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1. Workers' Compensation_aggravation of existing back injury_fall at home not an intervening event
A fall at home by a workers' compensation plaintiff aggravated his existing compensable back injury and was not an intervening event that barred further compensation.
2. Workers' Compensation_findings_more than recitation of evidence required
A workers' compensation finding was adequate where the last sentence reflected the Industrial Commission's consideration of the evidence. Recitations of a physician's testimony and written surgery notes would not in themselves constitute a finding of fact.
3. Workers' Compensation_findings_general and specific_propensity to degenerative
back disease following surgery
There was no evidence in the record to support the Industrial Commission's specific finding about this plaintiff's propensity to develop degenerative disease following back surgery, although there was competent evidence to support Industrial Commission's general statement of such a propensity.
4. Workers' Compensation_back injury_degenerative changes following
The evidence supported the Industrial Commission's finding that the narrowing of the spinal canal of a workers' compensation plaintiff with a back injury was caused by the prominence of a primary spinal ligament (the ligamentum flavum) and scarring from surgery.
5. Workers'Compensation_back injury_second surgery compensable_supported by
The Industrial Commission' conclusion that a workers' compensation plaintiff's second back surgery was a consequence of his compensable injury was supported by the findings. Testimony about degenerative changes was not addressed, given the viable finding that plaintiff's stenosis was caused by scar tissue from his first surgery.
6. Workers' Compensation_back injury_release for work but not from medical
care_continued pain--findings supported by evidence
Findings in a workers' compensation back case that plaintiff had been released for work but not from medical care and that he continued to suffer pain were supported by medical notes and testimony.
7. Workers' Compensation_credibility_Industrial Commission as sole judge
The Industrial Commission is the sole judge of credibility in workers' compensation cases. A finding that plaintiff's testimony was credible was upheld.
8. Workers' Compensation_ongoing disability_findings
The Industrial Commission properly concluded that a workers' compensation plaintiff suffered an ongoing disability. The Commission found that a physician had written plaintiff out of work, that he was injured in a fall on ice, that the medical testimony was that a person who has undergone spinal surgery is more likely to suffer worse symptoms from an injury to the back and that plaintiff's activity was limited by pain. Plaintiff testified about the effect the pain had on his ability to work as well as his qualification for social security disability, and the Commission found plaintiff's testimony to be credible and sufficient to prove the ongoing nature of his disability.
Judge STEPHENS dissenting.
The Law Offices of Lee and Smith, P.A., by D. Andrew Turman,
Hedrick Eatman Gardner & Kincheloe, L.L.P., by C.J. Childrers, for defendants-appellants.
William Davis (plaintiff) worked as a games performance technician for Harrah's Cherokee Casino (Harrah's). Plaintiff's job duties included repairing and performing preventative maintenance on gaming machines. Plaintiff was lifting a thirty- five-pound monitor out of a slot machine on 26 May 2001 when he felt a pain in his lower back. Plaintiff did not report the injury and continued to work until 26 June 2001, when he sought medical attention for recurring pain in his left leg. Plaintiff was treated by a chiropractor who ordered an MRI scan that revealed aherniated disc in plaintiff's back. Dr. John M. Silver (Dr. Silver) performed back surgery on plaintiff on 7 September 2001. Plaintiff returned to work at Harrah's on 31 October 2001 and continued working until 27 December 2001.
Plaintiff called Dr. Silver's office on 7 November 2001 complaining of pain in his left leg. Plaintiff was prescribed steroid medication. Plaintiff underwent an MRI scan of his back on 20 December 2001, which showed scar tissue around a nerve and "some degenerative changes."
At a follow-up visit with Dr. Silver on 31 December 2001, plaintiff reported he had slipped and fallen onto his back while walking up a ramp at his home. Plaintiff told Dr. Silver he had experienced significant pain in his back and down both legs since his fall. Dr. Silver wrote plaintiff out of work from 27 December 2001 until 1 February 2002. Dr. Silver ordered a myelogram and CAT scan on 2 April 2002, which revealed what Dr. Silver deemed "appropriate degenerative changes for [plaintiff's] age and the postoperative changes[.]" Dr. Silver performed a second back surgery on plaintiff on 22 April 2002. The purpose of the second surgery was to decompress nerves in plaintiff's spinal canal, which had become narrowed. Following his second surgery, plaintiff was kept out of work for a period of time that exhausted his leave under the Family Medical Leave Act. Thereafter, plaintiff was fired by Harrah's for not returning to work.
A hearing on the matter was held before a deputy commissioner on 23 January 2004. The deputy commissioner concluded thatplaintiff sustained a compensable injury by accident on 26 May 2001, but that plaintiff had failed to show that his ongoing back problems after October 2001 were related to the 26 May 2001 compensable injury. Plaintiff appealed to the Industrial Commission (the Commission), which heard the matter on 17 May 2005. In an opinion and award filed 20 June 2005, the Commission modified and affirmed the opinion and award of the deputy commissioner. The Commission concluded that plaintiff's second surgery on 22 April 2002 was a consequence of plaintiff's compensable 26 May 2001 injury. The Commission also concluded that plaintiff's slip and fall in late 2001 aggravated the May 2001 injury, and that the pain and medical consequences plaintiff suffered were a "natural progression" of the May 2001 injury. The Commission awarded plaintiff ongoing medical and indemnity benefits from 27 December 2001 forward. Defendants appeal.
Defendants assign error to four findings of fact, arguing the findings are not supported by competent evidence. Defendants assign error to five conclusions of law, arguing the conclusions are not supported by competent findings of fact and are erroneous as a matter of law.
Defendants concede that plaintiff suffered a compensable injury on 26 May 2001. They further concede their responsibility to compensate plaintiff for medical expenses related to his 7 September 2001 surgery and for lost wages from 26 June 2001 through 31 October 2001. The issues on appeal are: (1) whether plaintiff's slip and fall in late 2001 was an intervening event sufficient tobar plaintiff from further compensation after the fall; (2) whether plaintiff's surgery on 22 April 2002 was a consequence of plaintiff's compensable May 2001 injury; and (3) whether plaintiff proved an ongoing disability after returning to work following his September 2001 surgery.
Our Court reviews decisions of the Commission to determine "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) (citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998)). The Commission's findings of fact are conclusive on appeal if supported by competent evidence, even when there is evidence to support contrary findings. Id. at 115, 530 S.E.2d at 552-53. "[S]o long as there is some evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary." Shah v. Howard Johnson, 140 N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001) (internal quotation omitted). Moreover, "'[t]he evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence.'" Poole v. Tammy Lynn Ctr., 151 N.C. App. 668, 672, 566 S.E.2d 839, 841 (2002) (quoting Adams at 681, 509 S.E.2d at 414). The Commission's conclusions of law are reviewed de novo by ourCourt. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998).
STEPHENS, Judge, dissenting.
[The] rule of causal relation is the very sheet anchor of the [Workers'] Compensation Act. It has kept the Act within the limits of its intended scope, _that of providing compensation benefits for industrial injuries, rather than branching out into the field of general health insurance benefits. Duncan v. City of Charlotte, 234 N.C. 86, 91, 66 S.E.2d 22, 25 (1951)(citations omitted). Because I do not believe that the medical evidence in this case is sufficient to support the existence of a causal relationship between Plaintiff's compensable back injury of 26 May 2001 and the second surgical procedure performed on his back on 22 April 2002, I respectfully dissent from the majority opinion.
It is undisputed that, sometime around the end of November2001, Plaintiff slipped on a ramp at his house and fell, landing on his tailbone or . . . butt. It is further undisputed that approximately a month earlier, Plaintiff had returned to full-time, full-duty work for his employer in a job that required him to repair gaming machines weighing several hundred pounds. Dr. Silver's uncontradicted testimony establishes that, according to Plaintiff, he had been doing very well at the time he was released to go back to work, but after the fall, he began to have problems with significant pain in his back and pain down both legs. When conservative treatment failed to relieve Plaintiff's symptoms, Dr. Silver performed a second surgery. The majority agree with the Commission that Plaintiff's slip and fall aggravated his earlier compensable injury, and thus, the second surgery is compensable under the causation theories applied in Horne v. Universal Leaf Tobacco Processors, 119 N.C. App. 682, 459 S.E.2d 797, disc. review denied, 342 N.C. 192, 463 S.E.2d 237 (1995). I disagree.
This Court's decision in Horne reveals that, following a compensable on-the-job injury, Mr. Horne underwent two surgical procedures on his back. While he was still out of work and recovering from the second surgery, he was involved in an automobile accident. Mr. Horne's treating neurosurgeon, Dr. Tomaszek, recommended a fusion to treat Mr. Horne's worsened condition. Owing to the occurrence of the automobile accident, Mr. Horne's employer denied that the need for the third surgery was causally related to the on-the-job injury. In reversing theCommission's denial of benefits, this Court noted the uncontradicted testimony of Dr. Tomaszek that (1) the recurrent disk rupture shown on the MRI obtained after the automobile accident was actually present before that accident at the same lumbar level as Mr. Horne's compensable first surgery, (2) Mr. Horne was complaining of moderately severe back and leg pain before the automobile accident and was not comfortable with his surgical results, (3) the automobile accident worsened the abnormal disk, and (4) the pathology leading Dr. Tomaszek to recommend a fusion after the automobile accident all stems back to the work- related accident. Horne, 119 N.C. App. at 686-87, 459 S.E.2d at 800. On this uncontradicted evidence, this Court concluded that the automobile accident aggravated Mr. Horne's prior compensable injury, and thus, the consequences of that aggravation were also compensable. It is incomprehensible that a different result could have been reached.
Similarly, in Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983), disc. review denied, 310 N.C. 309, 312 S.E.2d 652 (1984), this Court determined that plaintiff was entitled to compensation for complications of phlebitis, arthritis, and severe body pain following a compensable on-the-job leg injury because it was not disputed that such complications were the result of plaintiff's compensable injury. Accord, Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 382, 323 S.E.2d 29, 31 (1984) (plaintiff's second injury was a refracture of his first compensable fracture), disc. review denied, 313 N.C. 329, 327S.E.2d 890 (1985); Mayo v. City of Washington, 51 N.C. App. 402, 407, 276 S.E.2d 747, 750 (1981) (subsequent incidents reinjured plaintiff's original knee injury).
No such evidence can be found in this case. On the contrary, the uncontradicted testimony of Plaintiff's treating neurosurgeon, Dr. Silver, establishes the following: (1) Plaintiff sustained a ruptured disc at the lowest level of his lumbar spine as a result of his on-the-job injury, for which Dr. Silver performed a microdiscectomy on the left to remove the disc fragment that was compressing the nerve; (2) Plaintiff did very well after that surgery and was able to return full time to physically demanding work; (3) the left leg pain for which Dr. Silver prescribed a steroid medication for Plaintiff over the phone within a week of his return to work was not an uncommon thing[;] (4) Dr. Silver next saw Plaintiff almost two months later after Plaintiff fell at home, and Plaintiff told Dr. Silver that since that fall, he had problems with pain in his back and pain now actually down both legs[,] whereas the pain from his work injury had been limited to his left leg; (5) the symptoms which Plaintiff experienced after the fall on the ramp were related to the fall[;] (6) the degenerative changes seen on the imaging studies performed after the fall were related to a normal aging process[;] and (7) the surgery performed by Dr. Silver after the fall was a bilateral hemilaminectomy and facetectomy to remove a portion of the lamina of the bone (the vertebrae) on each side and to remove thickened ligaments to decompress the nerves and give [them] more room[,]because Plaintiff's spinal canal had become narrowed due to degenerative change, including thickening of the joints themselves and thickening of the ligaments of the joints. Moreover, when Dr. Silver was directly asked whether this thickening that he removed to decompress the nerves in Plaintiff's spinal canal was due to postsurgical changes from the first surgery[,] he unequivocally responded, No. . . . . This was due to degenerative change at that same level [as the first surgery], not actually scar tissue but rather degenerative changes there. (Emphasis added). This testimony is undisputed.
Dr. Silver was not asked whether the slip and fall aggravated Plaintiff's earlier work injury. Indeed, the only question he was asked about the potential relationship between the condition for which he performed the second surgery and the preexisting condition of Plaintiff's back from the work injury was whether the thickening of the joints and ligaments that he removed during that surgery was due to postsurgical changes from the first surgery [or] [w]as this scar tissue[?] As noted above, his uncontradicted answer was unequivocally in the negative, and his explanation establishes that he operated on Plaintiff's back a second time because of degenerative changes which Plaintiff failed to prove were related in any way to the work injury. In fact, answering questions about his second surgery, Plaintiff testified, [Dr. Silver] said that I had arthritis . . . around my sciatic nerve that was causing the pain down my leg. . . . He said he removed the arthritis around the sciatic nerve. Thus, unlike the uncontradicted evidence which overwhelmingly established that a subsequent accident had aggravated the preexisting compensable condition of Mr. Horne's back, which supported this Court's holding that the subsequent aggravation of [the primary compensable] injury is a natural consequence that flows from the primary injury[,] Horne, 119 N.C. App. at 685, 459 S.E.2d at 799 (citation omitted), the evidence in this case fails to establish that Plaintiff's fall aggravated his primary compensable injury. There is thus no basis for the Commission's conclusion, under Horne, that Plaintiff's pain and medical consequences [after the fall] were a natural progression of the earlier injury. Furthermore, because there is no evidence that the subsequent fall aggravated Plaintiff's earlier injury, it is not necessary to reach the issue of whether Plaintiff's fall was a result of his own intentional conduct. In any event, as the majority notes, the Commission's determination that Plaintiff's slip and fall was not of his own volition was not a contested issue in the case. It is simply an irrelevant issue unless aggravation is first proved.
I agree with the majority's conclusion that the Commission's finding of propensity (i.e., that Plaintiff's first surgery made him more prone to develop degenerative changes) is unsupported by the evidence. I disagree, however, with the majority's approval of the Commission's selection of information from the medical records to provide support for its conclusion that a causal relationship exists between Plaintiff's compensable work injury and secondsurgery, that is, that because Dr. Silver's operative report indicates that he also removed scar tissue when he removed the thickened joints and ligaments, the second surgery was necessitated by the original compensable injury. I disagree because, as has already been discussed, Dr. Silver unequivocally testified that he performed the second surgery to relieve narrowing of the spinal canal, and that the narrowing was caused by degenerative changes, specifically thickening of the joints and ligaments, not by postsurgical changes[,] and not by scar tissue. This testimony was elicited by Plaintiff. Given Dr. Silver's unambiguous explanation about the reason that he performed the second surgery, it appears that the removal of scar tissue under these circumstances was merely incidental.
Allowing the Commission to ignore the expert's uncontradicted and unequivocal testimony, and to instead substitute its interpretation of the medical records to arrive at a different opinion than the expert has expressed, goes far beyond viewing the evidence in the light most favorable to the employee. Moreover, in my opinion, acquiescing in the Commission's actions here contravenes the directives of our Supreme Court which has repeated time and again that in cases involving complicated medical questions, only an expert can give competent opinion evidence as to the cause of the injury. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (citing Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965)). Significantly, the Click Court recognized and relied upon thecontinuing medical difficulty in determining the etiology of intervertebral diseases and injuries in holding that [r]eliance on Commission expertise is not justified where the subject matter involves a complicated medical question. Id. at 168, 265 S.E.2d at 391 (citation omitted). Instead,
[i]n the absence of guidance by expert opinion as to whether the accident could or might have resulted in his injury, the Commission could only speculate on the probable cause of his condition. Medical testimony was therefore needed to provide a proper foundation for the Commission's finding on the question of the injury's origin.
Id. at 169, 265 S.E.2d at 392.
The question is no less complicated because it concerns the aggravation of a preexisting condition rather than the direct cause of an injury. In fact, the medical causation issues are probably more complex in cases such as this one, involving the existence of a causal link between a traumatic injury and conditions that occur unrelated to trauma, complicated further by the impact of significant recovery from the original traumatic injury before the occurrence of another injurious incident. I am of the opinion that, as in Click, medical testimony was necessary in this case to establish whether Plaintiff's subsequent fall aggravated his original work-related injury. For the reasons stated, I am of the opinion that the evidence fails to establish the requisite causal connection to make Plaintiff's subsequent surgery compensable. I thus vote to reverse the decision of the Commission.
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