Appeal by defendants from opinion and award entered 30 June
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 16 August 2005.
Brumbaugh, Mu & King, P.A., by Angela D. Vandivier-Stanley,
Cranfill, Sumner & Hartzog, L.L.P., by James B. Black IV, for
Carolyn M. Munford (plaintiff) began working for Neuse Senior
Housing, Inc. on 8 August 2000. Plaintiff was employed as head
cook and was responsible for preparing breakfast and lunch for
approximately sixty senior residents. Plaintiff's job duties
required lifting heavy industrial pots and pans and bags of food,
such as fifty-pound bags of potatoes. Plaintiff, a fifty-seven-
year-old widow with a ninth grade education, weighed approximately
304 pounds and had a history of hypertension and hypothyroidism atthe time of plaintiff's hearing before the North Carolina
Industrial Commission (the Commission).
Plaintiff slipped and fell on a wet floor in the dining room
of the nursing home on 2 August 2001. Plaintiff testified that she
fell so hard "[she] thought [she] cracked every bone in [her]
body." An ambulance transported plaintiff to Craven Regional
Medical Center, where she was treated for low back pain and right
foot pain. Plaintiff's lumbar spine and her right foot were x-
rayed. Plaintiff was out of work for two days. Neuse Senior
Housing, Inc. and AIG Insurance (collectively defendants) paid
plaintiff's medical bills from her fall.
Belinda M. Dillahunt (Ms. Dillahunt) was plaintiff's
supervisor and the administrator of Neuse Senior Housing, Inc.
Ms. Dillahunt testified that she knew about plaintiff's fall as
soon as it occurred. Ms. Dillahunt completed an Industrial
Commission Form 19 on 2 August 2001, reporting plaintiff's fall and
an injury to plaintiff's hip, and filed the form with the
Commission the following day. Plaintiff completed an Industrial
Commission Form 18 on 10 April 2002, reporting injury to her hips,
back, shoulders, and both arms, and filed the form with the
Commission on 12 April 2002.
Plaintiff testified that on or about 1 November 2001, she fell
at work a second time. According to the testimony of plaintiff and
plaintiff's coworker, Ryan Horton (Ms. Horton), plaintiff slipped
in water on the kitchen floor and fell as she walked from her
serving station to a refrigerator. Plaintiff testified that shefell forward and caught herself with her hands. Ms. Horton
testified that plaintiff fell, and then pulled herself up by
grabbing hold of a nearby steam table. Plaintiff testified that
she reported her fall to Ms. Dillahunt. Ms. Dillahunt testified
that it was "possible" that plaintiff had reported the accident to
her, though Ms. Dillahunt denied any recollection of the event.
Following the November fall, plaintiff saw Dr. Mark Larnick
(Dr. Larnick), her primary physician, on 16 January 2002.
Plaintiff complained of pain in her left shoulder. Dr. Larnick
treated plaintiff with anti-inflammatory drugs. Plaintiff's
shoulder did not improve, and Dr. Larnick ordered an MRI of
plaintiff's left shoulder and cervical spine on 4 February 2002.
The MRI revealed a rotator cuff tear, and Dr. Larnick referred
plaintiff to an orthopedic surgeon, Dr. Ray Armistead (Dr.
Armistead). Dr. Armistead performed surgery on plaintiff's left
rotator cuff on 13 February 2002. After receiving various
medicines, injections, and physical therapy, plaintiff again
underwent surgery on her left shoulder in July 2002, for a second
repair to her rotator cuff and for the removal of a bone fragment.
Dr. Armistead testified that plaintiff could not return to her job
as head cook due to the heavy lifting required.
Plaintiff completed a Form 18 on 5 February 2003, reporting
injury to her left arm and shoulder from her November 2001
accident. Ms. Dillahunt completed a Form 19 on 3 April 2003.
Plaintiff's two claims, one for injuries sustained in August
2001 and one for injuries sustained in November 2001, wereconsolidated prior to a hearing before a deputy commissioner in
April 2003. In an opinion and award filed 28 October 2003, the
deputy commissioner found that plaintiff sustained a compensable
injury and was entitled to medical treatment and temporary total
disability for both accidents.
Defendants appealed to the Full Commission on 6 November 2003.
In an opinion and award filed 30 June 2004, the Commission made the
following pertinent findings of fact:
2. On August 2, 2001, plaintiff slipped and
fell on a wet floor . . . . Plaintiff had
pain in her left shoulder following the
accident. . . . Plaintiff's supervisor, Ms.
Dillahunt, stated that Plaintiff told her she
experienced pain in her left shoulder
following the August 2, 2001 incident.
3. Plaintiff was again injured on or about
November 1, 2001 when she once again slipped
and fell on a wet floor at work. Ms. Ryan
Horton, a co-worker, witnessed this accident.
Plaintiff fell to the floor, first on her
hands and then to her knees. Plaintiff
reported this accident to Ms. Dillahunt.
Plaintiff did not seek medical treatment
immediately following this accident.
Plaintiff experienced pain later that evening
in her left arm and shoulder and took Extra
Strength Tylenol to ease the pain. Plaintiff
believed the pain would subside in a few days.
4. Ms. Dillahunt, the defendant-employer's
administrator, knew plaintiff had shoulder
pain following the August 2001 fall. . . .
Ms. Dillahunt provided assistance to lift
heavy pots off the stove and pans out of the
oven . . . . Ms. Dillahunt testified, at the
hearing before the Deputy Commissioner,
plaintiff was an outstanding and credible
employee. Ms. Dillahunt further testified
plaintiff might have told her about the second
fall, even though [Ms. Dillahunt] did not
prepare an accident report.
. . .
6. Ms. Horton knew plaintiff only as a co-
worker and has not had contact with her
outside of work.
. . .
8. . . . Dr. Larnick believed plaintiff to be
a credible patient.
. . .
12. When asked about [p]laintiff's prognosis,
Dr. Armistead stated plaintiff would not
regain full function and would continue to
. . .
16. Dr. Armistead opined plaintiff's work-
related fall more likely than not caused the
rotator cuff tear.
17. Dr. Armistead was willing to complete an
Industrial Commission Form 25R for the purpose
of assigning a permanent partial disability
. . .
19. Dr. Armistead stated that a person can
start with a small tear which gradually
extends and the pain gradually increases over
time. . . . Dr. Armistead opined plaintiff
had a large unilateral tear caused by trauma.
Dr. Armistead further opined pain caused by a
tear progresses and becomes more symptomatic
over time. He also opined Tylenol may have
suppressed plaintiff's pain.
20. Dr. Armistead has treated [p]laintiff over
the past ten years and found plaintiff to be
The Commission then concluded as a matter of law that
plaintiff sustained a compensable injury by accident arising out of
and in the course of her employment on 2 August 2001 and on or
about 1 November 2001. The Commission awarded plaintiff: (1)
temporary total disability compensation at the rate of $185.74 perweek from 13 February 2002 until further order of the Commission,
and (2) payment of all medical expenses incurred or to be incurred
as a result of plaintiff's compensable injuries. Defendants
Our Court's appellate standard of review in workers'
compensation cases is "quite narrow." Calloway v. Memorial Mission
, 137 N.C. App. 480, 484, 528 S.E.2d 397, 400 (2000). Our
review 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 legal conclusions. Counts v. Black & Decker Corp.
N.C. App. 387, 389, 465 S.E.2d 343, 345 (internal citation
omitted), disc. review denied
, 343 N.C. 305, 471 S.E.2d 68 (1996).
If supported by competent evidence, the Commission's findings are
conclusive even if
the evidence might also support a contrary
finding. Jones v. Candler Mobile Village
, 118 N.C. App. 719, 721,
457 S.E.2d 315, 317 (1995) (emphasis added). "The Commission's
findings of fact may be set aside on appeal only where there is a
complete lack of competent evidence to support them." Id
Defendants argue that there is no competent evidence to
support the Commission's findings of fact that plaintiff sustained
an injury to her left shoulder on either 2 August 2001 or 1
November 2001. We disagree. Testimony by plaintiff, Ms. Horton,
Dr. Larnick, Dr. Armistead, and Ms. Dillahunt offer competent
evidence to support the Commission's findings. While some of thetestimony is conflicting, there is competent evidence in the record
to support the Commission's findings. See Adams v. AVX Corp.
N.C. 676, 682, 509 S.E.2d 411, 414 (1998).
Defendants first assign error to the Commission's finding that
plaintiff began having pain in her left shoulder following the 2
August 2001 accident. Defendants argue that the Commission's
finding is contradicted by the stipulated medical records,
testimony of defendants' witnesses, and plaintiff's testimony.
Again, while the evidence is somewhat conflicting, there is
competent evidence in the record to support the Commission's
Plaintiff testified at the hearing that she began experiencing
shoulder pain in October 2001. Plaintiff testified that her left
arm began to hurt in October 2001, but that she did not seek
medical attention because she thought taking Tylenol would cause
her pain to "ease off." Plaintiff testified that she did not seek
medical attention for her left shoulder until January 2002. She
explained that she went to the doctor for her shoulder pain when
Tylenol "wasn't doing [her] any good" and she got to "the point
where [she] couldn't hold anything in [her] hand."
Defendants argue that plaintiff testified to two more
conflicting dates on which she began to experience pain in her left
shoulder: immediately following the fall on 2 August 2001 and after
the November 2001 fall. On direct examination, plaintiff testified
that she had pain in her left arm "all the way up to [her]
shoulder" on the night of her November fall. However, plaintiffdid not specify that this was the first time she had experienced
pain in her left shoulder. On cross-examination, plaintiff was
asked if her left shoulder hurt on 2 August 2001, the day of her
first fall. Plaintiff responded, "Not that much, just some. Very
little, not that much." Defendants contend that this "conflicting"
testimony means that plaintiff could not establish when her
shoulder pain began, and that the Commission should have relied on
medical records, instead of plaintiff's testimony, as evidence of
the onset date of her shoulder pain.
Defendants emphasize that plaintiff's stipulated medical
records show no complaint of shoulder pain until 16 January 2002.
Indeed, plaintiff's medical records from 2 August 2001 do not show
any complaint of shoulder pain. According to an ambulance call
report from 2 August 2001, plaintiff's chief complaint immediately
following her fall was of right hip and lower back pain. The
record from her visit to Craven Regional Medical Center on 2 August
2001 indicates that plaintiff's "upper extremities [were] without
Dr. Larnick's testimony, however, corroborates plaintiff's
testimony that she began having shoulder pain following the August
2001 fall but believed the pain would ease by taking Tylenol. Dr.
Larnick testified that if plaintiff was taking an anti-inflammatory
drug after tearing her rotator cuff, she could have coped with the
pain of the tear "for awhile." Dr. Larnick stated that plaintiff
was credible. He opined that plaintiff "certainly [had] legitimate
medical issues" and did not "run [to the doctor] for every acheand pain."
Dr. Armistead's testimony also corroborates plaintiff's
testimony that she began having shoulder pain following the August
2001 fall. Dr. Armistead testified that "[r]otator cuffs, by their
very nature, gradually worsen over time." He stated that a person
can start with a small tear which gradually extends and that pain
can gradually increase over time. He also stated that Tylenol
could have suppressed plaintiff's pain from a tear. Dr. Armistead
testified that he found plaintiff "entirely credible." He stated
that plaintiff had never "present[ed] falsely" since he began
treating her in 1993. Defendants also emphasize that prior to
plaintiff's undergoing an MRI scan on 4 February 2002, plaintiff
had completed the medical center's patient information sheet and
had checked "No" where the form asked if plaintiff's shoulder pain
was associated with an injury. At the hearing, plaintiff explained
that she "made a mistake" and "probably didn't have [her] glasses"
when she filled out the form. "The evidence tending to support
[the] plaintiff's claim is to be viewed in the light most favorable
to [the] plaintiff, and [the] plaintiff is entitled to the benefit
of every reasonable inference to be drawn from the evidence."
, 349 N.C. at 681, 509 S.E.2d at 414. Viewed in the light
most favorable to plaintiff, granting plaintiff the benefit of
every reasonable inference to be drawn from the evidence, we hold
there was competent evidence to support the Commission's finding
that plaintiff began suffering shoulder pain following the August
Accordingly, we overrule this assignment of error. Defendants next argue that there is no competent evidence to
support the Commission's finding that plaintiff suffered a second
fall on or about 1 November 2001. Defendants contend the only
evidence supporting plaintiff's claim of a November fall is
plaintiff's own testimony and the "inaccurate" testimony of Ms.
Plaintiff testified that on or about 1 November 2001, she
slipped and fell in some water on the kitchen floor as she walked
from her serving station to a refrigerator. Plaintiff testified
that she fell forward and caught herself with her hands. Ms.
Horton's testimony corroborates plaintiff's testimony. Ms. Horton
stated that plaintiff fell as plaintiff was walking to get a cup of
ice for a resident. Ms. Horton stated that after plaintiff fell,
plaintiff pulled herself up by grabbing hold of a steam table that
was the source of the spilled water. Ms. Horton testified that she
was approximately five to ten feet away from plaintiff when
plaintiff fell. Although Ms. Horton could not recall the exact
date of the fall, Ms. Horton stated, "It happened before
Thanksgiving, I know that." Ms. Horton testified that she had not
seen plaintiff since Ms. Horton left employment with Neuse Senior
Housing in November 2002. There is no evidence in the record of
bias on the part of Ms. Horton.
In addition to the testimony of plaintiff and Ms. Horton,
there is also some evidence that Ms. Dillahunt had knowledge of
plaintiff's November 2001 fall. At the hearing, Ms. Dillahunt
stated that it was "possible" that plaintiff had told her about theNovember fall and that she simply did not remember being told.
The Commission found the testimony of plaintiff, Ms. Horton,
and Ms. Dillahunt regarding the November fall to be credible.
Specifically, the Commission found that Ms. Horton knew plaintiff
only as a co-worker and had not had contact with plaintiff outside
of work. The Commission is the "sole judge of the weight and
credibility of the evidence[.]" Deese v. Champion Int'l Corp.
N.C. 109, 116, 530 S.E.2d 549, 553 (2000). As it is the role of
the Commission to determine the credibility of witnesses, we hold
that the testimony of Ms. Horton and plaintiff is competent
evidence that plaintiff suffered a fall in November 2001.
Accordingly, we overrule this argument.
Defendants argue that even assuming arguendo
that there was
competent evidence to support the finding of the November fall,
there is no competent evidence to support the finding that the
November fall was the cause of plaintiff's left shoulder condition.
"In order for there to be a compensable claim for workers'
compensation, there must be proof of a causal relationship between
the injury and the employment." Peagler v. Tyson Foods, Inc.
N.C. App. 593,
597, 532 S.E.2d 207, 210 (2000). "[W]hen
conflicting evidence is presented, 'the Commission's finding of
causal connection between the accident and the disability is
conclusive.'" Bailey v. Sears Roebuck & Co.
, 131 N.C. App. 649,
655, 508 S.E.2d 831, 835 (1998) (quoting Anderson v. Lincoln
, 265 N.C. 431, 434, 144 S.E.2d 272, 275 (1965)). In cases involving "'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.'" Holley v. ACTS, Inc.
, 357 N.C. 228, 232, 581 S.E.2d 750,
(quoting Click v. Pilot Freight Carriers
, 300 N.C. 164,
167, 265 S.E.2d 389, 391 (1980)). Such opinion testimony, however,
cannot be based "'merely upon speculation and conjecture.'" Holley
357 N.C. at 232, 581 S.E.2d at 753
(physician's statement that
there was a "galaxy of possibilities" for plaintiff's condition
held insufficient to establish causation) (quoting Young v. Hickory
, 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000)).
Rather, "the evidence 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
, 357 N.C. at 232, 581 S.E.2d at 753 (internal
quotation and citation omitted). "Our Supreme Court has stated
that 'could' or 'might' expert testimony is probative and competent
evidence to prove causation, where there is no additional evidence
showing the expert's opinion to be a guess or mere speculation."
Jarrett v. McCreary Modern, Inc.
, 167 N.C. App. 234, 241, 605
S.E.2d 197, 202 (2004) (quoting Holley
, 357 N.C. at 233, 581 S.E.2d
at 753; Young
, 353 N.C. at 233, 538 S.E.2d at 916). In the case
before us, both physicians testified that plaintiff's November fall
could have or might have produced plaintiff's shoulder injury, and
there is no additional evidence that either opinion was a guess or
mere speculation. Dr. Larnick testified that given plaintiff'sweight, if plaintiff had fallen in November 2001 and landed on her
arms, the November fall "could [have] cause[d] a rotator cuff
tear." He further testified that if plaintiff began taking an
anti-inflammatory drug after tearing her rotator cuff, she could
have coped with the pain of the tear for awhile. Dr. Larnick also
testified that plaintiff had never made a "specific complaint" of
left shoulder pain prior to January 2002.
When Dr. Armistead was asked to assume that plaintiff fell on
her side in August 2001, began experiencing shoulder pain in
October 2001, and then fell again in November 2001, catching
herself with her arms, he testified that it was "more likely than
not" that the November fall caused plaintiff's rotator cuff tear.
When Dr. Armistead was asked to assume that plaintiff fell on her
buttocks rather than her side in the August fall, he opined that
the August fall would not then be responsible for plaintiff's
symptoms. Dr. Armistead did not, however, change his earlier
opinion that the November fall was "more likely than not" the cause
of plaintiff's shoulder injury. Dr. Armistead further testified
that plaintiff was relatively young to have a degenerative cuff
tear. Dr. Armistead testified that for a person of plaintiff's age
to have a large, unilateral rotator cuff tear, such as the one
plaintiff suffered, "[the tear was] almost invariably [caused by]
trauma." We hold that the testimony by these two physicians was
more than mere speculation or conjecture. Their testimony was
competent evidence to support the finding that plaintiff's shoulder
injury was caused by her fall on 1 November 2001. Accordingly, weoverrule this argument.
Defendants also assign error to the Commission's finding of a
statement by Ms. Dillahunt that plaintiff complained of pain in her
left shoulder following the August fall. On direct examination,
Ms. Dillahunt was asked if she recalled when plaintiff began to
complain of left shoulder pain. Ms. Dillahunt responded, "I really
don't know, but I do know it was after the fall." She did not
specify the August or November fall. When asked if plaintiff
complained of pain close in time to when plaintiff left her
employment with Neuse Senior Housing in February 2002, Ms.
Dillahunt responded affirmatively. On cross-examination, Ms.
Dillahunt was asked if she recalled plaintiff having any shoulder
pain after plaintiff's August fall. Ms. Dillahunt responded that
she remembered plaintiff complaining about pain in the shoulder,
but she did not recall the exact date. When asked if the date was
before Christmas, Ms. Dillahunt responded, "I really don't know."
In light of this testimony, we conclude that the Commission's
finding that Ms. Dillahunt stated that plaintiff complained to her
of left shoulder pain following plaintiff's August fall was not
supported by competent evidence. Nevertheless, we hold that the
Commission's conclusions of law were justified by the remaining
findings of fact.
Defendants also argue that plaintiff's claim for benefits
related to the alleged November 2001 fall is barred by N.C. Gen.
Stat. § 97-22. They ask that the claim be remanded for findings bythe Commission regarding the application of N.C. Gen. Stat. § 97-
22, which requires that "[e]very injured employee or his
representative shall immediately on the occurrence of an accident,
or as soon thereafter as practicable, give or cause to be given to
the employer a written notice of the accident[.]" N.C. Gen. Stat.
§ 97-22 (2003). N.C.G.S. § 97-22 further provides that:
no compensation shall be payable unless such
written notice is given within 30 days after
the occurrence of the accident or death,
unless reasonable excuse is made to the
satisfaction of the Industrial Commission for
not giving such notice and the Commission is
satisfied that the employer has not been
The statute sets out two requirements for excusing a claimant's
failure to give timely notice: the Commission must be satisfied
that (1) a plaintiff has a reasonable excuse for failing to provide
timely written notice and (2) the employer suffered no prejudice
from lack of timely notice.
In this case, the evidence shows that plaintiff did not give
written notice of injury to her employer until she filed Form 18 on
5 February 2003, more than thirty days after the November 2001
accident. Since plaintiff failed to provide written notice within
the thirty-day period, the Commission must be satisfied that (1)
plaintiff had a reasonable excuse for not giving written notice and
(2) defendants were not prejudiced thereby.
On the first issue, the Commission made the pertinent finding
of fact that plaintiff reported the November 2001 accident to Ms.
Dillahunt, her supervisor. Our Court has held that a reasonable
excuse for failing to give timely notice includes "'a belief that[the] employer is already cognizant of the accident.'" Westbrooks
, 130 N.C. App. 517, 528, 503 S.E.2d 409, 416 (1998)
(quoting Lawton v. County of Durham
, 85 N.C. App. 589, 592, 355
S.E.2d 158, 160 (1987)). However, the Commission made no finding
about the reasonableness of plaintiff's excuse. Nor did the
Commission make any finding regarding prejudice to defendants.
"While the Industrial Commission is not required to make specific
findings of fact on every issue raised by the evidence, it is
required to make findings on crucial facts upon which the right to
compensation depends." Watts v. Borg Warner Auto., Inc.
, ___ N.C.
App. ___, ___, 613 S.E.2d 715, 719 (2005) (citing Gaines v. Swain
& Son, Inc.
, 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977)).
"Where the findings are insufficient to enable [this] [C]ourt to
determine the rights of the parties, the case must be remanded to
the Commission for proper findings of fact." Lawton
, 85 N.C. App.
at 592, 355 S.E.2d at 160 (citing Hansel v Sherman Textiles
N.C. 44, 383 S.E.2d 101 (1981)
(case remanded for additional
findings to support Commission's conclusion that the plaintiff
lacked reasonable excuse); see Watts
, ___ N.C. App. at
S.E.2d at 719-20 (where Commission made finding of fact that "late
reporting did not prejudice [the] defendant and [the] plaintiff's
failure to timely report the injury is excused," but failed to make
findings of fact to support the conclusion that the delay was due
to a reasonable excuse, matter remanded for additional findings on
reasonableness and prejudice); Westbrooks
, 130 N.C. App. at 527-29,
503 S.E.2d at 416-17
(where Commission concluded that claim was notbarred by N.C. Gen. Stat. § 97-22, but did not make a finding
regarding the issue of prejudice, matter remanded for specific
findings as to whether the defendants were prejudiced by the
plaintiff's failure to tender written notice of the injury within
In the case before us, whether plaintiff provided a reasonable
excuse for not giving timely written notice to her employer, and
whether defendants were prejudiced, are crucial facts upon which
the right to compensation depends and without which we are unable
to determine the rights of the parties. We must therefore remand
this case to the Commission for specific findings on the
applicability of N.C. Gen. Stat. § 97-22.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).
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