Young v. Hickory Business Furniture , 137 N.C. App. 51 ( 2000 )

Judge Horton

dissenting.

On 3 March 1992, Judy Carolyn Young (plaintiff) injured her back in a compensable accident while employed by Hickory Business Furniture. After a period of temporary total disability, plaintiff retained a five percent permanent partial disability of her back, for which she was compensated. Plaintiff now contends that she has sustained a substantial change of condition since 15 October 1993, when she last received compensation. In a divided decision, the Full Commission found that plaintiffs condition substantially worsened, that she became unable to work on 19 October 1994 because of fibromyalgia, and that her condition is likely to be permanent. The Full Commission concluded as a matter of law that the medical testimony offered by plaintiff to support a substantial change in her condition “[did] not have to arise to a medical certainty.” The Commission concluded that plaintiff met her burden of proof “when her physicians testify that the cause ‘could or might’ have likely produced the effect.”

Where an employee seeks to establish a substantial change in condition pursuant to N.C. Gen. Stat. § 97-47 (1999), the burden is on the employee to prove the causal relationship between the new condition and the injury that is the basis of the award the employee seeks to modify. Blair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996) (citations omitted). Here, even assuming that the employee’s condition has worsened and that she suffers from fibromyalgia, the Commission erred in finding that there was a causal connection between the original injury by accident to her lower back and the fibromyalgia. The Commission’s error resulted from applying the wrong standard to the medical evidence.

Rather than requiring the employee to produce evidence “ ‘indicating] a reasonable scientific probability that the stated cause produced the stated result,’ ” Phillips v. U.S. Air, Inc., 120 N.C. App. 538, 542, 463 S.E.2d 259, 262 (1995), aff'd, 343 N.C. 302, 469 S.E.2d 552 (1996) (citation omitted), the Commission concluded that plaintiffs “medical testimony does not have to arise to a medical certainty.” Thus the Commission would apparently find that the Phillips requirement of “reasonable scientific probability” is met when plaintiffs doctor testified that the compensable accident “could or might” have produced the result (fibromyalgia). Our cases have, however, consistently mandated a higher degree of proof than that required by a majority of the Commission in this case. See, for example, id. at 542, 463 S.E.2d at 262; and Hinson v. National Starch & Chemical Corp., 99 N.C. App. 198, 202, 392 S.E.2d 657, 659 (1990).

In Phillips, the employee contended that he contracted salmonella from drinking contaminated water at work, and thereafter developed chronic fatigue syndrome. The Commission rejected his claim, finding first that “[t]here is no sufficient convincing medical evidence to any reasonable degree of medical certainty that plaintiff developed his salmonella infection from drinking contaminated water at work . . . .” Phillips, 120 N.C. App. at 540-41, 463 S.E.2d at 262-63. The Commission further pointed out that “[t]he exact cause of . . . [chronic fatigue syndrome] remains unknown as does its manner of transmission.” Id. at 541, 463 S.E.2d at 263. Further, even assuming that Phillips contracted salmonella from contaminated water at work, the Commission found “there is no convincing medical evidence to any reasonable degree of medical certainty that his salmonella infection triggered or otherwise caused him to develop disabling chronic fatigue syndrome. ...” Id.

Phillips is strikingly similar to the case before us. Here, plaintiff injured her back at work lifting a chair. Three years later, she was diagnosed with fibromyalgia by Dr. Payne, who is board-certified in Rheumatology. Dr. Payne acknowledged that fibromyalgia is a “very controversial subject in medicine primarily because there’s difficulty in objectively studying it [and it is] diagnose[d] . . . based on criteria rather than any type of testing.” He also testified that plaintiff met the criteria set out by the American College of Rheumatology for the condition. Dr. Payne then opined that the injury to plaintiff’s low back at work “could have or would have aggravated or caused the fibromyal-gia.” Dr. Payne’s reasoning was that he did not know of anything other than her injury at work which might have caused fibromyalgia, but admitted that “a lot of times I have no idea why someone has fibromyalgia. Far and away, fibromyalgia occurs more commonly for unknown reasons. But she had no other reason that I could discover for having it.”

The findings and conclusions of the Commission are based entirely on Dr. Payne’s unsupported opinion as to causation. Yet on cross-examination, Dr. Payne acknowledged that plaintiff had gallbladder surgery in 1994 and that he had “seen cases of fibromyalgia that occur following operations.” Second, Dr. Payne acknowledged that he had done no tests to “rule out other forms of rheumatoid disease or illness,” although “those studies need to have been done.” Third, although Dr. Payne opined that “fibromyalgia can be either caused or aggravated by trauma,” he acknowledged that no epidemiological studies have been done in the field of fibromyalgia to support that opinion. Indeed, a 1996 study published in The Journal of Rheumatology indicates that evidence that trauma causes fibromyal-gia is “insufficient to establish causal relationships.” Frederick Wolfe, The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability, 23:3 The Journal of Rheumatology 534 (1996). Thus, “whether an injury . . . caused the patient’s [fibromyalgia], a retrodic-tive (or It Did) causal proposition^] can rarely be determined to be certainly true or certainly false.” Id. See also Black v. Food Lion, Inc., 171 F.3d 308, 313 (5th Cir. 1999) (“Experts in the field conclude that the ultimate cause of fibromyalgia cannot be known, and only an educated guess can be made based on the patient’s history.”)

Dr. Payne summarized the basis for his causation opinion in the following answer:

I think 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.

It is well-settled that evidence which “ ‘raises a mere conjecture, surmise, and speculation,’ ” is insufficient to support a finding of causation. Hinson, 99 N.C. App. at 202, 392 S.E.2d at 659 (citation omitted). Even Dr. Payne agreed that his opinion had only a post hoc, ergo propter hoc (after this, therefore because of this) basis. Black’s Law Dictionary defines this post hoc type of analysis as “[o]f or relating to the fallacy of assuming causality from temporal sequence; confusing sequence with consequence.” (Black’s Law Dictionary 1186 (7th ed. 1999). Reduced to its bare essentials, Dr. Payne’s reasoning is that because plaintiff’s fibromyalgia appeared three years after her on-the-job low back injury, nothing else appearing, it must have resulted from that prior traumatic injury.

It simply cannot be said, on the facts of this case, that plaintiff offered evidence which indicates a “reasonable scientific probability” that plaintiffs present condition is causally related to her at-work injury. Nothing in this record indicates that Dr. Payne’s theory of a causal relationship between trauma and fibromyalgia is widely accepted in the medical profession, nor have the necessary studies been done to demonstrate such a connection. I believe the Commission erred in basing its award on unsupported “could or might” causation testimony, and I would vote to reverse its opinion and award. Therefore, I respectfully dissent from the opinion of the majority which affirms that award.