Bass v. Harnett Cnty
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA13-356 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 CHARLENE BASS, Employee, Plaintiff, From the North Carolina Industrial Commission I.C. No. W93571 v. HARNETT COUNTY, Employer, SELFINSURED (KEY RISK MANAGEMENT SERVIVES, Servicing Agent), Defendant. Appeal September by 2012 Defendant by the from North opinion Carolina and award Industrial filed 10 Commission. Heard in the Court of Appeals 11 September 2013. Kevin Bunn, Plaintiff. Attorney at Law, PC, by Kevin Bunn, for Prather Law Firm, P.C., by J.D. Prather, for Defendant. STEPHENS, Judge. Procedural History and Factual Background Plaintiff-employee Charlene Bass contends that she developed a compensable occupational disease in June 2010 while -2working as a bus driver for Defendant-employer Harnett County ( the County ). As a result, Plaintiff filed a claim for workers compensation benefits, which the County denied on 14 July 2010. Following a 9 May 2011 hearing, a deputy commissioner issued an opinion and award on 25 January 2012, finding Plaintiff s claim compensable and awarding her medical benefits and ongoing temporary total disability benefits. Specifically, the deputy commissioner concluded that Plaintiff had developed right shoulder employment with the County. problems as a result of her The County appealed to the Full Commission, which on 10 September 2012 filed an award upholding the award of benefits to Plaintiff. opinion and The County appeals. Plaintiff began working as a bus driver for the County in June 2008. Her responsibilities included driving a van-type bus used to transport elderly and infirm patients to and from their medical appointments. Those patients entered and exited the van by way of a mechanically operated door located near the front of the bus. Plaintiff used her right hand to operate the door mechanism and estimated that she did so twenty-five to thirty times per day. In early June 2010, Plaintiff began experiencing pain and weakness on her right side from her neck down her right arm when operating the door mechanism. On the morning of 22 June 2010, -3Plaintiff woke to find she could not move her right arm. sought where medical an X treatment ray arthrosis. at revealed Plaintiff shoulder joint. Betsy that Johnson she had Regional [m]ild She Hospital, degenerative was diagnosed with pain in her right The mechanism of Plaintiff s shoulder injury was characterized as frequent use. Plaintiff was given an arm sling, prescribed pain medication, and told to limit the use of her arm for several days. Shortly thereafter, Plaintiff attempted to return to work, but her supervisor would not permit her do so until she had been released to full duty and taken off pain medication. Thereafter, various Plaintiff providers shoulder. for received continued medical pain in treatment her right from arm and On 11 February 2011, Dr. R. Alexander Creighton, a board-certified orthopedic surgeon at UNC Hospitals, began treating plaintiff for pain in her right shoulder and her neck. Creighton conducted a physical examination of Plaintiff and reviewed X rays and an MRI of her shoulder, which led him to diagnose Plaintiff with arthritis at the right acromioclavicular joint, rotator cuff inflammation, tendinosis, shoulder impingement, and a small bone spur. bursitis, right At that time, Creighton recommended physical therapy. On 18 April 2011, Plaintiff returned to Creighton, who noted that Plaintiff had degenerative cervical spine issues in -4addition to her right shoulder condition. Accordingly, Plaintiff was referred to a spine specialist whose evaluation revealed that Plaintiff was also suffering from spinal stenosis and nerve root entrapment. Creighton, who provided the only expert medical testimony before the Commission, testified that Plaintiff s right shoulder condition was complicated by her cervical spine issues. Creighton further testified that repeatedly opening and closing a mechanical bus door obviously put more [Plaintiff s] shoulder and upper extremity[.] that Plaintiff s employment substantially stress on Creighton opined contributed to her right shoulder condition. Discussion Defendant brings forward two arguments on appeal: that the Commission erred in concluding that Plaintiff (1) developed a compensable occupational disease of the shoulder and (2) remains disabled as a result of her shoulder condition. We affirm. Standard of Review In workers compensation cases, our review is limited to two issues: (i) whether the findings of fact are supported by competent evidence, and (ii) whether the conclusions of law are justified by the findings of fact. Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006), reh g denied, 361 N.C. 227, 641 S.E.2d 801 (2007). We review the Commission s -5conclusions of law de novo. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 68, 526 S.E.2d 671, 675 (2000). However, so long as there is some evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary. Shah v. Howard Johnson, 140 N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (citations and internal quotation marks omitted), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001). Determinations of the weight and credibility to be given the competent evidence are left to the Commission. Deese v. Champion Int'l Corp., 352 N.C. 109, 116-17, 530 S.E.2d 549, 553 (2000). A. Compensable Nature of Plaintiff s Shoulder Condition The County first argues that the Commission erred in concluding that Plaintiff developed a compensable occupational disease. We disagree. Section 97-53(13) defines an occupational disease as: Any disease which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment. For an occupational disease to be compensable under [section] 97-53(13) it must be (1) characteristic of persons engaged in the particular trade or occupation in which the [plaintiff] is engaged; (2) not an ordinary disease of life to which the public generally -6is equally exposed with those engaged in that particular trade or occupation; and (3) there must be a causal connection between the disease and the [plaintiff s] employment. Chambers, 360 N.C. at 612, 636 S.E.2d at 555 (citations, internal quotation marks, and ellipses omitted). On appeal, the County challenges only the third element of compensability, to wit, the existence of a causal relationship between Plaintiff s shoulder condition and her employment. element is satisfied contributed to, or if was a the However, the causation employment significant causal significantly factor in, the disease s development[,] even if other non-work-related factors also make significant contributions, or were significant causal factors. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 101, 301 S.E.2d 359, 369-70 (1983). [W]here particular questions, the type . . exact of . nature injury only an and probable involves expert can evidence as to the cause of the injury. genesis complicated give competent of a medical opinion Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (citations omitted). required. Medical certainty about causation is not Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003). However, when such expert opinion testimony is based merely upon speculation and conjecture, . . . it is not sufficiently reliable to qualify as competent evidence on issues -7of medical causation. Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000). In addition, a mere temporal relationship between employment and a medical condition is not competent evidence of causation. Id. at 232, 538 S.E.2d at 916 (rejecting the concept of post hoc, ergo propter hoc (i.e., after it, therefore because of it ) as a basis for establishing medical causation). Relying on Creighton s testimony, the Commission made the following findings of fact regarding causation: 21. Dr. Creighton testified that Plaintiff was diagnosed as having impingement and rotator cuff inflammation and bursitis . . . [and] also obviously had some nerve irritation in that arm too. Dr. Creighton further testified that Plaintiff s shoulder condition was complicated by her neck issues. Dr. Creighton opined that Plaintiff s right shoulder condition developed over time and was not the result of a specific trauma and that Plaintiff s job substantially contributed to her shoulder condition. 22. Dr. Creighton opined that Plaintiff's employment . . . and [] the opening and closing of the door substantially contributed to her developing [the shoulder] condition. . . . Based on its findings, the Commission concluded that Plaintiff has proven by the preponderance of the evidence that the tasks required by her employment as a bus driver with Defendant caused or significantly contributed to the development of her right shoulder problems. -8At deposition, Creighton testified that the type of repetitive shoulder motions involved in Plaintiff s job with the County put more stress on your rotator cuff [and the] bones of your shoulder. Plaintiff Further, operating the after reviewing mechanical video depicting Creighton door, a concluded that the process demonstrated a classic impingement[,] which definitely put[] more stress on her shoulder and that side of her body[.] Creighton further testified that the release mechanism on the bus door put[] some traction on [Plaintiff s] shoulder because explicitly it s confirmed not that a normal motion. Plaintiff s job Creighton substantially contributed to her right shoulder condition: Q[:] Do you believe that her employment places her at increased risk for the kind of shoulder conditions that she has? A[:] Yeah. Yes. Q[:] All right. And do you believe, based on her testimony, that it only occurred at first when she was opening and closing the door, that the opening and closing the door substantially contributed to her developing that condition? A[:] Yes. (Emphasis added). The County contends that Creighton s expert medical opinion was speculative in that (1) Creighton s direct testimony as quoted above was contradicted by his cross-examination testimony -9and Creighton (2) had no objective medical basis for concluding that a causal relationship exists or (3) improperly based his determination of causation upon the notion of post hoc, ergo propter hoc. that We reject each of these assertions and conclude Creighton s medical opinion as to causation was not speculative. In support of its first contention, the County cites Creighton s statement on cross-examination that it s sometimes just the straw that breaks the camel s back in reference to the effect of operating the door mechanism on Plaintiff s shoulder condition. The County argues that this testimony clarif[ied] Creighton s direct examination testimony to show that it is equally plausible that [Plaintiff s] condition ha[s] no causal relationship to her employment whatsoever. The misapprehends the context of Creighton s remark. County Creighton s comment was in response to a question from the County about why it took several months of operating the door mechanism (i.e., from roughly symptoms. January to June 2010) before Plaintiff had Creighton responded by explaining that Plaintiff s degenerative shoulder condition was exacerbated by operating the door mechanism over those months until she began to experience pain and weakness. No fair reading of Creighton s testimony on this point can be construed as anything but supportive of his original, clear statement regarding causation. Indeed, after -10the camel s back remark, on redirect examination, Creighton explicitly reaffirmed his opinion regarding causation: Q[:] Your opinions about the relationship between her employment and her and her medical condition with her shoulder; you comfortable with that? A[:] Yes. Q[:] All right. And you re and and that it substantially contributed to it? A[:] Yes. The above-quoted portions of Creighton s testimony provide ample competent evidence to support the Plaintiff s employment caused or Commission s finding that substantially contributed to her right shoulder condition.1 As 1 for the County s second and third contentions, our We further note that, even if Creighton s testimony was contradictory at times, it is still competent evidence to support the Commission s findings of fact. See Click, 300 N.C. at 167, 265 S.E.2d at 391 (holding that a workers compensation claimant s testimony was competent even though it was contradicted by his prior statements ). That a witness provides contradictory testimony goes to the weight of the evidence and its credibility, Harrell v. J. P. Stevens & Co., Inc., 45 N.C. App. 197, 206, 262 S.E.2d 830, 835, cert. denied, 300 N.C. 196, 269 S.E.2d 623 (1980), and those are determinations reserved for the Commission alone. Hassell, 362 N.C. at 306, 661 S.E.2d at 715 (stating that the Commission may believe all or a part or none of any witness s testimony ); see also Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (stating that our appellate courts may not re-weigh the evidence or assess credibility), reh g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Thus, while Creighton s testimony was less than clear at times, this circumstance is neither unique to this witness nor an issue for this Court to address on appeal. -11review of Plaintiff the record multiple including, inter reveals times, alia, that Creighton (2) rays X reviewed and (1) examined diagnostic MRIs, (3) tests considered Plaintiff s other medical records and history, and (4) reviewed a video recording of Plaintiff operating the door mechanism. This information, in conjunction with Creighton s training, experience, and expertise in orthopedic medicine, served as the bases for Creighton s medical opinion regarding causation, not a mere temporal relationship between Plaintiff s employment and her shoulder condition. Thus, contrary to the County s contention, Creighton s opinion on causation was non-speculative and had an adequate basis that did not rely on post hoc, ergo propter hoc. In sum, Creighton s testimony provided competent evidence to support the Commission s findings of fact, and those findings of fact in turn support the Commission s determination of a causal connection. Accordingly, all of the County s arguments as to causation are overruled. B. Plaintiff s Continuing Disability The County also argues that the Commission erred as a matter of law in finding that Plaintiff remains disabled as a result of her shoulder condition. Specifically, the County notes that (1) no doctor is currently holding Plaintiff out of work and, (2) even if Plaintiff is disabled, that disability -12could be due to her non-compensable neck condition. We reject each of these arguments. Disability is defined as incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment. N.C. Gen. Stat. ยง 97-2(9) (2011). [I]n order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after [her] injury of earning the same wages [she] had earned before [her] injury in the same employment, (2) that plaintiff was incapable after [her] injury of earning the same wages [she] had earned before [her] injury in any other employment, and (3) that plaintiff s incapacity to earn was caused by plaintiff s injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (citation omitted). Initially, the claimant must prove the extent and degree of his disability. On the other hand, once the disability is proven, there is a presumption that it continues until the employee returns to work at wages equal to those he was receiving at the time his injury occurred. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 475-76, 374 S.E.2d 483, 485 (1988) (citations omitted). It is well established that an employer takes the employee as he finds weaknesses. her with all her pre-existing infirmities and Morrison v. Burlington Indus., 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981). Thus, a plaintiff s employment need not -13 be the sole cause of the worker s incapacity for work [for] full benefits employment is [to] a 308 N.C. internal quotation need allowed contributing Rutledge, employment be at 104, marks not be when is factor 301 to S.E.2d at omitted). the it sole shown the 371 the disability. (citation Because causative that a and plaintiff s force in her disability, in order to receive disability benefits, an employee must only prove that her employment reasonable degree to the disability. contributed in some Brafford v. Brafford s Constr. Co., 125 N.C. App. 643, 646-47, 482 S.E.2d 34, 37 (1997) (citations omitted). We are Plaintiff not did persuaded not by establish the the County s existence contention of her that current disability because no doctor is holding her out of work. The Commission made the following findings of fact, which the County has not challenged on appeal and which are thus binding on this Court: 8. Plaintiff could not work while on Vicodin as she was not permitted to drive the [C]ounty bus while taking this medication. When Plaintiff returned to her employment on June 22, 2010 she was advised by Mr. Thurman [Plaintiff s supervisor] to return when she had been released to full duty. 9. Mr. Thurman, Defendant s Transit Service Manager, talked with Plaintiff about her shoulder. After being asked by Mr. Thurman how she was opening the van door, Plaintiff demonstrated with her right hand only. Mr. -14Thurman recommended she should use two hands when operating the door. Plaintiff notified Mr. Thurman she believed she had a right shoulder condition related to her job on or about June 28, 2010 and Mr. Thurman directed Plaintiff to Edgewater Medical Center Urgent Care. . . . 23. Dr. Creighton opined that Plaintiff is disabled from her current employment because she would have a tough time doing everything that s required in her job. . . . 28. Plaintiff has been out of work since June 23, 2010. Melinda Bethune, risk management safety coordinator for Harnett County, testified at the hearing before the Deputy Commissioner that there was no light duty work for Plaintiff available with Defendant. This Court has repeatedly held that evidence of an employer s refusal to allow an employee to return to work because there was no light work available supports a finding that the employee was not capable of earning wages in the same employment. Moore v. Davis Auto Serv., 118 N.C. App. 624, 628, 456 S.E.2d 847, 851 (1995); see also Chavis v. TLC Home Health Care, 172 N.C. App. 366, 375, 616 S.E.2d 403, 411-12 (2005), appeal dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006). Accordingly, the findings of fact quoted above support the Commission s finding of fact 29, that Plaintiff is disabled from her current employment. As for the County s assertion that conclusion of law 6, that Plaintiff s disability was a result of [her] right -15shoulder problems is not supported, we must again disagree. The County contends that Creighton never explicitly linked Plaintiff s disability to her compensable shoulder condition, as opposed to her non-compensable neck condition. As noted supra, Plaintiff need not show that her compensable shoulder condition is the sole contributed work. cause in of some Brafford, her disability, reasonable 125 N.C. degree App. at 647, but to only 482 it inability her that to S.E.2d at 37. Therefore, whether Plaintiff s non-compensable neck condition is a partial or irrelevant. competent contributing Plaintiff s evidence, a factor burden was connection to her merely to between shoulder condition and her disability. disability is establish, her by compensable See id. Our review reveals that testimony from both Creighton and Plaintiff herself was competent evidence of this connection. On cross-examination, the County s counsel asked about the physical movements required to operate the door mechanism as depicted in the video Creighton had reviewed. Creighton affirmed that the position of Plaintiff s arm and the amount force required to operate the door, motion, all played along roles with in compensable shoulder condition. the the repetitive development nature of of the Plaintiff s Then, after a lengthy line of questions about the field of ergonomics, the County s counsel asked if Creighton believed Plaintiff was disabled from -16employment? Creighton replied, I think she s currently would have a tough time doing everything that s required in her job. that Immediately thereafter, on redirect, Creighton testified Plaintiff was disabled from her current employment[,] and, when asked again about Plaintiff s disability, repeated, Yes. I don t think she could do [her job] currently. opinions were plainly made in reference to These Plaintiff s compensable shoulder condition, about which Creighton had been testifying for transcript. the preceding nine pages of deposition This competent evidence supports finding of fact 23, that Dr. Creighton opined that Plaintiff is disabled from her current employment because she would have a tough time doing everything supports the that s conclusion required that in her job Plaintiff s which disability in turn was a result of [her] right shoulder problems. In addition, Plaintiff s own testimony supports the connection between her disability and her compensable shoulder condition. van driver Plaintiff testified that she had been employed as a for the County since June 2008. She further testified that she had been able to perform her job until June 2010, some six months after she began driving the van with the door mechanism. In June 2010, the symptoms of Plaintiff s compensable shoulder condition began and were always associated with operation of the door mechanism. Those symptoms led to the -17prescription of medication that prevented Plaintiff from being able to drive the van, resulted in her being restricted for a period of time to work without the use of [her] right upper extremity[,] and, as noted supra, even after her release to return to work, the County has refused to allow her to do so. In sum, Plaintiff s own testimony that she was able to work prior to the onset of the compensable shoulder condition and unable to work or not permitted to work after its onset indicates that her compensable shoulder condition contributed in some reasonable degree to the disability. we hold that Plaintiff compensable the Commission remains shoulder totally did not disabled condition and is Id. Accordingly, err in concluding as a result entitled to of For these reasons, the Commission s opinion and award is Judges CALABRIA and ELMORE concur. Report per Rule 30(e). her continuing disability benefits. AFFIRMED. that
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