1. Workers' Compensation--compensable condition--pulmonary
condition related to back surgery--evidence sufficient
There was competent evidence in a workers' compensation
action in letters from plaintiff's doctors to support the finding
that her pulmonary condition was related to a back injury which
she sustained while working for defendant. Although defendants
point to evidence within each doctor's testimony that supports
the position that the pneumonia was unrelated to the surgery, the
Commission need not make specific findings rejecting portions of
a statement by a witness.
2. Workers' Compensation--continuing compensable condition--
evidence insufficient
A workers' compensation award requiring defendants to pay
for treatment of a pulmonary problem after back surgery arising
from employment was reversed where causation was not supported by
the testimony cited by the Commission.
3. Workers' Compensation--attorney fees--improperly awarded
The Industrial Commission improperly penalized defendants
under N.C.G.S. § 97-88.1 by awarding attorney fees for failure to
comply with an order directing payment for pneumonia treatment
without a determination that a hearing was brought, prosecuted,
or defended without reasonable ground. Appeal by defendants from opinion and award filed 27
January 1998 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 27 January 1999.
Randy D. Duncan, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by William J. Garrity,
for defendant-appellants.
LEWIS, Judge.
On 4 January 1995, plaintiff sustained an injury by accident
to her back while working for defendant Piedmont Elastic, Inc.
Plaintiff underwent two back surgeries for this compensable
injury, the first on 13 June 1995 and the second on 15 February
1996. On 13 July 1995, approximately one month after the first
surgery, plaintiff was hospitalized for pneumonia. At issue in
this case is the extent of pulmonary treatments for which
defendants must pay as a result of the pulmonary problems
plaintiff has experienced since her first surgery.
Plaintiff has been a heavy smoker for many years and has had
numerous bouts with bronchitis; her first surgery was postponed
for two weeks to allow her to recover from one such illness. Her
family physician, Dr. Rudisill, treated plaintiff both before and
after her first surgery for various ailments, including continued
back pain and more pulmonary problems. Plaintiff saw Dr.Rudisill on 4 July 1995, and he diagnosed her as having asthmatic
bronchitis and sinusitis. Shortly thereafter, plaintiff's
surgeon, Dr. McCloskey, requested that a pulmonologist, Dr.
Owens, see plaintiff. On 13 July 1995, plaintiff was admitted to
Frye Regional Medical Center by Dr. Owens for treatment for
pneumonia. Plaintiff remained in the hospital until 17 July 1995
when she was discharged by Dr. Pollock, an associate of Dr. Owens
and also a pulmonologist. Plaintiff has continued to experience
breathing difficulty and bouts of bronchitis.
Plaintiff filed a Form 33 requesting a hearing regarding
payment for the pneumonia medications on 28 July 1995. In August
of 1995, Drs. McCloskey and Pollack each tendered letters to
plaintiff's attorney indicating that plaintiff's pneumonia was a
result of the anesthesia involved in her first back surgery. On
22 August, defendants filed a Form 33R contending that the
pneumonia treatments were unrelated to the original compensable
injury. By letter dated 24 August 1995, the Industrial
Commission ordered defendants to pay for the pneumonia
treatment; defendants' motion for reconsideration of this order
was denied on 19 September 1995.
At a hearing before the deputy commissioner on 27 June 1996,
plaintiff and her husband testified, and depositions of Drs.
Rudisill, Pollock, Owens, and McCloskey were received asevidence. The deputy commissioner ordered that "[d]efendants
shall provide and pay for all treatment of the employee's
pulmonary problems after the June 13, 1995, surgery, including
treatment by Dr. Rudisill, Dr. Pollock, [and] Dr. Owens."
Defendants were ordered to pay $700.00 in attorney's fees as well
as costs due the Commission for their failure to comply with the
Commission's order of 24 August 1995.
Defendants' appeal was heard by the Full Commission on 18
August 1997. The Full Commission affirmed the award of the
deputy commissioner, and found the following facts which are the
subject of this appeal:
4. Dr. Elbert Rudisill, a Hickory family
practitioner, has been the employee's family
doctor since before 1981. Before the
employee's June 3, 1995, back surgery, the
employee did not have any chronic pulmonary
problems. Since the June 13, 1995, back
surgery, the employee has had recurrent
pulmonary infections which are still ongoing.
5. Dr. Rudisill saw the employee: 7/4/95,
8/26/95, 9/18/95, 9/21/95, 10/10/95, 1/4/96,
1/16/96, 2/1/96, 4/2/96, 6/3/97 [sic],
6/25/96, 6/28/96, 7/9/96, 7/13/96, and
7/30/96. That was more times than any of the
other treating physicians. Dr. Rudisill
became concerned that while the Hickory
pulmonologist [sic] were telling the employee
she was cured that [sic] he could readily
detect ongoing pulmonary problems.
6. Dr. Rudisill is reasonably certain that
the employee's June 13, 1995, back surgery
caused an ongoing recurrent pulmonaryinfectious process.
7. Dr. Scott McCloskey, the employee's
neurosurgeon, Dr. Joseph Pollock and Dr. Fred
Owens believe at least the pneumonia,
bronchitis and sinusitis after the June 1995
back surgery were in part caused or
aggravated by the surgery. Anesthesia during
surgery is a well-known risk factor in the
development or aggravation of pulmonary
problems. In the employee's situation, her
June 13, 1995 surgery had been postponed
because of that risk.
8. While some of the doctors felt the
employee's pulmonary problems caused by the
June 13, 1995, surgery had ended after the
employee's July 13, 1995 - July 17, 1995,
Frye Regional Medical Center hospitalization
for pulmonary complications, the undersigned
believes Dr. Rudisill is correct, and that
surgery-caused pulmonary problems have
continued.
9. The employee properly applied to theCommission for approval of the pulmonary
expenses. By letter/order dated August 24,
1995, the Industrial Commission ordered
Defendants to cover the pneumonia treatment.
Defendants did not appeal from that order and
have continuously refused to comply.
Based on these findings of fact, the Full Commission made the
following conclusions of law:
1. One of the causes of the employee's
continuing pulmonary problems of pneumonia,
bronchitis and sinusitis was her June 13,
1995, back surgery for the injury at work and
the Defendants shall provide treatment. G.S.
§97-25.
2. The Defendants have continuously refused
to comply with the Commission's August 24,
1995, order to provide treatment without
filing an appeal and they shall be sanctioned
pursuant to G.S. §97-88.1.
The Defendants were ordered to pay for "all treatment of the
employee's pulmonary problems after the June 13, 1995, surgery,"
and to pay $700.00 directly to plaintiff's attorney as a
reasonable attorney fee.
Defendants appeal and argue four assignments of error. In
our review of an Industrial Commission opinion and award, we
determine whether the findings of fact are supported by any
competent evidence and whether the findings of fact so supported
justify the conclusions of law drawn therefrom. See Snead v.
Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331, 334, 499S.E.2d 470, 472, cert. denied, 348 N.C. 501, 510 S.E.2d 656
(1998). “The Commission's conclusions of law, however, are
reviewable de novo.” Id. at 335, 499 S.E.2d at 472. The
findings of fact of the Full Commission are binding if supported
by any competent evidence. See Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998). In this case, we are mindful
that "implicit in the authority accorded the Commission to order
additional compensation under G.S. § 97-47 and further medical
treatment under G.S. § 97-25 is the requirement that the
supplemental compensation and future treatment be directly
related to the original compensable injury." Pittman v. Thomas &
Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286 (emphasis
omitted), disc. rev. denied, 343 N.C. 513, 472 S.E.2d 18 (1996).
See also Errante v. Cumberland County Solid Waste Mgmt., 106 N.C.
App. 114, 121, 415 S.E.2d 583, 587 (1992)(holding that
"'reasonable and necessary' worker's compensation awards for
continuing medical expenses pursuant to Sections 97-29 and 97-25
contemplate only those reasonable and necessary expenses that are
related to the compensable injury or injuries").
[1]Defendants first contend that there was no competent
evidence to support the finding of fact that plaintiff's
pulmonary condition was related to her first back surgery. We
disagree. Dr. McCloskey's letter of 7 August 1995 is in therecord and states his opinion that "the sinusitis and subsequent
pneumonia (developing so close to the immediate postoperative
period) was a condition caused or at least aggravated by the
general anesthesia the patient had for the operation."
Additionally, Dr. Owens' letter of 14 August 1995 says the
plaintiff "developed purulent bronchitis and pneumonia which were
directly attributable to her operative procedure." These
statements are competent evidence, and they are further supported
by deposition testimony from these doctors and Dr. Pollack
indicating the causal connection between the first surgery and
the pneumonia of 13 July 1995. Although defendants point to
evidence within each doctor's testimony that supports their
position that the pneumonia was unrelated to the surgery, the
Commission need not make specific findings rejecting portions of
a statement by a witness. See Bryant v. Weyerhaeuser Co., 130
N.C. App. 135, 139, 502 S.E.2d 58, 62 (1998). This assignment of
error is overruled.
[2]Second, defendants contend that the Commission erred in
finding that the plaintiff's pulmonary conditions stemming from
the surgery have continued. We have reviewed the record
exhaustively, and we agree.
In its finding of fact number six, the Commission stated
that "Dr. Rudisill is reasonably certain that the employee's June13, 1995, back surgery caused an ongoing pulmonary infectious
process." Dr. Rudisill stated that the plaintiff's pulmonary
problems are ongoing, and he said that since the first surgery
she has "had her share of pulmonary infections." He also
admitted that pulmonary problems may arise after surgery.
However, Dr. Rudisill never expressed anywhere in the record that
he was "reasonably certain" the surgery caused plaintiff's
ongoing pulmonary problems. He never even testified such a
connection is probable. For example, Dr. Rudisill testified at
his deposition:
Q. And you see the asthma as a condition
that could have resulted from or been
aggravated by the surgery, back surgery?
MR. GARRITY: Objection to the form.
A. The way you asked the question, that's a
yes. It's possible it could have been
aggravated by the surgery.
. . . .
Q. Well, let me ask it a different way: Do
you see a relationship between the
complication of surgery and these ongoing
pulmonary problems that she has been
experiencing?
MR. GARRITY: Objection to the form.
A. I see that, since her surgery, she has
had a tremendous increase in pulmonary
problems associated with infection andasthma.
Q. And could that be related to the surgery
or surgery complications?
A. It's possible that could be related to
that.
. . . .
Q. And do I understand you correctly that
the extent to which you are able to draw some
causal connection between some post-surgical
complication and her current respiratory
condition or the condition for which you
treated her is only to the extent of a
possible relationship?
A. Correct.
(Emphasis added).
Drs. Owens and McCloskey testified that the surgery caused
the plaintiff's pneumonia of July 1995. Dr. Rudisill testified
that the plaintiff continues to suffer from pulmonary problems.
The Commission bridged the gap between these two statements in a
manner not supported by the evidence. The Commission found in
fact number eight that it "believe[d] Dr. Rudisill is correct,
and that surgery-caused pulmonary problems have continued." Dr.
Rudisill said plaintiff's pulmonary problems were ongoing, but he
was never more positive than “possible” that the continuing
problems were caused by the surgery. Apparently, the Commission
relied in part on the conclusion of the pulmonologists - that thesurgery caused the July 1995 pneumonia - and in part on Dr.
Rudisill's conclusion - that the plaintiff has ongoing lung
problems. The crucial link between these two statements for
workers compensation purposes - causation - is nowhere supported
by the testimony the Commission cites. Causation must be shown
by evidence that "'indicate[s] a reasonable scientific
probability that the stated cause produced the stated result.'"
Phillips v. U.S. Air, Inc., 120 N.C. App. 538, 542, 463 S.E.2d
259, 262 (1995)(emphasis added) (quoting Hinson v. Nat'l Starch &
Chem. Corp., 99 N.C. App. 198, 202, 392 S.E.2d 657, 659
(1990)(citations omitted)), aff'd per curiam, 343 N.C. 302, 469
S.E.2d 552 (1996). Because Dr. Rudisill nowhere states to a
reasonable scientific probability, or any probability at all,
that "surgery-caused pulmonary problems have continued," this
finding of fact is not supported by competent evidence.
Because findings of fact six and eight are unsupported by
any competent evidence, the Commission's conclusion of law that
"[o]ne of the causes of the employee's continuing pulmonary
problems . . . was her June 13, 1995, back surgery" fails.
Defendants are obligated to pay only for treatments "required to
effect a cure or give relief" for conditions related to the
compensable injury. N.C. Gen. Stat. § 97-2 (Supp. 1999). See
Pittman, 122 N.C. App. at 130, 468 S.E.2d at 286. The awardrequiring defendants to pay for "all treatment of employee's
pulmonary problems after the June 13, 1995, surgery," is
reversed.
[3]Finally, defendants contend that the Full Commission
erred in finding that attorney fees should be assessed for
defendants' failure to comply with the 24 August 1995 order. The
Commission awarded attorney fees pursuant to N.C. Gen. Stat.
section 97-88.1 (1991), which provides for such an assessment if
the Commission “determine[s] that any hearing has been brought,
prosecuted, or defended without reasonable ground.”
The Commission found the following fact:
9. The employee properly applied to the
Commission for approval of the pulmonary
expenses. By letter/order dated August 24,
1995, the Industrial Commission ordered
Defendants to cover the pneumonia treatment.
Defendants did not appeal from that order and
have continuously refused to comply.
There is no determination by the Industrial Commission, as
required by G.S. 97-88.1, that a hearing was “brought, prosecuted
or defended without reasonable ground.” Id. Therefore, the
Commission improperly penalized defendants under G.S. 97-88.1.
The order for attorney fees is reversed.
The portion of the award ordering payment for plaintiff's
July 1995 pneumonia treatment is affirmed. All other parts are
reversed. We remand to the Industrial Commission for the purposeof entering an order stating the amount to be paid for
plaintiff's July 1995 pneumonia treatment.
Affirmed in part, reversed in part, and remanded.
Judges WALKER and TIMMONS-GOODSON concur.
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