On appeal, plaintiff in the main attacks the Commission's
conclusion, based upon its almost identical finding, set out above.
Plaintiff also challenges the Commission's rejection of his claim
for temporary total disability benefits. In both instances, we
find plaintiff's arguments unpersuasive.
Upon review of an Opinion and Award issued by the Commission,
this Court considers but two issues: (1) whether any competent
evidence of record sustains the Commission's findings of fact, and
(2) whether those findings 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). “When there is any evidence in the record that
tends to support a finding of fact, the finding of fact is
supported by competent evidence and is conclusive on appeal.”
Cannon v. Goodyear Tire & Rubber Co., __ N.C. App. ___, ___, 614S.E.2d 440, 444,
disc. rev. denied,
__ N.C. __, __S.E.2d __ (No.
418P05) (6 October 2005). Moreover, the Commission is the “sole
judge of the credibility of witnesses and may believe all or a
part or none of any witness's testimony[.]”
Faison v. Allen
Canning Co., 163 N.C. App. 755, 757, 594 S.E.2d 446, 448 (2004)
(quotation and citation omitted).
Plaintiff “has the burden of proving that his claim is
compensable under the [Workers' Compensation] Act.”
Henry v.
Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950). An
injury is compensable if “it is fairly traceable to the employment
or any reasonable relationship to the employment exists.”
Rivera
v. Trapp, 135 N.C. App. 296, 301, 519 S.E.2d 777, 780 (1999)
(quotation marks and citations omitted). “In evaluating the
causation issue, this Court can do no more than examine the record
to determine whether any competent evidence exists to support the
Commission's findings as to causation.”
Peagler v. Tyson Foods,
Inc., 138 N.C. App. 593, 599, 532 S.E.2d, 207, 210 (2000)
(quotation marks and citation omitted).
In the case
sub judice, it is without question that the
Commission's conclusion of law assailed by plaintiff is supported
by its finding of fact stated in nearly identical terms. The
critical issue, therefore, is whether any competent evidence of
record supports the Commission's finding,
see Deese, 352 N.C. at
116, 530 S.E.2d at 553, that “plaintiff has failed to prove by the
greater weight of the evidence that his carpal tunnel syndrome or
any of his current symptoms [such as shoulder and forearm pain withnumbness radiating to his right hand] are related to his original
injury by accident” to his elbow on 25 May 2001.
In cases “where the exact nature and probable genesis of a
particular type of injury involves 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.”
Click v. Freight Carriers, 300 N.C. 164, 167, 265
S.E.2d 389, 391 (1980). “However, when such expert opinion
testimony is based merely upon speculation and conjecture, . . . it
is not sufficiently reliable to qualify as competent evidence on
issues of medical causation.”
Young v. Hickory Bus. Furn., 353
N.C. 227, 230, 538 S.E.2d 912, 915 (2000). “[T]he 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 relation[.]”
Gilmore v. Board
of Education, 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942).
In the instant case, two witnesses provided expert testimony
concerning plaintiff's current medical condition and the potential
cause thereof. When asked if plaintiff's posterior interosseous
nerve condition might have been caused by the 25 May 2001 elbow
dislocation, Dr. Reinke, plaintiff's treating physician, replied:
I have never heard of that, that it is related
to an elbow dislocation. You can injure a
nerve at the time of elbow dislocation. I've
not specifically seen it, a posterior
interosseous nerve injury, related to an elbow
dislocation, however.
Further, Dr. Reinke stated, “I don't think that the carpal tunnel
issues are related to the elbow dislocation.” Questioned regardingthe cause of plaintiff's shoulder pain, Dr. Reinke stated, “I'm not
sure of the cause of that . . . . I was unclear at the time what
the cause of his residual right upper extremity pain was.”
Finally, explaining his referral of plaintiff for nerve conduction
studies and for a second opinion following the studies, Dr. Reinke
indicated he “d[idn]'t know” what kind of pattern plaintiff's
symptoms fit, that he “couldn't explain the -- a lot of the
symptoms that [plaintiff] was having from an -- elbow dislocation,”
and that it was “unclear . . . why he was having these symptoms
related to an elbow dislocation.”
Dr. Edwards, from whom plaintiff received a one-time
evaluation upon being referred for a second opinion regarding a
diagnosis of posterior interosseous nerve syndrome, testified he
diagnosed plaintiff as being afflicted with “residual carpal tunnel
syndrome” or “a sort of low-grade carpal tunnel syndrome.” When
asked on direct examination, “Does it mean residual from the nerve
injury to the arm or at the elbow?”, Dr. Edwards replied:
Possibly. And that -- I don't know that I
really -- you know, when I dictated that, I
think he reported that he had not had the
symptoms before the injury. So I would just
sort of assume that it may have been from the
elbow injury and may have just been left over
from that.
On cross examination, Dr. Edwards elaborated as follows:
Q: [C]an you say to a reasonable degree of
medical certainty that the cause of this
residual carpal tunnel syndrome that you
talked about in December of 2002 is as a
result of the elbow dislocation from May of
2001?
A: It's really hard to say with certainty
what is the cause of the carpal tunnel. For
one thing, there are so many factors that
cause it. You have to have basically an
innately tight carpal tunnel to begin with.
It could be that the injury stretched the
median nerve, which may have secondarily
affected the carpal tunnel, but actually
that's quite rare with elbow fractures and
dislocations. And I didn't see that mentioned
in Dr. Reinke's previous records. And it's --
and again, it's difficult to prove whether or
not he had any symptoms or signs of carpal
tunnel before the injury. So a lot of what my
impression was based upon was, in fact, the
patient's own history.
Q: Would there have been things in Dr.
Reinke's earlier notes that you would have
looked for in trying to answer that question?
A: Yes. Basically, if there had been any
complaints from a patient of numbness,
particularly in the thumb, index or middle
fingers, tingling at night or when he was
driving a car, and on exam, any signs that I
had mentioned in my report, such as a Tinel's
and a Phalen's. And I don't recall seeing
that.
Dr. Edwards added that, “[t]he cause, I can't really say. It's not
common to see carpal tunnel syndrome even with wrist injuries, and
you wouldn't expect it with an elbow injury.”
In addition, the evidence of record is that Dr. Reinke
released plaintiff for work without restrictions on 22 August 2001
and assigned him a 10% permanent partial disability rating on week
later, noting he did not “feel [plaintiff] w[ould] require any
permanent restrictions as a result of th[e 25 May 2001 injury].”
It was only nearly one year later that plaintiff returned to Dr.
Reinke reporting right upper extremity pain. At that time, Dr.
Reinke indicated he saw no evidence this pain was related toplaintiff's elbow and that he was “unable to [] relate
[plaintiff's] symptoms that he came back with to his previous
injury.”
Reviewed carefully, the expert testimony herein at best only
tangentially suggests that plaintiff's residual or “low-grade”
carpal tunnel syndrome was, in the words of Dr. Edwards, “possibly”
from nerve injury to the arm or at the elbow.
See Click, 300 N.C.
at 167, 265 S.E.2d at 391 (expert testimony “not sufficiently
reliable” on issues of medical causation when “based merely upon
speculation and conjecture”);
Young, 353 N.C. at 230, 538 S.E.2d at
915 (expert evidence “must be such as to take the case out of the
realm of conjecture and remote possibility”). Neither physician
was able to express an opinion to any degree of medical certainty
that plaintiff's carpal tunnel syndrome was caused by his elbow
injury. However, a plethora of testimony sustains the lack of any
causal connection between plaintiff's elbow injury and his claimed
posterior interosseous nerve syndrome, shoulder pain and carpal
tunnel syndrome.
We note that the Commission “is free to accept or reject all
or part of [the testimony] of a witness[],”
Cross v. Blue
Cross/Blue Shield, 104 N.C. App. 284, 288, 409 S.E.2d 103, 105
(1991), and reiterate that it is the “sole judge of the credibility
of witnesses,”
Faison, 163 N.C. App. at 757, 594 S.E.2d at 448, as
well as “the weight to be given their testimony.”
West v. Stevens,
6 N.C. App. 152, 156, 169 S.E. 2d 517, 519 (1969). According the
foregoing deference to the role of the Commission,
see Adams v. AVXCorp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (this Court on
appeal “'does not have the right to weigh the evidence and decide
the issues on the basis of its weight'” (citation omitted)), we
hold its finding that “plaintiff failed to prove by the greater
weight of the evidence that his carpal tunnel syndrome or any of
his current symptoms are related to his original injury by
accident” is supported by competent evidence.
See Peagler,
138
N.C. App. at 598, 532 S.E.2d at 210 (task of appellate court is
only “to examine the record to determine whether any competent
evidence exists to support the Commission's findings as to
causation”). Plaintiff's arguments directed at this finding and
the Commission's like-worded conclusion of law are thus unavailing.
Secondly, plaintiff maintains the Commission “erred by failing
to view the evidence in the light most favorable to plaintiff when
it held he was not entitled to temporary total disability
benefits.” We do not agree.
The term “disability” is defined as “incapacity because of
injury to earn the wages which the employee was receiving at the
time of injury in the same or any other employment.” N.C. Gen.
Stat. § 97-2(9) (2003).
To support a conclusion of disability, the
Commission must find: (1) that the plaintiff
was incapable after his injury of earning the
same wages he earned before his injury in the
same employment, (2) that the plaintiff was
incapable after his injury of earning the same
wages he earned before his injury in any other
employment and (3) that the plaintiff's
incapacity to earn was caused by his injury.
Daughtry v. Metric Construction Co., 115 N.C. App. 354, 357, 446
S.E.2d 590, 593,
disc. review denied, 338 N.C. 515, 452 S.E.2d 808
(1994). An injured employee may meet this burden by:
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work in
any employment; (2) the production of evidence
that he is capable of some work, but that he
has, after a reasonable effort on his part,
been unsuccessful in his effort to obtain
employment; (3) the production of evidence
that he is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, inexperience, lack of
education, to seek other employment; or (4)
the production of evidence that he has
obtained other employment at a wage less than
that earned prior to the injury.
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (citations omitted).
Plaintiff focuses his attention primarily upon the first two
prongs set out in
Russell. He insists he has met his burden under
either. Plaintiff is mistaken.
Regarding the first prong, plaintiff relies solely upon his
own testimony regarding interference with his ability to work
caused by the 25 May 2001 injury. However, the record contains no
“medical,”
id., evidence that the injury has caused plaintiff to be
physically or mentally “incapable of work in any employment,”
id.
Indeed, plaintiff's treating physician, Dr. Reinke, expressed the
contrary opinion that plaintiff could work “without restriction
based on the last time [he] saw him,” 10 January 2003, and earlier
released him to “regular work” on 22 August 2001 “without
restrictions.” Further, plaintiff continued to work for employeruntil his employment was terminated 27 July 2001 by virtue of
employer's contract with IBM being concluded and not for any
reasons related to plaintiff's 25 May 200l injury.
As to the second
Russell prong referencing a reasonable, but
unsuccessful, effort to obtain other employment, p
laintiff
testified he was employed by ARC for four months beginning in
November, 2001, but that he was terminated for reasons unrelated to
any physical limitations. On direct examination, moreover,
plaintiff claimed he had unsuccessfully sought work at between one
hundred fifteen and one hundred twenty locations. When cross-
examined, however, plaintiff was unable to recollect (1) the names
of the places he had looked for work, (2) the individuals with whom
he had interviewed, or (3) the number of interviews in which he had
participated. In short, plaintiff failed to present credible
evidence he had made reasonable efforts to obtain employment.
See
Russell, 108 N.C. App. at 766, 425 S.E.2d at 457 (Commission
rejected as “not credible” plaintiff's testimony he had been
refused employment upon “seven or eight” job applications where
plaintiff “was unable to name the exact names of employers to whom
he had made application nor the dates upon which he had made
application nor for what jobs he had applied . . . .”).
We thus conclude competent record evidence sustains the
Commission's finding of fact that “plaintiff failed to prove by the
greater weight of the evidence that [any] inability [on his part]
to earn wages beginning July 27, 2001 was due to his injury by
accident” on 25 May 2001. Accordingly, the Commission did not errin denying plaintiff temporary total disability benefits based upon
its conclusion of law to similar effect.
Finally, we note plaintiff has interspersed numerous other
arguments and assertions in advancing his major contentions
addressed herein. Suffice it to state that we have examined each
with care and find no error by the Commission. Based upon all the
foregoing, therefore, the 5 November Opinion and Award of the
Commission is affirmed.
Affirmed.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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