1. Workers' Compensation_most advanced specialty doctrine_not recognized
There was ample support in the record in a workers' compensation case for the Industrial
Commission's findings and conclusions that plaintiff's job was not the cause or an exacerbating
condition of his underlying rheumatoid arthritis. The “most advanced speciality doctrine,”
advocated by plaintiff, was not recognized.
2. Workers' Compensation_appellate role_whether findings supported by record
The role of the Court of Appeals in a workers' compensation case is to determine whether
the Industrial Commission's findings are supported by the record. If so, as here, the decision is
affirmed.
Judge WYNN concurring.
Ben E. Roney, Jr., for plaintiff-appellant.
Young, Moore and Henderson, P.A., by J. Aldean Webster, III,
for defendant-appellees.
JACKSON, Judge.
On 9 April 2002, Deputy Commissioner Amy L. Pfeiffer heard
Mark J. Armstrong's (“plaintiff”) workers' compensation claim filed
against W.R. Grace & Co. (“defendant-employer”) and Continental
Casualty Company (“defendant-carrier”), collectively defendants.
On 8 May 2003, the Deputy Commissioner issued an Opinion and Award
in favor of defendants. On 14 October 2003, the full Commissionheard plaintiff's appeal. On 5 December 2003, an Opinion and Award
in favor of defendants was filed by Commissioner Laura K. Mavretic,
with Commissioner Bernadine S. Ballance concurring and Commissioner
Thomas J. Bolch dissenting. It is from the full Commission's
Opinion and Award that plaintiff appeals.
The full Commission's findings of fact tended to show that in
1975, defendant-employer hired plaintiff as a general helper.
Plaintiff also worked as a maintenance helper, a machine operator,
and a tooling assembler. Plaintiff worked for defendant-employer
until he took a leave of absence due to pain and loss of range of
motion in his elbows. As a machine operator for approximately
thirteen years, plaintiff was required to use his upper extremities
frequently and repetitively and with load-bearing force. Plaintiff
prepared raw product, finished the product, and cleaned and
adjusted the machines. Plaintiff's job duties required lifting,
transporting, handling, reaching, and making load bearing
movements. Plaintiff began to experience left elbow problems while
working in May 1989. Shortly thereafter, plaintiff experienced
pain in his right elbow while working. Plaintiff continued to work
for defendant but did not seek medical treatment until 26 January
1990, when he was seen by Dr. E. O. Marsigli (“Dr. Marsigli”), an
orthopaedist. Plaintiff reported to Dr. Marsigli that he had been
unable to fully extend his upper left extremity since May 1989.
On or about 23 December 1991, Dr. Marsigli diagnosed plaintiff
with post traumatic arthritis of the left elbow. On 19 February
1996, however, Dr. Marsigli stated by letter that he could notdetermine the cause of plaintiff's bilateral elbow condition, and
that “job related traumatic arthrosis of the elbow has not been
described in the literature to his knowledge.” On 8 July 1992, Dr.
Helen E. Harmon (“Dr. Harmon”), a rheumatologist, diagnosed
plaintiff with questionable rheumatoid arthritis. Dr. Harmon did
not comment as to whether plaintiff's work situation caused or
exacerbated his bilateral elbow symptoms.
On 21 July 1992, plaintiff transferred from the position of
operator to tooling assembler, which required the use of both upper
extremities to change inserts, change cavities, change needles and
clean needles.
Plaintiff sought additional treatment from Dr. Ralph W.
Coonrad (“Dr. Coonrad”), an orthopaedic surgeon, in October 1992.
On 22 October 1992, plaintiff ceased employment with defendant. On
23 November 1992, Dr. Coonrad performed a left elbow replacement on
plaintiff due to plaintiff's left elbow symptoms. After the
surgery, Dr. Coonrad diagnosed plaintiff with arthrosis of both
elbows due to rheumatoid arthritis.
A second physician, Dr. William Byrd (“Dr. Byrd”), diagnosed
plaintiff with severe bilateral synovitis and pain of plaintiff's
elbows with uncertain etiology on 3 August 1993. Dr. Byrd could
not exclude rheumatoid arthritis as an underlying diagnosis. On 28
September 1993, Dr. Coonrad performed a total right elbow
replacement.
Plaintiff received additional medical treatment later in 1993.
On 21 December 1993, rheumatologist Dr. David S. Caldwell (“Dr.Caldwell”), determined that plaintiff might have an atypical
presentation of rheumatoid arthritis. Dr. Caldwell further stated
that plaintiff's job might have had something to do with
plaintiff's bilateral elbow problems.
On 12 July 1994, plaintiff filed a Form 18 with the Industrial
Commission. In the Form 18, plaintiff claimed that repetitive load
bearing movements with his upper extremities caused traumatic
arthritis. Plaintiff's bilateral elbow problems had begun five
years prior to the filing of the Form 18 with the Industrial
Commission; he was diagnosed with traumatic arthritis two and one
half years prior to filing his Form 18 with the Industrial
Commission; and he was diagnosed with rheumatoid arthritis twenty
months prior to filing the Form 18.
Dr. Coonrad informed plaintiff on 3 May 1996, that it was
unlikely that plaintiff's job caused his rapidly progressive and
severe arthrosis of each elbow, and although it might have been an
aggravating condition, Dr. Coonrad could not determine a percentage
or degree of aggravation. Dr. Caldwell confirmed plaintiff's
diagnosis of atypical presentation of rheumatoid arthritis when
x-rays revealed that plaintiff was experiencing erosive changes in
his feet in January 2001.
In October 2000, plaintiff filed a Form 33 requesting a
hearing on this matter. There is no evidence in the record to show
that other employees suffered from hand and arm injuries in the
course of their employment. The Deputy Commissioner found that
there has been no person other than plaintiff who has everdeveloped complete bilateral elbow joint destruction while
performing an operator job with defendant-employer.
In Dr. Caldwell's deposition, he stated that (1) because of
plaintiff's pre-existing rheumatoid disease, plaintiff had an
increased risk of developing an exacerbation of his underlying
rheumatoid arthritis compared to the general public not so
employed; (2) plaintiff's job at defendant-employer for a person
without rheumatoid arthritis posed no increased risk of the type of
elbow problems plaintiff experienced; (3) plaintiff's job
contributed to the advanced arthritis and the destruction of his
bilateral elbow joints; and (4) plaintiff's elbow aggravation and
the underlying disease process resulted in plaintiff's incapacity
for continued work after 22 October 1992.
Another orthopaedic surgeon specializing in upper extremities,
Dr. George S. Edwards (“Dr. Edwards”), testified that plaintiff's
job subjected plaintiff's elbows to microtrauma due to its
repetitive nature and that the job could have placed plaintiff at
an increased risk of injuring his arms compared to the general
public. However, Dr. Edwards testified that the job and
plaintiff's performance did not have an effect on the cartilage
destruction within plaintiff's elbows and the job did not cause or
accelerate any permanent deterioration of his elbow joints.
In addition, Dr. Douglas H. Adams (“Dr. Adams”) testified that
although plaintiff's job required him to use his upper extremities
repetitively, Dr. Adams knew of no studies showing an associationbetween work and the degree of force on the joint and the
progression of rheumatoid arthritis and the destruction of joints.
On appeal, plaintiff-appellant argues that the Commission
committed reversible error in finding for defendant-appellees, and
presents eleven Assignments of Error citing various challenges to
the full Commission's disposition of this case. In their response,
defendants raise eight cross-assignments of error.
The standard of review in an appeal from the full Commission
is limited to determining “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). Our
review “'goes no further than to determine whether the record
contains any evidence tending to support the finding.'” Adams v.
AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation
omitted). The full Commission's findings of fact are conclusive on
appeal when supported by competent evidence, even if there is
evidence to support a contrary finding, Morrison v. Burlington
Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set
aside on appeal only “when there is a complete lack of competent
evidence to support them[.]” Young v. Hickory Bus. Furniture, 353
N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (citation omitted).
[1] Of the eleven Assignments of Error submitted by plaintiff,
only one challenges the Commission's Findings of Fact. In this
assignment, plaintiff challenges the validity of Finding of Fact
Number 16, the Commission's crediting of an orthopaedist'stestimony over the testimony of a rheumatologist, premised upon
this Court's applying a “most advanced specialty” doctrine that we
have never before adopted or recognized. Plaintiff cites as
authority a federal court case and argues that the court, or in
this case the Commission, should credit the testimony of the most
advanced specialist who treated a particular patient. See Cosgrove
v. Provident Life and Accident Insurance Co., 317 F. Supp. 2d 616
(E.D.N.C. 2004). This Court is unable to ascertain the existence
of such a doctrine, nor has this Court ever recognized such a
doctrine, and we decline to do so at this time. In the particular
case upon which the plaintiff relies, the judge, acting as
factfinder, merely credits the testimony he finds most compelling
and credible. In that case, the credible diagnosis happened to
originate from the specialist who treated the patient, as opposed
to the primary care physician. Id. at 625.
Under our Workers' Compensation Act, the Commission is the
factfinding body. Brewer v. Powers Trucking Co., 256 N.C. 175,
182, 123 S.E.2d 608, 613 (1962). The Commission is the sole judge
of the credibility of witnesses and the ultimate factfinder whether
it is conducting a hearing or reviewing a cold record. Adams, 349
N.C. at 680-81, 509 S.E.2d at 413. On appeal, this Court does not
“'weigh the evidence and decide the issue on the basis of its
weight . . . [t]he court's duty goes no further than to determine
whether the record contains any evidence tending to support the
finding.'” Deese, 352 N.C. at 115, 530 S.E.2d at 552 (citations
omitted). The full Commission reviewed depositions from three qualified
physicians, and reviewed notes from another physician who was not
present. It is clear that the Commission recognized the competing
opinions of two of these physicians, Drs. Caldwell and Edwards, as
to whether plaintiff's underlying disease was either caused or
exacerbated by his job. Dr. Caldwell testified that plaintiff's
job was an underlying aggravator, while Dr. Edwards testified that
plaintiff's job “did not have an effect on the underlying cartilage
destruction within plaintiff's elbow joints.” The Commission
acknowledged that Dr. Adams, a physician who did not treat
plaintiff but reviewed his medical history and notes, also stated
that he knew of no studies “showing an association between work and
the degree of force on a joint and . . . the destruction of
joints.” Of the three physicians who testified, and the fourth
whose notes were provided, the Commission concluded that only Dr.
Caldwell opined that plaintiff's job aggravated his underlying
arthritis. For that reason, and others within the exclusive
purview of the Commission, the Commission concluded that
plaintiff's job was not the cause or an exacerbating condition of
his underlying rheumatoid arthritis. We find ample support in the
record to affirm the Commission's findings of fact, and further
find that those facts support the corresponding conclusions of law.
[2] The remaining Assignments of Error, if undertaken, would
require this Court to weigh evidence, assess the credibility of
witnesses, and substitute our judgment for that of the
Commission's. As noted supra, that is neither our role nor ourright. The role of this Court is to determine whether the
Commission's findings of fact are supported by the record, and if
so, its decision is to be affirmed. If there is competent evidence
to support the Commission's findings, our inquiry ends. In the
case at bar, we find that there is competent evidence to support
the Commission's findings and we therefore affirm its findings of
fact, and affirm its ruling in favor of defendants.
Since we find for the defendants on the merits of the case,
there is no need to reach their cross-assignments of error.
Affirmed.
Judge WYNN concurs in a separate opinion.
Judge Bryant concurs.
WYNN, Judge, concurring.
I agree with the result in the majority opinion but write
separately to further consider Plaintiff's argument regarding the
“most advanced specialty” doctrine, which has not been adopted by
any court in North Carolina.
It is well established under our case law that findings of
fact of the Industrial Commission are upheld on appeal if those
findings are supported by “any competent evidence[.]” Deese v.
Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553
(2000). It is important to note that Plaintiff does not argue that
the opinions of doctors with specialties other than rheumatology
would be incompetent evidence under the facts of this case.
Instead, Plaintiff argues that the full Commission should haveafforded the greatest credibility or highest quality of competence
to the doctor/expert who has the “most advanced specialty” in the
field of medicine the disease or injury concerns.
Plaintiff cites to Cosgrove v. Provident Life & Accident Ins.
Co., 317 F. Supp. 2d 616 (E.D.N.C. 2004), to support his theory of
the “most advanced specialty” doctrine. In Cosgrove, the defendant
insurance company denied the plaintiff's claim for long term
disability after discounting the opinion of the plaintiff's
treating physician, a specialist in the field of her disease, and
instead relied upon the opinion of another doctor, not in the same
specialty, who never treated the plaintiff but simply reviewed her
medical records. Id. at 625. The court never announced a doctrine
of needing to give greater weight to the doctor with the “most
advanced specialty” but simply held that “there was a lack of
substantial, objective evidence to discount the reliability and
weight of Plaintiff's uncontradicted evidence of symptoms[.]” Id.
Here, Plaintiff was first treated by an orthopedist, Dr.
Coonrad, who performed surgery on his elbow. Later he was treated
by a rheumatologist Dr. Caldwell. Both doctors, and several
others, testified. Plaintiff argues that the full Commission
should have given greater weight to Dr. Caldwell's testimony or
that Dr. Caldwell's testimony should be more competent than Dr.
Coonrad's testimony, because Dr. Caldwell, a rheumatologist, has
the most specific specialty regarding Plaintiff's eventual
diagnosis of rheumatoid arthritis. The full Commission determines credibility of witnesses, not
this Court. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
413-14 (1998). Therefore, it is the full Commission's decision
whether to afford a higher degree of credibility to the doctor or
expert with the “most advanced specialty.” On appeal, this Court
is limited to determining “whether any competent evidence supports
the Commission's findings of fact[.]” Deese, 352 N.C. at 116, 530
S.E.2d at 553 (emphasis added). Therefore, even if this Court gave
greater deference to the doctor with the “most advanced specialty,”
Dr. Caldwell, the full Commission still relied on testimony of
doctors competent to testify, meeting the “any competent evidence”
standard. See id.
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