Workman v. Rutherford Electric Membership Corp.

WYNN, Judge

concurring with separate opinion.

I respectfully concur in the result from the majority’s decision to affirm the Commission’s finding of fact on causation of Mr. Workman’s urological condition. Following our Supreme Court’s decision in Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 571 , *498 603 S.E.2d 562, 558 (2004) (Hudson, J., dissenting), rev’d per curiam, 359 N.C. 403 , 610 S.E.2d 374 (2005), since there was competent evidence that Mr. Workman’s urological condition was “more likely than not” caused by his work-place injury, and all of the evidence supports a conclusion of total disability, I would affirm the Commission’s Opinion and Award. 1 Furthermore, while it is appropriate to remand for entry of findings of fact on the issue of total disability, under the facts of this case, such a remand is unnecessary and does not promote judicial economy.

Causation under the Workers Compensation Act

In North Carolina, the underlying purpose of the North Carolina Workers’ Compensation Act is to provide compensation to workers whose earning capacity is diminished or destroyed by injury arising from their employment. McRae v. Toastmaster, Inc., 358 N.C. 488, 493 , 597 S.E.2d 695, 699 (2004). A longstanding rule of construction is that the Workers’ Compensation Act should be liberally construed so that the benefits under the Act will not be denied by narrow, technical, or strict interpretation. Hollman v. City of Raleigh, Pub. Util. Dep’t, 273 N.C. 240, 252 , 159 S.E.2d 874, 882 (1968); Cates v. Hunt Constr. Co., Inc., 267 N.C. 560, 563 , 148 S.E.2d 604, 607 (1966).

After thoroughly reviewing the depositions and medical notes of Dr. Anthony Wheeler and Dr. Dominick Carbone, I conclude that there is competent evidence to support the Commission’s finding of fact. The finding states in part, “[u]pon consideration of the testimony of Dr. Wheeler, Dr. Dominick Carbone, and the record as a whole, the greater weight of the evidence establishes that plaintiff’s impotence, . . . [was] caused by the accident on February 21, 1997.”

Where, as here, medical opinion testimony is required, “medical certainty is not required, [but] an expert’s ‘speculation’ is insufficient to establish causation.” Holley v. ACTS, Inc., 357 N.C. 228, 234 , 581 S.E.2d 750, 754 (2003). In the instant case, there was competent evidence to allow the Commission to determine that the accident at work caused Plaintiff’s injury. And under Adams, even in determining causation, the Commission’s finding of fact must stand if supported *499 by any competent evidence. Adams v. AVX Corp., 349 N.C. 676, 681 , 509 S.E.2d 411, 414 (1998) (citation omitted). Indeed, the record shows that Dr. Wheeler stated that it was “more likely than not” that the impotence was related to Mr. Workman’s injury. This is more than mere speculation, it is a preponderance of the evidence; thus, it is competent evidence of causation. See Holley, 357 N.C. at 232-33 , 581 S.E.2d at 753 ; Phillips v. U.S. Air, Inc., 120 N.C. App. 538, 541 , 463 S.E.2d 259, 261 (1995) (the plaintiff must prove causation by a “greater weight” of the evidence or a “preponderance” of the evidence), aff ’d, 343 N.C. 302 , 469 S.E.2d 552 (1996). Therefore, there is competent evidence to support the finding of fact.

I write separately to further point out that under the standard of review the record need not show that all of the evidence shows the doctor expressed his or her causation opinion “without equivocation.” See Alexander, 166 N.C. App. at 573 , 603 S.E.2d at 558 . Under our standard of review, our Supreme Court has stated many times that the role of this Court is limited to determining “whether any competent evidence supports the Commission’s findings of fact and whether the findings of fact support the Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116 , 530 S.E.2d 549, 553 (2000). Our review “ ‘goes no further than to determine whether the record contains any evidence tending to support the finding.’ ” Adams, 349 N.C. at 681 , 509 S.E.2d at 414 (citation omitted). The Commission’s findings of fact “are conclusive on appeal when supported by competent evidence,” even if there is evidence to support a contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6 , 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only “when there is a complete lack of competent evidence to support them[.]” Young v. Hickory Bus. Furniture, 353 N.C. 227, 230 , 538 S.E.2d 912, 914 (2000). Further, all evidence must be taken in the light most favorable to the plaintiff, and the plaintiff “is entitled to the benefit of every reasonable inference to be drawn from the evidence.” Deese, 352 N.C. at 115 , 530 S.E.2d at 553 .

In Alexander, our Supreme Court reiterated the role of this Court by adopting Judge Hudson’s dissent stating, “I do not believe it is the role of this Court to comb through the testimony and view it in the light most favorable to the defendant . . . this Court’s role is not to engage in such a weighing of the evidence.” Alexander, 166 N.C. App. at 573 , 603 S.E.2d at 558 . The majority states that, “The doctor in Alexander expressed her causation opinion ‘repeatedly and without equivocation’ . . . .” But to be sure, the complete statement *500 from Alexander was that “much of the evidence reveals that the doctor expressed her opinions repeatedly and without equivocation.” Id. (emphasis supplied). Thus, Alexander does not require that all of the evidence must show that the doctor expressed his opinion “without equivocation.”

Here, where the records of Dr. Wheeler support the Commission’s finding, when viewed in light of the standard of review, the finding should be upheld. See Alexander, 166 N.C. App. at 573 , 603 S.E.2d at 558 ; Adams, 349 N.C. at 681 , 509 S.E.2d at 414 (holding that the decision concerning what weight to give expert evidence is a duty for the Commission and not this Court).

As the record shows competent testimony on causation by Dr. Wheeler that is not speculative, but expresses a competent expert opinion, I would conclude that under our caselaw the Commission’s finding is supported by competent evidence. Accordingly, the opinion and award of the Commission should be affirmed.

Remand for Findings on Disability

“Ordinarily, when an agency fails to make a material finding of fact or resolve a material conflict in the evidence, the case must be remanded to the agency for a proper finding.” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 674 , 599 S.E.2d 888, 904 (2004) (citation omitted). But further proceedings are neither necessary nor advisable when all evidence in the record points to only one conclusion. Id. at 675 , 599 S.E.2d at 904 . See State v. Daughtry, 340 N.C. 488, 514 , 459 S.E.2d 747, 760 (1995) (trial court erred by failing to make a finding of fact that a statement possessed the requisite trustworthiness, however, the record sustained the trial court’s conclusion making the error harmless). Because the evidence in this matter pointed to only one conclusion, and Defendant offered no evidence in rebuttal, I would find it unnecessary to remand this matter to the Commission for administrative entry of the proper findings.

The Commission is required to determine whether competent evidence exists to support a finding of disability based on the presentation of evidence that he is capable of some work, but has after a reasonable effort been unsuccessful in his efforts to obtain employment; or evidence that he is capable of some work but that it would be futile because of preexisting conditions to seek other employment. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765 , 425 S.E.2d 454, 457 (1993). Once the plaintiff satisfies his burden of proof to *501 establish one of the elements under Russell , the burden shifts to the defendant to “come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one . .. Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 73 , 441 S.E.2d 145, 149 (1994) (emphasis omitted).

While, the Commission failed to make findings of fact on this evidence, the record shows, and the majority agrees, that Plaintiff presented evidence that he sought employment but was unsuccessful in obtaining a job. However, there is no evidence in the record that Defendants rebutted Plaintiffs evidence.

Like in Carroll , further proceedings axe unnecessary as the record points to only one conclusion: That Plaintiff sought employment but was unable to obtain a job and Defendants failed to rebut Plaintiffs evidence. Therefore, it is unnecessary to remand to the Commission for further findings. Carroll, 358 N.C. at 675 , 599 S.E.2d at 904 .

. I agree with the majority’s holding in that it finds that the Commission did not err in finding and concluding that the employer’s decision to terminate Plaintiff was not for misconduct or fault; the Commission did not err in considering Cobourn’s affidavit; collateral estoppel does not bar Plaintiff’s claim for workers’ compensation; and competent evidence in the record supports the Commission’s finding of fact that Plaintiff’s injury at work caused his psychological condition.