Appeal by defendants from opinion and award filed 8 February
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 30 November 2005.
Waymon L. Morris, P.A., by Waymon L. Morris, for plaintiff-
Cranfill, Sumner & Hartzog, L.L.P., by Nicole Dolph Viele, for
Defendants Henderson County Public Library and Sedgwick CMS
appeal from the Industrial Commission's decision awarding plaintiff
Sandra Taylor temporary total disability based on an occupational
disease, epicondylitis, in her upper extremities. Defendants
argue: (1) the record does not contain competent medical evidence
to support the Commission's determination that Taylor's
epicondylitis constituted a compensable occupational disease, and
(2) Taylor failed to meet her burden of proving total disability. We disagree with defendants on both issues and, therefore, affirm
the Full Commission.
Taylor began working for the Henderson County Public Library
("the Library") in January 1999 as a full-time library assistant.
About 25% of her time at work was devoted to reshelving books, with
an additional 15% spent on tasks such as sorting mail and replacing
newspapers and magazines. She spent the remaining 60% of her time
working at the circulation desk, checking borrowed materials into
and out of the library.
In December 1999, Taylor developed radiating pain in her right
shoulder, arm, and hand. Dr. Hobart Rogers, an orthopaedic
surgeon, diagnosed her as suffering carpal tunnel syndrome and
recommended conservative treatment, including medication and a
night splint. Taylor also began using a right wrist brace at work
and tried to use her left hand for more of her duties.
Subsequently, however, nerve conduction tests ruled out carpal
tunnel syndrome as the cause of the pain.
Despite the conservative treatment, Taylor's pain in her right
upper extremities continued to worsen, and she also began to suffer
similar symptoms in her left arm. In November 2001, Taylor
consulted Dr. Angelo Cammarata, an orthopaedic surgeon specializing
in the upper extremities. He diagnosed epicondylitis, also known
as "tennis elbow," which is an inflammation of the tendons of the
forearm. Although he believed the original cause of theepicondylitis was "hard to determine," he testified that Taylor's
employment was exacerbating her symptoms.
Starting in December 2001, Dr. Cammarata placed Taylor on
light duty and prohibited her from working at the circulation desk
or in the stacks. With the reduced activity, Taylor's condition
improved to a degree. At the end of January 2002, Dr. Cammarata
approved Taylor's returning to her regular work as an assistant
librarian with some restrictions.
In February 2002, because Taylor was still experiencing pain
and felt she was unable to perform her job fully, Taylor sought
treatment from Dr. Lorraine K. Doyle. Dr. Doyle diagnosed lateral
and medial epicondylitis, prescribed splints and therapy, and
recommended that Taylor not perform repetitive work as a librarian.
The Library then offered Taylor disability retirement because there
was no job meeting Taylor's restrictions.
After leaving her job at the Library, Taylor began working
towards a degree in accounting at the University of North Carolina
at Asheville, but found that the school activities increased her
pain. On 7 November 2002, Dr. Doyle recommended that Taylor cease
working towards the accounting degree because of her exacerbated
symptoms. Dr. Doyle ultimately concluded that Taylor reached
maximum medical improvement as of 25 September 2003, but that she
could not return to any job that required the kind of repetitive
motion that would aggravate her chronic pain symptoms.
Defendants denied Taylor's claim for workers' compensation,
and a hearing was held before Chief Deputy Commissioner Stephen T.Gheen. Although the Chief Deputy noted that Dr. Cammarata and Dr.
Doyle had "differences in professional judgment" regarding the
degree of work Taylor could perform, he found that "Dr. Doyle's
opinion that Taylor's condition has become chronic and prevents her
from performing as an assistant librarian is more compelling."
Accordingly, he awarded Taylor temporary total disability and
designated Dr. Doyle to be Taylor's treating physician. On appeal,
a majority of the Full Commission agreed with the Chief Deputy and
likewise awarded temporary total disability and approved the
designation of Dr. Doyle as Taylor's treating physician.
Commissioner Dianne C. Sellers dissented, indicating that she
thought Dr. Doyle's opinions should be disregarded. Defendants
timely appealed to this Court.
This Court reviews opinions and awards of the Industrial
Commission to determine whether any competent evidence exists to
support the Commission's findings of fact and whether the findings
of fact support the Commission's conclusions of law. Cross v. Blue
, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104
(1991). If supported by competent evidence, the Commission's
findings are binding on appeal even when there exists evidence to
support findings to the contrary. Allen v. Roberts Elec.
, 143 N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001). The
Commission's conclusions of law are reviewed de novo
546 S.E.2d at 139.
Defendants primarily argue on appeal that the Full
Commission's determination that Taylor had suffered a compensable
occupational disease is unsupported by competent evidence. Since
N.C. Gen. Stat. § 97-53 (2005) does not specifically list
epicondylitis as an occupational disease, Taylor was required to
prove that her condition was:
(1) characteristic of persons engaged in the
particular trade or occupation in which the
claimant is engaged; (2) not an ordinary
disease of life to which the public generally
is equally exposed with those engaged in that
particular trade or occupation; and (3) there
must be a causal connection between the
disease and the [claimant's] employment.
Rutledge v. Tultex Corp.
, 308 N.C. 85, 93, 301 S.E.2d 359, 365
(1983) (internal quotation marks omitted).
The first two elements "are satisfied if, as a matter of fact,
the employment exposed the worker to a greater risk of contracting
the disease than the public generally." Id.
at 93_94, 301 S.E.2d
at 365. As for the third prong of Rutledge
, "[t]his element of the
test is satisfied if plaintiff's employment 'significantly
contributed to, or was a significant causal factor in, the
disease's development.'" James v. Perdue Farms, Inc.
, 160 N.C.
App. 560, 562, 586 S.E.2d 557, 560 (2003) (quoting Hardin v. Motor
, 136 N.C. App. 351, 354, 524 S.E.2d 368, 371, disc.
, 351 N.C. 473, 543 S.E.2d 488 (2000)), disc. review
, 358 N.C. 234, 594 S.E.2d 191 (2004). "This is so even if
other non-work-related factors also make significant contributions,or were significant causal factors." Rutledge
, 308 N.C. at 101,
301 S.E.2d at 370.
Defendants do not address the 20-year-old test set forth in
_ and consistently applied by our appellate courts _ but
rather urge this Court to adopt a new test requiring "a very
distinct nexus" or "a tight nexus" between a claimant's job duties
and the development of a condition, which, defendants contend,
should be demonstrated by evidence that a condition is "peculiar .
. . if not exclusively related" to the particular job. Even if we
were inclined to do so, we may not apply a test at variance with
the one adopted by the Supreme Court in Rutledge
. We note,
however, that to date the Rutledge
test has proven to be a workable
method for determining the existence of an occupational disease.
In this case, the Commission concluded that Taylor's
epicondylitis was an occupational disease based on (1) "Dr.
Doyle['s] testi[mony] that Plaintiff was at an increased risk of
developing epicondylitis as compared to the general public not so
employed," (2) Dr. Doyle's opinion that Taylor's employment
contributed to plaintiff's epicondylitis, and (3) both Dr. Doyle's
and Dr. Cammarata's "opinion that Plaintiff's employment at
Defendant-Employer, at the least, significantly aggravated her
epicondylitis if it did not cause the condition." Defendants
challenge the competency of the testimony of Dr. Doyle and Dr.
Cammarata on these issues.
With respect to Dr. Doyle's testimony, defendants first argue
that the doctor's opinion regarding the repetitive nature ofTaylor's job was speculative, citing one excerpt of her deposition.
Our review of Dr. Doyle's deposition, however, reveals that the
doctor's opinion was the result of a reasoned analysis based on her
medical experience, her review of a videotape of Taylor's work, and
her discussion with Taylor regarding her duties. It was,
therefore, competent evidence on the question of the repetitive
nature of Taylor's job. Further, as Judge Hudson stated in a
dissenting opinion adopted by the Supreme Court in Alexander v.
Wal-Mart Stores, Inc.
, 359 N.C. 403, 610 S.E.2d 374 (2005) (per
curiam), it is not "the role of this Court to comb through the
testimony and view it in the light most favorable to the defendant,
when the Supreme Court has clearly instructed us to do the
opposite. Although by doing so, it is possible to find a few
excerpts that might be speculative, this Court's role is not to
engage in such a weighing of the evidence." Alexander v. Wal-Mart
, 166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004)
(Hudson, J., dissenting).
Defendants also argue that Dr. Doyle's opinions regarding the
repetitive nature of the job and causation were incompetent because
Dr. Doyle formed her initial opinion based on what Taylor told her
during her office visits rather than waiting to view a videotape of
Taylor's work or conducting other investigation of Taylor's job
duties. Dr. Doyle, however, in her deposition, specifically relied
upon the videotape in rendering her opinions. Moreover, our
Supreme Court has previously rejected defendants' argument:
"A physician, as an expert witness, may give
his opinion, including a diagnosis, basedeither on personal knowledge or observation or
on information supplied him by others,
including the patient, if such information is
inherently reliable even though it is not
independently admissible into evidence. . . ."
Statements made by a patient to his physician
for the purposes of treatment and medical
information obtained from a fellow-physician
who has treated the same patient are
"inherently reliable" [for evidentiary
Booker v. Duke Med. Ctr., 297 N.C. 458, 479, 256 S.E.2d 189, 202
(1979) (quoting State v. Wade, 296 N.C. 454, 462, 251 S.E.2d 407,
412 (1979)). See also Rogers v. Lowe's Home Improvement, 169 N.C.
App. 759, 767, 612 S.E.2d 143, 148 (2005) (holding that doctor "was
entitled to credit his patient's account of his own pain symptoms
in formulating his expert opinion").
Defendants make no further specific challenge regarding Dr.
Doyle's opinion, adopted by the Commission, that Taylor's work
subjected her to a greater risk of contracting epicondylitis than
members of the general public. See Hobbs v. Clean Control Corp.,
154 N.C. App. 433, 436, 571 S.E.2d 860, 862 (2002) ("Evidence that
the plaintiff's employment exposed her to a greater risk than that
of the general public is the sine qua non of a workers'
compensation claim for an occupational disease . . . .").
Defendants do generally state that "Dr. Doyle made a diagnosis
without performing and/or reviewing objective testing," but they do
not suggest that the diagnosis _ also reached by Dr. Cammarata _
was incorrect. Defendants also object that "Dr. Doyle's only
treatment consists of a brief course of physical therapy and
issuance of pain medication and out of work/out of school notes"without explaining how their argument relates to the competency of
Dr. Doyle's testimony or pointing to any evidence that this
treatment was inappropriate.
With respect to Dr. Cammarata's testimony regarding the causal
relationship between Taylor's work and her condition, defendants
argue that it was not competent under James, because he simply
testified that Taylor's job duties exacerbated her symptoms and not
her epicondylitis. Defendants misread James, which did not address
the causation prong of Rutledge. In James, this Court held only
that a doctor's testimony that the plaintiff's demanding work gave
rise to an increased risk of hand pain and problems was not
sufficient to prove that the work exposed her to an increased risk
of developing fibromyaligia. 160 N.C. App. at 563, 586 S.E.2d at
560. This Court held: "The distinction between plaintiff's pain
and her underlying condition is a significant one. Plaintiff must
demonstrate that her employment exposed her to an increased risk of
developing the disease." Id.
Here, the Commission did not rely upon Dr. Cammarata's
testimony regarding exacerbation in concluding that the "increased
risk" requirement of Rutledge was met. Dr. Doyle's testimony
supplied evidence to support that determination. Instead, the
Commission pointed to Dr. Cammarata as support for the third prong
of Rutledge, requiring a causal connection between Taylor's
employment and her epicondylitis. We hold that Dr. Doyle's
testimony and Dr. Cammarata's testimony are sufficient to meet the
requirement of causation. See Cialino v. Wal-Mart Stores, 156 N.C.App. 463, 475-76, 577 S.E.2d 345, 354 (2003) ("[T]he uncontroverted
evidence from three medical professionals related the symptoms and
disease afflicting [plaintiff] to her employment with Wal-Mart.
Thus, the Commission had competent evidence from which to find an
Defendants also urge that Futrell v. Resinall Corp., 151 N.C.
App. 456, 566 S.E.2d 181 (2002), aff'd per curiam, 357 N.C. 158,
579 S.E.2d 269 (2003), requires reversal of the Commission. In
Futrell, however, the Commission had concluded that the plaintiff
failed to prove the existence of an occupational disease. In
affirming, this Court explained:
[A]lthough there may have been some evidence
tending to show plaintiff's employment could
have aggravated the condition, there is no
authority from this State which allows us to
ignore the well-established requirement that a
plaintiff seeking to prove an occupational
disease show that the employment placed him at
a greater risk for contracting the condition,
even where the condition may have been
aggravated but not originally caused by the
plaintiff's employment. . . .
. . . Rutledge and subsequent case law
applying its three-prong test make clear that
evidence tending to show that the employment
simply aggravated or contributed to the
employee's condition goes only to the issue of
causation, the third element of the Rutledge
test. Regardless of how an employee meets the
causation prong (i.e., whether it be evidence
that the employment caused the disease or only
contributed to or aggravated the disease), the
employee must nevertheless satisfy the
remaining two prongs of the Rutledge test by
establishing that the employment placed him at
a greater risk for contracting the condition
than the general public.
Id. at 460, 566 S.E.2d at 184. Contrary to defendants' argument, Futrell supports affirmance
of the Commission. The record contains evidence in the form of Dr.
Doyle's opinion to meet the requirement that Taylor prove that her
employment placed her at a greater risk for contracting
epicondylitis than the general public _ thus complying with the
first two prongs of Rutledge. In addition, both Dr. Doyle's and
Dr. Cammarata's testimony supplied the necessary evidence to meet
the third element of Rutledge, relating to causation, by providing
evidence that the employment contributed to or aggravated the
epicondylitis. Defendants have, therefore, offered no persuasive
basis for reversing the Commission's conclusion that Taylor
contracted a compensable occupational disease.
Defendants also contend that Taylor failed to meet her burden
of proving disability. In order to support a conclusion of
compensable disability, the Commission must find:
(1) that plaintiff was incapable after his
injury of earning the same wages he had earned
before his injury in the same employment, (2)
that plaintiff was incapable after his injury
of earning the same wages he had earned before
his injury in any other employment, and (3)
that this individual's incapacity to earn was
caused by plaintiff's injury.
Hilliard v. Apex Cabinet Co.
, 305 N.C. 593, 595, 290 S.E.2d 682,
As defendants acknowledge, an employee may meet his or her
burden of proving disability in one of four ways:
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work inany 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 Prod. Distribution
, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (internal citations omitted).
The Commission's finding of fact number 24, to which
defendants have not assigned error, states:
Plaintiff has attempted to find employment
consistent with her restricted capabilities.
As of the date of hearing Plaintiff has been
unsuccessful in finding employment, having
applied for in excess of thirty positions she
thought might be within her capabilities.
Defendant-Employer has not provided vocational
rehabilitation. A Vocational Evaluation
Report prepared by the North Carolina
Department of Health and Human Services,
Division of Vocational Rehabilitation
Services, dated February 26, 2003, concluded
it would be difficult for Plaintiff to find
jobs which do not require repetitious motion
It is well-established that findings of fact not challenged on
appeal are binding on this Court. Johnson v. Herbie's Place
N.C. App. 168, 180, 579 S.E.2d 110, 118, disc. review denied
N.C. 460, 585 S.E.2d 760 (2003).
The Commission's finding of fact indicates that Taylor met her
burden under both the second and third prongs of Russell
finding is sufficient to support the Commission's conclusion that
Taylor is entitled to temporary total disability benefits. SeeWhite v. Weyerhaeuser Co.
, 167 N.C. App. 658, 673, 606 S.E.2d 389,
399-400 (2005) (affirming award of total disability for closed
period based on the Commission's finding that the plaintiff, during
that period, made unsuccessful efforts to find suitable work);
Bridwell v. Golden Corral Steak House
, 149 N.C. App. 338, 344-45,
561 S.E.2d 298, 302 (holding that an award of total disability
should be affirmed based on findings that the plaintiff had
unsuccessfully sought suitable employment), disc. review denied
355 N.C. 747, 565 S.E.2d 193 (2002). We, therefore, uphold the
Commission's award of temporary total disability benefits.
In defendants' final argument, they contend that the
Commission erred in designating Dr. Doyle to be Taylor's treating
physician. The Commission's decision to approve a doctor as an
employee's treating physician is reviewed for an abuse of
discretion. Lakey v. U.S. Airways, Inc.
, 155 N.C. App. 169, 174,
573 S.E.2d 703, 707 (2002), disc. review denied
, 357 N.C. 251, 582
S.E.2d 271 (2003).
Here, the Commission found based on competent evidence that
Taylor continued to experience pain and limited movement after she
had been released for full-time work by Dr. Cammarata. Our Court
has held that in these circumstances, no abuse of discretion occurs
when the Commission changes a plaintiff's approved physician. See,
, Terry v. PPG Indus., Inc.
, 156 N.C. App. 512, 520, 577 S.E.2d
326, 332-33 (holding that the Commission did not abuse its
discretion in approving treatment by a particular physician whennone of the other authorized physicians had successfully provided
relief for her condition), disc. review denied
, 357 N.C. 256, 583
S.E.2d 290 (2003); Lakey
, 155 N.C. App. at 174, 573 S.E.2d at 707
("[P]laintiff was released to work by her approved physician while
still suffering from pain. Therefore, we do not find that the
Commission abused its discretion in allowing approval of
plaintiff's physician."). Thus, no basis exists to overturn the
Commission's decision to approve Dr. Doyle as Taylor's authorized
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
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