Workers' Compensation_carpel tunnel_causation_evidence sufficient
There was competent evidence to support the Industrial Commissions' findings and
conclusions that plaintiff's bilateral carpel tunnel syndrome was caused by her employment.
Although defendant characterized the testimony of plaintiff's expert as speculative, the witness
responded with an unequivocal “yes” when asked if plaintiff's employment could or might have
caused her injury; “could” or “might” testimony is probative of causation where there is no other
evidence showing the opinion to be mere guess or speculation.
McGuire Woods, by John J. Cacheris, for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Thomas W.
Page and Terry L. Wallace, for defendant-appellants.
ELMORE, Judge.
McCreary Modern, Inc. and National Benefits Group
(collectively, defendants) appeal from an opinion and award of the
North Carolina Industrial Commission awarding Catherine P. Jarrett
(plaintiff) workers' compensation disability and medical benefits
for bilateral carpal tunnel syndrome. For the reasons stated
herein, we affirm.
An opinion and award was entered on 16 August 2002 by a deputy
commissioner denying plaintiff's claim because plaintiff “failed to
establish that her condition was characteristic of and peculiar to
her employment, that she was at an increased risk of developing thecondition, or that her condition was caused by her employment.”
The deputy commissioner specifically concluded that the testimony
of one of plaintiff's treating physicians, Dr. Anthony DeFranzo,
that plaintiff's job could or might have caused her bilateral
carpal tunnel syndrome was based “on speculation and false
assumptions such as [sic] that his testimony was not competent to
be considered.”
Plaintiff thereafter appealed to the Full Commission. The
Commission found as a fact that plaintiff was 55 years old at the
time of the hearing before the deputy commissioner and that she
began working for defendant McCreary Modern in April 1995.
Plaintiff worked as an attach skirt sewer, operating a sewing
machine to sew skirts onto furniture covers. Plaintiff worked
between seven and eight hours per shift, five or six days per week,
with a ten-minute morning break, a thirty-minute lunch break, and
a ten-minute afternoon break. A videotape of plaintiff performing
her job duties was stipulated into evidence, which plaintiff agreed
accurately depicted her job. The process of sewing a skirt onto a
furniture cover involved plaintiff picking up the furniture cover,
which typically weighed between two and seven pounds; laying the
cover and the skirt on the sewing machine, under the needle arm;
guiding the cover and skirt through the machine; stapling a ticket
to the cover; and throwing the completed product into a bin.
Plaintiff spent approximately eight minutes sewing one sofa skirt,
and she sewed between 50 and 60 covers per shift.
The Commission further found that on 29 May 2000 plaintiff
sought treatment from Dr. Mark McGinnis, complaining of a two-yearhistory of pain in her right hand, wrist, and forearm. Plaintiff
also complained of numbness in her right hand but did not then
report any left-hand symptoms, and plaintiff did not notify
defendants at that time that she needed medical care for a work-
related condition. Plaintiff returned to Dr. McGinnis on 13 June
2000, at which time Dr. McGinnis found no muscle atrophy,
indicating plaintiff was using her hands normally. Dr. McGinnis
released plaintiff to return to work, without restrictions.
The Commission further found that plaintiff returned to Dr.
McGinnis on 23 March 2001, this time complaining of pain, numbness,
and tingling in both her right and left hands and arms. Dr.
McGinnis diagnosed bilateral carpal tunnel syndrome and thereafter
performed a right carpal tunnel release on 29 March 2001, followed
by a left carpal tunnel release on 26 April 2001. Post-surgery,
plaintiff's right-hand symptoms almost completely resolved, but
plaintiff continued to experience pain in her left hand, and nerve
conduction tests on her left hand yielded abnormal results.
Nevertheless, on 27 July 2001 Dr. McGinnis released plaintiff
without restrictions. Plaintiff returned to work with defendant
McCreary Modern on 6 August 2001, after her job was specifically
modified to eliminate any lifting over 10 pounds.
The Commission further found that Dr. McGinnis continued to
treat plaintiff through 31 January 2002 for complaints of right arm
pain and pain in the fingers of her left hand. After reviewing the
videotape of plaintiff performing her job duties, Dr. McGinnis
opined that plaintiff's job was not highly repetitive; that it
placed plaintiff at a mild risk for developing carpal tunnelsyndrome compared with the general public; and that it may have
contributed to or exacerbated the development of plaintiff's carpal
tunnel syndrome.
The Commission further found that on 13 December 2001
plaintiff sought treatment from a second physician, Dr. DeFranzo,
for complaints of pain and numbness in her left arm and hand, for
which plaintiff received a cortisone injection. Plaintiff returned
to Dr. DeFranzo on 24 January 2002 and reported no significant
improvement in her left-hand symptoms. Dr. DeFranzo recommended
that plaintiff undergo another nerve conduction study and
ultrasound on her left hand, but defendants did not authorize this
additional testing. Dr. DeFranzo found plaintiff's right hand to
be at maximum medical improvement and assigned an 11% permanent
partial impairment rating for her right hand, as well as a 10%
permanent partial impairment rating to her right upper extremity,
under the American Medical Association (AMA) guidelines. Dr.
DeFranzo found plaintiff's left hand not to be at maximum medical
improvement but nevertheless assigned a 17% permanent partial
impairment rating to her left hand, as well as a 15% permanent
partial impairment rating to her left upper extremity.
The Commission further found that Dr. DeFranzo assigned
plaintiff permanent work restrictions of light duty, non-repetitive
work with a 20-pound lifting restriction when lifting with both
hands. By letter dated 28 January 2002, defendant McCreary Modern
informed plaintiff it could accommodate these restrictions.
However, by a subsequent letter dated 12 February 2002, defendant
McCreary Modern informed plaintiff it had received additionalinformation from Dr. DeFranzo which caused it to conclude that
plaintiff's work restrictions could not be accommodated. Dr.
DeFranzo did not believe that plaintiff could return to her
position as an attach skirt sewer, and plaintiff did not work for
defendant McCreary Modern in any capacity after 25 January 2002.
The Commission further found that after reviewing the
videotape of plaintiff performing her job duties, Dr. DeFranzo
opined that plaintiff's job was highly repetitive, that it exposed
her to a higher risk of developing carpal tunnel syndrome than the
general public, and that it could have caused her bilateral carpal
tunnel syndrome. At his deposition, Dr. DeFranzo testified that he
determined from viewing the videotape that plaintiff's job required
more than 2,000 hand motions per hour, and that several of these
motions were indicated in the development of carpal tunnel
syndrome. Dr. DeFranzo testified that in making this
determination, he did not actually count the number of hand motions
plaintiff made in one full hour.
The Commission determined that the greater weight of the
credible record evidence supports a finding that plaintiff's
employment was a significant contributing factor in the development
of her carpal tunnel syndrome, which the Commission concluded was
a compensable occupational disease. The Commission further
determined that “[a]s the result of plaintiff's repetitive use of
her hands in her work with defendant [McCreary Modern], plaintiff
contracted carpal tunnel syndrome[,]” and that as a result of
plaintiff's bilateral carpal tunnel syndrome, she was “disabled and
was unable to earn wages in her regular employment or anyemployment for the periods March 23, 2001 through July 27, 2001 and
January 25, 2002 and continuing.” Accordingly, on 15 May 2003, the
Commission entered its opinion and award reversing the deputy
commissioner and awarding plaintiff temporary total disability and
medical benefits. From the opinion and award of the Commission,
defendants appeal.
By their sole assignment of error, defendants contend that
there is insufficient competent record evidence to support the
Commission's findings and conclusion that plaintiff's employment
was a significant contributing factor to the development of her
bilateral carpal tunnel syndrome. After a careful review of the
record, particularly the deposition transcripts of plaintiff's two
treating physicians, Dr. McGinnis and Dr. DeFranzo, we disagree
with defendants' assertion.
It is well settled that this Court's review of an opinion and
award of the Industrial Commission is limited to two questions:
“(1) whether there is any competent evidence of record to support
the Commission's findings of fact; and (2) whether the Commission's
findings of fact support its conclusions of law.” Hardin v. Motor
Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc.
review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). “The findings
of the Commission are conclusive on appeal when such competent
evidence exists, even if there is plenary evidence for contrary
findings.” Id.
Section 97-57 of our General Statutes provides that a
defendant employer is liable to an employee for onset of an
occupational disease if the employee demonstrates that he (1)suffers from a compensable occupational disease, and (2) was last
injuriously exposed to the hazards of the disease while employed by
the defendant employer. N.C. Gen. Stat. § 97-57 (2003); see also
Hardin, 136 N.C. App. at 354, 524 S.E.2d at 371. While carpal
tunnel syndrome is not among the compensable occupational diseases
listed in N.C. Gen. Stat. § 97-53, under N.C. Gen. Stat. § 97-
53(13), a disease or condition not specifically enumerated in the
statute may nonetheless qualify as a compensable occupational
disease if the plaintiff shows that:
(1) [the disease is] characteristic of persons
engaged in the particular trade or occupation
in which the claimant is engaged; (2) [the
disease is] not an ordinary disease of life to
which the public generally is equally exposed
with those engaged in that particular trade or
occupation; and (3) there [is] 'a causal
connection between the disease and the
[claimant's] employment.'
Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365
(1983) (quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283
S.E.2d 101, 106 (1981)); N.C. Gen. Stat. § 97-53(13) (2003). The
burden of proving each element of compensability is upon the
employee seeking workers' compensation benefits. Moore v. J.P.
Stevens & Co., 47 N.C. App. 744, 750, 269 S.E.2d 159, 163, disc.
review denied, 301 N.C. 401, 274 S.E.2d 226 (1980).
This Court has previously stated that “[t]he first two
elements of the Rutledge test are satisfied where the claimant can
show that 'the employment exposed the worker to a greater risk of
contracting the disease than the public generally.'” Robbins v.
Wake Cty. Bd. of Educ., 151 N.C. App. 518, 521, 566 S.E.2d 139, 142
(2002) (quoting Rutledge, 308 N.C. at 94, 301 S.E.2d at 369-70). In the present case, the Commission made the following pertinent
findings regarding plaintiff's employment and her risk, relative to
that of the general public, of developing carpal tunnel syndrome:
14. Dr. McGinnis felt that plaintiff's job
placed her at a mild increased risk compared
to the general public and that her position
may have contributed to or exacerbated the
development of carpal tunnel syndrome.
. . .
20. Dr. DeFranzo testified plaintiff was
“without question” exposed to a greater risk
of developing carpal tunnel syndrome through
her employment than members of the general
public.
Our examination of the record reveals that findings of fact
numbers 14 and 20 are supported by competent record evidence,
specifically the deposition testimony of plaintiff's two treating
physicians. Dr. McGinnis testified at his deposition that “[i]n my
estimation, this particular job may place [plaintiff] at a mildly
increased risk [of developing carpal tunnel syndrome] compared to
the general population.” Moreover, Dr. DeFranzo testified at his
deposition that in his opinion, plaintiff's job “without question”
exposed her to a higher risk of developing carpal tunnel syndrome
than the general public. Since findings of fact numbers 14 and 20
are supported by competent record evidence, they are conclusive on
appeal. Hardin, 136 N.C. App. at 353, 524 S.E.2d at 371. Because
we conclude that these findings in turn support the Commission's
conclusion that “[p]laintiff's bilateral carpal tunnel syndrome is
not an ordinary disease of life to which the general public . . .
not so employed is equally exposed[,]” plaintiff has carried herburden of proving the first two elements of the Rutledge test.
Robbins, 151 N.C. App. at 521, 566 S.E.2d at 142.
Defendants therefore correctly assert in their brief that
“this case hinges primarily on the issue of whether there is
competent evidence to support the findings and conclusions that
Plaintiff's job as a sewer caused her bilateral carpal tunnel
syndrome[,]” i.e., the third element of the Rutledge test.
An employee seeking workers' compensation benefits can
establish the third element of the Rutledge test by showing that
the job was a significant causal factor in, or significantly
contributed to, the development of the occupational disease.
Locklear v. Stedman Corp., 131 N.C. App. 389, 393, 508 S.E.2d 795,
798 (1998). In the context of determining the relationship between
workplace exposure and development of an occupational disease, our
Supreme Court has stated as follows:
Significant means “having or likely to have
influence or effect: deserving to be
considered: important, weighty, notable.” . .
. Significant is to be contrasted with
negligible, unimportant, present but not
worthy of note, miniscule, or of little
moment. The factual inquiry, in other words,
should be whether the occupational exposure
was such a significant factor in the disease's
development that without it the disease would
not have developed to such an extent that it
caused the physical disability which resulted
in claimant's incapacity for work.
Rutledge, 308 N.C. at 101-02, 301 S.E.2d at 370. “Although it is
not necessary for doctors to use the exact wording of
'significantly contribut[ing],' there must be some indication of
the degree of contribution such as 'more likely than not' to meetthe Rutledge test.” Hardin, 136 N.C. App. at 355, 524 S.E.2d at
372.
Here, the Commission made the following finding of fact
regarding the degree to which plaintiff's employment contributed to
plaintiff's development of bilateral carpal tunnel syndrome:
26. The Full Commission finds the greater
weight of competent credible evidence in the
record supports a finding that plaintiff's
employment was a significant contributing
factor the development of plaintiff's carpal
tunnel syndrome.
Once again, our examination of the record reveals that finding
of fact number 26 is supported by competent evidence, specifically
the deposition testimony of Dr. DeFranzo. At his deposition, Dr.
DeFranzo testified as follows:
Q. Dr. Defranzo, I'm going to be asking you
some opinion questions. And, in forming
your opinions, I understand that you had
a chance to review, at some point, all
[plaintiff's] medical records, the job
description and videotape?
A. . . . I have reviewed the pertinent
records in regard to this problem. And,
yes, I reviewed a videotape of her job.
And I have kind of a written summary what
was in the tape . . .
. . .
Q. . . . To a reasonable degree of medical
certainty, did [plaintiff's] job -- could
it or might it have caused her bilateral
carpal tunnel syndrome?
A. Yes.
. . .
Q. You -- did she work -- you mentioned a
high incidence of carpal tunnel syndrome
being repetitive workplaces [sic]. In
your opinion, was [plaintiff] working in
a repetitive work environment?
A. Yes.
MS. NEEL: Objection.
A. There's no question about that.
Q. And why --
A. By any criterion, this patient had more
than 2,000 separate motions an hour. And
all the motions that are the worst
motions for causing carpal tunnel
syndrome were clearly demonstrated
repetitively on that videotape.
Dr. DeFranzo clearly answered in the affirmative when
questioned by plaintiff's counsel as to whether plaintiff's job
“could” or “might” have caused plaintiff's bilateral carpal tunnel
syndrome. Our Supreme Court has stated that “could” or “might”
expert testimony is probative and competent evidence to prove
causation, where there is no additional evidence showing the
expert's opinion to be a guess or mere speculation. Holley v.
ACTS, Inc., 357 N.C. 228, 233, 581 S.E.2d 750, 753 (2003); Young v.
Hickory Bus. Furniture, 353 N.C. 227, 233, 538 S.E.2d 912, 916
(2000).
We are not persuaded by defendants' characterization of Dr.
DeFranzo's opinion testimony as being based on mere guesswork or
speculation. When asked whether plaintiff's employment “could” or
“might” have caused her bilateral carpal tunnel syndrome, Dr.
DeFranzo unequivocally responded “Yes.” Moreover, after reviewing
plaintiff's job duties, Dr. DeFranzo definitively characterized her
job as involving repetitive hand motions, including several of the
motions most closely associated with the development of carpal
tunnel syndrome, and testified that plaintiff's employment “without
question” exposed her to a greater risk of developing the diseasethan members of the general public not so employed. Finally, Dr.
DeFranzo considered other potential causes of carpal tunnel
syndrome and discounted them as possibilities in the present case.
Cf. Young, 353 N.C. at 231-32, 538 S.E.2d at 915-16 (evidence
insufficient to support Commission's findings and conclusions that
employee's work-related back injury significantly contributed to
her fibromyalgia where treating physician testified that he was
frequently unable to ascribe a cause for fibromylagia in his
patients, that he was aware from employee's medical history of at
least three potential causes for her fibromyalgia other than her
work-related injury, and that tests to rule out these other
potential causes had not been conducted); Holley, 357 N.C. at 233,
581 S.E.2d at 753-54 (same, where employee's first treating
physician testified that he could not say to a reasonable degree of
medical certainty that employee's work-related accident led to her
development of deep vein thrombosis and that “a galaxy of
possibilities” could have led to her DVT, and employee's second
treating physician testified that she “was unable to say with any
degree of certainty” whether employee's work-related injury led to
her development of DVT).
We therefore conclude that the Commission's findings and
conclusions that plaintiff's bilateral carpal tunnel syndrome was
caused by the conditions of her employment were supported by
competent evidence.
Affirmed.
Judges MCGEE and McCULLOUGH concur.
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