I.C. No. 221045
QUALITY BLINDS AND AWNING,
EMPLOYERS MUTUAL CASUALTY
Oxner Thomas & Permar, PLLC, by Todd P. Oxner, for plaintiff-
Nexsen Pruet Adams Kleemeier, PLLC, by Sean M. Phelan, for defendants-appellees.
Plaintiff Greg Lundy appeals from an opinion and award of the North Carolina Industrial Commission denying plaintiff's claims for workers' compensation benefits because, according to the Commission, plaintiff failed to present medical evidence causally relating his back pain to lifting rolls of carpet for his employer, defendant Quality Blinds and Awning. On appeal, plaintiff argues that the Commission erred by finding no evidence of causation. Under N.C.R. App. P. 10(a), the appellate court's review is limited to those findings of fact and conclusions of law properly assigned as error. When a finding of fact is not assigned as error, the finding is presumed to be supported by competent evidence and is binding on appeal. Dreyer v. Smith, 163 N.C. App. 155, 156-57, 592 S.E.2d 594, 595 (2004). In this appeal, plaintiff has properly assigned error only to the Commission's finding of fact relating to whether there was competent medical evidence establishing causation. Based upon our review of the record, we hold that this finding is supported by the record. Because this finding together with the remaining findings not assigned as error provide ample support for the Commission's order, we affirm.
In his appellate brief, plaintiff argues that the Commission
erred in making various findings of fact. With a single exception,
however, plaintiff neglected to specify any of those findings of
fact in his assignments of error. Our review is limited to those
findings of fact assigned as error. N.C.R. App. P. 10(a); Dreyer,
163 N.C. App. at 156-57, 592 S.E.2d at 595. While plaintiff did
assign error to the "Commission's Order in its entirety, on the
grounds it . . . is contrary to the competent evidence of Record,"
this assignment of error is broadside and, therefore, ineffective
to preserve any appellate challenge to the Commission's findings of
fact. See, e.g., Haley v. ABB, Inc., 174 N.C. App. 469, 474, 621
S.E.2d 180, 184 (2005); Wetchin v. Ocean Side Corp., 167 N.C. App.
756, 759, 606 S.E.2d 407, 409 (2005).
We, therefore, restrict our review to plaintiff's challenge of the Commission's finding of fact that "the record contains no medical evidence causally relating plaintiff's back pain to the incident lifting carpet on October 16, 2002" and to his contentionthat the findings of fact do not support the Commission's conclusion that he is not entitled to compensation. On review of a decision of the Industrial Commission, we "determin[e] whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law." Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). "The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). This Court reviews the Commission's conclusions of law de novo. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).
In order for a workers' compensation claim to be compensable, there must be proof of a causal relationship between the injury and the employment. Davis v. Columbus County Schs., 175 N.C. App. 95, 101, 622 S.E.2d 671, 676 (2005). See also N.C. Gen. Stat. § 97-2(6) (2005) ("With respect to back injuries, . . . 'injury by accident' shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident." (emphasis added)). Our Supreme Court has held that evidence from an expert witness regarding the causation of an injury is required "where 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 .. . ." Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). The Court acknowledged that cases could arise when "the facts are so simple, uncontradictory, and obvious as to permit a finding of a causal relationship between an accident and the injury absent expert opinion evidence." Id. at 168, 265 S.E.2d at 391-92. See also Tickle v. Standard Insulating Co., 8 N.C. App. 5, 8, 173 S.E.2d 491, 494 ("'There are many instances in which the facts in evidence are such that any layman of average intelligence and experience would know what caused the injuries complained of.'" (quoting Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965))), cert. denied, 276 N.C. 728 (1970).
Since Click is materially indistinguishable from this case, plaintiff was required to present evidence from an expert _ either oral or documentary _ in order to prove causation. In Click, the plaintiff, who suffered from a herniated disc in his back, had presented "conflicting stories about the cause of his injury." 300 N.C. at 165, 265 S.E.2d at 390. Although the plaintiff originally explained that he felt back pain while pulling carts off a conveyor line at work, he later told a doctor that he had hurt his back while "bending to pick up something from the floor at his home" and then, at a hearing before the Industrial Commission, testified that his back pain began when he was "struck in the back by a cart while he worked on the conveyor line." Id. at 166, 265 S.E.2d at 390. Our Supreme Court concluded that, in light of the varying potential causes of his pain, plaintiff could not recover in the absence ofexpert testimony tending to establish a causal relationship between a work-related accident and the herniated disc. Id. at 167, 265 S.E.2d at 391.
In the present case, plaintiff's current back pain could have arisen from at least five different sources: his original injury in 1998 (which resulted in ongoing back pain), his back strain in the spring of 2002, his car trip to Florida, the unloading of the carpet rolls, or the drives to and from Georgia shortly after the lifting of the carpet. As in Click, the record contains differing explanations for the genesis of the pain, including one medical note stating that plaintiff had reported "that he began having low back pain after his fall four years ago, but he did not report this to anybody at the time. According to office notes, he was improving until he went to Georgia and helped his daughter move." It was, therefore, necessary for an expert witness to provide evidence that the back pain was causally related to the carpet unloading rather than the result of prior incidents as exacerbated by the trip to Georgia.
In arguing that no expert evidence was necessary, plaintiff asserts that "[w]hile he had had treatment for his back in the past, the objective tests indicated that he had a new, worse, problem in the back than previously." Even if that is the case, the question still remains whether that allegedly "new, worse" problem was caused by the carpet incident. That issue required evidence from an expert witness. Contrary to plaintiff'scontention, the absence of any evidence from defendants is immaterial since plaintiff bore the burden of proving causation.
In an alternative argument, plaintiff contends that two pieces of evidence provide expert opinion evidence indicating that his back pain was caused by his lifting rolls of carpet for defendant. First, he relies upon the records of Dr. Applegate's physician's assistant, Mark Payne, which state that plaintiff informed Mr. Payne that his back pain began when "he was lifting rolls of carpet." This statement, however, is merely a recitation of what Mr. Payne was told by plaintiff and does not express any opinion regarding the cause of plaintiff's current back pain.
Second, plaintiff points to Dr. Applegate's opinion on 19 November 2002 that the CT myelogram _ performed after both plaintiff's October carpet-lifting incident and drive to Georgia _ showed certain disc bulges, nerve impingements, facet and central disc spurring, extruded fragments, and a nerve root "not well filled with contrast." This opinion identifies the conditions that Dr. Applegate believed were leading to plaintiff's pain, but expresses no view on what had caused those conditions. Further, although a previous MRI showed that plaintiff also had bulging discs following his back strain in spring 2002, nothing in Dr. Applegate's notes distinguishes the current conditions from the conditions identified earlier in 2002. To rule in plaintiff's favor would have required the Commission to make various assumptions not specifically supported by the evidence submitted to the Commission. In short, given the numerous potential sources presented in the record for plaintiff's back pain and the absence of medical evidence causally relating that pain to the work-place incident unloading carpet in October 2002, plaintiff has failed to present sufficient evidence of causation. See id. at 167, 265 S.E.2d at 391 ("[O]ne of the most difficult problems in legal medicine is the determination of the causal relationship between a specific trauma and the rupture of an intervertebral disc."). (See footnote 1) The Commission's finding to this effect is fully supported by the record, and the Commission's findings support its conclusions of law denying plaintiff compensation. We, therefore, affirm.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).
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