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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.
GRISELDA GUTIERREZ, Employee, Plaintiff, v. GDX AUTOMOTIVE,
Employer, ST. PAUL FIRE & MARINE INSURANCE COMPANY, Carrier,
Filed: 15 March 2005
1. Workers' Compensation--failure to consider testimony of treating physician--
The Industrial Commission erred in a workers' compensation case by failing to consider
testimony and evidence of plaintiff's treating physicians revealing that plaintiff fully recovered
from the back strain she sustained at work on 14 July 1999, because: (1) it is reversible error for
the Commission to fail to consider the testimony or records of a treating physician; and (2) the
Commission failed to enter a finding of fact regarding the consideration, credibility, or relevancy
of a treating physician's deposition testimony.
2. Workers' Compensation--causation-_reasonable degree of medical certainty
The Industrial Commission erred in a workers' compensation case by awarding plaintiff
compensation benefits when no competent evidence showed that plaintiff's symptoms were
proximately caused by her injury, because: (1) plaintiff's own treating physicians only testified
that plaintiff's injury was a possible cause of her symptoms; and (2) our Supreme Court has
specifically rejected could or might testimony to prove causation and stated that mere
possibility has never been legally competent to prove causation.
3. Workers' Compensation--disability_-sufficiency of evidence
The Industrial Commission erred in a workers' compensation case by concluding that
plaintiff has been totally disabled as a direct result of her occupational injury since 5 February
2001, because: (1) plaintiff failed to present any evidence that she has been unsuccessful after a
diligent effort to obtain employment, and the record showed no evidence that plaintiff made any
attempt to obtain any position after 5 February 2001; (2) plaintiff presented no evidence of a
preexisting condition preventing her from earning the same or higher wages as she did while
employed with defendant; and (3) the Commission's finding that plaintiff was physically
incapable of work in any employment based on a doctor's report is unsupported by competent
evidence in the record when the doctor testified that his office never assigned plaintiff any
specific work restrictions or instructed her not to work, and he further stated that he observed the
patient could work.
Appeal by defendants from opinion and award entered 4 December
2003 by Commissioner Pamela T. Young for the North Carolina
Industrial Commission. Heard in the Court of Appeals 16 February
Brooke & Brooke Attorneys at Law, by Thomas M. Brooke, for
Stiles Byrum & Horne, L.L.P., by Henry C. Byrum, Jr., and
Virginia Lee Bailey, for defendants-appellants.
GDX Automotive (GDX) and St. Paul Fire & Marine Insurance
Company (collectively, defendants) appeal from opinion and award
entered by the North Carolina Industrial Commission (the
Commission) awarding Griselda Gutierrez (plaintiff) benefits for
an injury she sustained at work. We reverse.
The undisputed findings of fact show that GDX manufactures
interior car parts. Plaintiff worked for GDX as an assembler from
28 June 1999 through 28 February 2001. She was approximately
thirty years old, had completed approximately three years of high
school, and was an undocumented worker of Mexican descent who spoke
On 14 July 1999, plaintiff lifted a bin of parts weighing
approximately fifteen pounds and immediately experienced lower back
pain. That day, she sought medical attention at ProMed, where Dr.
David Mobley (Dr. Mobley) diagnosed her with a lumbar strain and
recommended conservative treatment, to include medications and warm
compresses. On 20 July 1999, plaintiff returned to Dr. Mobley, and
he noted an improvement in her condition. Plaintiff reported pain
after bending and lifting and washing and drying clothes.
She returned to ProMed again on 21 July 1999 and was examined
by Dr. Ronald Huffman (Dr. Huffman). Dr. Huffman's examination
revealed good range of motion of plaintiff's back, ability to twistwithout difficulty, negative straight leg raising, and no
neurological symptoms. On 27 July 1999, Dr. Mobley examined
plaintiff and approved her to return to work at regular duty, which
she resumed that day.
Plaintiff did not seek further medical treatment until 28
March 2000, when she returned to ProMed after injuring her right
elbow, and again on 21 September 2000 for treatment for a severe
headache. Plaintiff did not complain of back pain during either
Although plaintiff missed work on 9 January 2001, she returned
to work. On 15 January 2001, plaintiff sought treatment from Dr.
Michael Binder (Dr. Binder), a chiropractor, and stated she had
been experiencing lower back pain from working on her job for
approximately fifteen months. On 17 January 2001, plaintiff
presented a chiropractor's note excusing her from work until 19
January 2001. Plaintiff again visited Dr. Binder's office on 5
February 2001 and received work restrictions, which her employer
could not accommodate.
On 9 March 2001, plaintiff sought treatment from Dr. Jeffrey
Baker (Dr. Baker), an orthopaedic surgeon. Dr. Baker diagnosed
plaintiff with degenerative disk disease and referred her for
physical therapy. Following a hearing, Deputy Commissioner George
T. Glenn, II, awarded plaintiff continuing disability compensation
and medical treatment for her back injury. Defendants appealed to
the Full Commission, which concluded plaintiff was entitled to
ongoing temporary total disability compensation and medicaltreatment for an injury that occurred on 14 July 1999. Defendants
The issues presented on appeal are whether the Commission
erred by: (1) failing to consider testimony and adjudicate
evidence of plaintiff's treating physicians revealing plaintiff
fully recovered from the back strain she sustained on 14 July 1999;
(2) concluding that plaintiff's alleged back condition after 27
July 1999 proximately resulted from her occupational injury on 14
July 1999; and (3) concluding that plaintiff has been totally
disabled as a direct result of her occupational injury since 5
III. Standard of Review
On appeal from the Commission in a workers' compensation
claim, our standard of review is
whether there is any competent evidence in the
record to support the Commission's findings of
fact and whether these findings support the
Commission's conclusions of law. The findings
of fact made by the Commission are conclusive
upon appeal when supported by competent
evidence, even when there is evidence to
support a finding to the contrary. In
weighing the evidence[,] the 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
Plummer v. Henderson Storage Co., 118 N.C. App. 727, 730-31, 456
S.E.2d 886, 888 (internal citations omitted), disc. rev. denied,
340 N.C. 569, 460 S.E.2d 321 (1995).
IV. Testimony of Treating Physicians
 Defendants contend the trial court erred by failing to
consider testimony and to adjudicate evidence from plaintiff's two
treating physicians that plaintiff fully recovered from her back
strain injury. We agree.
Defendants concede that credibility determinations of the
Commission are binding on appeal, but argue the Commission may not
ignore competent evidence when weighing the evidence. We have
repeatedly held [i]t is reversible error for the Commission to
fail to consider the testimony or records of a treating physician.
Whitfield v. Lab Corp. of America, 158 N.C. App. 341, 348, 581
S.E.2d 778, 784 (2003) (citing Jenkins v. Easco Aluminum Corp., 142
N.C. App. 71, 78, 541 S.E.2d 510, 515 (2001)). Further, before
finding the facts, the Commission must consider and evaluate all
the evidence before it is rejected. Jarvis v. Food Lion, 134 N.C.
App. 363, 366-67, 517 S.E.2d 388, 391 (1999) (citations omitted),
disc. rev. denied, 351 N.C. 356, 541 S.E.2d 139 (1999).
Here, plaintiff failed to report any problems regarding her
back injury during several subsequent visits to ProMed after her
back injury and when she was treated by Dr. Eric Troyer (Dr.
Troyer) for her headaches and menstrual problems. Defendant
contends that plaintiff's failure to inform ProMed and Dr. Troyer
of any continuing back injuries in 2000 shows that she was not
experiencing pain or other difficulty with her back during that
year. Although this evidence tends to indicate that plaintiff had
no further difficulty with her back after she was released toreturn to work, it is not for this Court to weigh the evidence.
See Plummer, 118 N.C. App. at 730, 456 S.E.2d at 888.
The opinion and award entered by the Commission shows that it
recognized that plaintiff was treated by other physicians for
unrelated injuries during the course of her treatment for the back
injury. The Commission found, Plaintiff sought treatment at
ProMed for the treatment of other injuries . . ., but entered no
findings regarding plaintiff's treatment with Dr. Troyer. A review
of Dr. Troyer's deposition reveals that plaintiff, who was seeking
treatment for symptoms totally unrelated to her back injury,
omitted any reference to her back injury or back pain when giving
her medical history to Dr. Troyer. The Commission is not required
to receive evidence from every physician who had treated plaintiff,
but is required to enter findings of fact regarding material
evidence properly presented to and considered by the Commission.
See Whitfield, 158 N.C. App. at 348, 581 S.E.2d at 784. The
Commission erred by failing to enter a finding of fact regarding
the consideration, credibility, or relevancy of Dr. Troyer's
 Defendants also contend the Commission erred by awarding
plaintiff compensation benefits when no competent evidence shows
plaintiff's symptoms were proximately caused by her injury. We
It is well-settled in our jurisprudence that [i]n a worker's
compensation claim, the employee has the burden of proving that hisclaim is compensable . . . [and] must prove that the accident was
a causal factor by a preponderance of the evidence. Holley v.
ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003)
(internal quotations and citations omitted). Although expert
testimony as to the possible cause of a medical condition is
admissible if helpful to the jury, it is insufficient to prove
causation, particularly when there is additional evidence or
testimony showing the expert's opinion to be a guess or mere
speculation . . . . Id. at 233, 581 S.E.2d at 753 (internal
quotations and citations omitted). In Holley, our Supreme Court
held, the entirety of causation evidence before the Commission
failed to meet the reasonable degree of medical certainty standard
necessary to establish a causal link between plaintiff's twisting
injury and her [disabling condition]. Id. at 234, 581 S.E.2d at
754. The Court specifically noted the evidence and the plaintiff's
medical history showed several potential causes of the injury.
Here, plaintiff's own treating physicians only testified that
plaintiff's injury was a possible cause of her symptoms. This
evidence is insufficient to support plaintiff's burden of proving
causation to establish compensability. Id.
Plaintiff argues Dr. Baker's testimony that plaintiff's injury
could or might have resulted in the symptoms presented is
sufficient to establish compensability. Our Supreme Court
specifically rejected could or might testimony to prove causation
and stated, mere possibility has never been legally competent toprove causation. Id. at 234, 581 S.E.2d at 753. Plaintiff's
argument is without merit.
No evidence supports a finding of causation by the Commission.
Without competent evidence, the Commission's conclusions are
likewise unsupported and the opinion and award must be reversed.
 Defendants also argue that the Commission erred by
concluding plaintiff was disabled as a result of her injury. In
addition to and as an alternative basis to support reversal of the
Commission's opinion and award, we agree with defendants' argument.
We have stated:
[D]isability as defined in the [Workers'
Compensation] Act is the impairment of the
injured employee's earning capacity rather
than physical disablement. Peoples v. Cone
Mills Corp., 316 N.C. 426, 434, 342 S.E.2d
798, 804 (1986). The burden is on the
employee to show that [s]he is unable to earn
the same wages [s]he had earned before the
injury, either in the same employment or in
other employment. Hilliard v. Apex Cabinet
Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993). In meeting this burden, plaintiff must
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work in
any employment; (2) the production of evidence
that he is capable of some work, but that he
has, after a reasonable effort on his part,
been unsuccessful in his effort to obtain
employment; (3) the production of evidence
that he is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, inexperience, lack ofeducation, to seek other employment; or (4)
the production of evidence that he has
obtained other employment at a wage less than
that earned prior to the injury.
Id. (internal citations omitted).
Plaintiff failed to present any evidence that she has been
unsuccessful after a diligent effort to obtain employment. Our
review of the record shows no evidence that plaintiff made any
attempt to obtain any position after 5 February 2001. Further,
plaintiff presented no evidence of a preexisting condition
preventing her from earning the same or higher wages as she did
while employed with GDX.
The Commission found plaintiff was physically incapable of
work in any employment based on Dr. Baker's report. This finding
of fact is unsupported by any competent evidence in the record.
Dr. Baker testified that his office never assigned plaintiff any
specific work restrictions or instructed her not to work. He
testified to the contrary and stated, What I observed in the
patient, she could work.
Without any evidence to support the Commission's finding that
Dr. Baker indicated that plaintiff was unable to work, the
Commissions finding of disability constitutes a separate and
independent reason to reverse the Commission's opinion and award.
The Commission failed to make any finding of fact revealing
that it considered the deposition testimony from Dr. Troyer,
plaintiff's treating physician. The Commission further erred by
concluding plaintiff's injury, which she sustained while workingfor GDX, was the proximate cause of her symptoms. Without any
evidence to support the causation element, the Commission erred in
awarding plaintiff compensation benefits. The Commission erred by
determining plaintiff was disabled, when no competent evidence in
the record supports this conclusion.
The opinion and award is reversed.
Judges MCGEE and GEER concur.
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