Workers' Compensation--causation--fibromyalgia--doctor's opinion testimony
The Court of Appeals erred in concluding that competent evidence was presented to
support the Industrial Commission's findings of fact with regard to the cause of plaintiff-
employee's fibromyalgia based solely on the opinion testimony of one doctor, because: (1) the
doctor's testimony consists of comments and responses demonstrating his inability to express an
opinion to any degree of medical certainty as to the cause of plaintiff's illness; and (2) the
doctor's testimony demonstrated an opinion based solely on supposition and conjecture.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of
a divided panel of the Court of Appeals, 137 N.C. App. 51, 527
S.E.2d 344 (2000), affirming an opinion and award entered
28 January 1999, by the North Carolina Industrial Commission.
Heard in the Supreme Court on 13 September 2000.
Randy D. Duncan for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by J.A.
Gardner, III, and Melissa L. McDonald, for defendant-
appellant.
LAKE, Justice.
This case arises from proceedings before the North Carolina
Industrial Commission (the Commission) and raises the issue of
whether the Commission's findings of fact were supported by
competent evidence establishing causation between an employment-
related injury and the development of fibromyalgia.
On 3 March 1992, while working for employer-defendant
(Hickory Business Furniture), employee-plaintiff (Young) reached
across some chairs to lift another chair and felt a pop in her
back and the onset of pain. The accident resulted in plaintiff's
suffering a lumbo-sacral strain. Prior to this occurrence,plaintiff had experienced no significant problems with her back.
Following the injury, plaintiff was treated by Dr. Robert
Hart, a family practitioner who served as defendant's physician.
Dr. Hart recommended therapy for plaintiff's complaints of mid-
back pain. Plaintiff's symptoms persisted, and on 31 March 1992,
Dr. Hart referred plaintiff to Dr. H. Grey Winfield, an
orthopedist. After examination, Dr. Winfield found plaintiff to
have full range of motion in the lower extremities, with some
evidence of “symptom magnification.” Dr. Winfield continued to
treat plaintiff through 21 May 1992, after which plaintiff did
not return for a follow-up assessment. On 1 April 1992, the
parties entered into a Form 21 agreement, compensating plaintiff
at a rate of $226.14 per week for “necessary weeks.”
On her own initiative, plaintiff sought treatment from Dr.
Bruce Hilton, a chiropractor, on 9 November 1992, and on 20 July
1993, he rated her as retaining a five percent permanent partial
impairment to her back. At the time of the rating, plaintiff
continued to experience pain in her back and right hip and
tingling in her right leg. On 19 August 1993, the parties signed
a Form 26, “Supplemental Memorandum of Agreement as to Payment of
Compensation,” stipulating to a five percent permanent partial
disability and agreeing to compensation of $226.14 for fifteen
weeks, beginning 13 July 1993. Plaintiff continued to work until
October 1994, when she was discharged by defendant on the basis
that she was not physically able to perform her job.
In 1995, plaintiff saw a rheumatologist, Dr. Dennis Payne,
for her back problems, whereupon she was diagnosed withfibromyalgia. Dr. Payne's opinion at that time was that
plaintiff's condition was likely related to her 1992 work-related
injury. On 10 January 1995, plaintiff filed a Form 33,
requesting that the claim be assigned for hearing, on which she
stated that her condition had substantially worsened and that she
had been unable to work from 29 August 1994 to the date of the
filing. Defendant filed a response on 29 July 1995, stating that
there was no medical evidence to support plaintiff's claim.
The matter was heard by Deputy Commissioner Lorrie L. Dollar
on 15 August 1995. On 18 October 1996, she entered an opinion
and award concluding that plaintiff had sustained a substantial
change in condition and awarding plaintiff temporary total
disability compensation from 20 October 1994 and continuing until
further order of the Commission. Defendant filed a formal
“Application for Review” by the full Commission on 24 January
1997. The matter was reviewed by the full Commission on 7 April
1997. On 2 June 1997, the Commission, with one commissioner
dissenting, entered its opinion and award, essentially affirming
the deputy commissioner's opinion and award. Defendant gave
notice of appeal to the Court of Appeals.
In a unanimous, unpublished decision filed 21 April 1998,
the Court of Appeals held that the Commission failed to make
sufficient findings of fact to support its order, vacated the
Commission's opinion and award, and remanded the matter to the
Commission “for definitive findings and proper conclusions
therefrom, and entry of the appropriate order.”
On 28 January 1999, the full Commission, with onecommissioner dissenting, entered a new opinion and award, settingout additional findings of fact and conclusions of law and again
awarding plaintiff temporary total disability compensation from
20 October 1994 and continuing until further order of the
Commission. Once again, defendant gave notice of appeal to the
Court of Appeals. In a published, split decision, the Court of Appeals
affirmed the Commission's opinion and award. Defendant appeals
to this Court from the decision of the Court of Appeals on the
basis of the dissent.
The issue before this Court is whether there was competent
evidence presented to establish a causal connection between the
original injury by accident to plaintiff's back on 3 March 1992
and her later diagnosis of fibromyalgia. The Court of Appeals'
majority determined that competent evidence was presented which
was sufficient to support the Commission's findings of fact. We
disagree.
Although it is well established that “'[t]he [Industrial]
Commission is the sole judge of the credibility of the witnesses
and the [evidentiary] weight to be given their testimony,'” Adams
v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998)
(quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34,
144 S.E.2d 272, 274 (1965)), findings of fact by the Commission
may be set aside on appeal when there is a complete lack of
competent evidence to support them, Saunders v. Edenton OB/GYN
Ctr., 352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000). In the
instant case, the Industrial Commission's findings of fact with
regard to the cause of Ms. Young's fibromyalgia were based
entirely upon the weight of Dr. Payne's opinion testimony as an
expert in the fields of internal medicine and rheumatology.
Therefore, the competency of that testimony is determinative in
our analysis and decision in this case.
Due to the complexities of medical science, particularly
with respect to diagnosis, methodology and determinations of
causation, this Court has held that “where the exact nature andprobable 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. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d
389, 391 (1980). However, when such expert opinion testimony is
based merely upon speculation and conjecture, it can be of no
more value than that of a layman's opinion. As such, it is not
sufficiently reliable to qualify as competent evidence on issues
of medical causation. Indeed, this Court has specifically held
that “an expert is not competent to testify as to a causal
relation which rests upon mere speculation or possibility.” Dean
v. Carolina Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94
(1975); see also Cummings v. Burroughs Wellcome Co., 130 N.C.
App. 88, 91, 502 S.E.2d 26, 29, disc. rev. denied, 349 N.C. 355,
517 S.E.2d 890 (1998); Ballenger v. Burris Indus., 66 N.C. App.
556, 567, 311 S.E.2d 881, 887, disc. rev. denied, 310 N.C. 743,
315 S.E.2d 700 (1984).
In the case sub judice, the Court of Appeals held that Dr.
Payne's opinion regarding the etiology of plaintiff's current
condition was more than mere speculation and, therefore, was
sufficient to support the Commission's finding that plaintiff's
reactive fibromyalgia was caused or substantially aggravated by
her original injury by accident. Young v. Hickory Bus. Furn.,
137 N.C. App. 51, 56, 527 S.E.2d 344, 348 (2000). However, a
review of Dr. Payne's deposition, the sole source of evidence
pertaining to his opinion, reveals that his opinion as to the
causative nature of Ms. Young's fibromyalgia was based entirely
upon conjecture and speculation. Early in his deposition, Dr. Payne testified on direct
examination that he frequently could not ascribe a cause for
fibromylagia in his patients. He stated: “I must say that a lot
of times I have no idea why someone has fibromyalgia. Far and
away, fibromyalgia occurs more commonly for unknown reasons.”
Later, Dr. Payne agreed with defense counsel's statement that
fibromyalgia was an illness or condition of unknown etiology.
Furthermore, Dr. Payne acknowledged that there were no physical
tests that one can perform, or testing of any kind with regard to
chemical abnormality in the body, which would indicate whether a
person has fibromyalgia.
The speculative nature of Dr. Payne's expert opinion is
reflected in his testimony that while he acknowledged that he
knew of several other potential causes of Ms. Young's
fibromyalgia, he did not pursue any testing to determine if they
were, in fact, the cause of her symptoms. For instance, Dr.
Payne conceded that he was aware of osteoarthritis in Ms. Young
and that her sister was diagnosed with rheumatoid arthritis.
However, when asked on cross-examination whether he had performed
any tests to rule out other forms of rheumatoid disease or
illness that could account for Ms. Young's symptoms, Dr. Payne
testified that he had not. Indeed, when asked by defense counsel
whether those tests had been conducted, Dr. Payne simply
responded, “[T]hose studies need to have been done.”
Additionally, in response to defense counsel's questions about
other potential causes of Ms. Young's symptoms, Dr. Payne
admitted that he did not attempt to ascertain whether plaintiff
suffered from any viral or bacterial illnesses during the time
between her injury and his diagnosis of fibromyalgia. Thisresponse followed the doctor's acknowledgment of case reports
suggesting that fibromyalgia could be associated with a
postbacterial illness reaction or a postviral reaction.
The speculative nature of the doctor's opinion is further
reflected in his testimony regarding Ms. Young's gallbladder
surgery in 1994. Plaintiff's surgery took place two years after
her injury and seven months before her first visit with Dr.
Payne. On cross-examination, the doctor acknowledged that
surgery is an “event that is thought to trigger or aggravate
fibromyalgia,” and that, depending on how well Ms. Young
tolerated her gallbladder surgery, it “could have aggravated
[plaintiff's] fibromyalgia.” The record therefore supports,
through Dr. Payne's own admissions, at least three potential
causes of fibromyalgia in Ms. Young other than her injury in
1992.
In reaching his conclusion, however, that plaintiff's
fibromyalgia could be related to her work-related injury, Dr.
Payne found it necessary to rely on the maxim “post hoc, ergo
propter hoc,” which is to say in Latin, “after this, therefore
because of this.” On cross-examination, Dr. Payne responded to
questioning as follows:
Q. Is there any way that one can definitively assign a
cause or aggravation of fibromyalgia to any particular
event other than the application of the doctrine, post
hoc ergo propter hoc?
A. No.
Q. Okay. In other words, there's nothing you can do
to test it, to look at it, other than she didn't have
it before, she has it now, what intervened, I'm going
to blame it on that?
A. Correct.
Dr. Payne's total reliance on this premise is shown near the end
of his deposition testimony wherein he states: “I think that she
does have fibromyalgia and I relate it to the accident primarily
because, as I noted, it was not there before and she developed it
afterwards. And that's the only piece of information that
relates the two.”
The maxim “post hoc, ergo propter hoc,” denotes “the fallacy
of . . . confusing sequence with consequence,” and assumes a
false connection between causation and temporal sequence.
Black's Law Dictionary 1186 (7th ed. 1999). As such, this Court
has treated the maxim as inconclusive as to proximate cause. See
Johnson v. Western Union Tel. Co., 177 N.C. 31, 32, 97 S.E. 757
(1919); Ballinger v. Rader, 151 N.C. 383, 385, 66 S.E. 314, 314-
15 (1909). This Court has also held that “[i]t is a settled
principle that the law looks to the immediate and not the remote
cause of damage, the maxim being 'Causa proxima, sed non remota
spectatur.'” Johnson, 177 N.C. at 33, 97 S.E. at 758. In a case
where the threshold question is the cause of a controversial
medical condition, the maxim of “post hoc, ergo propter hoc,” is
not competent evidence of causation.
The Court of Appeals made no mention of Dr. Payne's reliance
on the aforementioned maxim as the basis for his opinion. It
did, however, acknowledge the speculative nature of Dr. Payne's
medical opinion, pointing out that “Dr. Payne conceded that
fibromyalgia is controversial 'because there's difficulty in
objectively studying [the condition].'” Young, 137 N.C. App. at
56, 527 S.E.2d at 348. Nonetheless, the Court of Appeals
concluded that Dr. Payne gave an opinion, “to a reasonable degree
of medical certainty, that plaintiff's compensable 'injury couldhave or would have aggravated or caused the fibromyalgia.'” Id.
This Court has allowed “could” or “might” expert testimony as
probative and competent evidence to prove causation. See Mann v.
Virginia Dare Transp. Co., 283 N.C. 734, 747-48, 198 S.E.2d 558,
567-68 (1973); Lockwood v. McCaskill, 262 N.C. 663, 668, 138
S.E.2d 541, 545 (1964). However, this Court has also found
“could” or “might” expert testimony 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.
See Maharias v. Weathers Bros. Moving & Storage Co., 257 N.C.
767, 767-68, 127 S.E.2d 548, 549 (1962).
Based on the foregoing analysis, we conclude that Dr.
Payne's testimony, throughout both direct and cross-examination,
consists of comments and responses demonstrating his inability to
express an opinion to any degree of medical certainty as to the
cause of Ms. Young's illness. Dr. Payne's responses were
forthright and candid, and demonstrated an opinion based solely
on supposition and conjecture. We therefore hold that this
evidence, the sole evidence as to causation, was incompetent and
insufficient to support the Industrial Commission's findings of
fact. The opinion of the Court of Appeals, affirming the
Industrial Commission's findings of fact, is, therefore, reversed
and this case is remanded to that court for further remand to the
North Carolina Industrial Commission for disposition in
accordance with this opinion.
REVERSED AND REMANDED.
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