WANDIRA MARTIN,
Employee,
Plaintiff-Appellant,
v. N.C. Industrial Commission
I.C. No. 181508
ADECCO FRANCHISEE,
Employer,
and
CONSTITUTION STATE
SERVICE COMPANY,
Carrier,
Defendant-Appellees,
Douglas S. Harris, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by James B. Black, IV, for
defendant-appellees.
JACKSON, Judge.
Wandira Martin (“plaintiff”) was injured on 21 September 2001,
when a wagon which was being pulled by a forklift struck her in her
right foot, causing her to fall onto a cement floor, and then ran
over her right leg. At the time, plaintiff was employed by Adecco
Franchisee (“defendant”), and was performing heavy labor, includingthe loading and unloading of trucks at a K-Mart Distribution
Center.
A Form 18 Notice of Accident to Employer was filed 17 December
2001. Plaintiff was granted temporary total disability as a result
of the compensable injury to her right leg and ankle which arose
out of and in the course of her employment with defendant. She
received benefits from 21 September 2001 through 26 December 2001,
and again from 2 January 2002 through the date of her hearing
before the Full Commission on 16 August 2005.
Following the accident, plaintiff sought treatment for an
injury to her right leg and ankle from Dr. James Aplington
(“Aplington”), a board certified orthopedist. Aplington diagnosed
plaintiff with a contusion to her right leg and excused plaintiff
from working. He also recommended that plaintiff participate in
physical therapy, which she did for approximately two weeks.
During his treatment of plaintiff, Aplington noted that she was
expressing an over-dramatization of her symptoms. He testified
that she continually held her right ankle in an abnormal position,
and complained that she was unable to move it; however, when she
was distracted, her ankle would assume a normal position.
Aplington performed tests to determine if plaintiff was suffering
from any back problems, the results of which were negative.
Aplington referred plaintiff for a Functional Capacity Evaluation
(“FCE”) so that they would be able to determine exactly what type
of activities plaintiff was capable of participating in. Plaintiff's FCE was performed on 30 January 2002. Dr. William
T. Griffin (“Griffin”), who performed the FCE, testified that
plaintiff declined to perform some of the testing procedures, and
that based upon her declining to participate, the fact that her
heart rate changed very little during the tests, and her lack of
effort, it was impossible for him to make any recommendations about
her ability to return to work at that time. In fact, plaintiff
declined to perform specific lifting exercises and tasks which
should have had no effect on her physical complaints. The various
physical-effort tests revealed that plaintiff put forth a less than
maximal effort, and therefore the evaluation and test results were
invalid. Aplington concluded his treatment of plaintiff in
February 2002, at which time he felt as though plaintiff had no
permanent impairment. He believed that plaintiff was capable of
returning to work, however she should not return to her former
employment involving heavy lifting. He also stated that
plaintiff's complaints were not consistent with her testing results
or his observations of her.
On 8 May 2003, plaintiff was examined by Dr. J. Craig Derian
(“Derian”), a board certified orthopedic surgeon, based upon
complaints of problems with her back. Derian was of the opinion
that plaintiff suffered from a possible L5-S1 lumbar disc
herniation with right L5 radiculopathy. He believed that her
current back problems were manifested by her leg problems, but were
likely caused by a ruptured disc. Derian testified that
plaintiff's complaints were consistent with her symptoms and thatin his opinion, she did not demonstrate any indication of symptom
magnification. He testified that her current back condition was
directly related to her compensable injury on 21 September 2001.
Derian's deposition testimony, and his initial diagnosis, were done
prior to his observation of an MRI that was later done on
plaintiff's back. Following a review of the MRI of plaintiff's
back, Derian diagnosed plaintiff with symptomatic lumbar
degenerative disc disease.
Plaintiff subsequently was examined on 14 October 2003 by Dr.
Robert Elkins (“Elkins”), a board certified orthopedic surgeon and
independent medical evaluator. Elkins found plaintiff's walking
and physical condition to be consistent with a person who has ankle
problems, however he stated that plaintiff exhibited symptom
magnification and seemed to be motivated by secondary gain issues.
He testified that during one test in which he very lightly touched
plaintiff's back, she expressed back tenderness and pain which was
out of proportion for the light amount of pressure he had applied.
Elkins found plaintiff's range of motion in her ankle and leg to be
within normal ranges. He stated that plaintiff did not show any
signs of having a pinched nerve in her back, or a ruptured disc or
radiculopathy. After reviewing an MRI of plaintiff's right ankle,
Elkins stated that as of 25 November 2003, plaintiff had reached
maximum medical improvement for her injury to her right ankle, and
she was therefore capable of returning to full duty work, without
restrictions. On 17 June 2003, defendant filed a Form 33 Request that a
Claim Be Assigned for Hearing, based upon plaintiff's complaint
that she was now suffering serious back problems for which
defendant would not authorize treatment. The matter came before
Deputy Commissioner Nancy W. Gregory on 23 March 2004, and in an
Opinion and Award by Deputy Commissioner Bradley W. Houser, filed
10 February 2005, plaintiff's claim for additional workers'
compensation benefits related to her back condition was denied.
Plaintiff appealed to the Full Commission.
In an Opinion and Award of the Full Commission, filed 2 March
2006, plaintiff's claim for additional benefits related to her back
condition was again denied. The Commission held that plaintiff's
back condition was not causally related to her 21 September 2001
injury by accident. Plaintiff appeals from the denial of her claim
for additional workers' compensation benefits for her current back
condition.
“The [F]ull Commission, upon reviewing an award by the hearing
commissioner, is not bound by findings of fact supported by the
evidence, but may reconsider evidence and adopt or reject findings
and conclusions of the hearing commissioner.” Robinson v. J. P.
Stevens, 57 N.C. App. 619, 627, 292 S.E.2d 144, 149 (1982) (citing
Watkins v. City of Wilmington, 290 N.C. 276, 280, 225 S.E.2d 577,
580 (1976)). On appeal, the review of a decision of the Full
Commission is limited to a consideration of whether there is any
competent evidence to support the Commission's findings of fact and
whether the findings of fact support the Commission's conclusionsof law. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000). The Commission's findings of fact are
deemed conclusive on appeal when they are supported by competent
evidence, even when there is evidence which would support contrary
findings. Pittman v. International Paper Co., 132 N.C. App. 151,
156, 510 S.E.2d 705, 709, aff'd, 351 N.C. 42, 519 S.E.2d 524
(1999). “[T]he [F]ull Commission is the sole judge of the weight
and credibility of the evidence.” Deese, 352 N.C. at 116, 530
S.E.2d at 553 (citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d
411 (1998)). This Court “does not have the right to weigh the
evidence and decide the issue on the basis of its weight.”
Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272,
274 (1965). Our review “goes no further than to determine whether
the record contains any evidence tending to support the finding.”
Id.
Plaintiff first contends the Commission erred in stating, in
finding of fact number eleven, that “Dr. Aplington opined that
plaintiff's complaints of pain in her back were not related to her
injury by accident on 21 September 2001.” Plaintiff argues that
this finding contradicts Aplington's deposition testimony, and as
such, the Commission attributes an opinion to Aplington that does
not appear in the record.
In addition to the sentence referenced above, finding of fact
number eleven states that Aplington noted that he did not believe
plaintiff should return to the heavy work which she previously
performed, regardless of the outcome of the functional capacityevaluation. The finding continues, stating that Aplington did not
believe plaintiff had any permanent impairment.
During his deposition, Aplington testified that at the time he
treated plaintiff in November 2001, he noted that while her
condition had improved significantly, he did not believe she needed
to return to work doing the heavy lifting type of work that she
previously had done. This opinion was based upon not only
plaintiff's initial injury to her right ankle and leg, but also her
age and physical condition. When Aplington treated plaintiff in
early 2002, he noted that she continued to have pain and swelling
in her ankle and leg. He testified that four to six weeks usually
was long enough for someone to recover from the type of injury
plaintiff suffered, and that her course of treatment was unusually
long for the injuries she had sustained. Aplington did state that
he can not say for sure that her current back problems are related
to her original compensable injury. He stated that when she was
treated by Derian, she presented with different symptoms and Derian
had different findings for tests which Aplington also had
performed. In addition, Aplington did not know what had happened
to plaintiff over the course of the one and a half years since he
treated her last. Aplington testified that it was possible that
plaintiff had an evolving disc problem when he initially saw her.
However based upon his observation and treatment of plaintiff in
2001 and 2002 following her initial injury, he felt as though her
injury was one from which she should have recovered, and that hercomplaints and continued unusual presentations were something that
may have been manufactured by her.
Although Aplington's testimony may not have risen to the level
of definitively stating that plaintiff's back problems were not
directly related to her compensable injury, his deposition
testimony and his treatment records demonstrate that he did not
believe there to be a causal connection between her initial injury
and her current back problems. This finding of fact does not
wholly disregard Aplington's deposition testimony, as plaintiff
contends. Therefore, we hold there was sufficient evidence before
the Commission to support this finding of fact, and plaintiff's
assignment of error is overruled.
Plaintiff next argues the Commission erred in stating, in
finding of fact twelve, “Therefore, some of [Dr. Derian's]
testimony concerning what his physical examination indicated was
speculative, unless corroborated by MRI or other diagnostic
testing.” Plaintiff contends that in making this finding, the
Commission held Derian to a different medical standard from that to
which Doctors Aplington and Elkins were held. Plaintiff argues
that neither Aplington nor Elkins had the benefit of reviewing
plaintiff's lumbar spine MRI at the time of their deposition
testimony, and as such, to state that Derian's testimony alone, and
not that of Aplington or Elkins, was speculative until corroborated
by the MRI was in violation of our state constitution's equal
protection clause. Plaintiff's argument is without merit. Derian was the only
doctor to testify concerning plaintiff's back problems for which
she sought treatment for one and a half years after her compensable
injury. Doctors Aplington and Elkins' testimony centered around
their treatment of plaintiff's injury to her right leg and ankle,
her ability or lack there of to return to work, and her possible
symptom magnification and refusal to participate fully in their
evaluations of her. In fact, Derian himself testified that based
upon the way plaintiff presented to him, he felt as though she did
suffer from back problems, including some nerve damage; however, he
qualified his opinion by stating that depending upon what the MRI
showed, plaintiff may or may not have a problem for which he would
be able to provide medical treatment.
Based upon the testimony of the three doctors, and Derian's
specific testimony regarding plaintiff's recent complaints and
symptoms, we hold the Commission did not hold the doctors to
different medical standards. Plaintiff's assignment of error is
overruled.
Plaintiff next contends the Commission erred in finding that
“the Full Commission gives greater weight to the opinions of Dr.
Aplington and Dr. Elkins over those of Dr. Derian.” Plaintiff
argues that in giving greater weight to the opinions of Aplington
and Elkins, the Commission disregarded their prior opinion that
plaintiff not was capable of returning to a job requiring heavy
work. As stated previously, the Full Commission is the sole judge of
the weight which is to be given to the testimony and evidence
before it, and this Court may not re-weigh the evidence. Deese,
352 N.C. at 115, 530 S.E.2d at 552. Again, we find plaintiff's
argument to be misplaced. The Commission was fully within its
right to give greater weight to the testimony of Aplington and
Elkins, and on appeal, plaintiff has presented no argument that
Aplington and Elkins' opinions were not competent or should
otherwise be discounted.
In finding of fact eight, not assigned as error by plaintiff,
the Commission specifically stated that “On 23 November 2001, Dr.
Aplington indicated that plaintiff could return to work on 26
November 2001, but he did not believe she should return to her
previous heavy-duty position with defendant-employer due to her age
and the 'deconditioned' state of her body.” Thus, the Commission
had the authority to consider the opinions of Aplington and Elkins
over that of Derian, and there is no indication that the Commission
ignored any portions of Aplington's or Elkins' testimony in making
its findings. Plaintiff's assignment of error is overruled.
Plaintiff next contends the Commission erred in making finding
of fact nineteen. Plaintiff argues that the finding wholly
disregards the opinion of Aplington and favors the opinion of
Elkins, which contradicts finding eighteen in which the Commission
purportedly gave Aplington's opinion as much or greater weight than
that of Elkins. Finding of fact nineteen provides that “Plaintiff reached
maximum medical improvement from her compensable right lower
extremity injury by 25 November 2003 and was capable at that time
of returning to full duty work, without restrictions.” The
Commission based this finding directly upon Elkins' deposition
testimony and his treatment records for plaintiff. Elkins'
statements were based upon his thorough evaluation of plaintiff,
along with his review of an MRI done on plaintiff's right ankle
which showed no problems other than fluid in the joint of her
ankle. Elkins treated plaintiff in October 2003, more than a year
and a half after Aplington last saw plaintiff. His opinion
regarding plaintiff's ability to return to work related solely to
her initial compensable injury. His examination and report show no
indication that plaintiff complained of problems with her back, or
that he observed any abnormalities or problems with plaintiff's
back.
We hold the Commission did not err in basing this finding upon
Elkins' testimony and evidence, as he observed plaintiff after
Derian initially examined plaintiff in May of 2003 and after
Aplington ceased treatment of plaintiff in February of 2002. We
hold the Commission's finding is supported by competent evidence,
and as such plaintiff's assignment of error is overruled.
Finally, plaintiff argues the Commission erred in making
finding of fact twenty and conclusion of law two, in that they each
wholly disregard the opinions of Derian and Aplington. Finding of
fact twenty provides, “Plaintiff's current back condition asdiagnosed by Dr. Derian is not causally related to her 21 September
2001 injury by accident.” Conclusion of law number two provides
“Because plaintiff's current back condition as diagnosed by Dr.
Derian is not causally related to her 21 September 2001 injury by
accident, she is not entitled to indemnity or medical compensation
for her back.” Plaintiff contends these statements ignore not only
Aplington's prior opinion that plaintiff could not return to heavy
duty work, but also the statements by Aplington, Elkins, and Derian
in which they each said that an accident such as plaintiff's could
cause a back injury. We disagree.
Our courts long have held that the employee bears the burden
of establishing the compensability of a workers' compensation
claim. Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750,
752 (2003); Henry v. Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760,
761 (1950); Cooper v. Cooper Enters., Inc., 168 N.C. App. 562, 564,
608 S.E.2d 104, 105 (2005). “'A subsequent injury to an employee,
whether an aggravation of the original injury or a new and distinct
injury, is compensable only if it is the direct and natural result
of a prior compensable injury.'” Cooper, 168 N.C. App. at 564, 608
S.E.2d at 106 (quoting Vandiford v. Equipment Co., 98 N.C. App.
458, 461, 391 S.E.2d 193, 195 (1990)). To establish that a
separate and distinct injury is compensable, the “'evidence must be
such as to take the case out of the realm of conjecture and remote
possibility, that is, there must be sufficient competent evidence
tending to show a proximate causal relation.'” Holley, 357 N.C. at
232, 581 S.E.2d at 753 (quoting Gilmore v. Hoke Board of Education,222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). “Although expert
testimony as to the possible cause of a medical condition is
admissible . . ., it is insufficient to prove causation,
particularly 'when there is additional evidence or testimony
showing the expert's opinion to be a guess or mere speculation.'”
Id. at 233, 581 S.E.2d at 753 (citations omitted).
Here, the record indicates that Aplington and Elkins both felt
as though plaintiff was continually magnifying her symptoms.
Neither Aplington nor Elkins, along with Griffin who performed
plaintiff's FCE, found anything to indicate that plaintiff suffered
from any type of injury to her back as a result of her workplace
accident. Plaintiff did not complain of or seek treatment for her
alleged back problems until a year and a half after her accident.
Derian, who was the only physician to testify that plaintiff's back
condition was remotely related to her workplace injury, testified
that based upon plaintiff's report that she had not worked or done
anything strenuous since her accident, and “if the MRI scan
confirms actual structural abnormality,” then he “think[s] that the
patient's findings [are] directly related to her injury” on 21
September 2001. Because there was no MRI scan done, at this stage,
Derian's testimony constituted speculation that plaintiff's back
condition was related to her compensable injury, and as such, this
opinion is not competent evidence.
Aplington and Elkins testified that plaintiff's current back
problems may be related to her workplace accident, however they had
nothing concrete to connect the two. At the time they treated andobserved plaintiff, she did not complain of pain and problems in
her back, and she presented herself in such a way that her
physicians and others observing her believed that she was
magnifying her symptoms, purposefully holding her foot in an
abnormal way, and not participating in testing to her maximum
ability. Based upon the record before us, we hold the Commission
properly determined that plaintiff failed to establish that her
current back condition was a direct and natural result of her
compensable injury, and as such, did not err in finding and
concluding that her back condition was not causally related to her
compensable injury by accident. Plaintiff's assignment of error is
overruled.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***