Philbeck v. University of Michigan

NO. COA13-911

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

NORLINDA PHILBECK,

Employee,

Plaintiff

v. From The North Carolina

Industrial Commission

I.C. No. X60971

UNIVERSITY OF MICHIGAN,

Employer,

and

STAR INSURANCE COMPANY,

Carrier,

Defendants.

Appeal by defendants from opinion and award entered 25

April 2013 by the North Carolina Industrial Commission. Heard

in the Court of Appeals 8 January 2014.

Bobby L. Bollinger, Jr. for plaintiff-appellee.

Rudisill White & Kaplan, P.L.L.C., by John R. Blythe, for

defendants-appellants.

DAVIS, Judge.

University of Michigan and Star Insurance Company

(collectively “Defendants”) appeal from the Opinion and Award of

the North Carolina Industrial Commission (“the Commission”)

awarding Norlinda Philbeck (“Plaintiff”) workers’ compensation

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benefits. The primary issue before us is whether the Commission

erred in concluding that Plaintiff’s accident was due to an

unexplained fall and, therefore, compensable. After careful

review, we affirm the Commission’s Opinion and Award.

Factual Background

Plaintiff is a 67-year-old woman who was employed at the

time of her injury by the University of Michigan as a field

interviewer in social sciences research. Plaintiff’s job duties

required her to travel from her home in North Carolina to

various locations on the East Coast to interview potential

participants for a research study. Plaintiff would travel to an

assigned location and interview randomly selected individuals.

On 8 August 2011, Plaintiff was in Columbia, Maryland

conducting interviews for the study. Plaintiff visited a small

apartment complex and attempted to interview one of the

residents. When she discovered that the resident was not

eligible to participate in the study, Plaintiff began walking

back to her vehicle. On the way to her vehicle, Plaintiff fell

and fractured her left arm near her wrist. At the hearing

before the deputy commissioner, Plaintiff testified: “I don’t

know why I fell. . . . I might have stumbled. I don’t know what

happened. . . . Seconds after I hit the ground I think that I –

I was kind of dazed. I think I might have been on the ground a

few seconds and then I looked at my arm and I could see that it

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was knocked out of place. It was deformed.”

Plaintiff was transported to Laurel Regional Hospital for

treatment, and medical personnel administered various tests in

an effort to determine why she had fallen. Plaintiff testified

that the emergency room staff “didn’t know why [she] fell” and

“said there was no medical reason.” Medical records from the

emergency room indicated that Plaintiff had suffered a fall, was

unable to explain what caused her to fall, and had experienced a

loss of consciousness. Dr. Michael E. Carlos, one of her

treating physicians at Laurel Regional Hospital, noted that

“vasovagal mechanism” was the “most likely reason for the

syncope [loss of consciousness]” and that the injury to

Plaintiff’s arm was a “left radioulnar fracture.”

Dr. Neveen Habashi (“Dr. Habashi”), Plaintiff’s primary

care physician since 2006, reviewed Plaintiff’s medical records

from Laurel Regional Hospital and opined that Plaintiff’s fall

was caused by heat exhaustion. Dr. Habashi was not, however,

able to state with a reasonable degree of medical certainty that

heat exhaustion was the cause of Plaintiff’s fall. Instead, Dr.

Habashi noted that since Plaintiff had “no underlying medical

problems that would predispose her” to falling and passing out,

Plaintiff’s fall was likely “environmentally related.” Dr.

Habashi also acknowledged that at the time she concluded that

Plaintiff’s fall was probably heat related, she was not aware of

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the note on Plaintiff’s intake records from the hospital stating

that Plaintiff “was not overheating.”

When Plaintiff returned to North Carolina, she sought

treatment for her left arm from Dr. Mark McGinnis (“Dr.

McGinnis”), an orthopedic surgeon. Dr. McGinnis surgically

repaired the fracture on 15 August 2011 using a dorsal plate and

seven surgical screws. Plaintiff subsequently had numerous

follow-up visits with Dr. McGinnis. Dr. McGinnis took Plaintiff

out of work until 6 September 2011, at which time he released

her to work with a one-pound lifting restriction for her left

arm. On 18 October 2011, Dr. McGinnis placed Plaintiff on a

left arm lifting restriction of no more than 20 pounds. On 12

December 2011, Dr. McGinnis concluded that Plaintiff had reached

maximum medical improvement and released Plaintiff to work

without restrictions.

Plaintiff filed a Form 18 seeking workers’ compensation

benefits in connection with her 8 August 2011 fall, and on 15

November 2011, Defendants denied Plaintiff’s claim on the basis

that the “alleged injuries were a result of [an] idiopathic

condition.” The matter was heard by Deputy Commissioner Phillip

A. Holmes on 22 May 2012. Deputy Commissioner Holmes filed an

opinion and award on 22 October 2012 concluding that Plaintiff’s

injury was “due to factors that were not job related” and

denying her claim for workers’ compensation benefits.

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Plaintiff appealed, and the Full Commission heard the

matter on 1 March 2013. In its Opinion and Award filed on 25

April 2013, the Commission, with one commissioner dissenting,

reversed the deputy commissioner and awarded Plaintiff temporary

total disability benefits. Defendants appealed to this Court.

Analysis

I. Compensability of Plaintiff’s Injury

Our review of an opinion and award of the Industrial

Commission is “limited to consideration of whether competent

evidence supports the Commission’s findings of fact and whether

the findings support the Commission’s conclusions of law.”

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,

669 S.E.2d 582, 584 (2008). When reviewing the Commission’s

findings of fact, this Court’s “duty goes no further than to

determine whether the record contains any evidence tending to

support the finding[s].” Id. (citation and quotation marks

omitted).

The findings of fact made by the Commission are conclusive

on appeal if supported by competent evidence even if there is

also evidence that would support a contrary finding. Nale v.

Ethan Allen, 199 N.C. App. 511, 514, 682 S.E.2d 231, 234, disc.

review denied, 363 N.C. 745, 688 S.E.2d 454 (2009). The

Commission’s conclusions of law, however, are reviewed de novo.

Gregory v. W.A. Brown & Sons, 212 N.C. App. 287, 295, 713 S.E.2d

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68, 74, disc. review denied, ___ N.C. ___, 719 S.E.2d 26 (2011).

Evidence supporting the plaintiff’s claim is to be viewed in the

light most favorable to the plaintiff, and the plaintiff is

entitled to the benefit of any reasonable inferences that may be

drawn from the evidence. Adams v. AVX Corp., 349 N.C. 676, 681,

509 S.E.2d 411, 414 (1998).

Under the Workers’ Compensation Act, an injury is

compensable if the claimant proves three elements: “(1) that

the injury was caused by an accident; (2) that the injury was

sustained in the course of the employment; and (3) that the

injury arose out of the employment.” Hedges v. Wake Cty. Pub.

Sch. Sys., 206 N.C. App. 732, 734, 699 S.E.2d 124, 126 (2010)

(citation and quotation marks omitted), disc. review denied, ___

N.C. ___, 705 S.E.2d 746 (2011). Here, Defendants acknowledge

that Plaintiff’s injury was (1) caused by an accident; and (2)

sustained in the course of her employment. However, the

Commission erred in awarding compensation, they argue, because

the injury did not arise out of Plaintiff’s employment.

Specifically, they contend that Plaintiff fell because she

fainted and, as such, her injury could not be deemed compensable

under the doctrine of “unexplained falls.”

In a workers’ compensation case, if the cause or origin of

a fall is unknown or undisclosed by the evidence, “we apply case

law unique to unexplained fall cases. When a fall is

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unexplained, and the Commission has made no finding that any

force or condition independent of the employment caused the

fall, then an inference arises that the fall arose out of the

employment.” Id. at 736, 699 S.E.2d at 127. This inference is

permitted because when the cause of the fall is unexplained such

that “[t]here is no finding that any force or condition

independent of the employment caused or contributed to the

accident[,] . . . the only active force involved [is] the

employee’s exertions in the performance of his duties.” Id.

(citation omitted).

Unexplained falls, however, are differentiated in our case

law from falls associated with an idiopathic condition of the

employee. “An idiopathic condition is one arising spontaneously

from the mental or physical condition of the particular

employee.” Hodges v. Equity Grp., 164 N.C. App. 339, 343, 596

S.E.2d 31, 35 (2004) (citation and quotation marks omitted).

Unlike a fall with an unknown cause — where “an inference that

the fall had its origin in the employment is permitted” — a fall

connected to an idiopathic condition is not presumed to arise

out of the employment. Id. at 344, 596 S.E.2d at 35 (citation

and quotation marks omitted). Instead, the compensability of an

injury caused by a fall associated with an idiopathic condition

is determined as follows:

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(1) Where the injury is clearly attributable

to an idiopathic condition of the employee,

with no other factors intervening or

operating to cause or contribute to the

injury, no award should be made; (2) Where

the injury is associated with any risk

attributable to the employment, compensation

should be allowed, even though the employee

may have suffered from an idiopathic

condition which precipitated or contributed

to the injury.

Hollar v. Montclair Furniture Co., 48 N.C. App. 489, 496, 269

S.E.2d 667, 672 (1980).

Defendants argue that Plaintiff’s injury was not

compensable because her fall (1) was a result of an idiopathic

condition; and (2) was not associated with any risk attributable

to her employment. In making this argument, Defendants rely

primarily on Hollar. In Hollar, the plaintiff was working in an

“extremely hot” and poorly ventilated work environment when she

“suddenly, for an unexplained reason, felt as if she were

passing out.” Id. at 490, 269 S.E.2d at 669. The plaintiff

fainted, fell to the floor, and struck her back. The Commission

concluded that the plaintiff’s injury was not compensable, and

she appealed to this Court. Id. at 489, 269 S.E.2d at 668.

On appeal, we first noted that the plaintiff’s fall “d[id]

not come within the ‘unexplained’ category of falls” because “it

[was] clear that [the] plaintiff fell because she fainted.” Id.

at 491, 269 S.E.2d at 669. Consequently, we determined that the

compensability of the plaintiff’s claim turned on why she

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fainted — specifically, “whether [her] fainting was caused in

any part by the conditions or circumstances of her employment.”

Id. at 497, 269 S.E.2d at 672. Because the record was devoid of

any medical evidence as to why the plaintiff fainted, we

remanded the matter to the Commission so that it could determine

if the plaintiff’s fainting was caused solely by an idiopathic

condition or if it was in some way associated with the

conditions of her employment. Id.

Defendants contend that this Court’s decision in Hollar is

controlling in the present case. As such, they argue that the

Commission erred in applying the law of unexplained falls to

Plaintiff’s claim. We disagree.

Here, in determining that Plaintiff’s injury arose from her

employment and was therefore compensable, the Commission made

the following pertinent findings of fact:

4. The fall on August 8, 2011, occurred

while Plaintiff was walking in a parking lot

after the conclusion of an attempted

interview at an apartment complex.

Plaintiff had been out of her car for

approximately 10 to 15 minutes when she

fell. Plaintiff does not recall what, if

anything, caused her to fall. She did not

recall any broken pavement or objects that

caused her fall.

5. Immediately after the fall, Plaintiff was

taken by an ambulance and admitted to Laurel

Regional Hospital, whereupon she informed

her medical providers that “she was not

overheated” prior to the fall. She was

unable to tell the Emergency Room staff why

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she fell. The ambulance crew that

transported Plaintiff interviewed an unnamed

witness at the scene of the fall, who

reported that she did not see any obvious

reason to cause Plaintiff’s fall.

6. While admitted to Laurel Regional

Hospital, Dr. Michael E. Carlos, treated

Plaintiff and noted that “vasovagal

mechanism” was the “most likely reason for

the syncope” and that dehydration

“predisposed her to vasovagal syncope.”

. . . .

8. On August 19, 2011, Plaintiff treated

with her primary care physician, Dr. Naveen

Habashi. Dr. Habashi opined that Plaintiff

fainted and fell due to exposure to

environmental elements, such as overheating.

Dr. Habashi also opined that the facts

related to Plaintiff’s food and fluid intake

prior to the fall were “consistent with a

person potentially suffering from a

dehydration condition,” and that dehydration

contributed to Plaintiff’s fainting.

However, Dr. Habashi was not able to testify

to a reasonable degree of medical certainty

that heat exhaustion, dehydration, or any

other medical condition caused Plaintiff’s

fall. The Full Commission finds Dr.

Habashi’s testimony to be speculative with

regard to the cause of Plaintiff’s fall and

assigns little weight to the opinions of Dr.

Habashi. Dr. Habashi testified that the

diagnosis made by Dr. Carlos of “vasovagal

mechanism” is a non-specific diagnosis and

by itself, it does not explain why Plaintiff

fell.

. . . .

12. Plaintiff at various times has

speculated that she may have fallen due to

being overheated, dehydrated, or stressed,

but Plaintiff consistently reported and

testified that she actually does not know

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what caused her to fall. Based upon the

preponderance of the credible evidence of

record, the Full Commission finds that there

is insufficient evidence that Plaintiff was

overheated due to her work environment, and

there is insufficient evidence that

Plaintiff fainted and fell due to heat

exhaustion.

13. Plaintiff recalled the sight of almost

hitting the ground and seeing her deformed

wrist immediately after the fall while lying

on the ground. Plaintiff testified that she

may have been dehydrated on August 8, 2011,

because she did not eat or drink any fluids

between breakfast at 8:00 a.m. and the fall

which occurred at 2:30 p.m., but there is

insufficient medical evidence to support a

finding that she fell due to dehydration.

14. The Full Commission finds that

Plaintiff’s fall was due to factors that

were not disclosed by the evidence, and that

her fall was unexplained. There was no

competent medical opinion evidence presented

to establish a medical or idiopathic reason

for her fall.

Based on these findings, the Commission concluded as a matter of

law that “Plaintiff’s unexplained fall on August 8, 2011,

constitute[d] a compensable injury by accident.”

Contrary to Defendants’ contention, Hollar is

distinguishable from the present case. In Hollar, the fact that

it was the plaintiff’s fainting episode that caused her to fall

and sustain an injury was uncontroverted. Hollar, 48 N.C. App.

at 491, 269 S.E.2d at 669. Here, conversely, the Commission

found that the medical evidence did not sufficiently establish

the cause of Plaintiff’s fall. Furthermore, the Commission

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declined to make a finding that Plaintiff did, in fact, faint.

We believe that based on the conflicting evidence in the record,

the absence of such a finding was permissible.

Plaintiff stated on several occasions that she does not

know why she fell. While at various times she speculated that

she could have been overheated, dehydrated, or stressed at the

time she fell, she provided no consistent explanation of the

reason for her fall. The medical evidence suggests that

Plaintiff suffered a loss of consciousness at some point but

fails to provide clarity as to whether Plaintiff fell because

she fainted. The Commission determined that the testimony

offered by Dr. Habashi regarding the possible cause of

Plaintiff’s fall was speculative and assigned that testimony

little weight. The Commission therefore concluded that there

was insufficient credible evidence that Plaintiff fell due to

heat exhaustion or dehydration.

It is well established that the Commission “is the sole

judge of the credibility of the witnesses and the weight to be

given their testimony.” Deese v. Champion Int’l Corp., 352 N.C.

109, 115, 530 S.E.2d 549, 552 (2000) (citation and quotation

marks omitted). As such, its determinations regarding the

credibility of witnesses or the weight certain evidence is to be

accorded are not reviewable on appeal. See Seay v. Wal-Mart

Stores, Inc., 180 N.C. App. 432, 434, 637 S.E.2d 299, 301 (2006)

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(“This Court may not weigh the evidence or make determinations

regarding the credibility of the witnesses.”).

The Commission’s findings that Plaintiff “does not know

what caused her to fall” and “recalled the sight of almost

hitting the ground” are supported by competent record evidence.

Furthermore, these findings were not challenged by Defendants on

appeal and are thus binding on this Court. See Allred v.

Exceptional Landscapes, Inc., ___ N.C. App. ___, ___, 743 S.E.2d

48, 51 (2013) (“Unchallenged findings of fact are presumed to be

supported by competent evidence and are binding on appeal.”).

The Commission’s findings as to the appropriate weight and

consideration to be accorded to the medical evidence regarding

the various theories of why Plaintiff might have fallen are

within its discretion as the trier of fact, and this Court is

“not at liberty to reweigh the evidence and to set aside the

findings of the Commission, simply because other inferences

could have been drawn and different conclusions might have been

reached.” Hill v. Hanes Corp., 319 N.C. 167, 172, 353 S.E.2d

392, 395 (1987) (citation and quotation marks omitted).

Once the Commission determined that the evidence suggesting

Plaintiff’s fall occurred because of heat exhaustion or

dehydration was speculative and entitled to little to no weight,

there was no remaining evidence regarding the cause or origin of

her fall. Consequently, we cannot conclude that the Commission

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erred in its ultimate determination that Plaintiff’s fall was

unexplained and “due to factors that were not disclosed by the

evidence.” See Sheenan v. Perry M. Alexander Constr. Co., 150

N.C. App. 506, 514, 563 S.E.2d 300, 305 (2002) (explaining that

Commission is sole judge of weight and credibility of evidence

and, as such, may accord less weight to testimony of medical

expert if it determines that expert’s opinions are based on

inaccurate account of circumstances surrounding injury).

Thus, the Commission’s findings that (1) Plaintiff does not

know why she fell; and (2) the medical theories explaining the

various possible causes of her fall were speculative and

unsupported by sufficient evidence, support its legal conclusion

that Plaintiff’s fall was unexplained. See Slizewski v. Int’l

Seafood, Inc., 46 N.C. App. 228, 232, 264 S.E.2d 810, 813 (1980)

(holding that workers’ compensation claim was compensable where

plaintiff could not recall why he fell and “[t]he evidence, or

lack thereof, on the cause of the fall is sufficient to sustain

the finding that the cause of the fall was unknown”). As such,

we affirm the Commission’s determination that Plaintiff’s injury

was compensable.

II. Temporary Total Disability Benefits

Defendants next assert that the Commission erred in

awarding Plaintiff temporary total disability benefits beyond 12

December 2011, the date Plaintiff was released to return to work

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without any permanent restrictions. Defendants argue that as of

that date she could no longer establish that her injury was

affecting her ability to earn her pre-injury wage and that, for

this reason, an award of temporary total disability benefits was

improper. We disagree.

“The term ‘disability’ means 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.

§ 97-2(9) (2013). Accordingly, to support a conclusion of

disability, the Commission must find

(1) that plaintiff was incapable after

his injury of earning the same wages he

had earned before his injury in the

same employment, (2) that plaintiff was

incapable after his injury of earning

the same wages he had earned before his

injury in any other employment, and (3)

that this individual’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). A claimant may prove the first two elements of

disability through several methods, including

(1) 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;

(2) the production of evidence that he

is capable of some work, but that he

has, after a reasonable effort on his

part, been unsuccessful in his effort

to obtain employment; (3) the

production of evidence that he is

capable of some work but that it would

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be futile because of preexisting

conditions, i.e., age, inexperience,

lack of education, to seek other

employment; or (4) the production of

evidence that he has obtained other

employment at a wage less than that

earned prior to the injury.

Russell v. Lowes Prod. Distrib’n, 108 N.C. App. 762, 765, 425

S.E.2d 454, 457 (1993) (internal citations omitted); see Medlin

v. Weaver Cooke Constr., LLC, ___ N.C. ___, ___ S.E.2d ___, slip

op. at 12-13 (No. 411A13) (filed Jun. 12, 2014) (explaining that

plaintiff “may prove the first two elements through any of the

four methods articulated in Russell, but these methods are

neither statutory nor exhaustive”). “In addition, a claimant

must also satisfy the third element, as articulated in Hilliard,

by proving that his inability to obtain equally well-paying work

is because of his work-related injury.” Medlin, ___ N.C. ___,

___ S.E.2d ___, slip op. at 13.

“The absence of medical proof of total disability . . .

does not preclude a finding of disability under one of the other

three Russell tests.” Britt v. Gator Wood, Inc., 185 N.C. App.

677, 684, 648 S.E.2d 917, 922 (2007) (citation, quotation marks,

and brackets omitted) (concluding that plaintiff could still be

disabled under second or third prong of Russell test despite

being released to work without restrictions). Here, citing

Hilliard, the Commission found Plaintiff had proved that — as a

result of her injury and despite a reasonable effort on her part

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— she was unable to obtain suitable employment within her

restrictions. Specifically, the Commission found that once

Plaintiff was released to return to work, the University of

Michigan did not have a job available for her and that Plaintiff

“engaged in an unsuccessful, reasonable job search after being

released to work with restrictions, but received no job offers.”

The Commission further found that Plaintiff’s reasonable job

search continued until 2 February 2012, when she refused

suitable employment offered to her by the University of

Michigan. As such, the Commission concluded that Plaintiff

“suffered a loss in wage earning capacity as a result of her

compensable injury . . . through February 2, 2012” but “has

failed to prove any loss of wage earning capacity as a result of

her compensable August 8, 2011 injury after February 2, 2012.”

These findings are supported by Plaintiff’s testimony

regarding both her job search and her ongoing experience with

pain and range-of-motion limitations after being released to

work. See Davis v. Hospice & Palliative Care of Winston-Salem,

202 N.C. App. 660, 670, 692 S.E.2d 631, 638 (2010) (“In addition

to medical testimony, an employee’s own testimony that he is in

pain may be evidence of disability.” (citation and quotation

marks omitted)). Nor do Defendants specifically challenge these

findings. As such, they are binding on appeal. See Strezinski

v. City of Greensboro, 187 N.C. App. 703, 706, 654 S.E.2d 263,

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265 (2007) (“Findings of fact that are not challenged on appeal

are binding on this Court.”), disc. review denied, 362 N.C. 513,

668 S.E.2d 783 (2008). Because the Commission’s findings of

fact support its conclusion that Plaintiff established that she

was unable to earn her pre-injury wage in the same or any other

employment from 12 December 2011 to 2 February 2012 under the

second prong of Russell and that Plaintiff’s inability to earn

her pre-injury wage was caused by her injury, we overrule

Defendants’ argument and affirm the Commission’s award of

temporary total disability benefits to Plaintiff.

Conclusion

For the reasons stated above, we affirm the Commission’s

Opinion and Award.

AFFIRMED.

Judges STEELMAN and STEPHENS concur.