JAMES G. PHILLIPS,
Employee,
Plaintiff
v. North Carolina &nbs
p;
Industrial Commission
DON HERR CONSTRUCTION CO., File No. 921744
Employer,
and
INTERSTATE INSURANCE SERVICES
GROUP,
Carrier,
Defendants.
The Twiford Law Firm, P.C., by Branch W. Vincent, III, for
plaintiff-appellee.
Teague, Campbell, Dennis & Gorham, L.L.P., by Mallory T.
Underwood, for defendants-appellants.
ELMORE, Judge.
This appeal arises out of an on-the-job accident, in which
plaintiff James G. Phillips fell backwards from a scaffold onto a
piece of lumber and injured himself. Although defendants Don Herr
Construction Company (“defendant-employer”) and Interstate
Insurance Services Group, Incorporated (“defendant-carrier”)
initially paid plaintiff's medical bills, they later declinedplaintiff's request for further compensation and plaintiff
requested that his claim be assigned for hearing in the Industrial
Commission.
Plaintiff's claim was first heard by Deputy Commissioner
Morgan S. Chapman on 6 March 2000. The evidence tended to show the
following: On or about 25 January 1999, plaintiff was employed by
defendant-employer as a framer/carpenter, when he fell some three
feet from a scaffold and landed straddling a board. Plaintiff's
boss, Donald S. Herr, was present and witnessed the fall and
testified that plaintiff hurt himself during the fall. After the
fall, defendant-employer prepared an IC Form 19, dated 29 January
1999, in which defendant-employer indicated that plaintiff had
suffered a “possible twisted testicle.” Though in pain, plaintiff
did not immediately seek medical attention. Plaintiff thought he
would “get over it.” When the pain made it difficult for plaintiff
to work, plaintiff went to Outer Banks Medical Center on 28 January
1999, where he was seen by Dr. Charles Hoidal.
After briefly discussing the 25 January 1999 fall which led to
the visit, Dr. Hoidal examined plaintiff. Dr. Hoidal noted that
plaintiff's right testicle was hard and swollen. The doctor
diagnosed plaintiff with “testicular pain.” Concerned that the
testicle could be permanently damaged, Dr. Hoidal referred
plaintiff to Dr. Joseph Alvarez, a urologist. After an ultrasound
was performed on plaintiff's scrotum on 29 January 1999, he was
seen by Dr. Alvarez on 3 February 1999. The ultrasound showed that
the scrotum was “totally normal,” and Dr. Alvarez opined thatplaintiff “had no significant injury.” When plaintiff's pain
persisted and he began to experience other symptoms, such as rectal
bleeding and epigastric pain, plaintiff returned to Outer Banks
Medical Center on 6 February and 1 March 1999. Notably, plaintiff
had a history of gastritis and the epigastric pain was attributed
to that pre-existing condition.
Plaintiff was next referred to Dr. Jeffrey S. Levine, an
associate at Albermarle Gastroenterology Associates. Dr. Levine
first saw plaintiff on 5 March 1999, whereupon he took plaintiff's
history and conducted a physical examination. Dr. Levine
subsequently diagnosed plaintiff with internal hemorrhoids. A
subsequent sigmoidoscopy, on 12 March 1999, confirmed that
diagnosis.
Unable to return to work due to pain, plaintiff was seen on
referral by Dr. David Carter on 27 April 1999. Dr. Carter's notes
indicated that plaintiff had been suffering right testicular and
inguinal pain since a 25 January 1999 on-the-job accident. The
doctor took a full medical history and examined plaintiff before
diagnosing him with a right inguinal hernia. On 25 May 1999, Dr.
Carter performed surgery to repair the hernia, and released
plaintiff with no restrictions on 14 September 1999.
During his deposition, Dr. Hoidal stated that although he
found no palpable hernia during his examination, plaintiff's hernia
could have resulted from the 25 January 1999 fall. Dr. Hoidal
testified that he was not surprised by Dr. Carter's diagnosis,
especially since the hernia was noted to be very small. Dr. Carteralso gave a deposition, during which he opined that the 25 January
1999 fall could have caused the subject hernia. When asked about
Dr. Alvarez's negative findings, Dr. Carter explained that a
ultrasound would not show the presence of a hernia. Dr. Carter
noted that a hernia may not be appreciated by an examiner,
especially in cases where, as here, the patient suffered trauma.
The stipulated Form 22 showed that plaintiff last worked on 11
February 1999.
After hearing the testimony and reviewing the depositions of
plaintiff's treating physicians, Deputy Commissioner Chapman found
and concluded that plaintiff failed to prove that the 25 January
1999 fall resulted in the hernia that was repaired by Dr. Carter.
The deputy commissioner concluded that plaintiff had only
“sustained one week of temporary total disability as a result of
his injury,” and therefore, “his disability period did not exceed
the waiting period and he is not entitled to compensation.” The
deputy commissioner denied plaintiff's claims for any compensation
for treatment of his inguinal hernia and internal hemorrhoids.
Plaintiff appealed to the Full Commission, and without
receiving any further evidence the Full Commission filed an opinion
and award reversing the deputy commissioner. The Full Commission
found and concluded that plaintiff had shown that the 25 January
1999 fall resulted in the subject hernia. The Full Commission
further found and concluded that plaintiff was entitled to
temporary total disability compensation from 12 February 1999
through 14 September 1999. Finally, the Full Commission concludedthat plaintiff was entitled to medical compensation for all medical
treatment with the exception of that treatment for his internal
hemorrhoids. Defendants appeal.
On appeal, defendants argue that the Full Commission erred in
reversing the Deputy Commissioner's determination that plaintiff
failed to meet his burden of proving that he sustained a
compensable injury as a result of the 25 January 1999 on-the-job
accident. This Court's review of an opinion and award of the
Industrial Commission is limited to the following determination:
“(1) whether there is competent evidence to support the
Commission's findings of fact; and (2) whether these findings of
fact support the Commission's conclusions of law.” Bryson v. Phil
Cline Trucking, 150 N.C. App. 653, 660-61, 564 S.E.2d 585, 590
(2002). The Commission is the sole judge of the credibility of the
witnesses and the weight to be accorded their testimony. Russell
v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d
454, 457 (1993). Accordingly, “[i]f there is any evidence of
substance which directly or by reasonable inference tends to
support the findings, the court is bound by such evidence, even
though there is evidence that would have supported a finding to the
contrary.” Russell v. Yarns, Inc., 18 N.C. App. 249, 252, 196
S.E.2d 571, 573 (1973). The Industrial Commission's conclusions of
law, however, are not binding on this Court, and are reviewable de
novo. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491
S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500
S.E.2d 86 (1998). “The evidence tending to support plaintiff'sclaim is to be viewed in the light most favorable to plaintiff, and
plaintiff is entitled to the benefit of every reasonable inference
to be drawn from the evidence.” 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).
N.C. Gen. Stat. § 97-2 (2001) provides that a plaintiff must
“definitely” prove the following to establish a claim for a hernia
“resulting from injury by accident arising out of and in the course
of the [plaintiff's] employment”: (1) “[t]hat there was an injury
resulting in an hernia or rupture”; (2) “[t]hat the hernia or
rupture appeared suddenly”; (3) “[t]hat the hernia or rupture
immediately followed an accident”; (4) “[t]hat the hernia or
rupture did not exist prior to the accident for which compensation
is claimed.” N.C. Gen. Stat. § 97-2(18)(2001).
In the instant case, the Full Commission made the following
pertinent findings:
2. On January 5, 1999, plaintiff was
putting up ceiling joists in a house under
construction. While standing on a platform
two to three feet above the floor and reaching
up to hammer a nail into a ceiling joist, he
lost his balance and fell backwards, landing
on his buttocks on some scrap pieces of
lumber. He immediately experienced pain in
his groin and buttock region, right inguinal
pain, and he subsequently developed pain in
his right leg. Mr. Herr was standing nearby
when he fell and was aware of the fall.
Plaintiff advised that he was in pain, so he
was sent out to the porch to rest for a while.
He subsequently resumed his work activities
but was working noticeably slower than normal.
3. Plaintiff did not ask for medical
treatment on January 25 because he thought the
symptoms would resolve. However, on January28, 1999, he went to the Outer Banks Medical
Center with complaints of pain and swelling in
his right testicle and pain in his buttock and
right leg. Dr. Hoidal examined him and found
that his right testicle was hard and swollen.
Plaintiff denied direct groin trauma. Since
there were several possible diagnoses, Dr.
Hoidal referred him to Dr. Alvarez, a
urologist, for evaluation. Dr. Alvarez
ordered a scrotal ultrasound, which was
normal, and then examined plaintiff on
February 3, 1999. At that time the testicle
and scrotal exam was normal and Dr. Alvarez
did not recommend further treatment.
4. On February 6, 1999, plaintiff
returned to Outer Banks Medical Center
complaining of rectal bleeding. He was noted
to have had the problem for five days. He was
subsequently referred to Dr. Levine for
evaluation regarding that problem. Dr. Levine
performed an endoscopy which revealed no
lesions in the colon but several internal
hemorrhoids. Plaintiff was treated with
suppositories and his condition improved.
5. Plaintiff returned to the Outer
Banks Medical Center on March 26, March 28,
April 2, and April 10, 1999 with complaints of
sacral and coccyx pain. There was some
question as to whether he had a contusion or
an occult fracture of his coccyx, so he was
referred to an orthopedic surgeon. If he ever
saw an orthopedist, the notes were not placed
into evidence. No further medical evidence
was offered regarding any spinal injury.
However, plaintiff apparently went to a Dr.
Phillips in April and those medical records
were not placed into evidence either. Dr.
Phillips referred him to Dr. Carter, a general
surgeon, who examined him on April 27, 1999.
Dr. Carter found a small inguinal hernia on
the right side and recommended surgery. On
May 25, 1999, Dr. Carter performed surgery to
repair the hernia found. There is no evidence
of plaintiff ever having a hernia prior to the
injury on January 25, 1999.
6. The Full Commission finds as fact
that on January 25, 1999 plaintiff sustained
an injury by accident arising out of and in
the course of his employment with defendant. The fact that he fell from the platform and
landed on some lumber constituted an unusual
occurrence which interrupted his regular work
routine. As a result of the accident, he
injured his right testicle and developed
buttock and right leg pain as well as right
inguinal pain that was found to be a hernia.
However, the internal hemorrhoids for which he
was subsequently treated were not proven to
have been a proximate result of the accident.
7. Dr. Carter found a small inguinal
hernia upon examining plaintiff. When asked
if a hernia can result from a traumatic
incident, Dr. Carter testified, and the Full
Commission finds as fact, “absolutely.”
Neither Dr. Hoidal nor Dr. Alvarez found a
hernia when they examined plaintiff shortly
after the accident. Dr. Carter testified, and
the Full Commission finds as fact, that “when
someone has a traumatic injury, he could very
well have a very small tear that resulted in a
small hernia that might not be more--he might
have had pain and symptoms, but on physical
exam, he might not have been able to find it
for months.” Dr. Carter testified, and the
Full Commission finds as fact, that a small
tear resulting in a hernia is difficult to
find on physical examination in comparison to
a hernia that results in a bulge that is
usually easy to see.
8. The stipulated Form 22 shows
February 11 as the last day plaintiff worked.
As a result of the January 25, 1999 injury by
accident, plaintiff was unable to work from
February 12 through September 14, 1999. Dr.
Carter testified, and the Full Commission
finds as fact, that plaintiff was released to
full duty work with no restrictions following
his appointment with Dr. Carter on September
14, 2001.
9. Plaintiff was clearly disabled for a
period of time due to his hernia operation and
that disability was proven to have been the
result of his injury at work in January. Dr.
Carter testified, and the Full Commission
finds as fact, that the fall that occurred on
January 25, 1999 “absolutely” could have
caused the hernia which he had to repair
surgically. Although Dr. Hoidal found nopalpable hernia on examination, he testified
that the hernia could have resulted from the
injury plaintiff sustained on January 25, 1999
and testified that he was not surprised by Dr.
Carter finding the hernia based on Dr.
Carter's note indicating the hernia was very
small.
The Commission, therefore, made the following pertinent conclusions
of law:
1. On January 25, 1999, plaintiff
sustained an injury by accident arising out of
and in the course of his employment which
resulted in an injury to his right testicle
and the onset of buttock and right leg pain.
N.C. Gen. Stat. § 97-2(6)[.]
2. Plaintiff has proved that the injury
by accident on January 25, 1999 resulted in a
compensable hernia. N.C. Gen. Stat. § 97-
2(18).
3. Plaintiff is entitled to temporary
total disability compensation from February
12, 1999 through September 14, 1999. N.C.
Gen. Stat. § 97-29.
4. Plaintiff is entitled to have
defendants provide all medical compensation
arising from this injury by accident.
However, defendants are not liable for
treatment rendered for his internal
hemorrhoids or his pre-existing
gastrointestinal problems. Otherwise, the
treatment provided at the Outer Banks Medical
Center and by Dr. Alvarez is compensable.
N.C. Gen. Stat. § 97-2(19); N.C. Gen. Stat. §
97-25.
At the outset, we note that defendants have only assigned
error to three findings of fact -- findings 6, 7, and 9. The
remaining findings, to which defendants failed to assign error, are
“presumed to be correct.” See Okwara v. Dillard Dep't Stores,
Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (“Where an
appellant fails to assign error to the trial court's findings offact, the findings are 'presumed to be correct.'”) (citation
omitted)).
Moving to those three findings with which defendants take
issue, we further note that they are mixed findings of fact and law
as they relate to the issue of whether plaintiff's injury arose out
of his employment with defendant-employer. See Janney v. J.W. Jones
Lumber Co., 145 N.C. App. 402, 404, 550 S.E.2d 543, 546
(2001)(noting that the issue of whether an injury “'arises out of
employment'” is a mixed question of law and fact and review is,
therefore, limited to whether “'the findings and conclusions are
supported by competent evidence.'”) (citation omitted)). Review of
those findings are, therefore, only for a determination as to
whether the findings and conclusions are supported by the evidence.
Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 481
(1997) (citing Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248,
251, 293 S.E.2d 196, 198 (1982)).
When viewed in the light most favorable to plaintiff, the
evidence here tends to show that plaintiff fell from scaffolding
during and in the course of his employment on 25 January 1999, and
as a result, began to experience right testicular and inguinal
pain. When the pain did not abate, plaintiff was seen by Dr.
Hoidal at Outer Banks Medical Center, where it was observed that
his right testicle was hard and swollen. His right testicle was
also noted to be higher than the other. Dr. Hoidal noted that it
was reasonable for plaintiff to be out of work pending consultation
with a specialist. On the referral of Dr. Hoidal, plaintiff wasexamined by Dr. Alvarez, a urologist, who conducted an ultrasound
and found no abnormalities. Particularly, Dr. Alvarez failed to
detect any signs of a hernia. After continued pain and several
other referrals, however, Dr. Carter diagnosed plaintiff with a
very small right inguinal hernia. Subsequent surgery confirmed
that diagnosis. At his deposition, Dr. Carter testified that the
25 January 1999 fall could have caused plaintiff's hernia. In
explanation for why other physicians had not diagnosed the hernia,
Dr. Carter testified that in cases of trauma, a hernia may not be
appreciated by a physician for several months. Dr. Hoidal also
testified during his deposition that based upon the notes from
plaintiff's visits to Outer Banks Medical Center and Dr. Carter's
office, plaintiff's hernia might or could have resulted from
plaintiff's 25 January 1999 fall. The stipulated evidence tended
to show that plaintiff last worked on 11 February 1999. Dr. Carter
released plaintiff to full duty work on 14 September 1999.
To the extent that findings 6, 7, and 9 are factual findings,
we conclude that the findings are amply supported by the evidence.
The question then becomes whether, in light of the factual
findings, the Full Commission's conclusions as stated in findings
6, 7, and 9, and corresponding conclusions of law, are legally
proper.
While defendants argue to the contrary, we conclude that the
evidence of record supports not only the Full Commission's
findings, but also its conclusion that plaintiff suffered a
compensable hernia as a result of his 25 January 1999 fall fromscaffolding. Though plaintiff's hernia was not diagnosed by Dr.
Carter until some four months after the 25 January 1999 fall, this
Court finds it compelling that plaintiff was seen by several
physicians during the four-month period between the 25 January 1999
accident and his 27 April 1999 visit to Dr. Carter. Further, both
Dr. Carter and Dr. Hoidal gave an explanation for why previous
examinations had failed to reveal the existence of a hernia.
Finally, contrary to defendant's assertion, this Court finds the
testimony of Dr. Carter and Dr. Hoidal sufficient to establish
causation between plaintiff's 25 January 1999 fall and his right
inguinal hernia. The doctors' testimony that the subject fall
“could have” or “possibl[y]” caused plaintiff's hernia is more than
speculation and sufficient to establish causation. See Young v.
Hickory Bus. Furniture, 353 N.C. 227, 233, 538 S.E.2d 912, 916
(2000) (Our supreme court “has allowed 'could' or 'might' expert
testimony as probative and competent evidence to prove
causation.”). Accordingly, we hold that the evidence supports the
Full Commission's findings of fact, and in turn those findings
support its conclusions of law that plaintiff showed entitlement to
workers compensation benefits for his right inguinal hernia.
In light of our conclusion in this regard, the opinion and
award of the Full Commission is affirmed.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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