Workers' Compensation--causation--medical history and testimony--credibility
There was competent evidence to support the Industrial Commission's finding of
causation in a workers' compensation case where the finding was that plaintiff first injured his
hamstring, then suffered a herniated disk. Although defendant challenged the testimony of
plaintiff's doctor as the product of an incomplete picture of plaintiff's history, the doctor was
entitled to credit his patient's account of his own symptoms, and the Commission found that
plaintiff's testimony about his medical history was credible.
Maynard & Harris, P.L.L.C., by Celeste M. Harris, for
plaintiff appellee.
Robinson & Lawing, L.L.P., by Jolinda J. Babcock, for
defendant appellants.
McCULLOUGH, Judge.
Defendant appeals from an opinion and award of the North
Carolina Industrial Commission (“the Commission”), awarding
temporary total disability benefits to plaintiff under the Workers'
Compensation Act.
The evidence of record and the Commission's findings of fact
reflect that plaintiff began working for defendant Lowe's Home
Improvement on 5 May 2001 as a receiver in its Kernersville, North
Carolina store. Plaintiff's job duties included unloading
shipments of major appliances, windows, doors, and carpeting, as
well as stocking this merchandise on the store's sales floor. Asone of three employees responsible for unloading “[t]wenty trailer
loads of merchandise” each day, plaintiff “went home on many
occasions with a backache and other muscle soreness.” Plaintiff
also had “some residual” pain in his lower back and left leg
resulting from a motor vehicle accident in May of 1988.
While lifting a large roll of carpet at work on 19 October
2001, plaintiff felt a pull in his lower back and left leg. He
experienced soreness and cramping in the back of his leg above the
knee and informed his supervisor about the incident but continued
working. Plaintiff sought treatment at Piedmont Triad Family
Medicine (“Piedmont Triad”) on 19 October 2001, complaining of pain
in the outside and back of his left thigh. Based upon the
localized nature of plaintiff's pain, the tightness in the back of
his leg, and the absence of pain in his lower back during straight
leg raise test, Physician Assistant W. Scott Boyd diagnosed a
strained left bicep femoralis muscle, or hamstring. He recommended
treatment with moist heat, an anti-inflammatory and a muscle
relaxant. Plaintiff returned to Piedmont Triad on 22 October 2001,
reporting continued localized pain in his left hamstring. Boyd
again found that plaintiff had tightness and spasming in the back
of his leg, but retained full range of motion in his left hip and
his back. Boyd continued plaintiff on medication for the strained
muscle but noted the possibility of an “underlying sciatic nerve
problem” originating in his lumbar spine. Piedmont Triad's
Physician Assistant Betsy Brais examined plaintiff for his
persistent symptoms on 31 October 2001. Plaintiff told Brais thathis hamstring “really bothers him when he gets up in the morning,”
but improved “once he starts walking around for two hours or so.”
He further reported “no numbness or tingling radiating down the
backs of his legs.” Brais diagnosed a left hamstring muscle spasm.
On the afternoon of 9 November 2001, defendant was unloading
a shipment of house windows at work when he felt a pop in his
“lower left hip area.” Accustomed to a certain amount of soreness
from the demands of his job, plaintiff finished working for the day
and took a hot shower when he got home. He went to bed early but
was awakened at 4:00 a.m. by “radiating sharp stabbing burning
pain” in his left hip and groin. Plaintiff testified that “the
problem after November 9th was completely different” than what he
experienced during October. He contrasted the two injuries as
follows:
Well, it was like a cramp in October. And the
pain in November was sharp stabbing -- sharp
stabbing burning pain radiating down my leg.
And that's the most pain I've ever had . . . ,
and it just kept continuously, continuously
hurting . . . and not going away.
Plaintiff described the pain he experienced after 9 November 2001
as “ten times as much pain . . . as I've ever had in my leg or
anything else at any[]time.”
Later that morning, plaintiff went to Lowe's, filled out an
accident report and spoke to his manager, who sent him to PrimeCare
of Kernersville for treatment. A physician assistant diagnosed
plaintiff with a hamstring injury and restricted him to light duty
work. Plaintiff was released by Prime Care to return to his normalwork duties on 20 November 2001, but was unable to perform them and
stopped working altogether on 28 November 2001. Because his
condition had not improved, plaintiff sought a referral to a
specialist. Orthopaedist Dr. Christopher J. Bashore of High Point
Orthopaedic and Sports Medicine examined plaintiff on 14 December
2001. Dr. Bashore ordered x-rays of plaintiff's lower back, which
revealed a loss of normal lumbar lordosis. Plaintiff also
exhibited, inter alia, a reduced range of motion when bending at
the waist and “positive straight leg raise at 35 degrees on left
with pain that radiates past the knee.” Diagnosing low back pain
with radicular leg pain and a possible herniated nucleus pulposis,
Dr. Bashore ordered a lumbar MRI exam. The MRI revealed “a left
lateral disk bulge at L4-5 with impingement on the L4 nerve root,
and a centralized disk bulge at L5-S1 with posterior displacement
of the S1 nerve root on the left[,]” consistent with plaintiff's
symptoms. On 7 January 2002, Dr. Bashore referred plaintiff to
neurosurgeon Dr. Russell H. Amundson of Johnson Neurological
Associates.
Dr. Amundson examined plaintiff on 24 January 2002, and made
an initial diagnosis of “lumbar disk bulge[.]” A review of
plaintiff's x-rays and MRI confirmed the presence of “a significant
bulging disk on the left at [L]4-5[.]” After further tests, Dr.
Amundson prescribed an initial treatment regimen of medication and
physical therapy. When physical therapy proved unsuccessful, Dr.
Amundson recommended surgery and performed a left lumbar
microdiskectomy at L4-5 on 21 May 2002. Plaintiff applied for workers' compensation benefits for the
herniated disk, which he alleged was caused by the accident at work
on 9 November 2001. Deputy Commissioner W. Bain Jones, Jr., held
a hearing on the contested claim on 29 January 2003. In an opinion
and award filed 25 June 2003, the Deputy Commissioner concluded
that plaintiff's herniated disk was a “compensable injury by
accident arising out of and in the course of his employment with
defendant-employer” on 9 November 2001. He awarded plaintiff
temporary total disability benefits from 28 November 2001 until
further order of the Commission.
Defendant appealed to the Full Commission, which affirmed the
Deputy Commissioner's award with modifications. In finding a
causal relationship between plaintiff's 9 November 2001 accident
while unloading windows for defendant and his herniated disk, the
Commission relied upon Dr. Amundson's deposition testimony as well
as plaintiff's hearing testimony in which he recounted the nature
and course of his symptoms. In pertinent part, the Commission
found as follows:
22. . . . Dr. Amundson opined, and the
Full Commission finds as fact, that the
November 9, 2001, incident when plaintiff was
lifting the wooden windows was a proximate
cause of the lumbar disc rupture for which he
performed surgery. Dr. Amundson indicated the
distinct symptoms relayed by plaintiff
following November 9, 2001, were not present
prior to that date. Prior to November 9,
2001, plaintiff was suffering from a muscle
strain and not a ruptured disc.
23. Dr. Amundson . . . gave a lengthy
explanation of why he believes (1) plaintiff
had pre-existing degenerative changes in hisspine; (2) plaintiff was being treated for a
hamstring or muscular strain prior to November
9, 2001; and (3) plaintiff's actions in
lifting windows was a sufficient incident to
cause plaintiff's disk herniation. The Full
Commission finds as fact the three foregoing
beliefs of Dr. Amundson.
. . . .
25. After reviewing the plaintiff's
prior medical history, including the histories
given by plaintiff to his family physician and
to PrimeCare, Dr. Amundson concluded, and the
Full Commission finds as fact, that the lumbar
disc rupture for which he performed surgery
was a proximate result of the November 9,
2001, incident when plaintiff was lifting
wooden windows. Dr. Amundson explained that
leg pain is a very gross description of a
symptom and can confuse the practitioner, but
in the end, plaintiff's overall presentation
of symptoms to him on January 24, 2002, were
not the same as the presentation of symptoms
relayed to Triad Family Medicine in October
2001. Dr. Amundson indicated that the
distinct symptoms relayed by plaintiff
following November 9, 2001, were not present
prior to that date. Prior to November 9,
2001, plaintiff was most likely suffering from
a muscle strain. Dr. Amundson's testimony is
supported by the evidence indicating that (1)
plaintiff's symptoms were relieved by activity
at work; (2) the burning and tightness in the
posterior part of his hamstring got worse when
he was resting; (3) plaintiff had a negative
straight leg raise; and (4) plaintiff had full
range of motion in his back. When Dr.
Amundson examined plaintiff on January 24,
2002, plaintiff had a limited range of motion
of his back, radiating leg pain, and could not
get relief from his symptoms, particularly
when active.
Based upon its findings, the Commission concluded that plaintiff
was entitled to temporary total disability benefits of $254.71 per
week “from 28 November 2001, and continuing until he is able to
earn wages or further order of the Industrial Commission.” Defendant filed timely notice of appeal.
Defendant argues on appeal that “there is no competent
evidence to support a finding that plaintiff's back injury was
caused by the alleged November 9, 2001 incident.” Defendant
challenges Dr. Amundson's opinion testimony as the product of an
incomplete picture of plaintiff's medical history and as based
solely on the temporal relationship between the 9 November 2001
incident and the onset of plaintiff's symptoms at some point
thereafter. Defendant further faults the Commission for placing
the burden upon it to disprove causation.
The scope of our review of a workers' compensation award is
limited to a determination of “(1) whether the Commission's
findings of fact are supported by any competent evidence in the
record; and (2) whether the Commission's findings justify its
conclusions of law.” Goff v. Foster Forbes Glass Div., 140 N.C.
App. 130, 132-33, 535 S.E.2d 602, 604 (2000). The appellate court
“'does not have the right to weigh the evidence and decide the
issue on the basis of its weight. 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)), reh'g denied,
350 N.C. 108, 532 S.E.2d 522 (1999). Moreover, we must defer to
the Commission as the “sole judge of the weight and credibility” of
the parties' evidence. Deese v. Champion Int'l Corp., 352 N.C.
109, 116, 530 S.E.2d 549, 553 (2000). In order to establish that a disabling injury is compensable
within the workers' compensation system, a plaintiff must prove
that a work-related accident was “a causal factor” of the injury.
Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 752
(2003). Our courts have further defined a workers' compensation
plaintiff's evidentiary burden by holding that, “[w]hen dealing
with a complicated medical question . . ., expert medical testimony
is necessary to provide a proper foundation for the Commission's
findings.” Id. at 234, 581 S.E.2d at 754. Inasmuch as “'[o]ne of
the most difficult problems in legal medicine is the determination
of the relationship between an injury or a specific episode and
rupture of the intervertebral disc[,]'” the nature of plaintiff's
claim required him to adduce expert medical testimony regarding the
etiology of his disk injury. Gillikin v. Burbage, 263 N.C. 317,
325, 139 S.E.2d 753, 760 (1965) (citation omitted).
To qualify as “competent evidence” of a causal relationship
between a work-related accident and a disabling injury, the
expert's testimony “'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 (quoting
Gilmore v. Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d
292, 296 (1942). Expert opinion “based merely upon speculation and
conjecture” does not constitute competent evidence of causation in
cases involving complex medical issues beyond the ken of
laypersons. Faison v. Allen Canning Co., 163 N.C. App. 755, 758,594 S.E.2d 446, 449 (2004) (quoting Holley, 357 N.C. at 232, 581
S.E.2d at 753).
After a thorough review of the deposition transcripts, hearing
testimony, and other evidence of record, we conclude the
Commission's finding of causation is supported by competent
evidence. The Commission's findings of fact accurately reflect the
tenor of Dr. Amundson's testimony. Dr. Amundson opined to “a
reasonable degree of medical certainty” that plaintiff's 9 November
2001 accident caused his herniated disk. He also offered a
deliberative, three-part analysis establishing the basis of his
opinion. Cf. Edmonds v. Fresenius Med. Care, 165 N.C. App. 811,
817, 600 S.E.2d 501, 505 (2004) (upholding finding of causation
where the “evidence tending to show that [the expert's] testimony
was the product of a reasoned medical analysis as opposed to mere
speculation”).
Dr. Amundson first posited, based upon plaintiff's medical
records through October of 2001, that plaintiff “may well have had
some degenerative disk changes” prior to 9 November 2001. He noted
that plaintiff, “from [an examination on 19 October 2001], states
that he has some history of some low back pain dating back -- as
far as 1990.” He next evaluated the symptoms plaintiff presented
at Piedmont Triad in October of 2001, which tended to show “a
hamstring or a muscular strain” and further tended to rule out “a
nerve root compression problem” or “a disk problem.” Dr. Amundson
contrasted these reported symptoms of localized muscular strain up
through 31 October 2001, with the symptoms plaintiff presented tohim after 9 November 2001, as follows:
When I saw him, you know, he had
limitation in range of motion of his back; he
had radiating leg pain; he had sensory
alteration. You know, those things go along
more with a disk abnormality, or at least the
lumbar spine abnormality and a nerve root
compression problem.
In the third stage of his analysis, Dr. Amundson assessed the
potential causal relationship between plaintiff's 9 November 2001
incident at work and his herniated disk as follows:
The patient tells me that, you know, he had
presented for work, he developed back and leg
pain, thereafter certainly lifting windows,
twisting motion is a sufficient cause to cause
a disk herniation. And the disk herniation
would account for the patient's radiating leg
pain and the sensory abnormality that he had.
Asked to clarify whether he had “an opinion to a reasonable degree
of medical certainty as to whether the November 9th, 2001 incident,
described to you by [plaintiff], caused or significantly aggravated
any prior condition to the extent that he required the surgery, and
other treatment you provided to him[,]” Dr. Amundson responded:
I think I came close to answering that
question earlier when I said, you know, I'm
really relying on what the patient tells me.
And I think the description of lifting windows
is a sufficient cause to injure a disk, which
will result in a disk herniation. So within --
within that context I would say yes.
He further affirmed that nothing contained in plaintiff's medical
records from Piedmont Triad “eliminates or contradicts the opinion
that I gave[.]”
Nor was Dr. Amundson's opinion affected by his review of
plaintiff's medical records following the 9 November 2001 incident. Presented by defendant's counsel with plaintiff's records from
PrimeCare, Dr. Amundson testified, “So, if I wanted to put all of
this together in a sensible manner, I'd say, you know, he had a
pulled muscle back in October. He lifted the windows [on 9
November 2001]. He aggravated the preexisting hamstring injury,
and caused his disk injury.” When pressed by defendant's counsel,
Dr. Amundson reiterated his position, as follows:
Q. . . . [H]ow can you causally relate the
herniated disk to November 9 of 2001[?]
. . . .
A. . . . I think if I want to put all of this
together in a sensible way, . . . I would say
he had a preexisting muscular problem. He
describes injuring himself. The first thing
that shows is the aggravation of that
preexisting muscle injury. And at least by
the time I see him, he now has persistent
symptoms, and he's developed radiculopathy.
You know, very often the disk herniation
occurs and it takes a while for the
radiculopathy to show itself. This may have
been what caught his attention first.
While defendant dismisses Dr. Amundson's reasoning due to the
similarity of the symptoms recorded at PrimeCare to those displayed
by plaintiff at Piedmont Triad in October of 2001, we note in
plaintiff's hearing testimony that his records from PrimeCare did
not accurately reflect the type of pain he experienced after 9
November 2001, or his lack of improvement during the course of his
treatment at PrimeCare. The Commission's opinion and award
includes a finding of fact that plaintiff's testimony regarding his
medical history was credible. The Commission's credibility
determination is unreviewable and binding on appeal. Likewise, Dr.Amundson was entitled to credit his patient's account of his own
pain symptoms in formulating his expert opinion.
Having found competent evidence to support the Commission's
finding of causation, we affirm its award of benefits to plaintiff.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
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