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and technical correction prior to official publication in the North Carolina
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NO. COA04-491
NORTH CAROLINA
COURT OF APPEALS
Filed: 7 June
2005
JOHNNY E. WORKMAN,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 695878
RUTHERFORD ELECTRIC MEMBERSHIP
CORPORATION,
Employer,
SELF INSURED (FEDERATED RURAL
ELECTRIC INSURANCE EXCHANGE,
Third Party Administrator),
Defendant.
Appeal by defendant from opinion and award entered 18 November 2003 by Commissioner Christopher Scott for the North Carolina Industrial Commission. Heard in the Court of Appeals 7 December 2004.
Daniel Law Firm, P.A., by Stephen
T. Daniel and Warren T. Daniel, for plaintiff-appellee.
Teague, Campbell, Dennis &
Gorham, L.L.P., by J. Matthew Little and Tara Davidson Muller, for
defendant-appellant.
TYSON, Judge.
Rutherford Electric Membership
Corporation (“REMC”) and Federated Rural Electric Insurance Exchange (“agent”)
(collectively, “defendant”) appeal from opinion and award entered by the Full
Commission of the North Carolina Industrial Commission (“the Commission”) that
awarded Johnny E. Workman (“plaintiff”) total disability compensation. We affirm in part and remand for further
findings of fact.
I. Background
Plaintiff was employed by REMC as a
first-class lineman. His job included
repairing damaged electrical power lines, which required him to climb utility
poles. On 21 February 1997, plaintiff
was injured during the course and scope of his employment when an electrical
utility pole fell and landed across his abdominal area. Plaintiff suffered injuries to various parts
of his body during the accident, which REMC immediately accepted as
compensable. Defendant promptly began
paying plaintiff temporary total disability benefits pursuant to Form 60 at the
weekly rate of $512.00.
Plaintiff underwent two surgeries
for internal injuries and digestive complications. In August 1997, he underwent surgery to remove a parathyroid
gland. In November 1998, his gall
bladder was removed and a hiatal hernia was repaired.
On 7 January 1998, plaintiff
returned to work for REMC as an assistant staking technician earning an average
weekly wage of $220.70. Due to the salary
reduction, defendant paid plaintiff temporary partial disability benefits
pursuant to Form 62 at varying rates depending on the number of hours plaintiff
worked. Plaintiff was assigned
physically demanding and difficult tasks.
His job description, as written by REMC and submitted to plaintiff’s
doctors for approval, did not include the strenuous physical tasks that
plaintiff was actually assigned to do, which included chopping right-of-ways
with a bush axe and moving large quantities of dirt with a shovel. These physically demanding tasks aggravated
plaintiff’s medical condition and caused him to accumulate blood in his
urine. As a result, plaintiff was
hospitalized and diagnosed with recurrent gross hematuria.
After plaintiff was released, he returned
to work and was assigned similar work duties.
Plaintiff requested less strenuous jobs and was told none were
available. On 9 September 1999, Dr.
Leon Dickerson (“Dr. Dickerson”) restricted plaintiff’s employment to lifting
no greater than thirty pounds occasionally,
no prolonged bending, stooping, squatting, or climbing on ladders and no
working on rough terrain. On 7 January
2000, Dr. Dickerson continued these work restrictions. Plaintiff was never assigned to light-duty
work. According to Dr. Anthony H.
Wheeler (“Dr. Wheeler”), plaintiff’s treating physician, if plaintiff continued
to perform on-the-job tasks, such as using a shovel and a bush axe, he would
“eventually become unemployable.”
Plaintiff became frustrated with the
status of his employment and contacted Sean C. Cobourn, Esquire (“Cobourn”), a
South Carolina attorney, regarding legal representation. Plaintiff testified Coburn told him a “joke”
during a telephone conversation:
I asked the lawyer if there was anything that he could do with workmen’s comp because they wasn’t paying my doctor bills, they wasn’t paying me -- they was behind paying me and I was behind on my house payment and everything else. I said, “I need somebody to do something now.” He [the attorney] laughed and he said, “Well,” he said, “the only thing I know you can do is whip his ass and it will cost you five hundred dollars to do that.”
Both plaintiff and Coburn laughed at
this remark, and testified it was a “joke.”
Plaintiff’s wife recalled plaintiff retelling the lawyer’s “joke” to
others.
During plaintiff’s return to work,
he became increasingly frustrated with his treatment by defendant. He expressed his discontent regarding
medical treatment being denied, receipt of numerous medical collection letters,
and difficult working conditions.
In response to plaintiff’s
increasing frustration, nurse caseworker, Kay Galvin (“Nurse Galvin”),
submitted a request to the adjuster to approve psychological treatment for
plaintiff on 18 January 2000. On 1
February 2000, plaintiff and Nurse Galvin were present at a doctor’s office
waiting for an appointment when plaintiff repeated the lawyer’s “joke.” Nurse Galvin reported plaintiff’s remarks to
REMC. On 7 February 2000, REMC
terminated plaintiff for “workplace violence.”
On 18 December 2000, plaintiff
requested a hearing on claims of a changed medical condition, an inability to
agree on the amount of benefits due, defendant’s denial of certain medical
treatment, and improper termination.
After a hearing on 11 April 2003, the Commission entered its opinion and
award on 18 November 2003 that: (1) awarded plaintiff total disability
compensation “at the rate of $512.00 per week from 8 February 2000 and
continuing until plaintiff returns to work or until further order of the
Commission; (2) ordered defendant to pay for “medical expenses incurred as a
result of the compensable injury as may reasonably be required to [provide
treatment for] . . . right knee condition, [] impotence, blood in urine, and
problems with urination . . . and [] depression;” and (3) ordered defendant to
provide plaintiff with vocational rehabilitation services. Defendant appeals.
II. Issues
Defendant contends the Commission
erred by: (1) finding and concluding defendant’s decision to terminate plaintiff’s
employment violated the test set forth in Seagraves v. Austin Co. of
Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996); (2) finding plaintiff
to be totally disabled; (3) not applying the doctrine of collateral estoppel
with regard to plaintiff’s termination; (4) finding that plaintiff’s urological
condition is causally related to his work accident and compensable; (5) finding
that plaintiff’s psychological condition is causally related to his work
accident and compensable; and (6) ordering defendant to pay all of plaintiff’s
medical costs related to his work accident.
III. Standard of Review
On appeal from
the Commission in a workers’ compensation claim, our standard of review
requires us to consider: whether there
is any competent evidence in the record to support the Commission’s findings of
fact and whether these findings support the Commission’s conclusions of
law. The findings of fact made by the
Commission are conclusive upon appeal when supported by competent evidence,
even when there is evidence to support a finding to the contrary. In weighing the evidence the Commission is
the sole judge of the credibility of the witnesses and the weight to be given
to their testimony and may reject a witness’ testimony entirely if warranted by
disbelief of that witness. Where no
exception is taken to a finding of fact . . ., the finding is presumed to be
supported by competent evidence and is binding on appeal.
Bass v.
Morganite, Inc., __ N.C. App. __, __, 603 S.E.2d 384, 386-87 (2004). “The Commission is the sole judge of the
credibility of witnesses and may believe all or a part or none of any witness’s
testimony . . . .” Harrell v.
Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835, disc.
rev. denied, 300 N.C. 196, 269 S.E.2d 623 (1980) (citation omitted).
IV. Termination of Employment
Defendant contends the trial court
erred in finding and concluding that REMC’s decision to terminate plaintiff was
not based upon plaintiff’s misconduct or fault. We disagree.
A. Seagraves Test
According to Seagraves, the
lawful termination of an employee for a reason unrelated to his disability and
under circumstances justifying termination of any other employee constitutes a
refusal to work. 123 N.C. App. 228, 472
S.E.2d 397. An employee who actually or
constructively refuses suitable employment is barred from receiving benefits by
N.C. Gen. Stat. §97-32. Id. at
230, 472 S.E.2d at 399. The pertinent
test is “whether the employee’s loss of . . . wages is attributable to the
wrongful act resulting in loss of employment, in which case benefits will be
barred, or whether such loss . . . is due to the employee’s work-related
disability, in which case the employee will be entitled to benefits for such
disability.” Id. at 234, 472
S.E.2d at 401.
“[U]nder the Seagraves’ test,
to bar payment of benefits, an employer must demonstrate initially that: (1) the employee was terminated for
misconduct; (2) the same misconduct would have resulted in the termination of a
nondisabled employee; and (3) the termination was unrelated to the employee’s
compensable injury.” McRae v.
Toastmaster, Inc., 358 N.C. 488, 493, 597 S.E.2d 695, 699 (2004). The employer carries the initial burden to
demonstrate all three elements by a greater weight of the evidence. Id. at 499, 597 S.E.2d at 702.
In McRae, our Supreme Court
approved the Seagraves test:
In our view,
the test provides a forum of inquiry that guides a fact finder through the
relevant circumstances in order to resolve the ultimate issue: Is a former
employee’s failure to procure comparable employment the result of his or her
job-related injuries or the result of the employee’s termination for
misconduct? In disputes like the one at bar, the critical area of inquiry into
the circumstances of an injured employee’s termination is to determine from the
evidence whether the employee’s failure to perform is due to an inability
to perform or an unwillingness to perform.
Id. at 494, 597
S.E.2d at 700. Our Supreme Court
further noted
the pertinent
inquiry under Seagraves is not focused on determining whether an
employer may fire an injured employee for misconduct unrelated to his injuries;
it is clear that an employer may do so.
See, e.g., N.C.G.S. §95-241(b) (2003). Rather, the relevant
question is determining whether, upon firing an injured employee for such
misconduct, an employer can nevertheless be held responsible for continuing to
pay injury benefits to the terminated employee.
Id. at 494, 597
S.E.2d at 699.
Defendant contends the Commission
erred by finding, “Defendant has presented no evidence that a worker who said
what plaintiff did would have been terminated as plaintiff was. The case presented regarding the fired
worker who committed assault presents a completely different factual
paradigm.” Competent evidence in the
record supports this finding. The only
evidence defendant presented regarding termination of an employee for workplace
violence was testimony that a right-of-way crew foreman with REMC was fired for
engaging in “a fight at a store on company time.” That employee was not a workers’ compensation claimant at the
time of his termination and was subsequently rehired by employer.
The Commission distinguished the
instance wherein that employee engaged in actual physical violence. If plaintiff had engaged in physical
violence on the job, the result here may well have been different. According to defendant, plaintiff was fired
for making “threats” towards other employees.
However, no evidence was presented to show that an employee who made
“threats” similar to the statements made by plaintiff would have been
terminated. See id.; see also
Frazier v. McDonald’s, 149 N.C. App. 745, 562 S.E.2d 295 (2002), cert.
denied, 356 N.C. 670, 577 S.E.2d 117 (2003).
Defendant presented some evidence
towards showing REMC had a bonafide reason for firing plaintiff. However, REMC failed to satisfy its burden
of proving the same misconduct would have resulted in termination of a
non-disabled employee. Defendant failed
to establish the requirements set forth in Seagraves, 123 at 234, 472
S.E.2d at 401, and approved in McRae, 358 N.C. at 493, 597 S.E.2d at
699. Further, it is the duty of the
Commission and not this Court to weigh the evidence. Harrell, 45 N.C. App. at 205, 262 S.E.2d at 835. This assignment of error is overruled.
B. Admission of Cobourn’s Affidavit
Defendant argues the Commission
erred by admitting and considering the affidavit from Cobourn who participated
in the conversation with plaintiff regarding the “lawyer’s joke.”
Defendant cites Allen v. K-Mart
which held, “where the Commission allows a party to introduce new evidence
which becomes the basis for its opinion and award, it must allow the other
party the opportunity to rebut or discredit that evidence.” 137 N.C. App. 298, 304, 528 S.E.2d 60, 64-65
(2000). In Cummins v. BCCI Constr.
Enters., we distinguished Allen and stated, “In Allen, the
employee attempted to submit evidence of independent medical examinations by a
psychiatrist and a physician with experience in diagnosing and treating fibromyalgia. The employee did not consult a fibromyalgia
specialist prior to the hearing before the deputy commissioner.” 149 N.C. App.
180, 185, 560 S.E.2d 369, 372, disc. rev. denied, 356 N.C. 611, 574
S.E.2d 678 (2002). In Cummins,
we held that the Commission did not manifestly abuse its discretion in denying
the defendants’ motion to depose a doctor after the plaintiff presented into
evidence medical reports prepared by the doctor. Id. This Court
ruled, “Evidence of [the doctor’s] report is merely an update of plaintiff’s
continued problems for the same injury. Thus, it is not ‘significant new
evidence’ as in Allen.” Id.
We find the reasoning in Cummins
persuasive and Allen to be distinguishable. Here, Cobourn’s affidavit only corroborated the evidence presented
through plaintiff’s and his wife’s testimony.
Defendant fails to show the affidavit disclosed any “significant new
evidence.” Id.
Presuming, as defendant argues, that
the admission of Cobourn’s affidavit was error, defendant has failed to
demonstrate that any error was prejudicial.
“Where, after erroneous factual findings have been excluded, there
remain sufficient findings of fact based on competent evidence to support the
Commission’s conclusions, its ruling will not be disturbed.” Torain v. Fordham Drug Co., 79 N.C.
App. 572, 576, 340 S.E.2d 111, 114 (1986) (citing Wachovia Bank and Trust
Co. v. Bounous, 53 N.C. App. 700, 281 S.E.2d 712 (1981)). Here, even striking those portions of the
Commission’s findings of fact regarding Cobourn’s affidavit, the remaining
findings of fact and our previous holding support the Commission’s conclusion
that defendant failed to show that plaintiff was terminated for misconduct or
fault. This assignment of error is
overruled.
V. Disability
Defendant contends the Commission
erred by concluding plaintiff was disabled.
We agree and remand for further findings of fact.
The employee
bears the burden of proving each and every element of compensability. Harvey v. Raleigh Police Dep’t, 96
N.C. App. 28, 35, 384 S.E.2d 549, 553 (1989).
The employee can prove that he is disabled in one of four ways by
production of: (1) medical evidence
that he is physically or mentally, as a consequence of the work related injury,
incapable of work in any employment; (2) evidence that he is capable of some
work, but has after a reasonable effort been unsuccessful in his efforts to
obtain employment; (3) evidence that he is capable of some work but that it
would be futile because of preexisting conditions, i.e., age, inexperience, lack
of education, to seek other employment; or (4) evidence that he has obtained
other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distrib., 108
N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).
Springer v.
McNutt Serv. Grp., Inc., 160 N.C. App. 574, 577, 586 S.E.2d 554, 556
(2003).
Here, the Commission made no
findings of fact regarding plaintiff’s burden to establish one of the four
factors and whether plaintiff met his burden.
The findings of fact show:
19. Anthony
H. Wheeler, a neurologist and pain management doctor, testified that plaintiff
was unable to do the job of assistant staking technician, and that requiring
plaintiff to do this job would probably cause him to “eventually become
unemployable.”
20. Dr. Alan F. Jacks, a general surgeon, testified that using a bush axe or shovel, and walking over rough terrain, would cause “significant strain within the abdomen,” and “may create symptoms of pain and significant exertion.”
21. Dr.
Leon A. Dickerson, an orthopaedic surgeon, testified that plaintiff would be
unable to do a job that required him to do repetitive lifting, and that doing
work such as using a bush axe or shovel would cause considerable pain.
22. Dr.
Wheeler testified as follows regarding plaintiff’s ability to return to work:
“. . . My
opinion is that he needs guidance and training and he needs a lighter job
activity that would include, you know, no lifting over, say, ten pounds
occasionally and the ability to change position as necessary, no static forward
bending postures, limit reaching postures, and I wouldn’t want him crawling,
bending or squatting on a frequent basis or even on an occasional basis.”
23. Plaintiff
has been temporarily totally disabled since 7 February 2000, the day his employment
was terminated.
These findings
show plaintiff, although limited in the work he can perform, is capable of
performing some work. The Commission is
required to determine whether competent evidence exists to support a finding of
disability based on the presentation of:
“(2) evidence that he is capable of some work, but has after a
reasonable effort been unsuccessful in his efforts to obtain employment; [or]
(3) evidence that he is capable of some work but that it would be futile
because of preexisting conditions . . . to seek other employment.” Id.
Here, the Commission made no
findings regarding either of these two factors. Plaintiff argues he presented evidence that he sought employment,
but was unsuccessful in obtaining a job.
The Commission entered no findings of fact on this evidence. Further, if plaintiff satisfied his burden
of proof to establish one of the elements under Russell, the burden
shifts to defendant to “come forward with evidence to show not only that
suitable jobs are available, but also that the plaintiff is capable of
getting one . . . .” Burwell v.
Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994). Presuming without holding competent evidence
satisfies plaintiff’s burden, the Commission also failed to enter findings of
fact regarding whether defendant satisfied its burden of proof. Without proper findings under Russell,
no competent evidence supports the Commission’s conclusion awarding plaintiff’s total disability. We remand to the Commission to make findings
of fact, based on competent evidence, to determine whether plaintiff is totally
disabled.
VI. Collateral Estoppel
Defendant contends the Commission
erred in failing to address its argument that the issue of REMC’s decision to
terminate plaintiff’s employment had already been litigated and decided by the
North Carolina Employment Security Commission (“ESC”). We disagree.
In Roberts v. Wake Forest
University, this Court ruled on a similar argument. 55 N.C. App. 430, 436, 286 S.E.2d 120, 124, disc.
rev. denied, 305 N.C. 586, 292 S.E.2d 571 (1982). The plaintiff in Roberts argued, “the ruling of the
Employment Security Commission that plaintiff was entitled to unemployment
benefits is res judicata in this action, because an employee is
disqualified for benefits if he (1) left work voluntarily without good cause
attributable to the employer, or if he (2) was discharged for misconduct
connected with his work. G.S. 96-14(1)
and 96-14(2).” Id. In response, this Court held, “We find no
merit in this argument because the issue before the Commission and the issue
before the court in this action for breach of contract are not the same. Too, the doctrine of res judicata is
inapplicable to adjudication by unemployment compensation agencies.” Id. (citing 76 Am. Jur. 2d
Unemployment Compensation §93 (1975)).
In Goins v. Cone Mills Corp.,
this Court held the deceased employee’s wife was not estopped to litigate the
issue of total permanent disability because she was not a party to the claim
for the employee’s lifetime benefits and was not in privity with a party to
that claim. 90 N.C. App. 90, 92-93, 367
S.E.2d 335, 336-37, disc. rev. denied, 323 N.C. 173, 373 S.E.2d 108
(1988).
Under the
principle of collateral estoppel, “parties and parties in privity with them --
even in unrelated causes of action -- are precluded from retrying fully
litigated issues that were decided in any prior determination and were
necessary to the prior determination.” King
v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973). A companion doctrine to res judicata,
which bars every ground of recovery or defense which was actually presented or
which could have been presented in the previous action, collateral estoppel
bars only those issues actually decided which were necessary to the prior
finding or verdict. Id. Like res judicata, collateral
estoppel only applies if the prior action involved the same parties or those in
privity with the parties and the same issues. Id. In the context of collateral estoppel and res
judicata, the term privity indicates a mutual or successive relationship to
the same property rights. Moore v.
Young, 260 N.C. 654, 133 S.E.2d 510 (1963). An exception to the general requirement of privity exists where
one not actually a party to the previous action controlled the prior litigation
and had a proprietary interest in the judgment or in the determination of a
question of law or facts on the same subject matter.
Id. In Goins, we distinguished between
the property rights at issue and reasoned the employee had previously filed a
claim for lifetime disability benefits, while the wife was pursuing a claim for
death benefits. 90 N.C. App. at 93-94,
367 S.E.2d at 337. Although the
determination of “disability” was common to both actions, the wife was entitled
to a separate determination and was “not collaterally estopped to litigate the
issue of total permanent disability.” Id.
at 93, 367 S.E.2d at 337.
On 14 July 2000, the ESC issued its
Appeals Decision by Appeals Referee Charles M. Brown, Jr., which disqualified
plaintiff from unemployment benefits because plaintiff had “made threatening
remarks about other employees of the employer.” The ESC concluded that plaintiff “was discharged for misconduct
connected with his work.” Plaintiff did
not appeal this decision.
Defendant argues this determination
by the ESC’s Appeals Decision prevented re-litigation of the same issue before
the Commission, but fail to cite any cases or other authority where res
judicata or collateral estoppel were applied in workers’ compensation cases
to support their argument. Although
this factual determination of plaintiff’s misconduct is similar, the different
interests at stake, namely whether unemployment benefits and compensation for
disability should be awarded to plaintiff, distinguish ESC’s determination from
the issue before the Commission. This
assignment of error is overruled.
VII. Findings of Fact Regarding Other Conditions
Defendant argues the Commission
erred by finding that plaintiff’s urological and psychological conditions are
compensable and the findings of fact regarding the compensability of these
conditions are not supported by competent evidence. We agree.
A. Urological Condition
Defendant contends no evidence
supports the Commission’s finding of fact which states:
Upon
consideration of the testimony of Dr. Wheeler, Dr. Dominick Carbone, and the
record as a whole, the greater weight of the evidence establishes that
plaintiff’s impotence, blood in urine, and problems with urination including a
burning sensation upon urination and inability to control urination, were
caused by the accident on February 21, 1997.
In his
deposition dated 5 April 2002, plaintiff’s counsel questioned Dr. Wheeler, who
testified as follows:
Q: In your opinion, is [plaintiff’s pain
from the injury] more likely to have caused the impotency than a pack a day or
smoking habit that [plaintiff] may have had for 20 years?
A: Again, I see patients with
post-traumatic injuries . . . and my opinion in regard to Mr. Workman is that
his cigarettes could or might have caused his impotence and that his low back
pain could or might have contributed as well to his impotence . . . .
Under our
Supreme Court’s holding in Holley v. ACTS, Inc., 357 N.C. 228, 581
S.E.2d 750 (2003), “could or might” testimony is insufficient to establish
medical causation in a workers’ compensation claim. Edmonds v. Fresenius Med. Care, 165 N.C. App. 811, 818,
600 S.E.2d 501, 506 (2004) (J. Steelman, dissenting), rev’d per curiam,
359 N.C. 313, 608 S.E.2d 755 (2005).
[O]nly an
expert can give competent opinion evidence as to the cause of the injury. 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. The 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.
Holley, 357 N.C. at
232, 581 S.E.2d at 753 (internal citations and quotations omitted).
The following month after deciding Edmonds,
our Supreme Court in Alexander v. Wal-Mart Stores, Inc., reiterated
“the role of the Court of Appeals is ‘limited to reviewing whether any
competent evidence supports the Commission’s findings of fact and whether the
findings of fact support the Commission’s conclusions of law.’” ___ N.C. App. ___, ___, 603 S.E.2d 552, 558
(2004) (J. Hudson, dissenting) (quoting Deese v. Champion Int’l Corp.,
352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)), rev’d per curiam,
359 N.C. 403, 610 S.E.2d 374 (2005).
Our Supreme Court reversed and adopted the dissenting opinion in Alexander,
holding the greater weight of the evidence standard was met through a medical
expert’s testimony “establish[ing] that it was ‘likely’ that [plaintiff’s
injury] occurred during the accident . . . .” ___ N.C. App. at ___, 603 S.E.2d at 558 (emphasis supplied).
Attached to Dr. Wheeler’s deposition
as Exhibit 4 is a treatment note dated 1 February 2001, wherein Dr. Wheeler
stated that plaintiff’s “impotence is, more likely than not, related to his
injury.”
When later asked if plaintiff’s
impotence was “more likely” caused by back pain resulting from plaintiff’s
fall, Dr. Wheeler testified that the work-related injuries “could or might have
. . . contributed” to plaintiff’s impotence.
Our Supreme Court has held “that the
entirety of causation evidence” must “meet the reasonable degree of medical
certainty standard necessary to establish a causal link between plaintiff’s”
accident and their injury. Holley,
357 N.C. at 234, 581 S.E.2d. at 754.
“Although medical certainty is not required, an expert’s ‘speculation’
is insufficient to establish causation.”
Id.
The doctor in Alexander expressed
her causation opinion “repeatedly and without equivocation” that plaintiff’s
injury “likely . . . occurred during the accident.” ___ N.C. App. at ___, 603 S.E.2d at 558. While plaintiff’s expert did not testify
plaintiff’s impotence “likely . . . occurred during” the work-related accident,
his treatment note opined that plaintiff’s “impotence is, more likely than not,
related to his injury.” Id. Although Dr. Wheeler’s later testimony used
the terms “‘could’ or ‘might,’” Holley, 357 N.C. at 232, 581
S.E.2d. at 753, and was not “without equivocation” as shown by Dr. Wheeler’s
conflicting testimony and his medical notes, the Commission is the “sole judge”
of Dr. Wheeler’s credibility, Alexander, ____ N.C. App. at ___,
603 S.E.2d at 558. Credibility issues caused
by any variance in Dr. Wheeler’s treatment notes and his later testimony was
for the Commission to decide.
Harrell, 45 N.C. App. at 205, 262 S.E.2d at 835 (“[T]he Commission
is the sole judge of the credibility of witnesses and may believe all or a part
or none of any witness’s testimony . . . .”).
In both Edmonds and Alexander,
our Supreme Court reaffirms the holding in Holley that “mere possibility
has never been legally competent to prove causation. Although medical certainty is not required, an expert’s
‘speculation’ is insufficient to establish causation.” Holley, 357 N.C. at 234, 581 S.E.2d
at 754 (internal citation omitted); Edmonds, 165 N.C. App. at 818, 600
S.E.2d. at 506; Alexander, ___ N.C. App. at ___, 603 S.E.2d at
558. In reversing the Commission, the Holley
Court noted, “plaintiff’s doctors were unable to express an opinion to any
degree of medical certainty as to the cause of plaintiff’s [injury].” Id.
Plaintiff’s expert evidence of
causation exceeded “speculation.” Dr.
Wheeler’s testimony of “could or might,” together with his impression recorded
in his treatment notes that plaintiff’s injury “more likely than not [was]
related to his injury” is competent evidence to sustain the Commission’s
conclusion of law that plaintiff’s impotence and urination conditions were
caused by the accident. Id. at
234, 581 S.E.2d at 754; Edmonds, 165 N.C. App. at 818, 600 S.E.2d. at
506; Alexander, ___ N.C. App. at ___, 603 S.E.2d at 558. The Commission’s finding of fact is
supported by competent evidence in the record.
Its conclusion of law awarding compensation for plaintiff’s urological
condition is affirmed.
B. Psychological Condition
Defendant contends the Commission
erred by finding:
Dr. Brian A.
Simpson, a psychologist, testified that there is a “very strong linkage”
between plaintiff’s development of depression, the accident on February 21,
1997, and “the other events that precipitated, such as chronic pain, such as
functional limitations, such as occupation loss . . . .” Dr. Simpson further testified[,] “it would
be very improbable” that plaintiff’s depression began only after he was
terminated, and that in his opinion plaintiff’s termination aggravated his
depression, which “pre-existed the termination from work.” The greater weight of the evidence
establishes that plaintiff’s depression is causally related to the accident on
February 21, 1997.
Dr. Simpson’s
deposition expert testimony supports this finding of fact. Dr. Simpson testified, that in his expert
opinion, “a very strong linkage” exists between the injury and plaintiff’s
development of depression. He also
opined, “I think it would be very improbable that [plaintiff] did not suffer
depression until his termination in February of 2000 and then, as a result of
that termination, develop depression. . . .
It is my opinion though that the termination of his employment did
aggravate his depression.” Further, Dr.
Simpson testified:
It was my
opinion though and based upon the sequence of events that occurred from the
time of his injury that – that the development of depression pre-existed the
termination from work and pre-existed the marriage rupture, but did develop
subsequent to and related to his injury and chronic pain and the other events
that occurred following that
. . . .
I would submit that in reconstructing the sequence of events that his falling as a work injury and the medical complications of that, that it would be reasonable to believe that depression then developed rather rapidly following that injury.
Dr. Simpson’s testimony
of “a very strong linkage” regarding the causation of plaintiff’s psychological
condition to his accident is sufficient “to take the case out of the realm of
conjecture and remote possibility . . . .” Holley, 357 N.C. at 232, 581 S.E.2d at 753 (quoting Gilmore
v. Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296
(1942)). Competent evidence supports
the Commission’s finding of fact. This
assignment of error is overruled.
VIII. Medical Expenses
Defendant argues the Commission
erred by requiring them to pay all medical expenses, not just related medical
expenses, on behalf of plaintiff. We
disagree.
Defendant argues the Commission’s
opinion and award is overly broad by ordering defendant to pay for a
“comprehensive evaluation of all of plaintiff’s medical conditions” and then
pay for “any treatment recommended by it.”
In support of this assignment of error, defendant fails to cite any
authority for this proposition other than their cite to “N.C. Gen. Stat.
§97(2)” and the broad assertion that “the Order violates the Workers’
Compensation Act.” N.C. Gen. Stat.
§97-2, which we presume is the statute defendant attempts to cite as authority,
is the section entitled “Definitions” of the Workers’ Compensation Act. Defendant fails to argue how this statute
applies to their assignment of error or which portions of this statute are
applicable. Under Rule 28 of the North
Carolina Rules of Appellate Procedure, “[a]ssignments of error . . . in support
of which no reason or argument is stated or authority cited, will be taken as
abandoned.” N.C.R. App. P. 28(b)(6)
(2004); see also Bass, ___ N.C. App. at ___, 603 S.E.2d at 388.
We do not reach the merit of this assignment of error and it is
dismissed.
IX. Conclusion
The Commission did not err in
finding defendant failed to satisfy their burden under Seagraves to show
plaintiff was terminated for misconduct and not as a result of his compensable
injury. The Commission did not err in
considering attorney Cobourn’s affidavit, despite the fact defendant did not
have an opportunity to cross-examine him.
The affidavit contained no “significant new evidence” and plaintiff and
his wife had testified to those facts. Cummins,
149 N.C. App. at 185, 560 S.E.2d at 372.
Collateral estoppel does not bar plaintiff’s claim for workers’
compensation before the Commission even though the ESC reached a different
disposition on plaintiff’s unemployment benefits. Competent evidence in the record supports the Commission’s
finding of fact that plaintiff’s injury at work caused his psychological
condition.
Competent evidence in the record
supports the Commission’s finding of fact that plaintiff’s impotence and
urological condition were caused by his accident on 21 February 1997.
The Commission failed to make adequate
findings of fact to show plaintiff proved his total disability or is “capable
of some work.” Springer, 160
N.C. App. at 577, 586 S.E.2d at 556. We
remand for entry of findings of fact on this issue.
The opinion and award is affirmed in
part and remanded for further findings of fact on plaintiff’s total disability.
Affirmed in part and Remanded.
Judge MCGEE concurs.
Judge WYNN concurs in the result
only by separate opinion.
NO.
COA04-491
NORTH CAROLINA
COURT OF APPEALS
Filed: 7 June
2005
JOHNNY E. WORKMAN,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 695878
RUTHERFORD ELECTRIC MEMBERSHIP
CORPORATION,
Employer,
SELF INSURED (FEDERATED RURAL
ELECTRIC INSURANCE EXCHANGE,
Third Party Administrator),
Defendant.
WYNN, Judge concurring with separate
opinion.
I respectfully concur in the result
from the majority’s decision to affirm the Commission’s finding of fact on
causation of Mr. Workman’s urological condition. Following our Supreme Court’s decision in Alexander v.
Wal-Mart Stores, Inc., __ N.C. App. __, __, 603 S.E.2d 552, 558 (2004)
(Hudson, J., dissenting), rev’d per curiam, 359 N.C. 403, 610 S.E.2d 374
(2005), since there was competent evidence that Mr. Workman’s urological
condition was “more likely than not” caused by his work-place injury, and all
of the evidence supports a conclusion of total disability, I would affirm the
Commission’s Opinion and Award.[1] Furthermore, while it is appropriate to
remand for entry of findings of fact on the issue of total disability, under
the facts of this case, such a remand is unnecessary and does not promote
judicial economy.
Causation under
the Workers Compensation Act
In North Carolina, the underlying
purpose of the North Carolina Workers’ Compensation Act is to provide
compensation to workers whose earning capacity is diminished or destroyed by
injury arising from their employment. McRae
v. Toastmaster, Inc., 358 N.C. 488, 493, 597 S.E.2d 695, 699 (2004). A longstanding rule of construction is that the
Workers’ Compensation Act should be liberally construed so that the benefits
under the Act will not be denied by narrow, technical, or strict
interpretation. Hollman v. City of
Raleigh, Pub. Util. Dep’t, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968); Cates
v. Hunt Constr. Co., Inc., 267 N.C. 560, 563, 148 S.E.2d 604, 607 (1966).
After thoroughly reviewing the
depositions and medical notes of Dr. Anthony Wheeler and Dr. Dominick Carbone,
I conclude that there is competent evidence to support the Commission’s finding
of fact. The finding states in part,
“[u]pon consideration of the testimony of Dr. Wheeler, Dr. Dominick Carbone,
and the record as a whole, the greater weight of the evidence establishes that
plaintiff’s impotence, . . . [was] caused by the accident on February 21,
1997.”
Where, as here, medical opinion
testimony is required, “medical certainty is not required, [but] an expert’s
‘speculation’ is insufficient to establish causation.” Holley v. ACTS, Inc., 357 N.C. 228,
234, 581 S.E.2d 750, 754 (2003). In the
instant case, there was competent evidence to allow the Commission to determine
that the accident at work caused Plaintiff’s injury. And under Adams, even in determining causation, the
Commission’s finding of fact must stand if supported by any competent evidence.
Adams v. AVX Corp., 349 N.C.
676, 681, 509 S.E.2d 411, 414 (1998) (citation omitted). Indeed, the record shows that Dr. Wheeler
stated that it was “more likely than not” that the impotence was related to Mr.
Workman’s injury. This is more than
mere speculation, it is a preponderance of the evidence; thus, it is competent
evidence of causation. See Holley,
357 N.C. at 232-33, 581 S.E.2d at 753; Phillips v. U.S. Air, Inc., 120
N.C. App. 538, 541, 463 S.E.2d 259, 261 (1995) (the plaintiff must prove
causation by a “greater weight” of the evidence or a “preponderance” of the
evidence), aff’d, 343 N.C. 302, 469 S.E.2d 552 (1996). Therefore, there is competent evidence to
support the finding of fact.
I write separately to further point
out that under the standard of review the record need not show that all
of the evidence shows the doctor expressed his or her causation opinion
“without equivocation.” See
Alexander, __ N.C. App. at __, 603 S.E.2d at 558. Under our standard of review, our Supreme Court has stated many
times that the role of this Court is limited to determining “whether any
competent evidence supports the Commission’s findings of fact and whether the
findings of fact support the Commission’s conclusions of law.” Deese v.
Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Our review “‘goes no further than to
determine whether the record contains any evidence tending to support the
finding.’” Adams, 349 N.C. at
681, 509 S.E.2d at 414 (citation omitted).
The Commission’s findings of fact “are conclusive on appeal when
supported by competent evidence,” even if there is evidence to support a
contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282
S.E.2d 458, 463 (1981), and may be set aside on appeal only “when there is a
complete lack of competent evidence to support them[.]” Young v. Hickory
Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). Further, all evidence must be taken in the
light most favorable to the plaintiff, and the plaintiff “is entitled to the
benefit of every reasonable inference to be drawn from the evidence.” Deese, 352 N.C. at 115, 530 S.E.2d at
553.
In Alexander, our Supreme
Court reiterated the role of this Court by adopting Judge Hudson’s dissent stating,
“I do not believe it is the role of this Court to comb through the testimony
and view it in the light most favorable to the defendant . . . this Court’s
role is not to engage in such a weighing of the evidence.” Alexander, __ N.C. App. at __, 603
S.E.2d at 558. The majority states
that, “The doctor in Alexander expressed her causation opinion
‘repeatedly and without equivocation’ . . ..”
But to be sure, the complete statement from Alexander was that “much
of the evidence reveals that the doctor expressed her opinions repeatedly and
without equivocation.” Id.
(emphasis supplied). Thus, Alexander
does not require that all of the evidence must show that the doctor
expressed his opinion “without equivocation.”
Here, where the records of Dr.
Wheeler support the Commission’s finding, when viewed in light of the standard
of review, the finding should be upheld.
See Alexander, __ N.C. App. at __, 603 S.E.2d at 558; Adams,
349 N.C. at 681, 509 S.E.2d at 414 (holding that the decision concerning what
weight to give expert evidence is a duty for the Commission and not this
Court).
As the record shows competent testimony on causation by Dr. Wheeler that is not speculative, but expresses a competent expert opinion, I would conclude that under our caselaw the Commission’s finding is supported by competent evidence. Accordingly, the opinion and award of the Commission should be affirmed.
Remand for
Findings on Disability
“Ordinarily, when an agency fails to
make a material finding of fact or resolve a material conflict in the evidence,
the case must be remanded to the agency for a proper finding.” N.C. Dep’t of Env’t & Natural Res. v.
Carroll, 358 N.C. 649, 674, 599 S.E.2d 888, 904 (2004) (citation
omitted). But further proceedings are
neither necessary nor advisable when all evidence in the record points to only
one conclusion. Id. at 675, 599
S.E.2d at 904. See State v.
Daughtry, 340 N.C. 488, 514, 459 S.E.2d 747, 760 (1995) (trial court erred
by failing to make a finding of fact that a statement possessed the requisite
trustworthiness, however, the record sustained the trial court’s conclusion
making the error harmless). Because the
evidence in this matter pointed to only one conclusion, and Defendant offered
no evidence in rebuttal, I would find it unnecessary to remand this matter to
the Commission for administrative entry of the proper findings.
The Commission is required to
determine whether competent evidence exists to support a finding of disability
based on the presentation of evidence that he is capable of some work, but has
after a reasonable effort been unsuccessful in his efforts to obtain
employment; or evidence that he is capable of some work but that it would be
futile because of preexisting conditions to seek other employment. Russell v. Lowes Prod. Distrib., 108
N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). Once the plaintiff satisfies his burden of proof to establish one
of the elements under Russell, the burden shifts to the defendant to
“come forward with evidence to show not only that suitable jobs are available,
but also that the plaintiff is capable of getting one . . ..” Burwell v. Winn-Dixie Raleigh, Inc.,
114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994) (emphasis omitted).
While, the Commission failed to make
findings of fact on this evidence, the record shows, and the majority agrees,
that Plaintiff presented evidence that
he sought employment but was unsuccessful in obtaining a job. However, there is no evidence in the record
that Defendants rebutted Plaintiff’s evidence.
Like in Carroll, further
proceedings are unnecessary as the record points to only one conclusion: That Plaintiff sought employment but was
unable to obtain a job and Defendants failed to rebut Plaintiff’s evidence. Therefore, it is unnecessary to remand to
the Commission for further findings. Carroll,
358 N.C. at 675, 599 S.E.2d at 904.
[1] I agree with the
majority’s holding in that it finds that the Commission did not err in finding
and concluding that the employer’s decision to terminate Plaintiff was not for
misconduct or fault; the Commission did not err in considering Cobourn’s
affidavit; collateral estoppel does not bar Plaintiff’s claim for workers’
compensation; and competent evidence in the record supports the Commission’s
finding of fact that Plaintiff’s injury at work caused his psychological
condition.