Philbeck v. University of Michigan

NO. COA13-911
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
NORLINDA PHILBECK,
Employee,
Plaintiff
v. From The North Carolina
Industrial Commission
I.C. No. X60971
UNIVERSITY OF MICHIGAN,
Employer,
and
STAR INSURANCE COMPANY,
Carrier,
Defendants.
Appeal by defendants from opinion and award entered 25
April 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 8 January 2014.
Bobby L. Bollinger, Jr. for plaintiff-appellee.
Rudisill White & Kaplan, P.L.L.C., by John R. Blythe, for
defendants-appellants.
DAVIS, Judge.
University of Michigan and Star Insurance Company
(collectively “Defendants”) appeal from the Opinion and Award of
the North Carolina Industrial Commission (“the Commission”)
awarding Norlinda Philbeck (“Plaintiff”) workers’ compensation
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benefits. The primary issue before us is whether the Commission
erred in concluding that Plaintiff’s accident was due to an
unexplained fall and, therefore, compensable. After careful
review, we affirm the Commission’s Opinion and Award.
Factual Background
Plaintiff is a 67-year-old woman who was employed at the
time of her injury by the University of Michigan as a field
interviewer in social sciences research. Plaintiff’s job duties
required her to travel from her home in North Carolina to
various locations on the East Coast to interview potential
participants for a research study. Plaintiff would travel to an
assigned location and interview randomly selected individuals.
On 8 August 2011, Plaintiff was in Columbia, Maryland
conducting interviews for the study. Plaintiff visited a small
apartment complex and attempted to interview one of the
residents. When she discovered that the resident was not
eligible to participate in the study, Plaintiff began walking
back to her vehicle. On the way to her vehicle, Plaintiff fell
and fractured her left arm near her wrist. At the hearing
before the deputy commissioner, Plaintiff testified: “I don’t
know why I fell. . . . I might have stumbled. I don’t know what
happened. . . . Seconds after I hit the ground I think that I –
I was kind of dazed. I think I might have been on the ground a
few seconds and then I looked at my arm and I could see that it
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was knocked out of place. It was deformed.”
Plaintiff was transported to Laurel Regional Hospital for
treatment, and medical personnel administered various tests in
an effort to determine why she had fallen. Plaintiff testified
that the emergency room staff “didn’t know why [she] fell” and
“said there was no medical reason.” Medical records from the
emergency room indicated that Plaintiff had suffered a fall, was
unable to explain what caused her to fall, and had experienced a
loss of consciousness. Dr. Michael E. Carlos, one of her
treating physicians at Laurel Regional Hospital, noted that
“vasovagal mechanism” was the “most likely reason for the
syncope [loss of consciousness]” and that the injury to
Plaintiff’s arm was a “left radioulnar fracture.”
Dr. Neveen Habashi (“Dr. Habashi”), Plaintiff’s primary
care physician since 2006, reviewed Plaintiff’s medical records
from Laurel Regional Hospital and opined that Plaintiff’s fall
was caused by heat exhaustion. Dr. Habashi was not, however,
able to state with a reasonable degree of medical certainty that
heat exhaustion was the cause of Plaintiff’s fall. Instead, Dr.
Habashi noted that since Plaintiff had “no underlying medical
problems that would predispose her” to falling and passing out,
Plaintiff’s fall was likely “environmentally related.” Dr.
Habashi also acknowledged that at the time she concluded that
Plaintiff’s fall was probably heat related, she was not aware of
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the note on Plaintiff’s intake records from the hospital stating
that Plaintiff “was not overheating.”
When Plaintiff returned to North Carolina, she sought
treatment for her left arm from Dr. Mark McGinnis (“Dr.
McGinnis”), an orthopedic surgeon. Dr. McGinnis surgically
repaired the fracture on 15 August 2011 using a dorsal plate and
seven surgical screws. Plaintiff subsequently had numerous
follow-up visits with Dr. McGinnis. Dr. McGinnis took Plaintiff
out of work until 6 September 2011, at which time he released
her to work with a one-pound lifting restriction for her left
arm. On 18 October 2011, Dr. McGinnis placed Plaintiff on a
left arm lifting restriction of no more than 20 pounds. On 12
December 2011, Dr. McGinnis concluded that Plaintiff had reached
maximum medical improvement and released Plaintiff to work
without restrictions.
Plaintiff filed a Form 18 seeking workers’ compensation
benefits in connection with her 8 August 2011 fall, and on 15
November 2011, Defendants denied Plaintiff’s claim on the basis
that the “alleged injuries were a result of [an] idiopathic
condition.” The matter was heard by Deputy Commissioner Phillip
A. Holmes on 22 May 2012. Deputy Commissioner Holmes filed an
opinion and award on 22 October 2012 concluding that Plaintiff’s
injury was “due to factors that were not job related” and
denying her claim for workers’ compensation benefits.
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Plaintiff appealed, and the Full Commission heard the
matter on 1 March 2013. In its Opinion and Award filed on 25
April 2013, the Commission, with one commissioner dissenting,
reversed the deputy commissioner and awarded Plaintiff temporary
total disability benefits. Defendants appealed to this Court.
Analysis
I. Compensability of Plaintiff’s Injury
Our review of an opinion and award of the Industrial
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). When reviewing the Commission’s
findings of fact, this Court’s “duty goes no further than to
determine whether the record contains any evidence tending to
support the finding[s].” Id. (citation and quotation marks
omitted).
The findings of fact made by the Commission are conclusive
on appeal if supported by competent evidence even if there is
also evidence that would support a contrary finding. Nale v.
Ethan Allen, 199 N.C. App. 511, 514, 682 S.E.2d 231, 234, disc.
review denied, 363 N.C. 745, 688 S.E.2d 454 (2009). The
Commission’s conclusions of law, however, are reviewed de novo.
Gregory v. W.A. Brown & Sons, 212 N.C. App. 287, 295, 713 S.E.2d
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68, 74, disc. review denied, ___ N.C. ___, 719 S.E.2d 26 (2011).
Evidence supporting the plaintiff’s claim is to be viewed in the
light most favorable to the plaintiff, and the plaintiff is
entitled to the benefit of any reasonable inferences that may be
drawn from the evidence. Adams v. AVX Corp., 349 N.C. 676, 681,
509 S.E.2d 411, 414 (1998).
Under the Workers’ Compensation Act, an injury is
compensable if the claimant proves three elements: “(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.” Hedges v. Wake Cty. Pub.
Sch. Sys., 206 N.C. App. 732, 734, 699 S.E.2d 124, 126 (2010)
(citation and quotation marks omitted), disc. review denied, ___
N.C. ___, 705 S.E.2d 746 (2011). Here, Defendants acknowledge
that Plaintiff’s injury was (1) caused by an accident; and (2)
sustained in the course of her employment. However, the
Commission erred in awarding compensation, they argue, because
the injury did not arise out of Plaintiff’s employment.
Specifically, they contend that Plaintiff fell because she
fainted and, as such, her injury could not be deemed compensable
under the doctrine of “unexplained falls.”
In a workers’ compensation case, if the cause or origin of
a fall is unknown or undisclosed by the evidence, “we apply case
law unique to unexplained fall cases. When a fall is
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unexplained, and the Commission has made no finding that any
force or condition independent of the employment caused the
fall, then an inference arises that the fall arose out of the
employment.” Id. at 736, 699 S.E.2d at 127. This inference is
permitted because when the cause of the fall is unexplained such
that “[t]here is no finding that any force or condition
independent of the employment caused or contributed to the
accident[,] . . . the only active force involved [is] the
employee’s exertions in the performance of his duties.” Id.(citation omitted).
Unexplained falls, however, are differentiated in our case
law from falls associated with an idiopathic condition of the
employee. “An idiopathic condition is one arising spontaneously
from the mental or physical condition of the particular
employee.” Hodges v. Equity Grp., 164 N.C. App. 339, 343, 596
S.E.2d 31, 35 (2004) (citation and quotation marks omitted).
Unlike a fall with an unknown cause — where “an inference that
the fall had its origin in the employment is permitted” — a fall
connected to an idiopathic condition is not presumed to arise
out of the employment. Id. at 344, 596 S.E.2d at 35 (citation
and quotation marks omitted). Instead, the compensability of an
injury caused by a fall associated with an idiopathic condition
is determined as follows:
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(1) Where the injury is clearly attributable
to an idiopathic condition of the employee,
with no other factors intervening or
operating to cause or contribute to the
injury, no award should be made; (2) Where
the injury is associated with any risk
attributable to the employment, compensation
should be allowed, even though the employee
may have suffered from an idiopathic
condition which precipitated or contributed
to the injury.
Hollar v. Montclair Furniture Co., 48 N.C. App. 489, 496, 269
S.E.2d 667, 672 (1980).
Defendants argue that Plaintiff’s injury was not
compensable because her fall (1) was a result of an idiopathic
condition; and (2) was not associated with any risk attributable
to her employment. In making this argument, Defendants rely
primarily on Hollar. In Hollar, the plaintiff was working in an
“extremely hot” and poorly ventilated work environment when she
“suddenly, for an unexplained reason, felt as if she were
passing out.” Id. at 490, 269 S.E.2d at 669. The plaintiff
fainted, fell to the floor, and struck her back. The Commission
concluded that the plaintiff’s injury was not compensable, and
she appealed to this Court. Id. at 489, 269 S.E.2d at 668.
On appeal, we first noted that the plaintiff’s fall “d[id]
not come within the ‘unexplained’ category of falls” because “it
[was] clear that [the] plaintiff fell because she fainted.” Id.
at 491, 269 S.E.2d at 669. Consequently, we determined that the
compensability of the plaintiff’s claim turned on why she
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fainted — specifically, “whether [her] fainting was caused in
any part by the conditions or circumstances of her employment.”
Id. at 497, 269 S.E.2d at 672. Because the record was devoid of
any medical evidence as to why the plaintiff fainted, we
remanded the matter to the Commission so that it could determine
if the plaintiff’s fainting was caused solely by an idiopathic
condition or if it was in some way associated with the
conditions of her employment. Id.Defendants contend that this Court’s decision in Hollar is
controlling in the present case. As such, they argue that the
Commission erred in applying the law of unexplained falls to
Plaintiff’s claim. We disagree.
Here, in determining that Plaintiff’s injury arose from her
employment and was therefore compensable, the Commission made
the following pertinent findings of fact:
4. The fall on August 8, 2011, occurred
while Plaintiff was walking in a parking lot
after the conclusion of an attempted
interview at an apartment complex.
Plaintiff had been out of her car for
approximately 10 to 15 minutes when she
fell. Plaintiff does not recall what, if
anything, caused her to fall. She did not
recall any broken pavement or objects that
caused her fall.
5. Immediately after the fall, Plaintiff was
taken by an ambulance and admitted to Laurel
Regional Hospital, whereupon she informed
her medical providers that “she was not
overheated” prior to the fall. She was
unable to tell the Emergency Room staff why
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she fell. The ambulance crew that
transported Plaintiff interviewed an unnamed
witness at the scene of the fall, who
reported that she did not see any obvious
reason to cause Plaintiff’s fall.
6. While admitted to Laurel Regional
Hospital, Dr. Michael E. Carlos, treated
Plaintiff and noted that “vasovagal
mechanism” was the “most likely reason for
the syncope” and that dehydration
“predisposed her to vasovagal syncope.”
. . . .
8. On August 19, 2011, Plaintiff treated
with her primary care physician, Dr. Naveen
Habashi. Dr. Habashi opined that Plaintiff
fainted and fell due to exposure to
environmental elements, such as overheating.
Dr. Habashi also opined that the facts
related to Plaintiff’s food and fluid intake
prior to the fall were “consistent with a
person potentially suffering from a
dehydration condition,” and that dehydration
contributed to Plaintiff’s fainting.
However, Dr. Habashi was not able to testify
to a reasonable degree of medical certainty
that heat exhaustion, dehydration, or any
other medical condition caused Plaintiff’s
fall. The Full Commission finds Dr.
Habashi’s testimony to be speculative with
regard to the cause of Plaintiff’s fall and
assigns little weight to the opinions of Dr.
Habashi. Dr. Habashi testified that the
diagnosis made by Dr. Carlos of “vasovagal
mechanism” is a non-specific diagnosis and
by itself, it does not explain why Plaintiff
fell.
. . . .
12. Plaintiff at various times has
speculated that she may have fallen due to
being overheated, dehydrated, or stressed,
but Plaintiff consistently reported and
testified that she actually does not know
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what caused her to fall. Based upon the
preponderance of the credible evidence of
record, the Full Commission finds that there
is insufficient evidence that Plaintiff was
overheated due to her work environment, and
there is insufficient evidence that
Plaintiff fainted and fell due to heat
exhaustion.
13. Plaintiff recalled the sight of almost
hitting the ground and seeing her deformed
wrist immediately after the fall while lying
on the ground. Plaintiff testified that she
may have been dehydrated on August 8, 2011,
because she did not eat or drink any fluids
between breakfast at 8:00 a.m. and the fall
which occurred at 2:30 p.m., but there is
insufficient medical evidence to support a
finding that she fell due to dehydration.
14. The Full Commission finds that
Plaintiff’s fall was due to factors that
were not disclosed by the evidence, and that
her fall was unexplained. There was no
competent medical opinion evidence presented
to establish a medical or idiopathic reason
for her fall.
Based on these findings, the Commission concluded as a matter of
law that “Plaintiff’s unexplained fall on August 8, 2011,
constitute[d] a compensable injury by accident.”
Contrary to Defendants’ contention, Hollar is
distinguishable from the present case. In Hollar, the fact that
it was the plaintiff’s fainting episode that caused her to fall
and sustain an injury was uncontroverted. Hollar, 48 N.C. App.
at 491, 269 S.E.2d at 669. Here, conversely, the Commission
found that the medical evidence did not sufficiently establish
the cause of Plaintiff’s fall. Furthermore, the Commission
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declined to make a finding that Plaintiff did, in fact, faint.
We believe that based on the conflicting evidence in the record,
the absence of such a finding was permissible.
Plaintiff stated on several occasions that she does not
know why she fell. While at various times she speculated that
she could have been overheated, dehydrated, or stressed at the
time she fell, she provided no consistent explanation of the
reason for her fall. The medical evidence suggests that
Plaintiff suffered a loss of consciousness at some point but
fails to provide clarity as to whether Plaintiff fell because
she fainted. The Commission determined that the testimony
offered by Dr. Habashi regarding the possible cause of
Plaintiff’s fall was speculative and assigned that testimony
little weight. The Commission therefore concluded that there
was insufficient credible evidence that Plaintiff fell due to
heat exhaustion or dehydration.
It is well established that the Commission “is the sole
judge of the credibility of the witnesses and the weight to be
given their testimony.” Deese v. Champion Int’l Corp., 352 N.C.
109, 115, 530 S.E.2d 549, 552 (2000) (citation and quotation
marks omitted). As such, its determinations regarding the
credibility of witnesses or the weight certain evidence is to be
accorded are not reviewable on appeal. See Seay v. Wal-Mart
Stores, Inc., 180 N.C. App. 432, 434, 637 S.E.2d 299, 301 (2006)
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(“This Court may not weigh the evidence or make determinations
regarding the credibility of the witnesses.”).
The Commission’s findings that Plaintiff “does not know
what caused her to fall” and “recalled the sight of almost
hitting the ground” are supported by competent record evidence.
Furthermore, these findings were not challenged by Defendants on
appeal and are thus binding on this Court. See Allred v.
Exceptional Landscapes, Inc., ___ N.C. App. ___, ___, 743 S.E.2d
48, 51 (2013) (“Unchallenged findings of fact are presumed to be
supported by competent evidence and are binding on appeal.”).
The Commission’s findings as to the appropriate weight and
consideration to be accorded to the medical evidence regarding
the various theories of why Plaintiff might have fallen are
within its discretion as the trier of fact, and this Court is
“not at liberty to reweigh the evidence and to set aside the
findings of the Commission, simply because other inferences
could have been drawn and different conclusions might have been
reached.” Hill v. Hanes Corp., 319 N.C. 167, 172, 353 S.E.2d
392, 395 (1987) (citation and quotation marks omitted).
Once the Commission determined that the evidence suggesting
Plaintiff’s fall occurred because of heat exhaustion or
dehydration was speculative and entitled to little to no weight,
there was no remaining evidence regarding the cause or origin of
her fall. Consequently, we cannot conclude that the Commission
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erred in its ultimate determination that Plaintiff’s fall was
unexplained and “due to factors that were not disclosed by the
evidence.” See Sheenan v. Perry M. Alexander Constr. Co., 150
N.C. App. 506, 514, 563 S.E.2d 300, 305 (2002) (explaining that
Commission is sole judge of weight and credibility of evidence
and, as such, may accord less weight to testimony of medical
expert if it determines that expert’s opinions are based on
inaccurate account of circumstances surrounding injury).
Thus, the Commission’s findings that (1) Plaintiff does not
know why she fell; and (2) the medical theories explaining the
various possible causes of her fall were speculative and
unsupported by sufficient evidence, support its legal conclusion
that Plaintiff’s fall was unexplained. See Slizewski v. Int’l
Seafood, Inc., 46 N.C. App. 228, 232, 264 S.E.2d 810, 813 (1980)
(holding that workers’ compensation claim was compensable where
plaintiff could not recall why he fell and “[t]he evidence, or
lack thereof, on the cause of the fall is sufficient to sustain
the finding that the cause of the fall was unknown”). As such,
we affirm the Commission’s determination that Plaintiff’s injury
was compensable.
II. Temporary Total Disability Benefits
Defendants next assert that the Commission erred in
awarding Plaintiff temporary total disability benefits beyond 12
December 2011, the date Plaintiff was released to return to work
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without any permanent restrictions. Defendants argue that as of
that date she could no longer establish that her injury was
affecting her ability to earn her pre-injury wage and that, for
this reason, an award of temporary total disability benefits was
improper. We disagree.
“The term ‘disability’ means incapacity because of injury
to earn the wages which the employee was receiving at the time
of injury in the same or any other employment.” N.C. Gen. Stat.
§ 97-2(9) (2013). Accordingly, to 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.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982). A claimant may prove the first two elements of
disability through several methods, including
(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
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be futile because of preexisting
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.
Russell v. Lowes Prod. Distrib’n, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (internal citations omitted); see Medlin
v. Weaver Cooke Constr., LLC, ___ N.C. ___, ___ S.E.2d ___, slip
op. at 12-13 (No. 411A13) (filed Jun. 12, 2014) (explaining that
plaintiff “may prove the first two elements through any of the
four methods articulated in Russell, but these methods are
neither statutory nor exhaustive”). “In addition, a claimant
must also satisfy the third element, as articulated in Hilliard,
by proving that his inability to obtain equally well-paying work
is because of his work-related injury.” Medlin, ___ N.C. ___,
___ S.E.2d ___, slip op. at 13.
“The absence of medical proof of total disability . . .
does not preclude a finding of disability under one of the other
three Russell tests.” Britt v. Gator Wood, Inc., 185 N.C. App.
677, 684, 648 S.E.2d 917, 922 (2007) (citation, quotation marks,
and brackets omitted) (concluding that plaintiff could still be
disabled under second or third prong of Russell test despite
being released to work without restrictions). Here, citing
Hilliard, the Commission found Plaintiff had proved that — as a
result of her injury and despite a reasonable effort on her part
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— she was unable to obtain suitable employment within her
restrictions. Specifically, the Commission found that once
Plaintiff was released to return to work, the University of
Michigan did not have a job available for her and that Plaintiff
“engaged in an unsuccessful, reasonable job search after being
released to work with restrictions, but received no job offers.”
The Commission further found that Plaintiff’s reasonable job
search continued until 2 February 2012, when she refused
suitable employment offered to her by the University of
Michigan. As such, the Commission concluded that Plaintiff
“suffered a loss in wage earning capacity as a result of her
compensable injury . . . through February 2, 2012” but “has
failed to prove any loss of wage earning capacity as a result of
her compensable August 8, 2011 injury after February 2, 2012.”
These findings are supported by Plaintiff’s testimony
regarding both her job search and her ongoing experience with
pain and range-of-motion limitations after being released to
work. See Davis v. Hospice & Palliative Care of Winston-Salem,
202 N.C. App. 660, 670, 692 S.E.2d 631, 638 (2010) (“In addition
to medical testimony, an employee’s own testimony that he is in
pain may be evidence of disability.” (citation and quotation
marks omitted)). Nor do Defendants specifically challenge these
findings. As such, they are binding on appeal. See Strezinski
v. City of Greensboro, 187 N.C. App. 703, 706, 654 S.E.2d 263,
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265 (2007) (“Findings of fact that are not challenged on appeal
are binding on this Court.”), disc. review denied, 362 N.C. 513,
668 S.E.2d 783 (2008). Because the Commission’s findings of
fact support its conclusion that Plaintiff established that she
was unable to earn her pre-injury wage in the same or any other
employment from 12 December 2011 to 2 February 2012 under the
second prong of Russell and that Plaintiff’s inability to earn
her pre-injury wage was caused by her injury, we overrule
Defendants’ argument and affirm the Commission’s award of
temporary total disability benefits to Plaintiff.
Conclusion
For the reasons stated above, we affirm the Commission’s
Opinion and Award.
AFFIRMED.
Judges STEELMAN and STEPHENS concur.