Cole v. United Parcel Serv., Inc.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-17
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
JOEL L. COLE, JR.,
Employee,
Plaintiff
v. From the North Carolina
Industrial Commission
I.C. No. W67557
UNITED PARCEL SERVICE, INC.,
Employer,
and
LIBERTY MUTUAL INSURANCE CO.,
Carrier,
Defendants.
Appeal by defendants from Opinion and Award entered 16
August 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 8 May 2014.
Patterson Harkavy LLP, by Narendra K. Ghosh, Henry N.
Patterson, and Paul E. Smith, for plaintiff-appellee.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Jennifer I.
Mitchell and M. Duane Jones, for defendants-appellants.
DAVIS, Judge.
United Parcel Service, Inc. (“UPS”) and Liberty Mutual
Insurance Company (collectively “Defendants”) appeal from an
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Opinion and Award of the North Carolina Industrial Commission
(“the Commission”) awarding Joel L. Cole, Jr. (“Plaintiff”) (1)
temporary total disability benefits for the period from 12
December 2009 through 4 February 2010; (2) costs for medical
treatment related to his injury from 11 December 2009 through 4
February 2010; and (3) attorneys’ fees in the amount of 25% of
Plaintiff’s temporary total disability award. On appeal,
Defendants argue that the Commission erred in concluding that
Plaintiff’s lower back condition was causally related to a work-
related injury suffered on 11 December 2009. After careful
review, we affirm the Commission’s Opinion and Award.
Factual Background
At the time of the hearing, Plaintiff was 46 years old.
Plaintiff began working for UPS on 30 August 1985. As of
December 2009, Plaintiff was a feeder driver. This job required
him to drive tractor-trailers approximately 200 to 500 miles per
day. He was also required to lift up to 70 pounds of dolly1
equipment and to assist in moving packages weighing up to 150
pounds.
On 11 December 2009, Plaintiff was working at UPS’s North
Wilkesboro Hub Center. His supervisor, LaShay Cross (“Mr.
1
A dolly is a piece of equipment used to couple two trailers
together such that they can both be pulled by one tractor.
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Cross”), instructed him to attach two trailers to a tractor and
pull them to the Greensboro terminal. While lifting a dolly in
order to attach one of the trailers to his tractor, Plaintiff
felt a sharp pain shoot from his left foot up to the back of his
neck. After a few minutes, the pain lessened and Plaintiff was
able to continue working. He called Mr. Cross to tell him that
he had suffered an injury. Plaintiff then drove from Wilkesboro
to the Greensboro terminal, where he dropped off the two
trailers and picked up another trailer to haul to Winston-Salem.
Upon arriving in Winston-Salem, Plaintiff called Mr. Cross a
second time, asking if he could “check out” and go home because
he was still in pain. After completing his delivery, Plaintiff
returned to his home at around 4:00 a.m. By this time, the pain
in his back had become so acute that he was having difficulty
walking and “had to crawl in the house.”
When Plaintiff awoke later that morning, his pain had
worsened. Plaintiff was transported to the emergency room at
Forsyth Medical Center. At the emergency room, Plaintiff
“complained of back pain, radiating to the left leg, at a 10/10
level of severity.” Plaintiff was given pain medication and
instructed to rest and stay out of work for four days.
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On 17 December 2009, Plaintiff was examined by his primary
care physician, Dr. John Galbreath (“Dr. Galbreath”). Dr.
Galbreath instructed Plaintiff to remain out of work and ordered
a lumbar spine MRI scan. The MRI scan showed abnormalities
consistent with possible infection, significant swelling, and
severe facet joint degeneration at the L4 and L5 joints on the
left side of his spine. In light of these findings, Plaintiff
was instructed to go to the hospital.
On 18 December 2009, Plaintiff was admitted to Forsyth
Medical Center, where he came under the care of Dr. Arthur Link
(“Dr. Link”), a specialist in infectious diseases. Dr. Link’s
diagnosis upon admission was back pain secondary to lumbar
abscess. Plaintiff was given antibiotics intravenously by a
peripherally inserted central catheter (“PICC”) line. During
his hospitalization, Plaintiff developed pain in his left knee.
His knee was aspirated, and gout crystals were found.
On 24 December 2009, Plaintiff was discharged from the
hospital. On 5 January 2010, Defendants sent Plaintiff to Dr.
Shawn Dalton-Bethea (“Dr. Dalton-Bethea”), a pain management
specialist, for a one-time evaluation. Dr. Dalton-Bethea’s
impression was that Plaintiff’s condition was present before the
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11 December 2009 incident and that his infection was not the
result of the incident.
Plaintiff continued to receive antibiotics via a PICC line
administered by a nurse at his home. On 6 January 2010,
Plaintiff was seen by Dr. David Priest (“Dr. Priest”), Dr.
Link’s partner. Dr. Priest completed a short-term disability
claim form on 26 February 2010, certifying that Plaintiff’s
disability was “due to employment” and began on 12 December
2009. On 9 May 2011, Plaintiff was evaluated by Dr. Thomas
Craig Derian (“Dr. Derian”), an orthopedic surgeon who
specializes in the lumbar spine and the treatment of infectious
conditions that impact the spine. Dr. Derian determined
Plaintiff’s condition was “most consistent with underlying facet
joint degeneration at L4-5 and L5-S1, with degenerative
spondylolisthesis, with a work-related injury on 11 December
2009, likely resulting in inflammation in that area, which
became secondarily infected via some other, unknown, source.”
Plaintiff eventually returned to work on 21 October 2011.
On 15 February 2010, Plaintiff filed a workers’
compensation claim. Defendants denied the claim on 22 March
2010. On 15 February 2010, Plaintiff submitted a request to the
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North Carolina Industrial Commission that his claim be assigned
for hearing.
On 14 March 2012, Plaintiff’s case was heard by Deputy
Commissioner Robert J. Harris. On 7 January 2013, the deputy
commissioner issued an Opinion and Award, concluding that
Plaintiff had sustained a compensable injury to his lower back
as a result of the work-related injury. Based on these
conclusions, the deputy commissioner issued an award to
Plaintiff that included (1) temporary total disability benefits
for the period from 12 December 2009 through 4 February 2010;
and (2) the requirement that Defendants pay for all medical
treatment he had received from 11 December 2009 through 4
February 2010.
Defendants appealed the decision to the Full Commission,
which heard the appeal on 12 June 2013. On 16 August 2013, the
Commission issued its Opinion and Award, with one commissioner
dissenting, affirming the deputy commissioner’s decision and
concluding, in pertinent part, as follows:
1. Based upon the preponderance of the
evidence from the entire record, plaintiff
has shown that he sustained a compensable
injury to his low back by specific traumatic
incident on 11 December 2009.
2. Based upon the preponderance of the
evidence from the entire record, plaintiff
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has shown that his continuing low back
condition after 11 December 2009,
specifically the inflammatory process that
required his December 2009 hospitalization
and the ongoing treatment thereafter, was
the result of a substantial aggravation of a
pre-existing condition and/or was a direct
and natural consequence of the 11 December
2009 injury and was itself thus compensable.
(Citations omitted.) Defendants filed a timely notice of appeal
to this Court.
Analysis
Defendants argue that the Commission erred in concluding
that Plaintiff’s back condition was causally related to his 11
December 2009 injury. We disagree.
Under the Workers’ Compensation Act, the claimant bears the
burden of showing that the injury “arose out of and in the
course of his employment.” Lewis v. W.B. Lea Tobacco Co., 260
N.C. 410, 412, 132 S.E.2d 877, 879 (1963) (emphasis omitted).
To be compensable an injury must spring from
the employment or have its origin therein.
An injury arises out of the employment when
it is a natural and probable consequence or
incident of the employment and a natural
result of one of its risks, so that there is
some causal relation between the injury and
the performance of some service of the
employment.
Perry v. Am. Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d 643,
645 (1964).
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Our review of an Opinion and Award by the Commission is
“limited to consideration of whether competent evidence supports
the Commission's findings of fact and whether the findings
support the Commission's conclusions of law.” Richardson v.
Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d
582, 584 (2008). The Commission’s findings of fact are
conclusive on appeal if supported by competent evidence even if
there is evidence to support contrary findings. Avery v. Phelps
Chevrolet, 176 N.C. App. 347, 353, 626 S.E.2d 690, 694 (2006).
On appeal, this Court will not “weigh the evidence and decide
the issue on the basis of its weight. The court’s duty goes no
further than to determine whether the record contains any
evidence tending to support the finding.” Smith v. Champion
Int’l, 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999)
(citation and quotation marks omitted).
When the Commission relies on expert medical testimony to
make its findings, the expert’s testimony “must be such as to
take the case out of the realm of conjecture and remote
possibility” in order to constitute competent evidence of a
causal relationship between the work-related incident and the
injury. Rogers v. Lowe’s Home Improvement, 169 N.C. App. 759,
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765, 612 S.E.2d 143, 147 (2005) (citation and quotation marks
omitted).
In the present case, among the findings of fact made by the
Commission were the following:
5. Plaintiff had not had any significant
low back problems at any time before 11
December 2009. As of the occurrence of the
incident in this claim, plaintiff was not
having any physical problems, other than
some residual impairment relating to an old
work-related right ankle injury. Plaintiff
was physically active outside of work and
worked out regularly.
. . . .
36. As Dr. Link wrote in a letter dated 20
January 2010, “(Plaintiff) is a patient whom
we are seeing in our office for epidural and
left paraspinous muscle inflammation,
presumed to be an infectious process. This
developed following an injury, which
occurred at work, and I feel is a direct
result of his work-related injury.” At his
deposition, Dr. Link confirmed that he felt
“fairly certain” of his opinion as stated in
the letter.
37. Regarding Dr. Dalton-Bethea’s conclusion
that the infection pre-dated the dolly-
lifting incident and that the incident
merely brought the infection to light — that
essentially plaintiff had a minor back
strain and an infection simultaneously and
that one had nothing at all to do with the
other, or that plaintiff did not even suffer
a minor back strain and just happened to
first notice acute pain from an infection as
he was lifting the dolly — Dr. Link felt
that such a scenario was possible. Dr. Link
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agreed that it was more likely than not that
the infection did pre-date the incident,
although he characterized the question of
when exactly the infection began as
“unanswerable.”
38. When asked in his deposition whether
the dolly-lifting incident had a causal
relationship to the condition for which
plaintiff was hospitalized, Dr. Link stated
that there were two possible scenarios —
that the incident caused bruising, which
pre-disposed plaintiff to the development of
the infection; or that the infection was
already in plaintiff’s system, which made
his low back area vulnerable to an injury
and a specific infection, and the incident
“triggered” plaintiff’s condition. As Dr.
Link further testified, he could not “say
with certainty either way” which scenario
actually occurred. The Full Commission
finds that the occurrence of either scenario
would be compensable, with the first being
an infection that was a direct and natural
result of a physical injury, and the second
being a substantial aggravation of a pre-
existing condition.
. . . .
41. As Dr. Derian testified, plaintiff’s
findings were most consistent with
underlying facet joint degeneration at L4-5
and L5-S1, with degenerative
spondylolisthesis, with a work-related
injury on 11 December 2009, likely resulting
in inflammation in that area, which became
secondarily infected via some other,
unknown, source. As Dr. Derian further
noted, there may have been gout involvement
as well, as plaintiff had gout, which can
degenerate a joint and thus make it more
vulnerable to injury and/or create an
environment where infection can occur.
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. . . .
43. As Dr. Derian testified, the dolly-
lifting incident was a symptomatic
aggravation and/or activation of plaintiff’s
underlying gout-based arthritis, with
subsequent severe inflammation, with or
without infection. This condition
necessitated a very complex sequence of
medical interventions that were required and
that induced gradual improvement in
plaintiff’s condition.
44. The Full Commission accords more weight
to the causation testimony of Drs. Link and
Derian than to that of Drs. Priest and
Dalton-Bethea. Dr. Link was plaintiff’s
treating physician throughout the entire
episode, beginning early in his
hospitalization. Dr. Derian’s specialty is
the lumbar spine, and his testimony about
the complex process that occurred in
plaintiff’s low back in this matter was
thoughtful, cogent and convincing. Dr.
Priest did not become involved in
plaintiff’s treatment until after his
hospitalization. Dr. Dalton-Bethea is a
pain management specialist, while Drs. Link
and Derian bring specialties to bear that
are more directly applicable to the facts of
this claim.
. . . .
46. Plaintiff’s medical treatment for his
low back condition at Forsyth Medical
Center, his hospitalization, and his
treatment and diagnostic testing and imaging
with and/or at the direction of Dr.
Galbreath and the physicians with Infectious
Disease Specialists, through 4 February
2010, was all reasonably required to effect
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a cure, provide relief and/or lessen the
period of plaintiff’s disability.
Based on these factual findings, the Commission made
conclusions of law stating, in pertinent part, as follows:
2. Based upon the preponderance of the
evidence from the entire record, plaintiff
has shown that his continuing low back
condition after 11 December 2009,
specifically the inflammatory process that
required his December 2009 hospitalization
and the ongoing treatment thereafter, was
the result of a substantial aggravation of a
pre-existing condition and/or was a direct
and natural consequence of the 11 December
2009 injury and was itself thus compensable.
. . .
3. Plaintiff has the burden of showing he
is unable to earn the same wages he earned
before the injury, either in the same
employment or in other employment. . . .
Plaintiff can meet this burden in one of
four ways: (1) the production of medical
evidence that he is physically or mentally,
as a consequence of the injury, incapable of
any employment; (2) the production of
evidence that he is capable of some work,
but that he has, after a reasonable effort,
been unsuccessful in obtaining employment;
(3) the production of evidence that he is
capable of some work but that it would be
futile to seek other employment because of
preexisting conditions, i.e., age,
inexperience, lack of education; or (4) the
production of evidence that he has obtained
other employment at a wage less than that
earned prior to the injury. Russell v. Lowes
Product Distrib., 108 N.C. App. 762, 425
S.E.2d 454 (1993).
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4. Plaintiff has met his burden of proving
disability under prong (1) of Russell by
demonstrating that he was entirely unable to
work from 12 December 2009 through 4
February 2010. He is thus entitled to
receive temporary total disability
compensation for said period. N.C. Gen.
Stat. §§ 97-2(9) and 97-29; Russell v. Lowes
Product Distrib., 108 N.C. App. 762, 425
S.E.2d 454 (1993).
Defendants challenge the Commission’s determination that
Plaintiff’s workplace injury caused or exacerbated his back
condition, arguing that the medical testimony in this case was
insufficient to establish causation to the degree required under
the Workers’ Compensation Act. Defendants state in their brief
that they are challenging findings of fact 5, 36-38, 41, 43-44,
and 46 and conclusions of law 2-3. In essence, however, their
entire argument on appeal is that the Commission erred in
relying on the opinions of Drs. Link and Derian because the
opinions expressed by these two doctors were impermissibly
speculative. Therefore, Defendants argue, Plaintiff failed to
establish the causal connection necessary to support a
conclusion that Plaintiff suffered a compensable injury under
the Workers’ Compensation Act. We disagree.
Our Supreme Court has made clear that “(1) the Full
Commission is the sole judge of the weight and credibility of
the evidence, and (2) appellate courts reviewing Commission
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decisions are limited to reviewing whether any competent
evidence supports the Commission's findings of fact and whether
the findings of fact support the Commission's conclusions of
law.” Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000).
Here, the Commission made it clear that it deemed Dr.
Derian’s and Dr. Link’s testimony to be credible. In conclusion
of law 2, the Commission determined that Plaintiff’s lower back
inflammation that resulted in his hospitalization and continued
treatment following discharge “was the result of a substantial
aggravation of a pre-existing condition and/or was a direct and
natural consequence of the 11 December 2009 injury and was
itself thus compensable.” In reaching this conclusion, the
Commission elected to give greater weight to the causation
testimony of Drs. Link and Derian than to that of Drs. Priest
and Dalton-Bethea. In finding of fact 44, the Commission
stated:
Dr. Link was plaintiff’s treating physician
throughout the entire episode, beginning
early in his hospitalization. Dr. Derian’s
specialty is the lumbar spine, and his
testimony about the complex process that
occurred in plaintiff’s low back in this
matter was thoughtful, cogent and
convincing. Dr. Priest did not become
involved in plaintiff's treatment until
after his hospitalization. Dr. Dalton-
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Bethea is a pain management specialist,
while Drs. Link and Derian bring specialties
to bear that are more directly applicable to
the facts of this claim.
Competent evidence supports this finding. When asked if he
had an opinion about whether there was a relationship between
Plaintiff’s injury and his lower back condition, Dr. Derian
testified as follows:
My opinion is that I believe that
[Plaintiff] had underlying degeneration of
facets and the disk areas at L4-5, and L5-
S1, the lower two areas of the low back;
that his lifting injury resulted in . . . an
environment that then subsequently resulted
in an infection. I think it is likely that
he got a hematoma, or that he tremendously
inflamed an area . . . where gout was
involved with his spine. Both infection and
gout are unproven in this case; neither one
of those has been proven, because we don’t
know that that is how it happened, despite
all the treatment . . . like I described
earlier. And that in the absence of injury,
he may have never had these symptoms.
Defendants argue that Dr. Derian’s testimony amounts to
mere speculation concerning the cause of Plaintiff’s condition
and, for this reason, is insufficient to establish causation.
However, in order for expert medical testimony to constitute
competent evidence on which the Commission may rely, “testimony
attesting to medical certainty is not required.” Adams v.
Metals USA, 168 N.C. App. 469, 482-83, 608 S.E.2d 357, 365
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(explaining that “[t]he fact that the treating physician in this
case could not state with reasonable medical certainty that
plaintiff's accident caused his disability, is not dispositive —
the degree of the doctor's certainty goes to the weight of his
testimony” (citation omitted)), aff’d per curiam, 360 N.C. 54,
619 S.E.2d 495 (2005). Rather, as we have stated,
our Supreme Court has created a spectrum by
which to determine whether expert testimony
is sufficient to establish causation in
worker’s compensation cases. Expert
testimony that a work-related injury “could”
or “might” have caused further injury is
insufficient to prove causation when other
evidence shows the testimony to be “a guess
or mere speculation.” However, when expert
testimony establishes that a work-related
injury “likely” caused further injury,
competent evidence exists to support a
finding of causation.
Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 264,
614 S.E.2d 440, 446-47 (citation omitted), disc. review denied,
360 N.C. 61, 621 S.E.2d 177 (2005).
Although Plaintiff had a negative aspirate for infection in
his spine, this did not prevent Dr. Derian, a lumbar spine
specialist, from determining that Plaintiff’s injury likely
caused his lower back condition. Dr. Derian testified that
while
[Plaintiff] is not documented as having an
infection or gout, . . . he had findings
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consistent with either gout or infection
superimposed on degeneration problems of
spondylolisthesis at L4-5, structurally
severe facet joint degeneration at L4-5,
disk degeneration, and spinal stenosis at
L4-5, L5-S1, with a disk rupture.
When asked if he had an opinion concerning whether
Plaintiff’s injury resulted in his ensuing symptoms and
treatment, Dr. Derian answered affirmatively and testified as
follows:
I think that his injury resulted in either
primary inflammation, hematoma, infection,
activation of disk degeneration, infection,
and/or gout, and that this resulted in a
very complex sequence of medical
interventions that were required, including
initial treatment and then the intermediate
recovery period, where inflammation was
diminishing, as documented by MRI scans
twice in 2010, and then the recovery . . . .
“The decision concerning what weight to give expert
evidence is a duty for the Commission and not this Court.”
Adams, 168 N.C. App. at 483, 608 S.E.2d at 365. As long as a
qualified expert “bases his or her opinions on evidence properly
contained in the record, the Commission is entitled to rely on
that testimony in making its decision.” Huffman v. Moore Cty.,
208 N.C. App. 471, 490, 704 S.E.2d 17, 30 (2010) (citation
omitted), disc. review denied, 365 N.C. 328, 717 S.E.2d 397
(2011). Dr. Derian’s testimony was based on his evaluation of
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Plaintiff as well as his review of Plaintiff’s medical records
and constituted more than mere speculation. Thus, the
Commission was permitted to rely on Dr. Derian’s testimony as to
causation.
We likewise reject Defendants’ similar argument regarding
the Commission’s reliance on Dr. Link’s testimony. In his
deposition, when asked whether there was a relationship between
Plaintiff’s injury and his subsequent lower back condition, Dr.
Link testified:
Well, I think it’s an unanswerable question.
You know, I think it’s a possibility that
when he did the lifting he caused some
bruising, and that predisposed him to
getting an infection in that area. I think
it’s also possible that it could have been a
preexisting infection, and when he did the
lifting, it triggered pain because the area
was vulnerable to the infection.
Defendants argue that Dr. Link’s testimony was speculative
because he could not testify to a reasonable degree of medical
certainty which of the two scenarios actually occurred.
However, in finding of fact 38 the Commission recognized that
“the occurrence of either scenario would be compensable, with
the first being an infection that was a direct and natural
result of a physical injury, and the second being a substantial
aggravation of a pre-existing condition.” (Emphasis added.)
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See Smith, 134 N.C. App. at 182, 517 S.E.2d at 166 (holding
work-related injury that aggravated preexisting condition was
compensable under Workers’ Compensation Act).
While there may have been conflicting medical testimony
about the causal relationship between Plaintiff’s low back
condition and his work-related injury, it was for the Commission
to weigh the credibility of the witnesses and render a decision.
The testimony of Drs. Derian and Link served as sufficient
evidence to support the Commission’s findings of fact and
conclusions of law challenged by Defendants. The Commission
chose to give more weight to the testimony of Drs. Derian and
Link than to the testimony of Drs. Dalton-Bethea and Priest. We
lack the authority to second-guess its determination as to the
proper weight to be accorded the medical testimony. See Chavis
v. TLC Home Health Care, 172 N.C. App. 366, 369, 616 S.E.2d 403,
408 (2005) (noting that “[t]he full Commission’s findings of
fact are conclusive on appeal when supported by competent
evidence even if there is evidence to support a contrary
finding” (citation and quotation marks omitted)), appeal
dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006).
Conclusion
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For the reasons stated above, the Commission’s Opinion and
Award is affirmed.
AFFIRMED.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).