All opinions are subject to modification
and technical correction prior to official publication in the North Carolina
Reports and North Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
IN THE SUPREME COURT OF NORTH CAROLINA
No. 482A02
FILED: 13 JUNE 2003
BRENDA
JOYCE HOLLEY,
Employee
v.
ACTS,
INC.,
Employer,
LIBERTY
MUTUAL INSURANCE COMPANY,
Carrier
Appeal
pursuant to N.C.G.S. §7A-30(2) from the decision of a divided panel of the
Court of Appeals, 152 N.C. App. 369, 567 S.E.2d 457 (2002), remanding with
instructions an opinion and award entered 26 February 2001 by the North
Carolina Industrial Commission. Heard in the Supreme Court 13 March 2003.
Griffin,
Smith, Caldwell, Helder & Helms, P.A., by Annika M. Brock; The Law
Offices of George W. Lennon, by George W. Lennon; and Scudder &
Hedrick, by Samuel A. Scudder, for plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Terry L. Wallace and
Neil P. Andrews, for defendant-appellants.
Smith
Moore LLP, by Jeri L. Whitfield and Caroline H. Lock, on behalf of
the North Carolina Association of Defense Attorneys, amicus curiae.
LAKE,
Chief Justice.
This
case arises from proceedings before the North Carolina Industrial Commission
and raises the issue of whether the Commission’s findings of fact were supported
by competent evidence establishing causation between an employment-related
injury and the development of deep vein thrombosis (DVT), a condition caused by
a blood clot in a deep vein which obstructs blood flow and causes inflammation.
At
the time of the incident, plaintiff was forty-nine years old. She was on blood
pressure medication to control her hypertension and was under a doctor’s care
to lose weight. Since 1995, plaintiff had been taking the estrogen replacement
drug Premarin, which increases the risk of blood clots. Her medical history
also included treatment for benign breast tumors and complaints of leg cramps.
According to medical treatises relied on by the Commission, some of the risk
factors for DVT are: age greater than forty; use of estrogen; history of
tumors; and preexisting conditions such as heart disease, obesity and
hypertension.
On
13 July 1996, while working as a certified nurses’ assistant for
employer-defendant ACTS, Inc., a retirement center/rest home facility,
plaintiff twisted her leg on the carpet and felt a sudden pain in her left
calf. She reported the injury immediately but finished working her shift, and
afterwards, went home to soak her injured leg. The next day, plaintiff sought
medical care for her sore leg at Presbyterian Hospital, where she was examined
by Dr. Jason Ratterree, an emergency room physician. Dr. Ratterree diagnosed
plaintiff with a pulled calf muscle but wrote in his medical report that he
might have suspected “DVT in etiology had not the patient told me that there
was sudden pain during slight traumatic episode.” Plaintiff was treated with
anti-inflammatory and pain medications for a pulled calf muscle, was sent home
with a bandage and crutches, and was ordered to stay off her left leg for three
days. As a preventive measure, Dr. Ratterree told plaintiff to stop taking her
estrogen replacement drug. If her pain increased, plaintiff was told to return
to the hospital for a Doppler study of the leg to determine whether she might
have a blood clot. Plaintiff returned to work on 22 July 1996, following a week
of bed rest. Approximately five weeks later, following a weekend in bed with a
stomach virus, plaintiff awoke with a painful, swollen leg. On 3 September
1996, she returned to the emergency room for treatment. On that date, her
doctor ordered a Doppler study of her left leg, which revealed that plaintiff
had DVT. After her release from the hospital three days later, plaintiff was
seen regularly by internist Dr. Dietlinde Zipkin until 16 November 1996 when she
returned to light-duty work. Plaintiff continued to experience leg pain and was
hospitalized again in June of 1997 for “chronic DVT.” She returned to work on
11 July 1997.
When
plaintiff filed a workers’ compensation claim, defendants denied payment on the
grounds that plaintiff’s medical problems stemmed from “a pre-existing
condition that was not aggravated or accelerated by a compensable accident or
occupational disease.” On 31 August 1999, plaintiff filed a request for a
hearing before the Commission seeking: lost wages; payment of medical expenses;
payment for permanent partial disability; and payment for permanent injury to
internal organs or parts of the body, which she claimed resulted from the
accident at work. On 22 March 2000, a deputy commissioner heard the matter and,
on 27 June 2000, filed an opinion and award concluding that plaintiff’s DVT was
not the result of her injury by accident to her left leg arising out of and in
the course and scope of her employment, and denying all claims. On 24 January
2001, the full Commission reviewed the case and, on 26 February 2001, filed its
opinion and award concluding that plaintiff’s DVT was the result of a
compensable injury at work and awarding benefits. One commissioner dissented,
maintaining that the evidence failed to establish a causal connection between
the twisting injury and the DVT. Defendants gave notice of appeal to the Court
of Appeals.
On
20 August 2002, a divided panel of the Court of Appeals held that competent
evidence supported the full Commission’s determination that plaintiff’s
accident on 13 July 1996 caused her DVT. Holley v. ACTS, Inc., 152 N.C.
App. 369, 567 S.E.2d 457 (2002). The dissenting judge held that plaintiff had
failed to establish a causal connection between the compensable injury and her
ensuing DVT and that the expert testimony was mere speculation. Id. at
378-79, 567 S.E.2d at 463-64.
The
specific issue before this Court is whether there was competent evidence
presented to establish a causal connection between the original injury by
accident to plaintiff’s leg on 13 July 1996 and her diagnosis of DVT on 3
September 1996. The Court of Appeals’ majority determined that competent
evidence was presented sufficient to support the Commission’s findings of fact
and conclusions of law. We disagree.
In
deciding an appeal from an award of the Industrial Commission, appellate courts
may set aside a finding of fact only if it lacks evidentiary support. Saunders
v. Edenton Ob/Gyn Ctr., 352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000); McRae
v. Wall, 260 N.C. 576, 578, 133 S.E.2d 220, 222 (1963). Although the
Industrial Commission is the sole judge of the credibility and the evidentiary
weight to be given to witness testimony, Adams v. AVX Corp., 349 N.C.
676, 680, 509 S.E.2d 411, 413 (1998), the Commission’s conclusions of law are
fully reviewable, Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 106,
530 S.E.2d 54, 60 (2000). “When 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
Indus. Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987).
In
a worker’s compensation claim, the employee “has the burden of proving that his
claim is compensable.” Henry v. A.C. Lawrence Leather Co., 231 N.C. 477,
479, 57 S.E.2d 760, 761 (1950). An injury is compensable as employment-related
if “‘any reasonable relationship to employment exists.’“ Kiger v. Bahnson
Serv. Co., 260 N.C. 760, 762, 133 S.E.2d 702, 704 (1963) (quoting Allred
v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960)).
Although the employment-related accident “need not be the sole causative force
to render an injury compensable,” Hansel v. Sherman Textiles, 304 N.C.
44, 52, 283 S.E.2d 101, 106 (1981), the plaintiff must prove that the accident
was a causal factor by a “preponderance of the evidence,” Ballenger, 320
N.C. at 158-59, 357 S.E.2d at 685. See also 1 Kenneth S. Broun, Brandis
and Broun on North Carolina Evidence §41, at 137 (5th ed. 1998).
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.” Click v. Pilot Freight Carriers, Inc.,
300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). “However, when such expert
opinion testimony is based merely upon speculation and conjecture, . . . it is
not sufficiently reliable to qualify as competent evidence on issues of medical
causation.” Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d
912, 915 (2000). “[T]he evidence must be such as to take the case out of the
realm of conjecture and remote possibility, that is, there must be sufficient
competent evidence tending to show a proximate causal relation.” Gilmore v.
Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)
(discussing the standard for compensability when a work-related accident
results in death).
Treatises
on evidence note that the standards for admissibility of expert opinion
testimony have been confused with the standards for sufficiency of such
testimony. See 1 Henry Brandis, Jr., Brandis on North Carolina
Evidence §137, at 549 n.57 (2d rev. ed. 1982); Dale F. Stansbury, The
North Carolina Law of Evidence §137, at 108 n.67a (Henry Brandis, Jr., 2d
ed. Supp. 1970). Prior to 1983, an expert was not allowed to testify on
causation “with outright certainty since that would supposedly invade the
‘province of the jury.’“ Cherry v. Harrell, 84 N.C. App. 598, 603, 353
S.E.2d 433, 436, disc. rev. denied, 320 N.C. 167, 358 S.E.2d 49 (1987); see
also N.C.G.S. §8C-1, Rule 704 (2001) (not changed since its adoption in
1983). Therefore, medical experts were asked only whether “‘a particular event
or condition could or might have produced the result in question,
not whether it did produce such result.’“ Lockwood v. McCaskill,
262 N.C. 663, 668, 138 S.E.2d 541, 545 (1964) (quoting Stansbury, North
Carolina Evidence §137, at 332 (2d ed. 1963)). With the adoption of Rule
704 in 1983, experts were allowed to testify more definitively as to causation.
N.C.G.S. §8C-1, Rule 704. While the “could” or “might” question format
circumvented the admissibility problem, it led to confusion that such testimony
was sufficient to prove causation. See Alva v. Charlotte Mecklenburg Hosp.
Auth., 118 N.C. App. 76, 80-81, 453 S.E.2d 871, 874 (1995) (a case that
erroneously relied on Lockwood, an opinion on the admissibility
of expert opinion testimony, to find “could” or “might” testimony sufficient
to prove causation). Although expert testimony as to the possible cause
of a medical condition is admissible if helpful to the jury, Cherry, 84
N.C. App. at 604-05, 353 S.E.2d at 437, it 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,” Young, 353 N.C. at
233, 538 S.E.2d at 916.
In
the case sub judice, the Court of Appeals’ majority held that the
Industrial Commission’s findings of fact regarding plaintiff’s DVT were not
based on speculative expert medical testimony and were, therefore, competent to
show that plaintiff’s DVT was a result of her 13 July 1996 accident at work. Holley,
152 N.C. App. at 376-77, 567 S.E.2d at 462. However, a review of the expert
testimony reveals that neither of plaintiff’s physicians could establish the
required causal connection between plaintiff’s accident and her DVT.
In
his deposition, Dr. Ratterree made a number of comments that demonstrate the
speculative nature of his opinion. Dr. Ratterree testified that DVT is a
consideration anytime a patient has calf pain, but he thought it was a “low
possibility” in plaintiff’s case given her sudden acute injury. Dr. Ratterree
said that “by far 90 percent or greater” of his DVT patients have not suffered
any injury. He testified that plaintiff could have been developing a blood clot
prior to the injury at work, concluding: “It’s just a galaxy of possibilities.”
On cross-examination, Dr. Ratterree responded to questioning as follows:
Q. Can you
say to a reasonable degree of medical certainty or a reasonable degree of
medical probability that the incident related to you by Ms. Holley was a
significant contributing factor in causing DVT?
A. I can’t
say that, no.
Dr.
Zipkin was equally uncertain about the etiology of plaintiff’s DVT. In her
letter of 14 April 1997 to plaintiff’s attorney, Dr. Zipkin stated: “I am
unable to say with any degree of certainty whether or not the above
mentioned work injury is related to the development of her DVT.” (Emphasis
added.) During her deposition, Dr. Zipkin testified in part as follows:
Q. . . .
what, in your opinion, could or might have caused this DVT?
A. I don’t
really know what caused the DVT.
Q. Is it
fair to say that you can’t state to a reasonable degree of medical certainty
what caused the DVT in this particular incident?
A. It is
fair to state, yes.
The
entirety of the expert testimony in the instant case suggests that a causal
connection between plaintiff’s accident and her DVT was possible, but unlikely.
Doctors are trained not to rule out medical possibilities no matter how remote;
however, mere possibility has never been legally competent to prove causation. See,
e.g., Young, 353 N.C. at 233, 538 S.E.2d at 916. Although medical certainty
is not required, an expert’s “speculation” is insufficient to establish
causation. See id. As the foregoing testimony indicates, plaintiff’s
doctors were unable to express an opinion to any degree of medical certainty as
to the cause of plaintiff’s DVT.
When
dealing with a complicated medical question such as the genesis of DVT, expert
medical testimony is necessary to provide a proper foundation for the
Commission’s findings. “Reliance on Commission expertise is not justified where
the subject matter involves a complicated medical question.” Click, 300
N.C. at 168, 265 S.E.2d at 391. Therefore, we hold that the medical evidence as
to causation in this case was insufficient to support the Industrial
Commission’s findings of fact and conclusions of law.
Finally,
plaintiff argues that defendants failed to prove that plaintiff’s preexisting
conditions were the sole cause of her DVT and that, to the contrary, no
evidence was presented that plaintiff’s DVT was caused by anything other than
her work-related accident. This argument is unpersuasive. Plaintiff has the
burden to prove each element of compensability, Harvey v. Raleigh Police
Dep’t, 96 N.C. App. 28, 35, 384 S.E.2d 549, 553, disc. rev. denied,
325 N.C. 706, 388 S.E.2d 454 (1989); see also Taylor v. Twin City Club,
260 N.C. 435, 437, 132 S.E.2d 865, 867 (1963). Furthermore, evidence of
plaintiff’s age and medical history of hypertension, breast tumors, leg cramps,
and estrogen use suggests other potential causes of plaintiff’s DVT.
We
hold that the entirety of causation evidence before the Commission failed to
meet the reasonable degree of medical certainty standard necessary to establish
a causal link between plaintiff’s twisting injury and her DVT. The opinion of
the Court of Appeals, affirming the Industrial Commission’s findings of fact,
is, therefore, reversed, and this case is remanded to that court for further
remand to the North Carolina Industrial Commission for disposition in
accordance with this opinion.
REVERSED
AND REMANDED.