Cole v. United Parcel Serv., Inc.

• Court: Court of Appeals of North Carolina
• Decided: September 2, 2014
• Docket: 14-17
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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. -3- 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. -4- 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 -5- 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 -6- 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 -7- 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). -8- 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, -9- 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 -10- 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. -11-

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 -12- 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). -13- 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 -14- 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- -15- 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 -16- (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 -17- 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 -18- 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.) -19- 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 -20- 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).