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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.
JOHNNY E. WORKMAN, Employee, Plaintiff, v. RUTHERFORD ELECTRIC
MEMBERSHIP CORPORATION, Employer, SELF INSURED (FEDERATED RURAL
ELECTRIC INSURANCE EXCHANGE, Third Party Administrator),
Filed: 7 June 2005
1. Workers' Compensation--disability--discharge for misconduct
Workers' compensation benefits are barred if an employee's loss of wages is attributable
to a wrongful act resulting in loss of employment, but the employee is entitled to benefits if the
loss of wages is due to the employee's work-related disability. The elements required for
payment to be barred include a showing that the same misconduct would result in the termination
of a nondisabled employee. The plaintiff in this case, frustrated at not being assigned work
within his medical limitations, repeated a joke from a lawyer, but committed no act of physical
violence. The Commission found that there was no evidence that another employee who made
similar statements would have been terminated.
2. Workers' Compensation--affidavit--opportunity to rebut--corroborative
The trial court did not abuse its discretion in a workers' compensation case in the
admission and consideration of an affidavit from an attorney who told plaintiff a joke, which was
interpreted as a threat when plaintiff repeated it and for which plaintiff was fired. Although
defendant contended that the Commission should have allowed it the opportunity to rebut or
discredit the evidence, it was only corroborative of other testimony and was not prejudicial even
if erroneously admitted because the remaining findings support the Commission's conclusion.
3. Workers' Compensation--disability--factors in determining--findings
An Industrial Commission conclusion that a workers' compensation plaintiff was
disabled was remanded where the Commission made no findings regarding one of the four
factors indicating disability and whether plaintiff had met that burden.
4. Workers' Compensation--discharge for misconduct--Employment Security
Commission decision--not res judicata
A workers' compensation determination of whether plaintiff was terminated for
misconduct, which would bar benefits, was not prevented by the Employment Security
Commission's decision on the subject. Defendant did not cite authority for application of res
judicata or collateral estoppel, and, while the factual determination is similar, the different
interests at stake distinguish the ESC's determination from the issue before the Industrial
5. Workers' Compensation--causation--findings--medical testimony--more than
The Industrial Commission's finding of fact in a workers' compensation case that
plaintiff's urological condition was caused by his accident was supported by competent evidence
in the record. The testimony of plaintiff's medical expert was not without equivocation, but it
was more than speculation, and the Commission is the sole judge of the credibility of witnesses.
6. Workers' Compensation--causation--expert testimony--more than conjecture
Competent evidence supported the Industrial Commission's finding of fact in a workers'
compensation case that plaintiff's depression is causally related to his work-related accident. A
psychologist's testimony of a very strong linkage between the development of plaintiff's
psychological condition and his accident is sufficient to take the case beyond conjecture and
7. Appeal and Error--preservation of issues--assignments of error--supporting
An assignment of error concerning medical expenses in a workers' compensation case
was dismissed where defendant cited (incorrectly) only the definitions portion of the Workers'
Compensation Act and did not argue how the statute applied to the assignment of error.
Judge Wynn concurring.
Appeal by defendant from opinion and award entered 18 November
2003 by Commissioner Christopher Scott for the North Carolina
Industrial Commission. Heard in the Court of Appeals 7 December
Daniel Law Firm, P.A., by Stephen T. Daniel and Warren T.
Daniel, for plaintiff-appellee.
Teague, Campbell, Dennis & Gorham, L.L.P., by J. Matthew
Little and Tara Davidson Muller, for defendant-appellant.
Rutherford Electric Membership Corporation (REMC) and
Federated Rural Electric Insurance Exchange (agent)
(collectively, defendant) appeal from opinion and award entered
by the Full Commission of the North Carolina Industrial Commission
(the Commission) that awarded Johnny E. Workman (plaintiff)
total disability compensation. We affirm in part and remand for
further findings of fact.
Plaintiff was employed by REMC as a first-class lineman. His
job included repairing damaged electrical power lines, which
required him to climb utility poles. On 21 February 1997,
plaintiff was injured during the course and scope of his employment
when an electrical utility pole fell and landed across his
abdominal area. Plaintiff suffered injuries to various parts of
his body during the accident, which REMC immediately accepted as
compensable. Defendant promptly began paying plaintiff temporary
total disability benefits pursuant to Form 60 at the weekly rate of
Plaintiff underwent two surgeries for internal injuries and
digestive complications. In August 1997, he underwent surgery to
remove a parathyroid gland. In November 1998, his gall bladder was
removed and a hiatal hernia was repaired.
On 7 January 1998, plaintiff returned to work for REMC as an
assistant staking technician earning an average weekly wage of
$220.70. Due to the salary reduction, defendant paid plaintiff
temporary partial disability benefits pursuant to Form 62 at
varying rates depending on the number of hours plaintiff worked.
Plaintiff was assigned physically demanding and difficult tasks.
His job description, as written by REMC and submitted to
plaintiff's doctors for approval, did not include the strenuous
physical tasks that plaintiff was actually assigned to do, which
included chopping right-of-ways with a bush axe and moving large
quantities of dirt with a shovel. These physically demanding tasksaggravated plaintiff's medical condition and caused him to
accumulate blood in his urine. As a result, plaintiff was
hospitalized and diagnosed with recurrent gross hematuria.
After plaintiff was released, he returned to work and was
assigned similar work duties. Plaintiff requested less strenuous
jobs and was told none were available. On 9 September 1999, Dr.
Leon Dickerson (Dr. Dickerson) restricted plaintiff's employment
to lifting no greater than thirty pounds occasionally, no
prolonged bending, stooping, squatting, or climbing on ladders and
no working on rough terrain. On 7 January 2000, Dr. Dickerson
continued these work restrictions. Plaintiff was never assigned to
light-duty work. According to Dr. Anthony H. Wheeler (Dr.
Wheeler), plaintiff's treating physician, if plaintiff continued
to perform on-the-job tasks, such as using a shovel and a bush axe,
he would eventually become unemployable.
Plaintiff became frustrated with the status of his employment
and contacted Sean C. Cobourn, Esquire (Cobourn), a South
Carolina attorney, regarding legal representation. Plaintiff
testified Coburn told him a joke during a telephone conversation:
I asked the lawyer if there was anything that
he could do with workmen's comp because they
wasn't paying my doctor bills, they wasn't
paying me - they was behind paying me and I
was behind on my house payment and everything
else. I said, I need somebody to do something
now. He [the attorney] laughed and he said,
Well, he said, the only thing I know you
can do is whip his ass and it will cost you
five hundred dollars to do that.
Both plaintiff and Coburn laughed at this remark, and testified it
was a joke. Plaintiff's wife recalled plaintiff retelling the
lawyer's joke to others.
During plaintiff's return to work, he became increasingly
frustrated with his treatment by defendant. He expressed his
discontent regarding medical treatment being denied, receipt of
numerous medical collection letters, and difficult working
In response to plaintiff's increasing frustration, nurse
caseworker, Kay Galvin (Nurse Galvin), submitted a request to the
adjuster to approve psychological treatment for plaintiff on 18
January 2000. On 1 February 2000, plaintiff and Nurse Galvin were
present at a doctor's office waiting for an appointment when
plaintiff repeated the lawyer's joke. Nurse Galvin reported
plaintiff's remarks to REMC. On 7 February 2000, REMC terminated
plaintiff for workplace violence.
On 18 December 2000, plaintiff requested a hearing on claims
of a changed medical condition, an inability to agree on the amount
of benefits due, defendant's denial of certain medical treatment,
and improper termination. After a hearing on 11 April 2003, the
Commission entered its opinion and award on 18 November 2003 that:
(1) awarded plaintiff total disability compensation at the rate of
$512.00 per week from 8 February 2000 and continuing until
plaintiff returns to work or until further order of the Commission;
(2) ordered defendant to pay for medical expenses incurred as a
result of the compensable injury as may reasonably be required to[provide treatment for] . . . right knee condition,  impotence,
blood in urine, and problems with urination . . . and 
depression; and (3) ordered defendant to provide plaintiff with
vocational rehabilitation services. Defendant appeals.
Defendant contends the Commission erred by: (1) finding and
concluding defendant's decision to terminate plaintiff's employment
violated the test set forth in Seagraves v. Austin Co. of
Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996); (2) finding
plaintiff to be totally disabled; (3) not applying the doctrine of
collateral estoppel with regard to plaintiff's termination; (4)
finding that plaintiff's urological condition is causally related
to his work accident and compensable; (5) finding that plaintiff's
psychological condition is causally related to his work accident
and compensable; and (6) ordering defendant to pay all of
plaintiff's medical costs related to his work accident.
III. Standard of Review
On appeal from the Commission in a workers'
compensation claim, our standard of review
requires us to consider: 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' testimony entirely if warranted by
disbelief of that witness. Where no exception
is taken to a finding of fact . . ., thefinding is presumed to be supported by
competent evidence and is binding on appeal.
Bass v. Morganite, Inc., 166 N.C. App. 605, 608-09, 603 S.E.2d 384,
386-87 (2004). 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 . . . . Harrell v. Stevens & Co., 45 N.C.
App. 197, 205, 262 S.E.2d 830, 835, disc. rev. denied, 300 N.C.
196, 269 S.E.2d 623 (1980) (citation omitted).
IV. Termination of Employment
Defendant contends the trial court erred in finding and
concluding that REMC's decision to terminate plaintiff was not
based upon plaintiff's misconduct or fault. We disagree.
A. Seagraves Test
 According to Seagraves, the lawful termination of an
employee for a reason unrelated to his disability and under
circumstances justifying termination of any other employee
constitutes a refusal to work. 123 N.C. App. 228, 472 S.E.2d 397.
An employee who actually or constructively refuses suitable
employment is barred from receiving benefits by N.C. Gen. Stat. §
97-32. Id. at 230, 472 S.E.2d at 399. The pertinent test is
whether the employee's loss of . . . wages is attributable to the
wrongful act resulting in loss of employment, in which case
benefits will be barred, or whether such loss . . . is due to the
employee's work-related disability, in which case the employee will
be entitled to benefits for such disability. Id. at 234, 472
S.E.2d at 401. [U]nder the Seagraves' test, to bar payment of benefits, an
employer must demonstrate initially that: (1) the employee was
terminated for misconduct; (2) the same misconduct would have
resulted in the termination of a nondisabled employee; and (3) the
termination was unrelated to the employee's compensable injury.
McRae v. Toastmaster, Inc., 358 N.C. 488, 493, 597 S.E.2d 695, 699
(2004). The employer carries the initial burden to demonstrate all
three elements by a greater weight of the evidence. Id. at 499,
597 S.E.2d at 702.
In McRae, our Supreme Court approved the Seagraves test:
In our view, the test provides a forum of
inquiry that guides a fact finder through the
relevant circumstances in order to resolve the
ultimate issue: Is a former employee's failure
to procure comparable employment the result of
his or her job-related injuries or the result
of the employee's termination for misconduct?
In disputes like the one at bar, the critical
area of inquiry into the circumstances of an
injured employee's termination is to determine
from the evidence whether the employee's
failure to perform is due to an inability to
perform or an unwillingness to perform.
Id. at 494, 597 S.E.2d at 700. Our Supreme Court further noted
the pertinent inquiry under Seagraves is not
focused on determining whether an employer may
fire an injured employee for misconduct
unrelated to his injuries; it is clear that an
employer may do so. See, e.g., N.C.G.S. §
95-241(b) (2003). Rather, the relevant
question is determining whether, upon firing
an injured employee for such misconduct, an
employer can nevertheless be held responsible
for continuing to pay injury benefits to the
Id. at 494, 597 S.E.2d at 699. Defendant contends the Commission erred by finding, Defendant
has presented no evidence that a worker who said what plaintiff did
would have been terminated as plaintiff was. The case presented
regarding the fired worker who committed assault presents a
completely different factual paradigm. Competent evidence in the
record supports this finding. The only evidence defendant
presented regarding termination of an employee for workplace
violence was testimony that a right-of-way crew foreman with REMC
was fired for engaging in a fight at a store on company time.
That employee was not a workers' compensation claimant at the time
of his termination and was subsequently rehired by employer.
The Commission distinguished the instance wherein that
employee engaged in actual physical violence. If plaintiff had
engaged in physical violence on the job, the result here may well
have been different. According to defendant, plaintiff was fired
for making threats towards other employees. However, no evidence
was presented to show that an employee who made threats similar
to the statements made by plaintiff would have been terminated.
See id.; see also Frazier v. McDonald's, 149 N.C. App. 745, 562
S.E.2d 295 (2002), cert. denied, 356 N.C. 670, 577 S.E.2d 117
Defendant presented some evidence towards showing REMC had a
bonafide reason for firing plaintiff. However, REMC failed to
satisfy its burden of proving the same misconduct would have
resulted in termination of a non-disabled employee. Defendant
failed to establish the requirements set forth in Seagraves, 123 at234, 472 S.E.2d at 401, and approved in McRae, 358 N.C. at 493, 597
S.E.2d at 699. Further, it is the duty of the Commission and not
this Court to weigh the evidence. Harrell, 45 N.C. App. at 205,
262 S.E.2d at 835. This assignment of error is overruled.
B. Admission of Cobourn's Affidavit
 Defendant argues the Commission erred by admitting and
considering the affidavit from Cobourn who participated in the
conversation with plaintiff regarding the lawyer's joke.
Defendant cites Allen v. K-Mart which held, where the
Commission allows a party to introduce new evidence which becomes
the basis for its opinion and award, it must allow the other party
the opportunity to rebut or discredit that evidence. 137 N.C.
App. 298, 304, 528 S.E.2d 60, 64-65 (2000). In Cummins v. BCCI
Constr. Enters., we distinguished Allen and stated, In Allen, the
employee attempted to submit evidence of independent medical
examinations by a psychiatrist and a physician with experience in
diagnosing and treating fibromyalgia. The employee did not consult
a fibromyalgia specialist prior to the hearing before the deputy
commissioner. 149 N.C. App. 180, 185, 560 S.E.2d 369, 372, disc.
rev. denied, 356 N.C. 611, 574 S.E.2d 678 (2002). In Cummins, we
held that the Commission did not manifestly abuse its discretion in
denying the defendants' motion to depose a doctor after the
plaintiff presented into evidence medical reports prepared by the
doctor. Id. This Court ruled, Evidence of [the doctor's] report
is merely an update of plaintiff's continued problems for the sameinjury. Thus, it is not 'significant new evidence' as in Allen.
We find the reasoning in Cummins persuasive and Allen to be
distinguishable. Here, Cobourn's affidavit only corroborated the
evidence presented through plaintiff's and his wife's testimony.
Defendant fails to show the affidavit disclosed any significant
new evidence. Id.
Presuming, as defendant argues, that the admission of
Cobourn's affidavit was error, defendant has failed to demonstrate
that any error was prejudicial. Where, after erroneous factual
findings have been excluded, there remain sufficient findings of
fact based on competent evidence to support the Commission's
conclusions, its ruling will not be disturbed. Torain v. Fordham
Drug Co., 79 N.C. App. 572, 576, 340 S.E.2d 111, 114 (1986) (citing
Wachovia Bank and Trust Co. v. Bounous, 53 N.C. App. 700, 281
S.E.2d 712 (1981)). Here, even striking those portions of the
Commission's findings of fact regarding Cobourn's affidavit, the
remaining findings of fact and our previous holding support the
Commission's conclusion that defendant failed to show that
plaintiff was terminated for misconduct or fault. This assignment
of error is overruled.
 Defendant contends the Commission erred by concluding
plaintiff was disabled. We agree and remand for further findings
The employee bears the burden of proving each
and every element of compensability. Harveyv. Raleigh Police Dep't, 96 N.C. App. 28, 35,
384 S.E.2d 549, 553 (1989). The employee can
prove that he is disabled in one of four ways
by production of: (1) medical evidence that
he is physically or mentally, as a consequence
of the work related injury, incapable of work
in any employment; (2) evidence that he is
capable of some work, but has after a
reasonable effort been unsuccessful in his
efforts to obtain employment; (3) evidence
that he is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, inexperience, lack of
education, to seek other employment; or (4)
evidence that he has obtained other employment
at a wage less than that earned prior to the
injury. Russell v. Lowes Prod. Distrib., 108
N.C. App. 762, 765, 425 S.E.2d 454, 457
Springer v. McNutt Serv. Grp., Inc., 160 N.C. App. 574, 577, 586
S.E.2d 554, 556 (2003).
Here, the Commission made no findings of fact regarding
plaintiff's burden to establish one of the four factors and whether
plaintiff met his burden. The findings of fact show:
19. Anthony H. Wheeler, a neurologist and
pain management doctor, testified that
plaintiff was unable to do the job of
assistant staking technician, and that
requiring plaintiff to do this job would
probably cause him to eventually become
20. Dr. Alan F. Jacks, a general surgeon,
testified that using a bush axe or
shovel, and walking over rough terrain,
would cause significant strain within
the abdomen, and may create symptoms of
pain and significant exertion.
21. Dr. Leon A. Dickerson, an orthopaedic
surgeon, testified that plaintiff would
be unable to do a job that required him
to do repetitive lifting, and that doing
work such as using a bush axe or shovel
would cause considerable pain.
22. Dr. Wheeler testified as follows
regarding plaintiff's ability to return
. . . My opinion is that he needs
guidance and training and he needs a
lighter job activity that would include,
you know, no lifting over, say, ten
pounds occasionally and the ability to
change position as necessary, no static
forward bending postures, limit reaching
postures, and I wouldn't want him
crawling, bending or squatting on a
frequent basis or even on an occasional
23. Plaintiff has been temporarily totally
disabled since 7 February 2000, the day
his employment was terminated.
These findings show plaintiff, although limited in the work he can
perform, is capable of performing some work. The Commission is
required to determine whether competent evidence exists to support
a finding of disability based on the presentation of: (2)
evidence that he is capable of some work, but has after a
reasonable effort been unsuccessful in his efforts to obtain
employment; [or] (3) evidence that he is capable of some work but
that it would be futile because of preexisting conditions . . . to
seek other employment. Id.
Here, the Commission made no findings regarding either of
these two factors. Plaintiff argues he presented evidence that he
sought employment, but was unsuccessful in obtaining a job. The
Commission entered no findings of fact on this evidence. Further,
if plaintiff satisfied his burden of proof to establish one of the
elements under Russell, the burden shifts to defendant to come
forward with evidence to show not only that suitable jobs areavailable, but also that the plaintiff is capable of getting one .
. . . Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441
S.E.2d 145, 149 (1994). Presuming without holding competent
evidence satisfies plaintiff's burden, the Commission also failed
to enter findings of fact regarding whether defendant satisfied its
burden of proof. Without proper findings under Russell, no
competent evidence supports the Commission's conclusion awarding
plaintiff's total disability. We remand to the Commission to make
findings of fact, based on competent evidence, to determine whether
plaintiff is totally disabled.
VI. Collateral Estoppel
 Defendant contends the Commission erred in failing to
address its argument that the issue of REMC's decision to terminate
plaintiff's employment had already been litigated and decided by
the North Carolina Employment Security Commission (ESC). We
In Roberts v. Wake Forest University, this Court ruled on a
similar argument. 55 N.C. App. 430, 436, 286 S.E.2d 120, 124,
disc. rev. denied, 305 N.C. 586, 292 S.E.2d 571 (1982). The
plaintiff in Roberts argued, the ruling of the Employment Security
Commission that plaintiff was entitled to unemployment benefits is
res judicata in this action, because an employee is disqualified
for benefits if he (1) left work voluntarily without good cause
attributable to the employer, or if he (2) was discharged for
misconduct connected with his work. G.S. 96-14(1) and 96-14(2).
Id. In response, this Court held, We find no merit in thisargument because the issue before the Commission and the issue
before the court in this action for breach of contract are not the
same. Too, the doctrine of res judicata is inapplicable to
adjudication by unemployment compensation agencies. Id. (citing
76 Am. Jur. 2d Unemployment Compensation § 93 (1975)).
In Goins v. Cone Mills Corp., this Court held the deceased
employee's wife was not estopped to litigate the issue of total
permanent disability because she was not a party to the claim for
the employee's lifetime benefits and was not in privity with a
party to that claim. 90 N.C. App. 90, 92-93, 367 S.E.2d 335, 336-
37, disc. rev. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).
Under the principle of collateral estoppel,
parties and parties in privity with them --
even in unrelated causes of action -- are
precluded from retrying fully litigated issues
that were decided in any prior determination
and were necessary to the prior
determination. King v. Grindstaff, 284 N.C.
348, 356, 200 S.E.2d 799, 805 (1973). A
companion doctrine to res judicata, which bars
every ground of recovery or defense which was
actually presented or which could have been
presented in the previous action, collateral
estoppel bars only those issues actually
decided which were necessary to the prior
finding or verdict. Id. Like res judicata,
collateral estoppel only applies if the prior
action involved the same parties or those in
privity with the parties and the same issues.
Id. In the context of collateral estoppel and
res judicata, the term privity indicates a
mutual or successive relationship to the same
property rights. Moore v. Young, 260 N.C.
654, 133 S.E.2d 510 (1963). An exception to
the general requirement of privity exists
where one not actually a party to the previous
action controlled the prior litigation and had
a proprietary interest in the judgment or in
the determination of a question of law or
facts on the same subject matter.
Id. In Goins, we distinguished between the property rights at
issue and reasoned the employee had previously filed a claim for
lifetime disability benefits, while the wife was pursuing a claim
for death benefits. 90 N.C. App. at 93-94, 367 S.E.2d at 337.
Although the determination of disability was common to both
actions, the wife was entitled to a separate determination and was
not collaterally estopped to litigate the issue of total permanent
disability. Id. at 93, 367 S.E.2d at 337.
On 14 July 2000, the ESC issued its Appeals Decision by
Appeals Referee Charles M. Brown, Jr., which disqualified plaintiff
from unemployment benefits because plaintiff had made threatening
remarks about other employees of the employer. The ESC concluded
that plaintiff was discharged for misconduct connected with his
work. Plaintiff did not appeal this decision.
Defendant argues this determination by the ESC's Appeals
Decision prevented re-litigation of the same issue before the
Commission, but fail to cite any cases or other authority where res
judicata or collateral estoppel were applied in workers'
compensation cases to support their argument. Although this
factual determination of plaintiff's misconduct is similar, the
different interests at stake, namely whether unemployment benefits
and compensation for disability should be awarded to plaintiff,
distinguish ESC's determination from the issue before the
Commission. This assignment of error is overruled.
VII. Findings of Fact Regarding Other Conditions
 Defendant argues the Commission erred by finding that
plaintiff's urological and psychological conditions are compensable
and the findings of fact regarding the compensability of these
conditions are not supported by competent evidence. We disagree.
A. Urological Condition
Defendant contends no evidence supports the Commission's
finding of fact which states:
Upon consideration of the testimony of Dr.
Wheeler, Dr. Dominick Carbone, and the record
as a whole, the greater weight of the evidence
establishes that plaintiff's impotence, blood
in urine, and problems with urination
including a burning sensation upon urination
and inability to control urination, were
caused by the accident on February 21, 1997.
In his deposition dated 5 April 2002,
questioned Dr. Wheeler, who testified as follows:
Q: In your opinion, is [plaintiff's pain from
the injury] more likely to have caused the
impotency than a pack a day or smoking habit
that [plaintiff] may have had for 20 years?
A: Again, I see patients with post-traumatic
injuries . . . and my opinion in regard to Mr.
Workman is that his cigarettes could or might
have caused his impotence and that his low
back pain could or might have contributed as
well to his impotence . . . .
Under our Supreme Court's holding in Holley v. ACTS, Inc., 357 N.C.
228, 581 S.E.2d 750 (2003), could or might testimony is
insufficient to establish medical causation in a workers'
compensation claim. Edmonds v. Fresenius Med. Care, 165 N.C. App.
811, 818, 600 S.E.2d 501, 506 (2004) (J. Steelman, dissenting),
rev'd per curiam, 359 N.C. 313, 608 S.E.2d 755 (2005). [O]nly an expert can give competent opinion
evidence as to the cause of the injury.
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. The 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.
Holley, 357 N.C. at 232, 581 S.E.2d at 753 (internal citations and
The following month after deciding Edmonds, our Supreme Court
in Alexander v. Wal-Mart Stores, Inc.,
reiterated the role of the
Court of Appeals 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.'
166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004) (J. Hudson,
(quoting Deese v. Champion Int'l Corp., 352 N.C. 109,
116, 530 S.E.2d 549, 553 (2000)), rev'd per curiam,
359 N.C. 403,
610 S.E.2d 374 (2005)
. Our Supreme Court reversed and adopted the
dissenting opinion in Alexander, holding the greater weight of the
evidence standard was met through a medical expert's testimony
establish[ing] that it was 'likely' that [plaintiff's injury]
occurred during the accident . . . . 166 N.C. App. at 573, 603
S.E.2d at 558 (emphasis supplied)
Attached to Dr. Wheeler's deposition as Exhibit 4 is a
treatment note dated 1 February 2001, wherein Dr. Wheeler stated
that plaintiff's impotence is, more likely than not, related to
his injury. When later asked if plaintiff's impotence was
caused by back pain resulting from plaintiff's fall, Dr. Wheeler
testified that the work-related injuries could or might have . .
. contributed to plaintiff's impotence.
Our Supreme Court has held that the entirety of causation
evidence must meet the reasonable degree of medical certainty
standard necessary to establish a causal link between plaintiff's
accident and their injury. Holley, 357 N.C. at 234, 581 S.E.2d. at
754. Although medical certainty is not required, an expert's
'speculation' is insufficient to establish causation. Id.
The doctor in Alexander expressed her causation opinion
repeatedly and without equivocation that plaintiff's injury
likely . . . occurred during the accident. 166 N.C. App. at 573,
603 S.E.2d at 558. While plaintiff's expert did not testify
plaintiff's impotence likely . . . occurred during the work-
related accident, his treatment note opined that plaintiff's
impotence is, more likely than not, related to his injury. Id.
Although Dr. Wheeler's later testimony used the terms 'could' or
'might,' Holley, 357 N.C. at 232, 581 S.E.2d. at 753,
and was not
without equivocation as shown by Dr. Wheeler's conflicting
testimony and his medical notes, the Commission is the sole judge
of Dr. Wheeler's credibility, Alexander, 166 N.C. App. at 573, 603
S.E.2d at 558
Credibility issues caused by any variance in Dr.
Wheeler's treatment notes and his later testimony was for the
Commission to decide.
Harrell, 45 N.C. App. at 205, 262 S.E.2d at
835 ([T]he Commission is the sole judge of the credibility ofwitnesses and may believe all or a part or none of any witness's
testimony . . . .).
In both Edmonds and Alexander, our Supreme Court reaffirms the
holding in Holley that mere possibility has never been legally
competent to prove causation. Although medical certainty is not
required, an expert's 'speculation' is insufficient to establish
causation. Holley, 357 N.C. at 234, 581 S.E.2d at 754 (internal
citation omitted); Edmonds, 165 N.C. App. at 818, 600 S.E.2d. at
506; Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558. In
reversing the Commission, the Holley Court noted, plaintiff's
doctors were unable to express an opinion to any degree of medical
certainty as to the cause of plaintiff's [injury]. Id.
Plaintiff's expert evidence of causation exceeded
speculation. Dr. Wheeler's testimony of could or might,
together with his impression recorded in his treatment notes that
plaintiff's injury more likely than not [was] related to his
injury is competent evidence to sustain the Commission's
conclusion of law that plaintiff's impotence and urination
conditions were caused by the accident. Id. at 234, 581 S.E.2d at
754; Edmonds, 165 N.C. App. at 818, 600 S.E.2d. at 506; Alexander,
166 N.C. App. at 573, 603 S.E.2d at 558. The Commission's finding
of fact is supported by competent evidence in the record. Its
conclusion of law awarding compensation for plaintiff's urological
condition is affirmed.
B. Psychological Condition
 Defendant contends the Commission erred by finding: Dr. Brian A. Simpson, a psychologist,
testified that there is a very strong
linkage between plaintiff's development of
depression, the accident on February 21, 1997,
and the other events that precipitated, such
as chronic pain, such as functional
limitations, such as occupation loss . . . .
Dr. Simpson further testified[,] it would be
very improbable that plaintiff's depression
began only after he was terminated, and that
in his opinion plaintiff's termination
aggravated his depression, which pre-existed
the termination from work. The greater
weight of the evidence establishes that
plaintiff's depression is causally related to
the accident on February 21, 1997.
Dr. Simpson's deposition expert testimony supports this finding of
fact. Dr. Simpson testified, that in his expert opinion, a very
strong linkage exists between the injury and plaintiff's
development of depression. He also opined, I think it would be
very improbable that [plaintiff] did not suffer depression until
his termination in February of 2000 and then, as a result of that
termination, develop depression. . . . It is my opinion though
that the termination of his employment did aggravate his
depression. Further, Dr. Simpson testified:
It was my opinion though and based upon the
sequence of events that occurred from the time
of his injury that _ that the development of
depression pre-existed the termination from
work and pre-existed the marriage rupture, but
did develop subsequent to and related to his
injury and chronic pain and the other events
that occurred following that
. . . .
I would submit that in reconstructing the
sequence of events that his falling as a work
injury and the medical complications of that,
that it would be reasonable to believe that
depression then developed rather rapidly
following that injury. Dr. Simpson's testimony of a very strong linkage regarding
the causation of plaintiff's psychological condition to his
accident is sufficient to take the case out of the realm of
conjecture and remote possibility . . . . Holley, 357 N.C. at
232, 581 S.E.2d at 753 (quoting Gilmore v. Hoke Cty. Bd. of Educ.,
222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). Competent evidence
supports the Commission's finding of fact. This assignment of
error is overruled.
VIII. Medical Expenses
 Defendant argues the Commission erred by requiring them to
pay all medical expenses, not just related medical expenses, on
behalf of plaintiff. We disagree.
Defendant argues the Commission's opinion and award is overly
broad by ordering defendant to pay for a comprehensive evaluation
of all of plaintiff's medical conditions and then pay for any
treatment recommended by it. In support of this assignment of
error, defendant fails to cite any authority for this proposition
other than their cite to N.C. Gen. Stat. § 97(2) and the broad
assertion that the Order violates the Workers' Compensation Act.
N.C. Gen. Stat. § 97-2, which we presume is the statute defendant
attempts to cite as authority, is the section entitled
Definitions of the Workers' Compensation Act. Defendant fails to
argue how this statute applies to their assignment of error or
which portions of this statute are applicable. Under Rule 28 of
the North Carolina Rules of Appellate Procedure, [a]ssignments of
error . . . in support of which no reason or argument is stated orauthority cited, will be taken as abandoned. N.C.R. App. P.
28(b)(6) (2004); see also Bass, 166 N.C. App. at 612, 603 S.E.2d at
388. We do not reach the merit of this assignment of error and it
The Commission did not err in finding defendant failed to
satisfy their burden under Seagraves
to show plaintiff was
terminated for misconduct and not as a result of his compensable
injury. The Commission did not err in considering attorney
Cobourn's affidavit, despite the fact defendant did not have an
opportunity to cross-examine him. The affidavit contained no
significant new evidence and plaintiff and his wife had testified
to those facts. Cummins
, 149 N.C. App. at 185, 560 S.E.2d at 372.
Collateral estoppel does not bar plaintiff's claim for workers'
compensation before the Commission even though the ESC reached a
different disposition on plaintiff's unemployment benefits.
Competent evidence in the record supports the Commission's finding
of fact that plaintiff's injury at work caused his psychological
Competent evidence in the record supports the Commission's
finding of fact that plaintiff's impotence and urological condition
were caused by his accident on 21 February 1997.
The Commission failed to make adequate findings of fact to
show plaintiff proved his total disability or is capable of some
, 160 N.C. App. at 577, 586 S.E.2d at 556. We
remand for entry of findings of fact on this issue. The opinion and award is affirmed in part and remanded for
further findings of fact on plaintiff's total disability.
Affirmed in part and Remanded.
Judge MCGEE concurs.
Judge WYNN concurs in the result only by separate opinion.
WYNN, Judge concurring with separate opinion.
I respectfully concur in the result from the majority's
decision to affirm the Commission's finding of fact on causation of
Mr. Workman's urological condition. Following our Supreme Court's
decision in Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563,
571, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting), rev'd per
curiam, 359 N.C. 403, 610 S.E.2d 374 (2005), since there was
competent evidence that Mr. Workman's urological condition was
more likely than not caused by his work-place injury, and all of
the evidence supports a conclusion of total disability, I would
affirm the Commission's Opinion and Award.
(See footnote 1)
Furthermore, while it
is appropriate to remand for entry of findings of fact on the issue
of total disability, under the facts of this case, such a remand is
unnecessary and does not promote judicial economy.
Causation under the Workers Compensation Act
In North Carolina, the underlying purpose of the North
Carolina Workers' Compensation Act is to provide compensation to
workers whose earning capacity is diminished or destroyed by injury
arising from their employment. McRae v. Toastmaster, Inc.
N.C. 488, 493, 597 S.E.2d 695, 699 (2004). A longstanding rule of
construction is that the Workers' Compensation Act should be
liberally construed so that the benefits under the Act will not be
denied by narrow, technical, or strict interpretation. Hollman v.
City of Raleigh, Pub. Util. Dep't
, 273 N.C. 240, 252, 159 S.E.2d
874, 882 (1968); Cates v. Hunt Constr. Co., Inc.
, 267 N.C. 560,
563, 148 S.E.2d 604, 607 (1966).
After thoroughly reviewing the depositions and medical notes
of Dr. Anthony Wheeler and Dr. Dominick Carbone, I conclude that
there is competent evidence to support the Commission's finding of
fact. The finding states in part, [u]pon consideration of the
testimony of Dr. Wheeler, Dr. Dominick Carbone, and the record as
a whole, the greater weight of the evidence establishes that
plaintiff's impotence, . . . [was] caused by the accident on
February 21, 1997.
Where, as here, medical opinion testimony is required,
medical certainty is not required, [but] an expert's 'speculation'
is insufficient to establish causation. Holley v. ACTS, Inc.
N.C. 228, 234, 581 S.E.2d 750, 754 (2003). In the instant case,
there was competent evidence to allow the Commission to determine
that the accident at work caused Plaintiff's injury. And underAdams
, even in determining causation, the Commission's finding of
fact must stand if supported by any competent evidence. Adams v.
, 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation
omitted). Indeed, the record shows that Dr. Wheeler stated that it
was more likely than not that the impotence was related to Mr.
Workman's injury. This is more than mere speculation, it is a
preponderance of the evidence; thus, it is competent evidence of
causation. See Holley
, 357 N.C. at 232-33, 581 S.E.2d at 753;
Phillips v. U.S. Air, Inc.
, 120 N.C. App. 538, 541, 463 S.E.2d 259,
261 (1995) (the plaintiff must prove causation by a greater
weight of the evidence or a preponderance of the evidence),
, 343 N.C. 302, 469 S.E.2d 552 (1996). Therefore, there is
competent evidence to support the finding of fact.
I write separately to further point out that under the
standard of review the record need not show that all
evidence shows the doctor expressed his or her causation opinion
without equivocation. See Alexander
, 166 N.C. App. at 573, 603
S.E.2d at 558. Under our standard of review, our Supreme Court has
stated many times that the role of this Court 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 conclusions of law. Deese v. Champion
, 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
N.C. at 681, 509 S.E.2d at 414 (citation omitted). TheCommission's findings of fact are conclusive on appeal when
supported by competent evidence, even if there is evidence to
support a contrary finding, Morrison v. Burlington Indus.
, 304 N.C.
1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal
only when there is a complete lack of competent evidence to
support them[.] Young v. Hickory Bus. Furniture
, 353 N.C. 227,
230, 538 S.E.2d 912, 914 (2000). 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. Deese
, 352 N.C. at 115, 530 S.E.2d
, our Supreme Court reiterated the role of this
Court by adopting Judge Hudson's dissent stating, I do not believe
it is the role of this Court to comb through the testimony and view
it in the light most favorable to the defendant . . . this Court's
role is not to engage in such a weighing of the evidence.
, 166 N.C. App. at 573, 603 S.E.2d at 558. The majority
states that, The doctor in Alexander
expressed her causation
opinion 'repeatedly and without equivocation' . . .. But to be
sure, the complete statement from Alexander
was that much
evidence reveals that the doctor expressed her opinions repeatedly
and without equivocation. Id
. (emphasis supplied). Thus,
does not require that all
of the evidence must show that
expressed his opinion without equivocation.
Here, where the records of Dr. Wheeler support the
Commission's finding, when viewed in light of the standard ofreview, the finding should be upheld. See Alexander
, 166 N.C. App.
at 573, 603 S.E.2d at 558; Adams
, 349 N.C. at 681, 509 S.E.2d at
414 (holding that the decision concerning what weight to give
expert evidence is a duty for the Commission and not this Court).
As the record shows competent testimony on causation by Dr.
Wheeler that is not speculative, but expresses a competent expert
opinion, I would conclude that under our caselaw the Commission's
finding is supported by competent evidence. Accordingly, the
opinion and award of the Commission should be affirmed.
Remand for Findings on Disability
Ordinarily, when an agency fails to make a material finding
of fact or resolve a material conflict in the evidence, the case
must be remanded to the agency for a proper finding. N.C. Dep't
of Env't & Natural Res. v. Carroll
, 358 N.C. 649, 674, 599 S.E.2d
888, 904 (2004) (citation omitted).
But further proceedings are
neither necessary nor advisable when all evidence in the record
points to only one conclusion. Id
. at 675, 599 S.E.2d at 904. See
State v. Daughtry
, 340 N.C. 488, 514, 459 S.E.2d 747, 760 (1995)
(trial court erred by failing to make a finding of fact that a
statement possessed the requisite trustworthiness, however, the
record sustained the trial court's conclusion making the error
Because the evidence in this matter pointed to only one
conclusion, and Defendant offered no evidence in rebuttal, I would
find it unnecessary to remand this matter to the Commission for
administrative entry of the proper findings. The Commission is required to determine whether competent
evidence exists to support a finding of disability based on the
presentation of evidence that he is capable of some work, but has
after a reasonable effort been unsuccessful in his efforts to
obtain employment; or evidence that he is capable of some work but
that it would be futile because of preexisting conditions to seek
other employment. Russell v. Lowes Prod. Distrib.
, 108 N.C. App.
762, 765, 425 S.E.2d 454, 457 (1993). Once the plaintiff satisfies
his burden of proof to establish one of the elements under Russell
the burden shifts to the defendant to come forward with evidence
to show not only that suitable jobs are available, but also that
the plaintiff is capable of getting one . . .. Burwell v. Winn-
Dixie Raleigh, Inc.
, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149
(1994) (emphasis omitted).
While, the Commission failed to make findings of fact on this
evidence, the record shows, and the majority agrees, that
Plaintiff presented evidence that he sought employment but was
unsuccessful in obtaining a job. However, there is no evidence in
the record that Defendants rebutted Plaintiff's evidence.
Like in Carroll
, further proceedings are unnecessary as the
record points to only one conclusion: That Plaintiff sought
employment but was unable to obtain a job and Defendants failed to
rebut Plaintiff's evidence. Therefore, it is unnecessary to remand
to the Commission for further findings. Carroll
, 358 N.C. at 675,
599 S.E.2d at 904.
I agree with the majority's holding in that it finds that
the Commission did not err in finding and concluding that the
employer's decision to terminate Plaintiff was not for misconduct
or fault; the Commission did not err in considering Cobourn's
affidavit; collateral estoppel does not bar Plaintiff's claim for
workers' compensation; and competent evidence in the record
supports the Commission's finding of fact that Plaintiff's injury
at work caused his psychological condition.
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