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    "judges": [
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    "parties": [
      "GRISELDA GUTIERREZ, Employee, Plaintiff v. GDX AUTOMOTIVE, Employer, ST. PAUL FIRE & MARINE INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nGDX Automotive (\u201cGDX\u201d) and St. Paul Fire & Marine Insurance Company (collectively, \u201cdefendants\u201d) appeal from opinion and award entered by the North Carolina Industrial Commission (\u201cthe Commission\u201d) awarding Griselda Gutierrez (\u201cplaintiff\u2019) benefits for an injury she sustained at work. We reverse.\nI. Background\nThe undisputed findings of fact show that GDX manufactures interior car parts. Plaintiff worked for GDX as an assembler from 28 June 1999 through 28 February 2001.. She was approximately thirty years old, had completed approximately three years of high school, and was an undocumented worker of Mexican descent who spoke no English.\nOn 14 July 1999, plaintiff lifted a bin of parts weighing approximately fifteen pounds and immediately experienced lower back pain. That day, she sought medical attention at ProMed, where Dr. David Mobley (\u201cDr. Mobley\u201d) diagnosed her with a lumbar strain and recommended conservative treatment, to include medications and warm compresses. On 20 July 1999, plaintiff returned to Dr. Mobley, and he noted an improvement in her condition. Plaintiff reported pain after \u201cbending and lifting and washing and drying clothes.\u201d\nShe returned to ProMed again on 21 July 1999 and was examined by Dr. Ronald Huffman (\u201cDr. Huffman\u201d). Dr. Huffman\u2019s examination revealed good range of motion of plaintiffs back, ability to twist without difficulty, negative straight leg raising, and no neurological symptoms. On 27 July 1999, Dr. Mobley examined plaintiff and approved her to return to work at regular duty, which she resumed that day.\nPlaintiff did not seek further medical treatment until 28 March 2000, when she returned to ProMed after injuring her right elbow, and again on 21 September 2000 for treatment for a severe headache. Plaintiff did not complain of back pain during either visit.\nAlthough plaintiff missed work on 9 January 2001, she returned to work. On 15 January 2001, plaintiff sought treatment from Dr. Michael Binder (\u201cDr. Binder\u201d), a chiropractor, and stated she had been experiencing lower back pain from working on her job for approximately fifteen months. On 17 January 2001, plaintiff presented a chiropractor\u2019s note excusing her from work until 19 January 2001. Plaintiff again visited Dr. Binder\u2019s office on 5 February 2001 and received work restrictions, which her employer could not accommodate.\nOn 9 March 2001, plaintiff sought treatment from Dr. Jeffrey Baker (\u201cDr. Baker\u201d), an orthopaedic surgeon. Dr. Baker diagnosed plaintiff with degenerative disk disease and referred her for physical therapy. Following a hearing, Deputy Commissioner George T. Glenn, II, awarded plaintiff continuing disability compensation and medical treatment for her back injury. Defendants appealed to the Full Commission, which concluded plaintiff was entitled to ongoing temporary total disability compensation and medical treatment for an injury that occurred on 14 July 1999. Defendants appeal.\nII. Issues\nThe issues presented on appeal are whether the Commission erred by: (1) failing to consider testimony and adjudicate evidence of plaintiff\u2019s treating physicians revealing plaintiff fully recovered from the back strain she sustained on 14 July 1999; (2) concluding that plaintiff\u2019s alleged back condition after 27 July 1999 proximately resulted from her occupational injury on 14 July 1999; and (3) con-eluding that plaintiff has been totally disabled as a direct result of her occupational injury since 5 February 2001.\nIII. Standard of Review\nOn appeal from the Commission in a workers\u2019 compensation claim, our standard of review is\nwhether there is any competent evidence in the record to support the Commission\u2019s findings of fact and whether these findings support the Commission\u2019s conclusions of law. The findings of fact made by the Commission are conclusive upon appeal when supported by competent evidence, even when there is evidence to support a finding to the contrary. In weighing the evidence[,] the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony and may reject a witnesses] testimony entirely if warranted by disbelief of that witness.\nPlummer v. Henderson Storage Co., 118 N.C. App. 727, 730-31, 456 S.E.2d 886, 888 (internal citations omitted), disc. rev. denied, 340 N.C. 569, 460 S.E.2d 321 (1995).\nIV. Testimony of Treating Physicians\nDefendants contend the trial court erred by failing to consider testimony and to adjudicate evidence from plaintiff\u2019s two treating physicians that plaintiff fully recovered from her back strain injury. We agree.\nDefendants concede that credibility determinations of the Commission are binding on appeal, but argue the Commission may not ignore competent evidence when weighing the evidence. We have repeatedly held \u201c[i]t is reversible error for the Commission to fail to consider the testimony or records of a treating physician.\u201d Whitfield v. Lab Corp. of America, 158 N.C. App. 341, 348, 581 S.E.2d 778, 784 (2003) (citing Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71, 78, 541 S.E.2d 510, 515 (2001)). Further, before finding the facts, the Commission \u201cmust consider and evaluate all the evidence before it is rejected.\u201d Jarvis v. Food Lion, 134 N.C. App. 363, 366-67, 517 S.E.2d 388, 391 (1999) (citations omitted), disc. rev. denied, 351 N.C. 356, 541 S.E.2d 139 (1999).\n\u25a0 Here, plaintiff failed to report any problems regarding her back injury during several subsequent visits to ProMed after her back injury and when she was treated by Dr. Eric Troyer (\u201cDr. Troyer\u201d) for her headaches and menstrual problems. Defendant contends that plaintiff\u2019s failure to inform ProMed and Dr. Troyer of any continuing back injuries in 2000 shows that she was not experiencing pain or other difficulty with her back during that year. Although this evidence tends to indicate that plaintiff had no further difficulty with her back after she was released to return to work, it is not for this Court to weigh the evidence. See Plummer, 118 N.C. App. at 730, 456 S.E.2d at 888.\nThe opinion and award entered by the Commission shows that it recognized that plaintiff was treated by other physicians for unrelated injuries during the course of her treatment for the back injury. The Commission found, \u201cPlaintiff sought treatment at ProMed for the treatment of other injuries . . .,\u201d but entered no findings regarding plaintiffs treatment with Dr. Troyer. A review of Dr. Troyer\u2019s deposition reveals that plaintiff, who was seeking treatment for symptoms totally unrelated to her back injury, omitted any reference to her back injury or back pain when giving her medical history to Dr. Troyer. The Commission is not required to receive evidence from every physician who had treated plaintiff, but is required to enter findings of fact regarding material evidence properly presented to and considered by the Commission. See Whitfield, 158 N.C. App. at 348, 581 S.E.2d at 784. The Commission erred by failing to enter a finding of fact regarding the consideration, credibility, or relevancy of Dr. Troyer\u2019s deposition testimony.\nV. Causation\nDefendants also contend the Commission erred by awarding plaintiff compensation benefits when no competent evidence shows plaintiff\u2019s symptoms were proximately caused by her injury. We agree.\nIt is well-settled in our jurisprudence that \u201c[i]n a worker\u2019s compensation claim, the employee has the burden of proving that his claim is compensable . . . [and] must prove that the accident was a causal factor by a preponderance of the evidence.\u201d Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003) (internal quotations and citations omitted). \u201cAlthough 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 when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation . . . .\u201d Id. at 233, 581 S.E.2d at 753 (internal quotations and citations omitted). In Holley, our Supreme Court held, \u201cthe entirety of causation evidence before the Commission failed to meet the reasonable degree of medical certainty standard necessary to establish a causal link between plaintiffs twisting injury and her [disabling condition].\u201d 357 N.C. at 234, 581 S.E.2d at 754. The Court specifically noted the evidence and the plaintiffs medical history showed several potential causes of the injury.\nHere, plaintiff\u2019s own treating physicians only testified that plaintiffs injury was a \u201cpossible\u201d cause of her symptoms. This evidence is insufficient to support plaintiff\u2019s burden of proving causation to establish compensability. Id.\nPlaintiff argues Dr. Baker\u2019s testimony that plaintiff\u2019s injury \u201ccould or might have resulted in the symptoms presented\u201d is sufficient to establish compensability. Our Supreme Court specifically rejected \u201ccould or might\u201d testimony to prove causation and stated, \u201cmere possibility has never been legally competent to prove causation.\u201d Id. at 234, 581 S.E.2d at 753. Plaintiff\u2019s argument is without merit.\nNo evidence supports a finding of causation by the Commission. Without competent evidence, the Commission\u2019s conclusions are likewise unsupported and the opinion and award must be reversed.\nIV. Disability\nDefendants also argue that the Commission erred by concluding plaintiff was disabled as a result of her injury. In addition to and as an alternative basis to support reversal of the Commission\u2019s opinion and award, we agree with defendants\u2019 argument.\nWe have stated:\n[Disability as defined in the [Workers\u2019 Compensation] Act is the impairment of the injured employee\u2019s earning capacity rather than physical disablement. Peoples v. Cone Mills Corp., 316 N.C. 426, 434, 342 S.E.2d 798, 804 (1986). The burden is on the employee to show that [s]he is unable to earn the same wages [s]he had earned before the injury, either in the same employment or in other employment. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982).\nRussell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). In meeting this burden, plaintiff must show:\n(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 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.\nId. (internal citations omitted).\nPlaintiff failed to present any evidence that she has been unsuccessful after a diligent effort to obtain employment. Our review of the record shows no evidence that plaintiff made any attempt to obtain any position after 5 February 2001. Further, plaintiff presented no evidence of a preexisting condition preventing her from earning the same or higher wages as she did while employed with GDX.\nThe Commission found plaintiff was physically incapable of work in any employment based on Dr. Baker\u2019s report. This finding of fact is unsupported by any competent evidence in the record. Dr. Baker testified that his office never assigned plaintiff any specific work restrictions or instructed her not to work. He testified to the contrary and stated, \u201cWhat I observed in the patient, she could work.\u201d\nWithout any evidence to support the Commission\u2019s finding that Dr. Baker \u201cindicated that plaintiff was unable to work,\u201d the Commissions finding of disability constitutes a separate and independent reason to reverse the Commission\u2019s opinion and award.\nVII. Conclusion\nThe Commission failed to make any finding of fact revealing that it considered the deposition testimony from Dr. Troyer, plaintiff\u2019s treating physician. The Commission further erred by concluding plaintiff\u2019s injury, which she sustained while working for GDX, was the proximate cause of her symptoms. Without any evidence to support the causation element, the Commission erred in awarding plaintiff compensation benefits. The Commission erred by determining plaintiff was disabled, when no competent evidence in the record supports this conclusion.\nThe opinion and award is reversed.\nReversed.\nJudges McGEE and GEER concur.",
        "type": "majority",
        "author": "TYSON, Judge."
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    "attorneys": [
      "Brooke & Brooke Attorneys at Law, by Thomas M. Brooke, for plaintiff-appellee.",
      "Stiles Byrum & Home, L.L.P., by Henry C. Byrum, Jr., and Virginia Lee Bailey, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "GRISELDA GUTIERREZ, Employee, Plaintiff v. GDX AUTOMOTIVE, Employer, ST. PAUL FIRE & MARINE INSURANCE COMPANY, Carrier, Defendants\nNo. COA04-415\n(Filed 15 March 2005)\n1. Workers\u2019 Compensation\u2014 failure to consider testimony of treating physician \u2014 reversible error\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to consider testimony and evidence of plaintiff\u2019s treating physicians revealing that plaintiff fully recovered from the back strain she sustained at work on 14 July 1999, because: (1) it is reversible error for the Commission to fail to consider the testimony or records of a treating physician; and (2) the Commission failed to enter a finding of fact regarding the consideration, credibility, or relevancy of a treating physician\u2019s deposition testimony.\n2. Workers\u2019 Compensation\u2014 causation \u2014 reasonable degree of medical certainty\nThe Industrial Commission erred in a workers\u2019 compensation case by awarding plaintiff compensation benefits when no competent evidence showed that plaintiff\u2019s symptoms were proximately caused by her injury, because: (1) plaintiff\u2019s own treating physicians only testified that plaintiff\u2019s injury was a possible cause of her symptoms; and (2) our Supreme Court has specifically rejected \u201ccould or might\u201d testimony to prove causation and stated that mere possibility has never been legally competent to \u2022 prove causation.\n3. Workers\u2019 Compensation\u2014 disability \u2014 sufficiency of evidence\nThe Industrial Commission erred in a workers\u2019 compensation case by concluding that plaintiff has been totally disabled as a direct result of her occupational injury since 5 February 2001, because: (1) plaintiff failed to present any evidence that she has been unsuccessful after a diligent effort to obtain employment, and the record showed no evidence that plaintiff made any attempt to obtain any position after 5 February 2001; (2) plaintiff presented no evidence of a preexisting condition preventing her from earning the same or higher wages as she did while employed with defendant; and (3) the Commission\u2019s finding that plaintiff was physically incapable of work in any employment based on a doctor\u2019s report is unsupported by competent evidence in the record when the doctor testified that his office never assigned plaintiff any specific work restrictions or instructed her not to work, and he further stated that he observed the patient could work.\nAppeal by defendants from opinion and award entered 4 December 2003 by Commissioner Pamela T. Young for the North Carolina Industrial Commission. Heard in the Court of Appeals 16 February 2005.\nBrooke & Brooke Attorneys at Law, by Thomas M. Brooke, for plaintiff-appellee.\nStiles Byrum & Home, L.L.P., by Henry C. Byrum, Jr., and Virginia Lee Bailey, for defendants-appellants."
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