LINDA BAKER,
Employee-Plaintiff
v
.
North Carolina
Industrial Commission
and
INSURANCE COMPANY FOR THE
STATE OF PENNSYLVANIA and
AMERICAN HOME ASSURANCE,
Carrier-Defendants
Appeal by defendants from an opinion and award entered 30
April 2003 by the North Carolina Industrial Commission. Heard in
the Court of Appeals 24 March 2005.
Lucas, Bryant, Denning & Ellerbe, P.A., by Sarah Ellerbe, for
plaintiff.
Young, Moore, and Henderson, P.A., by Michael W. Ballance, for
defendants.
CALABRIA, Judge.
Wal-Mart Stores, Inc. (“employer”), Insurance Company of the
State of Pennsylvania, and American Home Assurance (collectively,
“defendants”) appeal an opinion and award of the Industrial
Commission (“Commission”) requiring defendants to pay total
disability compensation. We affirm. Linda Baker (“plaintiff”) started working for employer in 1996
as a third-shift coordinator in the shoe department. During
plaintiff's employment, she suffered two compensable injuries by
accident. The first accident occurred on 24 April 1998 when
plaintiff fell off of a step stool and herniated a vertebral disc.
On 8 June 1998, Dr. Koeleveld, a neurosurgeon, performed a L5-S1
laminectomy and removed the herniated disc. Plaintiff was assigned
a permanent partial disability rating to her back and subsequently
returned to work. The second accident occurred on 20 May 1999 when
plaintiff slipped on some hairspray and exacerbated her chronic
radiculitis symptoms in the lumbar spine. She was additionally
diagnosed with a lumbar sprain. Plaintiff was released to work
with restrictions and subsequently reached maximum medical
improvement on 30 September 1999. Despite returning to work,
plaintiff continued to suffer chronic and radiating back pain and
informed her primary care provider and physician's assistant,
Theresa Kubicki (“Kubicki”) of her continuing pain. A subsequent
independent medical examination by Dr. Derian, an orthopedic
surgeon, in 2000 indicated that, without further surgical
intervention such as a spine fusion, plaintiff had a fifteen
percent permanent partial disability rating to her back and a
twenty percent permanent partial disability rating to her leg. The
examination revealed plaintiff still suffered from a large
posterior annular tear uncorrected by the surgical intervention
already undertaken. In late 1999, plaintiff underwent a chest evaluation and
catheterization by Dr. Nutt, a cardiologist, which showed non-focal
plaquing of the coronary arteries and normal pumping capacity of
the heart. Plaintiff, a smoker, also had high blood pressure, high
cholesterol, and other cardiac risk factors. On 10 January 2001,
plaintiff returned for medical treatment, complaining of non-
exertional chest pain. On 30 January 2001, plaintiff returned to
Kubicki for high blood pressure and chronic pain. Based on
Kubicki's instructions, plaintiff continued to work for employer
but gave a two-week notice before taking a leave of absence. On
the last day of the two-week period, plaintiff experienced
difficulties, including shortness of breath and chest pain, and
was taken to the Johnston Memorial Hospital emergency room. A
second catheterization showed significant blockage of three
coronary arteries, and plaintiff underwent triple bypass surgery.
Dr. Nutt released plaintiff to full-time work from a cardiac
standpoint on 18 June 2001. Due to continuing back pain, however,
plaintiff did not return to work at any time after the time she
took a leave of absence.
For each of plaintiff's compensable injuries, defendants
admitted plaintiff's right to compensation and paid compensation
until plaintiff's return to work. In April 2001, plaintiff
submitted a request that her claim be assigned for hearing to have
her declared totally and permanently disabled. Prior to the
hearing, Deputy Commissioner W. Bain Jones excluded the testimony
of Kubicki and entered an opinion and award that plaintiff was notentitled to additional compensation after 1 February 2001. On
appeal, the Commission received the testimony of Kubicki and
reversed the deputy commissioner's ruling. Defendants appeal.
I. Admissibility of Kubicki's Testimony
We first consider defendants' assignment of error concerning
the Commission's admission of and reliance on Kubicki's expert
testimony for purposes of establishing medical causation. “[T]he
opinion testimony of an expert witness is competent if there is
evidence to show that, through study or experience, or both, the
witness has acquired such skill that he is better qualified than
the jury to form an opinion on the particular subject of his
testimony. Maloney v. Wake Hosp. Sys., 45 N.C. App. 172, 177, 262
S.E.2d 680, 683 (1980).
Kubicki, as a physician's assistant, was required to be
supervised by Dr. Kolar. Other than this supervision requirement,
Dr. Kolar testified Kubicki was entitled “to practice medicine in
an entire full scope, in terms of what . . . problems she can
manage, what tests she can order, consultations she can order, as
well as what medications she wishes to prescribe, including
controlled substances.” Dr. Kolar further noted that Kubicki was
“very experienced” with “very good clinical judgment, a deep
knowledge base of pathophysiology of _ just across the board, and
she had good clinical instincts as well.” Kubicki's own testimony
reveals she possessed a degree for physical therapy and being a
physician's assistant and was a licensed physician's assistant inNorth Carolina. Accordingly, Kubicki was clearly qualified to
render expert medical testimony, including that of causation.
Defendants, nonetheless, argue Kubicki's medical testimony
regarding causation should be excluded on the grounds that it was
not corroborated by her supervising doctor or any other medical
doctor. However, the record indicates Dr. Kolar reviewed all of
Kubicki's notes for internal consistency and appropriateness in
medical care. Moreover, Dr. Kolar expressly stated his medical
opinion that Kubicki's recommendations regarding plaintiff's work
status was that her recommendations were “[n]ot only reasonable,
but . . . reflected . . . a good medical judgment, based on her
assessment of _ on the immediate situation, and probably the
intangibles that made her figure that at this point, the problem
was deteriorating enough to suggest leaving work.” Defendants
argue that Dr. Kolar subsequently limited that testimony to
plaintiff's blood pressure problem; however, we note Dr. Kolar's
answer, while referencing plaintiff's blood pressure problem, went
on to note that “the other thing is, is Ms. Kubicki having worked
with [plaintiff] since at least 1993, was probably familiar with
the patient . . . would have been in the best position of anyone to
decide wh[at] the patient was like compared to her past years of
experience.” Dr. Kolar went on to “absolutely” agree with the
recommendations Kubicki made. In addition, while Dr. Kolar
generally spoke of deferring to other doctors treating plaintiff's
back problem, he unequivocally stated Kubicki “would have the most
thorough medical picture of [plaintiff at] the beginning of theyear 2001.” Most importantly, an uncontested finding of fact by
the Commission notes that Dr. Kolar felt “Kubicki was in the best
position to evaluate plaintiff because of her thorough knowledge of
plaintiff's medical condition.” Based on this uncontested finding
of fact and after reviewing the evidence, we cannot agree with
defendants that Dr. Kolar did not corroborate Kubicki's testimony.
The Commission could properly admit into evidence and rely upon
Kubicki's expert medical opinion, including any testimony
concerning causation. This assignment of error is overruled.
II. Medical Causation
In their final assignment of error, defendants assert the
Commission erred by concluding plaintiff's disability was caused by
her compensable injuries at work rather than her unrelated heart
condition. Initially, we note that defendants have not assigned
error to any of the Commission's findings of fact in support of
this argument; accordingly, the findings of fact are “conclusively
established on appeal[,]” Johnson v. Herbie's Place, 157 N.C. App.
168, 180, 579 S.E.2d 110, 118, disc. rev. denied, 357 N.C. 460, 585
S.E.2d 760 (2003), and our review is limited to whether “the
findings of fact support the Commission's conclusions of law.”
Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549,
553 (2000).
A claimant bears the burden of proving both the existence and
the extent of disability. Saums v. Raleigh Community Hospital, 346
N.C. 760, 763, 487 S.E.2d 746, 749 (1997). Disability denotes an
“incapacity because of injury to earn the wages which the employeewas receiving at the time of injury . . . .” N.C. Gen. Stat. § 97-
2(9) (2003). Defendants point out that plaintiff returned to work
following her two compensable injuries and assert her subsequent
inability to work on and following 1 February 2001 was due to her
unrelated heart condition. Defendants further assert plaintiff
failed to prove any disability after 1 February 2001 was due to her
compensable injuries. However, the Commission made the following
uncontested findings of fact:
25. Ms. Kubicki testified that plaintiff was
unable to continue to work because of the
amount of pain she was having and that this
pain resulted from the compensable injuries by
accident. Ms. Kubicki indicated plaintiff
should be out of work for the month of
February 2001 as a result of [inter alia] . .
. chronic back pain . . . .
36. [T]he greater weight of the evidence
[shows] that after February 1, 2001 plaintiff
was disabled from any employment as a result
of her compensable injuries.
Kubicki, in fact, testified to a reasonable degree of medical
certainty that plaintiff's accidents at work were “a proximate
cause of the pain that she was experiencing in January of 2001
which caused her to come out of work[.]” In light of these
uncontested findings of fact, defendants' arguments cannot be
sustained. These findings support the conclusion that plaintiff
proved by the greater weight of the evidence that, “as a result of
the compensable injuries[,] [plaintiff] is physically incapable of
work in any employment due to her chronic back pain.” This
conclusion, in turn, supports the Commission's opinion and award of
on-going total disability compensation.
Affirmed.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).
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