Appeal by plaintiff from an Opinion and Award filed 4 October
2005 by the Full Commission. Heard in the Court of Appeals 23
August 2006.
Douglas S. Harris for plaintiff-appellant.
Teague, Campbell, Dennis, & Gorham, L.L.P., by Bruce A.
Hamilton and Julia S. Hooten, for defendant-appellees.
BRYANT, Judge.
Nicandro Sosa Parada (plaintiff) appeals from an Opinion and
Award filed by the Full Commission on 4 October 2005 denying his
claim for ongoing temporary total disability benefits.
Plaintiff, age 28 at the time of the hearing before the deputy
commissioner, is an undocumented worker who speaks broken English
and has a limited education. On 27 February 2000, plaintiff was
working as a janitor for Custom Maintenance, Inc. (defendant-
employer) and sustained a compensable injury by accident when he
fell down steel and cement stairs onto a cement floor. Following
the accident, plaintiff sought medical treatment at Urgent Medical
and Family Care Center and was diagnosed as having sustained acontusion on his low back and hip, with a possible
spondylolysthesis at the L5 level and cystic changes. Plaintiff
was treated at the Center and assigned light duty work
restrictions.
On 28 March 2000, plaintiff was referred to Dr. John Krege of
Piedmont Orthopedic. After determining plaintiff's bone scan and
radiographs were normal, Dr. Krege noted plaintiff was continuing
to experience pain and that previously assigned light duty work
restrictions were not being followed by defendant-employer. Dr.
Krege medically excused plaintiff from work for two weeks and
referred him to physical therapy.
One month later, plaintiff returned to Dr. Krege with spine
pain that went from his neck down his back. Plaintiff experienced
pain in his neck when turning and in his cervical area. Cervical
x-rays taken on 12 May 2000 revealed a straightening of the normal
curvature of the spine. On 1 June 2000, plaintiff reported neck,
rib and chest pain. An MRI revealed degenerative changes at the
C4-C5 level and a broad based disc bulge at the C3-C4 level. Dr.
Krege indicated in his notes he could not find a definitive cause
for plaintiff's pain. On 21 June 2000, plaintiff received a
steroid injection and on 19 July 2000, Dr. Krege noted plaintiff
was moving well and exhibited no signs of pain.
On 14 September 2000, plaintiff was examined by Dr. Frank
Rowan, an orthopedic surgeon. Dr. Rowan assigned plaintiff a 0%
permanent partial impairment rating, diagnosed plaintiff with
chronic cervical/thoracic strain and released plaintiff tosedentary work or plaintiff could “continue with work
conditioning.” Dr. Rowan's medical notes indicated that he was “at
a loss to explain [plaintiff's] complaints.” Subsequently,
plaintiff underwent a Functional Capacity Evaluation (FCE) which
Dr. Rowan interpreted to reveal that plaintiff was capable of
working in a sedentary capacity for an eight hour day.
On 26 October 2000, Dr. Krege examined plaintiff who continued
to experience pain in his lower back and neck stiffness. Plaintiff
was diagnosed with ankylosing spondylitis, a progressive fusion of
the spine, which was unrelated to the 27 February 2000 work injury.
Dr. Krege found that plaintiff was at maximum medical improvement
with regard to his work injury and plaintiff had sustained no
permanent partial impairment rating as the result of his workplace
injury.
On 11 February 2002, Dr. Scott J. Spillmann, a physiatrist
examined plaintiff and determined he was not at maximum medical
improvement and referred him to a rheumatologist who confirmed the
diagnosis of ankylosing spondylitis. On 13 July 2002, plaintiff
returned to Dr. Spillmann with continued neck pain with stiffness
and limited neck mobility. Dr. Spillmann referred plaintiff to
participate in an extensive work evaluation program which indicated
plaintiff was performing within the heavy physical demand
classification as outlined by the U.S. Department of Labor's
Dictionary of Occupational Titles. Dr. Spillmann released
plaintiff to work without restrictions and assigned a two percentpermanent partial disability rating to his neck and a four percent
permanent partial disability rating to his back.
Plaintiff was also examined by a neurosurgeon, Dr. Rick
Holmberg who stated plaintiff's ankylosing spondylitis was not
related to plaintiff's workplace injury, but that the condition
could complicate the symptoms from the incident. In their
findings, the Full Commission gave greater weight to Dr.
Spillmann's testimony, an expert in preventive and occupational
medicine, than that of Dr. Holmberg's and found that Dr. Holmberg
should not be approved as plaintiff's authorized treating physician
regarding the workplace injury. As a result, the Full Commission
concluded “plaintiff is entitled to have defendants pay for all
related medical expenses incurred in treatment of the compensable
injury, with these not including expenses associated with treatment
by Dr. Holmberg or ongoing treatment ankylosing spondylitis.” The
Full Commission further concluded, “[d]efendants are entitled to a
credit for overpayment for any temporary total disability paid
after September 9, 2003.” From this Opinion and Award, plaintiff
appeals.
_________________________
On appeal, plaintiff argues the Commission erred by making
Findings of Fact fifteen, eighteen through twenty-two, twenty-four
and Conclusions of Law two, three and five.
Plaintiff challenges the following findings of the Full
Commission:
15. Dr. Spillmann has released plaintiff from
his care, finding that he reached maximummedical improvement for all conditions
related to his work injury. Additionally,
Dr. Spillmann released plaintiff to work
without restrictions, and assigned a two
percent (2%) permanent partial disability
rating to the neck and a four percent
(4%) permanent partial disability rating
to the back.
. . .
18. A labor market survey was completed which
identified numerous jobs in plaintiff's
geographical area which were within his
restrictions and which plaintiff was
capable of securing, many of which were
available at the time the labor market
survey was completed.
19. Dr. Spillmann specifically reviewed and
approved four of the job descriptions
represented in the labor market survey as
being appropriate for plaintiff.
20. The [Full Commission] find[s] as fact
that suitable employment was available
within plaintiff's restrictions.
21. As plaintiff is an undocumented worker,
he was unable to secure employment which
he would be able to perform based on his
restrictions but for his status as an
undocumented worker.
22. Plaintiff has failed to prove that he is
unable to earn pre-injury wages,
regardless of his status as an
undocumented worker.
. . .
24. Based upon the credible evidence of
record, the [Full Commission] find[s]
that ankylosing spondylitis is a
condition that was not caused by
plaintiff's compensable injury.
Plaintiff also challenges the following conclusions of the Full
Commission: 2. Plaintiff's ankylosing spondylitis
condition is not the direct and natural
result of, or causally related to his
February 27, 2000 injury by accident.
N.C. Gen. Stat. § 97-2(6).
3. Plaintiff is now capable of returning to
work, and defendants have identified
positions which plaintiff would be
capable of getting, but for his status as
an undocumented worker.
Gayton v. Gage,
149 N.C. App. 346, 560 S.E.2d 870 (2002).
Accordingly, Special Deputy Commissioner
Kesler correctly terminated plaintiff's
temporary total benefits as of September
9, 2003.
Id.
. . .
5. Defendants are entitled to a credit for
overpayment for any temporary total
disability paid after September 9, 2003.
N.C. Gen. Stat. § 97-42.
On appeal our standard of review is limited to “whether any
competent evidence supports 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). This Court's review “goes no further than
to determine whether the record contains any evidence tending to
support the finding.”
Adams v. AVX Corp., 349 N.C. 676, 681, 509
S.E.2d 411, 414 (1998) (citation omitted). The Full Commission's
findings of fact are conclusive on appeal when supported by
competent evidence, even if there is evidence to support a contrary
finding, and may be set aside on appeal only “when there is a
complete lack of evidence to support them[.]”
Morrison v.
Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981);
see Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912,
914 (2000) (citation omitted).
The evidence supports Finding of Fact fifteen. In Dr.
Spillmann's 19 November 2002 treatment note, plaintiff had “no
restrictions.” In his deposition testimony, Dr. Spillmann
reiterated his opinion that plaintiff had no work restrictions.
Dr. Spillmann had placed plaintiff at maximum medical improvement,
determined that he had no work restrictions and sent him back to
work consistent with the results of his Functional Capacity
Evaluation test. In his 29 July 2003 treatment note, Dr. Spillmann
did not assign any work restrictions to plaintiff and indicated
plaintiff's work capacity “per the [FCE] places him in the Heavy
category”. This assignment of error is overruled.
The evidence supports Findings of Fact eighteen through
twenty-two and Conclusions of Law three and five. After having
treated plaintiff, Dr. Spillmann specifically approved four fast-
food job descriptions submitted by defendant-employer. A Labor
Market Survey identified at least eleven job openings based on
plaintiff's work experience. These jobs paid wages within a dollar
an hour of plaintiff's pre-injury job and each fast-food job had
opportunities for advancement and increased wages, unlike
plaintiff's pre-injury job with defendant-employer.
The burden is on the employee to prove his
incapacity to earn, as a result of the
compensable injury, the same wages he was
earning at the time of the injury. . . .
[A]lthough the Plaintiff's post-injury
earnings [would be] less than [his] pre-injury
earnings, the focus should be on the issue of
whether Plaintiff's earning capacity or powerhas been diminished. Our Supreme Court has
held that compensation must be based upon loss
of wage earning power rather than the amount
actually received. It was intended by the
statute to provide compensation only for loss
of earning capacity.
Derosier v. WNA, Inc., 149 N.C. App. 597, 601, 562 S.E.2d 41, 44
(2002) (citations and internal quotation marks omitted);
see Dixon
v. City of Durham, 128 N.C. App. 501, 495 S.E.2d 380,
disc. review
denied, 348 N.C. 496, 510 S.E.2d 381 (1998) (suitability of post-
injury jobs offered is determined by factors including wage earning
capacity). There is no medical evidence in the record that
plaintiff's earning capacity was diminished by his 27 February 2000
workplace injury after 9 September 2003. The Full Commission
properly concluded that as of 9 September 2003 plaintiff's
temporary disability status had ended and plaintiff was “capable of
returning to work, and defendants have identified positions which
plaintiff would be capable of getting, but for his status as an
undocumented worker.” These assignments of error are overruled.
Finding of Fact twenty-four and Conclusion of Law two are
supported by the evidence. Plaintiff has the burden to prove each
element of compensability of his claim.
Holley v. ACTS, Inc., 357
N.C. 228, 234, 581 S.E.2d 750, 754 (2003) (citation omitted).
“When dealing with a complicated medical question . . . expert
medical testimony is necessary to provide a proper foundation for
the Commission's findings.”
Id. While “medical certainty is not
required, an expert's 'speculation' is insufficient to establish
causation.”
Id. The medical testimony in this case clearly indicates
plaintiff's ankylosing spondylitis condition was not caused by his
27 February 2000 workplace injury. On 26 October 2000, Dr. Krege,
at a loss for what caused plaintiff's pain, examined plaintiff and
diagnosed him with ankylosing spondylitis. Dr. Krege found that
plaintiff was at maximum medical improvement with regard to his
work injury and plaintiff had sustained no permanent partial
impairment rating as the result of his workplace injury.
On 13 July 2002, plaintiff was examined by Dr. Spillmann
because he complained of continued neck pain with stiffness and
limited neck mobility. After extensive evaluation and examination,
Dr. Spillmann released plaintiff to work without restrictions.
Plaintiff was also examined by a neurosurgeon, Dr. Rick Holmberg
who stated plaintiff's ankylosing spondylitis was not related to
plaintiff's workplace injury, but that the condition could
complicate the symptoms from the incident. In their findings, the
Full Commission gave greater weight to the testimony of Dr.
Spillmann, an expert in preventive and occupational medicine, than
that of Dr. Holmberg and found that Dr. Holmberg should not be
approved as plaintiff's authorized treating physician regarding the
workplace injury. When asked specifically if plaintiff's workplace
injury could have triggered the manifestation of plaintiff's
condition, Dr. Spillmann indicated that it was “speculative.” Dr.
Spillmann also stated that “[m]ost of the time [ankylosing
spondylitis] just happens. It just starts. We don't know actually
most of the time what triggers it.” The Commission's finding thatplaintiff's ankylosing spondylitis condition was not caused by his
workplace injury, and was not the direct and natural result of or
causally related to the work-related accident is supported by the
evidence in this case. These assignments of error are overruled.
Affirmed.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
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