Muckle v. Dolgencorp, LLC ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-653
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
ROSEANNE MUCKLE,
Employee,
Plaintiff
v. North Carolina
Industrial Commission
I.C. No. X33108
DOLGENCORP, LLC, Employer, SELF-
INSURED (DOLLAR GENERAL RISK
MANAGEMENT, Administrator),
Defendant.
Appeal by Defendant from opinion and award entered 6 March
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 4 November 2013.
Brumbaugh, Mu & King, P.A., by Kenneth W. King, Jr., for
Plaintiff.
Patterson Dilthey, LLP, by Phillip J. Anthony and James A.
Barnes IV, for Defendant.
DILLON, Judge.
Dolgencorp, LLC (Defendant) appeals from an opinion and
award entered by the Full Commission of the North Carolina
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Industrial Commission (the Commission) in favor of Roseanne
Muckle (Plaintiff). For the following reasons, we reverse.
I. Factual & Procedural Background
On or about 27 December 20101, Plaintiff was employed by
Defendant as a store manager at Dollar General, Inc., when she
slipped and fell while collecting shopping carts in the store’s
icy parking lot. Plaintiff returned to work the following day,
but had difficulty performing her job duties and informed her
district manager that she needed to see a doctor.
Plaintiff was referred to Inner Banks Urgent Care, where
she was examined by Dr. Nancy Brous on 17 January 2011.
Plaintiff reported pain on the right side of her lower back and
buttocks down to her right thigh, and a tingling and numbness in
her lower back. The X-rays taken revealed no fractures;
Plaintiff was given pain medication and placed on light duty
work restrictions.
Plaintiff returned to Dr. Brous for a follow-up examination
on 24 January 2011. According to Dr. Brous’s notes, Plaintiff
reported that she had had “almost total resolution of her pain.”
1
Both parties state in their briefs that the incident giving
rise to this case occurred on 27 December 2010. The
Commission’s findings stated that the incident occurred on 26
December 2010, however, and the record evidence is conflicting
in this respect.
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Dr. Brous also noted: “It is a little tender in the buttock area
to touch but she has no pain and is able to stand all day.
[Plaintiff was initially placed] on light duty, but [] was never
on light duty. She is able to do her full job.” Dr. Brous
further noted that she would “close this case” if Plaintiff
remained “pain free” upon returning for subsequent examination,
but also noted her concern that perhaps Plaintiff’s pain
medication was “masking any symptoms.”
Plaintiff was examined again by Dr. Brous on 31 January
2011. Plaintiff reported to Dr. Brous that her pain symptoms
had improved, but that she had some discomfort in her back that
grew worse when she did “a good deal of walking or [] any
pulling.” Plaintiff also reported feeling a “burning pain” from
shingles, with which she had been diagnosed on the previous
visit.
Plaintiff continued to perform her regular job duties –
which included stooping, bending, lifting, and stocking shelves
– and to work her regular hours, notwithstanding the prescribed
light duty work restrictions. Plaintiff testified that the
“seasonal slowdown” and resulting payroll reduction for her
store essentially forced her to work her usual shifts and that
this worsened her injury-related symptoms. The Commission found
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as fact that “during the three weeks after the January 31, 2011
medical visit, Plaintiff had to work 10 hour days, 7 days per
week to prepare for the upcoming store inventory.”
On 25 February 2011, Plaintiff submitted her letter of
resignation to Defendant. Plaintiff testified that she resigned
because of the pain she was experiencing at work and that she
had indicated the same in her resignation letter.
On 3 March 2011, Plaintiff presented for treatment at
Carolina East Family Medicine, where she was examined by Dr.
Charles Jahrsdorfer. Plaintiff reported the 27 December 2010
incident, that she was experiencing increased pain which she
believed was related to the incident, and that she was also
experiencing numbness from her “left buttocks down to her [left]
knee.” (Emphasis added). Dr. Jahrsdorfer noted that Plaintiff
exhibited a decreased range of motion in her back and diagnosed
her with back pain with radiculopathy and muscle spasms. Dr.
Jahrsdorfer ordered an MRI, which revealed a “moderately large”
herniated disk on Plaintiff’s right side.
On 21 March 2011, Plaintiff was examined by Dr. Keith
Tucci, a neurosurgeon. Plaintiff again reported pain and
numbness on her left side. Dr. Tucci reviewed the MRI and noted
a “small disc bulge” on Plaintiff’s right side; he concluded
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that Plaintiff did not need surgery and instead referred her for
physical therapy.
On 28 March 2011, Plaintiff was examined by Dr. Jahrsdorfer
for treatment unrelated to this case. Plaintiff did not report
any back pain on this visit. The nurse’s notes from the visit
provide that Plaintiff stated “she feels fine” and that
Plaintiff had “[n]o further complaints.”
Two days later, on 30 March 2011, Plaintiff filed a Form 18
notice of injury seeking workers’ compensation benefits in
connection with the 27 December 2010 incident and filed a Form
33 requesting that her claim be assigned for hearing. Defendant
filed a Form 63 agreeing to pay medical benefits, but agreed to
do so without prejudice, expressly reserving the right to later
deny the compensability of Plaintiff’s alleged injury.
On 2 August 2011, Plaintiff returned to Dr. Jahrsdorfer for
treatment unrelated to the 27 December 2010 incident. During
this visit, however, Plaintiff reported that she had continued
to experience increasing back pain.
On 27 October 2011, Plaintiff presented for treatment at
the Center for Scoliosis & Spinal Surgery in Greenville, where
she was examined by an orthopedic surgeon, Dr. Scot Reeg.
Plaintiff reported to Dr. Reeg that she had been experiencing
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pain in her right side. Dr. Reeg reviewed Plaintiff’s MRI and
noted a large ruptured disk on Plaintiff’s right side. Dr. Reeg
determined that Plaintiff’s symptoms – which included right-
sided back and leg pain, limping, and a “neurologic deficit” in
the leg – were consistent with both his physical examination of
Plaintiff and the MRI and thus believed that Plaintiff’s case
was “straightforward.”
Meanwhile, a hearing concerning Plaintiff’s injury and the
27 December 2010 incident was held before Deputy Commissioner
Mary C. Vilas on 20 September 2011. However, Deputy
Commissioner Vilas filed an order holding the record open until
21 December 2011, in order to give the parties a chance to
depose their witnesses, which included Dr. Jahrsdorfer, Dr.
Tucci, and Dr. Reeg.
On 27 August 2012, Deputy Commissioner Vilas entered an
opinion and award requiring that Defendant “pay all medical
expenses incurred or to be incurred as a result of [Plaintiff’s
27 December 2010] compensable injury[.]” Defendant appealed to
the Commission, which, on 6 March 2013, filed an opinion and
award affirming the Deputy Commissioner’s opinion and award with
minor modifications. The Commission concluded that Plaintiff
had “sustained a compensable injury to her back . . . as a
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result of an injury by accident arising out of and in the course
of her employment with Defendant” and, consequently, that
Defendant was required to “pay Plaintiff temporary and total
disability compensation at a rate of $420.47 per week from the
date of Plaintiff’s resignation on February 25, 2011 and
continuing until Plaintiff returns to work or further Order of
the Commission.” From the Commission’s opinion and award,
Defendant now appeals.
II. Analysis
Defendant contends that the Commission “erred in finding
and concluding that Plaintiff’s alleged symptoms after January
2011 were casually related to her 27 December 2010 injury.” We
agree.
Our standard of review is well-established:
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. If
supported by competent evidence, the
Commission’s findings are conclusive even if
the evidence might also support contrary
findings. The Commission’s conclusions of
law are reviewable de novo.
Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442–43, 640
S.E.2d 744, 748 (2007) (internal citations omitted).
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Furthermore, “[i]t is well established in North Carolina that
the Workers’ Compensation Act should be liberally construed and
that [w]here any reasonable relationship to employment exists,
or employment is a contributory cause, the court is justified in
upholding the award as arising out of employment.” Hollin v.
Johnston County Council on Aging, 181 N.C. App. 77, 84, 639
S.E.2d 88, 93 (2007) (citations and quotation marks omitted)
(second alteration in original). “The evidence tending to
support plaintiff’s claim is to be viewed in the light most
favorable to plaintiff, and plaintiff is entitled to the benefit
of every reasonable inference to be drawn from the evidence.”
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998).
There is no dispute that Plaintiff was working within the
scope of her employment when she slipped and fell in the Dollar
General parking lot on 27 December 2010. Rather, the point of
contention raised is whether the 27 December 2010 incident
caused Plaintiff’s present condition, such that her condition is
compensable under the workers’ compensation provisions of our
General Statutes. Plaintiff argues that her “current medical
condition is causally related to her compensable injury by
accident of 27 December 2010” and that the Commission’s findings
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and conclusions in this respect are supported by the competent
evidence of record. Defendant argues that the expert testimony
presented in this case was insufficient to support the
Commission’s conclusion “that Plaintiff’s alleged symptoms after
January 2011 were causally related to her 27 December 2010
injury.”
The claimant in a workers’ compensation claim “has the
burden of proving that his claim is compensable.” Henry v. A.C.
Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761
(1950). The plaintiff must “produce competent evidence
establishing each element of compensability, including a causal
relationship between the work-related accident and his or her
injury.” Castaneda v. Int’l Leg Wear Grp., 194 N.C. App. 27,
31, 668 S.E.2d 909, 913 (2008); see Hollar v. Montclair
Furniture Co., Inc., 48 N.C. App. 489, 490, 269 S.E.2d 667, 669
(1980) (providing that a workers’ compensation claimant must
prove (1) that the injury was caused by an accident; (2) that
the injury was sustained in the course of the employment; and
(3) that the injury arose out of the employment”). “Although
the employment-related accident ‘need not be the sole causative
force to render an injury compensable,’ the plaintiff must prove
that the accident was a causal factor by a ‘preponderance of the
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evidence.’” Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581
S.E.2d 750, 752 (2003) (citations omitted).
Our Supreme Court has stated the following with respect to
the role of expert testimony in establishing causation:
In cases involving ‘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.’ ‘However,
when such expert opinion testimony is based
merely upon speculation and conjecture, . .
. it is not sufficiently reliable to qualify
as competent evidence on issues of medical
causation.’ ‘[T]he 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.’
Id. at 232, 581 S.E.2d at 753 (internal citations omitted)
(alterations in original).
Here, the Commission determined that causation was
established through the deposition testimony of Dr. Reeg.
Although the evidence indicated that Plaintiff initially
reported pain in her right side to Dr. Brous on 17 January 2011;
reported “almost a total resolution of her pain” at a follow-up
visit with Dr. Brous on 24 January 2011; reported improvement in
her back pain in an additional follow-up with Dr. Brous on 31
January 2011; reported pain and numbness in her left side to Dr.
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Jahrsdorfer on 3 March 2011; reported pain and numbness on her
left side to Dr. Tucci on 21 March 2011; did not report any back
pain when she was examined by Dr. Jahrsdorfer on 28 March 2011,
but stated she felt “fine”; and reported pain in her right side
when she was examined by Dr. Reeg on 27 October 2011, the
Commission concluded, based on Dr. Reeg’s testimony, that
causation had been established as follows:
29. Dr. Reeg was asked during his deposition
if Plaintiff would “be expected to have
symptomology on her left side with a right-
sided dis[c] presentation?” Dr. Reeg
explained that if a patient has a
significantly ruptured disc that has mass
effect on the nerve, or the nerve is
pinched, causing radicular pain, then the
symptoms tend to stay one-sided. He further
explained that “[i]f it’s a smaller disc
herniation where there’s significant
disruption of the disc, sometimes you’ll see
flipping back and forth depending on how the
disc leaks rather than compresses the nerves
and so I think it depends on the nature of
the disc pathology that’s taking place in
the canal and epidural space.”
30. Based on the preponderance of the
evidence in view of the entire record,
including but not limited to careful review
of the medical evidence, the MRI report and
the testimony of Doctors Jahrsdorfer, Tucci
and Reeg, the Full Commission finds that
Plaintiff has disc herniations . . . . The
Full Commission further finds that Plaintiff
fairly consistently had right-sided
symptoms, with left-sided symptoms noted
when she saw Dr. Tucci on March 21, 2011.
Dr. Reeg was clear in his testimony that he
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frequently sees symptoms present in patients
in different areas than one would typically
expect and that he had no reason to doubt
the veracity of Plaintiff’s presentation of
her condition.
31. Based upon a preponderance of the
evidence in view of the entire record, the
Full Commission finds that both Plaintiff’s
right-sided low back and lower extremity and
occasional left-sided lower extremity
presentation of her symptoms are causally
related to her December 2[7], 2010
compensable injury by accident.
We conclude that the Commission’s findings of fact are
inadequate to support its conclusion concerning causation set
forth in “finding of fact” 31.2 The Commission makes no finding
that Dr. Reeg – or any other medical expert – stated his opinion
that Plaintiff’s injuries were, in fact, causally related to her
workplace fall. Further, our careful review of the deposition
transcript reveals that Dr. Reeg expressly refrained from
offering such an opinion. Rather, he testified that he had not
reviewed Plaintiff’s medical records – other than the MRI taken
by Dr. Jahrsdorfer – prior to his testimony and that, upon
learning of Plaintiff’s reports to other physicians, he could
not express any opinion with respect to causation in this case.
2
We re-characterize improperly labelled “findings of fact” as
conclusions of law, which, as such, must be supported by the
competent evidence of record. State v. Sparks, 362 N.C. 181,
185–86, 657 S.E.2d 655, 658 (2008) (reviewing de novo a
conclusion of law that the trial court had mislabeled as a
finding of fact).
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For instance, when asked whether Plaintiff’s pain “on one side
or the other” was related to the 27 December 2010 incident, Dr.
Reeg responded: “I think someone will have to make a
determination on looking through these records. I’m not sure I
can resolve that for you.” Moreover, when Plaintiff’s counsel
asked Dr. Reeg whether he would be able to offer his opinion on
causation if he were able to review Plaintiff’s MRI, Dr. Reeg
responded, “I don’t think so.” The exchange between Plaintiff’s
counsel and Dr. Reeg proceeded as follows:
Q: Okay. What additional information . . .
do you need in order to resolve that issue:
A: The history comes in significantly in
making that determination and the history is
a little muddled by some of what I’ve heard
tonight so that makes it harder. . . .
[W]hen I saw her in the office I thought it
was pretty straightforward. She was
complaining solely of right-sided pain with
right-sided pathology on MRI. I didn’t have
a lot of question about it, but when called
upon to make an opinion on no right but
left-sided symptoms it’s hard for me to
explain that. That is not typical for her
type of pathology that I saw her with in
October.
Q: Would it make a difference if the
evidence showed that the only time she
complained of left-lower extremity pain was
in the one medical visit that she had with
Dr. Tucci on March 21, 2011?
A: No. I mean, I wouldn’t change my opinion
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if it was one time or three times. I still
can’t explain why suddenly her symptoms
would switch from one side to the other
based on medical reasons. The disc
pathology in the spine is not going to be
flopping from one side to the other so to me
that’s not an anatomical issue there. . . .
When I see her in the office, you know, I’m
not looking to established causality at that
point. . . . But I would say . . . that
[the] constellation of symptoms as it
relates to her anatomical problem are hard
for me to explain because they are not
typical for people that have a significant
acute disc herniation. So . . . with a
reasonable degree of medical certainty can I
establish causality to her symptoms? I
can’t. I’m not going to necessarily try to
prove it or disprove it. I’m just saying
that presentation is not consistent.
Notwithstanding the foregoing, Plaintiff’s counsel again
attempted to elicit an opinion from Dr. Reeg concerning
causation:
Q: Okay. Do you have an opinion to a
reasonable degree of medical probability as
to whether the mechanism of her injury, the
fall in December of 2010, more likely than
not caused the herniated disc that was shown
on the MRI?
A: I don’t.
Finally, Plaintiff’s counsel asked whether Dr. Reeg
believed that it was possible that Plaintiff’s fall could have
caused her injury. Dr. Reeg responded that the mechanism of
injury was possible, but “it would be hard for [him] to
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establish causation based on some of the information that has
come to bare tonight.”
In Edmonds v. Fresenius Med. Care, 359 N.C. 313, 608 S.E.2d
755 (2005), our Supreme Court reversed this Court’s decision to
affirm the Commission’s award of benefits, and adopted the
dissenting opinion in that case, which stated that an expert’s
testimony that an action “possibly” or “could or might” have
caused an injury “does not rise above a guess or speculation and
does not meet the [causation] requirements set forth in Holley”
and, further, that it was “not the role of the Commission to
render expert opinions [in] cases involving complex medical
questions, [where] only an expert can give opinion evidence as
to the cause of an injury.” Edmonds v. Fresenius Med. Care, 165
N.C. App. 811, 818-19, 600 S.E.2d 501, 506 (2004) (Steelman, J.,
dissenting) (citing Holley, 357 at 232, 581 S.E.2d at 753).
Here, the Commission concluded that causation had been
established based on testimony from Dr. Reeg that there was a
generalized possibility that the workplace accident might have
caused Plaintiff’s injuries; and, in so concluding, ignored Dr.
Reeg’s explicit testimony that he was unable to draw a
conclusion concerning causation in this case. We conclude that
Dr. Reeg’s testimony, like the expert opinion testimony
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presented in Edmonds, was insufficient to meet the requirements
concerning causation testimony as set forth by our Supreme Court
in Holley.
Accordingly, we hold that Plaintiff has failed to carry her
burden of establishing a causal connection between the 27
December 2010 incident and the injuries underlying her present
workers’ compensation claim. The Commission’s 6 March 2013
opinion and award is
REVERSED.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).