Alexander v. Wal-Mart Stores, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: THORNBURG.
• Citation: Alexander v. Wal-Mart Stores, Inc., 166 N.C.App. 563, 603 S.E.2d 552 (N.C. App. 2004)
• Decision Date: 19 October 2004
• Docket Number: No. COA03-1215.,COA03-1215.
• Parties: John ALEXANDER, Employee, Plaintiff, v. WAL-MART STORES, INC., Employer, American Home Assurance Company, Carrier, Defendants.

603 S.E.2d 552

166 NC App. 563

John ALEXANDER, Employee, Plaintiff, v. WAL-MART STORES, INC., Employer, American Home Assurance Company, Carrier, Defendants.

No. COA03-1215.

Court of Appeals of North Carolina.

October 19, 2004.

Brumbaugh, Mu & King, P.A., by Nicole D. Wray, Jacksonville, for plaintiff-appellee.

Young Moore and Henderson, P.A., by J. Aldean Webster III, Raleigh, for defendant-appellants.

THORNBURG, Judge.

Defendants Wal-Mart Stores, Inc. and American Home Assurance Company appeal from an opinion and award entered 24 March 2003 by the North Carolina Industrial Commission ("the full Commission") in favor of plaintiff John Alexander. Defendants argue four issues on appeal: (1) that the full Commission erred by finding a causal relationship between plaintiff's injury by accident at work and plaintiff's back injury; (2) that the full Commission erred in awarding plaintiff temporary total disability benefits; (3) that defendants are entitled to restitution from plaintiff because of overpayment of benefits; and (4) that the full Commission erred by designating Dr. Toni Harris as plaintiff's treating physician. In addition, plaintiff argues that this Court should tax defendants with the costs associated with this appeal.

Background

The evidence before the full Commission included the following: On 8 April 1999, plaintiff sustained a compensable injury by accident to his left foot while working for defendant Wal-Mart. Plaintiff was treated by several physicians for this injury including Dr. Toni Harris, who specializes in pain management. Dr. Harris administered an epidural to plaintiff, which caused plaintiff to experience severe back pain. Dr. Harris then discovered that plaintiff had herniated disks in his back. Dr. Harris wanted to investigate whether plaintiff's back problems were related to his foot and ankle pain. She attempted to refer plaintiff to a neurosurgeon for further evaluation, but defendants denied this referral.

Defendants did refer plaintiff to Dr. Robert Fletcher for an independent medical evaluation of plaintiff's foot and back injuries. Dr. Fletcher conducted this evaluation on 21 July 2000 and opined that plaintiff's back injury was not related to plaintiff's accident at work. On 17 July 2000, defendants filed an Industrial Commission form 33 requesting a hearing to determine "whether the medical treatment plaintiff has been receiving is related to the 4-8-99 incident" and defendants' "further liability to plaintiff, if any."

Following a hearing on 9 May 2001, the Chief Deputy Commissioner of the North Carolina Industrial Commission issued an opinion and award ordering defendants to continue to pay plaintiff temporary total disability benefits until further order of the Commission. The opinion and award also designated Dr. Harris as plaintiff's treating physician and allowed Dr. Harris to authorize a referral to a neurosurgeon "should it be deemed necessary to effect a cure, provide relief or reduce the period of Alexander's disability." On 24 March 2003, the full Commission filed an opinion and award affirming the opinion and award of the chief deputy commissioner with minor modifications. Defendants appeal.

Standard of Review

The standard of review for an appellate court reviewing an appeal from the North Carolina Industrial Commission is limited to determining whether competent evidence supports the findings of fact and whether the findings of fact support the full Commission's conclusions of law. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Thus, this Court may 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." Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965). Furthermore, the evidence tending to support plaintiff's claim must be taken in the light most favorable to plaintiff, and plaintiff "is entitled to the benefit of every reasonable inference to be drawn from the evidence." Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).

Causation

Defendants first contend that competent evidence does not support the full Commission's determination that the 8 April 1999 workplace accident caused plaintiff's ruptured disc. The full Commission made the following finding of fact on causation:

The greater weight of the evidence establishes that plaintiff's ruptured disc was a result of his accident on April 8, 1999. Dr. Harris's testimony, taken as a whole, establishes that it was "likely" that the rupture occurred during the accident. Dr. Harris' opinion is given more weight than that of Dr. Fletcher. First, Dr. Fletcher was not aware that plaintiff had fallen during the accident, even though when made aware of that fact, he testified that it was not likely that a simple fall would cause the rupture.

Second, Dr. Harris testified that she had previously treated patients in which an asymptomatic disc as to back pain could produce the symptoms in the feet such as plaintiff was experiencing. Third, Dr. Fletcher, when confronted with Dr. Harris' opinions, admitted that he would not disagree with Dr. Harris based on his opinion of her medical skills.

Based on this finding, the full Commission concluded as a matter of law that "[p]laintiff has proven by the greater weight of the evidence that the ruptured disc at L5-S1 was caused by the accident of April 8, 1999."

After careful review of the record on appeal, we conclude that competent evidence does not support the full Commission's finding and conclusion that plaintiff's ruptured disc was caused by the 8 April 1999 workplace accident. Dr. Harris, by deposition, testified that she started treating plaintiff on 16 March 2000. Dr. Harris indicated that plaintiff had been referred to her for treatment of foot and ankle pain stemming from an injury at work. In order to determine "if there was any component of the foot pain from his back," Dr. Harris administered an epidural injection to plaintiff's back. Dr. Harris testified that plaintiff returned to her office shortly after the epidural complaining of back pain. An MRI ordered as a result of this complaint revealed a herniated disk at L5-S1. In her deposition, Dr. Harris explained that she believed the volume injected with the epidural put pressure on the disk, causing plaintiff to feel back pain.

Dr. Harris then stated:

My suspicion is that ... he probably, when he fell—I think when this thing ran over his foot, he didn't just stand there. He fell backwards as it was going over his foot. I mean, you can imagine that you would respond, your whole body would respond. I suspect that he got the herniated disk then....

Thereafter, the following exchange occurred between Dr. Harris and plaintiff's attorney:

Q. [Plaintiff's attorney] You testified that you suspected—suspected that his herniated disk occurred when he had the accident at work. Can you say that to a reasonable degree of medical probability?

A. [Dr. Harris] I don't know. I don't know. All I wanted to know at the time was I wanted to treat him, to see if his foot pain got any better, and that would tell us that some of the problem with the foot was from the back.

On cross examination this exchange transpired between defendants' attorney and Dr. Harris:

A. [Dr. Harris] I was not—I was not treating a back condition. I was treating—I was treating the foot pain. And if that one nerve that goes to that foot starts in the back, if I can't get that nerve down here, I'm going to try to get it in the back.

Q. [Defendants' attorney] But you are basing this on an assumption that he injured his back at the time of the fall?

A. [Dr. Harris] The chances are likely, but her [the claims adjuster] mistake was not letting me do this, `cause if the foot didn't get any better, we could say, "Well the disk probably isn't doing it." You can't tell.

We conclude that this testimony does not support the full Commission's findings and conclusions that plaintiff's accident at work caused his back injury. In a workers' compensation case, the plaintiff has the burden of proving causation by the preponderance of the evidence. Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003). Where the nature of the injury alleged involves complicated medical questions, only an expert can give competent evidence as to causation. Click v. Pilot Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Further, "[a]lthough expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury, it is insufficient to prove causation, particularly `when there is additional evidence or testimony showing the expert's opinion to be a guess or mere speculation.'" Holley, 357 N.C. at 233, 581 S.E.2d at 753 (2003)(quoting Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000))(internal citation omitted).

In the instant case, plaintiff presented Dr. Harris's expert testimony on causation as required by our Supreme Court's holding in Click. However, when asked directly, Dr. Harris could not give an opinion with reasonable medical probability on the cause of plaintiff's back injury. Furthermore, Dr. Harris prefaced her statements on causation using language such as "[m]y suspicion is" and "I suspect." Dr. Harris did use the word "likely," in response to a question on causation by defendants' attorney. However, the context in which it was used shows that Dr. Harris's concern was with a possible relationship between plaintiff's back injury and his foot pain, as opposed to an attempt to evaluate the causal link between the 8 April 1999 accident and plaintiff's back injury.

We conclude that Dr. Harris's testimony "taken as a whole" was that she did not possess enough information concerning plaintiff's back injury to provide more than her suspicion as to its cause. As she...