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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
CYNTHIA ESTELLE BOOKER-DOUGLAS, Administratrix of the Estate of
LEROY DOUGLAS, JR., Deceased Employee, Plaintiff, v. J & S TRUCK
SERVICE, INC., Employer, LIBERTY MUTUAL INSURANCE COMPANY,
Filed: 20 June 2006
Workers' Compensation_death benefits_causation
The Industrial Commission did not err by finding no causal relationship between a truck
driver's compensable injury, which left him quadriplegic, and his subsequent death from an
Appeal by plaintiff from an opinion and award filed 26 May
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 16 March 2006.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for
Hedrick Eatman Gardner & Kincheloe, L.L.P, by Tonya D. Davis
and Jeffrey A. Doyle, for defendant appellees.
Cynthia Booker-Douglas appeals from an opinion and award of
the North Carolina Industrial Commission denying her claim for
death benefits following the death of her husband. We affirm the
challenged opinion and award.
On 19 September 1985, decedent Leroy Douglas, Jr., was
employed as a truck driver for defendant J & S Truck Service. On
that particular date, Douglas was assigned to a long distance drive
with at least one other driver. While Douglas was asleep in the
passenger seat of the truck, the other driver lost control of thevehicle. The ensuing accident caused irreparable injury to
Douglas' spinal cord, and rendered him quadriplegic. From the date
of Douglas' accident through 6 October 1994, he received temporary
total disability benefits. He thereafter received permanent total
disability benefits until his death. Douglas died on 6 April 2001
of sudden cardiac death, and the autopsy revealed that he had
hypertrophic heart disease, or an enlarged heart.
In August of 1991, Cynthia Booker-Douglas began working part-
time as Douglas' certified nursing assistant. In 1995, when
Douglas moved from High Point to Greensboro, Booker-Douglas became
his sole care-giver. She provided twenty-four-hour care for
Douglas, for which she was paid $1,517.40 per week by J & S'
workers' compensation carrier. She and Douglas were married on 8
Following Douglas' death, Booker-Douglas filed a claim on
behalf of his estate with the North Carolina Industrial Commission.
Booker-Douglas' claim alleged that Douglas' 19 September 1985
spinal cord injury caused the hypertrophic heart disease which
resulted in his death. Booker-Douglas sought death benefits, and
At a hearing before the Industrial Commission, J & S Truck
Service and its workers' compensation carrier, Liberty Mutual
Insurance (hereinafter defendants), presented evidence tending to
show that Douglas' fatal hypertrophic heart disease was not caused
by his compensable quadriplegia. According to the testimony of Dr.
Sewell Dixon, an expert cardiovascular surgeon retained bydefendants, hypertrophic heart disease is an enlargement of the
heart muscle, resulting from the heart having to work harder to
pump blood throughout the body. According to Dr. Dixon, it also
can be caused by cardiomyopathy, an abnormality in the muscle of
the heart which causes the rest of the heart to work harder to
Booker-Douglas averred that Douglas' heart was enlarged due to
his quadriplegia; however, Dr. Dixon testified that, with
quadriplegics, physical inactivity generally causes the heart to
atrophy, because the body's muscles require less oxygen, not more.
Dr. Dixon stated that there are two ways that quadriplegia could be
related to sudden cardiac death. One way is if the death was the
result of a pulmonary embolism. A pulmonary embolism is when a
blood clot forms in the leg and travels up through the heart and
causes a sudden obstruction of blood flow to the lungs. Pulmonary
embolisms are common in people who are inactive because blood clots
are more likely to form in areas with decreased blood circulation,
a common result of inactivity. However, the pathologist performing
Douglas' autopsy found no evidence of a pulmonary embolism.
According to Dr. Dixon, another way quadriplegia could cause
sudden cardiac death is if a decedent had significant coronary
artery disease. There is a high correlation between people who are
obese, have high blood pressure, smoke, and do not get enough
exercise, and coronary artery disease. However, there was no
evidence that Douglas had coronary heart disease. Booker-Douglas averred that Douglas had lung and heart
problems prior to his death that went undiagnosed and that these
problems caused his enlarged heart. This averment was based on an
autopsy that revealed that Douglas had pulmonary congestion and
edema, i.e., fluid in the lungs. Booker-Douglas claimed that fluid
in Douglas' lungs would have caused the heart to work harder, and
therefore become enlarged. When examined on this point, Dr. Dixon
explained that an enlarged heart is usually the cause, not the
result, of pulmonary edema. Dr. Dixon testified that Douglas'
pulmonary congestion or edema was most likely caused by the
attempts to resuscitate Douglas.
A Deputy Commissioner with the Industrial Commission denied
Booker-Douglas' claim on 27 May 2004. On an appeal by Booker-
Douglas, the Full Commission (hereinafter the Commission) also
denied Booker-Douglas' claim, based on a finding that Douglas died
of a fatal arrythmia due to an enlarged heart that was caused by
cardiomyopathy, and that there was no causal relationship between
the cardiomyopathy and Douglas' quadriplegia or his compensable
Booker-Douglas now appeals to this Court.
Standard of Review
The standard of review for an opinion and award of the North
Carolina Industrial Commission is (1) whether any competent
evidence in the record supports the Commission's findings of fact,
and (2) whether such findings of fact support the Commission's
conclusions of law. Creel v. Town of Dover, 126 N.C. App. 547,552, 486 S.E.2d 478, 480 (1997). The Commission's findings of
fact are conclusive on appeal if supported by competent evidence,
notwithstanding evidence that might support a contrary finding.
Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d
860, 862 (2002). In determining the facts of a particular case,
the Commission is the sole judge of the credibility of the
witnesses and the weight accorded to their testimony. Effingham
v. Kroger Co., 149 N.C. App. 105, 109-10, 561 S.E.2d 287, 291
(2002) (citations omitted). This Court reviews the Commission's
conclusions of law de novo. Deseth v. LensCrafters, Inc., 160
N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).
The dispositive issue on appeal is whether the Commission
erred by determining that Douglas' death of hypertrophic heart
disease was not causally related to the quadriplegia which resulted
from his 1985 compensable injury. We discern no error in the
Workers' Compensation death benefits are governed, as follows,
by section 97-38 of the North Carolina General Statutes:
If death results proximately from a
compensable injury or occupational disease
. . . the employer shall pay or cause to be
paid, subject to the provisions of other
sections of this Article, weekly payments of
compensation equal to sixty-six and two-thirds
percent (66 2/3%) of the average weekly wages
of the deceased employee at the time of the
accident . . . and burial expenses . . . .
. . . .
When weekly payments have been made to an
injured employee before his death, the
compensation to dependents shall begin from
the date of the last of such payments.
Compensation payments due on account of death
shall be paid for a period of 400 weeks from
the date of the death of the employee;
provided, however, after said 400-week period
in case of a widow or widower who is unable to
support herself or himself because of physical
or mental disability as of the date of death
of the employee, compensation payments shall
continue during her or his lifetime or until
remarriage . . . .
N.C. Gen. Stat. § 97-38 (2005). For death benefits to be awarded
under this statute, a compensable injury must be the proximate
cause of the employee's death. Id.
In the instant case, there was evidence that Douglas'
compensable quadriplegia was not the cause of his death from
hypertrophic heart disease. Specifically, Dr. Dixon offered the
following deposition testimony:
[DEFENSE COUNSEL]: . . .[D]o you have an
opinion to a reasonable degree of medical
certainty as to whether or not there's any
causal relationship between Mr. Douglas'
enlarged heart and cardiomyopathy and his
[DR. DIXON]: I don't see how you can
construct a logical relationship, if that
answers the question properly, and I think it
does. My _ my medical opinion is that there's
not a relationship between quadriplegia and a
[DEFENSE COUNSEL]: And what is your opinion
with respect to whether or not there's a
causal relationship between quadriplegia and
an enlarged heart?
[DR. DIXON]: I don't think there is a causal
relationship. The literature, in fact, saysjust the reverse occurs, that the heart would
be -- tend to be smaller, not enlarged.
On appeal, Booker-Douglas makes several arguments as to why,
in her view, the Commission could not rely upon Dr. Dixon's
testimony to find and conclude that there was no causal nexus
between Douglas' quadriplegia and death and why the Commission was
compelled to find that there was such a causal nexus. We find
these arguments unpersuasive.
Booker-Douglas first contends that Dr. Dixon's testimony was
insufficient to establish the lack of a causal nexus between
Douglas' quadriplegia and his death of heart disease because the
doctor's testimony was speculative under the standard established
by Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003). We
In Holley, our Supreme Court held that an award of
compensation in a case involving a complex medical question must be
premised upon an expert's non-speculative opinion that a work-
related accident caused an employee's injury. Id. at 234, 581
S.E.2d at 754. In such cases, if an expert's opinion as to
causation is based on speculation, his opinion is not competent
evidence which supports a finding that an accident at work caused
the employee's injury. Id.; see also Young v. Hickory Bus. Furn.,
353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000). However, medical
certainty from the expert is not required, and even if an expert is
unable to state with certainty that there is a nexus between anevent and an injury, his testimony relating the two is at least
some evidence of causation if there is additional evidence which
establishes that the expert's testimony is more than conjecture.
See Singletary v. N.C. Baptist Hosp., __ N.C. App. __, __, 619
S.E.2d 888, 893-94 (2005); Adams v. Metals USA, 168 N.C. App. 469,
482, 608 S.E.2d 357, 365, aff'd per curiam, 360 N.C. 54, 619 S.E.2d
In the instant case, our review of the record reveals that Dr.
Dixon's testimony concerning causation was not speculative.
Rather, his opinion was unequivocal as to a lack of a causal link
between Douglas' compensable quadriplegia and his death of heart
disease. Further, Dr. Dixon stated that his opinion was based on
his survey of medical literature. Accordingly, the doctor's
testimony was not incompetent under our Supreme Court's decision in
Booker-Douglas further contends that Dr. Dixon's testimony
could not be considered by the Commission because he was paid a fee
which was outside of the fee schedule established by the Commission
for payment to medical providers. This contention also lacks
Booker-Douglas' argument concerning Dr. Dixon's fee is
premised upon her interpretation of sections 97-26(a) and (b), 97-
90(a), and 97-91 of the North Carolina General Statutes. Section
97-26 provides, in pertinent part, as follows: (a) Fee Schedule. -- The Commission shall
adopt a schedule of maximum fees for medical
compensation, except as provided in subsection
(b) of this section, and shall periodically
review the schedule and make revisions
pursuant to the provisions of this Article.
The fees adopted by the Commission in its
schedule shall be adequate to ensure that (i)
injured workers are provided the standard of
services and care intended by this Chapter,
(ii) providers are reimbursed reasonable fees
for providing these services, and (iii)
medical costs are adequately contained.
. . . .
(b) Hospital Fees. -- Each hospital
subject to the provisions of this subsection
shall be reimbursed the amount provided for in
this subsection unless it has agreed under
contract with the insurer, managed care
organization, employer (or other payor
obligated to reimburse for inpatient hospital
services rendered under this Chapter) to
accept a different amount or reimbursement
N.C. Gen. Stat. § 97-26 (2005). Section 97-90(a) states that
[f]ees for attorneys and charges of health
care providers for medical compensation . . .
shall be subject to the approval of the
Commission; but no physician or hospital or
other medical facilities shall be entitled to
collect fees from an employer or insurance
carrier until he has made the reports required
by the Commission in connection with the case.
N.C. Gen. Stat. § 97-90(a), (b) (2005). Section 97-91 is merely a
legislative instruction to the Commission that it should determine
all workers' compensation issues not settled by valid agreement of
Read closely and in context, the foregoing provisions are not
applicable to the fee paid to Dr. Dixon. Sections 97-26 and 97-90(a) govern payment for medical compensation, which is defined
by section 97-2(19) as
medical, surgical, hospital, nursing, and
rehabilitative services, and medicines, sick
travel, and other treatment, including medical
and surgical supplies, as may reasonably be
required to effect a cure or give relief and
for such additional time as, in the judgment
of the Commission, will tend to lessen the
period of disability[.]
N.C. Gen. Stat. § 97-2(19) (2005). In the instant case, Dr. Dixon
was retained as an expert witness. He did not provide medical
services to Douglas. Expert witness fees are not mentioned in
section 97-26, 97-90(a), or 97-2(19). Further, it would be
inappropriate to interpret these provisions as being applicable to
expert witness fees, given that the purpose of the provisions is to
ensure that injured employees receive medical treatment, see N.C.
Gen. Stat. § 97-26(a), and given that, in some circumstances,
medical providers are permitted to negotiate a higher fee with a
workers' compensation carrier, see N.C. Gen. Stat. § 97-26(b).
Accordingly, Dr. Dixon's testimony was not required to be excluded
by the Commission because of the fee paid to the doctor.
Booker-Douglas also challenges the Commission's causation
determination on the ground that the Commission erroneously failed
to apply a legal presumption that Douglas' death was caused by his
compensable injury. In support of her contention that such a
presumption exists, Booker-Douglas notes that a presumption of
compensability arises where the evidence shows that death occurredwhile the decedent was within the course and scope of employment,
but the medical reason for death is not adduced. Pickrell v.
Motor Convoy, Inc., 322 N.C. 363, 369, 368 S.E.2d 582, 585-86
The instant case does not involve a situation where an
employee died within the course and scope of his employment, and
Booker-Douglas has cited no cases which apply the presumption, from
which she seeks to benefit, to circumstances analogous to those
presented in the instant case. Further, as already indicated,
there was evidence from which the Commission could find and
conclude that Douglas' death was not caused by his quadriplegia
and, therefore, was not causally related to his 1985 compensable
injury. Accordingly, even assuming arguendo that Booker-Douglas
was entitled to a presumption of compensability, the Commission was
not precluded from denying compensation in the instant case.
Booker-Douglas further asserts that the Commission should have
applied a chain of causation test to determine that Douglas'
death was caused by his work-related quadriplegia. Booker-Douglas
admits that the cases applying this test involved employees who had
committed suicide, and she provides an entirely unprepossessing
argument as to why this rule should be applied in the instant case.
As already indicated, the Commission was not precluded from finding
and concluding that Douglas' death was unrelated to the injuries he
sustained in the 1985 work-related accident.
The foregoing analysis makes it unnecessary for us to address
Booker-Douglas' claims regarding the level of benefits that she
The assignments of error are overruled. The Commission's
opinion and award is
Judges TYSON and LEVINSON concur.
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