NO. COA14-335
NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2014
MAYFORD WYATT, Plaintiff,
v. From North Carolina Industrial Commission I.C. No. W06970 HALDEX HYDRAULICS, Employer, and SENTRY INSURANCE, Carrier, Defendants.
Appeal by Defendants from opinion and award entered 10
January 2014 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 10 September 2014.
Pressly, Thomas & Conley, PA, by Edwin A. Pressly, for Plaintiff.
Hill Evans Jordan & Beatty, PLLC, by Richard T. Granowsky, for Defendants.
STEPHENS, Judge.
Employer Haldex Hydraulics and its insurer Sentry Insurance
(collectively, “Defendants”) appeal from an opinion and award of
the full North Carolina Industrial Commission (“the Commission”)
filed 10 January 2014. The Commission’s opinion and award
affirmed an opinion and award by Deputy Commissioner Keischa M.
Lovelace, filed 13 May 2013, which had determined that Plaintiff -2- Mayford Wyatt sustained compensable injuries to his brain and
spine as a result of a workplace lifting accident on 31 October
2008. We affirm.
Background
The evidence before the Commission tended to show that
Plaintiff began working at Defendant’s Statesville plant in
1988, where he was employed as a CNC Setup Operator and was
cross-trained on the operation of several different machines
used by Defendant to produce hydraulic gear pumps and
transmissions for companies such as John Deere and Caterpiller.
On 31 October 2008, Plaintiff and a co-worker were
conducting inventory, counting aluminum parts stored in metal
tubs on metal shelves. To remove the tubs, Plaintiff first slid
them off the shelves, which were coated with an oil film from
the gear manufacturing process, then his co-worker grabbed the
front handle while Plaintiff twisted his body to the left and
reached into the shelf with his right arm to grab the other
handle. The two men then placed the tubs on the floor, counted
and labeled and replaced the parts, and returned the tubs to the
shelves. Plaintiff was injured when he attempted to remove a
mislabeled tub that contained parts made of a material much
heavier than aluminum: instead of an expected weight of 60 to 70 -3- pounds, the tub weighed approximately 280 pounds. As his co-
worker grabbed the front handle, Plaintiff balanced on one knee
holding the back handle, then twisted and turned with the tub
and fell to the floor with it. Plaintiff was taken to the
Iredell Memorial Hospital emergency room twice that day due to
pain in his lower back. As a result of his injuries, Plaintiff
was out of work from 31 October 2008 through 11 December 2008.
Defendants accepted the compensability of Plaintiff’s low back
condition pursuant to a Form 60.
On 9 December 2008, Plaintiff’s primary care physician, Dr.
Daniel Bellingham, assessed Plaintiff with right L3-4 nerve root
impingement and referred him to a spine surgeon for
consultation. Shortly thereafter, Plaintiff was permitted to
return to work with light duty restrictions of no lifting over
25 pounds, limited bending and twisting, and no stooping or
squatting. Plaintiff received ongoing treatment at
OrthoCarolina, and eventually orthopedic surgeon Dr. Theodore
Belanger diagnosed Plaintiff’s low back condition as lumbar
stenosis with persistent back and right leg pain, numbness, and
weakness, which did not require surgical intervention. In
December 2009, Plaintiff submitted a Form 25R Evaluation for
Permanent Impairment. On 25 January 2010, the Industrial -4- Commission approved a Form 26A, Employer’s Admission of
Employee’s Right to Permanent Partial Disability Compensation,
awarding Plaintiff $12,932.32 for a permanent partial impairment
rating of 7.5% as a result of his low back injury.
Throughout the treatment of his low back condition in 2009
and 2010, Plaintiff also complained of seemingly unrelated
symptoms that began almost immediately after his 31 October 2008
accident, including dizziness, loss of balance, nausea, stuffy
ears, sinus pressure, fatigue, insomnia, severe headaches, and
episodic numbness in his face, tongue, torso, and limbs. During
the two months he was unable to work in late 2008, Plaintiff’s
family noticed that he remained in bed and slept most of the
time, experienced difficulty walking and balancing, could not
keep his car on the road as he was unable to apply steady
pressure to the gas pedal, frequently dozed off mid-sentence
during conversations, and had difficulty understanding,
prompting his relatives to explain things to him in an
“elementary way.” Previously an active church member who
regularly attended services on Wednesday and twice on Sunday,
Plaintiff did not attend church for almost two months. When he
returned in December 2008, church members noticed an observable
decline in his health. Plaintiff had trouble maintaining his -5- balance, dragged his foot when walking, had difficulty hearing,
and fell into a deep sleep during services and conversations.
Upon his return to work, Plaintiff’s co-workers observed a
noticeable decline in his physical abilities: Plaintiff
regularly slept at his work station, walked slowly, and appeared
to drag one of his legs while walking. Other machine operators
had to be assigned to perform Plaintiff’s lifting tasks, and his
team leader noticed he had trouble understanding directions and
suffered from balance issues.
Plaintiff’s doctors offered multiple diagnoses, including
sinusitis and sleep apnea, but his symptoms persisted, and in
March 2010 he was referred for a neurological consult after an
MRI of his brain showed a herniated cerebellar tonsil consistent
with a Chiari malformation. A Chiari malformation is a condition
at the junction of the neck and skull that causes compression of
the part of the central nervous system where the spine joins the
brain. There are two types of Chiari malformation: congenital
Chiari malformations occur from a person’s congenital cranium
formation, whereas acquired Chiari malformations can develop
through intracranial hypotension, which is a cerebrospinal fluid
(“CSF”) balance issue between the brain and the spine that can
be caused by lifting injuries resulting in cerebrospinal fluid -6- leaks. Chiari malformations can result in a condition known as
“brain sag.” Typically, the brain is supported within the skull
and spinal column by cerebral spinal fluid, but when spinal
fluid is at a lower pressure underneath the brain, the brain
tends to sag down towards the base of the skull. Classic
symptoms of a Chiari malformation include severe headache
associated with coughing, problems with balance, dizziness,
difficulty walking, and cranial nerve dysfunction which can
cause facial symptoms, tongue numbness, and balance and
swallowing difficulties. However, symptoms indicative of Chiari
malformations are also suggestive of other medical conditions
unrelated to the brain, cervical spine compression, and other
neurological abnormalities, and it is not uncommon for a person
to exhibit symptoms of a Chiari malformation over an extended
period of time before diagnosis.
On 18 March 2010, Plaintiff sought treatment with Dr. John
Wilson, a board-certified expert in neurological surgery. While
certain aspects of Dr. Wilson’s examination were indicative of
Chiari malformation, other aspects suggested a problem further
down Plaintiff’s cervical spine. A subsequent cervical MRI
showed significant stenosis with cord signal changes, so Dr.
Wilson performed an anterior cervical discectomy, decompression, -7- and fusion on 16 April 2010. At his follow-up appointment on 20
May 2010, Plaintiff reported complete resolution of his
symptoms, which surprised Dr. Wilson, who had anticipated
needing to perform a Chiari decompression to alleviate
Plaintiff’s symptoms. However, on 26 August 2010, Plaintiff
returned to Dr. Wilson with complaints of dizziness, difficulty
balancing, facial numbness, bowel control issues, and “things
not tasting good.” On 12 October 2010, Plaintiff complained of
the same symptoms, as well as hearing problems, decreased
sensation on his right side, and double vision. On 1 November
2010, Dr. Wilson performed two surgical procedures on Plaintiff:
a Chiari decompression and a C3 laminectomy with C2-C5 fusion.
At a follow-up appointment on 16 December 2010, Plaintiff
reported some improvement in his dizziness but complained of
persistent balance difficulties, as well as hand-to-eye
coordination issues, hearing “echoes,” and falling asleep while
driving.
On 4 February 2011, Plaintiff was taken to the Iredell
Memorial Hospital emergency room suffering from quadriparesis
and then immediately transferred to Wake Forest Baptist Hospital
for assessment of a neurological emergency. Dr. Thomas Sweasey,
a board-certified expert in neurosurgery and neurocritical care, -8- was the neurosurgeon on call and determined after reviewing an
MRI that Plaintiff needed surgery to treat cervical spondylosis,
severe canal stenosis, and significant spinal cord impingement
with evidence of cord signal change. Dr. Sweasey performed a
posterior cervical decompression and fusion. Although Plaintiff
recovered from his quadriparesis, his MRIs indicated he suffered
from “brain sag,” and Dr. Sweasey subsequently assumed
responsibility for Plaintiff’s care as his treating physician.
Between 15 March 2011 and 27 October 2011, Plaintiff was
hospitalized four times complaining of extreme somnolence,
frontal headaches, trouble balancing and walking, dizziness,
hearing loss, slurred speech, memory and comprehension issues,
and bladder control problems. At Dr. Sweasey’s direction,
Plaintiff underwent an array of different diagnostic tests and
assessments——including lumbar punctures, a ventricular
peritoneal shunt, and two cranioplasty procedures on the back
part of his skull——to determine the cause of his “brain sag” and
the best options for treatment. Dr. Sweasey consulted with
several specialists, including Dr. Thomas Ellis, co-director of
the Deep Brain Stimulation Program at Wake Forest, who noted
that, although Plaintiff’s “presentation is somewhat difficult
to truly classify as one diagnosis,” his symptoms were “most -9- convincing for communicating hydrocephalus as he has significant
brain sag.” However, after extensive interviews with Plaintiff
and his family regarding his medical history and the onset and
progression of his symptoms, Dr. Sweasey eventually diagnosed
Plaintiff with cervical cord compression and an acquired Chiari
malformation caused by intracranial hypotension.
Plaintiff continued to work for Haldex Hydraulics between
11 December 2008 and 15 April 2010. On 11 February 2010,
Plaintiff suffered a fall while working. He received treatment
at an urgent care office for his back and hip, but did not miss
any work due to the fall. On 13 April 2010, Plaintiff gave
written notice to Defendant that he wished to enter a severance
agreement to begin following his short-term disability leave,
which ran from 23 April 2010 through the week ending 29 May
2010. On 4 June 2010, Plaintiff signed a severance agreement,
release, and waiver, indicating that his employment with
Defendant terminated 28 May 2010.
Procedural History
On or about 1 July 2010, Plaintiff filed a Form 18 Notice
of Accident to Employer and Claim of Employee, Representative,
or Dependent with the Commission, alleging injuries to his back,
neck, and leg sustained from his 31 October 2008 accident. -10- Plaintiff subsequently filed a Notice of Change of Condition on
28 June 2011. On 14 February 2012, Plaintiff’s wife filed a Form
42 Application for Appointment of Guardian Ad Litem, which the
Commission ultimately approved, because of Plaintiff’s
difficulties with his hearing, reasoning, and memory. She also
averred that she felt it was unsafe to leave Plaintiff alone. On
5 March 2012, Plaintiff filed a Form 33 Request for Hearing and
on 26 March 2012, Plaintiff filed an Amended Form 33 stating
that his injuries were to his back, neck, and brain. Defendants
responded and denied compensability for Plaintiff’s cervical and
cognitive problems. Deputy Commissioner Lovelace heard the
matter on 10 August 2012 and issued an opinion and award
concluding that Plaintiff’s intracranial hypotension, Chiari
malformation, and cervical spine conditions were causally
connected to his 31 October 2008 work-related injury; that
Plaintiff was disabled from working; and that he was entitled to
indemnity and medical compensation. Defendants timely appealed
the opinion and award to the full Commission on 16 May 2013.
The Full Commission heard the matter on 25 October 2013 and
issued an opinion and award on 10 January 2014 affirming Deputy
Commissioner Lovelace’s opinion and award with minor
modifications, over a dissent without written opinion from -11- Chairman Andrew T. Heath. During the course of its hearing into
the causation and compensability of Plaintiff’s brain and
cervical spine injuries, the Commission reviewed depositions
taken from Dr. Bellingham, Dr. Belanger, Dr. Wilson, and Dr.
Sweasey.
Dr. Bellingham, Plaintiff’s primary care physician, did not
render an opinion regarding the causal relationship between
Plaintiff’s cervical and brain conditions and the 31 October
2008 workplace lifting accident, but testified that he did not
expect Plaintiff’s condition to improve, stating “we can always
hold out hope, but he hasn’t made a lot of change for quite some
time.”
Dr. Belanger, an orthopedic surgeon who treated only
Plaintiff’s low back condition, agreed with the Chiari
malformation diagnosis but opined within a reasonable degree of
medical certainty that it was a congenital, rather than
acquired, condition and that he therefore did “not see how a
single lifting injury of any sort could cause or contribute in
any material way to []Chiari malformation, which is a congenital
anomaly present since birth.” Dr. Belanger also opined to a
reasonable degree of medical certainty that Plaintiff’s cervical
spine condition was due to degenerative cervical spondylosis and -12- therefore not caused by any particular event or injury,
including the 31 October 2008 accident, although he did
acknowledge it was possible that an acute event could exacerbate
or aggravate Plaintiff’s underlying condition. However, the
Commission assigned little weight to Dr. Belanger’s expert
opinion, given that Dr. Belanger did not treat Plaintiff for
either his cervical spine or his brain condition, and further
admitted that only 10 to 15 of the 2,000 to 3,000 patients he
treats annually need treatment for symptomatic Chiari
malformations, and he typically refers those patients to
neurosurgeons.
Dr. Wilson confined his expert opinion to the conditions
for which he treated Plaintiff between March and December 2010.
He testified that while certain aspects of his examination
indicated a Chiari malformation, Plaintiff was not experiencing
brain sag at the time of his treatment, and therefore Dr. Wilson
would not give a causative opinion regarding Plaintiff’s brain
sag, although he did note that it may have subsequently
developed as a consequence of the Chiari decompression procedure
he performed. Further, Dr. Wilson testified that it was
plausible for a lifting injury to cause brain sag, although that
was not something he considered in his evaluation of Plaintiff. -13- While Dr. Wilson would not give an opinion regarding an acquired
Chiari malformation caused by intracranial hypotension, he
explained that it could occur
if a person during the course of some kind of injury or heavy lifting . . . developed a spontaneous CSF leak somewhere in their spinal column, and so the CSF is leaking and they develop spontaneous intracranial hypotension, the brain sags, the cerebellar tonsils descend, [and] that is hypothetically a possible way you can develop this kind of tonsillar descent.
Regarding Plaintiff’s cervical spine condition, Dr. Wilson
opined that although a Chiari malformation can cause cervical
cord compression, Plaintiff’s condition was not causally related
to his 31 October 2008 workplace lifting accident, but was
instead the result of degenerative cervical spondylosis, which
Plaintiff’s lifting injury did not exacerbate.
Dr. Sweasey diagnosed Plaintiff with acquired Chiari
malformation and opined to a reasonable degree of medical
certainty that the most likely cause was intracranial
hypotension, of which the most likely proximate cause was a
spinal fluid leak secondary to Plaintiff’s 31 October workplace
lifting injury. Dr. Sweasey’s opinion was based upon the
significant amount of time he spent conducting tests and
discussing Plaintiff’s case with other specialists, as well as -14- Plaintiff and his family. Dr. Sweasey further opined that
Plaintiff’s temporary improvement following the procedures Dr.
Wilson performed in April and November 2010 was indicative of
intracranial hypotension, explaining that more likely than not,
every time Plaintiff’s spine is manipulated during a surgical
procedure, pressure is left on the thecal sac because there is
some blood left behind, and Plaintiff’s condition improves
dramatically as the blood helps support the brain. The
improvement, however, is temporary as Plaintiff’s condition
worsens as the blood is absorbed by the surrounding tissue. Dr.
Sweasey also testified that the cause of Plaintiff’s Chiari
malformation was unknown during Dr. Wilson’s treatment because,
he explained, Plaintiff was in a very small group of people
“where the mechanism they acquire, the [C]hiari malformation is
decreased pressure which allows the brain to sag and the
cerebellum to sag through the foramen magnum, which then causes
them to be symptomatic.” Regarding Plaintiff’s cervical cord
compression, Dr. Sweasey opined that more likely than not
Plaintiff’s condition resulted from an aggravation of an
underlying cervical condition sustained during his 31 October
2008 workplace injury. As Dr. Sweasey explained, consistent with
Plaintiff’s gradual onset of symptoms, a person may have spinal -15- cord compression and irritation without initially experiencing
pain but then slowly develop a deficit over time. Dr. Sweasey
further opined that, more likely than not, Plaintiff’s cervical
spine issue is related to leakage of spinal fluid from a nerve
root with the fluid absorbed by the surrounding tissue. Finally,
Dr. Sweasey opined that, more likely than not, Plaintiff will
not be able to maintain gainful employment on a permanent basis
as a result of his injuries.
Ultimately, the Commission assigned the most weight to Dr.
Sweasey’s expert opinion. As the Commission explained in its
conclusions of law:
The greater weight of the medical evidence showed that symptomatic [C]hiari malformations, whether congenital or acquired, are rare conditions that are treated by neurosurgeons. Both neurosurgeons who treated Plaintiff diagnosed Plaintiff with a [C]hiari malformation. As stated in the findings of fact, the Full Commission assigned greater weight to the expert opinion of Dr. Sweasey than Dr. Wilson[,] as Dr. Wilson limited his expert opinion to his treatment time period and did not consider the effect of the extensive medical treatment, testing, and specialist consultations that occurred subsequent to Dr. Wilson’s treatment of Plaintiff. In contrast, Dr. Sweasey consulted numerous specialists, conducted a variety of diagnostic tests, interviewed Plaintiff and his family extensively[,] and reviewed Plaintiff’s voluminous medical records to determine Plaintiff’s diagnosis, treatment -16- modalities, and the cause of Plaintiff’s condition. Dr. Sweasey’s expert opinion is legally sufficient to establish a causal connection between Plaintiff’s intracranial hypotension and cervical spine condition to his work-related injury.
Thus, based on a preponderance of the evidence of record, the
Commission found as facts that, as a result of his 31 October
2008 workplace lifting injury, “Plaintiff sustained an
intracranial hypotension that caused an acquired [C]hiari
malformation, or brain sag” and also that “Plaintiff sustained
an exacerbation or aggravation of his underlying and pre-
existing cervical spondylosis resulting in cervical stenosis,
cervical cord compression, and other causally related
conditions.”
The Commission also concluded that Plaintiff’s claim was
timely filed and that Plaintiff had met his burden of proof to
show he was incapable of earning pre-injury wages in either the
same or any other employment and that the incapacity to earn
pre-injury wages was caused by Plaintiff’s injury, given Dr.
Sweasey’s testimony that more likely than not, Plaintiff will
not be able to return to gainful employment in the future due to
his acquired Chiari malformation caused by intracranial
hypotension. Therefore, the Commission concluded that “Plaintiff
is entitled to have Defendants pay for all related medical -17- expenses incurred or to be incurred that are necessary and
reasonable treatment that would effect a cure, give relief or
lessen Plaintiff’s period of disability” and further ordered
that Defendants pay Plaintiff $663.35 per week in temporary
total disability compensation, dating back to 1 November 2010
and continuing until Plaintiff can return to work. Defendants
gave timely notice of their intent to appeal the Commission’s
opinion and award pursuant to N.C. Gen. Stat. § 97-86.
Standard of Review
This Court’s review of an opinion and award by the
Commission is limited to two inquiries: (1) whether there is any
competent evidence in the record to support the Commission's
findings of fact; and (2) whether the Commission’s conclusions
of law are justified by the findings of fact. See Deese v.
Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553
(2000). The Commission's conclusions of law are reviewable de
novo. See Whitfield v. Lab. Corp. of Am., 158 N.C. App. 341,
348, 581 S.E.2d 778, 783 (2003) (citation omitted). As for the
Commission’s findings of fact, if supported by competent
evidence, they are conclusive even if the evidence might also
support contrary findings. Jones v. Candler Mobile Village, 118
N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995) (citation -18- omitted). Indeed, the Commission is “the sole judge of the
credibility of the witnesses and the weight to be given their
testimony.” Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d
411, 413 (1998) (citation omitted). On appeal, this Court “does
not have the right to weigh the evidence and decide the issue on
the basis of its weight” because our duty “goes no further than
to determine whether the record contains any evidence tending to
support the finding.” Anderson v. Lincoln Constr. Co., 265 N.C.
431, 434, 144 S.E.2d 272, 274 (1965) (citation omitted).
Causation of Plaintiff’s Brain Condition
Defendants first argue that the Commission erred in
concluding Dr. Sweasey’s expert medical testimony was legally
sufficient to establish a causal connection between Plaintiff’s
brain condition and his work-related lifting accident on 31
October 2008. Specifically, Defendants contend that Dr.
Sweasey’s opinion does not constitute competent evidence to
support the Commission’s causation determination because Dr.
Sweasey could not definitively confirm the existence of the
cerebrospinal fluid leak that he testified caused Plaintiff’s
intracranial hypotension which in turn resulted in Plaintiff’s
brain sag. Thus, Defendants claim Dr. Sweasey’s opinion was
based merely upon speculation and conjecture, which, based on -19- our Supreme Court’s decision in Young v. Hickory Bus. Furniture,
353 N.C. 227, 538 S.E.2d 912 (2000), Defendants insist is “not
sufficiently reliable to qualify as competent evidence on issues
of medical causation.” Id. at 230, 538 S.E.2d at 915. Therefore,
Defendants argue that the Commission erred in concluding
Plaintiff’s brain condition was caused by his work accident and
compensable under the Workers’ Compensation Act. We disagree.
In Young, our Supreme Court reversed this Court’s opinion
affirming an award of the Commission due to a complete lack of
competent evidence to support the Commission’s findings of fact—
—that the plaintiff’s fibromyalgia was caused by a work-related
accident——because the medical causation testimony the Commission
relied upon was based entirely on one expert’s speculation and
conjecture. Id. at 231, 538 S.E.2d at 915. A careful review of
that expert’s testimony revealed that he considered fibromyalgia
to be “an illness or condition of unknown etiology” and that he
“frequently could not ascribe a cause for fibromyalgia in his
patients.” Id. Moreover, the expert admitted there were at least
three alternative potential causes for the plaintiff’s condition
but that he had performed no tests to rule them out, although he
did acknowledge that additional tests “need[ed] to have been
done.” Id. Instead, his diagnosis relied entirely upon the post -20- hoc ergo propter hoc fallacy, given his testimony that, “I think
that she does have fibromyalgia and I relate it to the accident
primarily because, as I noted, it was not there before and she
developed it afterwards. And that’s the only piece of
information that relates the two.” Id. at 232, 538 S.E.2d at
916. The Court ultimately concluded that because the expert’s
testimony “demonstrate[ed] his inability to express an opinion
to any degree of medical certainty” as to causation and was
based “solely on supposition and conjecture,” it was incompetent
and insufficient to support the Commission’s findings of fact.
Id. at 233, 538 S.E.2d at 917.
In the present case, Defendants contend Dr. Sweasey’s
testimony reveals that his medical causation opinion is founded
solely on speculation and conjecture, and is thus analogous to
the expert opinion rejected as incompetent in Young.
Specifically, Defendants point to Dr. Sweasey’s testimony that
“we don’t have any documentation of [a cerebrospinal fluid
leak]” when he was asked how he reached his opinion that
Plaintiff’s condition was caused by intracranial hypotension
resulting from the workplace accident. Additionally, Defendants
emphasize that Dr. Sweasey acknowledged there are multiple
mechanisms by which a person can acquire intracranial -21- hypotension, but was unable to state the percentage of cases in
which the event causing the condition was ultimately identified,
and did not testify to any diagnostic testing or other actions
that he took to rule out other potential causes.
However, the full context of Dr. Sweasey’s testimony
demonstrates that locating a cerebrospinal fluid leak was just
one of “three different pathways” by which Dr. Sweasey could
have arrived at his intracranial hypotension diagnosis. Dr.
Sweasey went on to explain that his diagnosis was more informed
by the nature and sequence of Plaintiff’s symptoms and
Plaintiff’s responses to various tests, treatments, and surgical
procedures. Notably, Dr. Sweasey testified that the fact
Plaintiff’s symptoms improve when he is placed in a supine
position “suggests that there is a pressure differential inside
of his head that allows the sag to occur when he’s upright,” and
that Plaintiff’s dramatic temporary improvement immediately
following an epidural blood patch——which Dr. Sweasey testified
is a “common treatment for spinal fluid leaks”——and two
cranioplasties further confirmed that Plaintiff suffered from
intracranial hypotension, “the most likely proximate cause of
[which] was a spinal fluid leak secondary to his injury.” -22- Defendants also contend that Dr. Sweasey’s opinion is based
merely upon speculation because his testimony established that
there is no scientific basis for working backwards in time to
connect Plaintiff’s brain sag to his 31 October 2008 injury.
Specifically, Defendants highlight Dr. Sweasey’s testimony, when
asked how to pinpoint precisely how long it takes for brain sag
to develop after intracranial hypotension, that
I don’t think we have enough cases in our literature to say, you know, how long that is going to take. I’m sure it could be very immediate in some individuals. I’m sure it could take days in some. I’m sure it could take longer in others. But I don’t have any way of proving that at this point in time.
Defendants’ argument fails to persuade us. Rather than proving
his causation opinion “is of no more value than a layman’s
opinion,” as Defendants insist based on Young, a careful review
of the transcript of Dr. Sweasey’s testimony makes clear that
his point was that because the medical literature is still
evolving and different patients experience the onset of their
symptoms at different times, that makes close observation of
each individual patient’s history and reactions to treatment all
the more crucial. And here, unlike the expert in Young, Dr.
Sweasey spent months consulting with numerous specialists,
conducting a variety of diagnostic tests and extensive -23- interviews with Plaintiff and his family, and reviewing
Plaintiff’s voluminous medical records to determine his
diagnosis, treatment modalities, and the cause of Plaintiff’s
condition, which is why the Commission ultimately found his
causation opinion most persuasive.
Defendants further attempt to undermine Dr. Sweasey’s
causation opinion by contrasting it with Dr. Wilson’s testimony.
As Defendants emphasize, Dr. Wilson testified that the onset of
brain sag and Chiari malformation are not typically associated
with traumatic injuries, but can develop in response to Chiari
decompression surgeries like the one he performed on Plaintiff
on 1 November 2010. Indeed, Defendants argue that there is no
competent evidence indicating Plaintiff suffered from
intracranial hypotension-induced brain sag prior to Dr. Wilson
performing the Chiari decompression. However, this argument
ignores several of the Commission’s findings of fact which,
because Defendants do not challenge them, are presumed
conclusive. First, testimony from Plaintiff’s family, co-
workers, and fellow church members describes Plaintiff suffering
from symptoms of Chiari malformation and brain sag beginning in
the weeks and months immediately following his 31 October 2008
accident. Plaintiff saw multiple physicians for treatment of -24- these symptoms, but it took over a year before he was referred
to a neurologist, which is in keeping with the Commission’s
finding that symptoms indicative of Chiari malformations are
also suggestive of other medical conditions unrelated to the
brain, cervical spine compression, and other neurological
abnormalities, and it is not uncommon for a person to exhibit
symptoms of a Chiari malformation over an extended period of
time before a correct diagnosis is reached. Finally, Defendants
ignore Dr. Wilson’s own testimony that it is indeed
hypothetically plausible for a lifting injury to cause brain
sag. While Dr. Wilson would not give an opinion regarding an
acquired Chiari malformation caused by intracranial hypotension
because it was not something he considered in evaluating
Plaintiff’s condition, he explained that it could occur
if a person during the course of some kind of injury or heavy lifting . . . developed a spontaneous CSF leak somewhere in their spinal column, and so the CSF is leaking and they develop spontaneous intracranial hypotension, the brain sags, the cerebellar tonsils descend, [and] that is hypothetically a possible way you can develop this kind of tonsillar descent.
In light of Dr. Sweasey’s testimony and the rest of the
evidence of record, we conclude Defendant’s objections regarding
Dr. Sweasey’s inability to pinpoint the exact source of -25- Plaintiff’s intracranial hypotension go more to the weight of
his opinion than its competence. Indeed, despite their claim
that Dr. Sweasey’s causation opinion is mere speculation, the
majority of Defendants’ argument reads more like an invitation
for this Court to reweigh the evidence that was presented before
the Commission. We recognize that Defendants presented
substantial evidence that would have supported a contrary
determination regarding the cause of Plaintiff’s brain
condition. But as our prior cases make clear, it is not this
Court’s place or prerogative to second-guess the Commission’s
credibility determinations so long as its findings of fact are
supported by competent evidence. See Adams, 349 N.C. at 680, 509
S.E.2d at 413. Because we do not agree with Defendants’
contention that Dr. Sweasey’s opinion was so speculative as to
render it incompetent, we hold the Commission did not err in
concluding that his causation opinion was legally sufficient to
support its determination that Plaintiff’s injury was, in fact,
compensable under our State’s Workers’ Compensation Act.
Aggravation of Plaintiff’s Cervical Spine Condition
Defendants next argue that the Commission erred in
concluding that Dr. Sweasey’s causation opinion was legally
sufficient to establish that Plaintiff’s 31 October 2008 lifting -26- injury caused an exacerbation or aggravation of his underlying
and pre-existing cervical spine condition. We disagree.
As indicated in the Commission’s findings of fact:
Dr. Sweasey opined that more likely than not, Plaintiff’s cervical cord compression for which he underwent surgery on April 16, 2010 and November 1, 2010 resulted from an October 31, 2008 aggravation of an underlying cervical condition. Dr. Sweasey explained that symptom onset was subtle and did not become apparent until over time. A person may have spinal cord compression and spinal cord irritation for which a person does not feel pain, but slowly over time the person develops a deficit. Dr. Sweasey also stated that more likely than not, Plaintiff’s cervical spine issue is related to leakage of spinal fluid from a nerve root with the fluid absorbed by the surrounding tissue.
Here again, Defendants challenge the Commission’s findings based
on their prior argument that Dr. Sweasey’s causation opinion was
too speculative to be considered competent under Young and
demonstrates his reliance on the post hoc, ergo propter hoc
fallacy. To support their claim, Defendants highlight Dr.
Sweasey’s testimony that,
basically looking backwards, and trying to find what I considered the common thread through the whole picture, you know, original spinal surgery, Chiari decompression, subsequent spine surgery, subsequent shunt, subsequent cranioplasty of two different forms, epidural blood patches, the common thread when I look back through -27- all of that appears to be intracranial hypotension secondary to the lifting injury, and more likely than not the problem that we discussed as far as a leakage of spinal fluid from a nerve root.
The spine issue in the cervical spine . . . appears to have a relationship to that, too. So that’s why I label that as likely——more likely than not being related to the lifting injury, also. Again, it’s my opinion. Finding an actual absolute perfect thread for that one is harder, but I think certainly, you know, I would base my opinions and everything more on the intracranial hypotension issue. And I think that fits better with his picture all the way through.
Defendants repeat their allegations that Dr. Sweasey’s testimony
is incompetent because it failed to pinpoint the location of
Plaintiff’s cerebrospinal fluid leak and there is no scientific
basis for working backwards from Plaintiff’s cervical spine
condition to his 31 October 2008 injury. However, as already
discussed, these objections go more to the weight of Dr.
Sweasey’s opinion than its competence.
Defendants also emphasize that neither Dr. Belanger nor Dr.
Wilson agreed with Dr. Sweasey’s diagnosis. While this appears
to be another invitation for this Court to reweigh the evidence
that was before the Commission, which we decline to do, we also
note that both Dr. Belanger and Dr. Wilson testified that it was
plausible that a lifting injury could aggravate a previously -28- asymptomatic degenerative cervical spine condition. Moreover, as
the Commission indicated, Dr. Wilson agreed that cervical cord
compression can be related to Chiari malformation and that, in
this circumstance, causation questions are best viewed
retrospectively because of the subtle onset of cervical cord
compression symptoms, which can overlap with Chiari malformation
symptoms and similarly do not become apparent until over time.
Accordingly, we hold that the Commission did not err in
sufficient to establish that Plaintiff’s 31 October 2008 lifting
injury caused an exacerbation or aggravation of his underlying
and pre-existing cervical spine condition.
Timely Notice to Satisfy Statute of Limitations
concluding that Plaintiff timely filed a claim for workers’
compensation benefits for his Chiari malformation caused by
intracranial hypotension based on the Form 18 that Plaintiff
filed on or about 1 July 2010 seeking benefits for injuries to
his neck, back, and leg. Specifically, Defendants contend that
because Plaintiff’s Form 18 did not explicitly reference the
injury to his brain, he should be barred from recovery for his -29- brain sag by our Workers’ Compensation Act’s statute of
limitations. We disagree
As Defendants point out, N.C. Gen. Stat. § 97-24
establishes a two-year statute of limitations for claims for
compensation arising from work-related injuries, and although
Plaintiff’s accident occurred on 31 October 2008, Plaintiff did
not file any claims for compensation that specifically
referenced his resulting brain injury until he filed a Form 33
on 5 March 2012. Nevertheless, as our Supreme Court has made
clear, our State’s Workers’ Compensation Act “requires liberal
construction to accomplish the legislative purpose of providing
compensation for injured employees, and that this overarching
purpose is not to be defeated by the overly rigorous technical,
narrow and strict interpretation of its provisions.” Gore v.
Myrtle/Mueller, 362 N.C. 27, 36, 653 S.E.2d 400, 406 (2007)
(citation and internal quotation marks omitted).
In the present case, Plaintiff suffers from a rare brain
condition that is notoriously difficult to properly diagnose
given its symptoms, and we believe it would defeat the purpose
of the Act to deny him benefits because he was unable to fully
diagnose his condition himself within the two-year statute of -30- limitations period. Moreover, because Defendants do not
challenge the Commission’s finding of fact that
[C]hiari malformation, tonsillar descent, and brain sag affect the region of the body where the cervical spine joins the brain causing neurological abnormalities throughout the central nervous system; therefore, the Full Commission finds that the Form 18 filed on or about July 1, 2010 referencing Plaintiff’s back and neck sufficiently stated a claim for his medical condition related to [C]hiari malformation and that his claim is not time barred[,]
we consider it conclusive on appeal. Thus, we agree with the
Commission’s conclusion of law that the reference in Plaintiff’s
Form 18 to his neck, back, and leg sufficiently identified the
body parts affected by his work-related injury. Therefore,
because Plaintiff filed his Form 18 prior to the expiration of
the two-year statute of limitations, we hold the Commission did
not err in concluding Plaintiff’s claim was not time barred.
Temporary Total Disability Benefits and Medical Compensation
Finally, Defendants argue that the Commission erred in its
conclusions of law that Plaintiff is entitled to temporary total
disability benefits and medical compensation based on Dr.
Sweasey’s causation opinion. However, in light of the analysis
above, we hold that the Commission did not err in concluding
that Plaintiff’s brain and cervical spine injuries were -31- compensable and that Plaintiff met his burden of proof by
satisfying the first prong of the Russell test through “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.” Russell v. Lowes Product
Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(citation omitted). Accordingly, the opinion and award of the
Commission is
AFFIRMED.
Judges CALABRIA and ELMORE concur.