Appeal by defendants from an opinion and award entered 20 July
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 12 April 2006.
Scudder & Hedrick, by John A. Hedrick, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Kirk D. Kuhns, Jaye E.
Bingham, and Kari R. Johnson, for defendant-appellants.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission (Commission) entered 20 July 2005.
For the reasons stated herein, we affirm the order and award.
The Commission found that Wesley Jefferson (plaintiff) was
employed by Waste Industries on 19 July 2002. On that date,
plaintiff was struck in the back by a falling pallet. Plaintiffreported the accident to his employer, but did not seek medical
treatment at that time.
On 12 February 2003, plaintiff got out of bed and found he was
unable to stand. Plaintiff went to the emergency room and sought
treatment for his back pain. The emergency room physician referred
plaintiff to Dr. Khan Vu (Dr. Vu) and took plaintiff out of work
for two days.
Following the examination by Dr. Vu, plaintiff was excused
from work for ten days and began receiving physical therapy. Dr.
Vu extended the period plaintiff was excused from work through 26
February 2003. Plaintiff attempted a trial return to work on 3
Plaintiff was evaluated by Dr. J. E. Kenney (Dr. Kenney)on
17 March 2003, who referred plaintiff to Dr. Gary L. Kaplowitz
(Dr. Kaplowitz). Plaintiff was again excused from work through
24 March 2003. Dr. Kaplowitz ordered an MRI of plaintiff and
diagnosed a herniated disc at the L4-L5 level. Dr. Kaplowitz
recommended physical therapy before considering surgery and excused
plaintiff from work until he could be evaluated by a neurosurgeon.
On 13 August 2003, plaintiff was examined by Dr. Bruce
Kihlstrom (Dr. Kihlstrom). Dr. Kihlstrom also diagnosed
plaintiff with a herniated disc at the L4-L5 level with bilateral
lower extremity paresthesia consistent with radiculopathy, and
recommended surgery. Plaintiff underwent an operation on 23
December 2003. Dr. Kihlstrom's final evaluation of plaintiffoccurred on 3 March 2004, at which time Dr. Kihlstrom continued to
excuse plaintiff from all work.
The Commission gave greater weight to the testimonies of Dr.
Kihlstrom and Dr. Klapowitz that plaintiff's condition was caused
by or significantly contributed to by the workplace accident which
occurred on 19 July 2002. The Commission awarded plaintiff
temporary total disability and payment of all existing and future
medical expenses for treatment of the 19 July 2002 injury.
Defendants appeal from this order.
We briefly address plaintiff's contention that defendants'
assignments of error fail to comply with the North Carolina Rules
of Appellate Procedure and that the appeal should be dismissed for
violations of those Rules. A review of defendants' assignments of
error shows that they are sufficient to comply with N.C.R. App. P.
10, and we therefore proceed to review the merits of the appeal.
Defendants first contend that the Commission's factual
findings regarding causation of plaintiff's back problems were not
supported by competent evidence. We disagree.
The standard of review for appeals from the North Carolina
Industrial Commission is well settled. It is well established
that 'the Industrial Commission is the fact finding body and . . .
the findings of fact made by the Commission are conclusive on
appeal, . . . if supported by competent evidence. . . . This is so
even though there is evidence which would support a finding to thecontrary.' Hunter v. Perquimans County Bd. of Educ
., 139 N.C.
App. 352, 355, 533 S.E.2d 562, 564 (2000) (citation omitted).
'The commission is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. . . .'
[W]here the evidence is conflicting, the Commission's findings of
fact are conclusive on appeal. Avery v. Phelps Chevrolet
N.C. App. ___, ___, 626 S.E.2d 690, 696 (2006) (citation omitted).
Therefore, the appropriate standard of review by this Court is to
determine only whether the Commission's findings of fact are
supported by competent evidence and whether those findings indeed
support the Commission's conclusions of law. Hunter
, 139 N.C.
App. at 355, 533 S.E.2d at 564.
Defendants contend that the Commission improperly found that
plaintiff endured on-going back symptoms after the July incident,
and that plaintiff reported as such to his health care providers.
A review of the record shows competent evidence to support these
findings. Plaintiff testified that he continued to experience back
pain and leg numbness in the months following the 19 July accident.
The record also shows testimony by Ms. Margaret Hicks (Hicks),
the dispatcher for Waste Industries, that plaintiff reported some
continued pain to her over the months following the accident.
Medical records presented to the trial court show that plaintiff
stated to emergency room personnel, and to each doctor seen
thereafter with the exception of Dr. Vu, that he had experienced a
back injury at work. Although Dr. Vu's medical records indicate
that plaintiff stated he injured his back while working on a carimmediately prior to his February visit to the emergency room,
plaintiff testified that Dr. Vu had misunderstood him, and that
plaintiff had stated to Dr. Vu that he had only watched as a family
member worked on his car. Although there is conflicting testimony
as to what plaintiff reported to Dr. Vu, the Commission is the sole
judge of the credibility of witnesses. See Avery
, ____ N.C. App.
at ___, 626 S.E.2d at 696.
As competent evidence supports the Commission's findings that
plaintiff continued to experience back and leg pain following his
19 July 2002 accident and that plaintiff reported such pain to the
various physicians who treated him when he sought medical care,
this assignment of error is overruled.
Defendants next contend that the opinion and award is not
supported by competent expert medical testimony as to causation.
For an injury to be compensable under the terms of the
Workmen's Compensation Act, it must be proximately caused by an
accident arising out of and suffered in the course of employment.
Click v. Freight Carriers
, 300 N.C. 164, 167, 265 S.E.2d 389, 391
(1980). There must be competent evidence to support the inference
that the accident in question resulted in the injury complained of,
some evidence that the accident at least might have or could
have produced the particular disability in question. Id
quantum and quality of the evidence required to establish primafacie
the causal relationship will of course vary with the
complexity of the injury itself. Id
Our Supreme Court has made clear that testimony by experts
based merely upon speculation and conjecture . . . can be of no
more value than that of a layman's opinion. As such, 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). However, expert opinion to a
reasonable degree of medical certainty as to the cause of an injury
has been found sufficient to establish the causal relationship
necessary for compensation under the Workers' Compensation Act.
See Norton v. Waste Mgmt., Inc
., 146 N.C. App. 409, 416, 552 S.E.2d
702, 707 (2001).
Here, the record reveals that both Drs. Kaplowitz and
Kihlstrom opined that plaintiff's injury on 19 July 2002 was the
incident which caused or was a significant contributing factor in
plaintiff's herniated disk, assuming that plaintiff had continued
to experience some pain and numbness over the intervening months.
Both Drs. Kaplowitz and Kihlstrom testified to a reasonable degree
of medical probability that plaintiff's injury was caused by the
workplace accident. Such testimony is neither speculative nor
unreliable. Furthermore, although there is evidence to the
contrary in the record, as noted supra
, the Commission's findings
are conclusive on appeal when supported by competent evidence. See
, 139 N.C. App. at 355, 533 S.E.2d at 564. As competent evidence supports the Commission's findings of
fact and conclusions of law regarding plaintiff's reports of pain,
injury, and causation, we affirm the order and award.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
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