1. Workers' Compensation--findings--supported by competent
evidence
There was competent evidence in a workers' compensation
action to support findings that plaintiff was sprayed by sewage
as he was unloading a pump truck.
2. Workers' Compensation--chronic fatigue syndrome--causation--
expert testimony
There was competent and sufficient evidence in a workers'
compensation action to support the Commission's finding that
being sprayed with raw sewage caused plaintiff's chronic fatigue
syndrome in medical testimony from the director of a facility
specializing in the research, evaluation and treatment of chronic
fatigue syndrome. The witness had previously worked with the
Centers for Disease Control and the National Institute of Health
in developing definitions for chronic fatigue syndrome and based
his diagnosis here on a physical examination of plaintiff and a
comprehensive review of his medical history.
The Anderson Law Firm, P.L.L.C., by Richard J. Hollar, for
plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Maura K.
Gavigan and Jennifer S. Jerzak, for defendants-appellants.
WYNN, Judge.
Waste Management and CNA Insurance Company appeal the North
Carolina Industrial Commission's decision that Robert D. Norton
developed chronic fatigue syndrome and fibromyalgia as a result of
injury by accident arising out of and in the course of hisemployment on 4 April 1995. We uphold the decision.
As a tank truck operator for Waste Management, Mr. Norton
collected and transported raw sewage. While pumping sewage from
his truck on 4 April 1995, Mr. Norton was sprayed with raw sewage
which caused abrasions to his arms and stomach. A piece of wire
pierced him and the raw sewage sprayed into his eyes and mouth. He
reported the incident to his supervisor. Over the next two to
three weeks, Mr. Norton suffered flu-like symptoms including
nausea, vomiting, diarrhea, severe pressure headaches, stiff neck,
swollen lymph nodes and blood in the urine. Several medical care
providers treated him.
In May and June 1995, Mr. Norton visited Dr. Gary Ross
complaining of “facial pressure, cough, congestion, hematuria,
[blood in the urine] and chest pain since being sprayed with raw
sewage while working on a septic tank.” Dr. Ross noted that Mr.
Norton's “urinalysis confirmed hematuria and his examination was
consistent with purulent sinusitis.”
In June 1995, Dr. Paul Kamitsuka, an infectious disease expert
treated Mr. Norton and diagnosed him with chronic fatigue syndrome
and fibromyalgia. Dr. Kamitsuka could not determine the etiology
of Mr. Norton's condition but he did not rule out the 4 April 1995
incident as the cause of Mr. Norton's injury.
Likewise, Dr. Ralph Corey, an infectious disease expert and
associate professor at Duke University Medical Center, examined Mr.
Norton but was unable to determine a definitive cause of his
condition; however, he did not rule out the 4 April 1995 incident
as the cause of his injury. In a letter dated 2 August 1996, Dr.Corey wrote:
Mr. Norton has a history of chronic psoriasis,
[and was] treated previously with
methotrexate, he was in fairly good health and
working until he was sprayed in the face,
abdomen, and arms with septic affluence in
April of 1995. The week after this, his
symptoms of chronic fatigue, headaches,
diarrhea, and abdominal pain developed.
Though they have waxed and waned, they have
not completely abated since April of 1995.
In July 1996, Dr. Woodhall Stopford, a specialist in
occupational diseases, evaluated Mr. Norton and noted that “his
symptoms included diarrhea, projectile vomiting, persistent
fatigue, and perspiration whenever he tries to do physical
activities.” He assessed that Mr. Norton had “accidental sewage
exposure by skin abrasions, puncture wound, and by mouth” and
“persistent fatigue.”
In December 1997, Mr. Norton was examined by Dr. Charles Lapp,
who diagnosed Mr. Norton as suffering from chronic fatigue syndrome
and fibromyalgia. Dr. Norton testified that it was his opinion to
a reasonable degree of medical certainty that Mr. Norton's chronic
fatigue syndrome and fibromyalgia were caused by the industrial
accident in April 1995.
Following a deputy commissioner's opinion that Mr. Norton had
not sustained an occupational disease as a result of his injury by
accident, the full Commission unanimously reversed by concluding
that:
1. Plaintiff experienced a compensable injury
by accident arising out of and in the course
of the employment on 4 April 1995. N.C. Gen.
Stat. § 97-2(6).
2. As a result of the injury by accident
which occurred on or about April 4, 1995,plaintiff suffers from chronic fatigue
syndrome and fibromyalgia. Id.
3. The plaintiff is entitled to permanent
disability compensation at the rate of $384.02
per week, since he is unable to earn wages
because of his compensable chronic fatigue
syndrome and fibromyalgia. N.C. Gen. Stat. §
97-29.
4. Plaintiff is entitled to payment by
defendant of all medical expenses incurred as
a result of his April 4, 1995, injury by
accident to the extent that the same are
reasonably required to effect a cure, give
relief or lessen his disability. N.C. Gen.
Stat. § 97-25.
From that Opinion and Award, Waste Management and CNA Insurance
Company appeal to this Court.
The issues on appeal are: (I) Whether there was competent
evidence from which the full Commission could find that Mr. Norton
suffered a compensable injury and (II) whether the accident caused
Mr. Norton's chronic fatigue syndrome.
"The Commission is the fact-finding body under the Workmen's
Compensation Act." Watkins v. City of Wilmington, 290 N.C. 276,
280, 225 S.E.2d 577, 580 (1976). We review the full Commission's
Opinion and Award to determine if the record shows any competent
evidence to support the Commission's findings of fact; and if so,
whether the conclusions of law are supported by those findings.
See Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676
(1980); Lowe v. BE&K Construct., 121 N.C. App. 570, 468 S.E.2d 396
(1996).
[1]First, Waste Management and CNA Insurance Company argue
that Mr. Norton failed to present any competent evidence that hiscontact with the sewage caused him injury. We disagree because at
the deputy commissioner's hearing, all parties stipulated that,
on or about April 4 1995, the plaintiff was
employed as a truck driver with the defendant-
employer, at which time he was sprayed with
raw sewage from a pressurized valve. The
plaintiff was acting within the course of
employment at the time of the incident, and he
sustained abrasions to his arm and stomach as
a result of this accident.
Furthermore, testimonial evidence showed that on 4 April 1995,
Mr. Norton unloaded raw sewage in the course and scope of his
employment; sustained injuries; ingested raw sewage through his
mouth and eyes; sustained abrasions on his arms; and suffered a
puncture wound to his stomach. Indeed, there is competent evidence
to support the following findings of facts:
3. The plaintiff began working for the
defendant-employer in 1993. He drove the pump
truck, dug up septic tanks, opened the tanks,
pumped out the tanks and sealed it. He also
pumped out grease traps at restaurants and
portable toilets.
4. On April 4 1995, the plaintiff was
carrying a load of grease, septic tank and
portable toilet sewage. As he began to off-
load the truck, the plaintiff was sprayed in
the face, chest and arm by the sewage. He
rinsed off with the contents of his tea jug.
5. Plaintiff reported being sprayed by sewage
to his employer, who offered to send him to a
doctor. Plaintiff sustained abrasions to his
arms, a small puncture wound from a piece of
wire and the spraying of the sewage mixture
into his eyes and mouth. Plaintiff went home
to clean himself and treat his injuries.
Therefore, this assignment of error is without merit.
[2]In their final argument, Waste Management and CNA
Insurance Company contend that there was no competent evidence toshow that the accident caused Mr. Norton's chronic fatigue
syndrome.
(See footnote 1)
We disagree.
“Whether the full Commission conducts a hearing or reviews a
cold record, N.C.G.S. § 97-85 places the ultimate fact-finding
function with the Commission--not the hearing officer. It is the
Commission that ultimately determines credibility, whether from a
cold record or from live testimony.” Deese v. Champion Int'l.
Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000). “[I]n
reversing the deputy commissioner's credibility findings, the full
Commission is not required to demonstrate . . . 'that sufficient
consideration was paid to the fact that credibility may be best
judged by a first-hand observer of the witness when that
observation was the only one.'" Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 413 (1998) (quoting Sanders v. Broyhill
Furniture Indus., 124 N.C. App. 637, 641, 478 S.E.2d 223, 226
(1996)).
Thus, on appeal, this Court "does not have the right to weigh
the evidence and decide the issue on the basis of its weight. The
court's duty goes no further than to determine whether the record
contains any evidence tending to support the finding." Anderson v.
Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
“The evidence tending to support plaintiff's claim is to be viewed
in the light most favorable to plaintiff, and plaintiff is entitledto the benefit of every reasonable inference to be drawn from the
evidence.” Adams v. AVX Corp, 349 N.C. at 681, 509 S.E.2d at 414.
In the present case, the Commission made the following
relevant findings of facts:
6. The plaintiff went to work the next day
[after the accident] and pumped two jobs, but
then went home because of pain in his arm.
The plaintiff began developing flu-like
symptoms in the following weeks, but thought
he was just coming down with the flu since his
abdomen and arm were beginning to heal.
Plaintiff tried to work through it thinking it
would get better, but his symptoms continued
to get worse. Plaintiff began to experience
nausea, vomiting, diarrhea, and severe
pressure headaches. The plaintiff sought
medical treatment from Dr. Gary Ross due to
his symptoms continuing to worsen.
7. The office notes from the May 22, 1995
office visit with Dr. Ross state that, “the
patient came in complaining of facial
pressure, cough, congestion, hematuria, and
chest pain since being sprayed with sewage
while working in a septic tank. His
urinalysis confirmed hematuria and his
examination was consistent with purulent
sinusitus.”
8. Plaintiff returned to Dr. Ross on May 31,
1995 and June 12, 1995 with complaints of
myalgias and lethargy, in addition to the
symptoms.
9. In June 1995, plaintiff saw Dr. Paul
Kamitsuka, an infectious disease expert in
Wilmington, North Carolina. Dr. Kamitsuka's
notes of June 27, 1995 state that, “Mr. Norton
presents for f/u a day earlier because of
symptoms of nausea and several episodes of
vomiting two days ago with persistent fatigue.
He has had no fever. Has had continued watery
diarrhea.” Dr. Kamitsuka diagnosed plaintiff
with chronic fatigue syndrome and
fibromyalgia, but stated that he was unable to
determine the etiology. Dr. Kamitsuka also
stated that he could not rule out the April 4,1995 accident as the cause of plaintiff's
condition.
10. Dr. Ralph Corey, associate professor of
medicine and infectious diseases at Duke
University, saw plaintiff and was unable to
determine the etiology of plaintiff's
condition. In an August 2, 1996 letter, Dr.
Corey related that, “Though (plaintiff) has a
history of chronic psoriasis, treated
previously with methotrexate, he was in fairly
good health and working until he was sprayed
in the face, abdomen, and arms with septic
system effluence in April of 1995. The week
after this, his symptoms of chronic fatigue,
headaches, diarrhea, and abdominal pain
developed. Though they have waxed and waned,
they have not completely abated since April of
1995.”
[The full Commission's findings of facts
skipped from number 10 to number 13].
13. Plaintiff was seen on December 16, 1997
by Dr. Charles Lapp, director of the Hunter-
Hopkins Center in Charlotte, North Carolina,
which is a facility specializing in the
research, evaluation, and treatment of chronic
fatigue syndrome and fibromyalgia. Dr. Lapp,
who is internationally regarded as an expert
in this area, diagnosed the plaintiff as
suffering from chronic fatigue syndrome and
fibromyalgia. Dr. Lapp noted that the
plaintiff had all 18 of the tender points
associated with fibromyalgia.
14. Dr. Lapp also testified that to diagnose
chronic fatigue syndrome, one must follow the
Center for Disease Control criteria which
requires taking a medical history,
establishing the patient has had fatigue for
at least four of the eight typical symptoms of
chronic fatigue syndrome as established by the
Center for Disease Control. Dr. Lapp
testified, and the Full Commission finds as
fact, that the plaintiff has met the criteria
as set forth above for diagnosis of chronic
fatigue syndrome.
15. When asked about causation, Dr. Lapp
testified and the Full Commission finds as
fact that, “there was no evidence in medical
records prior to that accident that he washaving the kind of symptoms that developed
following the accident. And as you know, the
accident was associated with significant
viral-like illness with high fevers,
infections, diarrhea, vomiting, and he just
never recovered from that. So, from a
causative standpoint or temporal standpoint, I
think that the industrial accident appeared to
be the cause of the chronic fatigue syndrome.”
16. Dr. Lapp, in his 12/9/97 independent
medical examination of the plaintiff states
that, “The subject is unable to even perform
sedentary work for more than a few minutes
without prolonged rest, and even mild to
moderate activity on a regular basis is out of
the question. He would have difficulty
dealing with other workers due to
irritability, and would perform poorly under
even minimal stresses. He is able to manage
his own finances, but due to cognitive
problems he would not be reliable to handle
mathematical problems or money in business.
Based on my considerable experience with
CFS/FM and epidemiological data from CDC, it
is medically certain that this condition would
not improve significantly in the next twelve
months.”
The record shows that Mr. Norton was examined by Dr. Charles
Lapp, the Director of the Hunter-Hopkins Center in Charlotte, North
Carolina--a facility that specializes in the research, evaluation
and treatment of chronic fatigue syndrome. Dr. Lapp serves as a
member of the American Association for Chronic Fatigue Syndrome and
has previously worked with the Centers for Disease Control and
National Institute of Health in developing definitions for chronic
fatigue syndrome. Dr. Lapp's diagnosis of chronic fatigue syndrome
was based in part on his physical examination of Mr. Norton and
comprehensive review of Mr. Norton's medical history. He testified
that Mr. Norton met the 1994 criteria for chronic fatigue syndrome
as established by the Center for Disease Control and 1990 criteriaestablished by the American College of Rheumatology. Dr. Lapp
pointed out in his deposition that approximately seventy to eighty
percent of chronic fatigue syndrome cases have a specific flu-like
beginning, five percent of other cases occur after a traumatic
event, another five percent follow surgery, and two percent follow
severe stress. He concluded that Mr. Norton actually experienced
a trauma at the time of the accident and a flu-like illness
immediately following the accident. Significantly, at his
deposition, Dr. Lapp testified as follows:
Q. Dr. Lapp, . . . Is it your opinion that
Mr. Norton's chronic fatigue syndrome was
caused by his industrial accident?
A. Yes, sir.
Q. The opinion you have rendered to us
previously as to the cause of Mr. Norton's
chronic fatigue syndrome, is that your opinion
to a reasonable degree of medical certainty?
A. Yes, sir, it is.
Most assuredly, Dr. Lapp's expert testimony satisfies the concerns
of our Supreme Court in Young v. Hickory Business Furn., 353 N.C.
227, 538 S.E.2d 912, 915 (2000), regarding speculative and
conjectural causal evidence. Unlike the medical expert in Young,
Dr. Lapp's testimony unequivocally demonstrated his ability to
express an opinion to a reasonable degree of medical certainty as
to the cause of Mr. Norton's illness. We therefore hold that this
evidence, was competent and sufficient to support the Commission's
findings of fact. Accordingly, the Opinion and Award of the
Commission is,
Affirmed. Judges HUNTER and TYSON concur.
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