carpal tunnel syndrome. He stated that with the exception of the
nerve conduction tests, her physical exam signs and history were consistent
with her complaints of pain and that plaintiff likely damaged the median nerve
running through her wrist.
Additionally, he noted if her condition had not changed since her visits
to him in December 2002, it would be unlikely she would be able to return to a
job that involves repetitive hand and wrist motion.
After a 19 May 2004 hearing on this matter, the Commission
concluded: (1) “plaintiff developed bilateral carpal tunnel syndrome, an
occupational disease, due to causes and conditions characteristic of and
peculiar to her employment that was not an ordinary disease of life to which
the general public is equally exposed”; (2) plaintiff proved “that she was
temporarily totally disabled from 13 March 2002, less four days, and continuing
thereafter”; (3) “[p]laintiff is entitled to receive total disability benefits
in the weekly amount of _502.36 from 13
March 2002, less four days, and continuing until further order of the
[Commission]”; and (4) “defendants shall pay all medical expenses incurred for
the treatment of her occupational injuries, including those arising from future
treatment by a suitable physician addressing pain disorders[.]” Defendant appeals.
Defendant raises several assignments of error on
appeal. We initially address whether
plaintiff met her burden of proving disability. Because we hold that plaintiff failed to meet her burden, we do
not address defendant’s remaining assignments of error.
To obtain workers’ compensation benefits, a claimant bears
the burden of proving both the existence and the extent of disability. Saums v. Raleigh Community Hospital,
346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997).
Specifically, in the absence of a Form 21 or other admission of
liability for compensation, the employee bears the burden of proving she is
disabled. Demery v. Converse, Inc.,
138 N.C. App. 243, 249, 530 S.E.2d 871, 876 (2000). An employee injured in the course of her employment is disabled
under the Act if the injury results in an “incapacity . . . to earn the wages
which the employee was receiving at the time of the injury in the same or any
other employment.” N.C. Gen. Stat. §97‑2(9)
(2003). An employee may meet the burden
of showing disability in one of four ways:
(1) the
production of medical evidence that he is physically or mentally, as a
consequence of the work related injury, incapable of work in any employment[];
(2) the production of evidence that he is capable of some work, but that he
has, after a reasonable effort on his part, been unsuccessful in his effort to
obtain employment[]; (3) the production of evidence that he is capable of some
work but that it would be futile because of preexisting conditions, i.e., age,
inexperience, lack of education, to seek other employment[]; or (4) the
production of evidence that he has obtained other employment at a wage less than
that earned prior to the injury.
Russell
v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993) (citations omitted) (emphasis added).
The determination that an employee is disabled is a
conclusion of law that must be based upon findings of fact supported by
competent evidence. Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). In support of its conclusion that plaintiff
is temporarily totally disabled, the Commission made the following pertinent
findings of fact:
4. . . . Plaintiff also
saw Dr. David Baker, who first examined her on 13 March 2002, when plaintiff
presented with severe hand and arm pain with numbness and tingling. . . . At that point, Dr. Baker did not believe plaintiff
could work and took her out of work on 13 March 2002.
5. On 25 September
2002, plaintiff complained of severe pain in both hands and wrists. . . . [Doctor Baker] excused her from work until 9
October 2002. . . . On 20 November 2002,
Dr. Baker believed that there was no more he could offer her in terms of
treatment. . . . He was unable to make
any recommendations about her future employment.
7. . . . [Dr. Sweet]
last saw plaintiff on 23 December 2002. . . .
Dr. Sweet was of the opinion that plaintiff could not return to any job
which required repetitive motion of the hands and wrists.
10. . . . As of 13
March 2002, plaintiff was unable to work in any capacity due to her
carpal tunnel syndrome and, except for four days when she later attempted to
return to work, plaintiff remained disabled.
11. In that plaintiff
has continued to experience debilitating symptoms that Dr. Baker refused to
address, it appears that plaintiff should be seen by a doctor qualified to
diagnose pain disorders. There is no
evidence that plaintiff has reached maximum medical improvement.
(Emphasis
added).
Finding of fact 10 is supported by competent evidence
because plaintiff testified as follows:
Q: . . . [C]an you
return to your past work that involved so much typing [?]
A: No, sir, I can’t. .
. . I won’t be able to use my hands
ever.
. . .
Q: Besides typing, do
you have any other problems using your hands?
A: My activity of daily
living is severely compromised. . . .
My husband has to dress me, has to turn knobs for me, meaning water faucets,
door handles. He has taken on all of
the household duties, laundry, vacuuming, feeding us, grocery shopping,
driving. . . . I can’t really do much
of anything.
Q: How about driving a
car?
A: No. . . . I have hand cramps inconsistently. I would be afraid of causing injury to
myself or others.
. . .
Q: But are you able to
use your hands on a regular basis for a job?
A: No.
Because finding 10 is supported by competent evidence it is
conclusive on appeal. Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Since the Commission conclusively found
“plaintiff was unable to work in any capacity due to her carpal tunnel
syndrome,” the only Russell prong applicable on these facts is the first
prong. The dissent contends we have
improperly applied the Russell test by holding “that because plaintiff
Amy Terasaka failed to offer medical evidence meeting the first method of
proof, she has necessarily failed to prove total disability.” The dissent misconstrues our holding. While we agree that a plaintiff can
ordinarily prove disability under any of the four Russell prongs, see
Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 342, 561 S.E.2d
298, 302, on these particular facts, the Commission’s finding 10 is
conclusively established and precludes us from considering any of the other Russell
prongs.
Thus, under the only Russell prong applicable on
these facts, in order for plaintiff to meet her burden of proving disability,
she had to produce medical evidence that she is physically or mentally,
as a consequence of the work related injury, incapable of work in any employment. Russell, 108 N.C. App. at 765, 425
S.E.2d at 457. However, the Commission
found in finding 7, however, that the medical evidence merely showed “plaintiff
could not return to any job which required repetitive motion of the hands and
wrists.” This finding does not amount
to a finding that plaintiff could not work in any employment. Finding 7 is supported by competent evidence
in that Dr. Sweet testified that “it’s unlikely [plaintiff] would be able to
return to a job that involves repetitive hand motion and wrist motion” based on
his medical analysis. Moreover, we
cannot remand for additional findings because the transcripts reveal no medical
evidence that could support a finding that plaintiff was incapable of work in any
employment. Accordingly, because
plaintiff failed to meet her burden of establishing disability under Russell,
we hold the Commission erred in concluding that plaintiff “prove[d] that
she was temporarily totally disabled from 13 March 2002, less four days, and
continuing thereafter.” Furthermore,
the Commission’s award based on this conclusion was likewise in error, and we
reverse the opinion and award of the Commission.
Reversed.
Judge ELMORE concurs.
Judge GEER dissents with a separate opinion.
NO. COA04-1572
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December
2005
AMY TERASAKA,
Plaintiff
v. North Carolina Industrial Commission
I.C.
File No. 213550
AT&T,
Defendant
GEER, Judge, dissenting.
I believe that the majority has failed to properly apply the
test in Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425
S.E.2d 454 (1993) and, therefore, respectfully dissent. As the majority acknowledges, an employee
may meet her burden of proving disability in one of four ways:
(1) the
production of medical evidence that he is physically or mentally, as a
consequence of the work related injury, incapable of work in any employment;
(2) the production of evidence that he is capable of some work, but that he
has, after a reasonable effort on his part, been unsuccessful in his effort to
obtain employment; (3) the production of evidence that he is capable of some
work but that it would be futile because of preexisting conditions, i.e., age,
inexperience, lack of education, to seek other employment; or (4) the
production of evidence that he has obtained other employment at a wage less
than that earned prior to the injury.
Id. at 765, 425
S.E.2d at 457 (internal citations omitted).
The majority, however, holds that because plaintiff Amy Terasaka failed
to offer medical evidence meeting the first method of proof, she has
necessarily failed to prove total disability.
An employee contending that she is totally disabled is not
limited to proving by medical evidence her incapacity to work at any
employment. As this Court emphasized in
White v. Weyerhaeuser Co., 167 N.C. App. 658, 672, 606 S.E.2d 389, 399
(2005), “[t]he absence of medical evidence does not preclude a finding of
disability under one of the other three [Russell] tests.” See also Bridwell v. Golden Corral
Steak House, 149 N.C. App. 338, 342, 561 S.E.2d 298, 302 (“While we agree
that plaintiff’s medical evidence is insufficient to show disability, we
conclude that plaintiff has met his initial burden of production through other
evidence.”), disc. review denied, 355 N.C. 747, 565 S.E.2d 193 (2002).
The second and third methods of proof under Russell
lead to the same conclusion as the first method of proof: that the employee is
unable to work in any capacity. The
first method establishes that the employee is medically incapable of working,
while the second and third methods focus on the vocational component of
disability. Under those two methods, an
employee is deemed totally disabled because even though the employee may be
medically capable of performing work, employers nonetheless will not hire the
employee. See White, 167
N.C. App. at 673, 606 S.E.2d at 399-400 (affirming award of total disability
for closed period based on the Commission’s finding that the plaintiff, during
that period, made unsuccessful efforts to find suitable work); Bridwell,
149 N.C. App. at 343-44, 561 S.E.2d at 302 (holding that even though the
medical evidence did not support the Commission’s findings that the plaintiff
was restricted from any and all employment, the award of total disability
should be affirmed based on findings that the plaintiff had unsuccessfully
sought suitable employment). I can find
no basis upon which to distinguish White and Bridwell from this
case.
Thus, Terasaka was permitted to meet her burden of proving
total disability by producing, as she did, “evidence that [she] is capable of
some work, but that [she] has, after a reasonable effort on [her] part, been
unsuccessful in [her] effort to obtain employment.” Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. I disagree with the majority’s suggestion
that the Commission considered only the first Russell method of
proof. Nothing in the opinion and award
indicates such a limitation. To the
contrary, the Commission specifically found that “[p]rior to the hearing before
the deputy commissioner, plaintiff had looked extensively for other types of
work and had not received any job offers.”
This finding of fact specifically refers to the second method of proof
set out in Russell.
That finding is in turn supported by Terasaka’s testimony
that she had made approximately 500 attempts to find jobs, using the Internet,
the newspaper, and the telephone, but that she received no job offers. Defendants challenge the credibility of that
testimony and argues that “the greater weight of the evidence” shows — despite
this testimony — that Terasaka was not disabled. This argument fails to recognize the appropriate standard of
review. The Commission’s findings of
fact are conclusive upon appeal if supported by any competent evidence, even if
there is evidence to support a contrary finding. Morrison v. Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d
458, 463 (1981). Moreover, on appeal,
this Court may not re-weigh the evidence or assess credibility. Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998).
Since the Commission’s finding of fact regarding Terasaka’s
job search is supported by competent evidence and since that finding is
sufficient to support the conclusion that Terasaka met her burden of proving a
total incapacity to earn wages, I would uphold the Commission’s determination
that Terasaka is totally disabled. With
respect to defendants’ remaining arguments, I do not find them persuasive.
Defendants argue that the evidence is insufficient to
support the Commission’s determination that Terasaka suffered an occupational
disease. As our Supreme Court explained
in Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359
(1983), to be considered an occupational disease under N.C. Gen. Stat.
§97-53(13) (2003), a condition must be:
(1)
characteristic of persons engaged in the particular trade or occupation in
which the claimant is engaged; (2) 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 must be “a causal connection between the disease
and the [claimant’s] employment.”
308
N.C. at 93, 301 S.E.2d at 365 (quoting Hansel v. Sherman Textiles, 304
N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)); see also Booker v. Duke
Med. Ctr., 297 N.C. 458, 468, 475, 256 S.E.2d 189, 196, 200 (1979). The Court further held that the first two
elements “are satisfied if, as a matter of fact, the employment exposed the
worker to a greater risk of contracting the disease than the public
generally.” Id. at 93-94, 301
S.E.2d at 365. The causation
requirement “is satisfied if the employment ‘significantly contributed to, or
was a significant causal factor in, the disease’s development.’“ Hardin v. Motor Panels, Inc., 136
N.C. App. 351, 354, 524 S.E.2d 368, 371 (quoting Rutledge, 308 N.C. at
101, 301 S.E.2d at 369‑70), disc. review denied, 351 N.C. 473, 543
S.E.2d 488 (2000).
Defendants argue that the evidence is insufficient to permit
a finding either that Terasaka was at increased risk of suffering carpal tunnel
syndrome or that her work caused her carpal tunnel syndrome. Dr. Sweet, however, specifically testified
that a person who types four to six hours a day — as Terasaka testified she did
— is at a greater risk of developing carpal tunnel syndrome than the general
public. Dr. Baker similarly confirmed
that employees who do a lot of typing have an increased risk of carpal tunnel
syndrome, although he indicated that the number of hours of typing required to
trigger the syndrome varies from person to person. Further, after plaintiff’s counsel set out a hypothetical
question that extended over three pages of transcript and specified the
pertinent facts relating to Terasaka’s work and medical history, Dr. Sweet
expressed the opinion that Terasaka’s work was a “significant contributing
factor” to her carpal tunnel syndrome.
This testimony is sufficient to meet the requirements of Rutledge.
Defendants’ arguments regarding Dr. Sweet’s testimony relate
to questions of credibility and weight, issues that this Court may not
revisit. It is well-established that
the Commission is the “sole judge of the credibility of the witnesses, and of
the weight to be given to their testimony[;] . . . it may accept or reject the
testimony of a witness . . . in whole or in part . . . .” Anderson v. Northwestern Motor Co.,
233 N.C. 372, 376, 64 S.E.2d 265, 268 (1951).
Defendants point to portions of Dr. Sweet’s testimony that they contend
show speculation. As, however, Judge
Hudson stated in a dissenting opinion adopted by the Supreme Court in Alexander
v. Wal‑Mart Stores, Inc., 359 N.C. 403, 610 S.E.2d 374 (2005) (per
curiam), it is not “the role of this Court to comb through the testimony and
view it in the light most favorable to the defendant, when the Supreme Court
has clearly instructed us to do the opposite. Although by doing so, it is
possible to find a few excerpts that might be speculative, this Court’s role is
not to engage in such a weighing of the evidence.” Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563,
573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting).
Finally, defendants argue that Terasaka’s current symptoms
are unrelated to any occupational disease that she may have suffered. Again, to agree with defendants, this Court
would have to accept their dismissal of Dr. Sweet’s testimony. I do not believe that we have the authority
to do so. Accordingly, I would affirm
the decision of the Full Commission.