Appeal by defendant from opinion and award entered 6 September
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 16 August 2006.
Walden & Walden, by Daniel S. Walden, for plaintiff-appellee.
Orbock, Ruark & Dillard, P.C., by Barbara E. Ruark and Tina F.
Rizzi, for defendant-appellant.
Defendant Tyson Foods, Inc. appeals from an opinion and award
of the North Carolina Industrial Commission entered 6 September
2005, awarding plaintiff Octavio L. Alvarado disability benefits
and medical compensation. On appeal, defendant challenges the
Commission's finding that plaintiff's current back condition is
causally related to his September 2003 compensable workplace
injury. Because defendant's argument rests on its contention that
its evidence was more credible and entitled to greater weight thanplaintiff's evidence _ an argument that we may not consider on
appeal _ we affirm the decision of the Full Commission.
The evidence before the Full Commission included the
(See footnote 1)
On 24 September 2003, plaintiff, an employee of Tyson
Foods, sustained a compensable injury when he slipped on the plant
floor and twisted his lower back. He was examined the following
day at the office of Dr. John Bond, the plant physician, who
diagnosed an acute lumbar sacral strain and treated him for pain
and inflammation. For four weeks following the accident, plaintiff
worked reduced hours and received temporary partial disability
On 20 October 2003, Dr. Bond cleared plaintiff to return to
full-time work. Although plaintiff worked without incident over
the following two months, he testified that his pain persisted
throughout this period. Plaintiff's supervisor acknowledged that
when plaintiff returned to work, he wasn't "back to like he was,
but he acted like he was moving better than he was when it first
happened." On 18 December 2003, plaintiff took a one-month leave and
returned to Mexico to visit a sick relative. Both plaintiff and
his daughter testified that plaintiff did very little driving and
spent most of the drive reclined either in the front seat or on a
fold-down bed in the back of the van. While in Mexico, plaintiff
sought treatment from a local doctor for his back pain.
Plaintiff returned to work on 19 January 2004, but, in late
February, his condition deteriorated. On 1 March 2004, plaintiff
notified defendant that due to his painful back condition he could
not report to work. He was examined again by Dr. Bond, who
concluded that the back pain was caused by a congenital spinal
disorder that had been discovered during plaintiff's treatment for
the September 2003 workplace injury. Dr. Bond stated in his
deposition that he believed plaintiff's pre-existing
spondylolisthesis had not been affected by the workplace injury,
but rather had been aggravated by the round-trip drive to Mexico.
Plaintiff's condition never improved, and he never returned to
work. On 10 August 2004, plaintiff was evaluated by Dr. Joseph
Alexander, a spine specialist at Wake Forest University Medical
Center. Dr. Alexander concluded that the September 2003 accident
aggravated and made symptomatic plaintiff's preexisting
non-symptomatic spondylolisthesis and degenerative disc conditions.
In his deposition, Dr. Alexander indicated that the care plaintiff
received from Dr. Bond was appropriate initial symptomatic
treatment, but he disagreed with Dr. Bond's assertions (1) that the
plaintiff's condition was congenital and (2) that the Mexico tripwas the sole reason the underlying spondylolisthesis became
symptomatic. Dr. Alexander concluded instead that plaintiff's
condition was not congenital, but rather had developed prior to the
accident and had become symptomatic because of the accident.
On 27 May 2004, plaintiff requested a hearing before the North
Carolina Industrial Commission. The case was heard before Deputy
Commissioner Lorrie L. Dollar, who denied plaintiff's claim.
Plaintiff appealed to the Full Commission, which reversed the
deputy's decision and held that plaintiff was entitled to the
following: (1) temporary partial disability compensation for the
period 24 September 2003 through 20 October 2003; (2) temporary
total disability compensation from 1 March 2004 and continuing
until further order of the Commission; and (3) payment for medical
care related to his injuries. Defendant timely appealed to this
On appeal from a decision of the Full Commission, this Court
reviews only (1) whether the Commission's findings of fact are
supported by competent evidence in the record and (2) whether the
Commission's findings justify its legal conclusions. Perkins v.
, ___ N.C. App. ___, ___, 628 S.E.2d 402, 406 (2006).
Findings of fact by the Full Commission are conclusive on appeal
"'when supported by competent evidence, even when there is evidence
to support a finding to the contrary.'" Gutierrez v. GDX Auto.
169 N.C. App. 173, 176, 609 S.E.2d 445, 448 (quoting Plummer v.
Henderson Storage Co.
, 118 N.C. App. 727, 730, 456 S.E.2d 886, 888,disc. review denied
, 340 N.C. 569, 460 S.E.2d 321 (1995)), disc.
, 359 N.C. 851, 619 S.E.2d 408 (2005). Indeed, if
"there is any evidence at all, taken in the light most favorable to
the plaintiff, the finding of fact stands, even if there is
substantial evidence to the contrary." Alexander v. Wal-Mart
, 166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004)
(Hudson, J., dissenting), adopted per curiam
, 359 N.C. 403, 610
S.E.2d 374 (2005).
(See footnote 2)
Defendant first argues, citing Gutierrez
, that the Commission
erred in failing to consider Dr. Bond's testimony
. We disagree.
Although this Court held in Gutierrez
that the Commission had
erred by "failing to consider testimony and to adjudicate evidence"
from all the testifying physicians, it reached this conclusion
because the Commission had failed to make any findings of fact at
all regarding the testimony of one of the treating physicians. 169
N.C. App. at 176, 609 S.E.2d at 448. In contrast, the Commission's
numerous findings of fact in this case discussing Dr. Bond's
treatment, diagnosis, and opinions demonstrate that the Commission
committed no such error in the present case.
Dr. Bond's testimony was thoroughly considered, but the
Commission ultimately found Dr. Alexander more credible and histestimony entitled to greater weight. As we noted in Gutierrez
is within the discretion of the Commission to "'reject a
witness'[s] testimony entirely if warranted by disbelief of that
(alteration original) (quoting Plummer
, 118 N.C.
App. at 731, 456 S.E.2d at 888).
It is apparent from defendant's brief that its actual concern
is not that Dr. Bond's testimony was ignored by the Commission, but
rather that his testimony was not given the weight defendant
desired. As our Supreme Court has repeatedly made clear, however,
"the full Commission is the sole judge of the weight and
credibility of the evidence." Deese v. Champion Int'l Corp.
N.C. 109, 116, 530 S.E.2d 549, 553 (2000). It is not the role of
this Court to "second-guess those determinations." Alexander
N.C. App. at 573, 603 S.E.2d at 558. Defendant's assignments of
error on this point are overruled.
Defendant next argues that the evidence presented by plaintiff
was insufficient to establish that the workplace injury caused
plaintiff's pre-existing condition to become symptomatic and lead
to his current debilitated condition. It is well established that
an employee is due compensation even when, as in this case, the
root cause of his disability is a "pre-existing, nondisabling, non-
job-related condition" if that condition "is aggravated or
accelerated" by a workplace injury. Morrison v. Burlington Indus.
304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981) (emphasis omitted).
Defendant acknowledges that Dr. Alexander testified that thecompensable accident aggravated and accelerated plaintiff's
asymptomatic condition, but argues that this testimony was
incompetent speculation in violation of Holley v. ACTS, Inc.
N.C. 228, 234, 581 S.E.2d 750, 753 (2003).
The Commission's decision in this case rested not on the kind
of equivocal language deemed insufficient in Holley
, but on Dr.
Alexander's repeated assertion of a "probable" causal relationship.
On at least six separate instances in the course of his deposition,
Dr. Alexander stated that it was "probable" that the September 2003
accident "aggravated or accelerated" plaintiff's symptoms and that
his current condition was "probably" the result of the accident.
In fact, when asked by plaintiff's counsel if there were any
symptoms reported by plaintiff that Dr. Alexander believed were not
"probably accelerated or aggravated" by his September 2003
accident, Dr. Alexander responded, "No." Dr. Alexander's repeated,
unwavering statements affirming a "probable" relationship between
the September 2003 accident and plaintiff's current condition are
more than sufficient to meet the standard for competent and
sufficient medical testimony required by this Court. See, e.g.
Whitfield v. Lab. Corp. of Am.
, 158 N.C. App. 341, 351, 581 S.E.2d
778, 785 (2003) (finding Commission's determination based on
"probability" to be sufficient evidence of causation).
Defendant, however, points to two places in Dr. Alexander's
testimony where he used the word "speculate." While it is true
that "an expert's 'speculation' is insufficient to establish
, 357 N.C. at 234, 581 S.E.2d at 754, an expertwitness' passing use of the word "speculate" does not necessarily
establish that the witness engaged in speculation. Indeed, our
Supreme Court has recently rejected precisely the approach argued
by defendant in this appeal by adopting the dissenting opinion in
, which stressed that it is not "the role of this Court to
comb through testimony . . . to find a few excerpts that might be
speculative." 166 N.C. App. at 573, 603 S.E.2d at 558. Rather, it
is the role of this Court to "'determine whether the record
contains any evidence tending to support the [Commission's]
finding.'" Adams v. AVX Corp.
, 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998) (quoting Anderson v. Lincoln Constr. Co.
, 265 N.C. 431,
434, 144 S.E.2d 272, 274 (1965)). Dr. Alexander's testimony
satisfies this standard and we, therefore, affirm the opinion and
award of the Commission.
Plaintiff has filed a separate motion in this Court, pursuant
to Rule 34 of the North Carolina Rules of Appellate Procedure,
seeking attorney's fees on appeal. "N.C.G.S. § 97-88 allows an
injured employee to move that its attorney's fees be paid whenever
an insurer appeals to the Full Commission, or to a court of the
appellate division, and the insurer is required to make payments to
the injured employee." Troutman v. White & Simpson, Inc.
, 121 N.C.
App. 48, 53, 464 S.E.2d 481, 485 (1995), disc. review denied
N.C. 516, 472 S.E.2d 26 (1996). We hold that plaintiff has
satisfied the requirements of N.C. Gen. Stat. § 97-88 (2005) and,
because defendant has raised only issues of credibility andevidentiary weight that were not properly before this Court, we
exercise our discretion and grant plaintiff's motion for attorney's
fees. We remand to the Commission to determine the amount of
reasonable attorney's fees incurred by plaintiff on this appeal.
Affirmed and remanded.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).