NORTH CAROLINA COURT OF APPEALS
Filed: 1 August 2006
v. N.C. Industrial Commission
I.C. No. 295626
RAINBOW TRANSPORT,
Employer,
and
AM COMP ASSURANCE COMPANY,
Carrier,
Defendants.
Appeal by Plaintiff from Opinion and Award entered 12 April
2005 by the N.C. Industrial Commission. Heard in the Court of
Appeals 12 April 2006.
Crumley & Associates, P.C., by J. William Snyder, Jr., for
Plaintiff-Appellant.
Orbock Ruark & Dillard, PC, by Barbara E. Ruark and Tina F.
Rizzi, for Defendant-Appellees.
STEPHENS, Judge.
Plaintiff appeals from an Opinion and Award of the North
Carolina Industrial Commission (Commission), which denied his claim
for workers' compensation benefits. In support of his appeal,
Plaintiff brings forward nine assignments of error challenging six
of the Commission's findings of fact and three of its conclusionsof law. For the reasons stated herein, we affirm.
Plaintiff is a high school graduate who was fifty years old at
the time of the hearing on 30 October 2003. He worked as a truck
driver for Defendant-Employer (Employer) for almost two years.
During his employment, he weighed more than 350 pounds and suffered
from poorly controlled hypertension, diabetes, and high
cholesterol. His job duties included “hauling trash” to landfills
in Kernersville, Charlotte and sometimes Gastonia from a waste
management facility in Spencer. He was paid $40.00 per load and
usually hauled three or four loads per day.
On the morning of 22 August 2002, Plaintiff delivered two
loads of garbage to the Kernersville landfill and returned to
Spencer for his third load, arriving at “somewhere around maybe
after twelve[]” p.m. He pulled his truck into the parking lot at
the Spencer facility and rolled up the tarp to open up the top of
the trailer. He then pulled the truck into a “pit” where another
employee used a front-end loader to load trash into the trailer.
On this occasion, Scott Moore, site operator for Waste Management
in Spencer, was loading Plaintiff's truck. Plaintiff testified
that the loading process would generally take fifteen to thirty
minutes, depending on the amount of garbage to be loaded. While
the loading was underway, Plaintiff climbed the stairs to the top
deck and sat on a box where the fire hose lines came through. Hewas sitting in the sun and “it was hot . . . just like any other
day[.]” Mr. Moore estimated that the temperature was in the
nineties, and National Weather Service records admitted in evidence
established that the high temperature in the area that day was
ninety-two degrees Fahrenheit.
After about ten to fifteen minutes of loading, Mr. Moore was
thirsty and asked Plaintiff to go get them a drink from the on-site
vending machine. Plaintiff walked across the parking lot about 100
yards to the drink machine and purchased two drinks, walked back
across the parking lot and handed Mr. Moore his drink, and sat down
in a chair next to the building to drink his drink. He “took a
drink or two” and then noticed that his left hand “went sort of
numb” and he “felt kind of funny . . . like, dizzy.” He saw that
his drink had fallen out of his hand and spilled. Mr. Moore was
behind him, talking to him, but Plaintiff “couldn't talk” back to
him.
Mr. Moore testified that when Plaintiff set his drink down,
“it fell back on him and was pouring on his shirt[] [a]nd
[Plaintiff] just started laughing.” Not knowing what was happening
and being concerned that Plaintiff had been drinking alcohol, Mr.
Moore immediately drove his front-end loader to the area where
Employer's mobile mechanic, Darren Corn, was working and asked Mr.
Corn to come “check [Plaintiff] out.” Mr. Corn, who had recently been certified as a medical
responder, drove his service truck to the place where Plaintiff was
sitting and noticed that Plaintiff had a “glazed look in his
eyes[,]” his face was “flushed, and he was sweating.” Plaintiff
was slow to respond to Mr. Corn, so Mr. Corn drove Plaintiff to the
office. According to Plaintiff, he continued to feel “weird,”
could not “get [his] bearings,” and had “no balance.” Mr. Corn
checked Plaintiff's pulse, and it was “a little elevated,” “right
around a hundred[]” beats per minute. Because he did not have his
medical bag, Mr. Corn was not able to check Plaintiff's blood
pressure. He gave Plaintiff some wet towels to wipe his face and
a cup of water to drink. After five to six minutes, Mr. Corn
checked Plaintiff's pulse again, and it “was back down to about
eighty . . . eighty-five[]” “which is pretty much normal.”
Plaintiff knew who he was, who Mr. Corn was, and where they were.
Although Plaintiff expressed his desire to deliver his load of
garbage to the landfill, Mr. Corn convinced him to let Mr. Corn
drive him back to Employer's terminal in Mt. Airy instead. Mr.
Corn also asked Plaintiff if he wanted to go to the hospital before
they left Spencer, but Plaintiff declined.
During the drive back to Mt. Airy, which took an hour and
fifteen minutes to an hour and a half, Mr. Corn continued to
observe Plaintiff and to talk to him. He noticed that Plaintiffwas alert, although he “had a little trouble, . . . with his
speech.” They arrived at the terminal “close to four o'clock[]”
and Mr. Corn offered to drive Plaintiff home, but Plaintiff
indicated that he was able to drive himself home. Plaintiff
testified that he was still having trouble “find[ing][his]
words[,]” and he “hung around [the terminal] for a little while[]”
talking to “a couple of more people there at the yard[.]” He then
drove to his home about ten miles away. When he arrived, he told
his wife that “something ain't right, and I ain't feeling too
good.” His wife took him to the emergency room at Northern
Hospital of Surry County in Mt. Airy.
At the hospital, Plaintiff complained of an onset of left arm
pain and tingling and difficulty speaking at work earlier that day.
He was examined by his family physician, Dr. Nelson Gardner, who
admitted him to the Intensive Care Unit (ICU) and ordered various
diagnostic evaluations, including a CT scan of Plaintiff's head,
which was interpreted as normal, and a doppler echocardiogram
which, according to the physician who performed that study, did not
“rule out the presence of intracardiac thrombi or other cardiac
source of systemic emboli.” Plaintiff remained in the hospital
until 26 August 2002, at which time Dr. Gardner discharged him with
orders for an outpatient MRI and MRA of the cerebral vessels as
well as speech therapy for Plaintiff's persistent difficulties inexpressing himself. Dr. Gardner's discharge diagnoses included
left parietal acute thrombotic cerebrovascular accident (CVA),
expressive dysphasia (loss of or difficulty in ability to use or
understand language) secondary to CVA, poorly controlled diabetes,
hypertension, and high cholesterol. The MRI and MRA of Plaintiff's
head performed at North Carolina Baptist Hospital in Winston-Salem
on 29 August 2002 confirmed an acute left posterior middle cerebral
artery infarct, or stroke, and demonstrated narrowing of the left
middle cerebral artery “in the exact distribution” as the infarct.
Plaintiff testified that he has not worked since 22 August
2002 because “I can't function.” He complained of continued
difficulties with his speech and memory, problems with balance, and
depression. Additional evidence necessary to an understanding of
the errors assigned will be discussed below.
Employer completed an I.C. Form 19 report to the Industrial
Commission on 30 August 2002, and by an I.C. Form 61 dated 3
October 2002, Defendants denied that Plaintiff was owed workers'
compensation benefits. On 8 October 2002, Plaintiff filed an I.C.
Form 18 notice of claim, and subsequently, an I.C. Form 33
requesting a hearing. Following an evidentiary hearing and the
completion of expert medical depositions, Deputy Commissioner
Lorrie Dollar denied Plaintiff's claim for workers' compensation
benefits in an Opinion and Award filed 24 May 2004. Plaintifffiled a timely notice of appeal to the Full Commission, and on 12
April 2005, Commissioner Bernadine S. Ballance, writing for the
Full Commission, affirmed the Opinion and Award of the deputy
commissioner with modifications. Plaintiff appeals.
By his first argument, Plaintiff brings forward his assignment
of error five challenging the Commission's finding of fact twenty-
eight on grounds that the Commission erred in rejecting the
testimony of Dr. Gardner. Specifically, Plaintiff argues that the
Commission erroneously determined that Dr. Gardner's testimony was
not competent because it was based on an inaccurate history
provided by Plaintiff's wife. Finding of fact twenty-eight is as
follows:
Dr. Gardner was provided written weather
information in response to which he wrote an
opinion letter relating plaintiff's stroke to
heat. In a 4 June 2003 opinion letter, Dr.
Gardner wrote that plaintiff's exposure to the
high temperature played a “participating
factor in the left middle cerebral artery
CVA.” However, this opinion was based upon an
inaccurate history of plaintiff's physical
activity prior to onset of the symptoms. When
given a correct history of onset, he gave the
opinion that it was possible for a diabetic
like plaintiff to be more sensitive to heat
and thereby at an increased risk of sustaining
a stroke.
Our standard of review of challenged findings of fact in
workers' compensation cases is limited to a determination of
whether the record contains any evidence to support the disputedfindings. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999).
Indeed, it is a fundamental tenet of North Carolina workers'
compensation law that “'[t]he findings of fact of the Industrial
Commission are conclusive on appeal when supported by competent
evidence, even though there be evidence that would support findings
to the contrary.'” Deese v. Champion Int'l Corp., 352 N.C. 109,
115, 530 S.E.2d 549, 552 (2000)(quoting Jones v. Myrtle Desk Co.,
264 N.C. 401-02, 141 S.E.2d 632-33) (1965)). Thus, on appeal, this
Court “does not have the right to weigh the evidence and decide the
issue on the basis of its weight. The court's duty goes no further
than to determine whether the record contains any evidence tending
to support the finding.” Anderson v. Lincoln Constr. Co., 265 N.C.
431, 434, 144 S.E.2d 272, 274 (1965). Therefore, we examine the
record in this case to determine whether there is competent
evidence to support the challenged portions of finding of fact
twenty-eight, that is, that Dr. Gardner's opinion was based upon an
erroneous history, and that, when provided with an accurate
history, Dr. Gardner modified his opinion.
Dr. Gardner testified that the history he obtained regarding
the onset of Plaintiff's symptoms “[p]retty much” came from
Plaintiff's wife at Plaintiff's bedside in the ICU because
Plaintiff “was not talking much at the time.” That history wasthat Plaintiff's symptoms began while he was unloading a truck. He
also recorded that Plaintiff “was very hot and sweaty when this
happened while unloading the truck.” As one of his diagnostic
impressions upon initially examining Plaintiff, Dr. Gardner
included “[a]cute neurologic injury, either heat stroke or
cerebrovascular accident.” (Emphasis added). In addition, Dr.
Gardner received a letter from Plaintiff's attorney, which was not
admitted in evidence, but which Dr. Gardner summarized as follows
with respect to the history provided:
He pulled into a waste management
facility, and was unloading the truck. I
remember the day as being typically an
August[] hot day, and very humid.
And while unloading[] the truck, became
very warm, hot; and he said that he had gotten
a little hot and asked to get something to
drink and to cool off. And after working on
the truck for about thirty (30) to forty-five
(45) minutes, apparently, became dizzy and had
difficulty speaking; and noticed a tingling
pain in his left upper extremity.
By letter dated 4 June 2003, Dr. Gardner responded to Plaintiff's
attorney and stated in pertinent part that (1) “the temperature and
conditions to which [Plaintiff] was exposed, . . . did play a
participating factor in the left middle cerebral artery CVA he
suffered[,]” (2) it was his medical opinion “that the stress
associated with the heat, dehydration, and the impaired cerebral
blood flow, in addition to the atherosclerotic narrowingprecipitated his stroke[,]” and (3) “the heat played a critical
factor in the acute event.” Dr. Gardner testified that the
impression he formed was “that this man was physically working and
unloading a truck” for twenty to thirty minutes and had gotten
“very hot and sweaty . . . doing that.” Regarding the role that
the histories he received from Plaintiff's wife and attorney played
in the formation of his opinions, Dr. Gardner testified, “I would
not have put 'heat stroke' as a potential part of my diagnosis if
I didn't get the impression from the history that it could be a
component of the problem.” He reiterated that “the thing that
clued me in about a possible heat stroke was his history.”
It is undisputed, however, that Plaintiff's job duties did not
include loading or unloading his truck at the time his problems
began and that, on the contrary, his truck was being loaded by an
employee of another company. It is further undisputed that after
pulling his truck into the pit area, Plaintiff sat down for ten to
fifteen minutes and performed no physical activity until he walked
approximately 100 yards across the parking lot to purchase two cold
drinks and then walked back to the pit area. Thus, the
Commission's finding that Dr. Gardner's opinion about the
contribution of heat to Plaintiff's condition “was based upon an
inaccurate history of plaintiff's physical activity prior to onset
of the symptoms[]” is plainly supported not only by competentevidence, but also by Plaintiff's uncontradicted account of the
day's events. We note further that Plaintiff has not challenged
the Commission's finding of fact seventeen which contains virtually
the same determination, that is, that based on an “inaccurate
history of physical activity[]” provided by Plaintiff's wife, “Dr.
Gardner erroneously assumed plaintiff was engaged in physical
activity unloading a truck for 20-30 minutes[.]”
Moreover, whereas Dr. Gardner expressed his opinion in his 4
June 2003 letter in terms of “reasonable . . . medical
probability[,]” upon being given an accurate history of Plaintiff's
activities immediately before the onset of his symptoms, Dr.
Gardner “qualified” his earlier opinion. Specifically, when asked
whether his opinion was still the same as he expressed in his 4
June letter, Dr. Gardner responded: “Is it possible on a hot, humid
day for a diabetic . . . to be much more sensitive to heat and, as
such, [for the heat to] precipitate[] a stroke? Yes.” (Emphasis
added). This evidence clearly supports the remainder of the
Commission's finding of fact twenty-eight.
Plaintiff argues further, however, that the Commission erred
as a matter of law because it concluded that Dr. Gardner's
testimony was not competent “per se” since it was based on an
inaccurate history, and therefore, the Commission erroneously
rejected Dr. Gardner's testimony. This argument has no merit. In Gutierrez v. GDX Auto., 169 N.C. App. 173, 176, 609 S.E.2d
445, 448, disc. review denied, 359 N.C. 851, 619 S.E.2d 408 (2005)
(citations and internal quotation marks omitted), this Court held
that the Industrial Commission “must consider and evaluate all the
evidence before it is rejected[,]” and “[i]t is reversible error
for the Commission to fail to consider the testimony or records of
a treating physician.” In this case, the Commission's Opinion and
Award contains five findings of fact in addition to findings
seventeen and twenty-eight, discussing Dr. Gardner's testimony
relating to his treatment of Plaintiff. These detailed findings
establish that the Commission clearly considered and fully
evaluated the testimony of Dr. Gardner before it concluded that his
opinion was “insufficient to establish a causal relationship
between plaintiff's employment and his stroke.” This conclusion of
law is supported by findings of fact seventeen and twenty-eight.
Moreover, in finding of fact twenty-five, the Commission determined
that it would give greater weight to the opinions of Dr. Peter
Donofrio, a board-certified neurologist and professor at Wake
Forest University School of Medicine, “over any other contrary
opinions.” Dr. Donofrio testified unequivocally that there is no
causal relationship between the conditions of Plaintiff's
employment on 22 August 2002, including the temperature that day,
and the stroke he suffered. Finding of fact twenty-five further establishes that the
Commission properly carried out its responsibility to weigh all the
evidence before it and then exercised its authority to determine
which evidence to accept as the most persuasive. As our appellate
courts have repeatedly held in workers' compensation cases, “[t]he
Commission is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.” Adams, 349 N.C. at
680, 509 S.E.2d at 413 (quoting Anderson v. Lincoln Constr. Co.,
265 N.C. at 433-34, 144 S.E.2d at 274). See also Martin v. Martin
Bros. Grading, 158 N.C. App. 503, 507, 581 S.E.2d 85, 88, cert.
denied, 357 N.C. 579, 589 S.E.2d 127 (2003)(“It was the
responsibility of the Commission to weigh all of [the] expert
testimony and determine whose opinion was most persuasive.”);
Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 598, 532 S.E.2d
207, 210 (2000) (“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. . . .[W]hen conflicting evidence is presented, “the
Commission's finding [on] causal connection . . . is
conclusive.”'”) This assignment of error is overruled.
Plaintiff's second argument is that the Commission “erred as
a matter of law in its conclusion that the Plaintiff did not suffer
an injury by accident arising out of and in the course of hisemployment on August 22, 2002.” In support of this argument,
Plaintiff brings forward all nine of his assignments of error,
challenging the Commission's findings of fact twenty-four through
twenty-nine and its three conclusions of law. Those challenged
findings and conclusions are as follows:
24. On 24 April 2003, plaintiff returned
to Dr. Malone and reported that exposure to
intense heat prompted his stroke. However,
there is no competent evidence to support
plaintiff's conjecture. The evidence
presented does not support a finding that
plaintiff suffered from heat stroke or injury
from extreme heat exposure. In addition, the
competent evidence in the record supports a
finding that the air conditioner in truck #74
was functioning and cooling properly on 22
August 2002. No weight is given to
plaintiff's testimony to the contrary.
25. Board Certified Neurologist and
professor at Wake Forest School of Medicine,
Dr. Peter Donofrio, reviewed plaintiff's
medical records and testing, following which
he found plaintiff's hypertension,
hyperlipidemia, obesity, diabetes, elevated
triglycerides and probably obstructive sleep
apnea contributed to his stroke. Greater
weight is given to the opinion of Dr. Donofrio
over any other contrary opinions.
26. Based on the greater weight of the
evidence, plaintiff was not at an increased
risk of suffering a stroke due to his
employment. Further, there is insufficient
evidence that plaintiff's stroke was
characteristic of or peculiar to his
employment as a truck driver.
27. Dr. Malone, who is board-certified
in neurology, clinical neurophysiology andsleep medicine, opined that plaintiff would
never be able to return to work full-time. He
noted that on 22 August 2002, plaintiff had
several risk factors for stroke including high
blood pressure, high cholesterol, diabetes and
obesity. He further testified that higher
temperatures prompt dehydration, salt wasting,
mental fatigue and cognitive changes.
However, heat does not directly precipitate a
stroke. Prior to April 2003, Dr. Malone had
never considered heat to be a factor in
plaintiff's stroke.
28. Dr. Gardner was provided written
weather information in response to which he
wrote an opinion letter relating plaintiff's
stroke to heat. In a 4 June 2003 opinion
letter, Dr. Gardner wrote that plaintiff's
exposure to the high temperature played a
“participating factor in the left middle
cerebral artery CVA.” However, this opinion
was based upon an inaccurate history of
plaintiff's physical activity prior to onset
of the symptoms. When given a correct history
of onset, he gave the opinion that it was
possible for a diabetic like plaintiff to be
more sensitive to heat and thereby at an
increased risk of sustaining a stroke.
29. Based on the greater weight of the
evidence, plaintiff's employment did not
subject him to a greater hazard or risk of
heat stroke or a heat-related injury than that
to which he would have otherwise been exposed
if he did not drive a truck for defendant-
employer and extreme heat exposure did not
cause plaintiff's stroke on 22 August 2002.
Therefore, plaintiff did not suffer an injury
by accident arising out of and in the course
of his employment on 22 August 2002.
2. Where the exact nature and probable
genesis of a particular injury involves
complicated medical questions removed from the
ordinary experience of the layperson, only a
qualified expert witness can give an opinion
as to the nature and cause of the injury.
Click v. Pilot Freight Carriers, Inc., 300
N.C. 164, 265 S.E.2d 389 (1980). The
Commission must first determine whether the
proffered expert opinion is competent before
the opinion can be weighed as evidence in the
case. Expert opinion that rests on
speculation and conjecture, or unproven facts,
is not sufficiently reliable to qualify as
competent evidence concerning the nature and
cause of the injury. Young v. Hickory
Business Furniture, 353 N.C. 227, 538 S.E.2d
912 (2000). [sic] In the instant case, Dr.
Gardner's original opinion testimony was based
on an inaccurate history of onset given to him
by plaintiff's wife that plaintiff's symptoms
began after he unloaded a truck. When Dr.
Gardner was given an accurate history, he
changed his opinion and stated it was possible
that plaintiff's exposure to heat increased
his risk of sustaining a stroke. Dr.
Gardner's opinion is insufficient to establish
a causal connection between plaintiff's
employment and his stroke.
3. In order to qualify for compensation
under the Workers' Compensation Act, a
claimant must prove both the existence and
extent of disability. Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 290 S.E.2d 682
(1982). Plaintiff has failed to prove bycompetent evidence that he is entitled to
temporary total disability benefits as a
result of his stroke.
The rule to be applied to determine the compensability of an
injury allegedly sustained by exposure to heat or cold was laid
down by our Supreme Court in Fields v. Tompkins-Johnston Plumbing
Co., 224 N.C. 841, 842-43, 32 S.E.2d 623, 624 (1945):
[W]here the employment subjects a workman
to a special or particular hazard from the
elements, such as excessive heat or cold,
likely to produce sunstroke or freezing, death
or disability resulting from such cause
usually comes within the purview of the
compensation acts. . . .The test is whether
the employment subjects the workman to a
greater hazard or risk than that to which he
otherwise would be exposed.
(Emphasis added). Accord, Madison v. Int'l. Paper Co., 165 N.C.
App. 144, 598 S.E.2d 196 (2004).
As set out above, in this case, the Commission determined in
findings of fact twenty-six and twenty-nine that Plaintiff's
employment did not expose him to a greater risk of a heat-related
injury than that to which he otherwise would be exposed. Although
the Commission denominated this determination a finding of fact, we
believe it is a conclusion of law (see, e.g., Dillingham v. Yeargin
Constr. Co., 320 N.C. 499, 502, 358 S.E.2d 380, 381-82, reh'g
denied, 320 N.C. 639, 360 S.E.2d 84 (1987)) and, therefore, we
review it de novo. See McRae v. Toastmaster, Inc., 358 N.C. 488,496, 597 S.E.2d 695, 701 (2004) (citing 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). Our review is
guided by our Supreme Court's discussion and application in
Dillingham, supra, of the Fields's test for compensability of
alleged heat-related injuries.
Mr. Dillingham suffered cardiac arrest at work on a day in
June when the outside temperature was at least eighty-five degrees.
His job required him to work inside a reactor building to repair
control valves, and on the day in question, he was assigned to an
area directly beneath the reactor. For radiation protection, Mr.
Dillingham was required to wear special clothing consisting of a
heavy radiation suit including coveralls, plastic boots, rubber
boots, cotton gloves, surgical gloves, work gloves, and a hood. To
seal any seams or gaps, duct tape was wrapped tightly around his
neck, wrist, and ankle areas. After working on the valve in this
clothing for about thirty minutes, Mr. Dillingham became ill and
lost consciousness. He was ultimately diagnosed with cardiac
arrest.
Mr. Dillingham testified that the outside temperature was
ninety degrees, it was hotter in the reactor room “because heat
builds up inside,” he began to sweat profusely as soon as he put on
his protective clothing, the reactor room did not have adequateventilation, and it was “miserably hot” where he was working.
Dillingham, 320 N.C. at 501, 358 S.E.2d at 381. His co-worker
disputed his testimony about the temperature and ventilation of the
reactor room and testified that, whereas it was hot in the room, it
was “not abnormally hot for a June day[.]” Id.
Mr. Dillingham's treating physician testified that Mr.
Dillingham “suffered cardiac arrest precipitated by the heat
exhaustive conditions present on the job[]” and that Mr. Dillingham
“would not have suffered cardiac arrest had he not been working
under the conditions present at the job site.” Id. (Emphasis
added). A second medical expert concurred that Mr. Dillingham's
cardiac arrest “resulted from heat stroke due to a hot environment
and a confining radiation suit that would not allow effective
dissipation of heat.” Id. It does not appear from the Supreme
Court's discussion of the evidence that any contrary medical
opinion was offered.
The Commission (affirmed by this Court) denied Mr.
Dillingham's claim for workers' compensation benefits upon a
determination (denominated a finding of fact, but “deem[ed]” by the
Supreme Court to be a conclusion of law, that he “was not at an
increased risk of developing heat exhaustion or cardiac arrest as
a result of his work. . . ,than the general public not so
employed.” Id. at 502, 360 S.E.2d at 382. The Supreme Courtreversed, noting that contrary to this conclusion, “the evidence
unequivocally demonstrates that plaintiff was exposed to an
increased risk of heat-related illness because of his employment.”
Id. at 503, 358 S.E.2d at 382. (Emphasis added). In addition to
the heavily confining radiation suit that Mr. Dillingham was
required to wear, the Court found it significant that
“uncontradicted evidence showed that other employees at the plant
had suffered heat-related illnesses leading to emergency room
treatment.” Id. at 504, 358 S.E.2d at 382. Concluding, the Court
held as follows:
It is clear that the type of heavy
clothing required by his employment exposed
plaintiff to a greater danger of overheating
than that to which he otherwise would have
been subjected. Members of the public not so
employed would not ordinarily wear heavy
layers of clothing such as coveralls, boots,
gloves, and a hood in an enclosed space with
temperatures reaching 85 degrees.
Id. Similarly, in Madison, supra, this Court noted that there was
evidence that the exposures to heat in that case, which included
“periodic exposure to heat in excess of 200 degrees Fahrenheit[,]”
subjected Mr. Madison to a greater risk of a heart attack than if
he had not been employed in the job at issue. Madison, 165 N.C.
App. at 151, 598 S.E.2d at 200. The existence of such evidence
supported the Commission's award of death benefits to Mr. Madison's
dependents. In reaching its decision affirming the Commission'saward, this Court followed the Fields's test for determining the
compensability of weather-related injuries and rejected the defense
argument that to uphold benefits would result in an expansion of
the types of cases in which a heat-related contribution to an
injury would be compensable. This Court specifically rejected the
defense concern that its holding affirming the Commission's award
of benefits would abrogate the necessity for an employee alleging
a heat-related injury to prove that his employment placed him at a
greater risk of sustaining such an injury than members of the
general public.
Contrary to the unequivocal and apparently uncontroverted
evidence in Dillingham that he “would not have suffered cardiac
arrest had he not been working under the conditions present at the
job site[,]” Dillingham, 320 N.C. at 501, 358 S.E.2d at 381, and
thus was clearly at an increased risk of a heat-related injury
because of his employment, Dr. Donofrio's unequivocal opinion in
this case is that Plaintiff “was not at greater risk . . . of
having [a] stroke” because of the conditions of his employment on
22 August 2002. Moreover, Dr. Donofrio testified equally as
unequivocally that it was “highly unlikely” that heat caused
Plaintiff's stroke, that he is unaware of “any relationship between
high temperature and stroke[,]” and that, in this case
specifically, he found “no relationship” between the heat oroutside temperature on 22 August 2002 and the occurrence of
Plaintiff's stroke. This evidence fully supports the Commission's
determination that Plaintiff's employment on 22 August 2002 did not
expose him to an increased risk of suffering a heat-related injury,
and because it is the Commission's prerogative to decide which of
the expert witnesses it finds more persuasive, this Court is bound
by the Commission's reliance on Dr. Donofrio's opinions even in the
face of contrary expert medical evidence.
We also believe it is significant that Mr. Dillingham had no
evidence of underlying heart disease, and thus, no other risk
factors were identified for his cardiac arrest than the extreme
heat conditions under which he was working. By contrast, in the
case at bar, the medical experts agree that Plaintiff had multiple
risk factors for experiencing a CVA, or stroke. As Dr. Donofrio
explained:
[Plaintiff's] primary risk factors were
poorly controlled blood pressure, diabetes
that was prominent enough to be . . . advanced
. . . . He was morbidly obese. He had
persistent elevations in cholesterol and
triglycerides, and he probably had obstructive
sleep apnea.
Plaintiff's family doctor, Dr. Gardner, identified his risk factors
for experiencing a stroke to include a several-year history of
hypertension and diabetes, both of which were poorly controlled at
best; high cholesterol; and a family history of hypertension,diabetes and heart disease. Indeed, Dr. Gardner testified that the
fact that Plaintiff's diabetes and cholesterol levels were not
under good control would place him at an “elevated risk” for
suffering a stroke. Dr. John Malone, a Mt. Airy neurologist who
treated Plaintiff after his stroke, testified that the “biggest”
risk factor for the occurrence of a stroke is hypertension, and
that, in addition, Plaintiff was at risk for experiencing a stroke
because of his diabetes, high cholesterol, obesity, and family
history. Further, the fact that Plaintiff's hypertension and
diabetes were not under good control made him even “more prone” to
suffering a stroke. Importantly, Dr. Malone assessed the
significance of the MRI evidence that the narrowing of the left
middle cerebral artery was “in the exact distribution” as the acute
left posterior middle cerebral artery infarct or stroke that
Plaintiff suffered. According to Dr. Malone, the “[i]mplication”
of the MRI findings is that “the narrowing is the cause of the
stroke. . . .” He testified further that potential causes of such
narrowing of the cerebral artery would be hypertension, diabetes,
high cholesterol, and obesity.
The import of the substantial evidence of the many risk
factors Plaintiff had for suffering a stroke is plain: it provides
even greater support for Dr. Donofrio's unambiguous opinions that
Plaintiff's stroke was not causally related to his exposure to heatand that his employment conditions, including heat, did not subject
him to a greater risk of experiencing a stroke. Because the
Commission's determination on the increased risk test that governs
the compensability of alleged heat-related injuries is fully
supported by this evidence, it is binding on this Court, and in
turn, supports the Commission's further conclusion that Plaintiff
failed to prove he suffered an injury by accident arising out of
his employment. We reject Plaintiff's argument that the Commission
misapprehended and misapplied the law which controls the
compensability of heat-related injuries. The Opinion and Award of
the Commission is
Affirmed.
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
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