Appeal by defendant from opinion and award entered 8 September
2000 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 8 November 2001.
Patterson Harkavy & Lawrence, L.L.P., by Valerie A. Johnson
and Martha A. Geer, for plaintiff-appellee.
Smith Helms Mulliss & Moore, L.L.P., by Jeri L. Whitfield,
Laura Deddish Burton and Angela L. Little, for defendant-
appellant.
McGEE, Judge.
Defendant appeals from the award of workers' compensation
benefits to plaintiff Emily Ann Tarpley. At the time of
plaintiff's accident, she had been employed by defendant Cone Mills
for approximately twenty-three years, and she had been in the
position of spinner for approximately twelve years. Her primary
responsibilities as a spinner included monitoring seven spinning
frames with 144 spindles per frame. The duties of a spinner
included replacing yarn packages on the end of a frame with full or
nearly full packages of yarn. Plaintiff was required to place thenew yarn packages on a spool which was six feet from the floor.
Because plaintiff is five feet, five inches tall, she used a two-
step stool to place the yarn on the frame. On 24 August 1996,
while she was attempting to complete this task, she noticed her
shoe was untied. She placed the spool on the frame and sat down on
the stool to tie her shoe. While plaintiff was sitting on the
stool, the spool slipped off the top of the frame and hit her in
the back of her neck.
Plaintiff reported the accident to her immediate supervisor;
however, the supervisor did not fill out an injury report that day.
At plaintiff's insistence, the supervisor later completed an injury
report.
Shortly after the accident, plaintiff began experiencing
headaches, pain in her back, and weakness in her arms. She did not
immediately relate this pain to her accident at work. She was
treated by Dr. David Keller (Dr. Keller), her family physician, on
6 November 1996. Plaintiff later recalled the 24 August 1996
accident and began to suspect the accident was the cause of her
pain. Plaintiff went to defendant's medical department on 16
December 1996. The company doctor concluded she had suffered a
contusion with neck pain. Plaintiff returned to Dr. Keller, who
prescribed physical therapy. Plaintiff began physical therapy and
showed some improvement by 19 February 1997. Throughout 1997 and
1998 plaintiff experienced pain that was sometimes reduced with
physical therapy.
Dr. Keller referred plaintiff to Dr. Anna Voytek (Dr. Voytek)in April 1998. Dr. Voytek concluded plaintiff had a C6
radiculopathy which resulted in secondary rotator cuff tendinitis.
Plaintiff's symptoms were at first relieved with medication, but
they returned in June 1998. Plaintiff had an MRI which revealed a
ruptured disc and a pinched nerve. Dr. Voytek referred plaintiff
to Dr. Henry Pool (Dr. Pool), a neurosurgeon. Dr. Pool concluded
plaintiff's symptoms were consistent with disc herniation and
recommended an anterior cervical diskectomy and fusion. This
surgery was successfully performed on 14 August 1998.
An opinion and award by the deputy commissioner was filed 7
October 1999. The deputy commissioner found a compensable injury
to plaintiff's cervical spine and ordered defendant to pay workers'
compensation benefits for temporary total disability, permanent
partial disability, and medical expenses. The Industrial
Commission affirmed the award on 8 September 2000, with
Commissioner Dianne Sellers dissenting. Defendant appeals from
this opinion and award.
I.
Defendant argues the Industrial Commission erred in concluding
that plaintiff's disc surgery is compensable because plaintiff has
failed to establish a direct causal link between the accident at
work and plaintiff's ruptured disc. Defendant supports its
argument through the testimony of Dr. Pool:
[M]y opinion is that she suffered an injury to
her neck. This certainly caused additional
damage to her neck when she was struck. Did
that necessarily cause the disc to rupture?
No. From what I see, probably not. I think
it probably injured that disc and that jointsomewhat and caused it to be more likely to
subsequently rupture at a later time. . . . I
think that indications are that [the work
injury] did accelerate the degenerative
disease that was already present in her neck
and may have made her more likely to suffer a
subsequent disc rupture, but, you know, that's
all speculative. . . . But I don't, you know
-- I don't see a definite causation that the
injury caused the ruptured disc acutely in
'96. It may have made it more likely to
happen subsequently.
Defendant contends that because the medical expert testimony
amounted only to a speculative causal relationship between the
accident and the ruptured disc, the evidence is insufficient to
establish legal causation. Based on this testimony, defendant
contests the Industrial Commission's finding that the "greater
weight of the evidence is that plaintiff sustained an injury to her
cervical spine arising out of and in the course of her employment
with defendant on 24 August 1996. As a result of this injury,
plaintiff sustained a C5-6 disc herniation resulting in surgery."
On an appeal from an opinion and award of the Industrial
Commission, the standard of review for this Court "is limited to a
determination of (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). This Court cannot weigh the evidence in the
record. "It is the Commission's role to resolve conflicts in the
evidence."
Knight v. Cannon Mills Co., 82 N.C. App. 453, 463, 347
S.E.2d 832, 839,
disc. review denied, 318 N.C. 507, 349 S.E.2d 861
(1986). Defendant relies on
Young v. Hickory Bus. Furn., 353 N.C. 227,
230, 538 S.E.2d 912, 915 (2000), in arguing
when such expert opinion testimony is based
merely upon speculation and conjecture, it can
be of no more value than that of a layman's
opinion. As such, it is not sufficiently
reliable to qualify as competent evidence on
issues of medical causation. Indeed, this
Court has specifically held that "an expert is
not competent to testify as to a casual
relation which rests upon mere speculation or
possibility."
Id. (quoting
Dean v. Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89,
94 (1975)). Defendant argues that because Dr. Pool used the word
"speculative," his testimony does not meet the requirements for
expert testimony which establish a causal connection. As a result,
defendant contends plaintiff has failed to prove the element of
causation because the only expert medical evidence plaintiff has
provided should be declared incompetent because it is based on
speculation and conjecture.
"The burden of proving each and every element of
compensability is upon the plaintiff."
Harvey v. Raleigh Police
Dept., 96 N.C. App. 28, 35, 384 S.E.2d 549, 553,
disc. review
denied, 325 N.C. 706, 388 S.E.2d 454 (1989). "There must be
competent evidence to support the inference that the accident in
question resulted in the injury complained of,
i.e., some evidence
that the accident at least might have or could have produced the
particular disability in question."
Click v. Freight Carriers, 300
N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Furthermore, "where the
exact nature and probable genesis of a particular type of injury
involves complicated medical questions . . . only an expert cangive competent opinion evidence as to the cause of the injury."
Id. Expert medical testimony is required "to establish causation
between a specific trauma and the rupture of the plaintiff's
invertebral disc."
Peagler v. Tyson Foods, Inc., 138 N.C. App.
593, 598, 532 S.E.2d 207, 211 (2000).
However, the medical testimony is not automatically
incompetent because the medical expert could not offer a definite
and certain causal link. The "expert testimony need not show that
the work incident caused the injury to a 'reasonable degree of
medical certainty.'"
Peagler, 138 N.C. App. at 599, 532 S.E.2d at
211 (quoting
Cooke v. P.H. Glatfelter/Ecusta, 130 N.C. App. 220,
224, 502 S.E.2d 419, 422 (1998)). A sufficient causal relationship
to make the injury compensable will exist if the injury "is 'fairly
traceable to the employment' or 'any reasonable relationship to
employment exists.'"
Shaw v. Smith & Jennings, Inc., 130 N.C. App.
442, 445, 503 S.E.2d 113, 116,
disc. review denied, 349 N.C. 363,
525 S.E.2d 175 (1998) (quoting
White v. Battleground Veterinary
Hosp., 62 N.C. App. 720, 723, 303 S.E.2d 547, 549,
disc. review
denied, 309 N.C. 325, 307 S.E.2d 170 (1983)) (other citations
omitted).
In the case before us, there is sufficient evidence that the
accident "at least might have or could have produced the particular
disability in question."
Click, 300 N.C. at 167, 265 S.E.2d at
391. Dr. Pool testified:
This is something where someone's neck begins
to wear out. They may be injured. That
injury may cause things to wear out more, and
a subsequent episode down the road may causethings to finally herniate. Is the injury
previous to that solely responsible? No. But
is it in some degree responsible? Certainly.
And this was my opinion that I think the
injury she described could very likely have
caused the condition she suffered from.
I think that it's very likely that the injury
in '96 may have accelerated the degenerative
processes ongoing in her neck and made her
possibly more likely to suffer a subsequent
ruptured disc.
Furthermore, even in the part of Dr. Pool's testimony defendant
relies on, Dr. Pool stated:
I think that indications are that [the work
injury] did accelerate the degenerative
disease that was already present in her neck
and may have made her more likely to suffer a
subsequent disc rupture, but, you know, that's
all speculative.
But, yes, I think, in my
opinion, that is consistent with what's
happened here. (Emphasis added).
Defendant contends Dr. Pool's testimony is speculative because he
uses words such as possible and speculative. However, our
appellate courts have held that the use of the word "speculation,"
or testimony that indicates other possible causes, does not in and
of itself render an expert's opinion incompetent.
Our Supreme Court held that expert
opinion is based on the reasonable
probabilities known to the expert from
scientific learning and experience. A result
in a particular case may stem from a number of
causes. The expert may express the opinion
that a particular cause "could" or "might"
have produced the result - indicating that the
result is capable of proceeding from the
particular cause as a scientific fact,
i.e.,
reasonable probability in the particular
scientific field.
Lockwood v. McCaskill, 262 N.C. 663, 668-69, 138 S.E.2d 541, 545(1964). In
Peagler, our Court accepted, as competent evidence of
a causal link, testimony by a doctor that included admissions that
a herniated disc could have many causes, including "[s]neezing,"
"rolling over in bed," "bending over to tie your shoe," and also
testimony that the doctor could not be sure to a "reasonable degree
of medical certainty" what caused the herniated disc.
Peagler, 138
N.C. App. at 598-99, 532 S.E.2d at 211.
In the case before us, despite the fact that the doctor could
not say for certain what caused the accident and any attempt to
discern a cause was speculation, the doctor immediately followed
that statement with his opinion that the injury at work accelerated
a degenerative disease and made plaintiff more likely to suffer a
disc rupture. This statement indicates a "reasonable probability."
Lockwood, 262 N.C. at 669, 138 S.E.2d at 545. "All that is
necessary is that an expert express an opinion that a
particular
cause was
capable of producing the injurious result."
Buck v.
Procter & Gamble Co., 52 N.C. App. 88, 95, 278 S.E.2d 268, 273
(1981) (emphasis in original). Dr. Pool's statement meets this
requirement; therefore, it is sufficient and competent evidence
which supports the Industrial Commission's finding of a causal
connection. We overrule this assignment of error.
II.
Defendant next argues no competent medical evidence supports
the findings by the Industrial Commission that plaintiff suffered
consistent and continuous pain from the time of the accident until
the time of the surgery. Defendant contends expert medicaltestimony is the only evidence capable of showing causation, and
the Industrial Commission erred by relying on plaintiff's own
testimony in reaching its decision.
However, the Industrial Commission based its findings on
plaintiff's testimony as to when she had pain and what type of
pain she experienced, in addition to the medical evidence. In
Webb
v. Power Circuit, Inc., 141 N.C. App. 507, 540 S.E.2d 790 (2000),
cert. denied, 353 N.C. 398, 548 S.E.2d 159 (2001), the defendants
argued the Industrial Commission erred in relying on the
plaintiff's testimony that his depression increased, when there was
no medical testimony supporting this increase. This Court stated
that although
Click "held that expert testimony is required to
establish the cause of an injury in certain situations," the
Industrial Commission "properly relied on plaintiff's testimony to
support a finding that his depression has increased, not in support
of a finding of causation."
Webb, 141 N.C. App. at 513, 540 S.E.2d
at 794.
The fact that Dr. Pool relied on plaintiff's testimony in
forming his opinion as to causation is also acceptable. In
Jenkins
v. Public Service Co. of N.C., 134 N.C. App. 405, 518 S.E.2d 6
(1999), our Court stated a "physician's diagnosis often depends on
the patient's subjective complaints, and this does not render the
physician's opinion incompetent as a matter of law."
Id. at 410,
518 S.E.2d at 9. We stated that "[a]lthough the Commission could
have given [the physician's] opinion less weight due to the fact
that it was based on Plaintiff's subjective complaints rather thanobjective testing, it was not required to do so."
Id. In the case
before us, the Industrial Commission found plaintiff's testimony
regarding her pain to be credible, and this testimony supports its
findings of fact. We overrule this assignment of error.
The opinion and award of the Industrial Commission is
affirmed.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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