Opinion
I.C. NOS. 698053 918381
Filed 6 February 2002.
This matter was reviewed by the Full Commission on December 17, 2001 upon the appeal of Defendant from the Opinion and Award of Deputy Commissioner Kim L. Cramer filed February 28, 2001. This case was heard before Deputy Commissioner Cramer in Asheville, N.C. on November 15, 1999.
Plaintiff: Ganly Ramer Strom, Attorneys, Asheville, NC; Thomas Ramer, Counsel of Record.
Defendants: Root Root, Attorneys, Asheville, NC; Louise Root, Counsel of Record.
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The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Kim L. Cramer and briefs before the Full Commission. The appealing party has not shown good ground to reconsider the evidence; rehear the parties or their representatives; or amend the Opinion and Award. Accordingly, the Full Commission affirms the Opinion and Award of Deputy Commissioner Kim L. Cramer.
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The Full Commission finds as fact and concludes as matters of law the following which were entered into by the parties through the Pre-trial Agreement and at the hearing as:
STIPULATIONS
1. On March 10, 1997 and November 20, 1997, the dates of the alleged injuries by accident giving rise to these claims, the parties were subject to and bound by the North Carolina Workers Compensation Act.
2. On those occasions, an employee-employer relationship existed between the Plaintiff and the employer, Ingles.
3. On those occasions, the employer was self-insured.
4. Plaintiff's average weekly wage is subject to verification.
5. The parties submitted medical records which were attached to the Pre-trial Agreement and received as evidence.
6. The issues before the Commission are as follows:
(a). Has Plaintiff sustained an occupational disease or injury by accident?
(b). Are her current disability and medical problems related to her occupational disease or injury?
(c). If so, what benefits are due?
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Based upon the competent evidence of record, the Full Commission makes the following additional:
FINDINGS OF FACT
1. Plaintiff is employed by Ingles Markets, and has been working as a clerk and cashier in the health and beauty aid department for several years. Her duties include ordering the items sold in this department such as shampoo and other health and beauty supplies, and keeping these items stocked and neat and orderly on the shelves. The cashier duty involves pulling items across the scanner, so they are rung up on the register, bagging these items, and placing the bags in the grocery cart.
2. Plaintiff generally orders items from the warehouse on Fridays. She uses a hand-held device to record the items needed, and it takes her about three hours to take a count and finish her order. After the items arrive from the warehouse, she restocks the shelves. Items usually arrive on Monday evenings and Plaintiff restocks the shelves on Tuesday mornings. When not performing these duties, Plaintiff works as cashier.
3. On March 10, 1997, Plaintiff was working in the stock room, removing items to be stocked on the store shelves. Plastic totes filled with beauty aids were stacked on a pallet over her head. When she cut the plastic strap holding the totes, a stack of these totes fell onto her and knocked her down. She was dazed, but it does not appear that she completely lost consciousness.
4. Plaintiff's accident of March 10, 1997 was accepted as compensable by the Defendants in I.C. No. 698053 and benefits have been paid. The Form 28B completed by Key Risk shows that Plaintiff was paid temporary total disability benefits from March 11 through April 7, 1997. Medical benefits totaling $3,382.63 were also paid.
5. The Form 60 filed in I.C. claim No. 698053 shows an average weekly wage of $290.00 and a compensation rate of $193.34.
6. Following the accident of March 10, 1997, Plaintiff was taken by EMS to the emergency room at Memorial Mission Hospital. She was examined at the ER by Dr. Stacie Horine. The EMS staff noted that Plaintiff had eye fluttering and as both they and Dr. Horine observed, it does not appear that Plaintiff was knocked unconscious.
7. At the emergency room, Plaintiff complained of low back and right hip pain, which were consistent with muscle strain. Dr. Horine found that Plaintiff had discomfort with motion, but a full range of motion. Dr. Horine ordered x-rays of the cervical spine and a CT scan of the head. The cervical spine x-rays were negative and the CT head scan was normal. Dr. Horine referred Plaintiff to Dr. Joseph Dement, an orthopaedic specialist, for follow-up.
8. Dr. Dement treated Plaintiff beginning March 19, 1997, and last saw her May 14, 1999. Plaintiff's initial complaints were of back pain, which were consistent with a muscle strain from her accident. Dr. Dement treated her with anti-inflammatory medicines and muscle relaxants. He took her out of work until March 31, 1997, when he released her to return to full duty except for the restriction of no lifting over twenty pounds.
9. As a result of her back pain and lifting restrictions, Plaintiff was temporarily assigned more cashiering work and less stocking. The cashiering required that she pull the grocery items over the scanner, bag these items and then place these bags of groceries back into the grocery carts. This required lifting from less than 5 to up to 25 pounds for a bag of dog food.
10. Plaintiff began experiencing numbness in her left hand with left elbow pain and stiffness and some tingling in her right hand. She felt that her activity, especially cashier work increased her symptoms. She first reported these symptoms to Dr. Dement at her office visit of May 28, 1997.
11. At her follow-up visit on November 20, 1997, Plaintiff reported ongoing problems with her hands with significant numbness in both hands. Dr. Dement found positive Phalen's and Tinel's signs on both hands and assessed bilateral carpal tunnel syndrome. He ordered nerve conduction studies, which were done in January 1998 by Dr. Duff Rardin and which supported the diagnosis of bilateral CTS.
12. It is Dr. Dement's opinion, and the Full Commission finds as fact, that Plaintiff's employment, with her increased duties as a cashier, was a significant contributing factor to her development of carpal tunnel syndrome. Although Plaintiff had pre-existing factors, which may have contributed as well, such as her smoking habit, her work duties placed her at an increased risk of developing carpal tunnel syndrome.
13. Dr. Dement performed CTS releases on both wrists. The left wrist surgery was done on July 2, 1998 and the right wrist surgery was done on October 29, 1998. As a result of these surgeries, Plaintiff was unable to perform the duties of her employment from July 2, 1998 through August 10, 1998 and again from October 27, 1998 to approximately November 26, 1998. She has subsequently returned to the duties of her employment with Ingles and continues to work as a cashier and stock clerk.
14. Both Dr. Dement and Dr. Lorraine Doyle, a hand specialist who has assessed Plaintiff, agree that she should not do heavy lifting at work, which would appear to be in excess of 30 pounds. She can continue her work as a cashier and stocker, which allows her to vary her duties and reduces any risk of ongoing problems with CTS. Both physicians have advised her to quit smoking, but Plaintiff has not taken this advice.
15. Plaintiff has recovered pretty well from the CTS surgery, though she still has some residual pain. Dr. Dement has not yet made an assessment of any permanent impairment rating to her hands. Although he expressed some concerns about possible RSD, the medical evidence does not support a finding that Plaintiff suffers from RSD.
16. At the request of the Defendants, Plaintiff was also evaluated by Dr. Kristin Gowin, a specialist in internal medicine and rheumatology. Dr. Gowin found that Plaintiff had consistent complaints of pain in the left side of her body, her back, left leg, left arm and hand pain. Dr. Gowin also found tenderness in both arms, which was not specific for any nerve distribution. Plaintiff was positive for 10 of 18 trigger points for fibromyalgia.
17. It is Dr. Gowin's opinion and the Full Commission finds as fact, that Plaintiff has developed fibromyalgia and myofascial pain, which is an unexplained regional pain, as a result of her accident of March 10, 1997. These conditions were aggravated by Plaintiff's work as a cashier and stocker. Dr. Gowin did not take Plaintiff out of work and these conditions do not prevent Plaintiff from carrying out the duties of her employment.
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Based upon the foregoing stipulations and findings of fact, the Full Commission enters the following:
CONCLUSIONS OF LAW
1. On March 10, 1997, Plaintiff sustained an injury by accident arising out of and in the course of her employment with the Defendant-employer. N.C. Gen. Stat. § 97-2(6).
2. As a result of her injury by accident of March 10, 1997, Plaintiff sustained lower back and hip strain. N.C. Gen. Stat. § 97-2(6).
3. As a consequence of the March 10, 1997 injury by accident, and the duties she performed following the accident, Plaintiff developed bilateral carpal tunnel syndrome, an occupational disease pursuant to N.C. Gen. Stat. § 97-53(13).
4. As a consequence of the March 10, 1997 injury by accident, Plaintiff also developed fibromyalgia and myofascial pain syndrome. N.C. Gen. Stat. § 97-2(6).
5. Plaintiff has incurred expenses for reasonably necessary medical treatment for her back and hip strain, the carpal tunnel syndrome and the fibromyalgia and myofascial pain syndrome. Defendants are responsible for payment for all such reasonably necessary medical expenses. N.C. Gen. Stat. §§ 97-2(19), 97-25.
6. As a result of her injuries and her bilateral carpal tunnel syndrome, Plaintiff was unable to earn wages in any employment and was temporarily totally disabled for the following periods: March 11, 1997 through April 7, 1997, July 2, 1998 through August 10, 1998 and again from October 27, 1998 to November 26, 1998. Defendants have paid Plaintiff compensation for the first period, but are responsible to pay Plaintiff for the two periods of disability related to her carpal tunnel surgeries. Defendants are responsible for paying Plaintiff compensation at the rate of $193.34 per week for these periods. N.C. Gen. Stat. § 97-29.
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Based upon the foregoing stipulations, findings of fact and conclusions of law, the Full Commission enters the following:
AWARD
1. Defendants shall pay all medical expenses incurred by Plaintiff for treatment for her back and hip strain, her bilateral carpal tunnel syndrome, including the surgeries performed by Dr. Dement, and her treatment for fibromyalgia.
2. Defendants shall pay Plaintiff compensation at the rate of $193.34 per week for the periods from July 2, 1998 through August 10, 1998 and again from October 27, 1998 to November 26, 1998. These benefits having accrued, shall be paid in a lump sum subject to the attorney's fee.
3. An attorney's fee of twenty-five percent of the compensation awarded to Plaintiff herein is approved for Plaintiff's counsel.
4. Defendants shall pay the costs, including all expert witness fees previously assessed.
This 18th day of December 2001.
S/_____________ THOMAS J. BOLCH COMMISSIONER
CONCURRING:
S/_______________ CHRISTOPHER SCOTT COMMISSIONER
DISSENTING:
S/______________ RENE C. RIGGSBEE COMMISSIONER
For the reasons stated in this opinion, I respectfully dissent from the majority opinion in this case.
Where the exact nature and probable genesis of a particular type of injury involves complicated medical questions removed from the ordinary experience of the layperson, only a qualified expert witness can give an opinion as to the nature and cause of the injury. Young v. Hickory Business Furniture, 300 N.C. 227, 538 S.E.2d 912 (2000); Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). The Commission must, however, first determine whether the proffered expert opinion is competent before the opinion can be weighed as evidence in the case. The testimony of a medical doctor is not "competent" merely because it is uttered by a licensed physician. Expert opinion that rests on speculation and conjecture, or on unproven facts, is not sufficiently reliable to qualify as competent evidence concerning the nature and cause of an injury or disease. Young v. Hickory Business Furniture, supra; Dean v. Carolina Coach Co., 287 N.C. 515. 522. 215 S.E.2d 89, 94 (1975); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). I disagree with the majority opinion in this case, because the majority neglects to consider and find that the medical evidence offered to prove plaintiff's claim is not competent, and thus plaintiff's claim must fail.
First, competent evidence does not support the finding that plaintiff has fibromyalgia. Dr. Godwin, testifying consistently with the American College of Rheumatology recognition of the condition of fibromyalgia, stated that a valid diagnosis of fibromyalgia requires that at least eleven of the potential eighteen trigger points be found positive upon examination of the patient. Dr. Godwin further testified that she could only report 10 trigger point locations; therefore, by definition plaintiff has not met the requirements for the diagnosis of fibromyalgia. Although Dr. Godwin also opines that plaintiff probably has fibromyalgia, this testimony is at best conjecture or speculation because it does not meet accepted medical criteria for the diagnosis, and thus is not competent medical evidence. See Young v. Hickory Business Furniture, supra.
In addition, Dr. Godwin's testimony does not establish the increased risk element required for an occupational disease under Section 97-53(13). Dr. Young testified that she was not sure whether plaintiff's job placed her at an increased risk for fibromyalgia. Dr. Young did not review plaintiff's employment sufficiently to render an opinion, but, upon prodding by counsel did testify that plaintiff's job was probably more repetitive than one would expect at home, so she supposes that plaintiff's work would put her at a higher risk. If "suppose" (Dr. Godwin's word, not mine) is not a term of speculation, then what is? The American Heritage Dictionary of the English Language defines "suppose" as "[t]o assume (something) to be true or real for the sake of argument or explanation" or "[t]o make an assumption; to conjecture." Dr. Godwin's testimony concerning causation, viewed in its context, is clearly speculation and thereby is does not constitute competent evidence in support of plaintiff's claim. Young v. Hickory Business Furniture, supra; Dean v. Carolina Coach Co., 287 N.C. 515. 522. 215 S.E.2d 89, 94 (1975); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
For similar reason, the testimony concerning the causation of plaintiff's carpal tunnel syndrome is not competent. First, I note that Dr. Doyle, the board certified orthopaedic surgeon deposed by plaintiff's counsel, testified:
Q. . . . do you have an opinion as to whether or not that job and her inability to change or alter the tasks during the day placed her at an increased risk of developing carpal tunnel syndrome more than the general population would be exposed to?
MS. ROOT: Objection
THE WITNESS: No. I don't think so.
BY MR. RAMER:
Q. No you don't think —
A. [Interrupting] No. I don't think she was exposed to anything that caused her to have carpal tunnel syndrome.
Q. And in your opinion, did her job duties —
A. [Interrupting] Her job duties were varied enough. This is a woman who already put stress on her hand.
Q. Is that due to the smoking?
A. Well, smoking is a stressful situation on a hand. Nicotine robs the hand of a great deal of its blood supply. It's very, very sensitive to it.
And as I noted in my note, she was advised to stop smoking, first of all, to help her lose some of her symptoms, which, at least at my last note, she had not done.
I see a lot of patients with carpal tunnel syndrome. All of them blame their work environment. Very few of them are.
She had enough duties and enough time that her job gave her enough of a situation where it wasn't going to cause carpal tunnel.
I think a cashiering job is probably not inducive to carpal tunnel syndrome.
Contrary to the findings in the majority opinion, Dr. Doyle, who is plaintiff's current treating physician, did not find that plaintiff's work placed her at an increased risk for developing carpal tunnel syndrome as compared to the general public not so employed.
The majority opinion relies on the testimony of Dr. Dement, the orthopaedic surgeon who performed the carpal tunnel release surgeries. His testimony, however, also does not meet the legal standard for an occupational disease under Section 97-53(13). On pages 19 and 20 of his deposition, Dr. Dement responding to plaintiff's attorney's question concerning causation, answered that he does not know because, although one would think there was an increased risk, "we don't have the scientific studies or the actual articles to show that." In contrast to the majority opinion's finding that Dr. Dement testified that the plaintiff's cashier position was a "significant contributing factor," Dr. Dement does not use the term "significant." Dr. Dement does testify that the plaintiff's work is a factor to be considered in determining whether there is an increased risk. Dr. Dement, however, further testified that his opinion on causation of carpal tunnel is not supported by the scientific literature:
Q. And I think you indicated in direct testimony that the medical studies regarding causation of carpal tunnel syndrome are not clear and somewhat conflicting. Is that correct.
A. That's correct.
Q. Okay. By that, do you mean that its [sic] not clear whether repetitive activity causes carpal tunnel syndrome? Is that thought to be more anecdotal than scientifically proven?
A. Well, I think I mentioned that at least empirically in the office we have the sense that they're related but hadn't had the literature to back it up at times, and there are multifactorial components of repetitive-use injuries.
Although I will be among the first to admit that Dr. Dement's testimony on causation is not clear, he does not testify that plaintiff's employment was a "significant contributing factor" as found by the majority.
I view the function of the Commission to be broader than simply reviewing evidence presented by the parties. North Carolina jurisprudence has long held the proposition that "an expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility." Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000), citing Dean v. Carolina Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94 (1975); 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). Consistent with this position, when examining the evidence in a workers' compensation claim, the Commission's review does not end with the bald statements made by physicians and other expert witnesses; rather, the Commission is entitled to, and must, determine whether the witnesses' opinion is based on sound, scientifically accepted fact or constitutes supposition, speculation, or possibility. Young v. Hickory Business Furniture, supra; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
My dissent does not concern the weight of the credibility of the evidence. Rather, my complaint is that the evidence relied on by the majority is not legally competent. The issue of whether the testimony from the physicians in this case is legally competent evidence is a question of law and thereby is subject to review by the Court of Appeals. See Young v. Hickory Business Furniture, supra.
Signed this ___ day of January, 2002.
S/______________ RENE C. RIGGSBEE COMMISSIONER