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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.
NAOMI SINGLETARY, Employee, Plaintiff, v. NORTH CAROLINA BAPTIST
HOSPITAL, Employer, SELF-INSURED, Defendant
Filed: 18 October 2005
1. Workers' Compensation_disability_extent_sufficiency of evidence
A workers' compensation plaintiff failed to prove disability after 2 May 2002 where her
doctor wrote a note excusing her from work until 2 May, but no physician instructed her to
remain out of work thereafter.
2. Workers' Compensation_disability_presumption of continuing_same award
A disability finding did not entitle a workers' compensation plaintiff to a presumption of
continuing disability in the same award. Showing the existence of a disability did not relieve her
from proving the extent of the disability.
3. Workers' Compensation_denial of claim_reasons valid and sufficiently detailed
Defendant provided valid reasons and sufficient details for denying a workers'
compensation claim where defendant was concerned about whether plaintiff was being honest
about her condition, and sought to challenge whether plaintiff had developed fibromyalgia, and
whether that condition was linked to plaintiff's accident at work.
4. Workers' Compensation_defense of claim_reasonable
Defendant-hospital's defense of a workers' compensation claim was reasonable, and the
Industrial Commission did not abuse its discretion by not assessing sanctions against the
5. Workers' Compensation_causation_temporal relationship between accident and
The Industrial Commission's finding of causation was supported by competent record
evidence where the doctor's opinion was formed by the temporal relation between the accident at
work and the injury (there was no problem before the injury and there was a problem afterwards),
but he also considered, tested for, and excluded other causes of her condition.
6. Workers' Compensation_disability_extent_evidence
There was competent evidence supporting the extent of a workers' compensation
disability through 2 May 2002 where a doctor determined that plaintiff was unable to work and
wrote a note excusing her from work until 2 May 2002.
Appeal by plaintiff and defendant from an opinion and award
filed 11 June 2004 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 15 June 2005.
Jay Gervasi, P.A., by Jay A. Gervasi, Jr., for plaintiff
Womble Carlyle Sandridge & Rice, P.L.L.C., by Philip J. Mohr,
for defendant appellant-appellee.
Both parties appeal from an opinion and award of the North
Carolina Industrial Commission (the Commission) granting workers'
compensation benefits to plaintiff Naomi Singletary (Singletary)
for fibromyalgia arising from an injury sustained during her
employment with defendant North Carolina Baptist Hospital (the
Hospital). On appeal, Singletary contends that the award is
insufficient, and the Hospital contends that no award should have
been made at all. With respect to both appeals, we affirm.
On 7 October 2001, Singletary was working at defendant
Hospital as a certified nursing assistant. While Singletary and a
registered nurse were cleaning a very heavy patient, the registered
nurse lost her grip on the patient, who fell onto Singletary's
right arm and shoulder. Singletary felt a pop and immediately
experienced pain in her back. Within a few hours of the incident,
she sought treatment at the Hospital's emergency room. Singletary
was diagnosed as having low back pain and instructed to return to
work at light duty for the next three days.
On 10 October 2001, Singletary visited the Hospital's employee
health services department for back pain. She was diagnosed with
cervical and lumbar strain and spasm, was told not to return to
work until 15 October, and was given a forty-pound lifting
restriction. On 15 October 2001, Singletary returned to employee
health services with complaints of back pain. She was permitted to
remain out of work until 22 October. On 24 October 2001,
Singletary returned to employee health services and reported that
she had attempted to return to light duty two days earlier but was
unable to work because of pain. Singletary was kept out of work
and sent to physical therapy.
As of 16 November 2001, Singletary had shown little
improvement, so employee health services referred her to an
orthopedic specialist. A physician's assistant at the Hospital's
orthopedics department diagnosed Singletary with mechanical low
back pain and referred her to Dr. Robert Irwin. Following anexamination on 17 January 2002, Dr. Irwin diagnosed Singletary as
having fibromyalgia and determined that she was not fit for any
duty. Dr. Irwin drafted a note excusing Singletary from work
until 2 May 2002. In a deposition submitted to the Commission, Dr.
Irwin related Singletary's fibromyalgia to the 7 October 2001
incident at work.
Prior to the time when Singletary sought treatment from Dr.
Irwin, the Hospital had been covering her medical expenses and
compensating her for the time that she was excused from work.
However, on 3 December 2001, the Hospital filed a Form 61 Denial
of Workers' Compensation Claim, pursuant to which the Hospital
ceased paying compensation and medical benefits to Singletary.
Pursuant to this filing, the Hospital declined to pay medical bills
incurred by Singletary after her 17 January 2002 appointment with
Dr. Irwin, and Singletary was unable to receive further treatment
by Dr. Irwin.
In an opinion and award filed 11 June 2004, the Commission
determined that Singletary had sustained an injury by accident
arising out of and in the course of her employment which caused or
aggravated her fibromyalgia. The Hospital was ordered to pay
temporary total disability benefits to Singletary from 7 October
2001 until 2 May 2002 and to pay past and future medical expenses
related to her injury. From this opinion and award, both parties
We begin with Singletary's appeal. Singletary argues that the
Commission erred by (I) determining that she failed to prove the
existence of a disability, as the term is defined by the Workers'
Compensation Act, after 2 May 2002, (II) failing to apply a
presumption of ongoing disability, (III) determining that the
Hospital had taken sufficient action to deny the compensability of
her claim, and (IV) determining that the Hospital's defense of her
claim was reasonable and by failing to assess sanctions.
 We first address Singletary's argument that the Commission
erred by finding and concluding that she had failed to prove that
she was under a disability after 2 May 2002. This contention lacks
Section 97-2(9) of the North Carolina General Statutes defines
a disability to mean incapacity because of injury to earn the
wages which the employee was receiving at the time of injury in the
same or any other employment. N.C. Gen. Stat. § 97-2(9) (2003).
[A] claimant ordinarily has the burden of proving both the
existence of [a] disability and its degree. Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). This
Court must affirm the Commission's disability determination if (1)
its findings are supported by competent record evidence and (2) its
conclusions are supported by findings of fact and applicable law.
See Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478,
480 (1997) (noting this Court's standard of review). In the instant case, Dr. Irwin wrote a note excusing
Singletary from work until 2 May 2002, and neither Dr. Irwin nor
any other physician instructed her to remain out of work
thereafter. Furthermore, the Commission was not required to find
as credible any evidence that she was unable to work after 2 May
2002. See Effingham v. Kroger Co., 149 N.C. App. 105, 109-10, 561
S.E.2d 287, 291 (2002) ([T]he Commission is the sole judge of the
credibility of the witnesses and the weight accorded to their
testimony.). As such, we are unpersuaded that the Commission
erred by finding and concluding that Singletary had failed to prove
disability after 2 May 2002.
 We next address Singletary's contention that the
Commission could not determine that her disability ended on 2 May
2002 because she was entitled to a presumption of continuing
disability pursuant to Watkins v. Motor Lines, 279 N.C. 132, 137,
181 S.E.2d 588, 592 (1971). This contention lacks merit.
Under Watkins, once an employee proves a disability, there is
a presumption that disability lasts until the employee returns to
work and likewise a presumption that disability ends when the
employee returns to work at wages equal to those he was receiving
at the time his injury occurred. Id. To avail herself of the
Watkins presumption, a claimant must meet the initial burden of
proving a disability in one of two ways: (1) by a previous
Industrial Commission award of continuing disability, or (2) by
producing a Form 21 or Form 26 settlement agreement approved by theIndustrial Commission. Cialino v. Wal-Mart Stores, 156 N.C. App.
463, 470, 577 S.E.2d 345, 350 (2003).
In the instant case, Singletary is unable to rely upon either
a previous opinion and award of the Commission establishing a
continuing disability or a Commission-approved settlement
agreement. Instead, she argues that, because the Commission's
opinion and award made a finding of disability, Watkins required
the Commission to apply a presumption of continuing disability in
the same opinion and award. Stated differently, it is Singletary's
contention that, once she had shown the existence of a disability,
she was relieved from proving the extent of it. However, it is
well established that a claimant bears the burden of proving the
extent of her disability. See, e.g., Hilliard, 305 N.C. at 595,
290 S.E.2d at 683.
This assignment of error is overruled.
 We next address Singletary's argument that the Commission
erred by determining that the Hospital had taken sufficient action
to deny the compensability of her claim. Singletary admits that
the Hospital intended to deny her claim, but she insists that its
filing failed to provide the statutorily required statement of the
grounds for denying compensability. This contention lacks merit.
Section 97-18(d) of the North Carolina General Statutes
establishes a procedure pursuant to which an employer that is
uncertain on reasonable grounds whether [a] claim is compensable
or whether it has liability may initiate payment of benefits to anemployee without accepting liability if a denial is ultimately
filed within ninety days. N.C. Gen. Stat. § 97-18(d) (2003). The
statute further provides that
[i]f at any time during the [prescribed]
period . . . , the employer . . . contests the
compensability of the claim or its liability
therefor, it may suspend payment of
compensation and shall promptly notify the
Commission and the employee on a form
prescribed by the Commission. The
employer . . . must provide on the prescribed
form a detailed statement of its grounds for
denying compensability of the claim or its
liability therefor. If the employer or
insurer does not contest the compensability of
the claim or its liability therefor within 90
days from the date it first has written or
actual notice of the injury or death, or
within such additional period as may be
granted by the Commission, it waives the right
to contest the compensability of and its
liability for the claim . . . .
In the instant case, the Hospital initially paid benefits to
Singletary. However, approximately two months after Singletary's
accident at work, the Hospital filed a Form 61 Denial of Workers'
Compensation Claim, in which it provided the following reasons for
denying her claim:
1) [Singletary's] disability is not the result of an
accident or specific traumatic incident occurring
on the job.
2) [Singletary] is not currently disabled.
Singletary insists that the proffered denial was insufficiently
detailed and did not state any actual reasons for denying
compensability and liability. However, even a cursory review of
the reasons listed on the Form 61 reveals that the Hospital wasconcerned about whether Singletary was being honest about her
condition and that it sought to challenge whether Singletary had,
in fact, developed fibromyalgia and, if so, whether the condition
was linked to her accident at work. Accordingly, we conclude that
the Commission properly determined that the Hospital had provided
valid reasons for denying Singletary's claim and had provided
sufficient detail in its statement of such reasons.
This assignment of error is overruled.
 We next address Singletary's argument that the Commission
erred by determining that the Hospital's defense of her claim was
reasonable and by failing to assess sanctions against the Hospital.
If the Industrial Commission shall determine that any hearing
has been brought, prosecuted, or defended without reasonable
ground, it may assess the whole cost of the proceedings including
reasonable fees for defendant's attorney or plaintiff's attorney
upon the party who has brought or defended them. N.C. Gen. Stat.
§ 97-88.1 (2003). The decision of whether to take such action is
consigned to the discretion of the Commission, and will be left
undisturbed absent an abuse of discretion. Taylor v. J.P. Stevens
Co., 307 N.C. 392, 398, 298 S.E.2d 681, 685 (1983).
Given the facts and circumstances of the instant case, we are
unpersuaded that the Hospital's defense of Singletary's claims was
necessarily unreasonable. Further, we discern no abuse of
discretion in the Commission's decision not to impose sanctions. This assignment of error is overruled.
THE HOSPITAL'S APPEAL
We turn now to the Hospital's appeal. The Hospital argues
that the Commission erred by (I) determining that Singletary's
fibromyalgia was caused by her 7 October 2001 accident at work, and
(II) determining that Singletary was entitled to benefits through
2 May 2002.
 We first address the Hospital's argument that the
Commission erred by finding that Singletary's fibromyalgia was
caused by the 7 October 2001 accident at work. The Hospital
insists that Dr. Irwin's testimony was insufficient to establish
such a causal nexus because it was based solely upon the temporal
relationship between the accident and the development of
Singletary's fibromyalgia and was, therefore, speculative. We
This Court must affirm findings of the Industrial Commission
that are supported by competent evidence in the record. Deese v.
Champion Int'l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552
(2000). Where the link between a plaintiff's condition and an
accident at work involves a complex medical question, as in the
instant case, a finding of causation must be premised upon the
testimony of a medical expert. Click v. Freight Carriers, 300 N.C.
164, 167, 265 S.E.2d 389, 391 (1980). Although medical certainty
is not required, an expert's 'speculation' is insufficient to
establish causation. Holley v. ACTS, Inc., 357 N.C. 228, 234, 581S.E.2d 750, 754 (2003). Thus, 'could' or 'might' expert testimony
[is] insufficient to support a causal connection when there is
additional evidence or testimony showing the expert's opinion to be
a guess or mere speculation. Young v. Hickory Bus. Furniture, 353
N.C. 227, 233, 538 S.E.2d 912, 916 (2000). Accordingly, if an
expert's opinion as to causation is wholly premised on the notion
of post hoc ergo propter hoc (after it, therefore because of it),
then the expert has not provided competent record evidence of
causation. Id. at 232-33, 538 S.E.2d at 916.
For example, in Young, the Industrial Commission found that a
claimant's fibromyalgia had been caused by an accident at work
based solely on the opinion testimony of a Dr. Payne, who stated
that I think that [the claimant] does have fibromyalgia and I
relate it to the accident primarily because, as I noted, it was not
there before and she developed it afterwards. And that's the only
piece of information that relates the two. Id. at 232, 538 S.E.2d
at 916 (emphasis added). Our Supreme Court held that the
Commission could not make a finding of causation based only upon
this opinion because the opinion was premised entirely on Dr.
Payne's application of post hoc ergo propter hoc. Id. The Court
The speculative nature of Dr. Payne's expert
opinion is reflected in his testimony that
while he acknowledged that he knew of several
other potential causes of Ms. Young's
fibromyalgia, he did not pursue any testing to
determine if they were, in fact, the cause of
her symptoms. For instance, Dr. Payne conceded
that he was aware of osteoarthritis in Ms.
Young and that her sister was diagnosed withrheumatoid arthritis. However, when asked on
cross-examination whether he had performed any
tests to rule out other forms of rheumatoid
disease or illness that could account for Ms.
Young's symptoms, Dr. Payne testified that he
had not. Indeed, when asked by defense
counsel whether those tests had been
conducted, Dr. Payne simply responded,
[T]hose studies need to have been done.
Additionally, in response to defense counsel's
questions about other potential causes of Ms.
Young's symptoms, Dr. Payne admitted that he
did not attempt to ascertain whether plaintiff
suffered from any viral or bacterial illnesses
during the time between her injury and his
diagnosis of fibromyalgia. This response
followed the doctor's acknowledgment of case
reports suggesting that fibromyalgia could be
associated with a postbacterial illness
reaction or a postviral reaction.
The speculative nature of the doctor's opinion
is further reflected in his testimony
regarding Ms. Young's gallbladder surgery in
1994. Plaintiff's surgery took place two years
after her injury and seven months before her
first visit with Dr. Payne. On
cross-examination, the doctor acknowledged
that surgery is an event that is thought to
trigger or aggravate fibromyalgia, and that,
depending on how well Ms. Young tolerated her
gallbladder surgery, it could have aggravated
[plaintiff's] fibromyalgia. The record
therefore supports, through Dr. Payne's own
admissions, at least three potential causes of
fibromyalgia in Ms. Young other than her
injury in 1992.
Id. at 232-33, 538 S.E.2d at 915-16.
The instant case is distinguishable from Young. It is true
that Dr. Irwin's opinion on causation was informed by the temporal
relation between Singletary's accident at work and her illness:
[S]he did not have a problem before the injury. Then starting
from the injury, she had the problem and based on what I know as a
result of that, I would say that, yes, they are related. However,Dr. Irwin also identified other potential causes of Singletary's
fibromyalgia, and rejected them. For example, during his 17
January 2002 examination of Singletary, Dr. Irwin noted that
Singletary had diabetes, and he tested her for diabetic peripheral
neuropathy, another condition which may have produced her symptoms.
The testing indicated that Singletary was not suffering from
diabetic peripheral neuropathy. Likewise, in his deposition
testimony, Dr. Irwin expressed an opinion that, notwithstanding
Singletary's pre-existing sleep apnea and diabetes, her 7 October
2001 accident at work played a role in the development of her
[SINGLETARY'S ATTORNEY]: If we assume that Ms. Singletary
had been having sleep apnea, for example, that might be
indicative of fibromyalgia or associated with the causal
complex and other problems before October of 2001, but
then she did have the injury that's described in the
Employee Health notes that you saw . . . would it be your
opinion that there was any contribution of the pre-
existing condition to the condition for which you saw her
in January of 2002 or would it be separate?
[DR. IRWIN]: [Singletary's] sleep apnea certainly could
[have] contribute[d] to it and [her] diabetes certainly
could [have] as well.
[SINGLETARY'S ATTORNEY]: Okay. In your opinion, judging
from what you see with the notes, would they likely have
caused any disabling fibromyalgia in the absence of the
injury she had in October ?
[DR. IRWIN]: Sleep apnea can cause disabling
fibromyalgia on its own.
[SINGLETARY'S ATTORNEY]: In her case, did it, in your
[DR. IRWIN]: Since she didn't have pain prior to the
injury, I would say it didn't.
[SINGLETARY'S ATTORNEY]: Okay. If she had some pain
prior to the injury but not as much as she had after the
injury, can trauma aggravate a person's pre-existing
fibromyalgia or activate a pre-existing predisposition
[DR. IRWIN]: Yes.
[SINGLETARY'S ATTORNEY]: In her case, if she did have
some level of pain that allowed her to work and was of a
much lesser nature than what she had afterwards and then
she had this injury and then had the condition that
you've been able to observe through the records and also
through your own observations, would it be a fair
characterization to say that her condition was aggravated
by the injury[?]
[DR. IRWIN]: Yes.
Thus, Dr. Irwin's causation testimony was not mere speculation and
was not entirely premised on the temporal relationship between
Singletary's injury at work and her development of fibromyalgia.
Rather, although this temporal relationship played a role in the
diagnosis, Dr. Irwin also considered, tested for, and excluded
other causes of her condition. Therefore, the Commission's finding
of causation, which was based upon Dr. Irwin's testimony, is
supported by competent record evidence and must be affirmed.
This assignment of error is overruled.
 The Hospital next contends that the Commission erred by
awarding benefits to Singletary through 2 May 2002 because she
failed to prove the extent of her disability. However, the record
establishes that Dr. Irwin determined that Singletary was unable to
work and that he wrote a note excusing her from work until 2 May
2002. As such, there is competent evidence to support theCommission's finding concerning the extent of Singletary's
disability. This assignment of error is overruled.
For the foregoing reasons, the Commission's opinion and award
Judges TYSON and BRYANT concur.
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