Appeal by defendants from opinion and award entered 12 October
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 10 October 2005.
Hodgman and Oxner, by Todd P. Oxner, for plaintiff-appellee.
Brotherton, Ford, Yeoman, & Worley, P.L.L.C., by Joseph F.
Brotherton and Steven P. Weaver, for defendant-appellants.
MARTIN, Chief Judge.
Mail Contractors of America (“MCA”) and its insurance carrier,
Lumbermen's Mutual Casualty Company (collectively “defendants”),
appeal from an opinion and award of the North Carolina Industrial
Commission (the “Commission”) awarding Carl J. Spano (“plaintiff”)
ongoing total disability benefits as a result of a back injury. We
reverse. MCA hired plaintiff as a truck driver in July of 2000.
Plaintiff's job duties involved inspecting and driving a tractor-
trailer truck; picking up, loading, unloading, and delivering
wheeled mail containers; and hooking and unhooking the trailer from
the truck. The mail containers weighed, at times, in excess of 300
pounds.
Prior to 25 October 2001, plaintiff testified he suffered from
occasional back pain but had not missed work due to back problems
or sought medical attention. On 25 October 2001, plaintiff was
loading and transporting bulk mail between Greensboro and
Charlotte. Although plaintiff was not involved in an accident and
could not recall an exact time that he began experiencing back
pain, plaintiff's back began bothering him during his return trip
from Charlotte. Plaintiff differentiated the pain he felt in his
back on 25 October 2001 from his previous aches and pains and
described the pain as “a real sharp pain in [his] lower back,
running across [his] hip[.]”
Plaintiff did not initially report the pain; however, as the
pain worsened the following day, plaintiff contacted MCA to report
it on the advice of his family doctor. MCA's physician evaluated
plaintiff and placed him on light duty with restrictions of
lifting, pushing, and pulling no more than ten to twenty pounds,
but MCA did not have any positions consistent with those
restrictions. On 7 November 2001, plaintiff presented to MCA's
treating physician for the final time and was referred to his
family doctor. Dr. Avva, plaintiff's family doctor, evaluatedplaintiff, took him out of work entirely, and sent plaintiff for an
evaluation with Dr. Kramer, a physical medicine expert in an
orthopedic surgeon group. Dr. Kramer concurred with Dr. Avva that
plaintiff should be held entirely out of work. A subsequent MRI
revealed a ruptured disc at L5-S1 and a bulging disc between L3-L4.
Plaintiff filed a claim for workers' compensation, which was
denied by defendants on 2 November 2001. After a hearing on the
matter, a deputy commissioner entered an order on 3 December 2003
denying plaintiff's claim. On 12 October 2004, the Commission
reversed. The Commission found plaintiff “suffered an injury
during his shift on the night of 25 October 2001” that resulted in
his inability to work. Based on this finding, the Commission
concluded plaintiff sustained a compensable injury “when he
suffered a specific traumatic incident when, while driving a truck
after unloading heavy objects, he felt a severe sharp pain in his
back.” The Commission awarded temporary total disability
compensation from 26 October 2001 until plaintiff returned to work
or other order of the Commission. From this opinion and award,
defendants appeal.
_______________________
This Court's review of an opinion and award of the Industrial
Commission is “limited to reviewing whether any competent evidence
supports the Commission's findings of fact and 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). “[T]he full Commission is the sole judge of the weight andcredibility of the evidence,”
see id., and the Commission's
“findings of fact are conclusive on appeal if supported by
competent evidence even though there is evidence to support a
contrary finding.”
Murray v. Associated Insurers, Inc., 341 N.C.
712, 714, 462 S.E.2d 490, 491 (1995). The Commission's conclusions
of law, however, are reviewed
de novo.
Griggs v. Eastern Omni
Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).
Defendants assert Dr. Kramer's testimony, the only expert
testimony received regarding medical causation, “did not in any way
establish proximate causation between [plaintiff's] back problems
and any specific traumatic incident sustained in the course and
scope of his employment” with MCA. “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, 753 (2003)
(quoting
Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167,
265 S.E.2d 389, 391 (1980)). Our Supreme Court has previously held
that the cause of a herniated disc is a complicated medical
question ordinarily requiring expert testimony.
Gillikin v.
Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965);
see also
Click, 300 N.C. at 168, 265 S.E.2d at 391. Expert testimony that
an injury possibly (i.e. “could” or “might” have) resulted from an
accident or specific traumatic incident is insufficient to prove
causation, especially where other evidence shows the testimony to
be guesswork or speculation; however, expert testimony that aninjury “likely” resulted from an accident or specific traumatic
incident constitutes competent evidence to support a finding of
causation.
Accord Cannon v. Goodyear Tire & Rubber Co., __ N.C.
App. __, __, 614 S.E.2d 440, 446-447 (2005);
Edmonds v. Fresenius
Med. Care, 165 N.C. App. 811, 814, 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, 359 N.C. 313, 608
S.E.2d 755 (2005)).
In the instant case, the evidence adduced through the
testimony of Dr. Kramer indicated that plaintiff suffered from a
degenerative disc disorder. When asked as to the origin of
plaintiff's bulging and ruptured vertebral discs, Dr. Kramer
affirmed that he had no information or knowledge from which he
could say “there was any other origin of [plaintiff's] back
problems . . . other than a degenerative [disc] process.” Dr.
Kramer further affirmed that he could not “distinguish whether or
not . . . the [bulging and ruptured] discs came from a specific
incident or from the degenerative disc disease[.]” Dr. Kramer
admitted that no information presented to him indicated “that any
of the problem . . . in [plaintiff's] back [was] from any other
source [than the long-term deterioration process.]” In fact, the
only evidence Dr. Kramer provided in his deposition regardingmedical causation of plaintiff's injury was that plaintiff's job
duties on 25 October 2001 were “a type of behavior which could lead
to the disc bulges which were noted on [plaintiff's] MRI[.]”
Based on this statement by Dr. Kramer, the Commission made a
single finding of fact: “Dr. Kramer testified that the plaintiff's
job duties that he completed during his shift on the night in
question were the types of actions that could cause the plaintiff's
back problems.” While this finding accurately sets forth Dr.
Kramer's opinion, that opinion provides no more than a possible
cause of plaintiff's medical condition and does not rise to the
level of competent evidence of medical causation required under the
authority cited above
. Since the record contains no other expert
opinion to support a finding that plaintiff's herniated and bulging
discs were caused by a specific traumatic incident, the
Commission's conclusion that plaintiff sustained a compensable
injury by accident arising out of and in the course of his
employment is not supported by the findings of fact and the
Commission's award must be reversed.
Reversed.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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