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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JOHN ALEXANDER, Employee, Plaintiff, v. WAL-MART STORES, INC.,
Employer, AMERICAN HOME ASSURANCE COMPANY, Carrier, Defendants
Filed: 19 October 2004
1. Workers' Compensation-_injury by accident--causation--back injury
The Industrial Commission erred in a workers' compensation case by finding a causal
relationship between plaintiff employee's injury by accident when a fork-lift ran over his foot
and the ruptured discs in his back because: (1) plaintiff's expert could not give an opinion with
reasonable medical probability on the cause of plaintiff's back injury, and the expert prefaced
her statements on causation using language such as my suspicion is and I suspect; (2) the
expert's testimony taken as a whole was that she did not possess enough information concerning
plaintiff's back injury to provide more than her suspicion as to its cause; and (3) the other
physicians whose depositions form part of the record on appeal were similarly uncertain as to the
cause of plaintiff's back injury.
2. Workers' Compensation-_temporary total disability--injury by accident
Although defendants contend the Industrial Commission erred in a workers'
compensation case by awarding plaintiff employee temporary total disability benefits, this issue
is remanded to the Commission for findings, conclusions, and awards consistent with the Court
of Appeals' opinion because although the Commission erred by awarding plaintiff compensation
for his back injury, defendants do not dispute that plaintiff suffered a compensable injury by
accident to his foot on 8 April 1999.
3. Workers' Compensation-_restitution_-credit to employer--overpayment of
temporary total disability benefits
The issue of defendants' entitlement to restitution from plaintiff employee in a workers'
compensation case for alleged overpayment of temporary total disability benefits is remanded to
the Industrial Commission for appropriate findings, conclusions, and awards in accordance with
the disposition of the issues resolved by the Court of Appeals.
4. Workers' Compensation-_treating physician_-abuse of discretion standard
The Industrial Commission did not err in a workers' compensation case by its
designation of plaintiff's treating physician, because defendants do not allege, and the Court of
Appeals did not find, that the Commission abused its discretion.
5. Costs--attorney fees--workers' compensation
Although plaintiff employee requests that the Court of Appeals tax defendants with the
costs of the instant workers' compensation appeal pursuant to N.C.G.S. § 97-88, a request for
attorney fees under this statute is not properly raised as a cross-assignment of error, and thus, the
Court of Appeals declines to review this request.
Judge HUDSON dissenting.
Appeal by defendants from opinion and award entered 24 March
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 10 June 2004.
Brumbaugh, Mu & King, P.A., by Nicole D. Wray, for plaintiff-
Young Moore and Henderson, P.A., by J. Aldean Webster III, for
Defendants Wal-Mart Stores, Inc. and American Home Assurance
Company appeal from an opinion and award entered 24 March 2003 by
the North Carolina Industrial Commission (the full Commission) in
favor of plaintiff John Alexander. Defendants argue four issues on
appeal: (1) that the full Commission erred by finding a causal
relationship between plaintiff's injury by accident at work and
plaintiff's back injury; (2) that the full Commission erred in
awarding plaintiff temporary total disability benefits; (3) that
defendants are entitled to restitution from plaintiff because of
overpayment of benefits; and (4) that the full Commission erred by
designating Dr. Toni Harris as plaintiff's treating physician. In
addition, plaintiff argues that this Court should tax defendants
with the costs associated with this appeal.
The evidence before the full Commission included the
following: On 8 April 1999, plaintiff sustained a compensable
injury by accident to his left foot while working for defendant
Wal-Mart. Plaintiff was treated by several physicians for this
injury including Dr. Toni Harris, who specializes in pain
management. Dr. Harris administered an epidural to plaintiff,
which caused plaintiff to experience severe back pain. Dr. Harris
then discovered that plaintiff had herniated disks in his back.
Dr. Harris wanted to investigate whether plaintiff's back problems
were related to his foot and ankle pain. She attempted to referplaintiff to a neurosurgeon for further evaluation, but defendants
denied this referral.
Defendants did refer plaintiff to Dr. Robert Fletcher for an
independent medical evaluation of plaintiff's foot and back
injuries. Dr. Fletcher conducted this evaluation on 21 July 2000
and opined that plaintiff's back injury was not related to
plaintiff's accident at work. On 17 July 2000, defendants filed an
Industrial Commission form 33 requesting a hearing to determine
whether the medical treatment plaintiff has been receiving is
related to the 4-8-99 incident and defendants' further liability
to plaintiff, if any.
Following a hearing on 9 May 2001, the Chief Deputy
Commissioner of the North Carolina Industrial Commission issued an
opinion and award ordering defendants to continue to pay plaintiff
temporary total disability benefits until further order of the
Commission. The opinion and award also designated Dr. Harris as
plaintiff's treating physician and allowed Dr. Harris to authorize
a referral to a neurosurgeon should it be deemed necessary to
effect a cure, provide relief or reduce the period of Alexander's
disability. On 24 March 2003, the full Commission filed an
opinion and award affirming the opinion and award of the chief
deputy commissioner with minor modifications. Defendants appeal.
Standard of Review
The standard of review for an appellate court reviewing an
appeal from the North Carolina Industrial Commission is limited to
determining whether competent evidence supports the findings of
fact and whether the findings of fact support the full Commission's
conclusions of law. Deese v. Champion Int'l Corp.
, 352 N.C. 109,116, 530 S.E.2d 549, 553 (2000). Thus, this Court may not 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.
, 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
Furthermore, the evidence tending to support plaintiff's claim must
be taken 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)
 Defendants first contend that competent evidence does not
support the full Commission's determination that the 8 April 1999
workplace accident caused plaintiff's ruptured disc. The full
Commission made the following finding of fact on causation:
The greater weight of the evidence
establishes that plaintiff's ruptured disc was
a result of his accident on April 8, 1999.
Dr. Harris's testimony, taken as a whole,
establishes that it was likely that the
rupture occurred during the accident. Dr.
Harris' opinion is given more weight than that
of Dr. Fletcher. First, Dr. Fletcher was not
aware that plaintiff had fallen during the
accident, even though when made aware of that
fact, he testified that it was not likely that
a simple fall would cause the rupture.
Second, Dr. Harris testified that she had
previously treated patients in which an
asymptomatic disc as to back pain could
produce the symptoms in the feet such as
plaintiff was experiencing. Third, Dr.
Fletcher, when confronted with Dr. Harris'
opinions, admitted that he would not disagree
with Dr. Harris based on his opinion of her
Based on this finding, the full Commission concluded as a matter of
law that [p]laintiff has proven by the greater weight of the
evidence that the ruptured disc at L5-S1 was caused by the accident
of April 8, 1999.
After careful review of the record on appeal, we conclude that
competent evidence does not support the full Commission's finding
and conclusion that plaintiff's ruptured disc was caused by the 8
April 1999 workplace accident. Dr. Harris, by deposition,
testified that she started treating plaintiff on 16 March 2000.
Dr. Harris indicated that plaintiff had been referred to her for
treatment of foot and ankle pain stemming from an injury at work.
In order to determine if there was any component of the foot pain
from his back, Dr. Harris administered an epidural injection to
plaintiff's back. Dr. Harris testified that plaintiff returned to
her office shortly after the epidural complaining of back pain. An
MRI ordered as a result of this complaint revealed a herniated disk
at L5-S1. In her deposition, Dr. Harris explained that she
believed the volume injected with the epidural put pressure on the
disk, causing plaintiff to feel back pain.
Dr. Harris then stated:
My suspicion is that . . . he probably, when
he fell _- I think when this thing ran over
his foot, he didn't just stand there. He fell
backwards as it was going over his foot. I
mean, you can imagine that you would respond,
your whole body would respond. I suspect that
he got the herniated disk then . . . .
Thereafter, the following exchange occurred between Dr. Harris and
Q. [Plaintiff's attorney] You testified that
you suspected _- suspected that his
herniated disk occurred when he had theaccident at work. Can you say that to a
reasonable degree of medical probability?
A. [Dr. Harris] I don't know. I don't know.
All I wanted to know at the time was I
wanted to treat him, to see if his foot
pain got any better, and that would tell
us that some of the problem with the foot
was from the back.
On cross examination this exchange transpired between defendants'
attorney and Dr. Harris:
A. [Dr. Harris] I was not -- I was not
treating a back condition. I was
treating -- I was treating the foot pain.
And if that one nerve that goes to that
foot starts in the back, if I can't get
that nerve down here, I'm going to try to
get it in the back.
Q. [Defendants' attorney] But you are basing
this on an assumption that he injured his
back at the time of the fall?
A. [Dr. Harris] The chances are likely, but
her [the claims adjuster] mistake was not
letting me do this, 'cause if the foot
didn't get any better, we could say,
Well the disk probably isn't doing it.
You can't tell.
We conclude that this testimony does not support the full
Commission's findings and conclusions that plaintiff's accident at
work caused his back injury. In a workers' compensation case, the
plaintiff has the burden of proving causation by the preponderance
of the evidence. Holley v. Acts, Inc., 357 N.C. 228, 231-32, 581
S.E.2d 750, 752 (2003). Where the nature of the injury alleged
involves complicated medical questions, only an expert can give
competent evidence as to causation. Click v. Freight Carriers, 300
N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Further, [a]lthough
expert testimony as to the possible cause of a medical condition isadmissible if helpful to the jury, it is insufficient to prove
causation, particularly 'when there is additional evidence or
testimony showing the expert's opinion to be a guess or mere
speculation.' Holley, 357 N.C. at 233, 581 S.E.2d at 753
(2003)(quoting Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538
S.E.2d 912, 915 (2000))(internal citation omitted).
In the instant case, plaintiff presented Dr. Harris's expert
testimony on causation as required by our Supreme Court's holding
in Click. However, when asked directly, Dr. Harris could not give
an opinion with reasonable medical probability on the cause of
plaintiff's back injury. Furthermore, Dr. Harris prefaced her
statements on causation using language such as [m]y suspicion is
and I suspect. Dr. Harris did use the word likely, in response
to a question on causation by defendants' attorney. However, the
context in which it was used shows that Dr. Harris's concern was
with a possible relationship between plaintiff's back injury and
his foot pain, as opposed to an attempt to evaluate the causal link
between the 8 April 1999 accident and plaintiff's back injury.
We conclude that Dr. Harris's testimony taken as a whole was
that she did not possess enough information concerning plaintiff's
back injury to provide more than her suspicion as to its cause. As
she repeatedly indicated in her deposition, she was not treating
plaintiff's back condition. She expressly qualified the statements
she did make concerning the causation of plaintiff's back injury as
her suspicions. Under the North Carolina Supreme Court's holding
in Young v. Hickory Business Furniture, testimony of this nature is
not sufficiently reliable to constitute competent evidence of
causation. Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538S.E.2d 912, 915 (2000); cf. Edmonds v. Fresenius Med. Care, __ N.C.
App. __, __, 600 S.E.2d 501, 505 (2004)(causation evidence is
competent if it is the product of a reasoned medical analysis).
Accordingly, the full Commission erred in basing its finding of
fact on causation upon Dr. Harris's testimony.
The other physicians whose depositions form part of the record
on appeal were similarly uncertain as to the cause of plaintiff's
back injury. In his deposition, Dr. Fletcher indicated that the
type of herniated disc plaintiff was diagnosed with is not
consistent with plaintiff's description of his accident at work.
When asked to explain this opinion, Dr. Fletcher testified that he
primarily sees lifting, bending, and pushing on objects as causing
hernias and that he could not recall seeing many herniated discs
from that type of an incident [experienced by plaintiff]. Dr.
Fletcher also testified that only in rare cases is it possible to
have a herniated disc without experiencing any symptoms. Dr. Peter
Chung testified, by deposition, that it was possible that the 8
April 1999 accident caused plaintiff's back injury, but that he
would prefer not to _- to give any indications as to its
probability because [t]hat would best be answered by an
orthopedic or neurosurgeon, because there are many causes of disk
herniation. Thus, the record does not support a finding that
plaintiff's 8 April 1999 accident at work caused his back injury.
Accordingly, the full Commission erred by concluding as a matter of
law that plaintiff established a causal relationship between the 8
April 1999 accident and his back injury.
Total Temporary Disability
 Defendants next argue that the full Commission erred by
awarding plaintiff temporary total disability benefits. Although
we agree that the full Commission erred by awarding plaintiff
compensation for his back injury, defendants do not dispute that
plaintiff suffered a compensable injury by accident to his foot on
8 April 1999. Accordingly, we remand consideration of this issue
to the North Carolina Industrial Commission for findings,
conclusions, and awards consistent with our holding herein.
Credit for Overpayment
 Defendants argue that they are entitled to restitution
from plaintiff for alleged overpayment of temporary total
disability benefits. Under N.C. Gen. Stat. . 97-42 (2003), the
Industrial Commission may in certain circumstances award credit to
an employer who voluntarily makes payments to an employee whose
workers' compensation claim is being disputed. N.C. Gen. Stat. .
97-42 (2003); see Foster v. Western-Electric Co., 320 N.C. 113,
116, 357 S.E.2d 670, 673 (1987). The decision of whether to grant
a credit is within the sound discretion of the Commission.
Shockley v. Cairn Studios, Ltd., 149 N.C. App. 961, 966, 563 S.E.2d
207, 211 (2002), disc. rev. dismissed, 356 N.C. 678, 577 S.E.2d
887-88 (2003). Accordingly, we remand consideration of this issue
to the Industrial Commission for appropriate findings, conclusions,
and awards in accordance with the disposition of the issues
Dr. Harris as Treating Physician
 Defendants argue that Dr. Harris should not be designated
as plaintiff's treating physician. Under N.C. Gen. Stat. 97-25
(2003), either the employer or the employee in a workers'compensation matter may make a motion to designate the treating
physician. See Matthews v. Charlotte-Mecklenburg Hosp. Auth.
N.C. App. 11, 18, 510 S.E.2d 388, 393-94 (1999), disc. rev. denied
350 N.C. 834, 538 S.E.2d 197 (1999). The Industrial Commission's
approval or disapproval of these motions is subject to an abuse of
discretion standard. See Franklin v. Broyhill Furniture Indus.
123 N.C. App. 200, 207-08, 472 S.E.2d 382, 387 (1996), cert.
, 344 N.C. 629, 477 S.E.2d 39 (1996). In the instant case,
defendants do not allege and this Court does not find that the full
Commission abused its discretion in designating Dr. Harris as
plaintiff's treating physician. Accordingly, this assignment of
error is overruled.
Plaintiff's Request for Attorneys' Fees
 In his appellate brief, plaintiff requests that this Court
tax defendants with the costs of the instant appeal pursuant to
N.C. Gen. Stat. . 97-88 (2003). However, a request for attorneys'
fees under this statute is not properly raised as a cross-
assignment of error. See Guerrero v. Brodie Contrs., Inc.,
N.C. App. 678, 686, 582 S.E.2d 346, 351 (2003). Accordingly, we
decline to review this request.
This matter is remanded to the North Carolina Industrial
Commission for disposition in accordance with this opinion.
Reversed in part and remanded.
Judge ELMORE concurs.
Judge HUDSON dissents.
HUDSON, Judge, dissenting. Having carefully reviewed the deposition and medical notes of
Dr. Harris, I conclude that the majority has incorrectly applied
the standard of review to finding of fact number 20. The crucial
portion of the finding, which is quoted entirely in the majority
opinion, says that The greater weight of the evidence establishes
that plaintiff's ruptured disc was a result of his accident on
April 8, 1999. Dr. Harris' testimony, taken as a whole,
establishes that it was 'likely' that the rupture occurred during
the accident. Because the evidence does support this finding, I
Although the quotations from the majority opinion do reflect
testimony in the deposition, there are also more definite
expressions of opinion in other parts of the testimony and records.
At the beginning of the deposition, counsel stipulated that this
particular physician, Dr. Toni Harris is an expert in pain
management. She treated the plaintiff beginning in March of 2000
for his foot pain. During the treatment, she began to suspect that
the pain might be radiating from the back, and ordered an epidural
injection to test that hypothesis. After the injection, plaintiff
began to exhibit symptoms of pain near the site of the injection in
his spine, and continued to have foot pain. In much of the
deposition, the exasperated doctor tried repeatedly to get defense
counsel to grasp that it was her opinion that the foot pain was due
in part to direct trauma to the foot, and in part to radiating pain
from a disc problem, both of which she related to the work
In the medical records, which the parties also stipulated into
evidence, Dr. Harris states: 03/16/00
...The [plaintiff] was involved in a work-
related injury in April 1999. He was working
at Wal-Mart when his left foot was run over by
a fork-lift... The forklift went over the
posterolateral aspect of the left foot and up
the ankle. The force was great enough to push
him down to the ground... The patient reports
that he has numbness, tingling and throbbing
pain in the left foot, with intermittent,
sharp, shooting pain... The patient also
reports pain extending up the legs. . .
Addendum: I spoke to Melissa, the adjuster on
the case...I tried to explain that the back
injury was a part of the problem from the
beginning... (emphasis added)
In addition, in her testimony, she explained as follows:
A. ...I think there was a--in the foot, I
think part of the problem in the foot was
from the direct trauma of the foot.
Q. Was that a foot injury?
A. It's all a foot injury.
A. And part of it--you can't separate the
body like that.
Q. When you're saying--are you saying
there's not an injury in the back?
A. There's a herniated disk in the back.
But it's pressing on the nerves, that's
Q. The pathology is in the back?
A. --that goes to the foot.
Q. Right. It's the pathology in the back,
A. The pathology in the back causing the
problem in the foot.
And, most directly, counsel asked the doctor whether her opinions
were based on an assumption that plaintiff's disk was injured the
fall. It is clear from Dr. Harris' response that, in her opinion,
it was likely that the foot pain started in the back.
The Commission's finding that Dr. Harris' testimony as a whole
establishes that it was 'likely' that the rupture occurred during
the accident, tracks this testimony exactly.
In reaching the contrary conclusion, the majority applies the
standard of review in a manner contrary to the repeated
instructions of the Supreme Court. The Supreme Court has stated
several times that the role of the Court of Appeals is limited to
reviewing whether any competent evidence supports the Commission's
findings of fact and whether the findings of fact support the
Commission's conclusions of law. Deese v. Champion Int'l Corp.,
352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). In reviewing a
workers' compensation claim, 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.
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)
(quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)), reh'g denied, 350 N.C. 108, 532 S.E.2d 522
(1999). If there is any evidence at all, taken in the light most
favorable to the plaintiff, the finding of fact stands, even if
there is substantial evidence to the contrary. Id. The plaintiff
is entitled to the benefit of every inference in his or her favor,
whether or not he or she prevailed in the Commission. Poole v.
Tammy Lynn Ctr., 151 N.C. App. 668 , 672, 566 S.E.2d 839, 841(2002). The Full Commission is the sole judge of the weight and
credibility of the evidence, and this Court may not second-guess
those determinations. Deese, 352 N.C. at 116, 530 S.E.2d at 553.
Here, where the stipulated records and the testimony of Dr.
Harris do support the Commission's findings, when viewed in light
of the standard of review, the finding should be upheld. I do not
believe it is the role of this Court to comb through the testimony
and view it in the light most favorable to the defendant, when the
Supreme Court has clearly instructed us to do the opposite.
Although by doing so, it is possible to find a few excerpts that
might be speculative, this Court's role is not to engage in such a
weighing of the evidence. As demonstrated above, much of the
evidence reveals that the doctor expressed her opinions repeatedly
and without equivocation. Thus, I conclude that the Commission's
finding is supported, and that we should affirm the opinion and
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