Buck v. Procter & Gamble Manufacturing Co.

278 S.E.2d 268, 52 N.C. App. 88, 1981 N.C. App. LEXIS 2320

• Court: Court of Appeals of North Carolina
• Decided: May 19, 1981
• Docket: 8010IC817
• Status: Published

Opinion

VAUGHN, Judge.

At the outset, we must determine the applicable scope of judicial review on this appeal. 2 G.S. 97-86 states the review standard for awards of the Industrial Commission. The statute provides that such awards “shall be conclusive and binding as to all questions of fact; but either party to the dispute may . . . appeal from the decision of said Commission to the Court of Appeals for errors of law under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions.” (Emphasis added.) G.S. 97-86, in effect, requires appellate courts to limit their review of workers’ compensation awards for legal errors to a two fold determination of whether the Commission’s findings are supported by any competent evidence and whether its subsequent legal conclusions are justified by those findings. See Barham v. Food World, 300 N.C. 329, 266 S.E. 2d 676 (1980); Walston v. Burlington Industries, 49 N.C. App. 301, 271 S.E. 2d 516 (1980). Clearly, it is not the function of any appellate court to retry the facts found by the Commission or weigh the evidence received by it and decide anew the issue of compen-sability of an employee’s claim. Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E. 2d 449 (1977); Anderson v. Construction Co., 265 N.C. 431, 144 S.E. 2d 272 (1965); see G.S. 97-86, supra. The Supreme Court has recently reiterated these well established restrictions upon the appellate review of such awards in Morrison v. Burlington Industries:

the Industrial Commission has the exclusive duty and authority to find the facts relative to disputed claims and such findings are conclusive on appeal when supported by any evidence. Moreover, where the evidence before the Commission is such as to permit either one of two contrary findings, the determination of the Commission is conclusive on appeal and the mere fact that an appellate court disagrees with the findings of the Commission is not grounds for reversal.

301 N.C. 226, 232, 271 S.E. 2d 364, 367 (1980). We shall now proceed to address the merits of defendant’s appeal in accordance with these sound principles of judicial review.

In the instant case, defendant essentially contends that the Commission committed an error of law in affirming the award because plaintiff did not present sufficient evidence to establish a prima facie case demonstrating her entitlement to compensation. We disagree and affirm the Commission’s opinion and award.

It is, of course, true that plaintiff had to prove that she was injured “by accident arising out of and in the course of the employment” with defendant to recover compensation for her alleged disability under the Workers’ Compensation Act. G.S. 97-2(6); Hollar v. Furniture Co., 48 N.C. App. 489, 269 S.E. 2d 667 (1980). Since defendant has conceded that plaintiff suffered an accident in the course of her employment, however, the only question raised here is whether plaintiff’s injuries did, in fact, arise out of that accident.

The term “arising out of” requires an employee to demonstrate a causal connection between the injury complained of and an accident which occurred in the course of employment. Barham v. Food World, 300 N.C. 329, 266 S.E. 2d 676 (1980). The deputy commissioner specifically found, as a matter of fact, that plaintiff established a direct causal link between her bladder, leg and back problems and her slip and fall accident at defendant’s plant. Nonetheless, defendant argues that the commissioner’s findings cannot be sustained because there was no competent expert testimony in the record which established, within the required degree of reasonable probability, that plaintiff’s back injuries were caused by the work-related accident of 21 September 1975. Contrary to defendant’s contention, however, the commissioner found that Dr. Timmons expressed an opinion, “based on reasonable medical certainty,” that plaintiff’s disc defect could have been caused by her fall at work and that the defect also could have been the result of an aggravation, caused by the fall, of a preexisting back condition. 3 Defendant excepted to this finding on the ground that Dr. Timmons’ testimony, viewed as a whole, disclosed that his opinion as to the cause of plaintiffs disc defect was based upon mere speculation and not medical probability. Our review of the content of Dr. Timmons’ expert testimony compels us to overrule defendant’s exceptions to this evidence.

In Lockwood v. McCaskill, 262 N.C. 663, 138 S.E. 2d 541 (1964), the Supreme Court held that an expert’s opinion that a particular cause “could” or “might” have produced the result indicates that the result is capable of proceeding from the particular cause within the realm of reasonable probability. The Court further stated that the fact finder is not required “to make subtle and refined distinctions” and that it is within his discretion to admit expert testimony whenever “it reasonably appears to him that the expert witness, in giving testimony supporting a particular causal relation, is addressing himself to reasonable probabilities according to scientific knowledge and experience, and the testimony per se does not show that the causal relation is merely speculative and mere possibility. . . .” Id. at 669, 138 S.E. 2d at 546. Defendant contends that Dr. Timmons’ testimony in the instant case per se demonstrated the speculative nature of the causal relation between plaintiffs disc injury and the work accident. We cannot agree.

In response to two separate hypothetical questions on direct examination, Dr. Timmons affirmatively stated, as required by Lockwood v. McCaskill, supra, that plaintiff’s accident at defendant’s plant could have caused the disc protrusion that produced the nerve root compression and pain. Though he later testified, on cross-examination, that it was “equally possible” that “the defect was degenerative in nature” and could have been caused by “recurrent and chronic stress,” Dr. Timmons never retracted his prior opinion, based on a reasonable medical certainty, that plaintiffs slip and fall “certainly could have” caused the disc defect. In fact, Dr. Timmons also said, in the course of defense counsel’s questioning about the degenerative process, that “nobody knows the cause of degeneration and it of course could be repeated [stress] or chronic trauma that is repeated or an injury.” (Emphasis added.)

Defendant, nevertheless, argues that Dr. Timmons admitted that his opinion on causation was not based upon medical probability when he said that “[a]n attempt to determine today that it was the fall or that this degenerative condition existed over a substantial period of time would be mere speculation.” This statement, standing alone, is insufficient to show that Dr. Timmons was “testifying in terms of possibilities rather than probabilities.” See Kennedy v. Martin Marietta Chemicals, 34 N.C. App. 177, 181, 237 S.E. 2d 542, 545 (1977). It seems obvious to us that the doctor was not saying that the fall could not have caused the disc protrusion nor was he saying that the protrusion could not have been the result of a degenerative condition. Dr. Timmons was simply stating that he could not choose which of the two, the event of a fall or the existence of a degenerative condition, was the single most probable cause without engaging in speculation. 4 Indeed, medical experts are not required to make such a choice in order to render their opinion testimony competent and admissible. In Lockwood v. McCaskill, the Court recognized that “[a] result in a particular case may stem from a number of causes.” 262 N.C. at 668, 138 S.E. 2d at 545. All that is necessary is that expert express an opinion that a particular cause was capable of producing the injurious result. Id. It is manifest that this requirement was fulfilled in the instant case. For instance, Dr. Timmons proceeded, on redirect examination, to restate his opinion that it was “equally likely or equally probable that the slip and fall on the stairs could or might have caused the disc defect that [he] discovered.” Moreover, he also stated “[t]o a reasonable degree of medical certainty” that plaintiffs fall could have (1) made a degenerated disc protrude and caused nerve root pressure and pain or (2) aggravated a preexisting degenerative condition and caused the disc to rupture.

This is not, therefore, a case where the record is devoid of a “scintilla of medical evidence that plaintiffs ruptured disc might, with reasonable probability, have resulted from the accident,” and we do not believe that the commissioner was “left to speculate about a matter which frequently troubles even orthopedic specialists.” See, e.g., Gillikin v. Burbage, 263 N.C. 317, 324-25, 139 S.E. 2d 753, 759-60 (1965). Rather, we believe that, viewing the totality of the expert testimony in the light most favorable to plaintiff, there was “some evidence that the accident at least might have or could have produced the particular disability in question,” and the commissioner’s finding, with respect to the sufficiency of Dr. Timmons’ opinion on causation, is, therefore, conclusive on this appeal. 5 Click v. Freight Carriers, 300 N.C. 164, 166-67, 265 S.E. 2d 389, 390-91 (1980).

In sum, we hold that the commissioner’s critical findings and conclusions that were amply supported by competent evidence in the record consisting both of the expert testimony of Dr. Tim-mons, as well as that of Dr. Gavigan (the urologist), and the lay testimony of plaintiff that after the fall, she began to experience sharp pains in her back.

Defendant’s assignments of error are overruled, and the opinion and award of the Industrial Commission is affirmed.

Affirmed.

Judges Wells and Becton concur.

2 . In two recent opinions of the Supreme Court, Justice Carlton has indicated that “the reviewing court should make clear the review standard under which it proceeds” when the appeal concerns the decision of an administrative agency. Utilities Commission v. Oil Company, 302 N.C. 14, 273 S.E. 2d 232 (1981); In Re Savings and Loan League, 302 N.C. 458, 276 S.E. 2d 404 (1981). Clarification of the scope of review necessarily requires the appellate court to determine, as a preliminary matter, whether the particular agency involved is governed by the Administrative Procedure Act, G.S. Chapter 150A. Id. In this case, that Act does not apply because the Industrial Commission is specifically exempted from its coverage. G.S. 150A-l(a).

3 . The disc injury would be compensable if either theory of causation were sufficiently established, i.e., that the defect was directly caused by the accident or that the accident materially aggravated a preexisting disease and proximately contributed to the disability. Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743, (1978); Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265 (19511; Mabe v. Granite Corp., 15 N.C. App. 253, 189 S.E. 2d 804 (1972). See generally 1 Larson, Workmen's Compensation Law § 12.20 (1978).

4 . We also note that Dr. Timmons further qualified what he meant by "speculation” in his very next sentence: “I think that’s speculation on the basis that this is answering a hypothetical question.”

5 . We would again emphasize that we may not reverse the findings of the Industrial Commission just because there may be other evidence in the record which would support findings to the contrary. Click v. Freight Carriers, supra; Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E. 2d 364 (1980).