Appeal by defendants from an opinion and award filed 13 June
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 29 April 2004.
Scudder & Hedrick, by John A. Hedrick, for plaintiff.
Lewis & Roberts, P.L.L.C., by John D. Elvers and Jeffrey A.
Misenheimer, for defendants.
LEVINSON, Judge.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission finding that plaintiff (George C.
Butler) suffered an employment-related injury by accident and
awarding him compensation and medical benefits. We affirm.
Upon being fired by his employer (“Dupont”) on 6 October 1997,
plaintiff reported for the first time that he suffered a back
injury three days earlier when he slipped while walking down a
staircase at his job. After this incident, plaintiff was treatedby numerous medical providers, including Dr. James Fulghum, Dr.
Keith Kittleberger, Dr. Winston Lane, and Dr. Ira Hardy. Dr.
Fulghum prescribed epidural steroid injections and performed back
surgery on plaintiff; Dr. Kittleberger installed and adjusted a
spinal cord stimulator for plaintiff; and Dr. Winston Lane treated
plaintiff for an adjustment disorder and depression.
Drs. Fulghum, Kittleberger, and Lane provided evidence tending
to show that the treatment they provided was causally related to
the injury plaintiff sustained at work on 3 October 1997. Dr.
Hardy testified for defendants and opined that plaintiff's back
problems were not caused by his accident at work on 3 October 1997
and that he did not consider plaintiff a candidate for surgery.
In an opinion and award entered 26 January 2001, the Full
Commission, with one commissioner dissenting, concluded that
plaintiff was entitled to compensation for temporary total
disability and medical compensation, including psychological
treatment, related to his back injury. The Commission's 26 January
2001 opinion and award did not address the evidence offered by Dr.
Hardy and stated that there was “no competent medical evidence
produced by defendants . . . to refute the opinions of [plaintiff's
doctors] concerning the necessity of the medical treatment rendered
to plaintiff since the time of his injury, or the causal
relationship between plaintiff's injury by accident and his
disability.” Following an appeal by defendants, this Court filed
an unpublished opinion, Butler v. E.I. Dupont de Nemours & Co.,
COA01-550, slip op. at 6 (filed 19 March 2002), vacating theCommission's 26 January 2001 opinion and award and remanding with
instructions that the Commission consider the deposition testimony
of Dr. Ira Hardy relating to plaintiff's medical condition and the
cause of his back injury.
On remand, the Full Commission filed an opinion and award,
dated 13 June 2003, which expressly indicated that the Commission
had considered the testimony of Dr. Hardy and again ruled that
plaintiff was entitled to temporary total disability and medical
compensation, including psychological treatment. From the
Commission's 13 June 2003 opinion and award, defendants now appeal,
contending (1) the Commission failed to consider the opinion of Dr.
Ira Hardy on remand as instructed by this Court, and (2) the
Commission erred by concluding that plaintiff sustained a
compensable injury which resulted in disability and the need for
medical treatment.
Our review of the Commission's opinion and award “is limited
to a determination of (1) whether the Commission's findings of fact
are supported by competent evidence in the record; and (2) whether
the Commission's findings justify the conclusions of law.” Goff v.
Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d
602, 604 (2000). “The facts found by the Commission are conclusive
upon appeal to this Court when they are supported by competent
evidence, even when there is evidence to support contrary
findings.” Pittman v. International Paper Co., 132 N.C. App. 151,
156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C. 310, 534
S.E.2d 596, aff'd, 351 N.C. 42, 519 S.E.2d 524-25 (1999) (citationomitted). “[T]his Court is not at liberty to reweigh the evidence
and to set aside the findings . . . simply because other . . .
conclusions might have been reached.” Baker v. Sanford, 120 N.C.
App. 783, 787, 463 S.E.2d 559, 562 (1995) (citation and internal
quotation marks omitted). “[T]he full Commission is the sole judge
of the weight and credibility of the evidence. . . .” Deese v.
Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)
(citation omitted). “[T]he Commission does not have to explain its
findings of fact by attempting to distinguish which evidence or
witnesses it finds credible.” Id. However, this Court reviews the
Commission's conclusions of law de novo. Griggs v. E. Omni
Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).
We first address defendants' argument that the Commission
failed to consider the evidence offered by Dr. Ira Hardy. This
contention lacks merit.
The Commission must consider all of the competent evidence in
the record and make definitive findings of fact before rendering
its decision. Harrell v. J.P. Stevens & Co., Inc., 45 N.C. App.
197, 205, 262 S.E.2d 830, 835 (1980). The Commission is required
to indicate in its findings that it has considered all testimony
bearing on the critical issues in a case, but it is not required to
make exhaustive findings as to each statement made by the witnesses
or make findings rejecting specific evidence. Bryant v.
Weyerhaeuser Co., 130 N.C. App. 135, 139, 502 S.E.2d 58, 62 (1998).
This Court has found that the Commission need only make findingssufficient to permit this Court to reasonably infer that the
Commission considered all relevant testimony. Pittman, 132 N.C.
App. at 156, 510 S.E.2d at 709. We have also held that, where the
Commission's findings explicitly referred to evidence offered by
specific witnesses, this Court could conclude that the Commission
had properly considered the evidence presented by those witnesses,
even though the Industrial Commission's opinion and award did not
recount and disclaim the evidence given by those parties. Smith v.
Beasley Enters., Inc., 148 N.C. App. 559, 562, 577 S.E.2d 902, 904
(2002).
In the instant case, the Commission made the following
pertinent findings of fact:
34. Following the remand from the Court of Appeals, the
Industrial Commission weighed, pondered,
considered, and evaluated the medical evidence and
testimony of Drs. Hardy, Koontz, Crisp, Harvell,
Fulghum, Kittleberger and Lane.
35. The Commission gives more weight to the testimony
and opinions of Drs. Kittleberger, Lane, and
Fulghum than it does to those of Dr. Hardy.
These findings of fact are sufficient to permit this Court to infer
that the Commission followed our instructions to consider the
testimony of Dr. Hardy. As such, the Commission fully complied
with this Court's instructions. Having done so, the Commission was
under no obligation to find Dr. Hardy's testimony credible or
persuasive. See Russell v. Lowes Product Distribution, 108 N.C.
App. 762, 765, 425 S.E.2d 454, 457 (1993) (“[The Commission] may
reject entirely the testimony of a witness if warranted bydisbelief of the witness.”) (citation omitted). This assignment of
error is overruled.
We next address defendants' argument that the Commission erred
by concluding that plaintiff sustained a compensable injury which
resulted in disability and the need for medical treatment. The
gravamen of this argument is that there was no competent record
evidence from which the Commission could find and conclude that (1)
plaintiff's accident at work caused plaintiff's back injury, (2)
plaintiff is entitled to temporary total disability compensation,
and (3) plaintiff's medical treatment was causally related to the
incident at work.
With respect to defendants' argument that the Commission erred
in finding that plaintiff's accident at work on 3 October 1997
caused his back injury, we conclude that this finding is supported
by competent record evidence, though there is also evidence to the
contrary.
For an injury to be compensable, it must be an “injury by
accident arising out of and in the course of employment[.]”
N.C.G.S. § 97-2(6) (2003).
With respect to back injuries . . . where
injury to the back arises out of and in the
course of the employment and is the direct
result of a specific traumatic incident of the
work assigned, “injury by accident” shall be
construed to include any disabling physical
injury to the back arising out of and causally
related to such incident.
Id. “The phrase 'arising out of' refers to the requirement that
there be some causal connection between the injury and claimant'semployment.”
Creel v. Town of Dover, 126 N.C. App. 547, 552, 486
S.E.2d 478, 481 (1997) (citation omitted).
“The quantum and quality of the evidence required to establish
prima facie the causal relationship will of course vary with the
complexity of the injury itself.”
Hodgin v. Hodgin, 159 N.C. App.
635, 639, 583 S.E.2d 362, 365,
disc. review denied, 357 N.C. 578,
589 S.E.2d 126 (2003) (citation omitted). “In cases involving
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.”
Holley
v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003)
(citation and internal quotation marks omitted). “However, 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.”
Id. (citation
and quotation marks omitted). “[T]he evidence must be such as to
take the case out of the realm of conjecture and remote
possibility, that is, there must be sufficient competent evidence
tending to show a proximate causal relation.”
Id. (citation and
internal quotation marks omitted). The opinion of a physician is
not rendered incompetent merely because it is based wholly or in
part on statements made to him by the patient in the course of
treatment or examination.
Penland v. Bird Coal Co., Inc., 246 N.C.
26, 31, 97 S.E.2d 432, 436 (1957).
In the instant case, there is conflicting evidence as to
whether the incident at work caused plaintiff's back injury. Dr.Hardy offered testimony from which it could be inferred that
plaintiff's accident at work on 3 October 1997 did not cause his
back injury, and that plaintiff did not require surgery for his
back. However, Dr. Fulghum presented evidence tending to link the
back injury for which he treated plaintiff to the accident at work
on 3 October 1997. Dr. Fulghum initially diagnosed plaintiff as
having a herniated disc at the L3-L4 level, and treated plaintiff's
back problems with epidural steroid injections. When this
conservative approach was not successful, Dr. Fulghum recommended
surgery. During surgery, Dr. Fulghum noted that the plaintiff had
a deeply impacted L4 nerve root that was enclosed by bone and a
disk bulge. Dr. Fulghum also noted that plaintiff had a congenital
defect which combined with foraminal closure and disk bulging and
spurring to produce “tremendous” L4 nerve root pressure in
plaintiff's case. In Dr. Fulghum's opinion, all of these problems
had to be addressed at the time of plaintiff's surgery. In
deposition testimony presented to the Commission, Dr. Fulghum
offered his opinion that the congenital problems with plaintiff's
back were part of an “environment that . . . produced narrowing”;
however, Dr. Fulghum continued to explain:
th[e] presence of [pre-existing] narrowing set up the
situation that when [plaintiff] turned and twisted . . .
the nerve began to get swollen. It became impacted. The
impaction never cleared and it continued to be under
pain. It could not be fixed without going through all
that narrowing to get the nerve decompressed. So that
was the causative factor, was the twisting [from the slip
at work]. . . .
Plaintiff testified that he twisted his back when he slipped on the
stairs at Dupont on 3 October 1997, and Dr. Fulghum testified thatin his opinion, to a reasonable degree of medical certainty, the
problems plaintiff was experiencing with his back were consistent
with the type of fall that plaintiff claimed to have had.
Defendants essentially argue that the Commission should have
given more weight to the testimony of Dr. Hardy than to the
testimony of Dr. Fulghum. However, the relative weight of the
evidence is a question for the Commission. As the record contains
competent evidence causally linking plaintiff's back injury to his
slip on the stairs at work, we will not disturb the Commission's
finding of causation on appeal.
With respect to defendants' argument that the Commission erred
by finding that plaintiff has been unable to earn wages in his
former position with Dupont or in any other employment since 4
October 1997 and concluding that plaintiff is entitled to temporary
total disability compensation, we conclude that there is competent
record evidence to support the challenged finding of fact which in
turn supports the challenged conclusion of law.
“The term 'disability' means incapacity because of injury to
earn the wages which the employee was receiving at the time of
injury in the same or any other employment.” N.C.G.S. § 97-2(9)
(2003). To establish disability, a claimant must prove:
(1) [he] was incapable after his injury of
earning the same wages he had earned before
his injury in the same employment, (2) [he]
was incapable after his injury of earning the
same wages he had earned before his injury in
any other employment, and (3) [his] incapacity
to earn was caused by [his] injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982).
In the instant case, Dr. Fulghum provided evidence that
plaintiff's back injury was related to his accident at work. Dr.
Fulghum then testified that, as of the time plaintiff reached
maximum medical improvement, plaintiff “couldn't work in a job
requiring more than 35 pounds of lifting. . . .” In Dr. Fulghum's
opinion, to a reasonable degree of medical certainty, plaintiff
“was unable to work and remains unable to work.” This testimony
provided competent evidence from which the Commission could find
that plaintiff has been unable to earn wages as a result of the 3
October 1997 injury and conclude that plaintiff is entitled to
temporary total disability.
With respect to defendants' argument that the Commission erred
by awarding plaintiff medical compensation, including psychological
treatment, we conclude that the Commission's award of medical
compensation should be affirmed.
Defendants contend that the Commission's award of medical
compensation for the medical treatment provided by Drs. Fulghum and
Kittleberger, including,
inter alia, back surgery and implantation
and adjustment of a spinal cord stimulator in plaintiff's back, is
not supported by competent record evidence. We disagree.
“Medical compensation shall be provided by the employer.”
N.C.G.S. § 97-25 (2003). “The term 'medical compensation' means
medical, surgical, hospital, nursing, and rehabilitative services,
and medicines, sick travel, and other treatment, including medicaland surgical supplies, as may reasonably be required to effect a
cure or give relief and for such additional time as, in the
judgment of the Commission, will tend to lessen the period of
disability.” N.C.G.S. § 97-2(19) (2003). Logically implicit in
the authority accorded the Commission to order medical treatment
under G.S. § 97-25 is the requirement that the treatment be
directly related to the compensable injury.
See Pittman v. Thomas
& Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286 (1996).
In the instant case, Dr. Fulghum provided testimony tending to
link plaintiff's accident at work to his treatment of plaintiff.
Dr. Fulghum further testified that he first used epidural steroids
and subsequently performed surgery on plaintiff's back to treat
this injury, and that, when plaintiff continued to experience pain,
he referred plaintiff to Dr. Keith Kittleberger. Dr. Kittleberger
testified that an MRI of plaintiff's back showed that the back
surgery had produced nerve root scarring, which often causes “a
persistence of pain” that is “very difficult to treat.” Dr.
Kittleberger offered an opinion that, to a reasonable degree of
medical certainty, plaintiff was a “good candidate” for a spinal
cord stimulator, and that it was reasonable to insert a spinal cord
stimulator in plaintiffs' back and to subsequently make adjustments
to the stimulator. As such, the Commission's award of medical
compensation to plaintiff for the treatment provided by Drs.
Fulghum and Kittleberger is supported by competent evidence in the
record and must be affirmed. Defendants also assert that the Commission erred by awarding
plaintiff medical compensation for the medical treatment, in the
form of psychological treatment, provided to plaintiff primarily by
Dr. Lane. Defendants have abandoned this contention.
The Commission's Conclusion of Law No. 5 addresses whether
defendants are required to pay for plaintiff's psychological
treatment, and the Award's second paragraph directs defendants to
“pay for all medical expenses incurred by the plaintiff as the
result of his 3 October 1997 injury by accident, including expenses
related [to] his psychological treatment.” In Assignment of Error
Nos. 2 and 3, defendants assign error to Conclusion of Law No. 5
and Award ¶ 2 on the grounds that they are “erroneous and are not
supported by the record evidence in this case.”
Rule 28(b)(6) of the Rules of Appellate Procedure requires
that the appellant's brief include "[a]n argument, to contain the
contentions of the appellant with respect to each question
presented.” Most importantly, Rule 28(b)(6) specifies:
“Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned.”
Neither of defendants' two questions presented address whether
the Commission properly ordered payment for psychological
treatment. Moreover, in the argument section of the brief,
defendants have violated Rule 28(b)(6) by failing to specify the
pertinent assignments of error under each question presented.
Nowhere in the text of the argument section is there any mention ofAssignment of Error Nos. 2 and 3, Conclusion of Law No. 5, or Award
¶ 2.
In fact, in the argument section, there is only the briefest
mention of psychological treatment:
In spite of the fact of Dr. Fulghum's
admission that plaintiff-appellee's residual
impairment resulted from congenital and
degenerative conditions and his admission that
he was wrong in his diagnosis that there was a
disc rupture at L3-L4, the Full Commission
concluded as a matter of law that the
plaintiff-appellee “sustained a spinal defect
at the L3-L4 level which required surgical
intervention and treatment for chronic pain .
. . [which resulted in] psychological problems
including anxiety, depression and an
adjustment disorder.” Such a conclusion was
unsupported by the findings of fact and
therefore error.
Finally, the finding of fact that Dr. Lane
“continued to treat plaintiff through 1998 and
1999 for depression and adjustment disorder
related to his back pain, surgeries and other
matters associated therewith” assumes that
these conditions are related to a back injury
causally related to plaintiff-appellee's
employment with defendants-appellants.
(citation to record omitted). This text is, at best, simply a bare
recitation of the issue contained in the assignment of error
without presentation of any reason or argument as to why this Court
should reverse the Commission.
Given the lack of argument and the failure of defendants to
cite to any authority to support reversal, defendants have
abandoned their challenge to the Commission's award of medical
compensation for plaintiff's psychological treatment.
See Piedmont
Triad Airport Auth. v. Urbine, 354 N.C. 336, 343-44, 554 S.E.2d
331, 335 (2001) (deeming contentions abandoned where appellant madeno further argument other than to baldly assert its contentions and
cited no authority in support thereof),
cert. denied, 535 U.S. 971,
152 L. Ed. 2d 381 (2002). The assignments of error are overruled.
Affirmed.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).
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