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NO. COA05-562
NORTH CAROLINA COURT OF APPEALS
Filed: 7 March 2006
TONY D. AVERY
Employee,
Plaintiff;
v. North
Carolina Industrial Commission
I.C.
File Nos. 623408 & 962716
PHELPS
CHEVROLET
Self-Insured,
Employer
and
SEDGWICK CMS,
INC.
Servicing Agent,
Defendants.
Appeal by defendants from decision entered 17 February 2005
by the North Carolina Industrial Commission.
Heard in the Court of Appeals 23 January 2006.
Edwards
& Ricci, P.A., by Brian M. Ricci, for plaintiff-appellee.
Teague,
Campbell, Dennis & Gorham, L.L.P., by John A. Tomei and Kathryn
Deiter-Maradei, for defendant-appellants.
MARTIN, Chief Judge.
Defendants appeal from an order of the North Carolina
Industrial Commission (“Commission”) awarding plaintiff (1) temporary total
disability for time missed from work, (2) costs for medical treatment related
to his injury, and (3) attorneys’ fees.
For the reasons which follow, we affirm.
The evidence before the Commission tended to show that
plaintiff, who had a high school education, began working as a mechanic for
defendant Phelps Chevrolet (“Phelps”) in 1987.
On 3 January 1996, plaintiff fell backwards while stepping off of a
stool, striking his back and right shoulder on a concrete block. Plaintiff felt “major pain” in his neck and
shoulder as soon as he fell, and he could not move his shoulder. He received immediate medical attention at
“Med Center One” where x-rays were taken and his shoulder was put in a
sling. Plaintiff continued to return to
Med Center One for six months where he received physical therapy and a steroid
shot in his right shoulder. When he
failed to improve, he was recommended to Dr. Steven L. Wooten, a
board-certified orthopaedist.
Dr. Wooten first saw plaintiff in March of 1996. At that time, Dr. Wooten stated plaintiff
“had good motion in his shoulder. His
muscle strength was good, but due to his persistent pain I [recommended] an MRI
scan of his shoulder.” Plaintiff
scheduled an appointment for the MRI, but he was too large to fit into the MRI
scan. Instead, Dr. Wooten obtained an
arthrogram to determine if plaintiff had a tear of his rotator cuff. The arthrogram indicated a large tear of the
rotator cuff, which Dr. Wooten recommended plaintiff undergo surgery to
repair. In April 1996, the injury to
plaintiff’s right shoulder was accepted as compensable, and he was paid
temporary total disability beginning 30 April 1996.
Plaintiff’s rotator cuff surgery took place on 23 April
1996. After surgery, plaintiff
testified that when he turned his neck, he felt “like it was pulling the
shoulder in two.” Dr. Wooten continued
to send plaintiff to therapy, and he recommended plaintiff not use his right
hand and keep his right arm in a sling while at work. When Dr. Wooten saw plaintiff on 24 May 1996, plaintiff continued
to have “tightness over his neck in that same area, but it was improving.” A month later, Dr. Wooten found plaintiff’s
neurologic exam to be normal. However,
plaintiff continued to have pain in the right side of his neck and down his arm
into his hand. Dr. Wooten believed the
pain was a result of either (1) the nerve block administered to plaintiff
during surgery, (2) a herniated cervical disk in plaintiff’s neck, or (3)
continued pain from the rotator cuff tear.
A subsequent arthrogram indicated plaintiff had a
“persistent or recurrent rotator cuff tear.”
However, Dr. Wooten stated that “[m]ost people with a rotator cuff tear
won’t have neck pain or pain below the elbow,” leading him to believe that an
additional cause of plaintiff’s pain might be a herniated cervical disk. Dr. Wooten first considered the possibility
that a herniated disk was the cause of plaintiff’s pain in August of 1996,
seven months after plaintiff’s accident.
Although he stated that symptoms of a cervical disk herniation generally
appear sooner than seven months after an injury takes place, he believed it was
“possible” the injury caused the cervical disk herniation.
Dr. Wooten recommended plaintiff see Dr. William J. Mallon,
an expert in the field of orthopedic surgeries with a sub-specialty in shoulder
and elbow surgery. Dr. Mallon treated
plaintiff between 19 June 1997 and 12 June 2001 and performed two surgeries on
plaintiff’s shoulder. The first surgery
was to repair his rotator cuff, after which plaintiff improved briefly. However, because plaintiff continued to have
pain, Dr. Mallon performed a second surgery on 15 January 1999. During this surgery, Dr. Mallon removed a
portion of plaintiff’s distal clavicle, or collar bone, at the joint where the
collar bone meets the shoulder blade.
Plaintiff again improved briefly then later regressed. In May of 1999, plaintiff told Dr. Mallon he
was “50 percent better than before . . . but not normal yet and [his injury]
continued to hurt him a fair amount.”
On 26 May 1999, plaintiff was “pulling on an air
conditioning part” at work when he lost his grip and “developed a sharp
shooting pain in his shoulder.” Dr.
Mallon indicated he thought plaintiff had “intrinsic tendonopathy,” meaning his
tendon was intact but weaker than normal, and some activities that were not
previously painful now caused pain in the tendon. Dr. Mallon restricted plaintiff from raising his right arm above
shoulder level, lifting more than ten pounds, and standing on ladders or
unrestricted heights. When Dr. Mallon
saw plaintiff on 6 November 2000, plaintiff was complaining of pain radiating up
into his neck muscles. At that point,
Dr. Mallon felt the best course of action for plaintiff was to go to a pain
clinic. On 12 June 2001, Dr. Mallon
referred plaintiff to Dr. Lynn Johnson at the Greenville Pain Clinic.
Dr. Johnson practices in pain management and is
board-certified in anesthesiology and pain medicine. He first saw plaintiff on 1 October 2001, at which time plaintiff
complained of neck, shoulder, and arm pain in his right side. Dr. Johnson observed the following symptoms
in plaintiff: (1) limited right shoulder range of motion; (2) pain and
tenderness of the right shoulder; (3) nerve root irritation of the wrist and
elbow; (4) tenderness in the neck; and (5) tenderness and decreased sensitivity
to light touch in his right arm. Dr.
Johnson recommended plaintiff have an EMG, which is a nerve conduction study of
the arm, and a cervical MRI scan of his neck.
Having lost a significant amount of weight since 1996, plaintiff was
able to obtain the MRI scan. The MRI
indicated multilevel disk protrusions between the C3 and C7 disks, a potential
herniation at C7-T1, and a herniation at C5-6.
The EMG revealed some problem with the nerves in plaintiff’s right wrist
and arm, but it did not indicate a nerve root irritation. Despite this, Dr. Johnson believed there was
nerve root irritation, stating that EMGs are “relatively insensitive to the
wide spectrum of nerve problems” and do not pick up small or sensory nerve
problems readily. Dr. Johnson
prescribed pain medication and performed a nerve root block of the C6 nerve on
plaintiff’s right side, but when plaintiff did not improve, he referred him to
Dr. Kurt Voos, an expert in the field of orthopaedic surgery.
Dr. Voos first saw plaintiff on 11 March 2002. At that time, plaintiff complained of “[s]hooting
pain into the right shoulder, forearm, thumb, index finger, along with numbness
and tingling.” Plaintiff described his
pain as an eight on a scale of one to ten.
Dr. Voos reviewed plaintiff’s MRI, which revealed a herniated disk at
C5-6 and C6-7. He recommended plaintiff
receive a cervical epidural steroid injection, which Dr. Johnson’s associate
performed on 17 June 2002. When asked
whether he believed the disk herniation could or might have been caused by the
3 January 1996 injury, he replied, “I think it could have been, yes.” Upon reviewing Dr. Wooten’s records
indicating plaintiff had symptoms of disk herniation in August of 1996, Dr.
Voos stated that the herniation was “likely to be related to the
injury.” (Emphasis added). Dr. Voos further stated it was “very likely”
plaintiff’s pain from the rotator cuff tear had initially masked the symptoms
he would have had from a herniated disk in his neck.
A hearing before a deputy commissioner was held to determine
if plaintiff’s cervical spine problems were related to his compensable injury
of 3 January 1996. The majority of the
medical testimony indicated plaintiff “could or might” have a cervical spine
condition as a result of his 3 January 1996 fall, which the deputy commissioner found to be insufficient
to establish a causal relationship between the incident and his current
condition. He made, inter alia,
the following relevant findings:
14. Dr. Wooten,
an orthopedic surgeon, was certainly in the best position to given [sic] an
opinion regarding the genesis of plaintiff’s cervical spine problem insofar as
it might relate to the injury because he treated plaintiff during the year
following the injury and during the time the first possibly related symptoms
manifested themselves. He testified in
essence that a causal relationship was possible but was not likely and that he
would have expected radicular symptoms to have developed sooner than seven
months after the injury. In over
twenty-two years as a Deputy Commissioner, the undersigned cannot remember
another case where a treating physician related a herniated disc to an injury
where there was such a long delay in the development of symptoms. Consequently, the cervical spine condition
with which plaintiff was diagnosed in approximately March 2002 was not proven
by the greater weight of the credible evidence to have been a proximate result
of the January 3, 1996 injury by accident.
15. In addition, the May 26, 1999 injury by accident was not proven to have caused or aggravated the cervical spine condition at issue.
The
deputy commissioner therefore concluded as a matter of law that plaintiff was
“not entitled to benefits under the Workers’ Compensation Act for his cervical
spine condition.”
The full Industrial Commission reversed the holding of the
deputy commissioner, finding “Plaintiff’s cervical disc problems are causally
related to his January 3, 1996 injury by accident.” In its Finding of Fact No. 22, the Commission stated:
22. When asked
whether Plaintiff’s cervical disc herniations could or might have been caused
by the January 3, 1996 injury, Dr. Voos replied, “I think it could have been,
yes.” Based on Plaintiff’s medical
records, Dr. Voos opined that it was likely that Plaintiff’s cervical
conditions are related to his January 3, 1996 injury.
(Emphasis
added). The Commission then made the
following conclusions of law:
1. On or about
January 3, 1996, Plaintiff sustained a compensable injury by accident to his
right shoulder. On or about May 26,
1999, Plaintiff sustained a compensable injury by accident and/or aggravation
of a pre-existing condition to his arm and shoulder as set forth in the Form 18
filed by Plaintiff on August 31, 1999 and the Form 60 filed by
Defendant-Employers on June 27, 2001.
N.C. Gen. Stat. §97-2(6).
2. Plaintiff’s
cervical spine herniations are causally related to his compensable injury by
accident of January 3, 1996 and May 26, 1999 aggravation of his injury.
3. Defendants
are obligated to pay Plaintiff’s medical expenses resulting from his
compensable injury by accident, including treatment for his neck injuries, for
so long as such treatment may be reasonably required to effect a cure, provide
relief, or lessen the period of disability.
N.C. Gen. Stat. §§97-2(19), 97-25.
4. Plaintiff is
entitled to be rated for any permanent partial disability he may have sustained
to his cervical spine.
The
Commission awarded plaintiff (1) “temporary total disability compensation at
the rate of $465.40 per week for any days missed from work as a result of his
cervical disc herniations and related cervical conditions,” (2) “medical
expenses incurred or to be incurred by Plaintiff as a result of his compensable
cervical disc condition so long as such evaluations, treatments and
examinations may reasonably be required to effect a cure, give relief and/or
lessen Plaintiff’s period of disability,” and (3) attorneys’ fees “in the
amount of 25% of the compensation due Plaintiff pursuant to this award.” Defendants appeal.
______________________________
On appeal, defendants argue the opinion and award of the
Commission should be reversed for the following reasons: (1) the medical
evidence is so speculative so as to be insufficient to establish a causal
connection between plaintiff’s right shoulder injury on 3 January 1996 and his
alleged cervical spine injuries or condition; (2) the Commission failed to make
any findings of fact with regard to the consideration, credibility and
relevancy of the testimony of the treating physician Dr. Mallon; and (3) the
Commission failed to make any findings of fact with regard to the
consideration, credibility and relevancy of the testimony regarding plaintiff’s
failure to inform his treating physicians of his alleged cervical spine injury.
“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). If there is competent evidence to support
the findings of fact, they are conclusive on appeal even though there is
evidence to support contrary findings. Hedrick
v. PPG Industries, 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc.
review denied, 346 N.C. 546, 488 S.E.2d 801 (1997). The Commission’s conclusions of law are
reviewed de novo. McRae v.
Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
Defendants first argue the medical evidence is so
speculative it is insufficient to establish a causal relationship between
plaintiff’s injury on 3 January 1996 and his cervical spine condition. Our Supreme Court has stated that “expert
opinion testimony . . . based merely upon speculation and conjecture . . . 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). Expert testimony indicating only that
plaintiff’s condition “could or might” have been related to the compensable
injury is not competent evidence to show causation. Edmonds v. Fresenius Med. Care, 165 N.C. App. 811, 600
S.E.2d 501 (2004) (Steelman, J., dissenting), rev’d per curiam for reasons
stated in the dissent, 359 N.C. 313, 608 S.E.2d 755 (2005). However, where expert testimony finds it
“likely” that plaintiff’s injury was related to the workplace accident, our
Supreme Court has determined that to be competent evidence to establish a
causal connection between the accident and the injury. Alexander v. Wal-Mart Stores, Inc.,
166 N.C. App. 563, 603 S.E.2d 552 (2004) (Hudson, J., dissenting), rev’d per
curiam for reasons stated in the dissent, 359 N.C. 403, 610 S.E.2d 374
(2005). Pursuant to our Supreme Court’s
adoptions of the dissents in Edmonds and Alexander, this Court
recently stated:
it appears that
our Supreme Court has created a spectrum by which to determine whether expert
testimony is sufficient to establish causation in worker’s compensation
cases. 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.” However,
when expert testimony establishes that a work-related injury “likely” caused
further injury, competent evidence exists to support a finding of causation.
Cannon
v. Goodyear Tire & Rubber Co., __ N.C. App. __, __, 614 S.E.2d 440,
446-47, disc. review denied, 360 N.C. 61, 621 S.E.2d 177 (2005)
(citations omitted).
In the present case, Dr. Kurt Voos stated in his deposition
he believed it was “likely” plaintiff’s cervical disc herniation was related to
plaintiff’s 3 January 1996 workplace accident.
Although other medical experts testified plaintiff’s injury “could” or
“might” have been the result of his workplace accident, where the evidence is
conflicting, the Commission’s findings of fact are conclusive on appeal. Adams v. AVX Corp., 349 N.C. 676,
682, 509 S.E.2d 411, 414 (1998).
Furthermore, “[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.” Id. at 681, 509 S.E.2d
at 414. Because our standard of review
is to determine whether there is “any competent evidence in the record” to
support the Commission’s findings, and because our Supreme Court has found
expert testimony that an accident “likely” caused a subsequent injury to be
competent evidence to support a finding of causation, we must overrule
defendants’ first argument that the medical evidence was insufficient to
establish a causal connection between plaintiff’s workplace accident and his
cervical spine injury.
Defendants’ second argument is that the Commission’s opinion
and award should be reversed because it failed to make any findings of fact
with regard to the consideration, credibility and relevancy of the testimony of
Dr. Mallon. Defendants cite Gutierrez
v. GDX Automotive, __ N.C. App. __, __, 609 S.E.2d 445, 448, disc.
review denied, 359 N.C. 851, 619 S.E.2d 408 (2005), which states the
Commission “must consider and evaluate all the evidence before it is rejected,”
and “it is reversible error for the Commission to fail to consider the
testimony or records of a treating physician.”
Gutierrez, __ N.C. App. at __, 609 S.E.2d at 448 (citations
omitted).
The Commission made the following findings of fact regarding
Dr. Mallon’s deposition testimony:
11. Dr. Mallon is
board-certified in orthopedics and has a sub-specialty in shoulder and elbow
surgery. He treated plaintiff from
September 19, 1997 to June 12, 2001. On
September 19, 1997, Dr. Mallon indicated in his medical notes that plaintiff
had already had a workup on his neck and had received a nerve block in his neck
with no significant relief.
12. On August 27,
1997, Dr. Mallon performed surgery for Plaintiff’s torn rotator cuff. On October 14, 1997, Plaintiff did not
complain about neck pain. On November
25, 1997, Plaintiff complained of neck pain but stated that his neck was not
hurting like it did previously.
Plaintiff continued to complain of pain in his neck and shoulder.
13. Plaintiff
underwent a second surgery by Dr. Mallon on January 15, 1999 to excise
approximately a centimeter of his clavicle.
This surgery was related to plaintiff’s January 3, 1996 injury. Defendants reinstated his temporary total
disability benefits on January 15, 1999 and paid plaintiff benefits until May
17, 1999, when plaintiff was due to return to work. After his second surgery, plaintiff had some improvement, but
subsequently began complaining of right arm pain again after he reported that
he had re-injured himself on May 26, 1999 when he pulled a part off an air
conditioner and experienced a sharp shooting pain in his shoulder.
14. Plaintiff had
not previously undergone an MRI due to his size. Dr. Mallon noted that plaintiff’s weight had dropped from 340 to
235. On August 5, 1999, Dr. Mallon
assigned the following restrictions to Plaintiff: no overhead use of the right
arm, no raising right arm above shoulder level, no lifting of more than ten
pounds, no ladders and no unrestricted heights.
15. On November
6, 2000, Plaintiff reported to Dr. Mallon that most of his pain was in his neck
area. Dr. Mallon had a functional
capacity examination (FCE) performed.
It revealed myofascial pain around the levator scapula, trapezius and
scalene muscles (all muscles in the neck).
Plaintiff also demonstrated a positive impingement sign.
16. As the result
of an FCE, Dr. Mallon placed Plaintiff on the following restrictions: no
lifting over 10 pounds, no overhead work and no overhead lifting. However, the sharp pain in Plaintiff’s neck
and right shoulder and arm returned.
Dr. Mallon believed that there was a nerve problem, but he indicated to
Plaintiff he had done all he could. On
June 12, 2001, Dr. Mallon referred Plaintiff to Dr. Lynn Johnson at Greenville
Pain Clinic.
. . .
19. An MRI taken
in March 2002 revealed cervical herniated discs at C5-6 and C6-7. When asked during his deposition whether
Plaintiff’s compensable injury on January 3, 1996 caused the herniated cervical
discs, Dr. Mallon responded, “I guess it could have.”
These
extensive findings of fact regarding Dr. Mallon’s evaluations of plaintiff make
it clear the Commission did “consider and evaluate” the evidence presented by
Dr. Mallon as required in Gutierrez.
Gutierrez, __ N.C. App. at __, 609 S.E.2d at 448. Plaintiff’s argument in this respect has no
merit.
Defendants further argue under Gutierrez the
Commission erred by “fail[ing] to make a finding of fact with regard to why Dr.
Mallon’s deposition testimony was given no weight as compared to the testimony
of Dr. Voos.” Defendants incorrectly
interpret Gutierrez as requiring this Court to reverse the Commission
where it gave one expert’s opinion greater weight than another’s. “The commission is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.” Adams v. AVX Corp., 349 N.C. 676,
680, 509 S.E.2d 411, 413 (1998) (citation omitted). As we previously noted, where the evidence is conflicting, the
Commission’s findings of fact are conclusive on appeal. Id. at 682, 509 S.E.2d at 414. Therefore, as long as it is clear from the
record the Commission did consider conflicting expert testimony, we will not
question its acceptance of one theory over another. “[T]his Court ‘does not have the right to weigh the evidence and
decide the issue on the basis of its weight.
The court’s duty goes no further than to determine whether the record
contains any evidence tending to support the finding.’” Id. at 681, 509 S.E.2d at 414 (citation
omitted). Therefore, defendant’s second
argument is overruled.
Defendants’ final argument is that the opinion and award of
the Commission should be reversed because the Commission failed to make any
findings of fact with regard to the consideration, credibility and relevancy of
plaintiff’s failure to inform his initial treating physicians of his alleged
cervical spine injury. Defendants again
rely on Gutierrez, where this Court concluded the Commission erred by
not entering findings of fact regarding plaintiff’s failure to report her back
injury to a physician treating her for unrelated medical problems. We determined her failure to mention
her back pain to the physician treating her for menstrual problems and
headaches was “material evidence” indicating her back injury may have resolved,
and the Commission therefore should have entered “a finding of fact regarding
the consideration, credibility, or relevancy” of this conflicting
evidence. Gutierrez, __ N.C.
App. at __, 609 S.E.2d at 448.
In the present case, defendants contend plaintiff failed to
complain of neck pain between 3 January 1996 and 20 March 1996. Plaintiff did, however, make continuous
complaints of severe and persistent shoulder pain. First, we note both Dr. Wooten and Dr. Voos testified that pain
medication and the rotator cuff tear in plaintiff’s shoulder might have masked
the symptoms of plaintiff’s neck injury during that period of time, and Dr.
Mallon testified that shoulder and neck “symptoms overlap quite a bit.” Also, in Gutierrez, the Commission
failed to enter any findings of fact regarding the testimony of a treating physician
whose testimony constituted “material evidence” that plaintiff might have
recovered from her injury. Here, in
contrast, the Commission did make findings of fact indicating plaintiff did not
complain of neck pain until 3 May 1996, four months after his accident. It also made findings, however, that all of
plaintiff’s treating physicians testified plaintiff’s neck pain “could” have
been or was “likely” caused by his 3 January 1996 accident. Therefore, it is clear the Commission did
consider plaintiff’s failure to complain specifically of neck pain between
January and March of 1996 yet still determined the January accident “likely”
caused his neck injury. We cannot find,
as in Gutierrez, that the Commission failed to consider conflicting
evidence.
Defendants also argue the Commission’s findings do not
address plaintiff’s failure to complain
of neck pain to Dr. Mallon even though he testified at the hearing his neck had
never stopped hurting since 3 January 1996.
We listed the Commission’s findings of fact regarding Dr. Mallon’s
testimony above, including the following: (1) “[o]n October 14, 1997, Plaintiff
did not complain about neck pain” to Dr. Mallon; (2) “[o]n November 25, 1997,
Plaintiff complained of neck pain but stated that his neck was not hurting like
it did previously;” (3) “[p]laintiff continued to complain of pain in his neck
and shoulder;” (4) Dr. Mallon performed a functional capacity examination which
revealed a positive impingement sign and pain in plaintiff’s neck muscles; (5)
Dr. Mallon believed plaintiff had a nerve problem; and (6) Dr. Mallon stated
plaintiff’s accident “could have” caused the herniated cervical discs. These findings indicate the Commission fully
considered plaintiff’s initial failure to report neck pain to Dr. Mallon. It is not this Court’s role to weigh the
credibility of the evidence. Adams
v. AVX Corp., 349 N.C. at 680-81, 509 S.E.2d at 413-14; see also
Gutierrez, __ N.C. App. at __, 609 S.E.2d at 448. We have already concluded
there was competent evidence to support the Commission’s decision that
plaintiff’s accident caused his cervical disc herniation. Therefore, having determined the Commission
fully weighed conflicting evidence, we must overrule defendants’ third and
final argument and affirm the decision of the Commission.
Affirmed.
Judges McGEE and STEELMAN concur.