Young v. Hickory Business Furniture

• Decision Date: 21 December 2000
• Docket Number: No. 143A00.,143A00.
• Parties: Judy Carolyn YOUNG, Employee v. HICKORY BUSINESS FURNITURE, Employer, Self-Insured (Alexsis, Inc., Servicing Agent).
• Court: North Carolina Supreme Court

538 S.E.2d 912

Judy Carolyn YOUNG, Employee v. HICKORY BUSINESS FURNITURE, Employer, Self-Insured (Alexsis, Inc., Servicing Agent).

No. 143A00.

Supreme Court of North Carolina.

December 21, 2000.

Randy D. Duncan, Hickory, for plaintiff-appellee.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by J.A. Gardner, III, and Melissa L. McDonald, Charlotte, for defendant-appellant.

LAKE, Justice.

This case arises from proceedings before the North Carolina Industrial Commission (the Commission) and raises the issue of whether the Commission's findings of fact were supported by competent evidence establishing causation between an employment-related injury and the development of fibromyalgia.

On 3 March 1992, while working for employer-defendant (Hickory Business Furniture), employee-plaintiff (Young) reached across some chairs to lift another chair and felt a pop in her back and the onset of pain. The accident resulted in plaintiff's suffering a lumbo-sacral strain. Prior to this occurrence, plaintiff had experienced no significant problems with her back.

Following the injury, plaintiff was treated by Dr. Robert Hart, a family practitioner who served as defendant's physician. Dr. Hart recommended therapy for plaintiff's complaints of mid-back pain. Plaintiff's symptoms persisted, and on 31 March 1992, Dr. Hart referred plaintiff to Dr. H. Grey Winfield, an orthopedist. After examination, Dr. Winfield found plaintiff to have full range of motion in the lower extremities, with some evidence of "symptom magnification." Dr. Winfield continued to treat plaintiff through 21 May 1992, after which plaintiff did not return for a follow-up assessment. On 1 April 1992, the parties entered into a Form 21 agreement, compensating plaintiff at a rate of $226.14 per week for "necessary weeks." On her own initiative, plaintiff sought treatment from Dr. Bruce Hilton, a chiropractor, on 9 November 1992, and on 20 July 1993, he rated her as retaining a five percent permanent partial impairment to her back. At the time of the rating, plaintiff continued to experience pain in her back and right hip and tingling in her right leg. On 19 August 1993, the parties signed a Form 26, "Supplemental Memorandum of Agreement as to Payment of Compensation," stipulating to a five percent permanent partial disability and agreeing to compensation of $226.14 for fifteen weeks, beginning 13 July 1993. Plaintiff continued to work until October 1994, when she was discharged by defendant on the basis that she was not physically able to perform her job.

In 1995, plaintiff saw a rheumatologist, Dr. Dennis Payne, for her back problems, whereupon she was diagnosed with fibromyalgia. Dr. Payne's opinion at that time was that plaintiff's condition was likely related to her 1992 work-related injury. On 10 January 1995, plaintiff filed a Form 33, requesting that the claim be assigned for hearing, on which she stated that her condition had substantially worsened and that she had been unable to work from 29 August 1994 to the date of the filing. Defendant filed a response on 29 July 1995, stating that there was no medical evidence to support plaintiff's claim.

The matter was heard by Deputy Commissioner Lorrie L. Dollar on 15 August 1995. On 18 October 1996, she entered an opinion and award concluding that plaintiff had sustained a substantial change in condition and awarding plaintiff temporary total disability compensation from 20 October 1994 and continuing until further order of the Commission. Defendant filed a formal "Application for Review" by the full Commission on 24 January 1997. The matter was reviewed by the full Commission on 7 April 1997. On 2 June 1997, the Commission, with one commissioner dissenting, entered its opinion and award, essentially affirming the deputy commissioner's opinion and award. Defendant gave notice of appeal to the Court of Appeals.

In a unanimous, unpublished decision filed 21 April 1998, the Court of Appeals held that the Commission failed to make sufficient findings of fact to support its order, vacated the Commission's opinion and award, and remanded the matter to the Commission "for definitive findings and proper conclusions therefrom, and entry of the appropriate order."

On 28 January 1999, the full Commission, with one commissioner dissenting, entered a new opinion and award, setting out additional findings of fact and conclusions of law and again awarding plaintiff temporary total disability compensation from 20 October 1994 and continuing until further order of the Commission. Once again, defendant gave notice of appeal to the Court of Appeals.

In a published, split decision, the Court of Appeals affirmed the Commission's opinion and award. Defendant appeals to this Court from the decision of the Court of Appeals on the basis of the dissent.

The issue before this Court is whether there was competent evidence presented to establish a causal connection between the original injury by accident to plaintiff's back on 3 March 1992 and her later diagnosis of fibromyalgia. The Court of Appeals' majority determined that competent evidence was presented which was sufficient to support the Commission's findings of fact. We disagree.

Although it is well established that "`[t]he [Industrial] Commission is the sole judge of the credibility of the witnesses and the [evidentiary] weight to be given their testimony,'" Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)), findings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them, Saunders v. Edenton Ob/Gyn Ctr., 352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000). In the instant case, the Industrial Commission's findings of fact with regard to the cause of Ms. Young's fibromyalgia were based entirely upon the weight of Dr. Payne's opinion testimony as an expert in the fields of internal medicine and rheumatology. Therefore, the competency of that testimony is determinative in our analysis and decision in this case.

Due to the complexities of medical science, particularly with respect to diagnosis, methodology and determinations of causation, this Court has held that "where the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury." Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). However, when such expert opinion testimony is based merely upon speculation and conjecture, it can be of no more value than that of a layman's opinion. As such, it is not sufficiently reliable to qualify as competent evidence on issues of medical causation. Indeed, this Court has specifically held that "an expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility." Dean v. Carolina Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94 (1975); see also Cummings v. Burroughs Wellcome Co., 130 N.C.App. 88, 91, 502 S.E.2d 26, 29,

disc. rev. denied, 349 N.C. 355, 517 S.E.2d 890 (1998); Ballenger v. Burris Indus., 66 N.C.App. 556, 567, 311 S.E.2d 881, 887,

disc. rev. denied, 310 N.C. 743, 315 S.E.2d 700 (1984).

In the case sub judice, the Court of Appeals held that Dr. Payne's opinion regarding the etiology of plaintiff's current condition was more than mere speculation and, therefore, was sufficient to support the Commission's finding that plaintiff's reactive fibromyalgia was caused or substantially aggravated by her original injury by accident. Young v. Hickory Bus. Furn., 137 N.C.App. 51, 56, 527 S.E.2d 344, 348 (2000). However, a review of Dr. Payne's deposition, the sole source of evidence pertaining to his opinion, reveals that his opinion as to the causative nature...