Appeal by defendants from an opinion and award entered 3
February 2005 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 20 February 2006.
David Gantt for plaintiff-appellee.
Womble, Carlyle, Sandridge, & Rice, P.L.L.C., by Clayton M.
Custer and Philip J. Mohr, for defendant-appellants.
MARTIN, Chief Judge.
Ashland, Inc. (“employer”) and INA Insurance (“carrier”)
(collectively “defendants”) appeal an opinion and award by the
North Carolina Industrial Commission (the “Commission”) ordering
temporary total disability compensation to Joby L. Hensley
(“plaintiff”) for an injury by accident occurring on 5 July 2001.
We affirm. Prior to commencing work with employer, plaintiff suffered a
back injury in 1994 and underwent a right L4 laminectomy and right
L5 hemilaminectomy by Dr. Frank Brown (“Dr. Brown”), resulting in
a fifteen percent permanent partial disability rating to his back
and permanent restrictions of no lifting greater than fifty pounds
and no frequent lifting of more than twenty-five pounds. Following
a workers' compensation award, plaintiff obtained a medical release
to return to work from Dr. Brown and commenced working for employer
in 1995. Plaintiff worked for employer from 1995 to 2002 in a
variety of positions associated with road paving. The Commission
noted in an uncontested finding of fact that plaintiff's “job
responsibilities involved heavy lifting and other very physically
demanding duties” and that plaintiff had performed “all physical
requirements of each job he performed during his more than [six and
one-half] years of employment[.]” Although medical records reveal
plaintiff sought treatment for back pain in early 2001, plaintiff
neither missed work nor requested accommodation for back problems
during his tenure with employer prior to 5 July 2001.
On 5 July 2001, plaintiff was working as an asphalt screed
operator, which required stretching, bending, pushing, pulling,
twisting, throwing, walking, standing, reaching, squatting, regular
lifting of twenty-five pounds, and occasional lifting of up to 100
pounds. Plaintiff testified that on 5 July 2001, while turning a
crank on paving equipment, he “felt something pull” in his back and
told the foreman that he thought he had hurt his back. Plaintiff
differentiated the pain he felt on 5 and 6 July from otherincidents of back pain prior to that time during his work with
employer. The following day, plaintiff received steroid injections
to ease his back pain from Dr. Brown. Dr. Brown continued this
treatment and removed plaintiff from work; however, the injections
were not effective, and Dr. Brown performed a L5-S1 laminectomy on
15 November 2001.
Dr. Brown testified that plaintiff's second surgery resolved
plaintiff's pain approximately ninety-five percent, with minor
discomfort in his right leg and very minimal back pain. Although
Dr. Brown wanted to keep plaintiff out of work for a longer time,
Dr. Brown honored plaintiff's request to release him to work on 4
March 2002 without restrictions other than the previously imposed
permanent restrictions. Plaintiff returned to work for employer on
25 March 2002, performing the same duties as those for which he was
responsible prior to 5 July 2001. On 28 March 2002, plaintiff
reinjured his back when he stepped off some paving equipment and
twisted his back. Dr. Brown again removed plaintiff from work, and
plaintiff has not returned to work since that time.
Plaintiff submitted notices of accident to employer for both
the 5 July 2001 and the 28 March 2002 incidents. Defendants denied
the claims, and after a hearing on 26 August 2003, a deputy
commissioner issued an opinion and award in favor of plaintiff for
ongoing temporary total disability compensation beginning on 5 July
2001. The Commission affirmed, finding plaintiff was totally
disabled as a result of his 5 July 2001 injury by accident arising
out of and in the course of his employment. Defendants appeal.
___________________
“Appellate review of an award from the Industrial Commission
is generally limited to two issues: (1) whether the findings of
fact are supported by competent evidence, and (2) whether the
conclusions of law are justified by the findings of fact.”
Clark
v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). If any
competent evidence supports a finding, viewed in the light most
favorable to the plaintiff, it is conclusively established, even if
the evidence would support a contrary finding.
Deese v. Champion
Int'l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552_53 (2000). The
Commission's conclusions of law are reviewed
de novo.
Griggs v.
Eastern Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138,
141 (2003).
Experts alone are permitted to provide competent evidence of
medical causation of an injury in cases involving “complicated
medical questions far removed from the ordinary experience and
knowledge of laymen[.]”
Click v. Freight Carriers, 300 N.C. 164,
167, 265 S.E.2d 389, 391 (1980). Such complicated medical
questions include causation of a herniated disc.
Gillikin v.
Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965).
Probability, as opposed to mere possibility, that an injury
resulted from an accident or specific traumatic incident is the
standard required for expert testimony to constitute competent
evidence to support a finding of causation.
Accord Cannon v.
Goodyear Tire & Rubber Co., ___ N.C. App. ___, ___, 614 S.E.2d 440,
446-47,
disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2005). On appeal, defendants assert the “record as a whole does not
support the Full Commission's finding that any 'accident' occurred”
on 5 July 2001 and “the medical evidence clearly establishes that
Plaintiff's back problems” in July 2001 resulted from progressive,
post-surgical changes and scarring in his back that commonly
develop following the type of surgery plaintiff underwent in 1994
as opposed to any accident on the job. Defendants first argue, in
support of this assertion, that plaintiff “fabricated [an accident]
after the fact” and cite medical evidence of record indicating
plaintiff complained of back pain prior to 5 July 2001. This
argument fails.
First, the determination of whether testimony is credible or
a fabrication is a function solely within the province of the
Commission, not a reviewing appellate court.
Deese, 352 N.C. at
115, 530 S.E.2d at 552. Second, plaintiff readily admitted to back
pain prior to 5 July 2001; however, he further testified he felt a
pull in his back on that date as a result of operating a crank on
paving equipment and differentiated the pain from other instances
of pain he had felt prior to 5 July 2001.
Defendants additionally contend the medical testimony fails to
establish the required causal nexus between plaintiff's recounting
of the events of 5 July 2001 and the injury to his back.
Nonetheless, defendants concede Dr. Brown was asked his medical
opinion of causation, accepting as true facts consistent with
plaintiff's version of events on 5 July 2001 and consistent with
plaintiff's medical history. Those predicate facts were found bythe Commission and, based upon those facts, Dr. Brown opined that
the 5 July 2001 incident aggravated, accelerated, or contributed to
plaintiff's back problems. Defendants argue this testimony is
insufficient as a matter of law because it created a factual
scenario not supported by the testimony. Specifically, citing
Thacker v. City of Winston-Salem, 125 N.C. App. 671, 482 S.E.2d 20,
disc. review denied, 346 N.C. 289, 487 S.E.2d 571 (1997),
defendants argue Dr. Brown's opinion should be disregarded because
it was given in response to a question which included a reference
to the equipment bumping plaintiff while he was turning the handle,
to which plaintiff never testified.
In
Thacker, this Court held evidence elicited by plaintiff's
hypothetical question was not competent because it required the
testifying doctor to (1) accept as true facts that were
inconsistent with the record evidence and (2) base the question of
causation on those facts accepted as true. By way of comparison,
in the instant case, there is no opposing record evidence to the
facts accepted as true by Dr. Brown and, more importantly, the
assumed fact that plaintiff was bumped by the machine was not the
basis of Dr. Brown's opinion that plaintiff's injury was caused by
the incident. In fact, both the record evidence and the question
asked of Dr. Brown contemplated whether he believed there would be
a causal connection between plaintiff feeling something pull in his
back during the time he was turning a crank and plaintiff's back
problems treated by Dr. Brown on 6 July 2001. Accordingly,
Thacker
does not render Dr. Brown's testimony as to causation incompetentand the testimony constitutes competent evidence of causation
supporting the following finding by the Commission: “Dr. Brown
opined and the Full Commission so finds that Plaintiff has been
totally disabled since his July 5, 2001 injury.”
Dr. Brown's testimony likewise defeats defendants' third
argument that plaintiff did not suffer any wage loss after 5 July
2001. Defendants argue plaintiff was never qualified for the
position of screed operator given his permanent restrictions
following the 1994 surgery; therefore, defendants assert,
“[p]laintiff was medically able to perform the same type of manual
labor as in 1995” because his work restrictions following 5 July
2001 remained the same. It is sufficient for purposes of resolving
this argument to note that (1) plaintiff never missed work for back
problems for over six years with defendants prior to 5 July 2001
but has been unable to return to any work save for a brief three-
day period since that time, (2) Dr. Brown opined that, under the
facts as found by the Commission, the incident on 5 July
aggravated, contributed, or accelerated plaintiff's back problems,
and (3) both plaintiff's testimony and Dr. Brown's testimony
indicate that, as a result of the incidents on 5 July 2001 and 28
March 2001, plaintiff is not a candidate to return to any kind of
gainful employment.
In summary, the Commission was presented with two versions of
events. Defendants asserted plaintiff suffered from a failed post-
laminectomy result unrelated to his job duties, and plaintiff
asserted he suffered an accident on 5 July 2001. The Commissionaccepted as credible plaintiff's version of the events,
notwithstanding some evidence to the contrary. Dr. Brown's
opinion, based on the Commission's acceptance of plaintiff's
version of events, supports the necessary causal nexus between the
injury sustained on 5 July 2001 and plaintiff's disability.
Accordingly, the Commission properly awarded benefits, and this
assignment of error is overruled.
In their final assignment of error brought forward on appeal,
defendants assert plaintiff did not suffer an injury by accident on
28 March 2002 that prevented him from returning to work or reduced
his wage earning capacity. The record on appeal indicates
plaintiff's recovery from the surgery following the 5 July 2001
incident appeared, initially, to be very favorable. Although Dr.
Brown did not feel plaintiff was yet capable of returning to work,
he honored plaintiff's emotional desire to see if he could regain
his earning capacity. That decision resulted in plaintiff
returning to work on 25 March 2002 and re-injuring his back on 28
March 2002. Dr. Brown opined that plaintiff, following the 28
March 2002 injury, could not return to any kind of gainful
employment because the 28 March 2002 injury showed the full results
of the 5 July 2001 injury:
[Plaintiff] is a two-time loser. That is to
say, we reoperated at the same disc space
level [following the 5 July 2001 incident],
and because he wasn't able to work any length
of time and because he . . . simply was doing
the routine aspects of his job [on 28 March
2002], which was a sitting job . . . operating
some controls. And a guy with a ninth-grade
education who has had two major back
operations and has failed again, in myexperience and considerable number of years, I
don't think I have ever seen anyone that fit
that description get back to gainful
employment.
In short, the two incidents illustrated the full nature of the 5
July 2001 injury. Dr. Brown's opinion makes clear that the 28
March 2002 injury highlighted that plaintiff was, in fact, totally
disabled following the 5 July 2001 incident. The Commission
indicated its acceptance of Dr. Brown's testimony by finding as
fact that “[p]laintiff's earning[s] upon his return to work from
March 25, 2002 through March 28, 2002 were not indicative of his
capacity to earn wages in the competitive job market” and that
plaintiff “has been totally disabled since his July 5, 2001
injury.” These findings, in turn, support the Commission's award
of continuing temporary total disability benefits beginning on 5
July 2001. This assignment of error is overruled.
Affirmed.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).
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