v
.
From the North Carolina
Industrial Commission
I.C. File Number 972374
THE NEW TELEPHONE COMPANY, INC.,
Defendant-Appellant,
Maynard & Harris, P.L.L.C., by Celeste M. Harris and John J.
Korzen, for plaintiff-appellee.
McAngus, Goudelock & Courie, P.L.L.C., by Andrew R. Ussery and
Sally G. Boswell, for defendant-appellant.
WYNN, Judge.
Defendant-employer, The New Telephone Company, appeals from an
Opinion and Award of the North Carolina Industrial Commission
awarding workers' compensation benefits to plaintiff-employee,
Charles H. Irby. Defendant contends that the Commission's findings
that plaintiff's on-the-job injury resulted in a mild-traumatic-
brain injury and loss-in-wage earning capacity were not supported
by sufficient evidence. On appeal, we affirm the Opinion and
Award.
Defendant employed plaintiff since June 1987 as an
installation manager responsible for supervising installers,scheduling work orders, and working in the field servicing and
installing office telephone equipment. On 6 October 1999, while
installing data cables in the ceiling of a textile facility,
plaintiff fell through the ceiling onto the concrete floor eight-
to-ten feet below. At the hospital, he was treated for two
dislocated fingers and diagnosed with a pulmonary contusion. He was
later treated by an orthopedic surgeon for bruising to his chest
wall, shoulders and an injury to his knee. Plaintiff returned to
work on 11 October 1999 and continued to work through 17 February
2000.
Although plaintiff had returned to work, plaintiff's wife
complained that he was behaving erratically, had crying spells, and
was depressed. Plaintiff subsequently saw several doctors including
his family physician, Dr. John H. Bowen, who performed several
tests including an EEG and an MRI but found no neurological reason
for plaintiff's problems.
Dr. Bowen referred plaintiff to Dr. Richard W. Marcus, a
neurologist, and Dr. Mark A. Graham, a psychiatrist. Dr. Marcus
ran several tests and diagnosed plaintiff with severe sleep apnea
for which a CRAP machine was prescribed. Dr. Graham concluded that
plaintiff sustained a personality change secondary to a closed-head
injury during the fall at work and prescribed several medications
to treat the symptoms. Plaintiff continued to be treated by Dr.
Graham. After Dr. Graham moved away, plaintiff received his
psychiatric care from Dr. Charles Davis who concurred with Dr.Graham's diagnosis and continued plaintiff on the same
prescriptions.
In February and May 2000, again upon Dr. Bowen's referral,
plaintiff saw Gary Indenbaum, Ph.D., neuropsychologist, for an
evaluation. Dr. Indenbaum found plaintiff's cognitive skills
functioned at a very high level, but he displayed symptoms of
severe emotional turmoil, with obsessive tendencies and problems in
making decisions. Although Dr. Indenbaum believed the tests showed
plaintiff's abilities were generally consistent with intact
frontal-lobe functions, given his reported personality changes, Dr.
Indenbaum was unwilling to say plaintiff had not sustained a head
injury.
Plaintiff was also evaluated by Lynn Flowers, Ph.D., a
neuropsychologist at Wake Forest University. Dr. Flowers found
plaintiff's intellectual abilities were at least normal, if not
above normal, and there was no evidence of cognitive dysfunction
consistent with traumatic-brain injury. Dr. Flowers did not observe
any of the behavioral changes described by Mrs. Irby, but stated
that if plaintiff experienced those behaviors, there would be a
strong suggestion that the injury led to the personality and
behavioral changes.
Later, in the early months of 2001, plaintiff saw Dr. Edgardo
Diez, a physician at Thoms Rehabilitation, who found that plaintiff
might be able to drive again. He had a prescreening driver's test
administered and sent plaintiff to Earl Rhoades, Ph.D.,
neuropsychologist, for a current evaluation. Dr. Rhoades foundthat plaintiff had sustained a mild-traumatic-brain injury
evidenced in the form of frontal-lobe syndrome with personality
changes including performing repetitive behaviors, such as constant
wringing of hands, loss of inhibition, problems with impulse
control and problems with non-goal directed behaviors. Dr. Rhoades
believed the frontal-lobe syndrome prevented plaintiff from
working.
Plaintiff filed a claim seeking compensation for his medical
expenses as well as for disability caused by the 6 October 1999
fall. When the parties were unable to resolve the claim regarding
the alleged head injury, the claim was assigned for hearing.
Deputy Commissioner Morgan S. Chapman heard this matter on 5 March
2001 and on 21 September 2001 filed an Opinion and Award holding
plaintiff's current disability, labeled frontal-lobe syndrome, was
caused by mild-traumatic-brain injury incurred during the 6 October
1999 injury by accident. On appeal, the Commission affirmed the
Opinion and Award of Deputy Commissioner Chapman. Defendants
appeal.
_______________________________________
Defendant first argues that the Commission erred in finding
there was sufficient evidence to support a finding that plaintiff
suffered a loss in wage earning capacity due to his frontal-lobe
injury. While defendant makes several arguments to support the
contention that the Commission could have found that plaintiff does
not suffer from a closed-head injury manifesting itself in
personality changes, this is not our standard of review. “Ourreview of an Industrial Commission's award is limited to two
questions: (1) whether there was competent evidence before the
Commission to support its findings of fact, and (2) whether the
findings support the legal conclusions.” Gilliam v. Perdue Farms,
112 N.C. App. 535, 536, 435 S.E.2d 780, 781 (1993). The findings
of the Industrial Commission are conclusive on appeal when
supported by competent evidence even though there may be evidence
to support a contrary finding. Hilliard v. Apex Cabinet Co., 305
N.C. 593, 595, 290 S.E.2d 682, 684 (1982). “The Commission's
conclusions of law are reviewable de novo.” Arnold v. Wal-Mart
Stores, 154 N.C. App. 482, 484, 571 S.E.2d 888,891 (2002).
In this case the Commission found in its Opinion and Award
that:
19. Although plaintiff had preexisting
anxiety disorder and sleep apnea, his behavior
worsened and became significantly different
following the fall. The Commission finds the
testimony of Mrs. Irby and Ms. Smith credible
regarding the personality changes experienced
by plaintiff after the fall.
20. The greater weight of the evidence shows
that plaintiff injured his head in the fall,
based upon the nature of the fall and the
nature of the symptoms plaintiff developed
later. Drs. Marcus, Graham, Diez, Davis and
Rhoades attributed plaintiff's condition to a
closed-head injury sustained as a result of
the fall, based upon their personal
observations and examinations of plaintiff,
his history and test results. Dr. Rhoades
indicated that a head injury could have
impaired plaintiff's ability to be a reliable
historian immediately after the fall due to an
alteration in consciousness. Dr. Davis
believed that head injury was the best and
most reasonable explanation for plaintiff's
on-going psychiatric problems. No other cause
has been identified. The Commission givesgreater weight to the opinions of Drs. Marcus,
Graham, Davis, Diez and Rhoades than to Drs.
Idenbaum and Flowers, who based their opinions
on limited observations of plaintiff.
21. Consequently, despite the lack of direct
evidence of a head injury, plaintiff is found
to have sustained a closed-head injury which
caused some mild, traumatic brain damage which
subsequently manifested itself in the form of
personality changes. Plaintiff became
withdrawn and passive, had difficulty
initiating conversations, had a lack of
judgment in social interactions, became
disinhibited regarding sexual matters and
experienced difficulty controlling impulses.
22. Due to the October 6, 1999 injury at
work, plaintiff was unable to work in any
capacity from February 18, 2000 through the
date of the Deputy Commissioner hearing on
March 5, 2001...
CONCLUSIONS OF LAW
1. Plaintiff sustained a mild, traumatic
brain injury as a result of the October 6,
1999 injury by accident which caused
personality changes and symptoms that have
been labeled as frontal-lobe syndrome. N.C.
Gen. Stat. § 97-2(6); Click v. Pilot Freight
Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389
(1980).
2. As a result of the compensable injury by
accident, plaintiff was disabled and is
entitled to compensation for temporary total
disability at the rate of $560.00 per week
from February 18, 2000 and continuing
thereafter until he returns to work or until
further order of the Commission. N.C. Gen.
Stat. § 97-29.
Plaintiff bore the burden of showing that he had suffered a
“disability” (loss of wage-earning capacity) pursuant to N.C. Gen.
Stat. § 97-29 (2001). Cox v. City of Winston-Salem,_____N.C. App.
___, 578 S.E.2d 669, 674 (2003). See N.C. Gen. Stat. § 97-2(9)
(2001). Plaintiff presented evidence that at least six doctors,Drs. Davis, Graham, Bowen, Diez, Rhoades and Lesage, diagnosed him
with a personality disorder secondary to a closed-head injury or a
closed-head injury resulting in frontal-lobe syndrome/dysfunction.
Plaintiff also presented evidence that at least three doctors found
the frontal-lobe syndrome prevented him from working. Dr. Rhoades
testified that he did not believe plaintiff could return to work
because of his frontal-lobe syndrome and was unable to give an
opinion as to when he might be able to work again. Dr. Davis
testified that plaintiff's difficulty in initiating activity or
using proper judgment means he would have great difficulty in all
but the most supervised tasks. Dr. Bowen agreed, testifying that
plaintiff has been unable to work since 17 February 2000 and will
continue to be unable to work for the foreseeable future because he
might endanger himself or others. Finally, plaintiff also offered
evidence that he was receiving social security disability, was
found incompetent by order of the Clerk of Superior Court of
Caldwell County on 8 March 2001, and had been unable to work at his
second, part-time job following the fall. Thus, the record shows
competent evidence to support the Commission's findings that
plaintiff is disabled.
Defendant next contends that the Commission used improper post
hoc ergo propter
(See footnote 1)
analysis in violation of Young v. Hickory Bus.
Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) and there was
insufficient evidence to support a finding that the alleged
personality changes resulted from the 6 October 1999 accident. Toestablish “a compensable claim for workers' compensation, there
must be proof of a causal relationship between the injury and the
employment.” Peagler v. Tyson Foods, 138 N.C. App. 593, 597, 532
S.E.2d 207, 210 (2000). An injury is compensable as
employment-related if “'any reasonable relationship to employment
exists.'” Kiger v. Bahnson Service Co., 260 N.C. 760, 762, 133
S.E.2d 702, 704 (1963). The plaintiff must show by a preponderance
of the evidence standard that the work-related injury caused the
disability for which he seeks compensation. See Holley v. Acts,
Inc., ___ N.C. ___, 581 S.E.2d 750 (2003); Ballenger v. ITT
Grinnell Industrial Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d
683, 685 (1987).
However, when “the exact nature and probable genesis of a
particular type of injury involves complicated medical questions
far removed from the ordinary experience and knowledge of laymen,
only an expert can give competent opinion evidence as to the cause
of the injury.” Click v. Pilot Freight Carriers, Inc., 300 N.C.
164, 167, 265 S.E.2d 389, 391 (1980). In Young, our Supreme Court
stated that “when such expert opinion testimony is based merely
upon speculation and conjecture, . . . it is not sufficiently
reliable to qualify as competent evidence on issues of medical
causation.” Young, 353 N.C. at 230, 538 S.E.2d at 915. Although
medical certainty is not required, an expert's “speculation” isinsufficient to establish causation. Holley, ___ N.C. at ___, 581
S.E.2d at 754.
(See footnote 2)
In this case, at least six doctors diagnosed plaintiff with
the disability. Dr. Bowen, who treated plaintiff both before and
after his work-related accident, testified to a reasonable degree
of medical certainty that plaintiff suffered a closed-head injury
as a result of his fall that aggravated his previous medical
conditions. Drs. Davis, Rhoades, and Indenbaum also testified that
plaintiff's closed-head injury/frontal-lobe syndrome was caused byhis fall, although they were unable to do so with a reasonable
degree of medical or neuropsychological certainty. The cause of
plaintiff's injury is not mere speculation and is supported by the
preponderance of the evidence. We therefore find there is
competent evidence to support the Commission's finding that
plaintiff's brain damage was caused by his work-related accident.
Defendant's final argument that the opinion and award is not
supported by competent evidence because plaintiff's diagnosis was
overly dependent on Mrs. Irby's descriptions of his symptoms is
without merit. Under our Workers' Compensation Act, “the
Commission is the fact finding body.” Brewer v. Powers Trucking
Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962). “The Commission
is the sole judge of the credibility of the witnesses and the
weight to be given their testimony.” Adams v. AVX Corp., 349 N.C.
676, 680, 509 S.E.2d 411, 413 (1998). The Commission was able to
weigh the testimony given by Mrs. Irby as well as that of the
testifying doctors. They found her testimony credible. Further,
at least two doctors testified that it was unlikely that
plaintiff's symptoms could be faked while no evidence to the
contrary was offered.
Accordingly, the Commission's Opinion and Award is,
Affirmed.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***