An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
ure.
NO. COA03-837
NORTH CAROLINA COURT OF APPEALS
Filed: 1 June 2004
ANGELA FURR,
Employee, Plaintiff,
v
.
North Carolina Industrial
Commission
ANVIL KNITWEAR, INC., I.C. No. 923954
Employer,
AIG CLAIMS SERVICES,
Carrier, Defendants.
Appeal by defendants from opinion and award filed 25 February
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 19 April 2004.
Bogle, Anthony & Leach, by William A. Anthony, III, for
plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by J. Shannon Harris, for
defendant-appellants.
THORNBURG, Judge.
Anvil Knitwear Inc. (employer) and AIG Claims Services
(carrier)(collectively defendants) appeal from an opinion and
award filed 25 February 2003 by the North Carolina Industrial
Commission (the full Commission) in favor of Angela Furr
(plaintiff).
The evidence before the full Commission included the
following: Plaintiff started working for employer in September
1997. On 26 March 1999, plaintiff was working in the finishing
department of employer's facility as a compact operator. This jobrequired plaintiff to lift rolls of cloth. Normally plaintiff
lifted dry cloth, but on that date she lifted some wet cloth.
Right after lifting the wet cloth, plaintiff went on break. She
felt pain and stiffness in her back. Plaintiff attempted to work
again after her break but still felt pain in her back. Plaintiff
reported this pain to her supervisor.
Plaintiff was treated for a back strain at a hospital
emergency room and by her doctor, Dr. Hogan. Plaintiff was
referred to Dr. Oweida, who diagnosed plaintiff with thoracic
outlet syndrome and performed surgery. Plaintiff also sought
treatment from Dr. Evangelist. Dr. Evangelist diagnosed plaintiff
with thoracic outlet syndrome and indicated that he believed with
reasonable medical certainty that the lifting of the wet cloth
caused or exacerbated plaintiff's condition. As of 26 September
2001, Dr. Evangelist was still treating plaintiff for back and
shoulder pain stemming from the 26 March 1999 incident.
Following a hearing on 18 July 2001, a deputy commissioner of
the Industrial Commission issued an opinion and award finding
plaintiff sustained a compensable injury on 26 March 1999 and
awarding plaintiff temporary disability compensation. On 25
February 2003, the full Commission filed an opinion and award
affirming the deputy commissioner. Defendants appeal.
The standard of review for this Court in reviewing an appeal
from the full Commission is limited to determining whether any
competent evidence supports the Commission's findings of fact and
whether the findings of fact support the Commission's conclusionsof law. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000). Our review '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)(citation omitted). Further, all evidence
must be taken in the light most favorable to the plaintiff, and the
plaintiff is entitled to the benefit of every reasonable inference
to be drawn from the evidence. Id.
I
Defendants present three arguments on appeal. Defendants
argue first that the full Commission's findings of fact are not
supported by competent evidence of record. We disagree. The full
Commission made the following pertinent findings of fact:
3. Plaintiff testified that on March 26,
1999, while she was operating the compactor,
[t]here was some trim that was still wet, so
I had to lift it from the table into a dryer
box . . . . Plaintiff testified that she did
not often work with wet cloth. The cloth was
wet due to a problem in the manufacturing
process, possibly resulting from there being a
. . . crease in the material when it goes in
the dryer, or if [it goes] through the dryer
too fast . . . . The wet cloth weighed more
than the dry cloth that plaintiff normally
lifted. Lifting wet cloth was not part of
plaintiff's usual work routine.
4. Plaintiff further testified that
right after she had lifted the wet cloth, I
went on break. My back was stiff and it was
hurting.
5. Plaintiff continued to work. Later
the same day, plaintiff reported to her
supervisor that she was experiencing back
pain. She finished her work day and went
home.
6. The next day, plaintiff was
experiencing pain. She reported to work, but
was in significant pain after several hours.
Plaintiff reported the pain to her supervisor
and requested that she be allowed to go to the
emergency room. Anvil Knitwear, Inc. filed a
Form 19 that states employee alleges as she
was running her compactor/during day back
began to ache. The Form 19 shows a date of
injury of March 26, 1999 and states that the
location of the injury was strain upper back
area (thoracic area).
. . . .
11. Upon referral by Dr. Oweida,
plaintiff also began treating with Dr. Felix
Evangelist, a specialist in thoracic surgery,
on May 27, 1999. In his thirty years of
medical practice in North Carolina, Dr.
Evangelist has treated numerous patients for
thoracic outlet syndrome. Dr. Evangelist
concurred with Dr. Oweida's diagnosis of
thoracic outlet syndrome, and stated in his
deposition that the syndrome is attributed to
a constriction of muscles located around the
thoracic outlet, which spasm and squeeze the
arteries and nerves running out to the arm,
producing pain, numbness, tingling, and
headaches. According to Dr. Evangelist,
thoracic outlet syndrome is often precipitated
by a minor injury, often to the back, chest,
or shoulder. Following her surgery on
February 4, 2000, plaintiff has continued to
treat with Dr. Evangelist for pain symptoms
associated with thoracic outlet syndrome.
12. Dr. Evangelist opined, and the Full
Commission finds as fact, to a reasonable
degree of medical certainty, that the work-
related incident on March 26, 1999, caused
thoracic outlet syndrome in the plaintiff.
13. Dr. Michael Andrew Cowan, a general
neurosurgeon, examined plaintiff for an IME on
August 29, 2001. Dr. Cowan opined that
plaintiff's history and examination were most
consistent with a back and shoulder strain.
Although Dr. Cowan admittedly does not
specialize in the treatment of thoracic outlet
syndrome, the Full Commission finds his
opinion regarding plaintiff's back strain tobe credible and consistent with the opinions
of Drs. Oweida and Evangelist.
14. Plaintiff sustained an injury to her
back as a consequence of a specific traumatic
incident arising out of and in the course of
her employment on March 26, 1999.
15. The greater weight of the competent
medical evidence of record establishes that
plaintiff suffers from thoracic outlet
syndrome caused or aggravated by the specific
traumatic incident at work on March 26, 1999.
16. Plaintiff was temporarily totally
disabled from April 6, 1999, to December 1,
1999, when she returned to light duty work as
a receptionist. In addition, plaintiff was
temporarily totally disabled due to her
surgery from February 4, 2000, to March 14,
2000, when she again returned to light duty
work as a receptionist. Plaintiff earns less
money in the light duty job because she does
not work overtime as she had before her
injury.
We have carefully reviewed the record and conclude that each
of these findings is supported by competent evidence. The findings
are supported by plaintiff's testimony, the medical records
included in the record on appeal, and the depositions of Dr.
Evangelist and Dr. Cowan. The record contains evidence of
plaintiff's treatment at the emergency room for back strain, as
well as North Carolina Industrial Commission forms indicating that
plaintiff strained her back while at work on 26 March 1999. In
addition, both the medical records and depositions indicate that
plaintiff injured her back while lifting wet cloth, and that she
was diagnosed with back and shoulder strains and thoracic outlet
syndrome. Thus, there is competent evidence to support the above
findings of fact. Defendants also assert that because the thoracic outlet is in
the area of the shoulder rather than the back, the full Commission
erred by finding that plaintiff suffered a compensable injury to
her back. This Court addressed a similar situation in Ruffin v.
Compass Group USA, 150 N.C. App. 480, 563 S.E.2d 633 (2002), and
held that the manifestation of symptoms in plaintiff's neck and
shoulder resulting from a back injury did not defeat plaintiff's
claim of a compensable back injury. Id. at 485, 563 S.E.2d at 637.
Further, an injury is compensable as long as 'it is fairly
traceable to the employment' or 'any reasonable relationship to the
employment exists.' Rivera v. Trapp, 135 N.C. App. 296, 301, 519
S.E.2d 777, 780 (1999) (citations omitted).
What the evidence tends to show is that plaintiff strained her
back lifting wet cloth at work. This back injury provoked thoracic
outlet syndrome with symptoms of back, chest, shoulder, and arm
pain. Plaintiff reported the back pain to her supervisor and to
several physicians. Dr. Cowan indicated that plaintiff had
suffered a back or shoulder strain. Dr. Hogan treated plaintiff
for a back strain. Both Dr. Oweida and Dr. Evangelist diagnosed
plaintiff with thoracic outlet syndrome as a result of plaintiff's
history of straining her back at work, plaintiff's physical
examination, and other test results. Dr. Evangelist explained in
his deposition that thoracic outlet syndrome is commonly triggered
by injuries to the back. As the record contains competent evidence
to support the above findings of fact, this assignment of error is
overruled.
II
Defendants' second argument asserts that the full Commission's
conclusions of law are not supported by competent findings of fact
or the applicable law. On appeal, defendants specifically attack
the Commission's conclusion of law that [p]laintiff sustained an
injury as a result of a specific traumatic accident arising out of
and in the course of her employment on March 26, 1999." In this
argument defendants again assert that no evidence supports the
conclusion that plaintiff sustained a back injury. As with
defendants' first argument, this argument fails due to the plethora
of competent evidence indicating plaintiff strained her back
lifting wet cloth, thus causing the symptoms associated with
thoracic outlet syndrome. Accordingly, this assignment of error is
overruled.
III
Defendants' final argument asserts that the full Commission
erred in finding a causal relationship between the lifting incident
alleged by plaintiff and plaintiff's thoracic outlet syndrome. In
a workers' compensation case, the plaintiff has the burden of
proving causation.
Whitfield v. Lab. Corp. of Am., 158 N.C. App.
341, 350, 581 S.E.2d 778, 784 (2003). Where the nature of the
injury alleged involves complicated medical questions, only an
expert can give competent evidence as to causation.
Click v. Pilot
Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980).
In the present case, the full Commission made the following
findings of fact in reference to causation: 11. Upon referral by Dr. Oweida,
plaintiff also began treating with Dr. Felix
Evangelist, a specialist in thoracic surgery,
on May 27, 1999. In his thirty years of
medical practice in North Carolina, Dr.
Evangelist has treated numerous patients for
thoracic outlet syndrome. Dr. Evangelist
concurred with Dr. Oweida's diagnosis of
thoracic outlet syndrome, and stated in his
deposition that the syndrome is attributed to
a constriction of muscles located around the
thoracic outlet, which spasm and squeeze the
arteries and nerves running out to the arm,
producing pain, numbness, tingling, and
headaches. According to Dr. Evangelist,
thoracic outlet syndrome is often precipitated
by a minor injury, often to the back, chest,
or shoulder. Following her surgery on
February 4, 2000, plaintiff has continued to
treat with Dr. Evangelist for pain symptoms
associated with thoracic outlet syndrome.
12. Dr. Evangelist opined, and the Full
Commission finds as fact, to a reasonable
degree of medical certainty, that the work-
related incident on March 26, 1999, caused
thoracic outlet syndrome in the plaintiff.
13. Dr. Michael Andrew Cowan, a general
neurosurgeon, examined plaintiff for an IME on
August 29, 2001. Dr. Cowan opined that
plaintiff's history and examination were most
consistent with a back and shoulder strain.
Although Dr. Cowan admittedly does not
specialize in the treatment of thoracic outlet
syndrome, the Full Commission finds his
opinion regarding plaintiff's back strain to
be credible and consistent with the opinions
of Drs. Oweida and Evangelist.
14. Plaintiff sustained an injury to her
back as a consequence of a specific traumatic
incident arising out of and in the course of
her employment on March 26, 1999.
15. The greater weight of the competent
medical evidence of record establishes that
plaintiff suffers from thoracic outlet
syndrome caused or aggravated by the specific
traumatic incident at work on March 26, 1999.
Based on these findings of fact, the full Commission concluded
as a matter of law as follows:
1. Plaintiff sustained an injury as a
result of a specific traumatic incident
arising out of and in the course of her
employment on March 26, 1999. N.C. Gen. Stat.
. 97-2(6). The greater weight of the evidence
of record establishes that such incident
caused injury to plaintiff's back. . . .
2. The greater weight of the evidence of
record establishes a causal relationship
between plaintiff's injury to her back on
March 26, 1999, as a result of a specific
traumatic incident, and her condition of
thoracic outlet syndrome. Back injuries
frequently manifest pain in other areas of the
body. N.C. Gen. Stat. . 97-2(6).
We have carefully reviewed the record, depositions, and transcript
and determine that competent evidence supports the findings of
fact, which in turn support the conclusions of law.
Dr. Evangelist, in his deposition, indicated that plaintiff
suffers from thoracic outlet syndrome. He further indicated that
he believed with reasonable medical certainty that plaintiff's
thoracic outlet syndrome was caused by her lifting of the wet cloth
on 26 March 1999. Defendants assert that this testimony is not
competent evidence in that Dr. Evangelist improperly based his
causation opinion on
post hoc, ergo propter hoc or after this,
therefore because of this reasoning.
See Young v. Hickory Bus.
Furniture, 353 N.C. 227, 232, 538 S.E.2d 912, 916 (2000).
In
Young our Supreme Court emphasized that in order to be
competent testimony on medical causation, an expert's testimony
must be based on more than mere speculation and conjecture.
Id. at
230, 538 S.E.2d at 915. The Court held that where the thresholdquestion is the cause of a controversial medical condition, the
maxim of '
post hoc, ergo propter hoc,'
is not competent evidence of
causation.
Id. at 232, 538 S.E.2d at 916. In
Young the plaintiff
was diagnosed with fibromyalgia. Evidence was presented that
fibromyalgia occurs for unknown reasons and cannot be objectively
studied. The diagnosing physician admitted he had not tested
plaintiff for other possible causes of fibromyalgia, which were
specific to that plaintiff's history. The record in that case
supported at least three potential causes of fibromyalgia in Ms.
Young other than her injury in 1992.
Id.
The evidence presented on the causation issue in the instant
case primarily centers on the deposition and records of Dr.
Evangelist. In his deposition Dr. Evangelist testified that
plaintiff had told him about lifting the wet cloth at work on 26
March 1999. Dr. Evangelist also related that plaintiff told him
that after lifting the wet cloth she felt a strain in her back with
radiating pain.
After taking plaintiff's history and performing
several tests, Dr. Evangelist diagnosed plaintiff as likely
suffering from thoracic outlet syndrome. This diagnosis is also
reflected in the records of plaintiff's visits to Dr. Evangelist's
office. At the deposition, plaintiff's attorney asked Dr.
Evangelist the following: And how about causation? Do you
believe, to a reasonable degree of medical certainty in your field,
that this incident at work on 3/26/99 caused her thoracic outlet
syndrome? Dr. Evangelist responded, [w]ell, I don't believe. I'm certain she -_ she had nothing wrong before that and that she's
been a disaster ever since.
Although Dr. Evangelist referred to the temporal relationship
between plaintiff's lifting incident and the appearance of her
symptoms, this statement does not stand alone in his testimony.
Dr. Evangelist indicated that he based his diagnosis on years of
experience treating hundreds of patients with thoracic outlet
syndrome, results of diagnostic tests and procedures, and his
evaluation of plaintiff's history. His thorough study of
plaintiff's history did not uncover any other probable causes of
her thoracic outlet syndrome. Further, Dr. Evangelist saw
plaintiff and diagnosed her with thoracic outlet syndrome only
several months after her initial injury.
In sum, Dr. Evangelist unequivocally demonstrated his ability
to express an opinion to a reasonable degree of medical certainty
as to what caused plaintiff's thoracic outlet syndrome. Norton v.
Waste Management Inc., 146 N.C. App. 409, 416, 552 S.E.2d 702, 707
(2001). Thus, we find that this evidence satisfies our Supreme
Court's holding in Young, that an expert's evidence on causation be
based on more than mere speculation and conjecture. Therefore, the
full Commissions's findings of fact and conclusions of law on
causation are supported by competent evidence. This assignment of
error is overruled.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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