Appeal by defendants from opinion and award entered 3 June
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 14 June 2005.
Root & Root, P.L.L.C., by Louise Critz Root, for plaintiff-
appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Ryan W.
Keevan and Edward L. Eatman, for defendants-appellants.
LEVINSON, Judge.
Defendants appeal from an Opinion and Award of the Industrial
Commission awarding plaintiff medical and disability workers'
compensation benefits. We affirm.
The factual background of this appeal is largely undisputed,
and may be summarized as follows. Plaintiff (Terrance Moran) was38 years old at the time of the hearing before the deputy
commissioner. He attended school through the ninth grade, and
later obtained a GED. In 2000 he had been working for defendant
(Turnamics, Inc.) for over 13 years. Plaintiff was employed as a
machine operator, a position requiring the use of both hands to set
up and run machines.
In May 2000 plaintiff experienced weakness in his right wrist,
hand, and fingers, and an inability to extend the first, second,
and third fingers of his right hand. His family physician referred
him to a neurosurgeon, Dr. Seyed Emadian. At Dr. Emadian's
recommendation, plaintiff underwent nerve conduction velocity
testing with another physician, Dr. Daniel Garber. In Dr. Garber's
opinion, plaintiff appeared to have posterior interosseous
syndrome, which was “definitely work-related.” Plaintiff was then
referred to Dr. Christopher Lechner, an orthopaedic surgeon who
diagnosed plaintiff as suffering from posterior interosseous palsy.
When nonsurgical treatment failed to bring plaintiff any relief,
Dr. Lechner recommended surgery.
Plaintiff's first wrist surgery was performed by Dr. Lechner
on 6 November 2000, and revealed that plaintiff suffered from
compression of the posterior interosseous nerve, and from a second
point of compression of the nerve under the supinator. When Dr.
Lechner saw plaintiff in April 2001, he noted plaintiff's inability
to extend his wrist, fingers, or thumb of his right hand, a
condition known as “wrist drop.” He diagnosed plaintiff withoveruse syndrome of the right upper extremity with mild tendonitis,
and increased plaintiff's weight restriction to ten pounds.
In May 2001 plaintiff's family physician prescribed medication
to treat plaintiff's symptoms of depression and anxiety. On 23 May
2001 he was admitted to Copestone, the psychiatric unit of the
Mission-St. Joseph's Health System. At Copestone, plaintiff began
treatment with a psychiatrist, Dr. Stewart Hudson. Plaintiff spent
12 days as an inpatient at Copestone, then continued outpatient
psychotherapy with a clinical social worker, Sarah Mimms. On 14
August 2001 plaintiff underwent a second wrist surgery, which
provided some improvement in his physical condition. Plaintiff
returned to his employment with defendant on 19 November 2001, and
worked until 9 February 2002, when his employment was terminated.
On 4 March 2002, several weeks after plaintiff lost his job,
he was readmitted to Copestone Hospital. On his release, plaintiff
worked at another machine shop, Wright's Machine and Tool, for
about six weeks; plaintiff lost this job when he was readmitted to
Copestone in May 2002. He was released from the hospital in June
2002, and next worked for Day International from 5 August to 8
November 2002. However, plaintiff's wrist drop prevented him from
performing up to his employer's standards; on 8 November 2002 he
was told his work was not “up to par” and he was let go. Plaintiff
then worked as a machine operator for Black Mountain Machine for
several weeks, starting 18 November 2002. In January 2003
plaintiff was fired by Black Mountain, and was readmitted toCopestone. At the time of the hearing Dr. Hudson testified that
plaintiff was not capable of working, and was still in Copestone.
Defendants filed two Industrial Commission Forms No. 60,
admitting that plaintiff's hand and wrist injury was a compensable
occupational disease, and paid plaintiff workers' compensation
disability benefits for the time periods 26 September to 13 October
2000, and 20 August to 19 November 2001. On 31 August 2001
plaintiff filed an Industrial Commission Form No. 18 for medical
and disability workers' compensation benefits for his psychological
treatment. When defendants denied plaintiff's claim for
psychiatric benefits, plaintiff filed a Form 33 request for
hearing. The case was heard before Industrial Commission Deputy
Commissioner George R. Hall, III, on 19 November 2002. On 27 June
2003 Commissioner Hall filed an Opinion and Award that awarded
plaintiff medical and disability benefits, “including psychiatric
care and counseling for the psychiatric problems [that] developed
after this injury[.]” Defendants appealed to the Full Commission,
which heard the case on 20 January 2004. On 3 June 2004 the
Commission issued an Opinion and Award affirming the deputy
commissioner. From this Opinion and Award defendants timely
appealed.
Review of an opinion and award of the Industrial Commission is
generally “limited to the consideration of two issues: (1) whether
the Commission's findings of fact are supported by competent
evidence; and (2) whether the conclusions of law are supported bythe findings of fact. When there is any evidence in the record
that tends to support a finding of fact, the finding of fact is
supported by competent evidence and is conclusive on appeal.”
Cannon v. Goodyear Tire & Rubber Co., __ N.C. App. __, __, __
S.E.2d __, __ (2005 N.C. App. Lexis 1254) (filed 5 July 2005)
(citations omitted)). “The findings of fact of the Industrial
Commission are conclusive on appeal when supported by competent
evidence, even though there [may] be evidence that would support
findings to the contrary.” Jones v. Desk Co., 264 N.C. 401, 402,
141 S.E.2d 632, 633 (1965). In making determinations of fact,
“'[t]he Commission is the sole judge of the credibility of the
witnesses and the weight to be given their testimony.'” Adams v.
AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting
Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d
272, 274 (1965)). Furthermore, “[f]indings of fact not assigned as
error are conclusively established on appeal.” Hensley v. Indus.
Maint. Overflow, 166 N.C. App. 413, 418, 601 S.E.2d 893, 897 (2004)
(citing Robertson v. Hagood Homes, Inc., 160 N.C. App. 137, 140,
584 S.E.2d 871, 873 (2003)), disc. review denied, __ N.C. __, 613
S.E.2d 690 (2005).
Defendants argue that the Commission erred by concluding that
plaintiff's compensable injury was a significant contributing
factor in his psychiatric illness, on the grounds that the
Commission “relied upon speculative expert medical testimony” and
that it “ignored . . . salient facts” demonstrating the speculativenature of the testimony of Dr. Hudson and Mimms. On this basis,
defendants contend that the Commission's conclusions of law are not
supported by competent findings of fact. We disagree.
“All natural consequences that result from a work-related
injury are compensable under the Workers' Compensation Act.
Therefore, when a work-related injury leaves an employee in a
weakened state that results in further injury, the subsequent
injury is compensable.”
Cannon, __ N.C. App. at __, __ S.E.2d at
__ (citing
Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 73-74, 308
S.E.2d 485, 488 (1983), and
Heatherly v. Montgomery Components,
Inc., 71 N.C. App. 377, 381-82, 323 S.E.2d 29, 31 (1984)).
Furthermore, this Court has “previously held that the aggravation
of pre-existing psychiatric problems is compensable if that
aggravation is caused by a work-related physical injury.”
Calloway
v. Memorial Mission Hosp., 137 N.C. App. 480, 485, 528 S.E.2d 397,
401 (2000) (citing
Toler v. Black & Decker, 134 N.C. App. 695, 701,
518 S.E.2d 547, 551 (1999)).
With regard to proof of a causal relationship between a
claimant's injury and condition, the North Carolina Supreme Court
has held:
In a worker's compensation claim, the employee
has the burden of proving that his claim is
compensable. An injury is compensable as
employment-related if any reasonable
relationship to employment exists.
Although
the employment-related accident need not be
the sole causative force to render an injury
compensable,
the plaintiff must prove that the
accident was a causal factor by a
preponderance of the evidence.
Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752
(2003) (internal quotation marks and citations omitted)
. Moreover:
'[W]here the exact nature and probable genesis
of a particular type of injury involves
complicated medical questions far removed from
the ordinary experience and knowledge of
laymen, only 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 can be of no more value than
that of a layman's opinion. As such, it is
not sufficiently reliable to qualify as
competent evidence on issues of medical
causation.
Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915
(2000) (quoting
Click v. Pilot Freight Carriers, Inc., 300 N.C.
164, 167, 265 S.E.2d 389, 391 (1980)). Nonetheless, a doctor's
expert “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[.]'”
Workman v. Rutherford Elec. Membership
Corp., __ N.C. App. __, __, 613 S.E.2d 243, 253 (2005) (quoting
Holley, 357 N.C. at 232, 581 S.E.2d at 753, and
Gilmore v. Hoke
Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)).
In the instant case, the Commission's findings of fact
included, in relevant part, the following:
10. . . . [Plaintiff] had not undergone treatment
for anxiety or depression, nor had he received
prescriptions to treat these problems prior to
the hand problem of May 16, 2000.
. . . .
12. Dr. Hudson testified that when he first met
plaintiff at [Copestone] hospital in May 2001,
plaintiff had many concerns about his wristdrop. Dr. Hudson noted that plaintiff could
not use his hand, and could not shake hands.
Dr. Hudson testified, and the undersigned so
finds, that plaintiffs wrist drop led to
diminished self-esteem and caused an increase
in anxiety. Dr. Hudson testified that when
plaintiff was admitted to the psychiatric unit
. . . he was experiencing severe depression,
insomnia, anxiety, and fear. Dr. Hudson
testified, and the Full Commission so finds,
that the wrist drop problems that plaintiff
experienced precipitated and were a
significant contributing factor in the
development of plaintiff's depression. Dr.
Hudson also testified that plaintiff was
worried about his job, which was a significant
contributing factor to both the anxiety and
depression that plaintiff experienced in May
2001.
13. Plaintiff was released after spending twelve
days in a psychiatric unit, after which he
continued care with Dr. Hudson and received
counseling with Sara Mimms, a therapist at the
Pisgah Institute. . . . [In August 2001] Dr.
Lechner recommended, and plaintiff underwent,
a second surgery. . . . On August 1, 2001,
Dr. Lechner explained to plaintiff that he
would not have a 'normal hand,' . . . [and]
that the surgery would not result in normal
strength of the hand.
. . . .
18. After plaintiff's admission to the Copestone
Psychiatric Unit on May 23, 2001, he began to
receive care with Sara Mimms, a therapist[,] .
. . [who] testified that she first met
plaintiff on June 7, 2001, at which point, she
noted that plaintiff's hand was very withered.
. . . [O]n March 4, 2002, after he lost his
job with defendant[,] [p]laintiff told Ms.
Mimms that he was so depressed he could not
get out of bed. Ms. Mimms testified that
plaintiff was very tearful on this date, and
expressed suicidal ideation. Plaintiff
expressed hopelessness about getting a job to
Ms. Mimms, who testified that plaintiff's
confidence 'was really blown when he lost his
job.'
19. Ms. Mimms testified, and the Full Commission
so finds, that plaintiff's depression began
with the injury to his hand and worsened after
plaintiff lost his job in February 2002.
20. Dr. Hudson also testified that plaintiff
experienced an increase in his depression,
with insomnia, anxiety, anhedonia, and
decreased motivation after he was discharged.
. . . As a result of the upswing of depression
and anxiety, plaintiff was readmitted to the
Copestone Psychiatric Unit . . . on March 4,
2002, . . . [which] noted that plaintiff had
recently lost his job of 15 years, after which
he had experienced increased symptoms of
depression with suicidal ideation.
. . . .
22. Plaintiff was readmitted to the Copestone
Psychiatric [hospital] . . . on May 29, 2002,
again as a result of the depression, which
plaintiff first began experiencing in 2001.
This resulted in plaintiffs losing his job
with Wright's Machine and Tool.
. . . .
26. Dr. Hudson testified . . . [plaintiff's]
readmitt[ance] to Copestone Psychiatric Unit
in January 2003 . . . was precipitated by the
fact that plaintiff had been having difficulty
in his employment and had not been able to
hold down a job[,and that] . . . [plaintiff]
lost his latest job. . . prior to this latest
Copestone admission.
27. Dr. Hudson testified that as of the date of
his deposition, January 31, 2003, plaintiff
was unemployed and not capable of employment.
Dr. Hudson and Ms. Mimms both testified that
plaintiff needed additional counseling and
psychiatric care.
. . . .
29. Plaintiff . . . was unable to work from May
23, 2001, to August 20, 2001, both as a result
of his hand injury and as a result of his
psychiatric condition.
On the basis of these and other findings of fact, the Commission
concluded that “[p]laintiff's psychiatric problems, including
depression and anxiety, for which he received care with Dr. Hudson
and Sara Mimms, is causally related to the May 16, 2000 injury by
accident and is a direct and natural result of this injury and
ensuing physical disability.
Defendants concede that plaintiff's therapist and psychiatrist
each testified that plaintiff's compensable injury contributed
significantly to his psychological problems. They argue, however,
that this testimony was merely 'speculative,' and that the
Commission's findings of fact are not supported by competent
evidence, and do not support the Commission's conclusions of law.
We do not agree.
Dr. Hudson was deposed on 31 January 2003, and qualified as an
expert in psychiatry. He began treating plaintiff for
psychological illness in May 2001 when plaintiff was admitted to
Copestone, with “fairly severe symptoms” of psychotic depression
and anxiety. Dr. Hudson treated plaintiff with psychoactive
medications, which plaintiff was still taking at the time of Dr.
Hudson's deposition. Dr. Hudson also testified that plaintiff was
suffering from a generalized decline in cognitive functioning.
Dr. Hudson testified that plaintiff had “a lot of concerns
about his wrist drop” which had “precipitated a lot of his problems
with his self-esteem.” As a result of the weakness and
neurological damage to his hand, plaintiff could not even shake
hands, and his wrist hung limply. Therefore, plaintiff's hand had“a certain effeminate quality to it and sort of a lack of
strength,” and that plaintiff “couldn't cope or tolerate with
having this kind of disfigurement.” As a result, plaintiff
experienced depression, loss of self esteem, and anxiety. Dr.
Hudson explained:
I believe the illness we've been talking about
. . . [was] a significant contributing factor,
. . . the wrist drop. I just do. And his
disability from that, the change in his self
image, his . . . lowered self-esteem from
that, the threat to . . . being able to take
care of his family . . . I think that was a
significant factor in triggering this illness.
Whether there are obviously other predisposing
factors, yes, of course, there are, but I
think those are the ones that I'm most
impressed with.
Dr. Hudson testified repeatedly that plaintiff's compensable injury
was a significant contributing factor in his psychological illness.
For example:
I do think that the problem with the wrist
drop, the problem with losing his job, the
chronic pain secondary to the injury . . . is
a significant causal factor, although it
interacts, obviously, with other things, but I
think it's the contributing factor with him
developing the severity of illness that he
obviously has now, without which he may not
have.
Other testimony was presented from Sarah Mimms, a licensed
clinical social worker who had counseled plaintiff for over
eighteen months at the time of her deposition. Her testimony
echoed that of Dr. Hudson that plaintiff was very depressed, and
that his wrist drop and resultant inability to work was a
significant contributing cause. She agreed that plaintiff's work
was “more than just a paycheck,” and described plaintiff's “beliefthat he must work, his commitment to his family to provide for
them.”
Defendants argue that the Commission ignored evidence that
demonstrates that Dr. Hudson's testimony was speculative, based on
the presence of other stressful circumstances in plaintiff's life.
Dr. Hudson was cross-examined about other sources of stress in
plaintiff's life, including domestic problems, and family members
with psychological problems, and defendants asked several times
whether such factor(s) might be the true cause of plaintiff's
psychological illness. Dr. Hudson reiterated that the other
stressors in plaintiff's life “[couldn't] cause mental illness”
although they might “contribute to his vulnerability to it,” and
that “[i]n my opinion and based on what he's told me and just what
I have observed, the job loss, the wrist drop and all were much
more significant psychological factors to him.”
We conclude that defendants' argument that Dr. Hudson's
testimony was speculative is based on selectively excerpted
fragments of testimony taken out of context. We further conclude
that Dr. Hudson was actually
refusing to speculate on cross-
examination. For example, defendants repeatedly asked Dr. Hudson
about the possibility that plaintiff had been exposed to heavy
metals, and that this exposure caused his depression. Dr. Hudson
testified that exposure to heavy metals was no more than an
unproven hypothesis, and, moreover, that even if plaintiff
had been
exposed to heavy metals, this would not cause his psychological
illness. He stated that such exposure “may have increased hisvulnerability to what happened . . . when he developed the wrist
drop and all these issues that . . . I think were significant[.]”
Defendants essentially argue that the evidence of other stressful
factors in plaintiff's life renders the witnesses' testimony
speculative. However:
[The psychiatrist's] cross-examination did
reveal factors other than plaintiff's pain to
which his depression may arguably have been
'secondary.' However, the existence of other
possible causes of plaintiff's depression does
not itself negate either the competency or
probative value of [the doctor's] explicit
opinion that plaintiff's depression was
secondary to his pain as of [the relevant
date].
Haponski v. Constructor's, Inc., 87 N.C. App. 95, 103, 360 S.E.2d
109, 113-14 (1987).
We conclude the Commission's conclusions of law are supported
by its findings of fact, which are amply supported by competent
evidence, and that the Commission's Opinion and Award should be
Affirmed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***