Appellate review of an opinion and award of the North Carolina
Industrial Commission 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). “The full Commission is the sole judge of
the weight and credibility of the evidence.” Id. Thus, the
Commission's “findings of fact are conclusive on appeal if
supported by competent evidence even though there is evidence to
support a contrary finding.” Murray v. Associated Insurers, Inc.,
341 N.C. 712, 714, 462 S.E.2d 490, 491 (1995). The Commission's
conclusions of law, however, are reviewed de novo. Griggs v. E.Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141
(2003).
In the instant case, defendant assigned error to only three of
the Commission's findings of fact: numbers eight, ten, and
thirteen. “Because 'defendants failed to assign error to any of
the Commission's [other] findings of fact . . . these findings are
conclusively established on appeal.'” Robertson v. Hagood Homes,
Inc., 160 N.C. App. 137, 140, 584 S.E.2d 871, 873 (2003) (quoting
Johnson v. Herbie's Place, 157 N.C. App. 168, 180, 579 S.E.2d 110,
118 (2003)).
Preliminarily, we note that defendants did not challenge the
findings pertaining to plaintiff's late filing of a workers'
compensation claim. Accordingly, we do not address this issue.
Defendants argue that the Industrial Commission erred by
awarding plaintiff workers' compensation benefits, on the grounds
that there is no competent evidence that plaintiff's back injury
was causally resulted to a specific traumatic incident. We
disagree.
N.C.G.S. § 97-2(6) (2003) provides in pertinent part that:
“Injury and personal injury” shall mean only
injury by accident arising out of and in the
course of the employment[.] . . . With
respect to back injuries, however, 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.
(emphasis added). “By amending the act to say that an accident
includes an injury that is the 'result of a specific traumatic
incident' we believe the General Assembly intended to relax the
requirement that there be some unusual circumstance that
accompanied the injury.”
Bradley v. E. B. Sportswear, Inc., 77
N.C. App. 450, 452, 335 S.E.2d 52, 53 (1985). Thus, N.C.G.S. § 97-
2(6) “allows for coverage when a specific traumatic incident occurs
within the normal work routine.”
Fish v. Steelcase, Inc., 116 N.C.
App. 703, 709, 449 S.E.2d 233, 237 (1994).
In the instant case, the Industrial Commission made findings
of fact including the following:
2. Plaintiff, David Ogle, worked as a stonemason
for W&O Masonry for approximately 20 years.
His job duties included shaping and laying
stone[.] . . . He was regularly required to
lift from 10 to 200 pounds.
3. Plaintiff experienced chronic back pain since
beginning in stonework. He missed work
sporadically prior to 4 May 2000 because of
low back pain and often wore a back brace
while working to alleviate his pain.
4. Prior to 4 May 2000, plaintiff treated with
chiropractor, Dale Williams, for approximately
six months, three times per week, for relief
of low back pain and realignment of
plaintiff's neck. . . .
5. Around 4 May 2000, plaintiff and other
employees of W&O Masonry were . . . installing
a sidewalk, fieldstone on a foundation, step
treads and caps on a retaining wall in a rose
garden. These activities required him to lift
the usual 50 to 200 pounds with the assistance
of another employee. . . .
6. On Thursday, 4 May 2000, plaintiff was working
placing caps on a rose bed retaining wall.
The caps consisted of pieces of stone
approximately two inches thick and 12 incheswide, and were in different lengths from two
to four feet. Each stone weighed between 50
to 200 pounds. In addition to the retaining
wall, plaintiff worked placing paving stones
as step treads for a stairway in the garden.
The stones used here weighed between 150 and
200 pounds each, with smaller stones laid
around the treads. Plaintiff testified that
this particular work constituted the heaviest
stonework of the project.
7. After work on 4 May 2000, plaintiff went to .
. . Dale Williams, D.C. She adjusted his back
normally. He did not describe unusual pain or
any event occurring at work on 4 May 2000 to
Dr. Williams. That night, while in the
shower, he noticed his right leg was going
numb.
. . . .
9. Initially, plaintiff treated with the VA
hospital. . . . As plaintiff convalesced at
home, his pain increased[.] . . . Plaintiff
went to his family physician, Dr. James
Winslow, who referred him to neurosurgeon, Dr.
Bruce Kihlstrom.
. . . .
11. Plaintiff did not report his back problems as
a workers' compensation claim until 8 August
2000. Plaintiff paid for his surgery himself,
and did not report the claim as a workers'
compensation injury until he was referred to
his counsel by a vocational rehabilitation
worker at Innovation Rehabilitation in
Roxboro, North Carolina.
12. Following the 13 June 2000 surgery, Dr.
Kihlstrom released plaintiff from his care on
21 September 2000, with a 15% permanent
partial impairment rating. Plaintiff returned
to work for defendant-employer on 22 September
2000, at full duty.
. . . .
14. Defendants were noticed of plaintiff's injury
on 5 May 2000, one day after plaintiff began
exhibiting symptoms of the ruptured disc.
Defendants were not prejudiced by plaintiff'sdelay in filing a claim for workers'
compensation benefits relating to the 4 May
2000 injury.
Defendants did not assign error to any of these findings of fact,
which are thus conclusively established on appeal. Defendant
challenges only three findings of fact:
8. The next morning, plaintiff went to work as
usual. His right leg remained numb and felt
the same as it had the night before. He
worked briefly on the morning of 5 May 2000,
and then told his supervisor that he was going
to the hospital to find out what was wrong
with his leg. Plaintiff did not return to
work until 22 September 2000.
10. Dr. Kihlstrom ordered an MRI which was
performed on 23 May 2000 and revealed a
herniated disc at L4-5 which was compressing
the right L4 nerve. Dr. Kihlstrom diagnosed
plaintiff with a ruptured disc at L4-5 and
performed a laminectomy and diskectomy on 13
June 2000. Dr. Kihlstrom wrote plaintiff out
of work as of the date of his back surgery.
Dr. Kihlstrom recorded in his initial
examination of plaintiff that he reported low
back pain, hip pain and leg numbness without
antecedent event, by which he meant that
plaintiff did not recall an incident that
resulted in the disc rupture. However, Dr.
Kihlstrom opined that the detailed list of
events which occurred on May 4 and May 5 was
consistent with plaintiff's injury. He
further stated that it was reasonable that
when the disc actually ruptured, plaintiff did
not experience immediate problems, but rather
developed progressive problems as the nerve
began to swell.
13. On 4 May 2000, plaintiff experienced the onset
of back pain resulting from a specific
traumatic incident of the work assigned which
occurred at a cognizable time. As a result of
the specific traumatic incident, plaintiff
suffered a ruptured disc at L4-5 which
required surgery and which left plaintiff with
a 15% permanent partial disability rating to
his back.
Defendants first challenge the medical evidence supporting
plaintiff's claim. “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). Moreover, “aggravation of a
pre-existing condition which results in loss of wage earning
capacity is compensable under the workers' compensation laws in our
state.”
Smith v. Champion Int'l, 134 N.C. App. 180, 182, 517
S.E.2d 164, 166 (2000).
In the instant case, Dr. Kihlstrom testified as follows
regarding the ruptured disc that plaintiff suffered within 18 hours
of lifting rocks weighing close to 200 pounds:
COUNSEL: Based upon your training and experience,
would you have an opinion to reasonable
certainty whether the herniated disc more
probably than not occurred as a result of
the exertion on May 4 . . . with his
underlying degenerative disc disease?
KIHLSTROM: I think that that is consistent. He had
had back problems in the past, and we
knew he had degenerative changes, but
these were all new, temporally related to
that particular scenario; and I think
it's very likely related _ more likely
than not.
Defendants argue that Kihlstrom's opinion was “based entirely on
speculation and temporal sequence, rather than medical expertise.”
They also argue that there was no competent evidence to support the
Commission's finding and conclusion that plaintiff's ruptured disc
was causally related to a specific traumatic incident, and that the
evidence showed that plaintiff's injury was caused solely by
gradual deterioration. However, in response to questions by
defendant, Kihlstrom testified as follows:
COUNSEL: And, Dr. Kihlstrom, is the basis of
[your] opinion that Mr. Ogle seemed to be
doing all right prior to the first week
in May, and then reported pain following
that week?
KIHLSTROM: He had dealt with back pain in the past,
and something in the _ the
character and
quality changed. This was the first time
he had hip pain. This was the first time
he had pre-tibial numbness. Something
changed. And that's the basis of that
opinion.
COUNSEL: So _ okay. And the only way you know
that something changed is that Mr. Ogle
said “I did not have this degree of pain
prior to the first week in May; and
following the first week in May, these
are my symptoms,” is that right?
KIHLSTROM: More than that, he
had objective muscle
weakness and absent reflex, and there
were objective findings. They weren't
all just subjective. It wasn't just
pain. It was
pain in combination with
his neurological exam.
. . . .
COUNSEL: Could the disc have actually ruptured
prior to May 4th, 2000?
KIHLSTROM: Well, the constellation of symptoms
changed at that point. . . . [W]ith a
ruptured free disc fragment, . . . you
don't rupture a disc in January and have
pain in September to this magnitude. . .
. This is a different constellation of
symptoms for him. . . . So, the whole
temporal relationship of doing that
activity with his change in symptoms and
his neurological abnormalities leads me
to that conclusion.
We conclude that Kihlstrom's opinion was not based “entirely on
speculation,” and that Kihlstrom's testimony provided support for
the Commission's conclusion that plaintiff's injury was caused by
more than gradual deterioration. This assignment of error is
overruled.
Defendants also argue that compensation should be denied
because plaintiff did not experience pain while working on 4 May
2000, and did not report an unusual occurrence to Dr. Williams at
his 4 May chiropractic appointment. However, evidence that a
claimant's back injury is causally related to a specific traumatic
incident does
not require that the plaintiff experience pain
contemporaneously with the incident.
See, e.g., Beam v. Floyd's
Creek Baptist Church, 99 N.C. App. 767, 769, 394 S.E.2d 191, 192
(1990) (“The fact that claimant did not experience pain
contemporaneously with that incident does not, by itself, justify
defendant's decision to contest this claim”);
Roach v. Lupoli
Constr. Co., 88 N.C. App. 271, 272, 362 S.E.2d 823, 824 (1987)
(reversing Commission's conclusion that “since the 'plaintiffexperienced no pain while performing the work assigned with
[employer],' recovery must be denied.”). We conclude that the fact
that plaintiff developed debilitating pain over the eighteen hours
following work, rather than during the work day itself, does not
defeat his claim.
Defendants next argue that plaintiff failed to identify the
exact time of the specific traumatic incident that triggered his
ruptured disc. However, “[w]hile the case law interpreting the
specific traumatic incident provision of N.C. Gen. Stat. § 97-2(6)
requires the plaintiff to prove an injury at a cognizable time,
this does not compel the plaintiff to allege the specific hour or
day of the injury.”
Fish, 116 N.C. App. at 709, 449 S.E.2d at 237.
Instead, the term “judicially cognizable time” has been defined as:
a showing by plaintiff which enables the
Industrial Commission to determine when,
within a reasonable period, the specific
injury occurred. The evidence must show that
there was some event that caused the injury,
not a gradual deterioration. If the window
during which the injury occurred can be
narrowed to a judicially cognizable period,
then the statute is satisfied.
Id. at 709, 449 S.E.2d at 238.
In the instant case, there was evidence that on or around 4
May 2000 plaintiff was working with heavy rocks and slabs weighing
close to 200 pounds. By that evening his leg and hip were numb,
and by the next day he was suffering a great deal of pain, which a
neurological exam revealed to be caused by a ruptured disc. Dr.
Kihlstrom testified that in his expert medical opinion, the
ruptured disc was more likely than not caused by the heavy liftingof 4 May 2000 in conjunction with plaintiff's preexisting back
condition. We conclude that this is sufficient evidence of a
specific traumatic incident, occurring at a judicially cognizable
time, that was causally related to plaintiff's injury. This
assignment of error is overruled.
We conclude that the challenged findings of fact were
supported by competent evidence, and that the Commission's findings
of fact support its conclusions of law. Accordingly, the opinion
and award of the Industrial Commission is
Affirmed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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