Wells v. Charlotte Mecklenburg Hosp. Auth. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-700
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
ALAN WELLS,
Employee,
Plaintiff,
v. North Carolina
Industrial Commission
CHARLOTTE MECKLENBURG HOSPITAL I.C. Nos. X88380 & Y05621
AUTHORITY,
Employer,
SELF-INSURED,
Defendant.
Appeal by defendant from Opinion and Award entered 17
February 2014 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 4 November 2014.
The Sumwalt Law Firm, by Vernon Sumwalt, for plaintiff-
appellee.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Thomas W.
Page and M. Duane Jones, for defendant-appellant.
STROUD, Judge.
Charlotte Mecklenburg Hospital Authority (“defendant”)
appeals from an opinion and award by the Full Commission.
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Defendant contends that no competent evidence supports some of
the Commission’s findings of fact. Finding no error, we affirm.
I. Factual Background
In December 2011, Alan Wells (“plaintiff”) began his
employment with defendant as an environmental services
technician. On 16 February 2012, plaintiff sought treatment
with Dr. Lisette Akers, a family practice physician. Although
his “chief complaint” at this visit was a sore in his mouth, he
also noted that he had experienced “pain in the plantar aspect”
of his left foot for about three weeks, which he attributed to
the fact that “he walks a lot.” He also informed Dr. Akers that
he had “never had any back pain” or “trauma to the back” but was
having some lower back pain which he thought developed “because
he’s been walking with somewhat of a limp because of the heel
and plantar pain.” Dr. Akers performed a straight leg test,
which was positive on the left and negative on the right. She
diagnosed plaintiff with plantar fasciitis, noting that it
“propagated to sciatica” which was “[s]econdary to his
malalignment and limping.”
On 20 February 2012, while throwing a trash bag into a
dumpster at work, plaintiff felt a pop in his back that gave him
a shock in his right leg. Plaintiff felt a “burning” pain and
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was forced to lean against a wall for a few minutes to
recuperate. Plaintiff finished his shift and then went home.
Plaintiff returned to work the next day, but he experienced
severe pain after trying to dispose of another trash bag. After
plaintiff spoke with his supervisor, his supervisor directed him
to an urgent care center, where he was examined by Dr. James
Griggs. Dr. Griggs diagnosed him with acute lumbar
radiculopathy and lumbar sprain, prescribed pain medication, and
directed plaintiff not to work until he could be evaluated by
Dr. Daniel Davis, an orthopedic spine specialist.
On 28 February 2012, plaintiff presented to Dr. Davis, and,
on 14 March 2012, Dr. Davis ordered an MRI of plaintiff’s lumbar
spine. On 19 March 2012, plaintiff underwent the lumbar MRI.
Dr. Davis observed from the MRI results that plaintiff was
suffering from a herniated disc. On 16 May 2012, upon referral
of Dr. Davis, plaintiff presented to Dr. Edward Hanley, an
orthopedic surgeon. After discussing treatment options with Dr.
Hanley, plaintiff elected to proceed with a microdisectomy. But
plaintiff did not receive the surgery, because defendant did not
authorize it. On 27 June 2012, at defendant’s request,
plaintiff presented to Dr. Craig Brigham for an independent
medical examination, and, on 12 December 2012, plaintiff also
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presented to Dr. John Welshofer, an expert in physical medicine
and rehabilitation.
II. Procedural Background
On 14 June 2012, plaintiff filed Industrial Commission Form
18 giving notice of his Workers’ Compensation claim. On or
about 5 July 2012, defendant filed Form 61 denying plaintiff’s
claim. On or about 30 April 2013, Deputy Commissioner Keischa
Lovelace ordered that defendant was entitled to terminate
plaintiff’s temporary total disability compensation benefits and
was entitled to a credit for benefits paid to plaintiff after 27
June 2012. Plaintiff appealed to the Full Commission.
On 17 February 2014, the Full Commission by Commissioner
Bernadine Ballance reversed the deputy commissioner’s opinion
and awarded plaintiff, inter alia, $246.04 per week in temporary
total disability benefits from 21 February 2012 through 29
January 2013. Commissioner Linda Cheatham concurred in part and
dissented in part. On or about 21 February 2014, defendant
received by certified mail the Full Commission’s opinion and
award. On 24 March 2014, defendant timely filed a notice of
appeal.
III. Findings of Fact
A. Standard of Review
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We review an order of the Full Commission
only to determine whether any competent
evidence supports the Commission’s findings
of fact and whether the findings of fact
support the Commission’s conclusions of law.
Because the Industrial Commission is the
sole judge of the credibility of the
witnesses and the weight of the evidence, we
have repeatedly held that the Commission’s
findings of fact are conclusive on appeal
when supported by competent evidence, even
though there be evidence that would support
findings to the contrary. In addition, where
findings of fact are not challenged and do
not concern jurisdiction, they are binding
on appeal. The Commission’s conclusions of
law are reviewed de novo.
Medlin v. Weaver Cooke Const., LLC, ___ N.C. ___, ___, 760
S.E.2d 732, 738 (2014) (citations and quotation marks omitted).
B. Compensable Injury
Defendant contends that the Full Commission erred in
concluding that plaintiff’s injury is compensable, because no
competent evidence supports the Commission’s findings that Dr.
Griggs and Dr. Hanley opined to a reasonable degree of medical
certainty that the incident caused or aggravated plaintiff’s
back condition. Relying primarily on Edmonds v. Fresenius Med.
Care, defendant overall argues that the testimony of Dr. Griggs
and Dr. Hanley was not competent because it was merely
speculation. 165 N.C. App. 811, 600 S.E.2d 501 (2004)
(Steelman, J., dissenting), rev’d per curiam for reasons stated
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in dissent, 359 N.C. 313, 608 S.E.2d 755 (2005). The entirety of
causation evidence must meet the “reasonable degree of medical
certainty” standard necessary to establish a causal link between
plaintiff’s accident and plaintiff’s injury. Workman v.
Rutherford Elec. Membership Corp., 170 N.C. App. 481, 494, 613
S.E.2d 243, 252 (2005). Although medical certainty is not
required, an expert’s speculation is insufficient to establish
causation. Id., 613 S.E.2d at 252. “The opinion of a physician
is not rendered incompetent merely because it is based wholly or
in part on statements made to him by the patient in the course
of treatment or examination.” Hutchens v. Lee, ___ N.C. App.
___, ___, 729 S.E.2d 111, 114, disc rev. denied, 366 N.C. 393,
732 S.E.2d 576 (2012).
Defendant first challenges Finding of Fact 23, which
addressed Dr. Griggs’ opinion:
Dr. Griggs opined to a reasonable degree of
medical probability based upon the history
provided by Plaintiff and upon his
examination of Plaintiff, that Plaintiff’s
back condition
is causally related to his February 20, 2012
incident. This opinion did not change upon
learning of Plaintiff’s visit to Dr. Akers
on February 16, 2012 because, “this was an
acute injury that Dr. Griggs was seeing him
for.”
(Brackets omitted.)
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Referring to plaintiff’s visit with Dr. Akers, defendant
argues that “Dr. Griggs’ testimony as a whole shows he is not
sure at all of the cause of Plaintiff’s symptoms and his
testimony of causation is merely a guess[, because he] was
unaware of Plaintiff treating for back pain four days prior to
his work injury.” Although defendant notes that his opinion did
not change after being presented with this information,
defendant concludes that “Dr. Griggs’ testimony, when considered
in its totality, shows he has no clue as to whether Plaintiff’s
current complaints are being caused by his pre-existing
degenerative condition or his work injury.”
Although various excerpts from Dr. Griggs’ testimony
indicate that his opinion was based in part upon “trust in a
patient,” we disagree that his testimony as a whole discredits
his ultimate opinion of causation, as found by the Commission.
[Griggs Dep. 51] “It is not the role of the appellate courts to
sift through the evidence and find facts that are different from
those actually found by the Commission.” Edmonds, 165 N.C. App.
at 817, 600 S.E.2d at 506 (Steelman, J., dissenting). In his
deposition testimony, Dr. Griggs opined to a reasonable degree
of medical certainty that the incident caused or aggravated
plaintiff’s back condition. Dr. Griggs did not change his
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opinion after considering Dr. Akers’ observation of plaintiff’s
sciatic pain four days before the incident, because, according
to Dr. Griggs, plaintiff’s injury after the incident was
“acute.” His deposition testimony supports Finding of Fact 23.
Defendant claims that Dr. Hanley gave his opinion “without
a full and accurate medical history” and that “once he was made
aware of the back pain and radicular leg pain complaints just
days before the work injury, Dr. Hanley’s causation opinion
changed completely[.]” Finding of Fact 24 addressed Dr.
Hanley’s opinion as to causation:
Dr. Hanley opined within a reasonable degree
of medical certainty that, “the described
incident of February 2012 caused a ruptured
disc aggravating pre-existing degenerative
disc disease, causing acute back pain and
leg pain.” Dr. Hanley further opined, “that
the described incident of February 2012
aggravated a pre-existing degenerative disc
condition in [plaintiff], causing his pain.”
When asked whether Dr. Akers’ diagnosis of
sciatica on February 16, 2012 was
inconsistent with the history [that]
Plaintiff [had] conveyed to him, Dr. Hanley
stated, “maybe” but pointed out that
Plaintiff’s pain on February 16, 2012 was
related to his left lower extremity. Dr.
Hanley testified that, while back pain can
move from side to side, “radicular pain
doesn’t switch sides.”
(Brackets omitted.)
In his deposition, Dr. Hanley also opined to a reasonable
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degree of medical certainty that the incident caused or
aggravated plaintiff’s back condition. But defendant points out
that, on cross-examination, Dr. Hanley responded in the negative
when asked whether he could opine to a reasonable degree of
medical certainty that the incident caused plaintiff’s injury,
upon being informed of Dr. Akers’ observation of plaintiff’s
sciatic pain four days before the incident. But, on re-direct
examination, plaintiff’s counsel rehabilitated Dr. Hanley’s
opinion:
Plaintiff’s counsel: Okay. [Dr. Akers’
note] also mentions no swelling of the
spine. When [Dr. Akers] does the
examination, she finds no swelling, no
tenderness, no numbness, no tingling; in the
hips, no swelling, no tenderness in the
hips. Is that consistent with someone who
has a herniated disc?
Dr. Hanley: No.
. . . .
Plaintiff’s counsel: . . . [I]f [plaintiff]
had back pain or had sciatic [(sic)], and he
performed this activity of throwing trash
into the bin, could that [have] aggravated,
then, or caused the herniated disc?
Dr. Hanley: Yes.
Plaintiff’s counsel: Can you give us a
medical basis for that?
Dr. Hanley: Well, if you have a weak disc
related to wear and tear, aging, and you
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bend and twist, torque your spine, you can
rip the outer part of the disc, causing a
piece of disc to push out and pinch the
nerve passing by.
In addition, as found by the Full Commission, Dr. Hanley noted
the fact that plaintiff’s complaint prior to the incident arose
from his left side, not his right. Ultimately, Dr. Hanley’s
testimony confirmed his opinion, to a reasonable degree of
medical certainty, that the incident caused or aggravated
plaintiff’s herniated disc.
Defendant has challenged on appeal only Findings of Fact 23
and 24, which we have found are supported by competent evidence.
Defendant also discusses in its brief the opinion testimony of
Dr. Welshofer, which is noted in Finding of Fact 25, although it
did not challenge this finding on appeal:
Dr. Welshofer opined to a reasonable degree
of medical certainty that the February 20,
2012 compensable work-related accident
caused, or at the very least, aggravated
Plaintiff’s current back condition.
Specifically, Dr. Welshofer opined:
I think this gentleman
probably had a ruptured
disc at L4-5 that led to
the rather significant
right sciatica
documented by his fast
assessment the day after
his injury. So even if
he had underlying
spondylosis or
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degeneration, I don’t
think that was
materially exacerbated
by his injury. I think
there was a disc
protrusion. So it’s kind
of immaterial because I
don’t think he can have
that type of MRI finding
and not have symptoms
that he would have
reported to someone if
that was a pre-existing
condition.
While Dr. Welshofer testified that he was
not aware of Plaintiff’s February 16, 2012
visit to Dr. Akers, he did not reverse his
causation opinion upon learning of the visit
and noted that Plaintiff’s sciatic
complaints to Dr. Akers were on the opposite
side.
Dr. Welshofer may have given a more thorough explanation
than Dr. Griggs or Dr. Hanley of why he did not change his
opinion upon learning of plaintiff’s visit to Dr. Akers, but
overall his opinion testimony was consistent with that of Dr.
Griggs and Dr. Hanley. Thus, the Commission ultimately relied
upon the independent opinions of three different doctors, all of
which were supported by the evidence. Accordingly, we hold that
competent evidence supports the Commission’s findings that Dr.
Griggs and Dr. Hanley opined to a reasonable degree of medical
certainty that the incident caused or aggravated plaintiff’s
back condition and that their opinions were not based upon mere
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speculation or conjecture.
C. Disability
Defendant next contends that the Full Commission erred in
concluding that defendant suffered from a disability, because no
competent evidence supports the Commission’s finding that
plaintiff made a reasonable, but unsuccessful, effort to find
suitable employment.
[T]o support a conclusion of disability, the
Commission must find: (1) that plaintiff
was incapable after his injury of earning
the same wages he had earned before his
injury in the same employment, (2) that
plaintiff was incapable after his injury of
earning the same wages he had earned before
his injury in any other employment, and (3)
that this individual’s incapacity to earn
was caused by plaintiff’s injury.
Medlin, ___ NC at ___, 760 S.E.2d at 736 (citing Hilliard v.
Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683
(1982)). A plaintiff may prove the first two Hilliard elements
by satisfying any of the following four prongs:
(1) The production of medical evidence that
he is physically or mentally, as a
consequence of the work related injury,
incapable of work in any employment; (2) the
production of evidence that he is capable of
some work, but that he has, after a
reasonable effort on his part, been
unsuccessful in his effort to obtain
employment; (3) the production of evidence
that he is capable of some work but that it
would be futile because of preexisting
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conditions, i.e., age, inexperience, lack of
education, to seek other employment; or (4)
the production of evidence that he has
obtained other employment at a wage less
than that earned prior to the injury.
Id. at ___, 760 S.E.2d at 736-37 (citing Russell v. Lowes
Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454,
457 (1993)).
Here, in Finding of Fact 36, the Commission found that
plaintiff had satisfied the second Russell prong:
Despite his known restrictions, Plaintiff
began a job search in July 2012 by
submitting an application to a staffing
agency. Between July 2012 and December 2012,
when the evidentiary hearing was held,
Plaintiff applied for twenty-seven positions
as documented by his job search logs.
Plaintiff sought employment in sales,
customer service, maintenance and cleaning.
Plaintiff also applied for jobs as a driver,
packer, and in restaurants, convenience
stores and retail clothing stores. He
testified that he primarily did internet
searches because he had difficulty with the
physical requirements of going from place to
place to search for work. Plaintiff has not
had any job offers. The Full Commission
finds based upon the preponderance of the
evidence in view of the entire record that
Plaintiff has made a reasonable effort to
find suitable employment under the
circumstances of this case, even though he
applied for some positions that appeared to
be outside of his work restrictions or his
skill level.
Relying on Salomon v. The Oaks of Carolina, defendant contends
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that no competent evidence supports this finding. 217 N.C. App.
146, 153, 718 S.E.2d 204, 209 (2011). Salomon, however, is
distinguishable. There, the plaintiff briefly testified that she
had looked at “a couple of places” but did not proffer any other
evidence of her job search. Id. at 152 & n.2, 718 S.E.2d at 208-
09 & n.2. In contrast, here, plaintiff proffered a job search
log, copies of plaintiff’s job applications, and emails from
prospective employers confirming receipt of plaintiff’s
applications. Accordingly, we hold that competent evidence
supports the Commission’s finding that plaintiff made a
reasonable, but unsuccessful, effort to find suitable
employment.1 See Medlin, ___ N.C. at ___, 760 S.E.2d at 738.
IV. Conclusion
Because competent evidence supports the challenged findings
of fact, we affirm the Commission’s opinion and award.
AFFIRMED.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
1
Defendant also challenges the Commission’s finding that it
would have been futile for plaintiff to seek suitable employment
from 27 April 2012 through 29 January 2013. But, because we
hold that plaintiff has satisfied the second Russell prong, we
need not address this issue of whether plaintiff has satisfied
the third Russell prong. See Medlin, ___ N.C. at ___, 760 S.E.2d
at 736-37.