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NO. COA06-192
NORTH CAROLINA COURT OF APPEALS
Filed: 5 December 2006
PATRICK O. SEAY,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 325597
WAL-MART STORES, INC.,
and
AMERICAN HOME ASSURANCE,
Defendants
Appeal by plaintiff from judgment entered 1 September 2005
by the North Carolina Industrial Commission.
Heard in the Court of Appeals 30 October 2006.
Whitley,
Rodgman & Whitley, by Robert E. Whitley, Jr., for plaintiff-appellant.
Young,
Moore & Henderson, P.A., by Jennifer T. Gottsegen, for
defendants-appellees.
MARTIN, Chief Judge.
Plaintiff appeals from an opinion and award of the
Industrial Commission denying his claim for compensation under the North
Carolina Workers’ Compensation Act. The
record reflects that plaintiff filed an Industrial Commission Form 18, dated 25
April 2003, alleging that he injured his middle back stacking gas grills in
storage trailers behind the defendant-employer’s store in Goldsboro. Plaintiff alleged that the injury occurred
on 4 April 2003. The case was heard
before a deputy commissioner on 12 January 2004. Plaintiff was awarded compensation for temporary total disability
benefits for the period he was out of work.
Defendants appealed to the Full Commission. The Commission found that plaintiff had failed to provide
sufficient information to determine medical causation by a preponderance of the
evidence. Plaintiff appealed to this
Court. We affirm.
At the outset, we note that plaintiff has failed to comply
with the North Carolina Rules of Appellate Procedure in several respects. N.C. R. App. P. 10(c)(1)(2006) requires that
each assignment of error be made “with clear and specific record or transcript
references.” Plaintiff’s only
assignment of error, however, lacks references to the record or
transcript. Further, N.C. R. App. P.
28(b)(6), governing the required content of an appellant’s brief, states that
“[i]mmediately following each question shall be a reference to the assignments
of error pertinent to the question, identified by their numbers and by the
pages at which they appear in the printed record on appeal.” In his brief, plaintiff does not make any
references to his sole assignment of error nor does he include the numbers and
pages by which it appears in the record.
Appellant’s brief also failed to include a statement of the questions presented
for review, a concise statement of the procedural history of the case or a
statement of the grounds for appellate review.
See N.C. R. App. P. 28(b)(2)-(4).
Plaintiff’s rule violations, while serious, are not so
egregious as to warrant dismissal of the appeal. See Coley v. State, 173 N.C. App. 481, 483, 620
S.E.2d 25, 27 (2005). Reaching the
merits of this case does not create an appeal for an appellant or cause this
Court to examine issues not raised by the appellant. Id. (citing Viar v. N.C. Dep’t of Transp., 359 N.C.
400, 402, 610 S.E.2d 360, 361 (2005)).
Defendants were given sufficient notice of the issue on appeal as
evidenced by the filing of their brief thoroughly responding to plaintiff’s
argument. Youse v. Duke Energy Corp.,
171 N.C. App. 187, 192, 614 S.E.2d 396, 400 (2005). As a result, we elect to review the merits of plaintiff’s appeal
pursuant to N.C. R. App. P. 2. See
Id.
“The standard of review for an appeal from an opinion and
award of the Industrial Commission is limited to a determination of (1) whether
the Commission’s findings of fact are supported by any competent evidence in
the record; and (2) whether the Commission’s findings justify its conclusions
of law.” Goff v. Foster Forbes Glass
Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). This Court may not weigh the evidence or
make determinations regarding the credibility of the witnesses. Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998).
Findings of fact not specifically assigned as error are
“deemed supported by competent evidence and are binding on appeal.” Drewry v. N.C. Dep’t. of Transp., 168
N.C. App. 332, 333, 607 S.E.2d 342, 344 n.2 (2005) (citing Watson v.
Employment Sec. Comm’n, 111 N.C. App. 410, 412, 432 S.E.2d 399, 400
(1993)). In the present case, plaintiff
did not assign error to any of the Commission’s findings of fact and those
findings are therefore binding before this Court.
The Commission made the following findings: At the time of
the alleged incident, plaintiff was forty years old and worked for defendant-employer
as a member of inventory control. On 4
April 2003, plaintiff was lifting grills ranging in weight from twenty-five to
two hundred and twenty-five pounds.
While lifting, plaintiff felt a “twinge” and notified his supervisor
that he thought he pulled something in his back. After a short break, plaintiff continued working for an
additional two hours. On 5 April 2003,
plaintiff arrived at work and told an assistant store manager that his back
hurt. He was sent home. On 6 April 2003, plaintiff’s father took him
to the emergency room for treatment.
The triage note reported that plaintiff indicated the onset of his pain
was 5-6 weeks prior. Plaintiff did not
mention that the injury might have been work related. The treating physician described plaintiff’s condition as lower
back pain occurring over the past 4-6 weeks and becoming worse over the last
two days. Plaintiff was diagnosed with
a lumbar sprain and was prescribed medication.
While filling his prescriptions at defendant-employer’s store in
Kinston, plaintiff informed the pharmacy manager that he hurt his back while
working at the Goldsboro store. The
pharmacy manager called the Goldsboro store and plaintiff informed one of his
store managers.
Plaintiff returned to the hospital the following day with
continuing pain and was given an MRI during the early hours of 8 April
2003. The MRI results led to a
diagnosis of a herniated disk at T8-T9 and a significant protrusion at T10-T11. The hospital referred plaintiff to
neurosurgeon Dr. Larry S. Davidson.
Plaintiff was discharged with instructions to follow up with Dr.
Davidson in one week. On 9 April 2003,
plaintiff went into work to complete a leave of absence and workers’
compensation form. On 17 April 2003,
Dr. Davidson performed a two level discectomy on plaintiff. Plaintiff was out of work from 5 April 2003
until 18 August 2003.
The Pitt Memorial Hospital medical records from 6, 7 and 8
of April 2006 were inconsistent as to plaintiff’s history of back pain. The 6 April 2006 records “report a snap in
the back with pain onset five to six weeks earlier, which had worsened.” The 7 April 2003 records report an onset of
low back pain five days earlier, reiterates the history of a snap in the back
and pain from six weeks prior and reports numbness and tingling in both legs.
Plaintiff’s injury history included an incident in 1980
when plaintiff fell in a barn and
suffered a compression fracture of his lower spine and an injured coccyx. Within the past ten years of the claim at
issue, plaintiff had a previous workers’ compensation claim at a different
employer after slipping on spilled liquid bleach and injuring his rotator
cuff. In addition, he was in a car
accident. Plaintiff’s prior existing
conditions included an abscess between the layers of muscle in the rectum and
infection of sweat glands in the groin area.
Plaintiff testified that the injuries from his past were resolved prior
to the injury in question.
Having found the Commission’s findings binding on appeal,
our ultimate concern is whether those findings justify the Commission’s
conclusion of law. The Commission
concluded that “[p]laintiff has failed to prove by the greater weight of the
evidence that his disability is causally related to an injury arising out of
and in the course of his employment as a direct result of a specific traumatic
incident of the work assigned.” The
plaintiff must prove that a particular accident was a causal factor of a
particular injury by a preponderance of the evidence. Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750,
752 (2003). “If there is no evidence of
a causal relationship between the incident and the injury, the claim must be
denied.” Lettley v. Trash Removal
Service, 91 N.C. App. 625, 628, 372 S.E.2d 747, 749 (1988).
“In cases involving ‘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.’” Holley, 357 N.C. at 232, 581 S.E.2d at
753 (quoting Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167,
265 S.E.2d 389, 391 (1980)). The
present case involved ruptured disks and protrusions complicated enough to
require that causation be established through expert opinion. See Gillikin v. Burbage, 263 N.C.
317, 325, 139 S.E.2d 753, 760 (1965)(finding expert testimony essential to form
an intelligent opinion on “[t]he physical processes which produce a ruptured
disc.”).
“In order to be sufficient to support a finding that a
stated cause produced a stated result, evidence on causation must indicate a
reasonable scientific probability that the stated cause produced the stated
result.” Johnson v. Piggly Wiggly of
Pinetops, Inc., 156 N.C. App. 42, 49, 575 S.E.2d 797, 802 (2003) (quoting Phillips
v. U.S. Air, Inc., 120 N.C. App. 538, 542, 463 S.E.2d 259, 262
(1995), aff’d, 343 N.C. 302, 469 S.E.2d 552 (1996)). Expert testimony as to the possible cause of
a medical condition is admissible if helpful but “is insufficient to prove
causation, particularly ‘when there is additional evidence or testimony showing
the expert’s opinion to be a guess or mere speculation.’” Holley, 357 N.C. at 233, 581 S.E.2d
at 753 (quoting Young v. Hickory Bus. Furn., 353 N.C. 227, 233,
538 S.E.2d 912, 916 (2000)).
Ultimately, expert opinion testimony based on speculation and conjecture
lacks the reliability to qualify as competent evidence on issues of medical
causation. Young, 353 N.C. at
230, 538 S.E.2d at 915.
Plaintiff relied exclusively on the deposition testimony of
his expert witness, Dr. Davidson, to establish causation. Plaintiff argues that Dr. Davidson’s
response to a hypothetical question adequately established proof of
causation. After asking Dr. Davidson to
assume that certain facts related to the case were true, plaintiff’s attorney
asked “do you have an opinion, satisfactory to yourself and to a reasonable
degree of medical certainty, whether the work event occurring on April 4 of
2003, specifically lifting the grill, probably caused the injuries which you
treated and which ultimately led to surgery?”
Dr. Davidson responded, “[a]ssuming that everything you have just
mentioned is indeed true, it would be my medical assumption that his on-the-job
injury of 04/04/03 should be implicated as the culprit of his thoracic disk
herniation and his secondary symptoms thereafter.” Within the findings of fact, to which plaintiff did not assign
error, the Commission indicated that it was “unclear from the evidence whether
Dr. Davidson used ‘medical assumption’ as a synonym or substitute for ‘medical
opinion’ and ‘culprit’ as a synonym for ‘cause.’” Dr. Davidson did not go on to clarify his testimony nor did
plaintiff’s counsel seek a clarification.
The Commission concluded that Dr. Davidson’s testimony was “too
speculative to meet plaintiff’s burden of proof on causation.”
The Commission’s findings justify its conclusion. Dr. Davidson based his opinion on a “medical
assumption” that the 4 April 2003 work-related incident “should be implicated
as the culprit” of the disk ruptures.
The particular language used leaves the issue of causation in the “realm
of conjecture and remote possibility.” Holley,
357 N.C. at 232, 581 S.E.2d at 753. Dr.
Davidson never connected the injury to the incident on 4 April 2003 as a
reasonable scientific probability. The
degree of a doctor’s certainty goes to the weight of the testimony and the
weight given expert evidence is a duty for the Commission and not this
Court. Adams v. Metals USA, 168
N.C. App. 469, 483, 608 S.E.2d 357, 365 (2005).
In addition, the response elicited by plaintiff’s
hypothetical question required Dr. Davidson to assume the truth of facts that
were not supported by the record. An
expert’s opinion that was solicited through the assumption of facts unsupported
by the record is entirely based on conjecture.
Thacker v. City of Winston-Salem, 125 N.C. App. 671, 675, 482
S.E.2d 20, 23 (1997). Specifically,
Dr. Davidson was asked to assume that “prior to 04/04/2003 [plaintiff] had no
complaints of pain radiating into his legs, and the only medical history
relating to any back pain was in a chiropractic treatment record dated 12/18 of
2000 where he was complaining of occasional soreness in his lower back.” The Commission, however, found the
plaintiff’s medical records were filled with inconsistencies, including
conflicting evidence on the onset of plaintiff’s pain.
Medical records from Pitt Memorial Hospital report an onset
date as far back as six weeks prior to the date of the alleged work
injury. On 6 April 2003, plaintiff’s
medical records indicated that plaintiff complained of lower back pain for the
past four to six weeks, beginning when he stood and “felt a pop in his lower
back.” A record from 7 April 2003
described the onset of plaintiff’s lower back pain as occurring when “he stood up
about six weeks ago and felt something pop in his lower back and has not been
right since.” Dr. Davidson’s records
from that day reported a five day history of pain. None of these potential scenarios were consistent with the work
incident on 4 April 2003. Dr. Davidson
expressed that his answer to plaintiff’s hypothetical was made without an
awareness of the conflicting evidence on the onset of plaintiff’s pain:
Some of the
information that has been presented to me – specifically, previous emergency room
records that I had not reviewed – specifically, the history of onset of these
symptoms – to some extent appear contradictory, perhaps, to some of the
assumptions that we made earlier on in this deposition regarding no onset of
symptoms prior to the date of the injury of 04/04/03.
Plaintiff’s
hypothetical question assumed facts not supported by the record and, as a
result, reduced Dr. Davidson’s response to conjecture.
The
inconsistencies found within plaintiff’s medical records functioned as
additional evidence showing Dr. Davidson’s opinion to be a guess or mere
speculation. See Holley,
357 N.C. at 233, 581 S.E.2d at 753. In
addition to the above inconsistencies, a nurse’s note from 6 April 2003
indicated that plaintiff denied any recent trauma to his back. Overall, the work incident on 4 April 2003
was notably absent from the Pitt Memorial medical records. The 4 April 2003 incident was not referenced
until plaintiff’s surgical records on 17 April 2003. When considered alongside this additional evidence, Dr.
Davidson’s opinion on causation was a forecast of a possibility, rooted in
conjecture and insufficient to establish causation.
In an additional effort to support a showing of causation,
plaintiff refers to an exchange in deposition where Dr. Davidson assumed that a
patient suffering from a significant herniation occurring five or six weeks
prior “would have presented to medical attention at an earlier date.” This exchange, while possibly attacking the
credibility of an earlier onset of pain, does nothing to show causation
stemming from the 4 April 2003 incident.
Plaintiff also argues that the trial court failed to view
the evidence in a light most favorable to the plaintiff and failed to grant
plaintiff every reasonable inference in reaching its decision. See Deese v. Champion Int’l Corp.,
352 N.C. 109, 115, 530 S.E.2d 549, 553 (2000).
We do not reach the merits of this argument because there is no
corresponding assignment of error in the record on appeal. See N.C. R. App. P. 10(a) (“[T]he scope
of review on appeal is confined to a consideration of those assignments of
error set out in the record on appeal[.]”); see also Bustle v. Rice, 116
N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994) (declining to address issues
raised in brief that did not correspond to an assignment of error).
We hold that the Commission’s findings justify its
conclusion that the testimony of Dr. Davidson was insufficient as medical
evidence of causation. Accordingly, we
affirm the decision of the North Carolina Industrial Commission.
Affirmed.
Judges TYSON and CALABRIA concur.