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NO. COA03-1044
NORTH CAROLINA COURT OF APPEALS
Filed: 17 August 2004
ELIZABETH EDMONDS,
Employee-Plaintiff
v. North Carolina Industrial Commission
I.C. File No. 840298
FRESENIUS MEDICAL CARE,
Employer
SELF-INSURED (RSKCO,
Servicing Agent),
Defendant
Appeal by defendant from an opinion and award entered 5 May 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 May 2004.
Randy
D. Duncan, for plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Mel J. Garofalo and Shannon P.
Herndon, for defendant-appellant.
CALABRIA,
Judge.
Fresenius
Medical Care (“defendant”) appeals from an opinion and award of the North
Carolina Industrial Commission (the “Commission”), awarding Elizabeth Edmonds
(“plaintiff”) workers’ compensation benefits for a work-related injury that
occurred on 6 February 1998. We affirm.
Plaintiff,
formerly a director of nursing for defendant, sustained a compensable back
injury when she tried to prevent a file cart from overturning. In order to
treat plaintiff’s injury, plaintiff underwent various surgical procedures and
was placed on numerous medications, including morphine administered through a
surgically-placed internal pump and oral non-steroidal anti-inflammatory drugs
(“non-steroidals”). Plaintiff was evaluated as having a twenty-five percent
permanent partial disability rating to her back and as being capable of light
duty work. Nonetheless, because of continuing pain and the morphine pump,
plaintiff was unable to operate a motor vehicle to travel to and from work.
Further
evidence presented to the Commission showed that plaintiff was diagnosed as an
insulin-dependent Type I diabetic in 1978. In addition to her diabetes,
plaintiff is also hypertensive. Creatinine levels in plaintiff’s urine jumped
from a normal level of .7 in December of 1997 prior to the compensable injury
to an abnormally high level of 1.2 in October 2001 after treatment of her
compensable injury with the non-steroidals. Dr. W. Patrick Burgess (“Dr.
Burgess”), an internist and nephrologist, explained that the increasing
creatinine levels in plaintiff’s urine indicated reduced renal function.
Plaintiff
filed for workers’ compensation benefits for back and urological injuries due
to the accident on 6 February 1998. Although defendant initially admitted
plaintiff’s right to compensation, on 22 May 2001, defendants requested a
hearing on whether termination of benefits was proper on the grounds that
suitable employment had been found for plaintiff. In plaintiff’s response,
plaintiff requested a “determination if [plaintiff’s] diabetes, urological and other
conditions have been caused or aggravated by the injury at work and treatment,
and whether defendants are responsible.”
In
an opinion and award filed 23 August 2002, the deputy commissioner concluded
defendant failed to prove plaintiff unjustifiably refused suitable employment
and plaintiff failed to prove the non-steroidals taken during treatment of her
compensable back injury worsened her kidney problems or was the cause of any
decrease in her renal function. Both parties appealed, and in an order filed 5
May 2003, the Commission affirmed the deputy commissioner’s conclusion
regarding whether plaintiff unjustifiably refused suitable employment. However,
the Commission went on to conclude, based in part on the deposition testimony
of Dr. Burgess, that plaintiff had “proved by the greater weight of the
evidence that the non-steroidal medications taken by plaintiff because of her
compensable back injury worsened or exacerbated her pre-existing kidney
problems.” Defendant appeals.
On
appeal, defendant asserts the Commission erred in concluding plaintiff’s
pre-existing kidney problems were worsened or exacerbated by the non-steroidals
taken as part of her treatment for the compensable back injury. Specifically,
defendant contends the Commission’s reliance on Dr. Burgess’ deposition
testimony is misplaced for a number of reasons, including (1) that his opinion
regarding medical causation failed to rise to the level of a reasonable degree
of medical certainty, was hypothetical and based on assumptions regarding
dosage and timing of the non-steroidals and (2) that there were other possible
sources other than the non-steroidals that could have caused plaintiff’s kidney
problems. In short, defendant argues Dr. Burgess’ testimony amounted to nothing
more than mere speculation which was not sufficiently reliable to rise to the
level of competent evidence upon which the Commission’s finding of fact, that
the non-steroidals taken by plaintiff worsened her kidney problems, could be
predicated.
In
reviewing the Commission’s opinion and award, this Court is limited to
determining “(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). “‘[T]he findings of fact of
the Industrial Commission are conclusive on appeal when supported by competent
evidence, even though there be evidence that would support findings to the contrary.’“
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Jones
v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)).
The
employee bears the burden of establishing that his worker’s compensation claim
is compensable. Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750,
752 (2003). Where there exists a reasonable relationship between the injury and
the employment, the injury is compensable as work-related. Id. “[T]he
[employee] must prove that the accident was a causal factor [of the injury] by
a ‘preponderance of the evidence[.]’“ Id., 357 N.C. at 232, 581 S.E.2d
at 752 (quoting Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C.
155, 158-59, 357 S.E.2d 683, 685 (1987)). The competency of expert opinion testimony
for determinations of causation in complicated medical questions (or those
questions above the layman’s ordinary experience and knowledge) turns on
whether the opinion is based on mere speculation or conjecture. Young v.
Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000). If the
opinion is based on mere speculation or conjecture, it is not sufficiently
reliable to constitute competent evidence. Id. Thus, in Holley,
our Supreme Court explained that such expert opinion testimony must “‘take the
case out of the realm of conjecture and remote possibility’“ in order to
constitute “‘sufficient competent evidence tending to show a proximate causal
relation’“ between the injury and the work-related accident. 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)). Where the expert’s opinion is
that there “could” or “might” be a causal relationship, it is admissible if
helpful for purposes of showing medical causation; however, it is not
sufficiently reliable to constitute competent evidence of medical causation,
especially if additional evidence suggests such testimony was merely a guess. Id.,
357 N.C. at 233, 581 S.E.2d at 753.
In
the instant case, the Commission found, in relevant part, as follows:
Given
the evidence of record that renal failure can occur in individuals with a short
exposure history to non-steroidal anti-inflamatories, and Dr. Burgess’s
testimony indicating a possible link between plaintiff’s worsening renal
condition and her use of non-steroidal anti-inflamatories, the Full Commission
finds that plaintiff’s use of such medication to treat her back injury more
likely than not worsened or exacerbated her pre-existing kidney problems.
The Commission went on to conclude
plaintiff proved by the greater weight of the evidence that the exposure to
non-steroidals was the medical cause of her deteriorated renal function and
awarded compensation.
Dr.
Burgess testified that plaintiff’s renal insufficiency could possibly be
attributable to any one of four causes: (1) diabetes, (2) hypertension, (3)
exposure to non-steroidals, and (4) a combination of the preceding three
possibilities. Dr. Burgess defined “possible” as something that was “not out of
the realm of being something we see happening.” He also gave conflicting
testimony regarding his familiarity with the timing and dosage of the
non-steroidal treatment administered to plaintiff. Standing alone, such
testimony clearly lacks sufficient reliability to constitute competent evidence
of medical causation under Holley.
Nonetheless,
later in his testimony, Dr. Burgess clarified his earlier testimony regarding
the possibilities of medical causation as follows:
One
of [hypertension, diabetes, the exposure to the non-steroidals, or some
combination] is the most likely. . . . What’s against the hypertension is, the
length of time of hypertension hasn’t really been long enough to be
hypertension. What’s against the diabetes is, the findings of a fairly normal
sized or even small kidney and little or no protein in the urine are both
indicators that she does not -- it is probably not diabetic nephrosclerosis.
Now, she has in her history had a period of time when she had protein in her
urine, but my explanation for that is, both of those times when she was told
she had protein in her urine, her diabetes was out of control, and diabetes out
of control does induce proteinuria or protein in the urine. So I think she had
protein in her urine a couple times, but those were both related to episodes of
high sugar. . . . I think [the exposure to the drugs is] the highest
probability.
Moreover, Dr. Burgess testified that
renal involvement resulting from “chronic medical illness[es],” such as
hypertension or diabetes, would result in creatinine levels that
would
probably continue changing . . . . The fact that they took a step change is
probability wise more in favor of an acute injury; that now the drug has been
removed, the injury has been -- whatever the injury was, it’s there, and it’s
no longer -- the insult is gone, so she’s staying the same. That’s the more
likely explanation.
Finally, Dr. Burgess reiterated that a
change in creatinine levels due to exposure to the non-steroidals
would
occur during [the period of time when she was taking the non-steroidals] and
when the drug is removed, then there would be possibility of a little
improvement and then stabilization. If it was diabetes [or hypertension] . . .
I would expect . . . just a slow progression . . . . That’s just the way they
tend to react. It’s a systemic disease that’s a part of her. If, on the other
hand, it’s something external to her like an injury, then I would expect there
would be a step change and then stabilization, which is sort of how she’s
acting.
Thus, while Dr. Burgess’ testimony is not
ideally conclusive, it is clear that Dr. Burgess specifically itemized the
possible causes of plaintiff’s renal insufficiency, systematically analyzed
those causes, and finally determined exposure to the non-steroidals was the
cause that had the “highest probability.”
Dr.
Burgess similarly clarified his testimony regarding his familiarity with the
details of plaintiff’s exposure to the non-steroidals. Dr. Burgess stated that,
when he first saw plaintiff, he had not researched her exposure to the
non-steroidal treatment and did not “have the details or how many months or
years [plaintiff had taken the non-steroidals.]” Nonetheless, Dr. Burgess was
able to expressly affirm that plaintiff “took the medication over a long enough
period of time” based upon the information with which he had been provided. He
further testified that if plaintiff “came back and told [him] it was only for a
week, I would have trouble making that association [between the period of
exposure to the non-steroidal and the reduced renal function]. But if it had
been months or years, then that’s another issue.”
Thus,
while Dr. Burgess indicated an inability to state with a reasonable degree of
medical certainty that the non-steroidals were the cause of plaintiff’s renal
insufficiency, it does not necessarily follow that his testimony was not
competent evidence of medical causation. The Commission’s reliance on expert
testimony regarding medical causation in workers’ compensation awards does not,
as defendant seems to argue, rise or fall on a doctor’s use of the term
“reasonable degree of medical certainty.” Rather, under Holley, “could”
or “might” testimony, standing alone, is insufficient to show medical
causation, especially where there exists additional evidence tending to show
the expert’s testimony is merely speculation or conjecture. However, in the
instant case, the expert testimony consisted of more than “could” or “might”
testimony, and additional evidence tended to show that Dr. Burgess’ testimony
was the product of a reasoned medical analysis as opposed to mere speculation.
Accordingly, Dr. Burgess’ testimony constituted competent evidence supporting
the findings of fact by the Commission, which, in turn, supported the
conclusion of law that plaintiff proved “by the greater weight of the evidence
that the non-steroidal medications taken by plaintiff because of her
compensable back injury worsened or exacerbated her pre-existing kidney
problems.” Defendant’s assignments of error are overruled.
Affirmed.
Judge
WYNN concurs.
Judge
STEELMAN dissents.
NO. COA03-1044
NORTH CAROLINA COURT OF APPEALS
Filed: 17 August 2004
ELIZABETH EDMONDS,
Employee-Plaintiff
v. North Carolina Industrial Commission
I.C. File No. 840298
FRESENIUS MEDICAL CARE,
Employer
SELF-INSURED (RSKCO,
Servicing Agent),
Defendant
STEELMAN,
Judge dissenting.
I
must respectfully dissent from the majority opinion based upon the holdings of
our Supreme Court in Holley v. Acts, Inc., 357 N.C. 228, 581 S.E.2d 750
(2003), and Young v. Hickory Bus. Furniture, 353 N.C. 227, 538 S.E.2d
912 (2000).
In
reviewing findings of fact of the Industrial Commission (the “Commission”), our
standard of review is to determine whether those findings are supported by
competent evidence. Faison v. Allen Canning Co., __ N.C. App. __, __,
594 S.E.2d 446, 448 (2004). If so, then they are binding on appeal, even though
there was evidence to support contrary findings. McRae v. Toastmaster,
__ N.C. __, __, __ S.E.2d __, __ (2004). It is not the role of the appellate
courts to sift through the evidence and find facts that are different from
those actually found by the Commission.
In
this case, Dr. Burgess’s testimony on medical causation was conflicting. The
Industrial Commission made the following findings of fact causally connecting
plaintiff’s treatment with non-steroidal anti-inflammatory drugs to her renal
failure:
19. Dr.
Burgess testified that plaintiff’s exposure to the non-steroidal
anti-inflammatory drugs, “possibly” or “could or might” have worsened
plaintiff’s kidney function. Dr. Burgess could not say that it was probable; he
could only say that it was possible. He stated he could not give an opinion, to
a reasonable degree of medical certainty, without knowing all the information
surrounding the drugs. Dr. Burgess testified that plaintiff’s kidney disease
could be attributed to a number of factors, including diabetes, hypertension, a
drug source injury, or a blunt trauma injury. Finally, Dr. Burgess testified
that because plaintiff had both diabetes and hypertension, she is more likely
to need dialysis.
20. Given
the evidence of record that renal failure can occur in individuals with a short
exposure history to non-steroidal anti-inflamatories, and Dr. Burgess’s
testimony indicating a possible link between plaintiff’s worsening renal
condition and her use of non-steroidal anti-inflamatories, the Full Commission
finds that plaintiff’s use of such medication to treat her back injury more
likely than not worsened or exacerbated her pre-existing kidney problems.
Based upon these findings, the Commission
concluded that plaintiff showed, by the greater weight of the evidence, that
the non-steroidal medications taken to treat her compensable back injury
exacerbated her pre-existing kidney problems.
In
Holley our Supreme Court stated:
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.”
Holley, 357 at 233, 581 S.E.2d at 753 (internal citations
omitted).
In
this case, the only medical testimony linking the administration of
non-steroidal anti-inflammatory drugs to plaintiff’s reduced renal function was
that of Dr. Burgess. As found by the Commission, his testimony was only that
the drugs “possibly” or “could or might” have caused plaintiff’s renal
problems. Further, the Commission found that Dr. Burgess could not give an opinion
to a reasonable degree of medical certainty on causation. This testimony does
not rise above a guess or mere speculation and does not meet the requirements
set forth in Holley. Id.
Clearly,
the Commission recognized the weakness of Dr. Burgess’s testimony and attempted
in finding of fact twenty to buttress his opinion with testimony of other
witnesses that a short exposure to non-steroidal anti-inflamatories can result
in renal failure. The Commission thus attempted to link together the testimony
of several expert witnesses and render its own medical opinion that the
medications “more likely than not worsened or exacerbated her pre-existing
kidney problems.” Further, Dr. Burgess also testified that a short exposure to
non-steroidal anti-inflamatories can result in renal failure yet he did not
reach the same conclusion as the Commission. It is not the role of the
Commission to render expert opinions. In cases involving complex medical
questions, only an expert can give opinion evidence as to the cause of an
injury. Holley, 357 at 232, 581 S.E.2d at 753.
I
would hold that plaintiff has failed to prove that her loss of renal function
was causally related to the administration of non-steroidal anti-inflamatories.
Without that causal link, the kidney injuries did not arise out of a
compensable injury and she is not entitled to compensation for those injuries
under Chapter 97.