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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.
RONALD C. ROGERS Plaintiff-Appellant,
v. SMOKY MOUNTAIN PETROLEUM
COMPANY, Employer, FEDERATED INSURANCE COMPANY Defendant-
Filed: 16 August 2005
1. Workers' Compensation_back injury_specific traumatic incident_evidence not
The Industrial Commission's finding that a workers' compensation plaintiff had not met
his burden of establishing that he suffered a back injury from a specific traumatic incident was
supported by the evidence where there were inconsistencies in the medical information plaintiff
shared with his treating physicians.
2. Workers' Compensation_back injury_pre-existing condition
The Industrial Commission did not err by finding that a pre-existing condition barred a
workers' compensation plaintiff from recovery where the expert medical testimony failed to
establish that plaintiff's current back problem was either caused or aggravated by an accident or
specific traumatic incident.
3. Workers' Compensation_back injury_causation_speculation
The Industrial Commission's finding and conclusion that a workers' compensation plaintiff
failed to prove that he sustained a work-related injury to his back was proper where the evidence
of causation was little more than speculation.
4. Workers' Compensation_credibility_findings
The Industrial Commission must consider all of the evidence presented to it in a workers'
compensation case, but is the sole judge of credibility, is not required to make specific findings on
credibility, and is not required to find facts as to all credible evidence. The Commission instead
must find those facts necessary to support its conclusion, and did not err here.
Appeal by plaintiff from an Opinion and Award dated 12
September 2003 by the Full Commission. Heard in the Court of
Appeals 23 September 2004.
Gary A. Dodd for plaintiff-appellant.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Sharon E.
Dent, for defendant-appellees.
Ronald C. Rogers (plaintiff) appeals from an Opinion and Award
from the Full Commission dated 12 September 2003 denying benefits
for his back injury under the North Carolina Workers' Compensation
On 16 May 2001, plaintiff was employed as a duct cleaner for
Smoky Mountain Petroleum Company and Federated Insurance Company
(defendants). In fulfillment of his job duties as a helper on
that day, he assisted installers Todd Fountain (Fountain) and Art
Hollis (Hollis) in replacing an old furnace with a new heating and
air conditioning system. To complete the task, they used a hand
truck to move heavier items. Plaintiff testified he felt pain
across his back and down his leg as he assumed the weight of the
heat pump; however, Fountain and Hollis both testified they noticed
no change in his performance, nor did plaintiff mention he had hurt
At the time of the alleged injury, plaintiff was receiving
treatment for back problems and had discontinued work from a
different employer in November 2000 due to low back pain. He began
working for defendant in February 2001. On 17 May 2001, one day
after the alleged injury, plaintiff received an epidural steroid
injection from Dr. Cleveland Thompson. This was one injection ina series of three that had been planned in advance to treat
plaintiff's existing back pain. However, during the visit,
plaintiff did not mention to Dr. Thompson the alleged injury on the
preceding day and, according to Dr. Thompson, plaintiff tolerated
the procedure well. On 18 May 2001 plaintiff saw Dr. Terry White,
his treating physician, complaining of more intense back pain and
attributing the increased pain to having worked two days earlier.
On 18 May 2001, Dr. White wrote plaintiff out of work until 24 May
2001. Despite Dr. White's work release
plaintiff returned to work
that same day.
Plaintiff continued to work with defendant until he
was referred by Dr. White to Dr. Keith Maxwell in September 2001
for continued back problems.
On 25 May 2001, plaintiff filed a Form 18, thereby initiating
his claim against defendants for benefits pursuant to the Workers
Compensation Act. Plaintiff's claim was denied by defendants.
This matter was heard before a Deputy Commissioner in
Asheville on 29 April 2002. The deposition testimony of Dr.
Maxwell and Dr. White was taken. After the hearing, on 8 May 2002,
the Deputy Commissioner considered Dr. Maxwell's deposition
testimony, in addition to Dr. White's testimony, to determine
whether plaintiff was entitled to receive benefits. By Opinion and
Award filed 27 November 2002, the Deputy Commissioner rejected
plaintiff's testimony as not credible and denied plaintiff's claimconcluding plaintiff failed to meet his burden of proving by
competent evidence that he sustained a compensable injury on 16 May
In its Opinion and Award dated 12 September 2003, the Full
Commission affirmed the Opinion and Award of the Deputy Commission
with minor modifications.
Plaintiff raises five issues on appeal: whether the
Commissioner erred in (I) finding plaintiff failed to prove by the
greater weight of the evidence that he sustained a work-related
back injury on 16 May 2001; (II) finding plaintiff's pre-existing
condition to be a bar to recovery; (III) determining as a matter of
law plaintiff failed to meet his burden of proof supported by
competent evidence that his back injury resulted from a traumatic
incident on 16 May 2001; (IV) determining as a matter of law that
plaintiff's testimony lacked credibility; (V) failing to consider
all the competent (and material) evidence of record in making its
findings of fact and conclusions of law.
 Plaintiff first argues the Commission erred in finding
plaintiff failed to prove by a greater weight of the evidence that
he sustained a work-related back injury on 16 May 2001.
Pursuant to N.C. Gen. Stat. § 97-2(6): 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.
N.C.G.S. § 97-2(6) (2003)
. Our Supreme Court has consistently held
that [o]n appeal from the Industrial Commission, the findings of
the Commission are conclusive if supported by competent evidence
and when the findings are so supported, appellate review is limited
to review of the Commission's legal conclusions. Pittman v. Twin
City Laundry & Cleaners, 61 N.C. App. 468, 471, 300 S.E.2d 899, 901
(1983) (citations omitted). Under the North Carolina Workers'
Compensation Act, an employee seeking benefits bears the burden of
proving every element of compensability. Gibbs v. Leggett &
Platt, 112 N.C. App. 103, 107, 434 S.E.2d 653, 656 (1993) (citation
omitted). The degree of proof required of a claimant is the
greater weight or the preponderance of the evidence. Phillips v.
U.S. Air, 120 N.C. App. 538, 541-42, 463 S.E.2d 259, 261 (1995)
(citations omitted). 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. Lincoln Constr. Co.,265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).
Here, the Commission did not err in finding plaintiff failed
to meet his burden of proof to establish that he suffered a back
injury resulting from a specific traumatic incident on 16 May 2001.
Plaintiff's testimony revealed several inconsistencies in the
medical information he shared with his treating physicians.
In assessing plaintiff's credibility, the Commission made the
following pertinent findings of fact:
Plaintiff was employed by defendant . . .
since February 1998 as a duct cleaner . . .
[plaintiff] occasionally . . . assist[ed]
install[ing] heating and air conditioning
systems. On 16 May 2001, plaintiff was
employed as a helper for defendant [to] assist
. . . installers [Fountain and Hollis]
. . . in removing an old furnace and
installing a new heating and air conditioning
3. Plaintiff had pre-existing back problems.
While working for a different employer, he
suffered a back injury in October 1996 and
following treatment, was released to return to
work in March 1997 with a 5% permanent partial
disability rating to his back. Upon his
release, plaintiff continued to complain of
pain while sitting, and was diagnosed with
disc degeneration at L5-S1. Plaintiff returned
to work in March 1997, but continued to
receive chiropractic treatment.
Plaintiff continued to receive treatment
for low back pain into 1998. . . . In July
1998, [his treating physician] Dr. Robertson
diagnosed plaintiff with probable
fibromyalgia. . . .
On 24 November 1999, [after receiving an
epidural block to control his back and neck
pain] plaintiff [saw] Dr. Terry White, upon
referral by Dr. Robertson. . . who reviewed an
MRI of plaintiff's lumbar region and diagnosed
[him] with fibromyalgia and sacroiliac pain
secondary to . . . degenerative disc disease
[and prescribed plaintiff with
medications]. . . .
Plaintiff continued to receive treatment
[and physical therapy] by Dr. Robertson [and]
Dr. White throughout 2000[.]
. . .
Plaintiff alleges that he injured his
back while lowering the new unit [on 16 May
2001 and] . . . maintains [having] reported
the incident to his supervisor, Sammy Parker
on 18 May 2001. However, both [Fountain and
Hollis] testified that plaintiff did not
mention an injury to them . . . [on] 16 May
2001, nor did they notice any change in
plaintiff's physical activities during the
There is no mention in Dr. Thompson's
report of a work-related injury [on 17 May
2001, when plaintiff went to receive a
previously scheduled epidural injection from
. . .
Plaintiff continued to work for defendant
. . . doing primarily light duty. On 4 June
2001, Dr. Robertson restricted plaintiff to
lifting no more than 50 pounds due to
plaintiff's continuing complaints of back
On 7 September 2001, plaintiff [saw Dr.
Maxwell] for evaluation and treatment uponreferral from Dr. White. Plaintiff did not
inform Dr. Maxwell that he had been undergoing
treatment for back pain prior to [16 May
2001], nor did Dr. Maxwell receive any medical
records of plaintiff's prior back treatment.
In addition, Dr. Maxwell's notes indicate that
plaintiff informed him that he had been out of
work since May 2001 despite information to the
contrary in Dr. Robertson's treatment notes of
The Commission is the sole judge of the credibility of
witnesses and may believe all or a part or none of any witness's
testimony[.] Faison v. Allen Canning Co., 163 N.C. App. 755, 757,
594 S.E.2d 446, 448 (2004) (quotation omitted). In the instant
laintiff's statements to both Drs. White and Maxwell, when
compared to plaintiff's recorded history of treatment for back
problems, cast serious doubt on whether a work-related injury
occurred as plaintiff represented.
The findings of fact as
determined by the Commission are supported by competent evidence.
We overrule this assignment of error.
 Plaintiff next argues the Commission erred in finding his
pre-existing condition to be a bar to recovery.
Plaintiff must prove a work-related accident was a causal
factor [of his injury] by a preponderance of the evidence.
Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158-
59, 357 S.E.2d 683, 685 (1987). Although medical certainty is notrequired, an expert's 'speculation' is insufficient to establish
causation between a pre-existing condition and a work-related
Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750,
754 (2003). Our Supreme Court has held:
(1) [A]n employer takes the employee as he
finds her with all her pre-existing
infirmities and weaknesses. (2) When a
pre-existing, nondisabling, non-job-related
condition is aggravated or accelerated by an
accidental injury arising out of and in the
course of employment or by an occupational
disease so that disability results, then the
employer must compensate the employee for the
entire resulting disability even though it
would not have disabled a normal person to
that extent. (3) On the other hand, when a
pre-existing, nondisabling, non-job-related
disease or infirmity eventually causes an
incapacity for work without any aggravation or
acceleration of it by a compensable accident
or by an occupational disease, the resulting
incapacity so caused is not compensable. . . .
Morrison v. Burlington Indus., 304 N.C. 1, 18, 282 S.E.2d 458, 470
(1981) (emphasis added)
As found by the Commission, plaintiff had pre-existing back
problems, due to a 1996 workplace injury with a former employer.
In 1999, plaintiff was diagnosed with fibromyalgia and sacroiliac
pain due to degenerative disease. Through the year, plaintiff
received pain treatment and physical therapy, including the series
of epidural injections plaintiff was undergoing at the time of the
alleged injury on 16 May 2001. Plaintiff's testimony of an injuryby accident on 16 May 2001 was not supported by other competent
The expert medical testimony failed to establish
plaintiff's current back problem was either caused or aggravated by
an accident or specific traumatic work-related event
assignment of error is overruled.
 Plaintiff's third assignment of error is substantially
related to his first two arguments. Plaintiff contends the
Commission erred in determining as a matter of law that no
competent evidence supports a conclusion that plaintiff's back
injury occurred as a result of a traumatic incident on 16 May 2001.
Plaintiff argues the Commission improperly concluded that in
order for back injuries to be compensable there must be a specific
traumatic incident that occurred at a cognizable time and that back
injuries occurring gradually are not compensable. We disagree.
Plaintiff relies on Fish v. Steelcase to support his argument
that if he shows his injury was caused by an event occurring within
a judicially cognizable period, and is not simply a gradual
deterioration, then a work-related compensable back injury exists.
Fish v. Steelcase, Inc.
, 116 N.C. App. 703, 708, 449 S.E.2d 233,
237 (1994). In Fish, the plaintiff testified he felt a pull in his
back while moving a desk at work, thought he would be fine, and
continued working. Later the pain worsened, and finally hiscondition was diagnosed as a herniated disc. The Industrial
Commission concluded plaintiff suffered no injury
as a matter of
law, holding plaintiff had failed to show a traumatic incident had
This Court reversed the Industrial Commission and held
the event causing the injury must be judicially cognizable,
the event does not have to be ascertainable on an exact date.
Fish, 116 N.C. App. at 709, 449 S.E.2d at 238. The case sub judice
is distinguishable from Fish in that the actual date of the alleged
injury is not in issue. Rather it is plaintiff's credibility as it
relates to his testimony about the events that caused his back
injury as well as the competency of his medical causation evidence
that is at issue.
Despite the Commission's broad ability to determine its
factual findings, where the exact nature and probable genesis of
a particular type of injury involves 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. Peagler v. Tyson Foods, Inc., 138 N.C. App. 593,
598, 532 S.E.2d 207, 210-11 (2000) (quotations and citation
omitted). However, when such expert opinion testimony is based
merely upon speculation and conjecture, it can be of no more value
than that of a layman's opinion. As such, it is not sufficiently
reliable to qualify as competent evidence on issues of medicalcausation. Young v. Hickory Bus. Furniture, 353 N.C. 227, 230,
538 S.E.2d 912, 915 (2000) (citations omitted).
In this case
causation of plaintiff's particular back injury is at issue.
Therefore, only an expert can render an opinion regarding
causation. The two medical experts who were asked to testify in
the case failed to present clear evidence as to the cause of
plaintiff's back injury. Dr. White, plaintiff's treating
physician, stated he assumed plaintiff's back pain had come from
moving the unit at work. Dr. White also said he observed muscle
spasms on both sides of plaintiff's back on 18 May 2001 and that
he had never seen the spasms, especially visible [muscle] spasms
until that time. On cross-examination, Dr. White testified that
he had observed plaintiff hav[ing] some spasm[s] in his back
intermittently prior to 18 May 2001. Meanwhile, Dr. Maxwell
stated, and the Commission found:
On 7 September 2001 . . . plaintiff did not
inform Dr. Maxwell that he had been undergoing
treatment for back pain prior to the alleged
work-related injury. . . . In addition, Dr.
Maxwell's notes indicate[d] that the plaintiff
informed [Dr. Maxwell] that he had been out of
work since May 2001, despite information to
the contrary in . . . treatment notes of June
Under these circumstances, the evidence regarding the causation of
plaintiff's alleged back injury amounts to little more than
speculation. Since the medical evidence of causation here is notcompetent evidence, the Commission's finding of fact and conclusion
that plaintiff failed to prove he sustained a work-related injury
to his back on 16 May 2001 was proper. Therefore, this assignment
of error is overruled.
IV & V
 In his fourth and fifth assignments of error, plaintiff
contends the Commission erred in failing to consider all the
competent (and material) evidence of record in making its findings
of fact and conclusions of law and determining as a matter of law
that plaintiff's testimony lacked credibility.
Plaintiff accurately asserts the Commission must consider the
evidence presented to it. Before making findings of fact, the
Industrial Commission must consider all
of the evidence. The
Industrial Commission may not discount or disregard any evidence,
but may choose not to believe the evidence after
Weaver v. Am. Nat'l Can Corp.
, 123 N.C. App. 507, 510, 473 S.E.2d
10, 12 (1996) (citation omitted); see also Lineback v. Wake County
Bd. of Comm'rs
, 126 N.C. App. 678, 486 S.E.2d 252 (1997). The
Industrial Commission is the sole judge of the credibility of the
witnesses and the weight to be given to their testimony, and may
reject a witness'[s] testimony entirely if warranted by disbelief
of that witness. Lineback
, 126 N.C. App. at 680, 486 S.E.2d at
254 (citing Russell v. Lowes Prod. Distrib.
, 108 N.C. App. 762, 425S.E.2d 454 (1993)).
This Court in Adams
made it clear that the
Commission does not have to explain its
findings of fact by attempting to distinguish
which evidence or witnesses it finds credible.
Requiring the Commission to explain its
credibility determinations and allowing the
Court of Appeals to review the Commission's
explanation of those credibility
determinations would be inconsistent with our
legal system's tradition of not requiring the
fact finder to explain why he or she believes
one witness over another or believes one piece
of evidence is more credible than another.
Deese v. Champion Int'l Corp.
, 352 N.C. 109, 116-17, 530 S.E.2d
549, 553 (2000); see also Sheehan v. Perry M. Alexander Constr.
, 150 N.C. App. 506, 563 S.E.2d 300 (2002).
Plaintiff also argues the Commission erred in finding his
testimony lacked credibility as a matter of law. Just as the
Commission is not required to make specific findings on the
credibility of evidence, [t]he Commission is not required . . . to
find facts as to all credible evidence. That requirement would
place an unreasonable burden on the Commission. Instead the
Commission must find those facts which are necessary to support its
conclusions of law. Peagler
, 138 N.C. App. at 602, 532 S.E.2d at
213 (2000) (quotation and citation omitted).
Therefore, we find the following conclusion of the Commission
to be supported by its findings of fact: Plaintiff has failed to
carry the burden of proof to establish by competent evidence thathe suffered a back injury resulting from a specific traumatic
incident on 16 May 2001 . . . [and his] testimony regarding the
alleged injury is not accepted as credible. Accordingly,
plaintiff's assignments of error are overruled.
Judges TYSON and LEVINSON concur.
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