All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA08-526
Filed:
2 December 2008
SONIA EDITH CASTANEDA,
Employee,
Plaintiff
v.
I.C.
File No. 572390
INTERNATIONAL LEG WEAR GROUP,
Employer,
THE
Carrier,
Defendants
Appeal
by defendants from Opinion and Award entered 10 January 2008 by Commissioner
Buck Lattimore for the North Carolina Industrial Commission. Heard in the Court of Appeals 25 September
2008.
Randy D. Duncan,
for plaintiff-appellee.
Hedrick, Gardner,
Kincheloe & Garofalo, L.L.P., by M. Duane Jones, for defendants-appellants.
International
Leg Wear Group (“ILG”) and The Hartford (collectively, “defendants”) appeal
from the Full Commission of the North Carolina Industrial Commission’s (“the
Commission”) Opinion and Award, which granted Sonia Edith Castaneda (“plaintiff”)
temporary total disability benefits. We
affirm.
I. Facts
Plaintiff,
age 41, began to work for ILG in its shipping and packaging department in May
2005. Plaintiff’s job duties required
her to lift boxes weighing between five and 125 pounds and move them from one
conveyor belt to another. On Thursday,
20 October 2005, another employee pushed a “heavy” box down a conveyor belt
while plaintiff had her back turned to it, facing the opposite direction. The box struck plaintiff’s lower back and
caused her to lose her balance. As
plaintiff fell, she “[held] onto the rails.”
Plaintiff’s
fellow employees helped her regain her balance since she was unable to stand on
her own. Plaintiff testified she felt
immediate pain in her lower back and right leg.
Plaintiff was transported to the
The
following Monday, 24 October 2005, plaintiff failed to return to work because
of severe pain in her back and legs. She
informed her supervisors why she was absent.
On Tuesday, 25 October 2005, plaintiff returned to work and asked
supervisors to send her to a doctor.
Plaintiff’s supervisor responded by sending plaintiff to the safety
precautions office. After she returned
from that office, plaintiff’s supervisor asked her to sign a “written verbal”
warning concerning her work performance.
Plaintiff alleged she was unable to read the warning due to her limited
knowledge of English, but understood “it said that [she] was not getting along
with other people.” Plaintiff believed
she was being terminated and refused to sign the paper. Plaintiff placed her initials under the
following handwritten sentence: “Refused
to sign because she feels that she gets along well with American people.” Plaintiff contends her supervisors told her
that placing her initials on the paper would show they had presented her with
the warning. Plaintiff did not receive
any prior warnings before this incident.
The facts are disputed whether plaintiff voluntarily resigned or was
terminated from her employment with ILG on 25 October 2005.
On 26
October 2005, ILG arranged for plaintiff to seek medical care at the Hart
Industrial Clinic. Plaintiff was
prescribed pain medication and placed on work restrictions. The work restrictions limited her to lifting five pounds or less
and prohibited her from any activity requiring bending or twisting. Plaintiff was subsequently treated by Dr.
Myron Smith, III (“Dr. Smith”) at Carolina Orthopedic. Dr. Smith determined plaintiff suffered from “low
back sprain with lower extremity weakness.”
Due to the weakness in plaintiff’s right leg, Dr. Smith ordered an MRI
on the lumbar spine. Dr. Smith left his
association with Carolina Orthopedic.
Plaintiff’s care was transferred to Dr. Christopher Daley (“Dr. Daley”),
a board certified orthopedic surgeon, who examined and treated her. Plaintiff was subsequently referred to Dr.
Ralph Maxy (“Dr. Maxy”), a board certified orthopedic surgeon specializing in
spinal surgery.
On 23
November 2005, a spinal MRI was performed on the plaintiff. The MRI revealed a possible L4-5 annular disc
tear. Both Dr. Daley and Dr. Maxy
submitted deposition testimony to Deputy Commissioner Ronnie E. Rowell (“Deputy
Commissioner Rowell”). Dr. Daley
unequivocally opined that plaintiff’s “questionable” annular tear was not
causally related to the incident that occurred on 20 October 2005. Dr. Daley diagnosed plaintiff with “lumbar
spondylosis” associated with degenerative disk disease. Dr. Maxy disagreed and opined that it “was
quite possible” plaintiff’s annular disc tear resulted from this specific
incident.
Deputy
Commissioner Rowell accorded greater weight to the testimony of Dr. Maxy and
concluded plaintiff had sustained an injury by accident, arising out of and in
the course of her employment with ILG, which resulted in an annular disc tear
injury. Deputy Commissioner Rowell
further concluded plaintiff was entitled to temporary total compensation
benefits beginning 20 October 2005 until further order of the Commission. Defendants were ordered to pay: (1) compensation to plaintiff at the rate of
$346.68 per week and (2) all medical expenses incurred by plaintiff as a result
of this injury. Without hearing or
receiving further evidence, a divided panel of the Full Commission adopted the
Opinion and Award of Deputy Commissioner Rowell. Commissioner Dianne C. Sellers dissented on
the basis that Dr. Maxy’s opinion “amount[ed] to speculation and plaintiff []
failed to carry the burden of proving by competent evidence that a causal
relationship exist[ed] between the work-related accident and her annular disc
tear.” Defendants appeal.
II. Standard of Review
“[W]hen
reviewing Industrial Commission decisions, appellate courts must examine
whether any competent evidence supports the Commission’s findings of fact and
whether those findings . . . support the Commission’s conclusions of law.” McRae v. Toastmaster, Inc., 358 N.C.
488, 496, 597 S.E.2d 695, 700 (2004) (internal brackets and quotations
omitted). The Full Commission’s findings
are conclusive on appeal where based on competent evidence, even when there is
evidence to the contrary. Raper v.
Mansfield Systems, Inc., __ N.C. App. __, __, 657 S.E.2d 899, 904 (March
18, 2008) (No. COA07-681). “The 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.” Barbour v. Regis Corp., 167 N.C. App.
449, 454-55, 606 S.E.2d 119, 124 (2004) (quoting Adams v. AVX Corp., 349
N.C. 676, 681, 509 S.E.2d 411, 414 (1998)).
The Commission’s conclusions of law are reviewed de novo. Effingham v. Kroger Co., 149 N.C.
App. 105, 109, 561 S.E.2d 287, 291 (2002).
“Where there are sufficient findings of fact based on competent evidence
to support the Commission’s conclusions of law, the award will not be disturbed
because of other erroneous findings which do not affect the conclusions.” Meares v. Dana Corp., __ N.C. App. __,
__ S.E.2d __, __, slip op. at 5 (Oct. 7, 2008) (COA07-1401) (quoting Estate
of Gainey v. Southern Flooring & Acoustical Co., 184 N.C. App. 497,
503, 646 S.E.2d 604, 608 (2007)) (internal brackets and quotation marks
omitted).
III.
Causation
Defendants
argue plaintiff failed to establish a causal relationship existed between the
work-related accident and plaintiff’s annular disc tear. We disagree.
Defendants
challenge the following findings of fact entered by the Commission regarding
the cause of plaintiff’s injury:
3. On the morning of October 20, 2005,
plaintiff was working with her back to the conveyor line when one of the
heavier boxes was being pushed off the conveyor line by another employee. Plaintiff was unaware of the box and was
struck in her mid to low back area and was pushed forward, which twisted her
spine in the process. As plaintiff was falling to the floor she landed on some
racks.
. . .
.
8. On November 23, 2005, plaintiff had a
spinal MRI, which revealed an L4-5 annular disc tear. Dr. Maxy testified that
more likely than not, plaintiff’s injury at work caused the traumatic L4-5
annular disc tear, which is the reason for plaintiff’s ongoing pain and
plaintiff’s absence of symptoms prior to her injury at work.
9. The Full Commission gives greater
weight to the testimony of Dr. Maxy, who specializes in spinal disorders, than
to Dr. Daley, who does not specialize in spinal disorders.
Based
on these findings, the Commission concluded as a matter of law, “[o]n October
20, 2005, plaintiff sustained an injury by accident, arising out of and in the
course of her employment with defendant resulting in an annular disc tear
injury.”
The
burden rests upon the plaintiff to produce competent evidence establishing each
element of compensability, including a causal relationship between the work-related
accident and his or her injury. See
Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003) (“Plaintiff
has the burden to prove each element of compensability.” (Citations
omitted)). “The quantum and quality of
the evidence required to establish prima facie the causal relationship
will of course vary with the complexity of the injury itself.” Hodgin v. Hodgin, 159 N.C. App. 635,
639, 583 S.E.2d 362, 365 (2003) (quotation omitted). Where complicated medical questions are
presented before the Commission, “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 (quotation omitted).
Expert
testimony is insufficient to prove causation 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. In Holley, the Supreme Court
concluded when a doctor’s testimony revealed the speculative nature of his
opinion, such evidence was insufficient to establish causation.
The
facts in Holley are distinguishable from the case at bar. The Full Commission found that “plaintiff had
a spinal MRI, which revealed an L4-5 annular disc tear.” This finding was based on competent
evidence. Dr. Maxy testified that “[s]he
did have an L4/5 annular tear. . . .”
Although Dr. Maxy admitted that “you can’t tell for sure” what the cause
of the annular tear was, this qualifying language goes towards the weight of
his testimony and does not rise to the level of “guess” or “speculation” as the
doctor’s testimony in Holley. See
Adams v. Metals USA, 168 N.C. App. 469, 483, 608 S.E.2d 357, 365 (2005),
aff’d per curiam, 360 N.C. 54, 619 S.E.2d 495 (2005) (“The fact that the
treating physician in the case could not state with reasonable medical
certainty that plaintiff’s accident caused his disability, is not dispositive -
the degree of the doctor’s certainty goes to the weight of his testimony.”). Dr. Maxy testified it was “quite possible”
and “more likely than not” that the tear was caused by plaintiff’s work-related
injury. See Kelly v.
The
dissent contends Dr. Maxy’s opinion is speculative because he based his opinion
in part on the assumption that plaintiff suffered a “violent motion,” and there
was no competent evidence to find plaintiff “arched her back violently” or
otherwise suffered a “violent motion.”
We respectfully disagree. Dr.
Maxy opined that “if she arched her back violently, that would cause violent
motion between the two vertebrae which could in fact lead to an annular
tear. That’s the sense in which it can
cause an annular tear, any violent motion from the box hitting the back.” Although no competent evidence supports a
finding that plaintiff in fact arched or twisted her back when she was hit by
the box, there is other evidence from which the Full Commission could base a
finding that plaintiff’s injury caused her annular tear. Estate of Gainey, supra. Dr. Maxy also opined that blunt force trauma,
such as being struck forcefully in the back, could cause an annular tear. Plaintiff testified she was hit in the lower
back with a heavy box which caused her to lose her balance and grab onto the
rails. Viewing the facts in the light
most favorable to the plaintiff, it is reasonable to infer that when someone is
struck by a heavy box with enough force to push a person forward, that motion
can be characterized as a violent motion.
Barbour, supra. Since
there was evidence supporting a finding that plaintiff suffered a violent
motion, Dr. Maxy’s opinion is not based on speculation.
In Raper
v. Mansfield Systems, Inc., __ N.C. App. at __, 657 S.E.2d at 905, this
Court concluded that there was no evidence precisely identifying the cause of
injury. In that case, the plaintiff
developed carpal tunnel syndrome after a work accident.
Here,
it is reasonable to infer from plaintiff’s testimony describing the accident,
that she suffered a violent motion when she was hit by the box and that the
motion caused trauma to the spine, which resulted in the annular tear. The credibility and weight of Dr. Maxy’s
testimony is for the Full Commission. See
Martin v. Martin Bros. Grading, 158 N.C. App. 503, 506, 581 S.E.2d 85, 87
(2003) (“On appeal, this Court may not re-weigh the evidence or assess
credibility.”). Viewed in the light most
favorable to the plaintiff, plaintiff’s testimony describing the accident and
Dr. Maxy’s opinion based on the “objective finding” on the MRI as well as
plaintiff’s past medical history of no prior symptoms, is competent evidence
for the Commission to conclude that the annular tear was a compensable
injury. Barbour, supra. We affirm on this issue.
IV. Inability to Find Suitable Employment
Defendants
also argue that because plaintiff was terminated for misconduct, she “terminated
any efforts by Employer-Defendant to satisfy providing any work within any
medical restrictions” and she is not entitled to benefits. We disagree.
When
an employee has sustained a compensable injury, has been provided light duty or
rehabilitative employment, and is terminated for misconduct or other fault of
the employee, the termination “does not automatically constitute a constructive
refusal to accept employment so as to bar the employee from receiving benefits.
. . .” Seagraves v. Austin Co. of
If the
employer meets this burden, the burden shifts to the employee to rebut the
presumption that the employee’s misconduct was a constructive refusal to
perform the work provided, resulting in a forfeiture of benefits for lost
earnings.
Defendants
argue that plaintiff constructively refused employment when she failed to sign
the letter and is not entitled to any disability benefits.
In the
instant case, the Full Commission found that:
On October 24, 2005, plaintiff was in
severe pain. She called work and stayed
out that day. On October 25, 2005, when
plaintiff returned to work, she asked to be sent to a doctor. Defendant had plaintiff go to the office
where she was requested to sign a “written verbal” warning about work
performance. Plaintiff believed she would be terminated if she signed the form,
but did initial her name to the form. Defendant was not satisfied and
terminated plaintiff. Plaintiff had no
prior misconduct or warnings. The undersigned find that there is insufficient
evidence to support a finding that plaintiff was terminated for misconduct.
Even
if the Full Commission erred in determining that plaintiff was not terminated
for misconduct, if she showed that her inability to find other employment at a
wage comparable to the wage she earned prior to the injury is due to a work-related
disability, then her payments are not barred.
Seagraves, supra.
The
Full Commission found that
Plaintiff has completed an extensive job
search without success at various employers and temporary agencies. Plaintiff’s
prior jobs all required bending, twisting, and stooping which she can no longer
do as a result of her work related injury while employed by defendant.
Plaintiff has been on various work restrictions and continues to be assigned
restrictions by Dr. Maxy of no lifting more than 15 pounds and no excessive
bending, twisting or stooping.
The
Full Commission concluded that “Plaintiff has been unable to find suitable
employment as a result of her injury, and is entitled to temporary total
disability compensation beginning October 20, 2005, and continuing until
further order of the Commission. N. C. Gen. Stat. §97-29.”
Plaintiff
testified that she could not do “pick-and-pack” jobs because of doctor’s
restrictions on lifting, bending, twisting and stooping. Plaintiff submitted an exhibit showing that
from March 2006 until May 2006 she sought employment from more than twenty
employers. Plaintiff also testified that
she was told by one employer that due to her physical limitations she could not
perform the job duties of the position.
Viewing
the evidence in the light most favorable to the plaintiff, we hold that this
evidence supports the conclusion of law that plaintiff’s inability to find
comparable employment is due to her compensable injury.
Affirmed.
Judge
McCULLOUGH concurs.
Judge
TYSON respectfully dissents in a separate opinion.
NO.
COA08-526
Filed:
2 December 2008
SONIA EDITH CASTANEDA,
Employee,
Plaintiff
v.
I.C.
File No. 572390
INTERNATIONAL LEG WEAR GROUP,
Employer,
THE
Carrier,
Defendants
TYSON,
Judge dissenting.
The
majority’s opinion erroneously holds plaintiff presented competent evidence to
establish a causal relationship between her work-related accident and alleged
annular disc tear and affirms the Commission’s Opinion and Award granting
plaintiff temporary total disability benefits.
Dr. Maxy’s expert medical opinion concerning the cause of plaintiff’s
injury was based upon mere speculation and conjecture and is insufficient to
meet plaintiff’s burden of proof to establish the essential element of
causation. I respectfully dissent.
I. Standard of Review
[W]hen reviewing Industrial Commission
decisions, appellate courts must examine whether any competent evidence
supports the Commission’s findings of fact and whether those findings . . .
support the Commission’s conclusions of law. The Commission’s findings of fact
are conclusive on appeal when supported by such competent evidence, even though
there is evidence that would support findings to the contrary.
McRae v.
Toastmaster, Inc., 358
N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (internal citations and quotations
omitted).
The
Commission’s mixed findings of fact and conclusions of law and its conclusions
of law applying the facts are fully reviewable de novo by this
Court. Hilliard v. Apex Cabinet Co.,
305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982); Cauble v. Soft-Play, Inc.,
124 N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. rev. denied,
345 N.C. 751, 485 S.E.2d 49 (1997).
II. Causal Relationship
Defendants
assign error to the Commission’s Opinion and Award and argue plaintiff failed
to establish the essential element of a causal relationship between her work-related
accident and alleged annular disc tear.
I agree and vote to revers the Commission’s Opinion and Award.
A. Speculation and Conjecture
The
burden of proof rests upon the plaintiff to produce relevant, probative, and
competent evidence to establish a causal relationship exists between the work-related
accident and the alleged injury. See
Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003) (“In a
worker’s compensation claim, the employee has the burden of proving that his
claim is compensable.” (Citation and quotation omitted)). “The quantum and quality of the evidence
required to establish prima facie the causal relationship will of course
vary with the complexity of the injury itself.”
Hodgin v. Hodgin, 159 N.C. App. 635, 639, 583 S.E.2d 362, 365
(citation omitted), disc. rev. denied, 357 N.C. 578, 589 S.E.2d 126
(2003). “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 (citation and quotation omitted).
When
medical opinion testimony is necessary, “medical certainty is not required, but
an expert’s speculation is insufficient to establish causation.” Adams v. Metals USA, 168 N.C. App.
469, 475–76, 608 S.E.2d 357, 362 (citation and quotation omitted), aff’d per
curiam, 360 N.C. 54, 619 S.E.2d 495 (2005).
This Court recently reiterated:
[Our] Supreme Court has allowed “could”
or “might” expert testimony as probative and competent evidence to prove
causation. However, “could” or “might” expert
testimony is insufficient to support a causal connection when there is
additional evidence or testimony showing the expert’s opinion to be a guess or
mere speculation. An expert witness’ testimony is insufficient to establish
causation where the expert witness is unable to express an opinion to any
degree of medical certainty as to the cause of an illness. Likewise, where an
expert witness expressly bases his opinion as to causation of a complex medical
condition solely on the maxim post hoc ergo propter hoc (after it,
therefore because of it), the witness provides insufficient evidence of
causation.
Raper v. Mansfield
Systems, Inc., ___ N.C.
App. ___, ___, 657 S.E.2d 899, 904 (2008)(quoting Adams, 168 N.C.
App. at 476, 608 S.E.2d at 362.) (emphasis supplied)); see also Holley,
357 N.C. at 233, 581 S.E.2d at 753 (“Although expert testimony as to the
possible cause of a medical condition is admissible if helpful to the jury, 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.” (Internal citation and quotation omitted)).
Here,
defendants challenge the following findings of fact contained in the Commission’s
Opinion and Award regarding the issue of causation:
3. On the morning of October 20, 2005,
plaintiff was working with her back to the conveyor line when one of the
heavier boxes was being pushed off the conveyor line by another employee. Plaintiff was unaware of the box and was
struck in her mid to low back area and was pushed forward, which twisted her spine
in the process. As plaintiff was falling to the floor she landed on some racks.
. . .
.
8. On November 23, 2005, plaintiff had a
spinal MRI, which revealed an L4-5 annular disc tear. Dr. Maxy testified that
more likely than not, plaintiff’s injury at work caused the traumatic L4-5
annular disc tear, which is the reason for plaintiff’s ongoing pain and
plaintiff’s absence of symptoms prior to her injury at work.
9. The Full Commission gives greater
weight to the testimony of Dr.Ralph Maxy, who specializes in spinal disorders,
than to Dr. Daley, who does not specialize in spinal disorders.
The
Commission concluded as a matter of law, “[o]n October 20, 2005, plaintiff
sustained an injury by accident, arising out of and in the course of her employment
with defendant resulting in an annular disc tear injury.” Findings of fact numbered 3 and 8 are not
supported by competent evidence in the record before us and do not support the
Commission’s conclusion of law.
Finding
of fact numbered 3 states, “[p]laintiff was unaware of the box and was struck
in her mid to low back area and was pushed forward, which twisted her spine
in the process.” (Emphasis
supplied). During the hearing, plaintiff
offered no testimony or any other evidence tending to support the notion that
she had “twisted” her spine as she fell to the ground after being hit with a
box. “We are not bound by the findings
of the Commission when they are not supported by competent evidence in the
record.” English v. J.P. Stevens
& Co., 98 N.C. App. 466, 471, 391 S.E.2d 499, 502 (1990).
The
dispositive issue before this Court becomes whether Dr. Maxy’s expert testimony
was sufficient to establish a causal relationship between plaintiff’s work-place
accident and her injury. Dr. Maxy’s
testimony and other record evidence shows his expert opinion was based upon
mere conjecture or speculation. Holley,
357 N.C. at 233, 581 S.E.2d at 753.
On
direct examination, and after being asked a hypothetical question that
paralleled the facts at bar, Dr. Maxy testified that “[i]t is quite possible
that [the 20 October 2005 incident] caused the injury noted on the MRI, the
annular tear.” (Emphasis supplied). Dr. Maxy based his opinion upon “the
objective finding on the MRI plus her history, the fact she did not have these
symptoms prior to the box hitting her on her back.” Dr. Maxy testified he had not reviewed
plaintiff’s MRI itself, but only the Radiology Report. Dr. Maxy testified that the objective finding
he was referring to indicated: “that
there are findings that represent — may represent an atypical annular
tear.” (Emphasis supplied). Upon review
of the actual Radiology Report, the “objective finding” Dr. Maxy was
referencing states, “2. Fluid signal within the left posterolateral aspect of
the interverebral L4-5 disc. This may
represent a somewhat atypical annular tear or simply fluid within the
substance of the disc material.”
(Emphasis supplied).
Dr.
Maxy further testified that the annular tear “could” cause the symptoms
plaintiff was experiencing, but that “[i]t doesn’t commonly” and acknowledged
that other patients can present with an annular tear based upon a “degenerative
change.” Dr. Maxy’s concerns and
plaintiff’s non-cooperation were also noted in Dr. Maxy’s physical exam:
Also there were some findings on exam
[sic] that seemed to be somewhat perplexing. I couldn’t examine her motor
function very well because it seemed as if she was giving me less than full
effort. And so I couldn’t tell whether or not she had any true weakness.
She also seemed to walk with a left-sided antalgic gait, in other words, a left-sided
limp when in fact she told us that the pain was worse down the right side than
it was on the left. So there were
some inconsistencies.
(Emphasis
supplied). Dr. Maxy testified that if
there had not been “an objective finding” on the MRI, he would not have placed
plaintiff on any work restrictions.
The
following colloquy on cross-examination is quite significant and indicative of
the wholly speculative nature of Dr. Maxy’s testimony:
[Defense counsel]: I believe if I
understand your testimony correctly and you testified that it certainly was possible
for the force of a box striking someone’s back, I assume that the box striking
the back caused enough force to jar the area between the two vertebrae?
[Dr. Maxy]: Right, exactly. It’s not the
box itself that hits the disk and causes a rupture. That’s not what happens,
but the box hitting her in the back could cause a violent, violent motion
between two vertebrae. For example, if
she arched her back violently, that would cause violent motion between two
vertebrae which could in fact lead to an annular tear. That’s the sense in
which it can cause an annular tear, any violent motion from the box hitting the
back.
[Defense counsel]: Again so I’m assuming
if a box comes with some significant force and hits you in the back or then
throws you forward or in a manner that doesn’t cause you to do the violent
motion, then it would not cause an annular tear?
[Dr. Maxy]: That’s correct. It’s not the
blunt force of the box itself that causes the tear as much as the violent
motion between the two vertebrae that could cause the tear.
[Defense counsel]: So without knowing
exactly how [plaintiff] reacted when the box struck her, can you really tell
for sure if that incident is what caused the annular tear?
[Dr. Maxy]: Well, you can’t tell for
sure in any of this, to tell you the truth. You really can’t. I base my
opinion on her history and the findings. If she told me she had had a long
history of back pain, it would be less likely the cause.
(Emphasis
supplied). Dr. Maxy clearly based his
expert opinion on the presumption that plaintiff had “arched her back violently”
or that some other “violent motion” occurred after she was hit with the
box. However, as the majority’s opinion
correctly states, “no competent evidence supports a finding that plaintiff in
fact arched or twisted her back when she was hit by the box[.]” Further, Dr. Maxy frankly acknowledged that
without knowing how plaintiff reacted when the box struck her, he could not
opine whether the incident at ILG caused the annular tear.
After
a review of Dr. Maxy’s deposition testimony, I agree with Commissioner Sellers’s
dissenting opinion and would hold that Dr. Maxy’s medical opinion regarding the
cause of plaintiff’s injury is only “a guess or mere speculation.” Holley, 357 N.C. at 233, 581 S.E.2d at
753. Dr. Maxy did not review plaintiff’s
MRI and based his diagnosis in part on a finding in the Radiology Report that “may
represent an atypical annular tear.”
(Emphasis supplied). Based solely
on his own physical exam, Dr. Maxy would not have placed plaintiff on any work
restrictions.
B. After it, therefore because of it
Dr.
Maxy heavily emphasized plaintiff’s medical history, “the fact she did not have
these symptoms prior to the box hitting her on her back[,]” and implicitly
stated that if plaintiff had presented a history of back pain, his diagnosis
would have been different. Dr. Maxy’s
opinion is also pure post hoc ergo propter hoc testimony and does not
prove causation. See Raper, ___
N.C. App. at ___, 657 S.E.2d at 904 (“[W]here an expert witness expressly bases
his opinion as to causation of a complex medical condition solely on the maxim post
hoc ergo propter hoc (after it, therefore because of it), the witness
provides insufficient evidence of causation.”).
On
cross-examination, Dr. Maxy testified that without knowing how plaintiff
reacted when the box struck her, he “[could not] tell for sure” if the incident
at ILG is what caused the annular tear.
Nonetheless, Dr. Maxy opined that based upon the “objective finding” in
the Radiology Report, in combination with plaintiff’s history, plaintiff’s work-related
accident “more likely than not” caused an annular tear.
Because
a majority of the Commission assigned greater credibility to Dr. Maxy’s opinion
and we are bound by this determination, a review of the quantum of Dr. Maxy’s
testimony shows it is insufficient to establish to a reasonable medical
certainty that plaintiff’s accident was causally related to her annular disc
tear. See Holley, 357 N.C. at
233, 581 S.E.2d at 753 (“Although expert testimony as to the possible cause of
a medical condition is admissible if helpful to the jury, 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.” (Internal
citation and quotation omitted)).
Dr.
Maxy’s expert testimony is insufficient to support the Commission’s conclusion
of law that “[o]n October 20, 2005, plaintiff sustained an injury by accident,
arising out of and in the course of her employment with defendant resulting
with an annular disc tear injury.”
Because the Commission’s Opinion and Award is affected with error on
this basis, it is unnecessary to address defendant’s remaining assignment of
error.
III. Conclusion
Dr.
Maxy’s testimony is insufficient to establish to a reasonable degree of medical
certainty that plaintiff’s work-related accident was causally related to her
annular disc tear. Holley, 357 N.C. at 233, 581 S.E.2d at 753; Adams,
168 N.C. App. at 476, 608 S.E.2d at 362.
Under de novo review, the Commission’s conclusion of law that
plaintiff sustained an injury by accident, arising out of and in the course of
her employment, resulting in an annular disc tear is unsupported by its
findings of fact and is erroneous as a matter of law. The Commission’s Opinion and Award granting
plaintiff temporary total disability benefits is erroneous and should be
reversed. I respectfully dissent.