An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-932 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
MARY B. BENTLEY, Employee, Plaintiff,
v. North Carolina Industrial Commission I.C. No. 609188 REVLON, INC., Employer, and CNA INSURANCE COMPANY, Carrier, Defendants.
MARY B. BENTLEY, Employee, Plaintiff
v. North Carolina Industrial Commission I.C. No. X22096 REVLON, INC., Employer, and ESIS INSURANCE COMPANY, Carrier, Defendants.
Appeal by Plaintiff from opinion and award entered 13 March
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 23 January 2014.
Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and George W. Lennon, for Plaintiff.
Teague Campbell Dennis & Gorham, L.L.P., by Carla M. Cobb and Heather T. Baker, for Defendants.
DILLON, Judge. -2-
Mary B. Bentley (Plaintiff) appeals from an opinion and
award of the North Carolina Industrial Commission (Full
Commission or Commission) (1) denying her claim for total
disability benefits pertaining to a compensable injury by
accident that she sustained on 28 December 1995 (1995 injury)
while working within the scope of her employment with Defendant
Revlon, Inc. (Revlon); and (2) denying her subsequent claim that
she developed an occupational disease as a result of performing
her various job duties during her career at Revlon. For the
following reasons, we affirm.
I. Factual & Procedural Background
The evidence presented before the Commission tended to show
the following: Plaintiff was employed by Revlon, or its
corporate predecessors, from 1983 to 2011. Plaintiff was
initially hired as an Inventory Technician to perform assembly
work.
From 1995 to 1999, Plaintiff worked as a Group Packaging
Leader. On 28 December 1995, Plaintiff sustained serious injury
to her head, neck, right shoulder, and arm, when she was struck
in the face multiple times by an air hose. Plaintiff sought
treatment from several doctors following the 1995 injury, -3- including Dr. Robert Price, who, in 2000, noted that Plaintiff
had also developed mild carpel tunnel syndrome.
In an opinion and award entered 17 March 2003, the
Commission ordered that Revlon pay all medical compensation
necessitated by the 1995 injury. The 2003 opinion and award
expressly left open the “issue of what, if any, permanent
partial disability compensation shall be payable to plaintiff .
. . until such time as plaintiff reaches maximum medical
improvement.”
From 1999 to 2007, Plaintiff worked as a Packaging Services
Clerk, which generally required her to use both hands to package
daily work orders and to perform data entry, though she was
assigned certain work restrictions by Dr. Daphne Cates at Vance
Family Medicine, who was treating Plaintiff for migraine
headaches, chronic sinusitis, and neck pain associated with her
1995 injury.
In January 2007, Plaintiff was promoted to the position of
Inventory Technician II, where she worked until she left her
employment with Revlon in 2011. Revlon modified the job duties
ordinarily associated with the Inventory Technician II position
to accommodate Plaintiff’s condition and work restrictions. In
this new position, Plaintiff performed tasks such as keying in -4- data, putting together work folders, and delivering the work
folders to the manufacturing floor.
On 1 December 2010, Plaintiff presented for treatment at
Raleigh Orthopaedic Clinic, where she was evaluated by a hand
specialist, Dr. Harrison G. Tuttle. Plaintiff reported to Dr.
Tuttle that she had been experiencing increasing pain throughout
her right upper extremity over the course of the past year and
that she believed that her pain was “directly associated with
work.” At that time, Dr. Tuttle completed a “Repetitive Motion
Medical Questionnaire” in which he indicated that Plaintiff’s
job duties placed her at an increased risk of developing, and
caused or significantly contributed to, Plaintiff’s repetitive
motion related injuries, namely, tenosynovitis, tendonitis, and
carpal tunnel syndrome on her right side.
On 6 January 2011, Plaintiff filed an occupational disease
claim with the Commission, citing upper extremity conditions
caused by the repetitive nature of her job duties. Revlon
thereafter filed a Form 61 denying Plaintiff’s claim, contending
that Plaintiff had “not sustain[ed] an occupational disease as
[defined] by the NC Worker’s Compensation Act” and that
Plaintiff’s “job did not cause and/or place her at an increased
risked to develop her [alleged] conditions.” -5- Plaintiff worked intermittently at Revlon following her
December 2010 appointment with Dr. Tuttle and had stopped
working altogether by March 2011 due to her physical condition.
Plaintiff’s claim for disability compensation relating to
the 1995 injury and her separate occupational disease claim were
consolidated and scheduled for hearing before Deputy
Commissioner George R. Hall, III, on 3 November 2011. On 28
October 2011, counsel for Revlon provided Plaintiff’s counsel
with a video of an individual performing the job duties required
of an Inventory Technician II, the position in which Plaintiff
held from 2007-2011, along with a written job description for
that position. Both the video and the written job analysis were
compiled by Gina Vieceli, a vocational rehabilitation
specialist.
Plaintiff requested permission to introduce her own video
evidence, depicting the job duties associated with the positions
she had held at Revlon prior to 2007 when she assumed the
Inventory Technician II position. The Deputy Commissioner
indicated that he would rule on Plaintiff’s request at a later
date, should Plaintiff still wish to present countering evidence
upon reviewing Revlon’s video and job analysis. -6- Following the hearing, the Deputy Commissioner informed the
parties that the record would remain open until 3 February 2012
“to obtain . . . the medical and lay evidence necessary to
complete the record.” Plaintiff deposed Dr. Tuttle, who
testified that he had diagnosed Plaintiff with tenosynovitis,
dorsal wrist tendinitis, and carpel tunnel and that, in his
opinion, Plaintiff’s work at Revlon caused these maladies.
Plaintiff also deposed Dr. Cates, who opined that Plaintiff was
more likely than not permanently and totally disabled due to the
combined effect of her hand and arm conditions with the chronic
headaches, sinusitis, and neck pain resulting from the 1995
injury and that Plaintiff could no longer perform her job.
Defendant deposed Ms. Vieceli and Dr. George Edwards, an
orthopedic surgeon who specializes in hand and upper extremity
surgery, who testified that, in his opinion, there was no
evidence of any “strenuous or repetitive motions [associated
with the Inventory Technician II position, which Plaintiff held
beginning in 2007] that would be expected to cause” Plaintiff’s
upper extremity conditions.
On 9 February 2012 – six days after the deadline imposed by
the Deputy Commission to present evidence - Plaintiff moved to
present video evidence of her job duties for the positions she -7- held at Revlon prior to 2007, to which Revlon objected. The
Deputy Commissioner denied Plaintiff’s motion.
On 23 July 2012, the Deputy Commissioner entered an opinion
and award in Plaintiff’s favor on both her claims, determining
that Plaintiff’s upper extremity conditions constituted
compensable occupational diseases and that the evidence
established that Plaintiff had been “totally disabled since
March 23, 2011 and that this disability [was] related to both
her 1995 and 2010 workers’ compensation claims.”
Revlon appealed to the Full Commission, and Plaintiff’s
claims came on for hearing on 29 November 2012. On 12 December
2012, the Commission requested that Revlon submit a proposed
opinion and award. In the wake of this request, Plaintiff
contacted the Commission and requested that “if the Commission
[was] not satisfied with the amount of evidence regarding the
nature of [her] job duties, . . . the record be reopened to
allow the videotaping of all of the jobs [she] performed for
[Revlon] . . . .”
On 13 March 2013, the Commission entered an opinion and
award – with one member dissenting without written opinion –
reversing the Deputy Commissioner’s decision. In its ruling,
the Full Commission (1) denied Plaintiff’s request to present -8- videotape evidence depicting her job duties prior to 2007; (2)
denied Plaintiff’s request for additional temporary partial or
temporary total disability benefits relating to her 1995 injury;
(3) awarded Plaintiff medical benefits pertaining to her 1995
injury to the extent of her permanent partial impairment
ratings, a matter that had been left open for determination by
the Commission’s 2003 opinion and award; and (4) denied
Plaintiff’s occupational disease claim, concluding that
Plaintiff had “failed to establish that she suffers from a
compensable occupational disease within the meaning of N.C. Gen.
Stat. § 97-53.” From this opinion and award, Plaintiff appeals.
II. Analysis
Our review of the Commission’s opinion and award is
generally limited to a determination of whether competence
evidence supports the Commission’s findings of fact and whether
such findings are sufficient to support the Commission’s
conclusions of law. Legette v. Scotland Mem'l Hosp., 181 N.C.
App. 437, 442, 640 S.E.2d 744, 748 (2007). Findings supported
by competent evidence are binding on appeal, “even if the
evidence might also support contrary findings. The Commission’s
conclusions of law are reviewable de novo.” Id. at 442-43, 640
S.E.2d at 748 (citations omitted). -9- In the present case, Plaintiff appeals from the
Commission’s opinion and award denying her occupational disease
claim and denying her claim for total disability benefits
pertaining to her 1995 injury. We address each claim separately
below.
A. Occupational Disease Claim
Plaintiff first argues that the Commission erred in denying
her occupational disease claim. We disagree.
A claimant seeking relief under the Workers’ Compensation
Act bears “the burden of proving each element of
compensability[.]” Holley v. ACTS, 357 N.C. 228, 234, 581
S.E.2d 750, 754 (2003). An individual seeking benefits for an
occupational disease must prove, inter alia, that there exists
“a causal relationship between the disease and the employment.”
Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101,
105-06 (1981).
Here, the Commission denied Plaintiff’s occupational
disease claim, reasoning that Plaintiff had failed to present
competent evidence on the issue of causation. Specifically, the
Commission concluded that “the exact nature and probable
genesis” of Plaintiff’s condition “involved complicated medical
questions” such that “only an expert can give competent opinion -10- evidence as to the cause.” See Click v. Freight Carriers, 300
N.C. 164, 265 S.E.2d 389 (1980) (holding that evidence in the
form of expert testimony is required to meet an employee’s
burden of proof where the cause of the employee’s condition
involves complex medical questions “far removed from the
ordinary experience and knowledge of laymen”). The Commission
further found that the expert opinion concerning this issue
provided by Plaintiff’s expert, Dr. Tuttle, was speculative and
inconsistent” and, therefore, did “not constitute sufficient
medical evidence to satisfy Plaintiff’s burden of proof
[regarding causation].” See Young v. Hickory Bus. Furn., 353
N.C. 227, 538 S.E.2d 912 (2000) (holding that expert opinion
based on speculation and conjecture is “not sufficiently
reliable to qualify as competent evidence on issues of medical
causation”). We believe that these conclusions – that Plaintiff
failed to meet her burden of presenting competent evidence to
support an essential element of her claim, namely causation –
supports the Commission’s decision to deny her occupational
disease claim.
Further, we believe that the Commission made sufficient
findings to support its conclusions. Specifically, the
Commission found as follows: -11- 27. Dr. Tuttle admitted at his deposition that he could not state how repetitive Plaintiff’s jobs were and that he could not remember if he ever knew how repetitive her jobs were. Dr. Tuttle also admitted that his opinions “were based on [Plaintiff’s] descriptions of her job to me” and that he did not recall specifically what Plaintiff had told him about her jobs as it was never documented in his notes. . . .
28. Based on the preponderance of the evidence of record, the Full Commission finds that Dr. Tuttle’s opinions pertaining to “increased risk” and causation were not based on a sufficient understanding of the specific exact duties required in Plaintiff’s various positions with employer and were not based on a sufficient understanding of the frequency in which those duties were performed.
The Commission determined, essentially, that Dr. Tuttle had
expressed an opinion that the repetitive nature of Plaintiff’s
job duties had been a cause of her upper extremity conditions,
but that Dr. Tuttle could not recall precisely what Plaintiff’s
job duties were or the repetitiveness with which Plaintiff had
performed them.
Finally, we believe there was competent evidence in the
record to support the Commission’s findings concerning Dr.
Tuttle’s opinion, specifically in Dr. Tuttle’s deposition
testimony. Plaintiff argues that during his deposition, Dr.
Tuttle testified that “he spoke at length to [Plaintiff] about -12- her work”; that he had been provided with descriptions of the
job duties for the various positions that Plaintiff had held;
that “both the weight involved and the repetitive nature of the
upper extremities activities contribute[d] to the development of
[Plaintiff’s] medical conditions”; and that it was his opinion
that, “to a reasonable degree of medical probability,
[Plaintiff’s job duties] were a substantial contributing factor
in the onset of her [occupational disease.]” Defendants,
however, point to the following portions of Dr. Tuttle’s
testimony on cross-examination, in which Dr. Tuttle indicates
his inability to recall Plaintiff’s job duties or whether
Plaintiff had ever informed him of the repetition with which she
had performed those duties:
Q: When you completed [the Repetitive motion medical questionnaire in] December 2010, did you even know what [Plaintiff’s] job duties were?
[Dr. Tuttle]: . . . [S]he described her work duties. I don’t remember if she described it comprehensively, but she went over them with me.
. . . .
Q.: . . . [W]ould that change your opinions about whether or not her job placed her at an increased risk of developing . . . ?
[Dr. Tuttle]: It just depends on the amount of repetition that she actually had to do. -13-
Q: But you don’t know exactly how often or how repetitive her job duties were?
[Dr. Tuttle]: At this particular second I can’t tell you.
Q: Have you ever known?
[Dr. Tuttle]: I don’t remember. She may have gone over that with me.
Q: And you don’t know how many times she was doing particular functions; is that correct?
[Dr. Tuttle]: At this point, I don’t. . . . [A]t this point I don’t remember the details.
Q: What did she tell you about her job?
[Dr. Tuttle]: I don’t remember.
Q: Okay. Was it ever documented in your notes?
[Dr. Tuttle]: Doesn’t look like it.
While we recognize that the record reveals evidence indicating
that Dr. Tuttle may have had some understanding of Plaintiff’s
job duties, and the repetitive nature with which she had
performed those duties, the foregoing testimony constitutes -14- evidence in support of the Commission’s findings concerning Dr.
Tuttle’s lack of factual basis for his opinion.
Plaintiff advances two arguments to support her contention
that the Commission erred in decision to deny her occupational
disease claim. Plaintiff first argues that the Commission
“abused its discretion by simultaneously finding Plaintiff did
not present enough evidence of her job duties while also denying
her motion to videotape her job duties.” Second, Plaintiff
argues that the Commission erred by not making findings “about
the corroborating evidence in this case, including both Revlon’s
job descriptions of plaintiff’s jobs in the 1980’s and 1990’s
and the testimony of [a lay witness who gave fact testimony
regarding Plaintiff’s job duties].” However, even assuming
arguendo, that Plaintiff is correct in her arguments, we hold
that the Commission’s failure to consider Plaintiff’s proposed
additional evidence – which, Plaintiff avers, would have
provided the Commission’s with a better understanding of her job
duties and the repetitive nature thereof – did not constitute
reversible error. Specifically, the Commission properly
determined that, due to the complicated medical questions
involved, Plaintiff was required to present expert testimony in
order to meet her burden of proof with respect to the element of -15- causation. In other words, the Commission’s decision to deny
Plaintiff’s claim did not rest upon any failure by the
Commission to understand the repetitive nature of Plaintiff’s
job duties, but rather upon Plaintiff’s failure to present
medical testimony from an expert witness who demonstrated an
understanding of Plaintiff’s job duties sufficient to form a
credible opinion concerning the plausibility that such duties
caused Plaintiff’s upper extremity conditions. Notably,
Plaintiff does not contest the Commission’s conclusion that Dr.
Tuttle’s testimony was speculative and, as such, insufficient to
satisfy Plaintiff’s burden in proving causation through the
opinion of an expert. Accordingly, Plaintiff’s arguments, even
if correct, do not warrant reversal of the Commission’s decision
to deny her occupational disease claim.
B. 1995 Injury and Permanent Disability Benefits
Plaintiff next contends that the Commission erred in
denying her claim for additional temporary partial or temporary
total disability benefits pertaining to her 1995 injury. We
disagree.
“Disability” for workers’ compensation purposes “means
incapacity because of injury to earn the wages which the
employee was receiving at the time of injury in the same or any -16- other employment.” N.C. Gen. Stat. § 97-2(9) (2011). In the
present case, Plaintiff seeks “additional” total disability
benefits, in that the Commission has previously awarded
Plaintiff – via its 2003 opinion and award – total disability
benefits pertaining to the 1995 injury for certain time periods
between October 1996 and May 1998. To prove the existence of a
disability, Plaintiff was required to demonstrate each of the
following:
(1) that [she] was incapable after [her] injury of earning the same wages [she] had earned before [her] injury in the same employment, (2) that [she] was incapable after [her] injury of earning the same wages [she] had earned before [her] injury in any other employment, and (3) that [her] incapacity to earn was caused by [her] injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982). Further, a claimant such as Plaintiff may carry her
burden with respect to the foregoing elements by introducing any
the following types of evidence before the Commission:
(1) . . . medical evidence that [she] is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) . . . evidence that [she] is capable of some work, but that [she] has, after a reasonable effort on [her] part, been unsuccessful in [her] effort to obtain employment; (3) . . . evidence that [she] is capable of some work but that it would be futile because of preexisting conditions, i.e., age, -17- inexperience, lack of education, to seek other employment; or (4) . . . evidence that [she] has obtained other employment at a wage less than that earned prior to the injury.
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765,
425 S.E.2d 454, 457 (1993) (citations omitted).
We conclude that the competent record evidence supports the
Commission’s findings, which, in turn, support the Commission’s
conclusion that Plaintiff failed to demonstrate her entitlement
to total disability benefits. In its 2003 opinion and award,
the Commission determined that Plaintiff was temporarily and
totally disabled for several periods spanning from 1 October
1996 through 7 May 1998. The Commission’s findings in the
present case indicate that, following May 1998, Plaintiff worked
for roughly twelve years without incident prior to seeking
treatment from Dr. Tuttle in December 2010 and, moreover, that
such treatment pertained to Plaintiff’s alleged occupational
disease. These findings support the Commission’s grounds for
denying Plaintiff’s claim for total disability benefits, namely,
that any total disability for purposes of the present case was a
product of Plaintiff’s upper extremity conditions – with respect
to which, as we have held, supra, Plaintiff failed to meet her
burden in proving the existence of an occupational disease - and -18- not a product of her 1995 injury.
Plaintiff contends that the Commission incorrectly employed
a heightened standard in denying her total disability
compensation for her 1995 injury, specifically, that the
Commission required her to prove that her 1995 injury solely
caused, rather than merely contributed to, her disability.
Plaintiff focuses on the following portion of the Commission’s
conclusion of law 5 as the source of this alleged error:
Plaintiff has never been medically excused from work solely as a result of her compensable injury by accident on December 28, 19951 and has remained successfully employed with [Revlon] until she was no longer able to work due to her non- compensable upper extremity conditions. The Full Commission finds that Plaintiff has failed to present evidence of disability related to her compensable injury by accident of December 28, 1995 under any of the accepted Russell criteria; therefore, Plaintiff has not established disability as a result of her compensable injury by accident on December 28, 1995 and is not entitled to payment of indemnity compensation for total disability.
1 We note that, as previously stated, Plaintiff “was temporarily and totally disabled” during several time periods between 1 October 1996 and 7 May 1998 and thus it would appear that Plaintiff did miss work due to the 1995 injury. Because the Commission has already awarded Plaintiff compensation for those periods of disability in its 2003 opinion and award, however, we construe the Commission’s statement in conclusion of law 5 to mean that Plaintiff had not been excused from work since the 2003 award solely as result of the 1995 injury. -19- (Emphasis added). Plaintiff’s contention is unpersuasive. We
disagree with Plaintiff’s characterization of conclusion of law
5, which we believe is more appropriately interpreted not as
imposing an erroneous standard, but rather as reinforcing the
Commission’s finding that Plaintiff had not missed any work
since May 1998 due to her 1995 injury, but rather that that any
work missed by Plaintiff after May 1998 was a result of
Plaintiff’s upper extremity conditions. As stated above, the
competent evidence of record supports the Commission’s
conclusion in this respect. Plaintiff’s contention on this
issue is accordingly overruled.
III. Conclusion
For the foregoing reasons, we affirm the Commission’s 13
March 2013 opinion and award.
AFFIRMED.
Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).