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IN THE SUPREME
COURT OF NORTH CAROLINA
No. 456A06
FILED: 25 JANUARY 2008
WILLIAM DAVIS, Employee
v.
HARRAH’S CHEROKEE CASINO, Employer,
LEGION INSURANCE COMPANY (Now assigned to
the NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION), Carrier
Appeal pursuant to N.C.G.S. §7A-30(2) from the decision of a divided panel of the Court of Appeals, 178 N.C. App. 605, 632 S.E.2d 576 (2006), affirming an opinion and award filed on 20 June 2005 by the North Carolina Industrial Commission. On 5 October 2006, the Supreme Court allowed defendants’ petition for discretionary review of additional issues. Heard in the Supreme Court 15 February 2007.
Law
Offices of Lee and Smith, P.A., by D. Andrew Turman, for plaintiff-appellee.
Hedrick
Eatman Gardner & Kincheloe, L.L.P., by Allen C. Smith, Andrew S. Culicerto, and Margaret M. Kingston, for defendant-appellants.
Sumwalt Law Firm, by Vernon Sumwalt, for the North Carolina Academy of Trial Lawyers, amicus curiae.
HUDSON, Justice.
Defendant employer challenges the Industrial Commission’s
determination that plaintiff’s ongoing disability and medical treatment were
the result of a compensable injury. We
hold that the Commission properly found and concluded that plaintiff’s ongoing
disability and medical treatment were related to and resulted from his
compensable injury. We affirm the
award.
In May 2001 plaintiff injured his back while removing a
monitor from a slot machine at work.
Initially, he sought treatment from his chiropractor, Dr. Guy Karcher,
who referred plaintiff to a neurosurgeon, Jon M. Silver, M.D., in August of
that year. On 7 September 2001, Dr.
Silver performed a microlumbar discectomy.
Although plaintiff returned to work in October 2001 because he was
afraid of being fired if he did not, he continued to have back and leg
pain. In early November 2001, plaintiff
called Dr. Silver due to ongoing symptoms of pain, which were similar to those
he had experienced before the surgery.
Dr. Silver ordered an MRI, which was performed on 20 December 2001, and
which showed scar tissue and degenerative changes. At a follow-up visit late in December 2001, plaintiff reported
that he had felt significant pain in his back and legs since he fell at home in
late November. Dr. Silver ordered more
tests including a CAT scan performed on 2 April 2002, which revealed degenerative
and “postoperative changes,” and he performed another surgery later that
month. Plaintiff was unable to return
to work after the second surgery.
Eventually, Harrah’s fired plaintiff for not returning to
work. Defendants denied plaintiff’s
workers’ compensation claim for medical treatment and ongoing disability in
their Form 19 (report of employee’s injury or occupational disease), by Form 61
(“Denial of Workers’ Compensation Claim”), in their Form 33R (response to request
for hearing), and in multiple assignments of error in the record on
appeal. However, although defendants
have brought forward assignments of error challenging the entire award to
plaintiff, as they did not bring forward to the Court of Appeals any challenges
to the compensability of the original work-related injury, those challenges are
abandoned. Defendants contended that
plaintiff’s fall at home broke the chain of causation related to the original
injury. The Commission found and
concluded otherwise.
The Commission found as fact, inter alia, that as a
result of plaintiff’s original injury, he had “more of a propensity to develop
degenerative changes at that level over time” and that he would have more
difficulty recovering from any further injury. The Commission also found that any further injury would be “likely
to result in worse symptoms” than if plaintiff had not had the surgery required
by the previous work-related injury and that as of the date of the hearing,
plaintiff remained totally disabled due to severe back pain radiating down his
legs. Thus, the Commission concluded
that plaintiff’s ongoing pain and disability, as well as the April 2002 surgery
and follow-up treatment, were related to his compensable injury and awarded
benefits accordingly. The Court of
Appeals affirmed the award in a divided opinion.
The majority in the Court of Appeals upheld all but one of
the Commission’s factual findings, all of its conclusions of law, and its
award, based on the overall determination that plaintiff’s current medical
condition and disability resulted from his injury at work. Davis, 178 N.C. App. at 609-616, 632
S.E.2d at 579-583. The majority also
held that plaintiff’s fall at home in November 2001 did not amount to an
intervening event that broke the chain of causation from the original
injury. Id. at 610, 632 S.E.2d
at 580. The dissenter would have held
that the critical findings of fact in favor of plaintiff were not supported by
the medical evidence, and would have reversed the Commission. Id. at 616, 632 S.E.2d at 583. Defendants filed a notice of appeal on the
basis of the dissenting opinion in the Court of Appeals, and we granted
defendants’ petition for discretionary review of additional issues.
In their New Brief, defendants identify sections “I.-B” and “II”
as being before this Court based upon the dissenting opinion in the Court of
Appeals. Defendants frame these issues
as follows:
I.B. THE COURT OF
APPEALS ERRED IN RELYING UPON HORNE [Horne v. Universal Leaf Tobacco
Processors, 119 N.C. App. 682, 459 S.E.2d 797, disc. rev. denied,
342 N.C. 192, 463 S.E.2d 237 (1995)], AS THERE WAS NO COMPETENT EVIDENCE IN THE
INSTANT CASE THAT THE INJURY FOLLOWING THE SLIP AND FALL WAS CAUSALLY RELATED TO
THE COMPENSABLE INJURY OF MAY 2001.
II. THE COURT
OF APPEALS ERRED IN AFFIRMING THE FULL COMMISSION’S OPINION AND AWARD WHICH
CONCLUDED THAT PLAINTIFF-APPELLEE’S SURGERY IN APRIL OF 2002 WAS CAUSALLY
RELATED TO THE COMPENSABLE INJURY OF MAY 2001 WHERE NO MEDICAL EVIDENCE
ESTABLISHED THE SLIP AND FALL INJURY PRECEDING THE SURGERY WAS AN AGGRAVATION
OF THE COMPENSABLE INJURY.
In both of these sections of the brief defendants argue, in essence, that the evidence is insufficient to support the findings underpinning the award in favor of plaintiff, particularly the findings connecting plaintiff’s second surgery and ongoing symptoms to the original compensable injury. Although defendants discuss at some length testimony that would have supported different findings, they do not argue that any particular findings of the Commission were unsupported by the evidence. In both arguments I and II, defendants bring forward assignments of error to findings 4 (in part) and 14, 15, and 18. For purposes of our analysis, we consider the evidence in support of findings 14 and 15, which appear to be the primary focus of defendants’ arguments here, as in the Court of Appeals. In pertinent part, these findings state:
14. While Dr. Silver opined at his deposition that the second surgery was primarily to correct degenerative changes, he did indicate that changes seen on the MRI relating to scarring and fibrosis around the nerve were related to plaintiff’s first surgery. . . .[long quotation from surgical note omitted]
It is clear from this description that in addition to the
degenerative changes to plaintiff’s ligamentous flavum, the second surgery involved
removal of scar tissue from the first surgery.
15. As has
already been found as fact [in finding 13] above, plaintiff’s first surgery
would have made him more prone to develop degenerative changes, specifically
ligamentous changes. The ligamentum flavum
Dr. Silvers [sic] removed is a primary spinal ligament, and was identified,
along with the scarring, as a primary cause of the stenosis seen on the April
1, 2002, MRI.
The Workers’ Compensation Act provides that the Industrial
Commission is the sole judge of the credibility of the witnesses and the weight
of the evidence. N.C.G.S. §97-84,-85,-86
(2005); Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413
(1998) (citing Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34,
144 S.E. 2d 272, 274 (1965)). We have
repeatedly held that the Commission’s findings of fact “are conclusive on
appeal when supported by competent evidence, even though there be evidence that
would support findings to the contrary.”
E.g. Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632,
633 (1965) (per curiam). Further, “[t]he
evidence tending to support plaintiff’s claim is to be viewed in the light most
favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable
inference to be drawn from the evidence.”
Adams, 349 N.C. at 681, 509 S.E.2d at 414 (citation omitted); accord
Deese v. Champion Int’l Corp., 352 N.C. 109, 115, 530 S.E.2d 549,
553 (2000). Appellate review of an
opinion and award from the Industrial Commission is generally limited to
determining “(1) whether the findings of fact are supported by competent
evidence, and (2) whether the conclusions of law are justified by the findings
of fact.” Clark v. Wal-Mart, 360
N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (citing Hendrix v. Linn-Corriher
Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986)).
After careful review, we conclude that the evidence fully
supports these findings of fact.
Referring to finding of fact 14, the surgical note quoted within the
finding itself supports the final sentence, which determines that plaintiff’s
second surgery involved removal of scar tissue from the first surgery. The Court of Appeals noted that the finding
contains extensive “recitations of Dr. Silver’s testimony and written surgery
notes,” but that in light of the last sentence, the finding is “adequate.” Davis, 178 N.C. App. at 612, 632
S.E.2d at 580. We agree with this
analysis.
In finding 15, the Commission determined that plaintiff’s
first surgery made him more prone to develop degenerative changes, which in
turn were a “primary cause” of the second surgery. The Court of Appeals first noted that finding 15 refers back to
and relies upon finding 13, which was not challenged on appeal. Id. at 612, 632 S.E.2d at 581. The court then held that finding 15 was not
supported by the evidence, to the extent it found that the plaintiff
specifically (as opposed to “someone” in general) was more prone to develop
degenerative changes. Id. This part of the court’s analysis includes a
misapplication of the standard of review on appeal, which we must address.
In his deposition, Dr. Silver testified that he saw
plaintiff on 29 October 2001, for a regularly scheduled six-week followup visit
after his discectomy. Dr. Silver
allowed plaintiff to return to work so he would not lose his job, but advised
him to avoid heavy lifting to the extent possible. Dr. Silver also explained that plaintiff called him on 7 November
2001, before his reported slip and fall at home, to report that he was
experiencing pain “similar to that before surgery.” In response to a question from plaintiff’s counsel about whether “the
first procedure that you performed, the discectomy” would “make someone more
susceptible to injury from a fall,” Dr. Silver responded in part:
I think it would make people more -- I think it does two
things.
First, in someone that has what might otherwise be a relatively minor injury . . . having scar tissue in there . . . I think makes it more difficult for them to get over a strain type injury.
. . . .
The other thing it does is, by taking down part of the joint
and by disrupting ligaments, there is also more of a propensity to develop
degenerative changes at that level over time just as any injury to the
joint space would be; a football injury or fall. So over time I think they are more prone to develop
degenerative changes.
The long answer to your question is, yeah, I think there are
two ways and the answer is yes.
(Emphasis added.)
Dr. Silver’s entire answer to this question specifically
asking about the discectomy he performed on plaintiff was incorporated into
finding of fact 13, which has not been challenged on appeal, and is thus
binding. Later in his deposition, Dr.
Silver answered the specific question, “Does Mr. Davis have a greater
likelihood of continued degenerative changes . . . ?”, by saying in part that
plaintiff is “certainly . . . more prone to further and more rapid advanced
degenerative changes.” The Court of
Appeals erred in its statement that “there is no evidence in the record to
support the Commission’s more specific finding as to plaintiff’s propensity to
develop degenerative changes.” Id.
at 612, 632 S.E.2d at 581. Because the
evidence above unequivocally shows otherwise, we explicitly disavow this
statement and hold that finding 15 is supported by the evidence when the
standard of review is properly applied.
Taking the evidence in the light most favorable to
plaintiff, as the decisions of this Court require, the Commission made the
findings and reached the conclusions above.
The evidence recited above, as well as the portion of Dr. Silver’s
testimony and records quoted in finding 14 itself, supports findings 14 and
15. In those findings, the Commission
determined that the second surgery was necessitated by degenerative changes and
scar tissue resulting from the original injury and first surgery.
Because the findings of fact, including numbers 4, 14, 15
and 18, are thus conclusive, we turn to the arguments defendants have brought
forward directed at the related conclusions of law. The critical conclusions of law are numbers 1, 3, 4 and 6, which
read as follows:
1. On or about
May 26, 2001, plaintiff sustained a specific traumatic incident, arising out of
and in the course of his employment with Harrah’s Cherokee Casino. As a consequence, he injured his lower back,
sustaining a herniated disc. N.C. Gen.
Stat. §97-2(6).
. . . .
3. As a
consequence of his back injury, plaintiff required medical treatment, including
the surgery performed by Dr. Silver on September 7, 2001, and the second
surgery, performed on April 22, 2002.
Defendants are responsible for payment of all such reasonably necessary
medical treatment incurred by plaintiff for the lower back injury, including
said surgeries, and follow-up to those surgeries. N.C. Gen. Stat. §§97-2(19) and 97-25.
4. As a consequence of his back injury, plaintiff was unable to earn wages in any employment and was temporarily totally disabled from June 26, 2001, through October 31, 2001, and from December 27, 2001, and continuing until plaintiff is able to earn the same or greater wages as he was earning when first injured. Defendants are responsible for payment to plaintiff of wage loss compensation at the rate of $283.09 per week during this period. N.C. Gen. Stat. §97-29.
. . . .
6. Also at
issue is whether the fall that plaintiff suffered outside his home in late
November or early December 2001 was an intervening causal event sufficient to
bar plaintiff from further compensation.
For this to be the case, any injury resulting from his fall would have
to be entirely independent of the compensable injury. . . . The slip and fall on ice aggravated the
earlier injury and the pain and medical consequences were a natural progression
of the earlier injury.
As noted above, conclusion 1 has not been challenged on
appeal, but 3, 4 and 6 have been assigned as error. In argument II, defendants contend that the findings above, based
on Dr. Silver’s testimony, do not support conclusions of law that the second
surgery (conclusion 3) and plaintiff’s resulting disability (conclusion 4) are
related to the original injury.
We hold that the findings discussed above support the
Commission’s conclusions. Plaintiff
injured his back moving a monitor from a slot machine at work and required
surgery in September 2001 as a result.
The Commission found and concluded that this injury was compensable
under the Workers’ Compensation Act.
The original injury and surgery led to scar tissue and made him more
prone to degenerative changes, which in turn necessitated the second surgery in
April 2002. Thus, conclusions 3 and 4
are fully supported by the Commission’s findings. In light of these conclusions -- that plaintiff’s medical
treatments for his back, including both surgeries, as well as his ongoing
disability resulted from his May 2001 injury at work -- the award of benefits
including all compensation for medical treatment and ongoing total disability
is entirely appropriate.
Defendants argue, as they did in the Court of Appeals, that
the Commission and Court of Appeals misapplied the legal principles of
causation to this workers’ compensation case.
This argument is directed at conclusion 6 quoted above. The majority in the Court of Appeals
disagreed, noting that “uncontested findings” of fact 5 and 6 (pertaining to
plaintiff’s symptoms between early November 2001 and his second surgery in
April 2002) support this conclusion. Davis,
178 N.C. App. at 610, 632 S.E.2d at 580.
The Court of Appeals relied on its decision in Horne to justify
the conclusion that aggravation of a primary injury is compensable unless due
to an independent intervening event resulting from plaintiff’s own intentional
conduct. Id. (citing Horne,
119 N.C. App. at 685, 459 S.E.2d at 799).
The dissenter agreed with the legal principles set forth in Horne,
but did not agree that the medical evidence here established an aggravation of
the original injury. Id. at 618,
632 S.E.2d at 584.
This issue is before this Court on discretionary
review. Defendants state the issue in
their new brief as follows:
I.A. THE COURT OF
APPEALS ERRED IN RELYING UPON HORNE, AS THE HORNE COURT
MISAPPLIED THE CAUSATION PRINCIPLES OF AGGRAVATION OF A COMPENSABLE INJURY.
We conclude that application of these principles is not
necessary to the disposition of this case.
Here, the evidence supports the Commission’s findings that
the first surgery was necessitated by the work-related injury of May 2001 and
that the second surgery and ongoing disability resulted directly from the
original injury and first surgery.
These findings, in turn, support the Commission’s conclusions that
defendants are responsible for payment for all “such reasonably necessary
medical treatment incurred by plaintiff for the lower back injury, including
said surgeries, and follow-up to those surgeries.” We recognize that the Commission addressed the issue of
intervening cause because defendants raised it, but given conclusions 1, 3 and
4, conclusion 6 is simply unnecessary.
Neither the Commission nor the Court of Appeals needed to consider
whether any intervening cause occurred because the Commission properly found
and concluded that plaintiff’s injury in May 2001 is compensable and that all
of plaintiff’s medical treatments and ongoing disability have resulted
therefrom. In so finding and
concluding, the Commission by implication declined to attribute causation to
any intervening event.
For the reasons stated above, the opinion of the Court of
Appeals affirming the Commission’s opinion and award is modified and affirmed.
MODIFIED AND AFFIRMED.