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NO. COA07-874
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2008
ELSIE J. KELLY, Sister of
BETTY JEAN JEFFREYS,
Deceased
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 924879
DUKE
UNIVERSITY, Employer,
(Self-Insured),
Defendant.
Appeal by defendant from an Opinion and Award filed 27 April
2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals
16 January 2008.
Lennon
& Camak, P.L.L.C., by George W. Lennon and Michael W. Bertics, for
plaintiff appellee.
Cranfill,
Sumner & Hartzog, L.L.P., by Jonathan C. Anders and Meredith L. Taylor, for
defendant appellant.
McCULLOUGH, Judge.
Defendant appeals an Opinion and Award of the North Carolina
Industrial Commission (“the Commission”), finding that Betty J. Jeffreys
(“decedent”) died as a proximate result of a compensable occupational disease
and awarding decedent’s sole surviving sibling, Elsie J. Kelley (“plaintiff”),
death benefits pursuant to N.C. Gen. Stat. §97-38 (2007).
The evidence before the Commission tended to show that
decedent began working as a medical secretary in the Anesthesia Department at
Duke University Medical Center (“defendant”) on 13 March 1996.
As part of decedent’s job responsibilities, decedent
provided secretarial and administrative support to an exceptionally demanding
doctor. This doctor criticized decedent
in the presence of others and was generally abusive towards her. The extreme
stress of decedent’s work environment exacerbated her pre-existing diabetic
condition and caused her overall health to deteriorate. With the aggravation of her diabetic
condition, in April 1997, decedent began to experience a loss of most of the
vision in her right eye. In January
1998, decedent lost most of the vision in her left eye. Despite her vision problems, decedent
continued to work for defendant until 1 April 1999, when she was placed on
disability retirement.
On 8 April 1999, decedent filed a Form 18, claiming that
while employed by defendant, decedent sustained an injury by accident or
occupational disease on 11 April 1997 as a result of mental stress induced by
her work environment.
On 28 December 2000, following a hearing of the matter,
Deputy Commissioner Jones of the North Carolina Industrial Commission (“Deputy
Commissioner Jones”) filed an Opinion and Award concluding that decedent had
contracted a compensable occupational disease in which her stressful work
environment aggravated and accelerated her pre-existing diabetic condition,
anxiety, depression, and carpal tunnel syndrome. Deputy Commissioner Jones
concluded that decedent’s diabetes resulted in decedent’s loss of vision in
both eyes and awarded decedent total disability compensation benefits pursuant
to N.C. Gen. Stat. §97-29 (2007) beginning on 1 April 1999.
On 2 February 2001, Dr. Scott V. Joy began treating
decedent’s various conditions, including her insulin-dependent diabetes. Decedent routinely documented her glucose
levels in logbooks, which Dr. Joy reviewed during their appointments. These
glucose levels began increasing significantly in 2003, and Dr. Joy considered
treating decedent with a continuous glucose monitor.
On 7 January 2004, decedent called Dr. Scott’s triage nurse,
stating that she had been sick for three weeks with chest congestion and a
cough. Based on this phone call, Dr.
Joy diagnosed decedent with an upper respiratory infection and prescribed her
an antibiotic. On 10 January 2004,
decedent died. Decedent did not leave behind any dependents and was survived
only by plaintiff, her sister.
Although no one performed an autopsy on decedent to
determine the cause of decedent’s death, Dr. Joy stated that it was a common
practice to complete a death certificate without performing an autopsy. Dr. Joy opined that although it was possible
that decedent died due to complications from her respiratory infection, the
most likely cause of decedent’s death was a cardiovascular event secondary to
complications of diabetes. Defendant
did not offer any medical evidence to rebut Dr. Joy’s opinion.
The Commission found that decedent’s death was proximately
caused by complications from her compensable diabetic condition and awarded
plaintiff death benefits pursuant to N.C. Gen. Stat. §97-38 and funeral
expenses pursuant to N.C. Gen. Stat. §97-40 (2007). In addition, the Commission
concluded that pursuant to N.C. Gen. Stat. §97-31 (2007), plaintiff’s estate had
a vested right to payment of 240 weeks of compensation for decedent’s
industrial blindness.
On appeal, defendant contends that the Commission erred by:
(1) failing to conclude that plaintiff’s claim for death benefits was barred by
the statute of limitations set forth in N.C. Gen. Stat. §97-38; (2) making
findings of fact that are not supported by competent evidence; and (3) allowing
plaintiff to recover damages under both N.C. Gen. Stat. §97-29 (2007) and N.C.
Gen. Stat. §97-31. In addition, plaintiff seeks an award of attorney’s fees
under N.C. Gen. Stat. §97-88 (2007).
I. Statute of
Limitations
Defendant first contends that the Commission erred by
failing to conclude that plaintiff’s claim was barred by the statute of
limitations set forth in N.C. Gen. Stat. §97-38. Specifically, defendant
contends that because the parties stipulated throughout the proceedings that
decedent’s injury occurred on 11 April 1997, the statute of limitations began
to run as of that date and the Commission was without authority to determine
that decedent was not disabled until 1 April 1999. Because we find that “date
of injury” and “date of disability” are terms of art under N.C. Gen. Stat.
§97-2 (2007), we disagree.
Death benefits under the Workers’ Compensation Act are
governed by N.C. Gen. Stat. §97-38, which provides, in pertinent part:
If death
results proximately from a compensable injury or occupational disease
and [occurs] within six years thereafter, or within two years of
the final determination of disability, whichever is later . . . the employer
shall pay . . . compensation[.]
Id.
We have held that in an occupational disease case, the
six-year statute of limitation provided by §97-38 begins to run from the date
of the employee’s “disability,” as defined by N.C. Gen. Stat. §97-2(9), which
is the “‘incapacity because of injury to earn the wages which the employee was
receiving at the time of injury in the same or any other employment.’” Joyner v. J.P. Stevens and Co., 71
N.C. App. 625, 626, 322 S.E.2d 636, 637 (1984) (citation omitted), disc.
review denied, 313 N.C. 330, 327 S.E.2d 891 (1985). “Injury,” on the other
hand, is defined by N.C. Gen. Stat. §97-2(6), which provides that the term
“‘[i]njury . . .’ shall mean only injury by accident arising
out of and in the course of the employment, and shall not include a disease
in any form[.]”
Thus,
it is clear that under §97-2, “injury” and “disability” do not have the same
meanings.
Because the case before us is an occupational disease case
as opposed to an injury by accident case, we find that the date relevant for
purposes of the statute of limitations is the “date of disability” rather than
the “date of injury.” Here, the statute
of limitations began to run on the date of disability, 1 April 1999, which the
Commission found to be the date that decedent became incapable of earning the
wages that she was receiving at the time of the injury. The fact that decedent
began experiencing symptoms of her occupational disease on 1 April 1997, the
stipulated date of injury, is irrelevant to our analysis, as decedent
maintained her original earning capacity until 1 April 1999. As such, the
Commission properly concluded plaintiff’s claim was not barred by the statute
of limitations set forth in N.C. Gen. Stat. §97-38. Accordingly, this
assignment of error is overruled.
II. Cause of
Decedent’s Death
Next, defendant contends that the Commission’s finding of
fact as to the cause of decedent’s death is not supported by competent evidence
of record. Defendant argues that Dr. Joy’s opinion was insufficient, as it was
based solely on statistical data and no autopsy was performed to determine the
actual cause of decedent’s death. We disagree.
In reviewing a decision by the Commission, this Court’s role
“is limited to determining whether there is any competent evidence to support
the findings of fact, and whether the findings of fact justify the conclusions
of law.” Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409
S.E.2d 103, 104 (1991). The Commission’s findings of fact are conclusive upon
appeal if supported by competent evidence, even if there is evidence to support
a contrary finding. Morrison v.
Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981). On
appeal, this Court may not reweigh the evidence or assess credibility. Adams
v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh’g
denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Findings of fact may be set
aside on appeal only “when there is a complete lack of competent evidence to
support them[.]” Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538
S.E.2d 912, 914 (2000).
The plaintiff in a workers’ compensation case bears the
burden of initially proving “each and every element of compensability,”
including a causal relationship between the injury and his employment. Whitfield
v. Laboratory Corp. of Am., 158 N.C. App. 341, 350, 581 S.E.2d 778, 784
(2003). Plaintiff must prove causation by a “greater weight” of the evidence or
a “preponderance” of the evidence. Phillips v. U.S. Air, Inc., 120 N.C.
App. 538, 541-42, 463 S.E.2d 259, 261 (1995), aff’d, 343 N.C. 302, 469
S.E.2d 552 (1996).
In cases involving complicated medical questions, only an
expert can give competent opinion testimony as to the issue of causation. Click
v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). 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). An expert witness’s passing use
of the word “speculate,” however, does not necessarily establish that the
witness engaged in speculation. Id. Further, the degree of the doctor’s
certainty goes to the weight of his testimony. Martin v. Martin Bros. Grading,
158 N.C. App. 503, 507-08, 581 S.E.2d 85, 88, cert. denied, 357 N.C.
579, 589 S.E.2d 127 (2003). The decision concerning what weight to give expert
evidence is a duty for the Commission and not this Court. See Adams,
349 N.C. at 681, 509 S.E.2d at 414.
In the instant case, the only medical deposition testimony
offered into evidence was the testimony of Dr. Joy taken on 29 June 2005. Dr.
Joy’s deposition transcript on direct examination reads in pertinent part:
Q. (By Mr.
Lennon) Do you have an opinion satisfactory to yourself and to a reasonable
degree of certainty as an expert in internal medicine, and certified diabetes
educator, and as her treating physician, regarding whether more likely than
not, Betty Jean’s death resulted proximally from her compensable diabetic
condition?
A. Yes, I
believe it’s complications of diabetes.
* * * *
Q. All right. In
your opinion is it likely that the upper respiratory infection caused her
death?
A. I think
there’s no evidence to suggest that, and she was treated appropriately for
upper respiratory infection.
(Emphasis
added.) Dr. Joy’s deposition transcript on cross-examination reads in pertinent
part:
Q. Okay. It’s
pretty much speculation [that decedent died from a cardiovascular event related
to diabetes], isn’t it?
A. I think based
on the data and knowing the complications that Betty Jean had, cardiovascular
events [related to diabetes] are the number one, but she did have an
upper respiratory infection that may have led to some problems.
(Emphasis
added.)
Thus, although Dr. Joy indicated that it was possible that
decedent died of complications from her upper respiratory infection, Dr. Joy
testified that it was “more likely than not” that decedent’s diabetes caused
her death. See Whitfield, 158 N.C. App. at 351, 581 S.E.2d at 785
(“We acknowledge that the ‘mere possibility of causation,’ as opposed to the
‘probability’ of causation, is insufficient to support a finding of
compensability.”) (citation omitted).
This opinion was based not only on the temporal sequence of events, but
also on statistical information and Dr. Joy’s knowledge of the history of
decedent’s condition. We therefore conclude that there is competent evidence in
the record to support the Commission’s finding that decedent’s death was proximately
caused by her compensable occupational disease. This assignment of error is
overruled.
III. Compensation
under N.C. Gen. Stat. §97-31
Finally, defendant contends that the Commission erred in
awarding decedent’s estate a separate award of 240 weeks for loss of vision
under N.C. Gen. Stat. §97-31 because decedent had already been awarded total
disability compensation under §97-29. We agree.
N.C. Gen. Stat. §97-31 provides:
In cases included by the following schedule the compensation
in each case shall be paid for disability during the healing period and in
addition the disability shall be deemed to continue for the period specified,
and shall be in lieu of all other compensation, including disfigurement,
to wit:
* * * *
(17) The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of G.S. 97-29. The employee shall have a vested right in a minimum amount of compensation for the total number of weeks of benefits provided under this section for each member involved. When an employee dies from any cause other than the injury for which he is entitled to compensation, payment of the minimum amount of compensation shall be payable as provided in G.S. 97-37.
(Emphasis
added.)
Our Supreme Court has held that the “in lieu of” clause of
§97-31 was intended to “prevent[] double recovery without making the schedule
[provided by §97-31] an exclusive remedy.” Whitley v. Columbia Lumber Mfg.
Co., 318 N.C. 89, 98, 348 S.E.2d 336, 341 (1986). Thus, “[w]here an
employee can show both a disability pursuant to G.S. §§97-29 or 97-30
and a specific physical impairment pursuant to G.S. §97-31, he may not collect
benefits pursuant to both schemes, but rather is entitled to select the
statutory compensation scheme which provides the more favorable remedy.” Collins
v. Speedway Motor Sports Corp., 165 N.C. App. 113, 119, 598 S.E.2d 185,
190 (2004). As a general rule, “stacking of benefits covering the same injury
for the same time period is prohibited[.]” Gupton v. Builders Transport,
320 N.C. 38, 43, 357 S.E.2d 674, 678 (1987).
Plaintiff argues that decedent never made an election to
receive benefits under §97-29. We
disagree.[Note 1] Here, the Commission found as a fact that decedent
suffered from a loss of vision in both eyes and that she was compensated for
that impairment by an award of total disability compensation pursuant N.C. Gen.
Stat. §97-29, in the amount of $709.77 per week, beginning 1 April 1999. She
continued to receive these payments until the date of her death in 2004.
Because it is well settled that the “in lieu of” clause of §97-31 is a bar to
double recovery, decedent is not entitled to recover once under §97-29 and then
again under §97-31. Therefore, the
Commission erred in concluding that decedent’s estate had a vested right in an
additional 240 weeks of compensation pursuant to §97-31. Accordingly, we
reverse the Commission’s award of compensation in the amount of $473.20 per
week for 240 weeks.
IV. Attorney’s Fees
Now, we turn to plaintiff’s request for an award of
attorney’s fees pursuant to N.C. Gen. Stat. §97-88. Section 97-88 provides that the Commission or a reviewing court
may award costs to an injured employee if the insurer has appealed and, on
appeal, the Commission or reviewing court orders the insurer to make, or
continue to make, payments to the employee. Flores v. Stacy Penny Masonry
Co., 134 N.C. App. 452, 459, 518 S.E.2d 200, 205 (1999). We conclude that the requirements of §97-88
are satisfied, and we exercise our discretion to grant plaintiff’s request. We
remand to the Commission to determine the amount of reasonable attorney’s fees
incurred by plaintiff on this appeal.
Accordingly, the Opinion and Award of the Commission is
affirmed in part and reversed in part.
Affirmed in part; reversed in part.
Judges ELMORE and ARROWOOD concur.
NOTE
1. As an aside, however, we note that even
though decedent elected an award of benefits under §97-29, if decedent had died
prior to receiving a full 240 weeks of such payments, plaintiff would then be
entitled to recover the more generous vested benefits available pursuant to
§97-31, less the amount she had already received. See Gupton, 320
N.C. at 43, 357 S.E.2d at 678 (“[B]ecause the prevention of double recovery,
not exclusivity of remedy, is patently the intent of the ‘in lieu of all other
compensation’ clause in N.C.G.S. §97-31, a plaintiff entitled to select a
remedy under either N.C.G.S. §97-31 or N.C.G.S. §97-30 may receive benefits
under the provisions offering the more generous benefits, less the
amount he or she has already received.”).