Appeal by Defendants from opinion and award entered 6 October
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 17 October 2006.
The Jernigan Law Firm, by Gina E. Cammarano, for Plaintiff-
Young Moore and Henderson P.A., by Jeffrey T. Linder, Michael
W. Ballance, and Angela N. Farag, for Defendants-Appellants.
Scotland Memorial Hospital (the hospital) and South Carolina
Property and Casualty Guaranty Association (collectively
Defendants) appeal from an opinion and award of the North Carolina
Industrial Commission (the Commission) filed 6 October 2005. The
Commission's opinion and award reversed an opinion and award by
Deputy Commissioner Phillip A. Holmes, which had determined that
Alene Legette (Plaintiff) did not sustain a compensable injury by
At a hearing before the Deputy Commissioner, Plaintifftestified that she became a registered nurse in 1971, and began
working as a nurse for the hospital in October 2000. Plaintiff
worked the night shift every Friday, Saturday and Sunday.
Plaintiff testified that she hurt her left arm as she was
repositioning a patient during her shift at the hospital on 12
Plaintiff testified that pulling a patient up in bed
"was normally a two-person maneuver." However, because the
hospital was understaffed, Plaintiff had to reposition a patient
without assistance. She testified that because she had no help in
moving the patient, it was necessary for her to stand closer to the
patient and to the bed than she would have with assistance.
Plaintiff also testified that the patient was heavy and non-
ambulatory and that she had to use more force than if she had had
Plaintiff testified that when she moved the patient, she felt
"a sharp pain underneath [her] left armpit or breast area extending
toward the back of [her] shoulder and in [her] arm and shoulder[.]"
Plaintiff further stated that "[a]lmost immediately in just a
little while, [her] arm started swelling, and it extended further
down [her] arm into [her] wrist to the tops of [her] fingers."
Plaintiff testified that she completed her shift and worked
her next two shifts. Plaintiff took Ibuprofen for her pain and
swelling. Plaintiff testified that during her 13 October 2001 to
14 October 2001 shift, she "went down to the emergency room with
[her] shift supervisor, and [they] saw the emergency room doctor."
Plaintiff testified that the doctor offered her Lortab for herpain, but Plaintiff declined to take the medicine while working.
Suzanne Parent (Ms. Parent) testified that she was a
registered nurse on staff at the hospital in October 2001. Ms.
Parent testified that she remembered when Plaintiff injured her arm
and that Plaintiff told her she had injured her arm "pulling a
patient." Ms. Parent also testified that she saw Plaintiff's arm
the next night and that Plaintiff's "left arm had swollen about two
times its normal size. It was a deep, beefy red." Gail Peterson
(Ms. Peterson) testified that she was a "nursing supervisor,
patient care supervisor" at the hospital in October 2001. Ms.
Peterson testified that the hospital encouraged nurses to get help
when moving heavy patients.
Plaintiff testified that she went to her family physician, Dr.
James Currin (Dr. Currin), for treatment on 15 October 2001. Dr.
Currin gave Plaintiff a prescription for an antibiotic and an anti-
inflammatory. Plaintiff testified that she returned to work for
her next series of weekend shifts on 19 October 2001. However,
Plaintiff showed her arm to her supervisor, Ms. Peterson, and told
Ms. Peterson that the pain and swelling in her left arm was severe.
Ms. Peterson told Plaintiff to go home. Plaintiff left work on 20
October 2001 and has not returned to work.
Plaintiff saw Dr. Diana B. McNeill (Dr. McNeill) at Duke
University Medical Center on 19 November 2001. Dr. McNeill noted
that Plaintiff was having a "significant problem with lymphedema in
the left arm after heavy lifting." Dr. McNeill also noted that
Plaintiff had a "history of breast carcinoma with left modifiedradical mastectomy with no dissection 10/10 nodes negative and 37
radiation treatments since 1998." Dr. McNeill also stated: "I
think [Plaintiff] really needs a referral to the lymphedema
clinic." Plaintiff was also seen on 27 November 2001 by Dr. Brian
Parkes (Dr. Parkes), a general surgeon in Laurinburg, who also
noted Plaintiff's history of breast cancer. Dr. Parkes stated:
"[Plaintiff] was doing some heavy lifting at work and felt pain in
her biceps region and serratus anterior. Subsequently she
developed pitting edema from the elbow to the hand." Plaintiff was
also seen by several other doctors.
After the hearing before the Deputy Commissioner, Defendants
took the deposition of Dr. George Paschal, III (Dr. Paschal), who
testified that about twenty percent of people who have radiation
and surgery for breast cancer will develop lymphedema. Dr. Paschal
explained that lymphedema is a disorder caused by "the
malarrangement of lymphatic flow secondary to an obstruction." Dr.
Paschal further stated that "[t]he disorder will slowly progress
over time until it reaches a point that symptoms become noticeable
to the patient." Dr. Paschal further testified as follows: "The
scarring slowly contracts over a period of time, three to five
years usually before you see any obstruction of flow, although it
can happen sooner and it can happen later." Dr. Paschal stated
that Plaintiff likely suffered from lymphedema. However, Dr.
Paschal also stated that "the activities [Plaintiff] performed on
the day in question were simply what she was doing when the
lymphatic flow was curtailed sufficient to bring her condition toher attention, but did not cause or materially aggravate or
materially accelerate the underlying pathology."
The Deputy Commissioner filed an opinion and award on 12 July
2004, concluding that Plaintiff did not sustain a compensable
injury by accident. Plaintiff appealed to the Commission and filed
a Form 44, setting forth several alleged errors. After the parties
filed briefs, the Commission ordered the case to be reopened. The
Commission further ordered that "the parties shall have 60 days
from the date of [the] Order within which to take the deposition of
Dr. James Currin."
Plaintiff's counsel tendered Dr. Currin as an expert in
medicine, with a specialty in family practice, and Defendants'
counsel objected. Dr. Currin testified that he was a board
certified family practitioner who practiced at Laurinburg Family
Practice from 1980 until his retirement on 6 July 2004. Over the
course of his twenty-five year career, Dr. Currin treated about one
hundred patients with lymphedema. However, because Dr. Currin saw
his patients multiple times during his twenty-five year career, he
may have seen those one hundred patients with lymphedema "a
Dr. Currin testified that he saw Plaintiff in October 2001,
and diagnosed her with lymphedema. Plaintiff's arm was swollen and
painful. Dr. Currin testified that Plaintiff's alleged accident at
work "may have caused [her left arm swelling], or certainly may
have aggravated [her left arm swelling] if she was prone to
lymphedema related to the previous breast cancer surgery." Dr.Currin also testified that Plaintiff's alleged accident "probably
aggravated [her left arm swelling]." Dr. Currin further testified
Q. Okay, and what's the basis for your
A. The fact that she had no symptoms prior to
Q. Okay, and was the way that [Plaintiff]
described the incident consistent with a
trauma of the type that would be associated
with the development of lymphedema with
someone with her history?
[DEFENDANTS' COUNSEL]: Objection.
Dr. Currin also testified that, assuming Plaintiff had some pre-
existing, asymptomatic lymphedema, Plaintiff's alleged accident at
work "did aggravate the condition." Dr. Currin testified that the
basis of his opinion was that "[Plaintiff] had had no problems with
that arm prior to that injury."
On redirect examination, Dr. Currin testified as follows:
Q. Okay, but would you be able to say that
[Plaintiff's alleged accident] more likely
than not aggravated [any pre-existing
A. Based on my history from her that day that
prior to that incident she had had no problem,
and after that her symptoms started, it would
be that that's when the problem started.
Q. Okay. So just to clarify, because it's
important, as you talked about before . . .,
can you testify that . . . that incident more
likely than not or probably aggravated her
underlying . . . condition or her
predisposition to lymphedema?
[DEFENDANTS' COUNSEL]: Objection.
The Commission filed an opinion and award on 6 October 2005,
concluding, inter alia, that on 12 October 2001, Plaintiff
sustained an injury by accident arising out of and in the course of
her employment with the hospital. The Commission also concluded
that Defendants had actual notice of Plaintiff's injury by
accident. Defendants appeal.
Our review of an opinion and award by the Commission is
limited to two inquiries: (1) whether there is any competent
evidence in the record to support the Commission's findings of
fact; and (2) whether the Commission's conclusions of law are
justified by the findings of fact. Counts v. Black & Decker Corp.,
121 N.C. App. 387, 389, 465 S.E.2d 343, 345, disc. review denied,
343 N.C. 305, 471 S.E.2d 68 (1996). If supported by competent
evidence, the Commission's findings are conclusive even if the
evidence might also support contrary findings. Jones v. Candler
Mobile Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995).
The Commission's conclusions of law are reviewable de novo.
Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341, 348, 581
S.E.2d 778, 783 (2003).
 Defendants first argue the Commission erred by concluding
that "[P]laintiff sustained an injury by accident arising out of
and in the course of her employment with [the hospital]." An
accident is "'an unlooked for and untoward event which is not
expected or designed by the person who suffers the injury.'" Porter v. Shelby Knit, Inc.
, 46 N.C. App. 22, 26, 264 S.E.2d 360,
(quoting Hensley v. Cooperative
, 246 N.C. 274, 278, 98
S.E.2d 289, 292 (1957)). "The elements of an 'accident' are the
interruption of the routine of work and the introduction thereby of
unusual conditions likely to result in unexpected consequences."
However, "once an activity, even a strenuous or otherwise
unusual activity, becomes a part of the employee's normal work
routine, an injury caused by such activity is not the result of an
interruption of the work routine or otherwise an 'injury by
accident' under the Workers' Compensation Act." Bowles v. CTS of
, 77 N.C. App. 547, 550, 335 S.E.2d 502, 504 (1985).
In the present case, the Commission made the following
relevant findings of fact:
2. On October 12, 2001, [P]laintiff was
injured while repositioning a patient.
Because the hospital was understaffed, she had
no one to assist her in what was normally a
two-person maneuver to pull a patient up in
bed. Therefore, [P]laintiff moved the patient
by herself, which meant that she had to
position her body differently than she
normally would, by standing closer to the
patient and to the head of the bed. This
particular patient was heavy, non-ambulatory,
and unable to assist [P]laintiff with the
move. Plaintiff had to use more force with
her arms and legs than usual. As she moved
the patient, [P]laintiff felt a sharp pain
underneath her left armpit and in her breast
3. Soon after the lifting incident,
[P]laintiff's left arm began swelling into her
wrist and fingers. Sue Parent, another nurse
on the floor, saw [P]laintiff's swollen left
arm and recalled that [P]laintiff said she
injured the arm pulling a patient. Ms. Parent
also testified that the following night
[P]laintiff's arm was swollen to twice thenormal size and was dark red. Plaintiff's
supervisor did not recall whether [P]laintiff
reported the left arm injury on October 12,
2001. Plaintiff continued to work the rest of
her shift and took Ibuprofen to try ro reduce
the pain and swelling. Plaintiff also worked
the following two nights. During the shift on
October 13, 2001, [P]laintiff went with Monica
Miller, the shift supervisor, to the Emergency
Room where a doctor offered to give
[P]laintiff Lortab, a prescription painkiller
that [P]laintiff declined to take while
Defendants do not specifically challenge the testimonial
support for these findings. Rather, Defendants argue that
Plaintiff could not recall the name, gender or room number of the
patient she was lifting at the time of the alleged accident.
Defendants also argue that the supervisor to whom Plaintiff
allegedly reported the accident did not work on 13 October 2001 and
that the hospital's records did not show evidence that Plaintiff
was seen in the emergency room on that date. Defendants further
argue that, although the Commission found it was unusual for
Plaintiff to have moved a patient by herself, Plaintiff admitted
that she had moved patients by herself on prior occasions.
Plaintiff's supervisor, Ms. Peterson, also testified that other
nurses lifted patients by themselves. Furthermore, Defendants
argue that although the Commission found that the patient Plaintiff
moved was non-ambulatory and heavy, most patients are moved when
they are asleep and therefore most patients are heavy and non-
However, even though there may have been competent evidence in
the record to support contrary findings, as Defendants assert, thefindings of the Commission are binding because they are supported
by the competent testimony of Plaintiff and Ms. Parent. See Jones
118 N.C. App. at 721, 457 S.E.2d at 317.
 Defendants also argue that "even if one believes
[P]laintiff's story, her incident at work does not constitute a
compensable 'accident.'" In support of their argument, Defendants
cite Landry v. U.S. Airways, Inc.
, 150 N.C. App. 121, 563 S.E.2d
23, rev'd per curiam for reasons stated in the dissent
, 356 N.C.
419, 571 S.E.2d 586 (2002), where our Supreme Court adopted Judge
Hunter's dissent. In Landry
, the plaintiff was injured at work
when he grabbed a mailbag that was heavier than he expected. Id.
at 122, 563 S.E.2d at 24. The Commission found that the plaintiff
was required to load and unload mail, freight and luggage as part
of his job; that the packages, which included mail sacks, ranged in
weight from one pound to four hundred pounds; that there was no way
for the plaintiff to know how much the packages weighed until he
picked them up; that it was not unusual for certain mailbags to be
heavy and for the plaintiff to be unaware of this until he picked
them up; that the plaintiff was performing his normal job duties in
the normal manner and using his normal motion when he was injured;
that the plaintiff never knew the weight of a mailbag until he
lifted it; and that "[m]ailbags often varied in weight and were
heavier or lighter than anticipated." Id.
at 122-23, 563 S.E.2d at
25. The Commission then concluded that the plaintiff did not
sustain an injury by accident. Id.
at 123, 563 S.E.2d at 25. The
majority in the Court of Appeals held that the Commission's findingthat "[m]ailbags often . . . were heavier or lighter than
anticipated[,]" was unsupported by the evidence because the
Plaintiff never testified that the fact that mailbags were often
overweight was unanticipated by him. Id.
at 124, 563 S.E.2d at 26.
The majority also pointed out that the plaintiff "testified he
could generally estimate the weight of mailbags by sight but found
this particular mailbag heavier than anticipated." Id.
majority held that the plaintiff's undisputed testimony supported
a finding that "an unlooked for and untoward event occurred which
was not expected by [the] [p]laintiff[,]" leading to the conclusion
that the plaintiff sustained an injury by accident. Id.
majority reversed the Commission and remanded the matter. Id.
124-25, 563 S.E.2d at 26.
The dissent stated:
Although [the] plaintiff may not have
specifically stated that the mailbags were
often heavier or lighter than "anticipated,"
the evidence as a whole clearly supports the
Commission's findings that [the] plaintiff's
job required him to lift weights of up to 400
pounds; that [the] plaintiff never knew prior
to lifting mailbags how much they weighed;
that it was not unusual for mailbags to be
extremely heavy and that [the] plaintiff would
be unaware of the heavy weight of the bags
until he lifted them; and that [the] plaintiff
was engaged in his normal duties and using his
normal motions when injured.
at 126, 563 S.E.2d at 27. The dissent also held that these
findings, which were supported by competent evidence, supported the
Commission's conclusion that the plaintiff did not sustain an
injury by accident. Id.
On appeal, our Supreme Court adopted the
dissent, thereby reversing the Court of Appeals' majority opinion. Landry
, 356 N.C. at 419, 571 S.E.2d at 587.
, the findings in the present case establish that
Plaintiff was performing a task that was not part of her normal
work routine when she was injured. Moving patients was normally a
two-person job. Again, although there was evidence that could have
supported a contrary finding, we are bound by the findings because
they are supported by the competent testimony of Plaintiff and Ms.
Parent. See Jones
, 118 N.C. App. at 721, 457 S.E.2d at 317.
Because the hospital was understaffed and Plaintiff had to move the
patient by herself, she had to position her body differently than
normal and had to use more force than normal. On the contrary, the
plaintiff in Landry
, as determined by the findings in that case,
was performing his normal job in the usual manner when he was
, 150 N.C. App. at 126, 563 S.E.2d at 27.
Moreover, in Landry
, it was not unusual for mailbags to be
extremely heavy and for the plaintiff to be unaware of this until
he lifted them. Id.
We conclude that the Commission's findings of fact, which are
supported by competent evidence, support its conclusion of law that
"[P]laintiff sustained an injury by accident arising out of and in
the course of her employment with [the hospital]." Therefore, we
affirm the order of the Commission.
 Defendants next argue that even if Plaintiff suffered a
compensable injury by accident, Plaintiff's claim still should have
been barred for failure to give timely written notice of theaccident to her employer, pursuant to N.C. Gen. Stat. § 97-22.
Under N.C. Gen. Stat. § 97-22 (2005),
Every injured employee or his representative
shall immediately on the occurrence of an
accident, or as soon thereafter as
practicable, give or cause to be given to the
employer a written notice of the accident, and
. . . no compensation shall be payable unless
such written notice is given within 30 days
after the occurrence of the accident or death,
unless reasonable excuse is made to the
satisfaction of the Industrial Commission for
not giving such notice and the Commission is
satisfied that the employer has not been
However, our Court has held that the "[f]ailure of an employee to
provide written notice of her injury will not bar her claim where
the employer has actual knowledge of her injury." Lakey v. U.S.
, 155 N.C. App. 169, 172, 573 S.E.2d 703, 706 (2002),
disc. review denied
, 357 N.C. 251, 582 S.E.2d 271 (2003).
Defendants make three specific arguments: (1) there is no
evidence to support the Commission's finding that the hospital had
actual notice of Plaintiff's injury by accident on 13 October 2001;
(2) the Commission failed to find that Plaintiff provided a
reasonable excuse for not giving written notice; and (3) the
Commission's findings do not justify its conclusion that Defendants
were not prejudiced.
The Commission found that "[the hospital] had actual, verbal
notice of the injury by accident on October 13, 2001, when
[P]laintiff's supervisor went with her to the Emergency Room[.]"
Defendants argue (1) that there is no competent evidence to support
the finding because the emergency room records do not show thatPlaintiff was seen there, (2) that the nurses' communication
notebook shows that the person to whom Plaintiff allegedly reported
her injury, Monica Miller, did not work with Plaintiff on 13
October 2001, and (3) that Arletha Brown was Plaintiff's shift
supervisor on 13 October 2001 and testified that Plaintiff did not
report an injury to her.
The Commission's challenged finding is supported by the
testimony of Plaintiff, who testified that her shift supervisor,
Monica Miller, accompanied her to the hospital's emergency room on
13 October 2001. Although the Commission appears to have been
mistaken in referring to the date as 13 October 2001, rather than
14 October 2001, when Monica Miller filled in as Plaintiff's shift
supervisor, this mistake is not material. The remainder of the
Commission's finding is supported by competent evidence.
Therefore, the hospital had actual notice of Plaintiff's injury by
accident, which obviated the need for Plaintiff to provide written
notice. See Lakey
, 155 N.C. App. at 172, 573 S.E.2d at 706.
 Defendants also argue the Commission erred by failing to
find that Plaintiff had a reasonable excuse for the delay in
providing written notice. However, because the Commission found
that Defendants had actual knowledge of Plaintiff's injury, the
Commission was not required to make a finding regarding written
notice. Even assuming, arguendo
, that the Commission was required
to make such a finding, the Commission did find that "[P]laintiff's
application for disability benefits provided written notice of the
incident on November 27, 2001." Although this was more than thirtydays after the incident, our Court has held that "a 'reasonable
excuse' for failing to give timely notice includes 'a belief that
[the] employer is already cognizant of the accident.'" Westbrooks
, 130 N.C. App. 517, 528, 503 S.E.2d 409, 416 (1998)
(quoting Lawton v. County of Durham
, 85 N.C. App. 589, 592, 355
S.E.2d 158, 160 (1987)). Therefore, by finding that Plaintiff gave
verbal notice of the injury by accident to her shift supervisor,
the Commission implicitly found that Plaintiff believed the
hospital was already cognizant of her injury and that Plaintiff had
a reasonable excuse for failing to give written notice within
thirty days of the accident.
Defendants also argue the Commission's findings do not support
its conclusion that Defendants were not prejudiced by Plaintiff's
delay in providing written notice of the accident. However,
because the Commission found that the hospital had actual knowledge
of Plaintiff's injury, the Commission was not required to make
findings regarding prejudice to Defendants. We overrule the
assignments of error grouped under this argument.
 Defendants next argue the Commission erred
by allowing Plaintiff to take the deposition
of Dr. James Currin after the record had
closed, after briefs had been presented, and
after oral argument had taken place, where
Plaintiff had not made such a request before
the Deputy Commissioner and did not make such
a request in either the Form 44 or brief to
the . . . Commission on appeal.
Under N.C. Gen. Stat. § 97-85 (2005),
[i]f application is made to the Commissionwithin 15 days from the date when notice of
the award shall have been given, the full
Commission shall review the award, and, if
good ground be shown therefor, reconsider the
evidence, receive further evidence, rehear the
parties or their representatives, and, if
proper, amend the award[.]
Defendants argue that N.C.G.S. § 97-85 "is predicated on the notion
that the party seeking to reopen the record will have raised this
as an issue with particularity in advance, and the opposing party
will have been given an opportunity to respond." Defendants cite
Roberts v. Wal-Mart Stores, Inc.
, 173 N.C. App. 740, 619 S.E.2d at
907 (2005), where our Court held that the portion of the Workers'
Compensation Rules requiring appellants to state with particularity
the grounds for appeal may not be waived by the Commission. Id.
744, 619 S.E.2d at 910. In Roberts
, the plaintiff alleged that
while working in the defendant-employer's cafe, she "felt a snap in
her lower back as she was lifting a bag-in-a-box of soft drink
syrup weighing fifty-five pounds." Id.
at 741, 619 S.E.2d at 908.
The plaintiff notified the defendant-employer of her injury more
than six months after the incident. Id.
at 742, 619 S.E.2d at 909.
A deputy commissioner held that the plaintiff suffered a
compensable incident at work, but concluded that the plaintiff's
claim should be denied for failure to give timely notice pursuant
to N.C.G.S. § 97-22. Id.
The plaintiff filed a notice of appeal
with the Commission, but did not file a Form 44 or a brief with the
, the Commission issued an order waiving oral
argument and announced it would file a decision based upon therecord. Id.
The defendant-employer and the defendant insurance
company (collectively the defendants) petitioned the Commission to
allow them to present oral and written arguments, but never
received a response. Id.
The Commission found that the plaintiff
had been unable to earn the same or greater wages for a period of
approximately two months and awarded the plaintiff total disability
compensation for that period of time. Id.
at 742-43, 619 S.E.2d at
909. The Commission further instructed the defendants to pay all
of the plaintiff's medical expenses incurred as a result of the
compensable injury. Id.
at 743, 619 S.E.2d at 909.
On appeal, the defendants argued "they were prejudiced by the
. . . Commission's sudden declaration . . . that [the] plaintiff's
claims would be decided without briefs or oral arguments and that
its decision would be based upon the record." Id.
at 743-44, 619
S.E.2d at 910. Our Court recognized that pursuant to Rule 701(2)
of the Workers' Compensation Rules, the "'[f]ailure to state with
particularity the grounds for appeal shall result in abandonment of
such grounds, as provided in paragraph (3).'" Id.
at 744, 619
S.E.2d at 910 (quoting Workers' Comp. R. of N.C. Indus. Comm'n
701(2), 2005 Ann. R. (N.C.) 919, 943). Rule 701(3) states that
"'[p]articular grounds for appeal not set forth in the application
for review shall be deemed abandoned, and argument thereon shall
not be heard before the Full Commission.'" Id.
Comp. R. of N.C. Indus. Comm'n 701(3), 2005 Ann. R. (N.C.) 919,
943). While our Court also recognized that the Commission has the
discretion to waive the use of a Form 44, we held that "the portionof Rule 701 requiring [an] appellant to state with particularity
the grounds for appeal may not be waived by the . . . Commission."
Our Court reversed the Commission and vacated its opinion and
In the present case, based upon Roberts
, Defendants argue they
were unfairly deprived of notice that Plaintiff would request the
opportunity to present additional evidence. However, Roberts
inapposite. In Roberts
, the Commission violated its own rules by
deciding the appeal based upon the record when the plaintiff never
set forth the grounds for appeal. In the present case, Plaintiff
filed a Form 44 setting forth the grounds for appeal. However,
because the Deputy Commissioner determined that Plaintiff did not
suffer an injury by accident, Plaintiff's grounds for appeal
focused on that determination. When Plaintiff made application to
the Commission, the Commission was authorized, pursuant to N.C.G.S.
§ 97-85, to re-open the record to take additional evidence.
The present case is analogous to Lynch v. Construction Co.
N.C. App. 127, 254 S.E.2d 236, disc. review denied
, 298 N.C. 298,
259 S.E.2d 914 (1979), where the plaintiff sought benefits for an
injury by accident that allegedly occurred at work. Id.
254 S.E.2d at 236. The plaintiff alleged he slipped and fell at
work on 1 March 1973, but did not report the fall to his foreman
until 5 March 1973. Id.
at 127-28, 254 S.E.2d at 236. The
plaintiff was treated for pain two weeks after the accident and
continued to work for the defendant until 8 May 1973, when he was
admitted to the hospital. Id.
at 128, 254 S.E.2d at 236-37. Dr.Guy L. Odom (Dr. Odom) operated on the plaintiff to remove a
ruptured disc on 22 May 1973 and continued to treat the plaintiff
at 128, 254 S.E.2d at 237. Dr. Odom opined that
the "plaintiff reached maximum improvement by 13 December 1973 with
a 20 per cent permanent partial disability." Id.
hearing commissioner sustained objections by [the] defendant's
counsel to two questions asked of Dr. Odom as to whether the
witness had an opinion satisfactory to himself 'as to what caused'
the condition of which [the] plaintiff complained." Id.
then testified that the plaintiff's condition could have been
caused by several factors other than a fall. Id.
commissioner found that the plaintiff sustained an injury by
accident on 1 March 1973, entitling him to "temporary total
disability from 8 May 1973 to 13 December 1973 and for 20 percent
permanent partial disability . . . for a period of sixty weeks."
On appeal, the Commission, on its own motion, remanded the
case to take additional medical testimony regarding the causal
The defendant appealed and we granted the
defendant's petition for writ of certiorari. Id.
at 129, 254
S.E.2d at 237. The defendant argued the Commission exceeded the
power granted to it by N.C.G.S. § 97-85 because no good ground was
shown to receive further evidence. Id.
The defendant specifically
argued that "the 'good ground' which [N.C.]G.S. [§] 97-85 requires
to be shown before the Commission may 'receive further evidence'
means something more than the mere failure of a claimant to makeout his case after he has had a fair opportunity to do so." Id.
130, 254 S.E.2d at 238.
Our Court recognized that "[i]t is axiomatic that the
Workmens' Compensation Act should be liberally construed to achieve
its purpose of providing compensation to employees injured by
accident arising out of and in the course of their employment[.]"
Our Court also recognized that the strict procedural rules
applicable to ordinary civil actions are not appropriate in
workers' compensation proceedings. Id.
Our Court held that the
powers given to the Commission under N.C.G.S. § 97-85 "are plenary
powers to be exercised in the sound discretion of the Commission.
Specifically, we hold that whether 'good ground be shown therefore'
in any particular case is a matter within the sound discretion of
the Commission[.]" Id.
at 130-31, 254 S.E.2d at 238. We then held
that the Commission did not abuse its discretion, and we affirmed
the Commission's opinion and award. Id.
at 131, 254 S.E.2d at 238.
In the present case, as in Lynch
, Defendants have not
demonstrated that the Commission abused its discretion by reopening
the record to receive further evidence. Because the Deputy
Commissioner determined that Plaintiff did not sustain a
compensable injury by accident, Plaintiff's grounds for appeal
focused on that ruling. The Commission had the discretion to
reopen the record on the issue of causation, especially where the
Deputy Commissioner did not reach that issue. We overrule the
assignments of error grouped under this argument.
 Defendants argue the Commission abused its discretion and
deprived Defendants of due process by allowing Plaintiff to take
Dr. Currin's deposition "where Defendants were not subsequently
allowed to [re-depose] their expert witnesses, or to present new
briefs or arguments encompassing all of the evidence in the case."
Defendants rely upon Allen v. K-Mart
, 137 N.C. App. 298, 528 S.E.2d
60 (2000), where the plaintiff, a stocker for K-Mart, sustained a
compensable injury "when she lifted a box of stationery to put into
a shopping cart and pulled a muscle in her left side." Id.
99, 528 S.E.2d at 61. The plaintiff was seen by a doctor at Urgent
Care, and then by an orthopedic surgeon, who released the plaintiff
to return to work without restriction and who further stated that
the plaintiff would not have any permanent partial impairment
at 299, 528 S.E.2d at 61-62. The plaintiff continued
to work until she had a disagreement with a personnel officer. Id.
at 299, 528 S.E.2d at 62. The plaintiff did not return to work
after 30 August 1995. Id.
The plaintiff began seeing a family physician, Dr. Miller, who
initially diagnosed the plaintiff as having a cervical and lumbar
muscle strain. Id.
at 300, 528 S.E.2d at 62. Dr. Miller also
noted that the plaintiff "had been depressed and suffering from
anxiety/panic attacks for more than one and one-half years." Id.
Dr. Miller eventually "diagnosed [the] plaintiff with fibromyalgia
'sort of by exclusion because all of the other tests . . . looked
pretty normal.'" Id.
However, the plaintiff never sought a
specialist in the field of fibromyalgia prior to the hearing beforea deputy commissioner. Id.
The deputy commissioner found that as
of 30 August 1995, the plaintiff was no longer disabled as a result
of her compensable injury. Id.
The deputy commissioner awarded
the plaintiff all medical expenses she incurred as a result of her
compensable injury, but denied any medical expenses for treatment
of fibromyalgia. Id.
The plaintiff filed notice of appeal and, five months later,
filed a "motion for independent psychiatric and fibromyalgia
specialist examinations." Id.
at 300-01, 528 S.E.2d at 62. The
defendants objected but the Commission did not respond to the
objection, and the Commission allowed the plaintiff sixty days to
obtain psychiatric and rheumatology expert opinions. Id.
528 S.E.2d at 62-63. The Commission allowed the plaintiff an
additional extension of time and the plaintiff then submitted a
psychiatric report by Dr. Margaret Dorfman (Dr. Dorfman). Id.
301, 528 S.E.2d at 63. The plaintiff also asked the Commission to
allow her to see Dr. Alan Spanos (Dr. Spanos), who was a general
practitioner with experience in diagnosing and treating
fibromyalgia, instead of seeing a rheumatologist. Id.
defendants again objected, but the Commission allowed the plaintiff
to see Dr. Spanos and submit his report to the Commission, without
addressing the defendants' objection. Id.
at 301-02, 528 S.E.2d at
The Commission relied upon Dr. Dorfman's report to find that
the plaintiff's "psychiatric problems, panic attacks and depression
. . . were caused or significantly aggravated by her injury byaccident[.]" Id.
at 302, 528 S.E.2d at 63. The Commission relied
upon Dr. Spanos' report to find that the plaintiff's "fibromyalgia,
related pain syndromes and her musculoskeletal and neuropathic
disfunctions . . . were caused or significantly aggravated by her
injury by accident[.]" Id.
On appeal, our Court reversed the Commission's opinion and
award, recognizing that "[t]he evidence offered by Drs. Spanos and
Dorfman was completely different from any other evidence admitted
up to then." Id.
at 304, 528 S.E.2d at 64-65. We also recognized
that the defendants had filed five separate objections to the
independent medical examinations, a request to depose the new
physicians, and six requests for an independent medical examination
by a physician of the defendants' choosing, and that the Commission
did not respond to any of the objections or requests. Id.
03, 528 S.E.2d at 63-64. Our Court held as follows:
We agree with [the] defendants that the
Commission manifestly abused its discretion by
allowing significant new evidence to be
admitted but denying [the] defendants the
opportunity to depose or cross-examine the
physicians, or requiring [the] plaintiff to be
examined by experts chosen by [the]
defendants. Therefore, we hold that where the
Commission allows a party to introduce new
evidence which becomes the basis for its
opinion and award, it must allow the other
party the opportunity to rebut or discredit
at 304, 528 S.E.2d at 64-65.
In the present case, unlike in Allen
, Defendants had the
opportunity to, and did, cross-examine Dr. Currin during his
deposition. Defendants also argue they were not allowed to re-depose their expert witnesses and were not allowed to present new
briefs or arguments. However, Defendants never requested the
opportunity to re-depose their witnesses. Rather, in their letter
objecting to the Commission's decision to allow Plaintiff to depose
Dr. Currin, Defendants stated:
It would be prejudicial to [D]efendants, and
contrary to basic procedure, for [P]laintiff
to now be allowed to call her expert witnesses
after [D]efendants have called theirs. The
only remedy would be to allow [D]efendants to
re-call Dr. Paschal and Mr. Moore again after
[P]laintiff's experts testify, and tax the
costs of those depositions to [P]laintiff.
Also, the Commission did not rule that Defendants could not present
additional argument. The Commission only stated, in its order
reopening the case, that "[n]o further oral arguments or briefs
will be required." For the reasons stated above, we overrule these
assignments of error.
 Defendants argue the Commission erred by relying upon the
testimony of Dr. Currin. Specifically, Defendants argue that Dr.
Currin's testimony was not sufficiently reliable under the standard
set forth in State v. Goode
, 341 N.C. 513, 461 S.E.2d 631 (1995),
and reiterated in Howerton v. Arai Helmet, Ltd.
, 358 N.C. 440, 597
S.E.2d 674 (2004). Defendants argue that Dr. Currin's opinion that
Plaintiff's accident at work probably aggravated her lymphedema was
not based upon a reliable theory because Dr. Currin did not cite
any established medical techniques or review any studies
establishing that a single incident can aggravate pre-existing
lymphedema. Defendants also argue that Dr. Currin's testimony waslegally insufficient to prove causation because his opinion was
based solely on the notion of post hoc ergo propter hoc
It appears that our courts have not decided whether the
standard for admissibility of expert testimony set forth in Goode
applies in workers' compensation cases. However, even
, without deciding, that the Goode
standard applies, Dr. Currin's testimony was sufficiently reliable.
, our Supreme Court reiterated the three-part test
evaluating the admissibility of expert testimony which had been
stated in Goode
: "(1) Is the expert's proffered method of proof
sufficiently reliable as an area for expert testimony? . . . (2) Is
the witness testifying at trial qualified as an expert in that area
of testimony? . . . (3) Is the expert's testimony relevant?"
, 358 N.C. at 458, 597 S.E.2d at 686 (citing Goode
N.C. at 527-29, 461 S.E.2d at 639-41).
When determining the reliability of expert testimony, the
trial court should first "look to precedent for guidance in
determining whether the theoretical or technical methodology
underlying an expert's opinion is reliable." Id.
at 459, 597
S.E.2d at 687. However, where the trial court is without
precedential guidance, the trial court should focus on the
following nonexclusive factors of reliability: "'the expert's use
of established techniques, the expert's professional background in
the field, the use of visual aids before the jury . . ., and
independent research conducted by the expert.'" Id.
at 460, 597
S.E.2d at 687 (quoting State v. Pennington
, 327 N.C. 89, 98, 393S.E.2d 847, 852-53 (1990)). Our Supreme Court emphasized that
"reliability is thus a preliminary, foundational inquiry into the
basic methodological adequacy of an area of expert testimony. This
assessment does not, however, go so far as to require the expert's
testimony to be proven conclusively reliable or indisputably valid
before it can be admitted into evidence." Id.
Supreme Court held: "[O]nce the trial court makes a preliminary
determination that the scientific or technical area underlying a
qualified expert's opinion is sufficiently reliable (and, of
course, relevant), any lingering questions or controversy
concerning the quality of the expert's conclusions go to the weight
of the testimony rather than its admissibility." Id.
at 461, 597
S.E.2d at 688.
Dr. Currin testified that he was a board certified family
practitioner who practiced at Laurinburg Family Practice from 1980
until his retirement on 6 July 2004. Over the course of his
twenty-five year career, Dr. Currin treated about one hundred
patients with lymphedema. However, because Dr. Currin saw his
patients multiple times during his twenty-five year career, he may
have seen those one hundred patients with lymphedema "a thousand
times." Because of Dr. Currin's experience in treating lymphedema,
we hold that Dr. Currin's expert opinion testimony was sufficiently
reliable. As in Howerton
, "any lingering questions or controversy
concerning the quality of the expert's conclusions go to the weight
of the testimony rather than its admissibility." Howerton
N.C. at 461, 597 S.E.2d at 688.  Defendants also argue that Dr. Currin's testimony was
legally insufficient because it was based solely upon the notion of
post hoc ergo propter hoc
. A claimant in a workers' compensation
case bears the burden of proving, by a preponderance of the
evidence, a causal relationship between the injury and the
claimant's employment. Adams v. Metals USA
, 168 N.C. App. 469,
475, 608 S.E.2d 357, 361, aff'd per curiam
, 360 N.C. 54, 619 S.E.2d
495 (2005). "[W]here 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). "The quantum and quality of the evidence
required to establish prima facie
the causal relationship will of
course vary with the complexity of the injury itself." Id.
"'[C]ould' or 'might' expert testimony [is] insufficient to support
a causal connection when there is additional evidence or testimony
showing the expert's opinion to be a guess or mere speculation."
Young v. Hickory Bus. Furn.
, 353 N.C. 227, 233, 538 S.E.2d 912, 916
(2000). Moreover, "if an expert's opinion as to causation is
wholly premised on the notion of post hoc ergo propter hoc
it, therefore because of it), then the expert has not provided
competent record evidence of causation." Singletary v. N.C.
, 174 N.C. App. 147, 154, 619 S.E.2d 888, 893 (2005)
, 353 N.C. at 232-33, 538 S.E.2d at 916).
In the present case, Dr. Currin repeatedly testified to amedical certainty that Plaintiff's accident at work probably
aggravated her pre-existing lymphedema. Therefore, despite
Defendants' urging, we are not faced with a situation where Dr.
Currin only presented "could" or "might" testimony. Furthermore,
Dr. Currin's opinion testimony was not based solely on the notion
of post hoc ergo propter hoc
. Dr. Currin also testified that
Plaintiff's description of the accident was consistent with a
trauma of the type that would be associated with the development of
lymphedema in someone with Plaintiff's medical history.
, our Supreme Court held that the evidence on
causation in that case, which was solely based upon the notion of
post hoc ergo propter hoc
, was insufficient to support the
Commission's findings of fact that the plaintiff's fibromyalgia was
caused by an accident at work. Id.
at 233, 538 S.E.2d at 917.
However, in Young
, the plaintiff's expert on causation testified
that "fibromyalgia [is] an illness or condition of unknown
at 231, 538 S.E.2d at 915, and the Court pointed
out that fibromyalgia is a controversial medical condition. Id.
232-33, 538 S.E.2d at 916. Moreover, the plaintiff's expert on
causation acknowledged that he knew of several other potential
causes of the plaintiff's fibromyalgia, but did not pursue any
testing to determine whether they were the causes of the
plaintiff's fibromyalgia. Id.
at 231-32, 538 S.E.2d at 915-16.
Unlike fibromyalgia, which was at issue in Young
, lymphedema does
not appear to be a controversial medical condition. Defendants'
expert, Dr. Paschal, testified that Plaintiff likely suffers fromlymphedema. Dr. Paschal simply testified that Plaintiff's accident
at work did not aggravate her lymphedema. Also, unlike Young
other potential causes for the aggravation of Plaintiff's
preexisting, but unsymptomatic lymphedema were identified in the
present case. For the reasons stated above, we affirm the
Commission on this issue and overrule the assignments of error
grouped under this argument.
Defendants have failed to set forth argument pertaining to
their remaining assignments of error, and we therefore deem them
N.C.R. App. P. 28(b)(6).
Judges WYNN and McCULLOUGH concur.
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