NO. COA04-669
Plaintiff began his employment as an over-the-road truckdriver for defendant Coastal Transport in August 1998. On 9
November 1998, plaintiff drove a flatbed trailer to Kingstree,
South Carolina to pick up a load. While he was rolling back the
tarps used to secure the load on his trailer bed, his left leg
caught between two rolls of tarp. Plaintiff described what
happened next:
I fell around and . . . spun around to the
right, and I felt something burn in my back.
I didn't really think nothing about it because
I had been having a kidney stone problem for
two or three days, and the symptoms I was
having _ I did feel my back burn and sting,
but you're all the time getting bumps and
bruises doing what we do. . . . And with the
problem and the pain that I had had with my
stones, I really didn't pay any attention to
it . . . .
Plaintiff described the pain as "a real bad burning, stinging
sensation in my lower back. That was the only thing that I felt,
but at the same time, I had pulled muscles before, so I didn't
really think anything about that either." As the day progressed,
however, the pain worsened until plaintiff had difficulty operating
the truck's brakes and clutch. The following day, plaintiff
contacted his dispatcher at Coastal and asked to be rerouted back
to North Carolina, believing he "was having a kidney stone
problem." After receiving authorization, he returned home.
Medical records during the remainder of 1998 do not mention
any back pain. On 18 November 1998, plaintiff went to the
emergency room of Good Hope Hospital because of a migraine
headache. On 24 November 1998, plaintiff presented to his
physician, Dr. Abraham Oudeh, with "headache associated with nauseaand vomiting." On 17 December 1998, Dr. Oudeh noted the
possibility of a kidney stone based on frequency, urgency, and
pressure in the lower abdomen. Plaintiff returned to Dr. Oudeh on
4 January 1999, complaining of "abdominal pain." An X-ray and
ultrasound on 5 January 1999 were negative for kidney stones.
On 21 January 1999, plaintiff presented to Dr. Oudeh with
"pain in lower abdomen left side, left testicle, [and] down into
left leg [and] foot [for] 2 weeks." An x-ray of plaintiff's lumbar
spine taken on 21 January 1999 revealed "normal alignment" with
"well preserved" intervertebral disc spaces and vertebral body
heights and no other abnormalities. On 5 February 1999, Dr. Oudeh
diagnosed "[b]ack pain secondary to kidney stone."
Dr. Oudeh referred plaintiff to Dr. H. Willy Chu, who examined
him on 16 February 1999. Based on plaintiff's report of a "two
week history" of severe groin pain with no precipitating incident,
Dr. Chu diagnosed a left inguinal hernia and scheduled surgery to
repair it. On the day of the scheduled surgery, Dr. Chu re-
examined plaintiff and found no evidence of a hernia. In light of
plaintiff's complaint of "pain along the back of his left leg" and
"pins and needles on the lateral aspect of his left foot," Dr. Chu
ordered physical therapy and referred plaintiff to orthopaedist Dr.
William Y. Oh.
Dr. Oh examined plaintiff on 2 March 1999 and ordered an MRI
of plaintiff's lumbar spine on 4 March 1999, which revealed a
herniated nucleus pulposus at L4-5. After a regimen of physical
therapy proved unsuccessful in treating plaintiff's condition, Dr.Oh performed a laminectomy on 6 April 1999.
Until February 1999, plaintiff had continued to work for
Coastal. After his back surgery, plaintiff worked as a short-
distance truck driver for Winn Dixie from 1 July 1999 until he was
laid off on 5 July 2000. Defendant next worked for a company in
Dunn, North Carolina, hauling salvage vehicles from 25 May 2001 to
14 August 2001, but he was ultimately unable to perform the
bending, stooping, and lifting required for the job. After working
four or five months as a hospital security guard, plaintiff took a
job fueling school buses for the Wake County Public Schools in
February 2002.
Plaintiff submitted a Form 18 "Notice of Accident to Employer"
dated 23 March 1999, claiming his herniated disc was caused by the
work-related tarp accident on 9 November 1998. Coastal denied the
claim on the ground that it did not receive notice of the injury
until 8 March 1999, four months after the accident. In an opinion
and award filed on 19 March 2003, Deputy Commissioner Phillip A.
Holmes found plaintiff's herniated disc to be a compensable "injury
by accident arising out of and in the course of his employment on
November 9, 1998." Defendants appealed to the Full Commission. In
affirming the deputy commissioner's award with modifications, the
Full Commission likewise found and concluded that "plaintiff
sustained a back injury by accident arising out of and in the
course of his employment on November 9, 1998. This injury caused
plaintiff to suffer a herniated disc and necessitated that
plaintiff undergo a lumbar laminectomy." On appeal to this Court, defendants claim the Full Commission
erred in finding a causal link between plaintiff's herniated disc
and his accident on 9 November 1998 because of the absence of
competent evidence to support such a finding.
Our review of a
workers' compensation opinion and award is limited to determining
"(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).
It is well established that "[t]he plaintiff in a workers'
compensation case bears the burden of initially proving each and
every element of compensability, including causation."
Whitfield
v. Lab. Corp. of Am., 158 N.C. App. 341, 350, 581 S.E.2d 778, 784
(2003). The record must contain "competent evidence to support the
inference that the accident in question resulted in the injury
complained of . . . ."
Click v. Pilot Freight Carriers, Inc., 300
N.C. 164, 167, 265 S.E.2d 389, 391 (1980).
Plaintiff does not dispute defendants' contention that the
record contains no expert opinion evidence of causation. The only
expert testimony presented by the parties was the deposition of Dr.
Barry Katz, a neurosurgeon who first began treating plaintiff for
back pain on 4 October 2000, six months after plaintiff's back
surgery. On the issue of causation, Dr. Katz testified during his
direct examination as follows:
Q. Did [plaintiff] relay to you that he
had hurt it while he was throwing a tarp, I
believe, over _
. . . .
A. He may have, but I don't remember
that.
Q. If that were the testimony that he
gave to the Industrial Commission, that he
injured himself by throwing a tarp over the
trailer, is that _ would that be something
that would be consistent with this type of
injury, a lumbar herniated disk?
. . . .
A. I mean, you can injure your back
doing anything, but it's a pretty nonspecific
thing.
Q. So it wouldn't be something that
would be ruled out by that type of activity?
. . . .
A. You can't _ I would say that you
can't rule it out. You know, it's not common
that someone says I threw a tarp over
something and now I've got back pain and leg
pain, I've got a herniated disk. But someone
can injure their back, you know, doing any
activity.
Q. Well, let's see, the Form 19 that was
stipulated into evidence says, rolled tarp out
over the load and stepped between a long roll
of roofing and short roll and twisted his back
to the right. . . . [I]s that something that
would be consistent with herniating a disk?
. . . .
A. I mean, it's kind of like what I just
said. It's _ you know, people injure their
back doing all sorts of things. That specific
thing is, you know, pretty nonspecific. You
know, theoretically anything can cause an
injury in the back.
On cross-examination, Dr. Katz repeated that one could herniate a
disc "doing almost anything," including sneezing or walking down
the street. He further stated that he generally could notdetermine when a disc herniation occurred based upon an MRI.
In short, Dr. Katz never expressed an opinion that the tarp
incident caused the disc herniation beyond saying "you can't rule
it out" and "anything can cause an injury in the back." This
testimony is not sufficient to support a finding of causation.
Edmonds v. Fresenius Med. Care, __ N.C. App. __, __, 600 S.E.2d
501, 504 (2004)
("Where the expert's opinion is that there 'could'
or 'might' be a causal relationship, it is admissible if helpful
for purposes of showing medical causation; however, it is not
sufficiently reliable to constitute competent evidence of medical
causation, especially if additional evidence suggests such
testimony was merely a guess."),
rev'd per curiam on other grounds,
__ N.C. __, 608 S.E.2d 755 (2005).
We have also carefully reviewed the medical records admitted
into evidence. Those records likewise do not contain any opinion
suggesting that the tarp incident caused plaintiff's herniated
disc. In fact, Dr. Oh's notes for the initial comprehensive
orthopedic consultation dated 2 March 1999 state: "About two weeks
ago patient developed severe pain in the low back. He does not
recall any particular injury at this time. He was in a car
accident about 1993 and 1995 and each time he sustained a back
injury. This time his pain is different and it radiates down to
the left hip and left leg." In the surgery note dated 6 April
1999, Dr. Oh reported: "Early February of 1999, patient developed
severe pain in the low back. He does not recall any particular
injury at this time." Thus, neither Dr. Katz' testimony nor themedical records provide any expert evidence supporting the
Commission's causation finding.
Plaintiff argues that an expert opinion was not necessary.
Our Supreme Court has held, however, that the etiology of a
herniated disc is a complicated medical question that ordinarily
requires expert testimony:
"'One 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.'"
Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753,
760 (1965) (quoting 1
Lawyers' Medical Cyclopedia of Personal
Injuries and Allied Specialties § 7.16 (1st ed. 1958)). The
Supreme Court reaffirmed the holding of
Gillikin in
Click:
The difficulty of pinpointing the precise
causative factors of disc injuries remains
today. Indeed, full knowledge of the spine is
still wrapped in uncertainty, mystery, and
enigma. Thus, although cases involving
"slipped" or ruptured discs continue to
provide livelihood for the compensation
lawyer, they remain the anathema of the
orthopedic and neurosurgeon, not only because
of the difficulties of treatment but also
because it is . . . extremely difficult at
times to sort out the complaints due to injury
from those of nontraumatic origin.
In light of the continuing medical
difficulty in determining the etiology of
intervertebral diseases and injuries, this
Court is not disposed to modify the holding in
Gillikin.
Click, 300 N.C. at 168, 265 S.E.2d at 391 (internal citations and
quotation marks omitted). The Court did, however, recognize "the
possibility that a disc injury case may arise in the future wherein
the facts are so simple, uncontradictory, and obvious as to permita finding of a causal relationship between an accident and the
injury absent expert opinion evidence."
Id. at 168, 265 S.E.2d at
391-92.
The Supreme Court held in
Click that the disc injury at issue
there did not present such a case. At the hearing, the employee
testified that he was struck in the back by a cart, resulting in
severe pain that worsened until he was forced to remain in bed.
Other statements of the employee suggested, however, that he may
have injured his back while picking something up at home. The
Court held: "Although [the employee's] testimony tended to link
the herniated disc with the accident at his work place, other
evidence in the case suggested that his injury was caused by an
occurrence at his home. In the absence of guidance by expert
opinion as to whether the accident could or might have resulted in
his injury, the Commission could only speculate on the probable
cause of his condition."
Id. at 169, 265 S.E.2d at 392.
This case is materially indistinguishable from
Click. While
plaintiff testified that he injured his back when tangled in the
tarps, he told Dr. Oh that he did "not recall any particular
injury" that led to the back pain he was experiencing in February
1999. Medical records contain no mention of pain arguably related
to the back until January 1999 and from that date through February
1999, doctors reached tentative diagnoses of kidney stones or a
hernia. Only in March 1999, four months after the accident, did
Dr. Oh diagnose a herniated disc.
Because of the conflicting reports, the passage of time, andthe varying medical diagnoses, this is not an "'uncomplicated
situation'" that can be resolved without expert opinion.
Id.
(quoting
Uris v. State Comp. Dep't, 247 Or. 420, 426, 427 P. 2d
753, 756 (1967)). Since the record contains no expert opinion to
support the Commission's finding that plaintiff's herniated disc
was caused by his 9 November 1998 accident, we reverse.
Reversed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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