Defendant Martin Brothers Grading is a grading company owned
by plaintiff's son, Ricky Martin. Martin Brothers clears and
grades land prior to new construction. In August 1996, after beinglaid off from his prior employment, plaintiff went to work full
time for his son running a compactor.
On 29 November 1996, a falling tree limb struck plaintiff on
the head while plaintiff was helping clear property for a softball
field. The force of the blow knocked plaintiff unconscious.
Because there were no witnesses, no one knows how long plaintiff
lay unconscious. A coworker found plaintiff wandering in the woods
and brought him to his son, who then took plaintiff to the
Plaintiff was hemorrhaging from a large laceration that
exposed his skull. The hospital's triage staff was unable to
control plaintiff's scalp hemorrhage and plaintiff underwent
emergency surgery to close and repair the laceration. A CT scan
revealed that plaintiff had also suffered a subdural hematoma to
the right hemisphere of his brain.
After returning home from the hospital on 1 December 1996,
both plaintiff and his wife noticed that plaintiff was having
problems with his memory. He was also irritable, anxious, and had
begun repeating himself. Dr. Kimberly Livingston, the neurosurgeon
who had treated plaintiff in the hospital, reported to plaintiff's
family physician that plaintiff's symptoms were consistent with a
closed head injury. Plaintiff's medical records prior to 29
November 1996 showed no evidence that plaintiff had ever before
experienced any neurological, cognitive, or memory problems.
Dr. Livingston released plaintiff to return to work on 3 March
1997. Because neither plaintiff nor defendant-employer felt that
plaintiff was yet ready to return to work, he was assigned to thelightest duty work available: driving a small earth compactor. On
2 April 1997, plaintiff backed the compactor onto a mound of dirt,
overturned the compactor, and sustained another head injury.
Plaintiff has not worked since 2 April 1997.
Plaintiff has experienced continuing personality, memory, and
cognitive problems. He was seen by his family physician who
recommended that plaintiff undergo a neurological examination.
Subsequently, he revisited Dr. Livingston who suggested that he see
a neuropsychologist regarding the nature of his memory and
On 25 March 1998, the defendant-carrier referred plaintiff to
Dr. Thomas Gualtieri for a neuropsychiatric evaluation. After
performing complete physical and neurological examinations, Dr.
Gualtieri also recommended that plaintiff undergo a battery of
On 8 June 1998, plaintiff was referred by his attorney to Dr.
Stephen Kramer, an Associate Professor of Psychiatry at the Wake
Forest University School of Medicine and the Director of the Wake
Forest University Department of Neuropsychiatry. Dr. Kramer
consulted with Dr. Jonathan Burdette, a neuroradiologist at Wake
Forest, who reviewed plaintiff's 10 December 1996 CT scan and
subsequent 9 November 1998 Gadolinium enhanced MRI scan.
On 15 December 1998, 18 January 1999, and 19 August 1999,
plaintiff was examined, at the request of defendants, by Alexander
A. Manning, Ph.D, an expert in neuropsychology, specializing in the
study of how the brain functions and the relationship of brain
functions to behavior. Dr. Manning performed a complete battery ofneuropsychological tests on plaintiff.
Plaintiff filed separate workers' compensation claims for the
November 1996 and April 1997 accidents. The two claims were
consolidated and initially heard by Deputy Commissioner Chrystal
Stanback who awarded plaintiff temporary total disability benefits.
On defendants' appeal, the Full Commission affirmed the decision of
the Deputy Commissioner, finding that "[t]he greater weight of the
medical evidence establishes that plaintiff's disability after
April 2, 1997 was the proximate result of either the injury by
accident of November 29, 1996 or a combination of the compensable
injuries plaintiff sustained on November 29, 1996 and April 2,
1997." Because the Commission further found that plaintiff was and
remains incapable of earning the wages that he was receiving at the
time of his injuries by accident at the same or other employment,
the Commission awarded plaintiff temporary total disability
benefits from 2 April 1997 until further order of the Commission or
until plaintiff returns to work.
Defendants argue that the Commission's finding that
plaintiff's disability after 2 April 1997 was the proximate result
of his work injuries is unsupported by competent evidence.
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 tosupport a contrary finding. Morrison v. Burlington Industries
N.C. 1, 6, 282 S.E.2d 458, 463 (1981). On appeal, this Court may
not re-weigh the evidence or assess credibility. Adams v. AVX
, 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). 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.
, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).
The record contains ample evidence to support the Commission's
finding that plaintiff's disability was proximately caused by
either the November 1996 accident or by a combination of the
November 1996 and April 1997 accidents. Although defendant points
to plaintiff's pre-existing small-vessel disease as a cause for
plaintiff's disability, the Commission was entitled to rely upon
medical testimony otherwise.
Specifically, in Dr. Kramer's opinion, "the most likely
diagnosis" for plaintiff was persistent post-concussive syndrome
resulting from the November 1996 and April 1997 accidents with the
November 1996 accident "an essential factor producing the
syndrome." On cross-examination, Dr. Kramer rejected defendants'
contention that plaintiff's disability arose from the small-vessel
disease. According to Dr. Kramer, it was "not likely." Dr.
Gualtieri similarly testified that the injury to the right
hemisphere of plaintiff's brain _ occurring in the November 1996
accident _ is "more likely" the cause of plaintiff's problems than
the small-vessel disease. He repeated that plaintiff's disability
was "probably" related to the head injury in November 1996 and that
the disability was "more probably a result of this injury." Dr. Manning's testimony was more equivocal. Yet, even he
With Mr. Martin, I've got a number of signs
that are fairly strong indications that the
right hemisphere is being affected to a
significant degree more than the left
hemisphere. So because of that lateralized
finding, I think I said in my report, that
this may be an indication of the traumatic
brain injury that he had. He had a subdural
hematoma that affected the right side of the
brain. These lingering findings here, this
lateralized finding, may be some evidence
that, indeed, there is still an [e]ffect of
that traumatic brain injury present that is _
that overlays the diffuse [small-vessel
disease] process that was also there.
Dr. Manning further testified that "[i]t's clearly possible" that
the accidents in November 1996 and April 1997 "could have
accelerated [plaintiff's] deterioration" and that "it would seem
more likely than not that it accelerated that." Later, he
clarified that it was "likely" that the injury "aggravated" the
progress of plaintiff's small-vessel disease. While he would not
testify that the aggravation was more likely than not, he did
confirm that "[t]here is a possibility that the traumatic brain
injury did play a role in what I'm seeing."
Defendants point to the testimony of Dr. Livingston and Dr.
Burdette to support their claim that plaintiff failed to prove that
his accidents and not his small-vessel disease caused his
disability. While Dr. Livingston does provide support for
defendants' contention, Dr. Burdette, who reviewed plaintiff's MRI,
does not. Dr. Burdette stressed that he is not an expert on post-
concussive syndrome and that although his review of the MRI did not
reveal a "gross abnormality," that fact "does not entirely excludea traumatic postconcussive-type episode" because "postconcussive
syndrome is . . . more on a cellular level in the brain, and these
findings might not be seen, in fact, usually are not seen on a
It was the responsibility of the Commission to weigh all of
this expert testimony and determine whose opinion was most
persuasive. On appeal, defendants seek to undermine plaintiff's
evidence by arguing that the doctors did not testify to a
reasonable degree of medical certainty and by suggesting that the
evidence merely establishes that plaintiff's condition is possibly
related to his work injuries. Defendants' contentions have been
rejected by this Court. As this Court most recently held in
Johnson v. Piggly Wiggly of Pinetops, Inc.
, 156 N.C. App. 42, 49,
575 S.E.2d 797, 802 (2003):
No longer is testimony inadmissible for its
failure to state it was based on "reasonable
medical probability." The degree in which an
expert testifies as to causation, be it
"probable" or "most likely" or words of
similar import, goes to the weight of the
testimony rather than to its admissibility.
Applying this principle, this Court upheld reliance on expert
testimony that it was "possible" that the incident at issue caused
plaintiff's condition. Id. See also Peagler v. Tyson Foods, Inc.
138 N.C. App. 593, 599, 532 S.E.2d 207, 211 (2000) (internal
quotation marks omitted) ("[W]e note that the expert testimony need
not show that the work incident caused the injury to a reasonable
degree of medical certainty."); Buck v. Procter & Gamble Mfg. Co.
52 N.C. App. 88, 94-95, 278 S.E.2d 268, 272-73 (1981) (expert's
opinion that accident "could" have caused disc protrusion competentalthough also testified on cross-examination that it was "equally
possible" that the defect was degenerative in nature).
stresses, whether the doctors in this case
testified that it was "possible," "probable," or "likely" that
plaintiffs' accidents caused his disability, the level of their
certainty went to the weight of the testimony and not its
competence. The decision regarding what weight to give each piece
of expert evidence is a task for the Commission and not this Court.
, 349 N.C. at 681, 509 S.E.2d at 414. Since there exists
competent evidence that plaintiff's work injury or injuries
proximately caused his disability, we affirm the Commission's
Opinion and Award.
Judges WYNN and BRYANT concur.
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