{ "id": 9000203, "name": "ELIZABETH EDMONDS, Employee-Plaintiff v. FRESENIUS MEDICAL CARE, Employee SELF-INSURED (RSKCO, Servicing Agent), Defendant", "name_abbreviation": "Edmonds v. Fresenius Medical Care", "decision_date": "2004-08-17", "docket_number": "No. COA03-1044", "first_page": "811", "last_page": "819", "citations": [ { "type": "official", "cite": "165 N.C. App. 811" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "23 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1942, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "222 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630398 ], "year": 1942, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0358-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "357 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "320 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728549 ], "year": 1987, "pin_cites": [ { "page": "158-59" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0155-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2003, "pin_cites": [ { "page": "752" }, { "page": "752" }, { "page": "753" }, { "page": "753" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "231" }, { "page": "232" }, { "page": "232" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "141 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "264 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573590 ], "year": 1965, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0401-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "quoting Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "quoting Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "year": 2000, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] }, { "cite": "594 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631268 ], "year": 2004, "pin_cites": [ { "page": "448" } ], "opinion_index": 1, "case_paths": [ "/se2d/594/0446-01" ] }, { "cite": "163 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920722, 12631268 ], "year": 2004, "pin_cites": [ { "page": "751" } ], "opinion_index": 1, "case_paths": [ "/nc-app/163/0755-01", "/se2d/594/0446-01" ] }, { "cite": "579 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "916" } ], "opinion_index": 1 }, { "cite": "158 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "year": 2004, "pin_cites": [ { "page": "75" } ], "opinion_index": 1 }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "753", "parenthetical": "internal citations omitted" }, { "page": "753" } ], "opinion_index": 1 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0228-01" ] } ], "analysis": { "cardinality": 744, "char_count": 18597, "ocr_confidence": 0.731, "pagerank": { "raw": 4.6504609989322714e-07, "percentile": 0.927328195582059 }, "sha256": "3015bfa6ee185f5fd89da1c714a024a8ca47ffcfed733f4d5dd843d3432ddc8b", "simhash": "1:e1bde92adf7b7b22", "word_count": 2832 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge STEELMAN dissents." ], "parties": [ "ELIZABETH EDMONDS, Employee-Plaintiff v. FRESENIUS MEDICAL CARE, Employee SELF-INSURED (RSKCO, Servicing Agent), Defendant" ], "opinions": [ { "text": "CALABRIA, Judge.\nFresenius Medical Care (\u201cdefendant\u201d) appeals from an opinion and award of the North Carolina \u25a0 Industrial Commission (the \u201cCommission\u201d), awarding Elizabeth Edmonds (\u201cplaintiff\u2019) workers\u2019 compensation benefits for a work-related injury that occurred on 6 February 1998. We affirm.\nPlaintiff, formerly a director of nursing for defendant, sustained a compensable back injury when she tried to prevent a file cart from overturning. In order to treat plaintiff\u2019s injury, plaintiff underwent various surgical procedures and was placed on numerous medications, including morphine administered through a surgically-placed internal pump and oral non-steroidal anti-inflammatory drugs (\u201cnon-steroidals\u201d). Plaintiff was evaluated as having a twenty-five percent permanent partial disability rating to her back and as being capable of light duty work. Nonetheless, because of continuing pain and the morphine pump, plaintiff was unable to operate a motor vehicle to travel to and from work.\nFurther evidence presented to the Commission showed that plaintiff was diagnosed as an insulin-dependent Type I diabetic in 1978. In addition to her diabetes, plaintiff is also hypertensive. Creatinine levels in plaintiff\u2019s urine jumped from a normal level of .7 in December of 1997 prior to the compensable injury to an abnormally high level of 1.2 in October 2001 after treatment of her compensable injury with the non-steroidals. Dr. W. Patrick Burgess (\u201cDr. Burgess\u201d), an internist and nephrologist, explained that the increasing creatinine levels in plaintiff\u2019s urine indicated reduced renal function.\nPlaintiff filed for workers\u2019 compensation benefits for back and urological injuries due to the accident on 6 February 1998. Although defendant initially admitted plaintiff\u2019s right to compensation, on 22 May 2001, defendants requested a hearing on whether termination of benefits was proper on the grounds that suitable employment had been found for plaintiff. In plaintiff\u2019s response, plaintiff requested a \u201cdetermination if [plaintiff\u2019s] diabetes, urological and other conditions have been caused or aggravated by the injury at work and treatment, and whether defendants are responsible.\u201d\nIn an opinion and award filed 23 August 2002, the deputy commissioner concluded defendant failed to prove plaintiff unjustifiably refused suitable employment and plaintiff failed to prove the non-steroidals taken during treatment of her compensable back injury worsened her kidney problems or was the cause of any decrease in her renal function. Both parties appealed, and in an order filed 5 May 2003, the Commission affirmed the deputy commissioner\u2019s conclusion regarding whether plaintiff unjustifiably refused suitable employment. However, the Commission went on to conclude, based in part on the deposition testimony of Dr. Burgess, that plaintiff had \u201cproved by the greater weight of the evidence that the non-steroidal medications taken by plaintiff because of her compensable back injury worsened or exacerbated her pre-existing kidney problems.\u201d Defendant appeals.\nOn appeal, defendant asserts the Commission erred in concluding plaintiffs pre-existing kidney problems were worsened or exacerbated by the non-steroidals taken as part of her treatment for the compensable back injury. Specifically, defendant contends the Commission\u2019s reliance on Dr. Burgess\u2019 deposition testimony is misplaced for a number of reasons, including (1) that his opinion regarding medical causation failed to rise to the level of a reasonable degree of medical certainty, was hypothetical and based on assumptions regarding dosage and timing of the non-steroidals and (2) that there were other possible sources other than the non-steroidals that could have caused plaintiff\u2019s kidney problems. In short, defendant argues Dr. Burgess\u2019 testimony amounted to nothing more than mere speculation which was not sufficiently reliable to rise to the level of competent evidence upon which the Commission\u2019s finding of fact, that the non-steroidals taken by plaintiff worsened her kidney problems, could be predicated.\nIn reviewing the Commission\u2019s opinion and award, this Court is limited to determining \u201c(1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). \u201c \u2018[T]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)).\nThe employee bears the burden of establishing that his worker\u2019s compensation claim is compensable. Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003). Where there exists a reasonable relationship between the injury and the employment, the injury is compensable as work-related. Id. \u201c[T]he [employee] must prove that the accident was a causal factor [of the injury] by a \u2018preponderance of the evidence!.]\u2019 \u201d Id., 357 N.C. at 232, 581 S.E.2d at 752 (quoting Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158-59, 357 S.E.2d 683, 685 (1987)). The competency of expert opinion testimony for determinations of causation in complicated medical questions (or those questions above the layman\u2019s ordinary experience and knowledge) turns on whether the opinion is based on mere speculation or conjecture. Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000). If the opinion is based on mere speculation or conjecture, it is not sufficiently reliable to constitute competent evidence. Id. Thus, in Holley, our Supreme Court explained that such expert opinion testimony must \u201c \u2018take the case out of the realm of conjecture and remote possibility\u2019 \u201d in order to constitute \u201c \u2018sufficient competent evidence tending to show a proximate causal relation\u2019 \u201d between the injury and the work-related accident. Holley, 357 N.C. at 232, 581 S.E.2d at 753 (quoting Gilmore v. Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). Where the expert\u2019s opinion is that there \u201ccould\u201d or \u201cmight\u201d be a causal relationship, it is admissible if helpful for purposes of showing medical causation; however, it is not sufficiently reliable to constitute competent evidence of medical causation, especially if additional evidence suggests such testimony was merely a guess. Id., 357 N.C. at 233, 581 S.E.2d at 753.\nIn the instant case, the Commission found, in relevant part, as follows:\nGiven the evidence of record that renal failure can occur in individuals with a short exposure history to non-steroidal anti-inflamatories, and Dr. Burgess\u2019s testimony indicating a possible link between plaintiff\u2019s worsening renal condition and her use of non-steroidal anti-inflamatories, the Full Commission finds that plaintiff\u2019s use of such medication to treat her back injury more likely than not worsened or exacerbated her pre-existing kidney problems.\nThe Commission went on to conclude plaintiff proved by the greater weight of the evidence that the exposure to non-steroidals was the medical cause of her deteriorated renal function and awarded compensation.\nDr. Burgess testified that plaintiff\u2019s renal insufficiency could possibly be attributable to any one of four causes: (1) diabetes, (2) hypertension, (3) exposure to non-steroidals, and (4) a combination of the preceding three possibilities. Dr. Burgess defined \u201cpossible\u201d as something that was \u201cnot out of the realm of being something we see happening.\u201d He also gave conflicting testimony regarding his familiarity with the timing and dosage of the non-steroidal treatment administered to plaintiff. Standing alone, such testimony clearly lacks sufficient reliability to constitute competent evidence of medical causation under Holley.\nNonetheless, later in his testimony, Dr. Burgess clarified his earlier testimony regarding the possibilities of medical causation as follows:\nOne of [hypertension, diabetes, the exposure to the non-steroidals, or some combination] is the most likely. . . . What\u2019s against the hypertension is, the length of time of hypertension hasn\u2019t really been long enough to be hypertension. What\u2019s against the diabetes is, the findings of a fairly normal sized or even small kidney and little or no protein in the urine axe both indicators that she does not \u2014 it is probably not diabetic nephrosclerosis. Now, she has in her history had a period of time when she had protein in her urine, but my explanation for that is, both of those times when she was told she had protein in her urine, her diabetes was out of control, and diabetes out of control does induce proteinuria or protein in the urine. So I think she had protein in her urine a couple times, but those were both related to episodes of high sugar. ... I think [the exposure to the drugs is] the highest probability.\nMoreover, Dr. Burgess testified that renal involvement resulting from \u201cchronic medical illness[es],\u201d such as hypertension or diabetes, would result in creatinine levels that\nwould probably continue changing .... The fact that they took a step change is probability wise more in favor of an acute injury; that now the drug has been removed, the injury has been \u2014 whatever the injury was, it\u2019s there, and it\u2019s no longer\u2014 the insult is gone, so she\u2019s staying the same. That\u2019s the more likely explanation.\nFinally, Dr. Burgess reiterated that a change in creatinine levels due to exposure to the non-steroidals\nwould occur during [the period of time when she was taking the non-steroidals] and when the drug is removed, then there would be possibility of a little improvement and then stabilization. If it was diabetes [or hypertension] ... I would expect. . . just a slow progression .... That\u2019s just the way they tend to react. It\u2019s a systemic disease that\u2019s a part of her. If, on the other hand, it\u2019s something external to her like an injury, then I would expect there would be a step change and then stabilization, which is sort of how she\u2019s acting.\nThus, while Dr. Burgess\u2019 testimony is not ideally conclusive, it is clear that Dr. Burgess specifically itemized the possible causes of plaintiff\u2019s renal insufficiency, systematically analyzed those causes, and finally determined exposure to the non-steroidals was the cause that had the \u201chighest probability.\u201d\nDr. Burgess similarly clarified his testimony regarding his familiarity with the details of plaintiff\u2019s exposure to the non-steroidals. Dr. Burgess stated that, when he first saw plaintiff, he had not researched her exposure to the non-steroidal treatment and did not \u201chave the details or how many months or years [plaintiff had taken the non-steroidals.]\u201d Nonetheless, Dr. Burgess was able to expressly affirm that plaintiff \u201ctook the medication over a long enough period of time\u201d based upon the information with which he had been provided. He further testified that if plaintiff \u201ccame back and told [him] it was only for a week, I would have trouble making that association [between the period of exposure to the non-steroidal and the reduced renal function], But if it had been months or years, then that\u2019s another issue.\u201d\nThus, while Dr. Burgess indicated an inability to state with a reasonable degree of medical certainty that the non-steroidals were the cause of plaintiff\u2019s renal insufficiency, it does not necessarily follow that his testimony was not competent evidence of medical causation. The Commission\u2019s reliance on expert testimony regarding medical causation in workers\u2019 compensation awards does not, as defendant seems to argue, rise or fall on a doctor\u2019s use of the term \u201creasonable degree of medical certainty.\u201d Rather, under Holley, \u201ccould\u201d or \u201cmight\u201d testimony, standing alone, is insufficient to show medical causation, especially where there exists additional evidence tending to show the expert\u2019s testimony is merely speculation or conjecture. However, in the instant case, the expert testimony consisted of more than \u201ccould\u201d or \u201cmight\u201d testimony, and additional evidence tended to show that Dr. Burgess\u2019 testimony was the product of a reasoned medical analysis as opposed to mere speculation. Accordingly, Dr. Burgess\u2019 testimony constituted competent evidence supporting the findings of fact by the Commission, which, in turn, supported the conclusion of law that plaintiff proved \u201cby the greater weight of the evidence that the non-steroidal medications taken by plaintiff because of her compensable back injury worsened or exacerbated her pre-existing kidney problems.\u201d Defendant\u2019s assignments of error are overruled.\nAffirmed.\nJudge WYNN concurs.\nJudge STEELMAN dissents.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "STEELMAN, Judge\ndissenting.\nI must respectfully dissent from the majority opinion based upon the holdings of our Supreme Court in Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003), and Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (2000).\nIn reviewing findings of fact of the Industrial Commission (the \u201cCommission\u201d), our standard of review is to determine whether those findings are supported by competent evidence. Faison v. Allen Canning Co., 163 N.C. App. 755, 751, 594 S.E.2d 446, 448 (2004). If so, then they are binding on appeal, even though there was evidence to support contrary, findings. McRae v. Toastmaster, 158 N.C. 70, 75, 579 S.E.2d 913, 916 (2004). It is not the role of the appellate courts to sift through the evidence and find facts that are different from those actually found by the Commission.\nIn this case, Dr. Burgess\u2019s testimony on medical causation was conflicting. The Industrial Commission made the following findings of fact causally connecting plaintiff\u2019s treatment with non-steroidal anti-inflammatory drugs to her renal failure:\n19. Dr. Burgess testified that plaintiff\u2019s exposure to the non-steroidal anti-inflammatory drugs, \u201cpossibly\u201d or \u201ccould or might\u201d have worsened plaintiff\u2019s kidney function. Dr. Burgess could hot say that it was probable; he could only say that it was possible. He stated he could not give an opinion, to a reasonable degree of medical certainty, without knowing all the information surrounding the drugs. Dr. Burgess testified that plaintiff\u2019s kidney disease could be attributed to a number of factors, including diabetes, hypertension, a drug source injury, or a blunt trauma injury. Finally, Dr. Burgess testified that because plaintiff had both diabetes and hypertension, she is more likely to need dialysis.\n20. Given the evidence of record that renal failure can occur in individuals with a short exposure history to non-steroidal anti-inflamatories, and Dr. Burgess\u2019s testimony indicating a possible link between plaintiff\u2019s worsening renal condition and her use of non-steroidal anti-inflamatories, the Full Commission finds that plaintiff\u2019s use of such medication to treat her back injury more likely than not worsened or exacerbated her pre-existing kidney problems.\nBased upon these findings, the Commission concluded that plaintiff showed, by the greater weight of the evidence, that the non-steroidal medications taken to treat her compensable back injury exacerbated her pre-existing kidney problems.\nIn Holley our Supreme Court stated:\nAlthough 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 \u201cwhen there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\u201d\nHolley, 357 at 233, 581 S.E.2d at 753 (internal citations omitted).\nIn this case, the only medical testimony linking the administration of non-steroidal anti-inflammatory drugs to plaintiff\u2019s reduced renal function was that of Dr. Burgess. As found by the Commission, his testimony was only that the drugs \u201cpossibly\u201d or \u201ccould or might\u201d have caused plaintiff\u2019s renal problems. Further, the Commission found that Dr. Burgess could not give an opinion to a reasonable degree of medical certainty on causation. This testimony does not rise above a guess or mere speculation and does not meet the requirements set forth in Holley. Id.\nClearly, the Commission recognized the weakness of Dr. Burgess\u2019s testimony and attempted in finding of fact twenty to buttress his opinion with testimony of other witnesses that a short exposure to non-steroidal anti-inflamatories can result in renal failure. The Commission thus attempted to link together the testimony of several expert witnesses and render its own medical opinion that the medications \u201cmore likely than not worsened or exacerbated her pre-existing kidney problems.\u201d Further, Dr. Burgess also testified that a short exposure to non-steroidal anti-inflamatories can result in renal failure yet he did not reach the same conclusion as the Commission. It is not the role of the Commission to render expert opinions. In cases involving complex medical questions, only an expert can give opinion evidence as to the cause of an injury. Holley, 357 at 232, 581 S.E.2d at 753.\nI would hold that plaintiff has failed to prove that her loss of renal function was causally related to the administration of non-steroidal anti-inflamatories. Without that causal link, the kidney injuries did not arise out of a compensable injury and she is not entitled to compensation for those injuries under Chapter 97.", "type": "dissent", "author": "STEELMAN, Judge" } ], "attorneys": [ "Randy D. Duncan, for plaintiff-appellee.", "Hedrick, Batman, Gardner & Kincheloe, L.L.R, by Mel J. Garofalo and Shannon P. Herndon, for defendant-appellant." ], "corrections": "", "head_matter": "ELIZABETH EDMONDS, Employee-Plaintiff v. FRESENIUS MEDICAL CARE, Employee SELF-INSURED (RSKCO, Servicing Agent), Defendant\nNo. COA03-1044\n(Filed 17 August 2004)\nWorkers\u2019 Compensation\u2014 medical causation \u2014 expert testimony \u2014 highest probability\nWorkers\u2019 compensation testimony from a doctor was the result of reasoned medical analysis rather than speculation and supported the findings and conclusions of the Industrial Commission that plaintiff\u2019s kidney problems came from medications taken for a compensable injury. Even though the doctor first testified that plaintiff\u2019s condition could be attributable to any one of four causes, he went on to systematically analyze those causes and determined that exposure to medications was the cause with the highest probability.\nJudge Steelman dissenting.\nAppeal by defendant from an opinion and award entered 5 May 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 May 2004.\nRandy D. Duncan, for plaintiff-appellee.\nHedrick, Batman, Gardner & Kincheloe, L.L.R, by Mel J. Garofalo and Shannon P. Herndon, for defendant-appellant." }, "file_name": "0811-01", "first_page_order": 843, "last_page_order": 851 }