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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.
COA07-785
NORTH
CAROLINA COURT OF APPEALS
Filed: 15
April 2008
EMILIO
DAVIS,
Employee,
Plaintiff
v.
North Carolina Industrial Commission
I.C. File Nos. 376262 & 403017
CITY OF NEW
BERN,
Employer
SELF-INSURED
(CRAWFORD
&
COMPANY, Servicing
Agent),
Defendants
Appeal by
defendants from an opinion and award entered 2 February 2007 by the North
Carolina Industrial Commission.
Heard in the Court of Appeals 9 January 2008.
Edwards &
Ricci, P.A., by Brian M. Ricci, for plaintiff-appellee.
Teague,
Campbell, Dennis & Gorham, L.L.P., by John A. Tomei, for
defendant-appellants.
HUNTER,
Judge.
The City of
New Bern and Crawford & Company (collectively “defendants”) appeal an
opinion and award from the Full Industrial Commission (“the Commission”) which
granted Emilio Davis (“plaintiff”) workers’ compensation benefits. After careful consideration, we affirm
in part and reverse in part.
On 5 May
2003, plaintiff was employed by defendant Crawford & Company in a
Maintenance II position, which involved laying sewer and water pipes, making
taps, and installing water meters, as well as operating a vacuum truck. On that date, plaintiff slipped and
fell, head first, into a sewer pit, injuring his back and
shoulder.
After the
accident, Dr. Angelo Tellis treated plaintiff for a lumbosacral strain/sprain,
noting that plaintiff did not have significant radicular pain, and prescribed
anti-inflammatory and pain medications.
Dr. Tellis also restricted plaintiff to sedentary activity at that
time.
Dr. Tellis
continued his treatment of plaintiff during the summer of 2003 and ordered an
MRI of plaintiff after he told Dr. Tellis that he had been feeling pain in his
left thigh. The MRI revealed no
significant disk bulges or neural foraminal narrowing but did reveal
degenerative changes at L4-5. When
physical therapy and medications failed to resolve plaintiff’s symptoms, Dr.
Tellis performed bilateral SI joint injections on 12 August 2003, which provided
plaintiff with temporary relief, after which plaintiff was placed back into
physical therapy. On 22 September
2003, plaintiff complained to Dr. Tellis of pain in the right side of his lower
back and increased pain in his chest.
Dr. Tellis continued with the course of physical therapy and sedentary
work restrictions, but recommended the use of a cane to help plaintiff become
more mobile.
Upon request
of defendants, plaintiff was seen by Dr. Kasselt, an orthopedist. Dr. Kasselt noted that plaintiff
performed well on strength tests, used to determine mobility. Dr. Kasselt recommended that plaintiff
undergo a psychological evaluation, a functional capacity evalaution, and an MRI
of his hips to exclude the possibility of avascular necrosis, and that plaintiff
discontinue his use of anti-inflammatory and narcotic
medications.
Because
plaintiff’s condition was not improving, he sought chiropractic treatment at
this own expense from Dr. Gatlin for approximately two months. Plaintiff also went to his family
doctor, Dr. Farina, who ordered nerve tests. The tests showed mild left carpal tunnel
syndrome but no significant nerve compression. Due to the lack of nerve compression,
Dr. Farina did not recommend a referral to a neurosurgeon.
On 6 February
2004, plaintiff sustained a second compensable work injury. Plaintiff was working in a ditch with a
vacuum hose when he slipped, fell on his back, and struck his head. Plaintiff felt immediate back and head
pain and numbness in his legs.
Coworkers summoned an ambulance, which took him to the hospital. Dr. Kevin Geer examined him upon his
arrival at Craven Regional Medical Center.
Dr. Geer found no neurological damage but plaintiff was anxious and
hyperventilating. Dr. Geer took
plaintiff out of work for three days and restricted him to light duty
work.
On 8 February
2004, plaintiff returned to the emergency room with complaints of numbness on
the bottom of his feet. An MRI was
negative as to any disc herniation, spinal stenosis, or neuroforaminal
stenosis. Defendants admitted
liability under the Workers’ Compensation Act for this second injury pursuant to
a Form 60 and sent plaintiff to Dr. Virginia Ward for
treatment.
Dr. Ward
examined plaintiff on 10 February 2004.
She noted that plaintiff gave an extreme pain response when palpating his
back muscles. Dr. Ward stated that
it was difficult to examine plaintiff due to his over-reaction to touch and
movement. She kept plaintiff out of
work, prescribed medications, and ordered a functional capacity work hardening
program. Dr. Ward also ordered a
work-hardening program due to plaintiff’s poor physical
condition.
Defendants
ultimately offered plaintiff light duty work on 20 April 2004. Plaintiff engaged in office type work
but had problems staying awake due to his medications.
Plaintiff was
still complaining of pain and eventually sought treatment from Dr. Michael
Apostolou, a neurologist, at his own expense because defendants would not
authorize a referral to another doctor.
Dr. Apostolou prescribed various medications to plaintiff in an effort to
alleviate the pain. When plaintiff
did not respond to the medications, Dr. Apostolou performed an electrodiagnostic
test on 10 September 2004.
The
electrodiagnostic test did not reveal a clear indication as to the cause of
plaintiff’s symptoms. Instead,
there was some evidence of demyelinative damage of some peripheral nerves, which
was not likely to be traumatic in origin.
There was also an indication that plaintiff had no problem with his
lumbar and had good strength in his legs.
Plaintiff
continued to complain about worsening pain in September 2004. Dr. Apostolou was puzzled by this
development in light of the nerve test results. Dr. Apostolou also questioned the
relationship of the pain to the work related injury. After reviewing Dr. Apostolou’s note,
defendants advised plaintiff that light duty work would no longer be provided as
of 5 November 2004. Plaintiff
stopped working on 4 November 2004.
Defendants
present the following issues for this Court’s review: (1) whether the Commission committed
reversible error when it struck expert testimony upon a finding that the expert
had non-consensual, ex parte communication with defendants; and (2)
whether the evidence before the Commission was so speculative that the
Commission erred in awarding plaintiff workers’ compensation
benefits.
Our review of
an opinion and award of the 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). If supported by competent evidence, the
Commission’s findings are binding on appeal even when there exists evidence to
support findings to the contrary.
Allen v. Roberts Elec. Contr’rs, 143 N.C. App. 55, 60, 546 S.E.2d
133, 137 (2001).
The
Commission’s conclusions of law are reviewed de novo. Id. at 63, 546 S.E.2d at
139. Accordingly, “[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.” Ballenger v. ITT
Grinnell Industrial Piping, 320 N.C. 155, 158, 357 S.E.2d 683, 685
(1987).
I.
Defendants
first argue that the trial court erred in striking the opinions of Dr. Max R.
Kasselt.[1] We disagree.
The
Commission struck the opinions of Dr. Kasselt, one of plaintiff’s treating
physicians, upon a finding that Dr. Kasselt engaged in non-consensual, ex
parte communications with defendants’ adjuster. Defendants do not dispute the fact that
Dr. Kasselt had a conversation with the adjuster, during which he suggested that
surveillance be conducted on plaintiff to determine the validity of his
symptoms. The Commission thereafter
determined that Dr. Kasselt’s allegiances were with defendants and not
plaintiff.
Non-consensual,
ex parte communications between defendants and a plaintiff’s treating
physician are prohibited. Salaam
v. N.C. Dept. of Transportation, 122 N.C. App. 83, 87, 468 S.E.2d 536,
538-39 (1996). The proper remedy
for such ex parte communication is to strike the treating physician’s
deposition testimony. Evans v.
Young-Hinkle Corp., 123 N.C. App. 693, 696, 474 S.E.2d 152, 153-54
(1996). Accordingly, when the
commission found that Dr. Kasselt engaged in non-consensual, ex parte
communications with defendants, it properly struck the testimony. However, this Court is not bound by this
finding unless it is supported by competent evidence.
Defendants
contend that Dr. Kasselt made “recommendations, with no communication or other
suggestion by defendants.” They
thus argue that the rule announced in Salaam should not apply as
defendants did not solicit the information from plaintiff’s treating
physician. Although the evidence
presented before the Commission could support such a finding, there is also
evidence suggesting that defendants contacted Dr. Kasselt. Specifically, there is evidence that
defendants contacted Dr. Kasselt regarding whether plaintiff would need a
cane. There was also evidence,
based on Dr. Kasselt’s own notes, that he and one of defendants’ employees
“discussed the situation[.]” The
obvious implication of this statement is that it was a two-way conversation, not
one in which defendants were merely listening. Additionally, all of Dr. Kasselt’s
records were copied directly to defendants without plaintiff’s consent. Under such circumstances, we cannot say
that the commission erred in concluding that defendants engaged in ex
parte communications with Dr. Kasselt.
Because
competent evidence supports the Commission’s findings of fact that defendants’
non-consensual, ex parte communications required Dr. Kasselt’s testimony
to be stricken from the record, the Commission did not err in striking the
testimony. Defendants’ assignments
of error as to this issue are therefore overruled.
II.
Defendants
next argue that the Commission erred in awarding plaintiff workers’ compensation
after 4 November 2004 because the medical evidence was too speculative to
establish medical causation and disability. We agree.
In reviewing
findings of fact made by the Commission, we review those findings to determine
whether they are supported by competent evidence. Edmonds v. Fresenius Med. Care, 165
N.C. App. 811, 817, 600 S.E.2d 501, 505-06 (2004) (Steelman, J., dissenting),
reversed per curiam for reasons stated in dissent, 359 N.C. 313, 608
S.E.2d 755 (2005). If supported by
competent evidence, then they are binding on appeal, even though there was
evidence to support contrary findings.
Id. (citing McRae v. Toastmaster, Inc., 358 N.C. 488, 597
S.E.2d 695 (2004)). This Court will
not “sift through the evidence and find facts that are different from those
actually found by the Commission.”
Id.
“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.’” Cannon v. Goodyear Tire & Rubber
Co., 171 N.C. App. 254, 264, 614 S.E.2d 440, 446-47 (2005) (quoting Young
v. Hickory Bus. Furn., 353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000); citing
Edmonds, 165 N.C. App. at 818, 608 S.E.2d at 506). Instead, expert testimony can serve as
competent evidence as to causation where the testimony “establishes that a
work-related injury ‘likely’ caused further injury[.]” Id. at 264, 614 S.E.2d at 447
(emphasis added).
Plaintiff
concedes that his evidence consists of “could or might” expert testimony
regarding the cause of plaintiff’s injury.
Plaintiff, however, argues that there is no evidence indicating that the
testimony was guess work or mere speculation under Edmonds. Simply put, a plaintiff may not rely on
“could” or “might” expert testimony to establish causation where there is some
evidence that the testimony was speculative.[2] We find evidence of speculation in the
record and therefore reverse the Commission as to this
issue.
Specifically,
Dr. Ward testified that plaintiff’s symptoms created a “very puzzling
picture.” Dr. Ward also noted that
plaintiff’s symptoms were even more unusual, given the rather “minor trauma”
that he suffered. Dr. Apostolou
testified that it was “possible” that plaintiff’s symptoms were the product of a
traumatic injury but also presented evidence that the symptoms were consistent
with a chronic process. Dr. Voos’s
testimony is also speculative as he only testified that plaintiff’s injury
“could” or “might” be work related.
Dr. Tellis also stated that plaintiff’s back and leg pain were of
“uncertain etiology”; a statement with which Dr. Voos
agreed.
Dr. Gridley,
a psychologist, concluded that plaintiff was suffering from a conversion
disorder, somatic complaints, and neurologic symptomatology, not the result of a
traumatic workplace injury. Dr.
Gridley believed that plaintiff could return to work without restrictions, with
the possible exception of needing supervision. He also testified that plaintiff could
be malingering, particularly if there was no response to further treatment. Another psychiatrist, Dr. Hoeper,
diagnosed plaintiff with conversion disorder and a probable lumbosacral muscle
strain. He also testified that
plaintiff needed to return to work.
After hearing
all the evidence, the Commission made the following findings of fact that are
relevant to this issue:
17. Plaintiff began complaining of worse pain in September 2004 without having had further injury or doing significant work activity. Dr. Apostolou was puzzled by this development, particularly in view of the conflicting nerve test results, and he questioned its relationship to the injury at work. Defendant-employer had given plaintiff a light duty job marking where water and sewer lines were located. However, after reviewing Dr. Apostolou’s office note, defendant stopped authorizing further medical treatment and advised plaintiff that light duty work would no longer be provided as of November 5, 2004. Consequently, plaintiff stopped working on November 4, 2004. He remained out of work until January 17, 2005[,] when he began driving a truck on a part-time basis for a trucking company. He drove a dump truck for several months, but the bouncing motion of the truck caused him to experience increasing back pain. By April 2005 he was having considerable difficulty getting out of the truck and he stopped working after April 22, 2005.
18. Except for an emergency room visit on October
16, 2004, in which the emergency room physician recommended a pain management
consultation, plaintiff did not receive further known medical care until July
20, 2005[,] when he went back to Dr. Tellis, whom he had not seen since November
2003. Dr. Tellis reviewed his
history of subsequent injury and treatment. Dr. Tellis was unable to specifically
identify the etiology of Plaintiff’s back and leg pain, but thought it might be
due to sacroiliitis. Dr. Tellis
performed a left sacroiliac joint injection on August 3, 2005. There was no indication that he ever saw
plaintiff again in follow-up.
. .
.
20. Plaintiff then received sponsorship from the
North Carolina Division of Vocational Rehabilitation Services and was able to
receive further medical treatment.
The physician’s assistant for Dr. Voos evaluated him on September 2,
2005. The examination revealed
abnormal neurological findings, so the physician’s assistant ordered cervical
and lumbar myelograms in order to rule out any impingement on the spinal cord
and any nerve root compression. At
plaintiff’s follow-up visit, Dr. Voos examined him and reviewed the myelogram,
as well as the MRI performed in August 2005. There was no evidence of cord
impingement in the cervical spine and no evidence of nerve impingement in the
lumboscacral spine, except for the Tarlov cyst. The disk at L4-5 was bulging somewhat
and Dr. Voos thought that it might be degenerative. Dr. Voos was of the opinion that a
discogram would be necessary in order to verify his impressions and, until
plaintiff’s symptoms became intolerable, he did not believe a discogram would be
warranted. Consequently, he ordered
therapy, including aquatherapy.
In summation,
there was no expert testimony that the work-related injury “likely” caused
plaintiff’s symptoms. Moreover, as
noted above, there is ample evidence that the doctors treating plaintiff were
uncertain as to the issue of causation.[3] 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.
The opinion and award of the Commission is therefore not supported by
competent evidence and is reversed.
In light of this holding, we need not reach defendants’ final
argument.
III.
In
conclusion, we affirm the Commission’s ruling to strike the testimony of one of
plaintiff’s treating physicians as he engaged in non-consensual, ex parte
communications with defendants. We
reverse the Commission’s finding regarding the cause of plaintiff’s injury as it
was not supported by competent evidence.
Affirmed in
part; reversed in part.
Judges
CALABRIA and STROUD concur.
[1] Although the Commission
struck Dr. Kasselt’s opinions, his medical records noting plaintiff’s complaints
and his course of treatment were allowed and were summarized in the Commission’s
opinion and award.
[2] We note that plaintiff
relies on Jarrett v. McCreary Modern, Inc., 167 N.C. App. 234, 241, 605
S.E.2d 197, 202 (2004), which was
decided before Edmonds and Cannon, the cases relied on by
defendants that were neither acknowledged nor distinguished in plaintiff’s
brief.
[3] By way of comparison,
plaintiff’s own expert in this case, Dr. Voos, has testified in a different,
unrelated case that a plaintiff’s medical problems were “likely” caused by a
workplace injury. Avery v.
Phelps Chevrolet, 176 N.C. App. 347, 354-55, 626 S.E.2d. 690, 695
(2006). In that case, this Court
affirmed the opinion and award of the Full Commission as Dr. Voos’s testimony,
although contradicted by several other experts, was competent evidence to
support the award of workers’ compensation. In the instant case, there is no medical
evidence of plaintiff’s medical issues as being “likely” caused by a workplace
injury. Id. at 355, 626
S.E.2d at 695.