Appeal by defendant from opinion and award entered 15 April
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 8 February 2006.
Jay Kerr, P.A., by J.A. Kerr, Jr., for plaintiff-appellee.
Willson, Jones, Carter & Baxley, LLC, by Richard B. Kale, Jr.
and Daniel B. Eller, for defendant-appellant.
Randall Swiney (plaintiff) began working for Arvin Meritor,
Inc. (defendant) in April 1996 as a welding technician. While
operating a welding machine on 16 November 2001, plaintiff tripped
on the lip of the platform on which he was standing, fell to the
floor, and landed on his left side. Plaintiff fractured his left
arm and left leg as a result of the accident. Plaintiff was taken
to the emergency room of Park Ridge Hospital in Fletcher, North
Carolina, where plaintiff complained of pain in his hip and left
thigh. Dr. Robyn Peckham (Dr. Peckham), an orthopedic surgeon,
diagnosed plaintiff with a left hip femoral neck fracture and aleft elbow radial head fracture.
Dr. Peckham performed surgery on plaintiff on 17 November
2001. Plaintiff continued to experience pain in his hip and thigh,
and returned for follow-up visits with Dr. Peckham on 27 November
2001 and 11 and 18 December 2001. Plaintiff continued to see Dr.
Peckham throughout 2002, and in February 2003, Dr. Peckham assigned
a permanent partial disability rating of fifteen percent to
plaintiff's left leg and a one percent permanent partial disability
rating to his left arm.
Plaintiff visited Dr. Peckham on 21 May 2003, complaining of
the onset of severe pain in his left buttock and hip, and down his
left leg. Dr. Peckham diagnosed a herniated nucleus pulposus and
ordered a lumbar MRI. The lumbar MRI revealed a bulging disc at
L4-L5. Dr. Peckham took plaintiff out of work on 27 May 2003 due
to the disc herniation.
Following a hearing, a deputy commissioner filed an opinion
and award on 29 July 2004 finding that plaintiff did not suffer an
injury to his lower back from his 16 November 2001 fall. Plaintiff
appealed to the Industrial Commission. In an opinion and award
entered 15 April 2005, the Industrial Commission found that
plaintiff injured his back as a direct result of his fall at work
on 16 November 2001. Defendant appeals.
When reviewing a decision of the Industrial Commission, this
Court is "limited to reviewing whether any competent evidencesupports 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). Our Court examines whether there was competent evidence to
support the Industrial Commission's findings of fact, but we do not
re-examine or weigh the evidence. Gilberto v. Wake Forest Univ.
152 N.C. App. 112, 116, 566 S.E.2d 788, 792 (2002).
We are bound
by the Industrial Commission's findings, if those findings are
supported by competent evidence. However, conclusions of law are
fully reviewable. Id.
at 116, 566 S.E.2d at 792; Richards v. Town
, 92 N.C. App. 222, 225, 374 S.E.2d 116, 118 (1988),
disc. review denied
, 324 N.C. 337, 378 S.E.2d 799 (1989). This
Court's duty is "to determine whether the record contains any
evidence tending to support the finding." Adams v. AVX Corp
N.C. 676, 681, 509 S.E.2d 411, 414 (1998). The Industrial
Commission is the "sole judge of the weight and credibility of the
, 352 N.C. at 116, 530 S.E.2d at 553.
In the case before us, defendant argues there was no competent
evidence to support the Industrial Commission's finding that
plaintiff sustained an injury by accident to his back as a direct
result of the work assigned to him on 16 November 2001. We
Plaintiff "has the burden of proving that his claim is
compensable under the [Workers' Compensation] Act." Henry v.
, 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950). An
injury is compensable if "it is fairly traceable to the employmentor any reasonable relationship to the employment exists." Rivera
, 135 N.C. App. 296, 301, 519 S.E.2d 777, 780 (1999)
(internal quotation marks and citations omitted).
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). Medical certainty is not required;
however, there must be more than a "mere possibility" to be legally
competent evidence of causation. Holley v. ACTS, Inc.
, 357 N.C.
228, 234, 581 S.E.2d 750, 754 (2003).
We conclude that in this case there was competent expert
opinion evidence concerning the cause of plaintiff's injury.
Plaintiff's treating physician, Dr. Peckham, gave the following
expert opinion on the causation issue.
Q. Doctor, I'm going to ask you if you have
any opinions as to the issues . . . [b]ut
before doing so, to clarify for the record,
will you agree to base any and all your
opinions on a reasonable degree of medical
Q. Will you specifically agree to base your
opinion on a degree of certainty that involves
the stated cause of being more probable than
not? Do you understand what I'm asking you?
A. I believe so. Yes, I think I can agree to
Q. Now back to the first issue which was
whether Mr. Swiney had sustained an injury to
his back as a direct result of the 16 November2001 fall trauma, I ask you do you have an
opinion as to that particular issue?
Q. What is that opinion?
A. I believe that the disc herniation that he
had at L5-S1 level most probably occurred at
the time of his fall.
Q. Now can you tell us upon what do you base
. . . .
A. Mr. Swiney complained of pain in his hip
over an extended period time, the hip and the
thigh, and only in the latter presentation
shortly before we got the MRI was I aware of
symptoms radiating distal to the knee. But
having obtained that history, I went back and
questioned him fairly closely about the
characterization of the pain he was having
then and the pain that he had been having up
until that time, and he was not able to
distinguish a difference in the pain at that
So it was my assessment that the
radicular kind of pain he was having which
occasionally radiated all the way to his foot
was in fact the same pain he had been
complaining of essentially since the injury.
So my assessment of the chronology is that his
radicular symptoms started at the time of the
injury, and the radicular symptoms being
particularly the pain radiating distal to the
knee into the foot.
That then correlates with the MRI
findings of a disc herniation at L5-S1, so you
have correlation of the physical examination
and the radiographic examination which then
correlates with the history that was then
obtained that this was in fact probably the
same pain that had been present all along.
Defendant argues that the first time plaintiff presented with
back pain or radicular pain was 21 May 2003 and thereforeplaintiff's back problems were not caused by the 16 November 2001
injury. Dr. Peckham, however, explained that plaintiff's symptoms
were due to radiculopathy but that he had mis-diagnosed the
symptoms in earlier examinations of plaintiff. The following
colloquy occurred on cross-examination:
Q. [T]here was a period of one and a half
years where he never complained of any back
pain, never complained of any radicular
symptoms that you were able to identify as
A. In retrospect I identify his symptoms as
being due to radiculopathy. At the time I did
not identify them that way.
. . . .
Q. So based solely on your medical records
and the examinations that you performed, you
had one and a half years where you had no
indication that made you think that he had any
kind of back problem.
A. In retrospect I think the indications were
there and I missed them. And because I was
missing it, I didn't do the examination that
might have shown it.
Q. Well, is it not feasible that he herniated
a disc in May of 2003?
A. That's certainly possible.
Q. Why do you rule that out?
A. Because when a diagnosis changes so
dramatically, as physicians we question
ourselves and say "How could I have missed
that?" And that's the first thing that comes
into my mind when the realization that he has
herniated nucleus pulposus comes, and the
first thing I do is ask him "Is this a new
pain or is this the same pain you've been
having all along?" And he flat out says "No,
this really isn't new. This is just a
worsening of the pain I've been having all
The expert opinion of Dr. Peckham is legally sufficient on the
issue of causation and it is neither speculation nor conjecture as
defendant contends. As noted above, "the Commission is the sole
judge of the credibility of the witnesses and the weight to be
given their testimony." West v. Stevens
, 6 N.C. App. 152, 155-56,
169 S.E.2d 517, 519 (1969). In this case, the Industrial
Commission chose to give greater weight to Dr. Peckham's testimony.
We hold the Industrial Commission's finding that "plaintiff
sustained an injury by accident to his left arm, left leg and to
his back as a direct result of the work assigned to him on November
16, 2001" is supported by competent evidence. The opinion and
award of the Industrial Commission is affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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