{ "id": 9005932, "name": "JOHNNY E. WORKMAN, Employee, Plaintiff v. RUTHERFORD ELECTRIC MEMBERSHIP CORPORATION, Employer, SELF INSURED (FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, Third Party Administrator), Defendant", "name_abbreviation": "Workman v. Rutherford Electric Membership Corp.", "decision_date": "2005-06-07", "docket_number": "No. COA04-491", "first_page": "481", "last_page": "501", "citations": [ { "type": "official", "cite": "170 N.C. App. 481" } ], "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": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97", "category": "laws:leg_statute", "reporter": "N.C. Gen. 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App. 700, 281 S.E.2d 712 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0572-01" ] }, { "cite": "574 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511616, 1511406, 1511344, 1511509, 1511447 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0611-04", "/nc/356/0611-05", "/nc/356/0611-01", "/nc/356/0611-02", "/nc/356/0611-03" ] }, { "cite": "560 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "372" }, { "page": "372" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 9131646 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/149/0745-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "699" }, { "page": "702" }, { "page": "700" }, { "page": "699" }, { "page": "699" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "493" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "269 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560289, 8560267, 8560333, 8560306, 8560243 ], "year": 1980, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0196-03", "/nc/300/0196-02", "/nc/300/0196-05", "/nc/300/0196-04", "/nc/300/0196-01" ] }, { "cite": "262 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "835", "parenthetical": "citation omitted" }, { "page": "835" }, { "page": "835", "parenthetical": "\"[T]he Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness's testimony....\"" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548032 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "205", "parenthetical": "citation omitted" }, { "page": "205" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0197-01" ] }, { "cite": "603 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "386-87" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412557 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "608-09" }, { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0605-01" ] }, { "cite": "472 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1996, "pin_cites": [ { "page": "399" }, { "page": "401" }, { "page": "401" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0228-01" ] }, { "cite": "459 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "760", "parenthetical": "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" } ], "opinion_index": 1 }, { "cite": "340 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790245 ], "year": 1995, "pin_cites": [ { "page": "514", "parenthetical": "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" } ], "opinion_index": 1, "case_paths": [ "/nc/340/0488-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "904", "parenthetical": "citation omitted" }, { "page": "904" }, { "page": "904" } ], "opinion_index": 1 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "674", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914" } ], "opinion_index": 1 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 1, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "463" } ], "opinion_index": 1 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "6" } ], "opinion_index": 1, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "469 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 1 }, { "cite": "343 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798979 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/nc/343/0302-01" ] }, { "cite": "463 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "261", "parenthetical": "the plaintiff must prove causation by a \"greater weight\" of the evidence or a \"preponderance\" of the evidence" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916614 ], "year": 1995, "pin_cites": [ { "page": "541", "parenthetical": "the plaintiff must prove causation by a \"greater weight\" of the evidence or a \"preponderance\" of the evidence" } ], "opinion_index": 1, "case_paths": [ "/nc-app/120/0538-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "citation omitted" }, { "page": "414", "parenthetical": "citation omitted" }, { "page": "414", "parenthetical": "holding that the decision concerning what weight to give expert evidence is a duty for the Commission and not this Court" } ], "opinion_index": 1 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "citation omitted" }, { "page": "681" }, { "page": "681" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "148 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "607" } ], "opinion_index": 1 }, { "cite": "267 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559875 ], "year": 1966, "pin_cites": [ { "page": "563" } ], "opinion_index": 1, "case_paths": [ "/nc/267/0560-01" ] }, { "cite": "159 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "882" } ], "opinion_index": 1 }, { "cite": "273 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575029 ], "year": 1968, "pin_cites": [ { "page": "252" } ], "opinion_index": 1, "case_paths": [ "/nc/273/0240-01" ] }, { "cite": "603 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "558", "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 1 }, { "cite": "610 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 1 }, { "cite": "359 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797423 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/359/0403-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "553" }, { "page": "553" } ], "opinion_index": 1 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "116" }, { "page": "115" } ], "opinion_index": 1, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "166 N.C. App. 563", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412225 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "571", "parenthetical": "Hudson, J., dissenting" }, { "page": "573" }, { "page": "573" } ], "opinion_index": 1, "case_paths": [ "/nc-app/166/0563-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "754" }, { "page": "753" } ], "opinion_index": 1 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "234" }, { "page": "232-33" } ], "opinion_index": 1, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "441 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "149", "parenthetical": "emphasis omitted" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527096 ], "year": 1994, "pin_cites": [ { "page": "73", "parenthetical": "emphasis omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/114/0069-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457" } ], "opinion_index": 1 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "699" } ], "opinion_index": 1 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "year": 2004, "pin_cites": [ { "page": "493" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0488-01" ] } ], "analysis": { "cardinality": 1545, "char_count": 47744, "ocr_confidence": 0.747, "pagerank": { "raw": 1.2261637378527913e-07, "percentile": 0.6046194198966812 }, "sha256": "857fa8f4644bd0e778d1534a00f29516d133dd40bb74c1d0fcfc79fd3da0cd7b", "simhash": "1:81a15dea1c9f2e43", "word_count": 7479 }, "last_updated": "2023-07-14T16:44:47.676310+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge WYNN concurs in the result only by separate opinion." ], "parties": [ "JOHNNY E. WORKMAN, Employee, Plaintiff v. RUTHERFORD ELECTRIC MEMBERSHIP CORPORATION, Employer, SELF INSURED (FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, Third Party Administrator), Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nRutherford Electric Membership Corporation (\u201cREMC\u201d) and Federated Rural Electric Insurance Exchange (\u201cagent\u201d) (collectively, \u201cdefendant\u201d) appeal from opinion and award entered by the Full Commission of the North Carolina Industrial Commission (\u201cthe Commission\u201d) that awarded Johnny E. Workman (\u201cplaintiff\u2019) total disability compensation. We affirm in part and remand for further findings of fact.\nI. Background\nPlaintiff was employed by REMC as a first-class lineman. His job included repairing damaged electrical power lines, which required him to climb utility poles. On 21 February 1997, plaintiff was injured during the course and scope of his employment when an electrical utility pole fell and landed across his abdominal area. Plaintiff suffered injuries to various parts of his body during the accident, which REMC immediately accepted as compensable. Defendant promptly began paying plaintiff temporary total disability benefits pursuant to Form 60 at the weekly rate of $512.00.\nPlaintiff underwent two surgeries for internal injuries and digestive complications. In August 1997, he underwent surgery to remove a parathyroid gland. In November 1998, his gall bladder was removed and a hiatal hernia was repaired.\nOn 7 January 1998, plaintiff returned to work for REMC as an assistant staking technician earning an average weekly wage of $220.70. Due to the salary reduction, defendant paid plaintiff temporary partial disability benefits pursuant to Form 62 at varying rates depending on the number of hours plaintiff worked. Plaintiff was assigned physically demanding and difficult tasks. His job description, as written by REMC and submitted to plaintiffs doctors for approval, did not include the strenuous physical tasks that plaintiff was actually assigned to do, which included chopping right-of-ways with a bush axe and moving large quantities of dirt with a shovel. These physically demanding tasks aggravated plaintiffs medical condition and caused him to accumulate blood in his urine. As a result, plaintiff was hospitalized and diagnosed with recurrent gross hematuria.\nAfter plaintiff was released, he returned to work and was assigned similar work duties. Plaintiff requested less strenuous jobs and was told none were available. On 9 September 1999, Dr. Leon Dickerson (\u201cDr. Dickerson\u201d) restricted plaintiffs employment to lifting no greater than thirty pounds occasionally, no prolonged bending, stooping, squatting, or climbing on ladders and no working on rough terrain. On 7 January 2000, Dr. Dickerson continued these work restrictions. Plaintiff was never assigned to light-duty work. According to Dr. Anthony H. Wheeler (\u201cDr. Wheeler\u201d), plaintiffs treating physician, if plaintiff continued to perform on-the-job tasks, such as using a shovel and a bush axe, he would \u201ceventually become unemployable.\u201d\nPlaintiff became frustrated with the status of his employment and contacted Sean C. Cobourn, Esquire (\u201cCobourn\u201d), a South Carolina attorney, regarding legal representation. Plaintiff testified Coburn told him a \u201cjoke\u201d during a telephone conversation:\nI asked the lawyer if there was anything that he could do with workmen\u2019s comp because they wasn\u2019t paying my doctor bills, they wasn\u2019t paying me \u2014 they was behind paying me and I was behind on my house payment and everything else. I said, \u201cI need somebody to do something now.\u201d He [the attorney] laughed and he said, \u201cWell,\u201d he said, \u201cthe only thing I know you can do is whip his ass and it will cost you five hundred dollars to do that.\u201d\nBoth plaintiff and Coburn laughed at this remark, and testified it was a \u201cjoke.\u201d Plaintiff\u2019s wife recalled plaintiff retelling the lawyer\u2019s \u201cjoke\u201d to others.\nDuring plaintiff\u2019s return to work, he became increasingly frustrated with his treatment by defendant. He expressed his discontent regarding medical treatment being denied, receipt of numerous medical collection letters, and difficult working conditions.\nIn response to plaintiff\u2019s increasing frustration, nurse caseworker, Kay Galvin (\u201cNurse Galvin\u201d), submitted a request to the adjuster to approve psychological treatment for plaintiff on 18 January 2000. On 1 February 2000, plaintiff and Nurse Galvin were present at a doctor\u2019s office waiting for an appointment when plaintiff repeated the lawyer\u2019s \u201cjoke.\u201d Nurse Galvin reported plaintiffs remarks to REMC. On 7 February 2000, REMC terminated plaintiff for \u201cworkplace violence.\u201d\nOn 18 December 2000, plaintiff requested a hearing on claims of a changed medical condition, an inability to agree on the amount of benefits due, defendant\u2019s denial of certain medical treatment, and improper termination. After a hearing on 11 April 2003, the Commission entered its opinion and award on 18 November 2003 that: (1) awarded plaintiff total disability compensation \u201cat the rate of $512.00 per week from 8 February 2000 and continuing until plaintiff returns to work or until further order of the Commission; (2) ordered defendant to pay for \u201cmedical expenses incurred as a result of the compensable injury as may reasonably be required to [provide treatment for] . . . right knee condition, [] impotence, blood in urine, and problems with urination . . . and [] depression;\u201d and (3) ordered defendant to provide plaintiff with vocational rehabilitation services. Defendant appeals.\nII. Issues\nDefendant contends the Commission erred by: (1) finding and concluding defendant\u2019s decision to terminate plaintiff\u2019s employment violated the test set forth in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996); (2) finding plaintiff to be totally disabled; (3) not applying the doctrine of collateral estoppel with regard to plaintiff\u2019s termination; (4) finding that plaintiff\u2019s urological condition is causally related to his work accident and com-pensable; (5) finding that plaintiff\u2019s psychological condition is causally related to his work accident and compensable; and (6) ordering defendant to pay all of plaintiff\u2019s medical costs related to his work accident.\nIII. Standard of Review\nOn appeal from the Commission in a workers\u2019 compensation claim, our standard of review requires us to consider: whether 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 witness\u2019 testimony entirely if warranted by disbelief of that witness. Where no exception is taken to a finding of fact.. ., the finding is presumed to be supported by competent evidence and is binding on appeal.\nBass v. Morganite, Inc., 166 N.C. App. 605, 608-09, 603 S.E.2d 384, 386-87 (2004). \u201cThe Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness\u2019s testimony ....\u201d Harrell v. Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835, disc. rev. denied, 300 N.C. 196, 269 S.E.2d 623 (1980) (citation omitted).\nIV. Termination of Employment\nDefendant contends the trial court erred in finding and concluding that REMC\u2019s decision to terminate plaintiff was not based upon plaintiff\u2019s misconduct or fault. We disagree.\nA. Seagraves Test\nAccording to Seagraves, the lawful termination of an employee for a reason unrelated to his disability and under circumstances justifying termination of any other employee constitutes a refusal to work. 123 N.C. App. 228, 472 S.E.2d 397. An employee who actually or constructively refuses suitable employment is barred from receiving benefits by N.C. Gen. Stat. \u00a7 97-32. Id. at 230, 472 S.E.2d at 399. The pertinent test is \u201cwhether the employee\u2019s loss of . . . wages is attributable to the wrongful act resulting in loss of employment, in which case benefits will be barred, or whether such loss ... is due to the employee\u2019s work-related disability, in which case the employee will be entitled to benefits for such disability.\u201d Id. at 234, 472 S.E.2d at 401.\n\u201c[U]nder the Seagraves\u2019 test, to bar payment of benefits, an employer must demonstrate initially that: (1) the employee was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to the employee\u2019s compensable injury.\u201d McRae v. Toastmaster, Inc., 358 N.C. 488, 493, 597 S.E.2d 695, 699 (2004). The employer carries the initial burden to demonstrate all three elements by a greater weight of the evidence. Id. at 499, 597 S.E.2d at 702.\nIn McRae, our Supreme Court approved the Seagraves test:\nIn our view, the test provides a forum of inquiry that guides a fact finder through the relevant circumstances in order to resolve the ultimate issue: Is a former employee\u2019s failure to procure comparable employment the result of his or her job-related injuries or the result of the employee\u2019s termination for misconduct? In disputes like the one at bar, the critical area of inquiry into the circumstances of an injured employee\u2019s termination is to determine from the evidence whether the employee\u2019s failure to perform is due to an inability to perform or an unwillingness to perform.\nId. at 494, 597 S.E.2d at 700. Our Supreme Court further noted\nthe pertinent inquiry under Seagraves is not focused on determining whether an employer may fire an injured employee for misconduct unrelated to his injuries; it is clear that an employer may do so. See, e.g., N.C.G.S. \u00a7 95-241(b) (2003). Rather, the relevant question is determining whether, upon firing an injured employee for such misconduct, an employer can nevertheless be held responsible for continuing to pay injury benefits to the terminated employee.\nId. at 494, 597 S.E.2d at 699.\nDefendant contends the Commission erred by finding, \u201cDefendant has presented no evidence that a worker who said what plaintiff did would have been terminated as plaintiff was. The case presented regarding the fired worker who committed assault presents a completely different factual paradigm.\u201d Competent evidence in the record supports this finding. The only evidence defendant presented regarding termination of an employee for workplace violence was testimony that a right-of-way crew foreman with REMC was fired for engaging in \u201ca fight at a store on company time.\u201d That employee was not a workers\u2019 compensation claimant at the time of his termination and was subsequently rehired by employer.\nThe Commission distinguished the instance wherein that employee engaged in actual physical violence. If plaintiff had engaged in physical violence on the job, the result here may well have been different. According to defendant, plaintiff was fired for making \u201cthreats\u201d towards other employees. However, no evidence was presented to show that an employee who made \u201cthreats\u201d similar to the statements made by plaintiff would have been terminated. See id.; see also Frazier v. McDonald\u2019s, 149 N.C. App. 745, 562 S.E.2d 295 (2002), cert. denied, 356 N.C. 670, 577 S.E.2d 117 (2003).\nDefendant presented some evidence towards showing REMC had a bonafide reason for firing plaintiff. However, REMC failed to satisfy its burden of proving the same misconduct would have resulted in termination of a non-disabled employee. Defendant failed to establish the requirements set forth in Seagraves, 123 at 234, 472 S.E.2d at 401, and approved in McRae, 358 N.C. at 493, 597 S.E.2d at 699. Further, it is the duty of the Commission and not this Court to weigh the evidence. Harrell, 45 N.C. App. at 205, 262 S.E.2d at 835. This assignment of error is overruled.\nB. Admission of Cobourn\u2019s Affidavit\nDefendant argues the Commission erred by admitting and considering the affidavit from Cobourn who participated in the conversation with plaintiff regarding the \u201clawyer\u2019s joke.\u201d\nDefendant cites Allen v. K-Mart which held, \u201cwhere the Commission allows a party to introduce new evidence which becomes the basis for its opinion and award, it must allow the other party the opportunity to rebut or discredit that evidence.\u201d 137 N.C. App. 298, 304, 528 S.E.2d 60, 64-65 (2000). In Cummins v. BCCI Constr. Enters., we distinguished Allen and stated, \u201cIn Allen, the employee attempted to submit evidence of independent medical examinations by a psychiatrist and a physician with experience in diagnosing and treating fibromyalgia. The employee did not consult a fibromyalgia specialist prior to the hearing before the deputy commissioner.\u201d 149 N.C. App. 180, 185, 560 S.E.2d 369, 372, disc. rev. denied, 356 N.C. 611, 574 S.E.2d 678 (2002). In Cummins, we held that the Commission did not manifestly abuse its discretion in denying the defendants\u2019 motion to depose a doctor after the plaintiff presented into evidence medical reports prepared by the doctor. Id. This Court ruled, \u201cEvidence of [the doctor\u2019s] report is merely an update of plaintiff\u2019s continued problems for the same injury. Thus, it is not \u2018significant new evidence\u2019 as in Allen.\u201d Id.\nWe find the reasoning in Cummins persuasive and Allen to be distinguishable. Here, Cobourn\u2019s affidavit only corroborated the evidence presented through plaintiff\u2019s and his wife\u2019s testimony. Defendant fails to show the affidavit disclosed any \u201csignificant new evidence.\u201d Id.\nPresuming, as defendant argues, that the admission of Cobourn\u2019s affidavit was error, defendant has failed to demonstrate that any error was prejudicial. \u201cWhere, after erroneous factual findings have been excluded, there remain sufficient findings of fact based on competent evidence to support the Commission\u2019s conclusions, its ruling will not be disturbed.\u201d Torain v. Fordham Drug Co., 79 N.C. App. 572, 576, 340 S.E.2d 111, 114 (1986) (citing Wachovia Bank and Trust Co. v. Bounous, 53 N.C. App. 700, 281 S.E.2d 712 (1981)). Here, even striking those portions of the Commission\u2019s findings of fact regarding Cobourn\u2019s affidavit, the remaining findings of fact and our previous holding support the Commission\u2019s conclusion that defendant failed to show that plaintiff was terminated for misconduct or fault. This assignment of error is overruled.\nV. Disability\nDefendant contends the Commission erred by concluding plaintiff was disabled. We agree and remand for further findings of fact.\nThe employee bears the burden of proving each and every element of compensability. Harvey v. Raleigh Police Dep\u2019t, 96 N.C. App. 28, 35, 384 S.E.2d 549, 553 (1989). The employee can prove that he is disabled in one of four ways by production of: (1) medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but has after a reasonable effort been unsuccessful in his efforts to obtain employment; (3) 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) evidence that he has obtained other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).\nSpringer v. McNutt Serv. Grp., Inc., 160 N.C. App. 574, 577, 586 S.E.2d 554, 556 (2003).\nHere, the Commission made no findings of fact regarding plaintiff\u2019s burden to establish one of the four factors and whether plaintiff met his burden. The findings of fact show:\n19. Anthony H. Wheeler, a neurologist and pain management doctor, testified that plaintiff was unable to do the job of assistant staking technician, and that requiring plaintiff to do this job would probably cause him to \u201ceventually become unemployable.\u201d\n20. Dr. Alan F. Jacks, a general surgeon, testified that using a bush axe or shovel, and walking over rough terrain, would cause \u201csignificant strain within the abdomen,\u201d and \u201cmay create symptoms of pain and significant exertion.\u201d\n21. Dr. Leon A. Dickerson, an orthopaedic surgeon, testified that plaintiff would be unable to do a job that required him to do repetitive lifting, and that doing work such as using a bush axe or shovel would cause considerable pain.\n22. Dr. Wheeler testified as follows regarding plaintiff\u2019s ability to return to work:\n\u201c. . . My opinion is that he needs guidance and training and he needs a lighter job activity that would include, you know, no lifting over, say, ten pounds occasionally and the ability to change position as necessary, no static forward bending postures, limit reaching postures, and I wouldn\u2019t want him crawling, bending or squatting on a frequent basis or even on an occasional basis.\u201d\n23. Plaintiff has been temporarily totally disabled since 7 February 2000, the day his employment was terminated.\nThese findings show plaintiff, although limited in the work he can perform, is capable of performing some work. The Commission is required to determine whether competent evidence exists to support a finding of disability based on the presentation of: \u201c(2) evidence that he is capable of some work, but has after a reasonable effort been unsuccessful in his efforts to obtain employment; [or] (3) evidence that he is capable of some work but that it would be futile because of preexisting conditions ... to seek other employment.\u201d Id.\nHere, the Commission made no findings regarding either of these two factors. Plaintiff argues he presented evidence that he sought employment, but was unsuccessful in obtaining a job. The Commission entered no findings of fact on this evidence. Further, if plaintiff satisfied his burden of proof to establish one of the elements under Russell, the burden shifts to defendant to \u201ccome forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one . . . .\u201d Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994). Presuming without holding competent evidence satisfies plaintiff\u2019s burden, the Commission also failed to enter findings of fact regarding whether defendant satisfied its burden of proof. Without proper findings under Russell, no competent evidence supports the Commission\u2019s conclusion awarding plaintiffs total disability. We remand to the Commission to make findings of fact, based on competent evidence, to determine whether plaintiff is totally disabled.\nVI. Collateral Estoppel\nDefendant contends the Commission erred in failing to address its argument that the issue of REMC\u2019s decision to terminate plaintiff\u2019s employment had already been litigated and decided by the North Carolina Employment Security Commission (\u201cESC\u201d). We disagree.\nIn Roberts v. Wake Forest University, this Court ruled on a similar argument. 55 N.C. App. 430, 436, 286 S.E.2d 120, 124, disc. rev. denied, 305 N.C. 586, 292 S.E.2d 571 (1982). The plaintiff in Roberts argued, \u201cthe ruling of the Employment Security Commission that plaintiff was entitled to unemployment benefits is res judicata in this action, because an employee is disqualified for benefits if he (1) left work voluntarily without good cause attributable to the employer, or if he (2) was discharged for misconduct connected with his work. G.S. 96-14(1) and 96-14(2).\u201d Id. In response, this Court held, \u201cWe find no merit in this argument because the issue before the Commission and the issue before the court in this action for breach of contract are not the same. Too, the doctrine of res judicata is inapplicable to adjudication by unemployment compensation agencies.\u201d Id. (citing 76 Am. Jur. 2d Unemployment Compensation \u00a7 93 (1975)).\nIn Goins v. Cone Mills Corp., this Court held the deceased employee\u2019s wife was not estopped to litigate the issue of total permanent disability because she was not a party to the claim for the employee\u2019s lifetime benefits and was not in privity with a party to that claim. 90 N.C. App. 90, 92-93, 367 S.E.2d 335, 336-37, disc. rev. denied, 323 N.C. 173, 373 S.E.2d 108 (1988).\nUnder the principle of collateral estoppel, \u201cparties and parties in privity with them \u2014 even in unrelated causes of action \u2014 are precluded from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.\u201d King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973). A companion doctrine to res judicata, which bars every ground of recovery or defense which was actually presented or which could have been presented in the previous action, collateral estoppel bars only those issues actually decided which were necessary to the prior finding or verdict. Id. Like res judicata, collateral estoppel only applies if the prior action involved the same parties or those in privity with the parties and the same iss.ues. Id. In the context of collateral estoppel and res judicata, the term privity indicates a mutual or successive relationship to the same property rights. Moore v. Young, 260 N.C. 654, 133 S.E.2d 510 (1963). An exception to the general requirement of privity exists where one not actually a party to the previous action controlled the prior litigation and had a proprietary interest in the judgment or in the determination of a question of law or facts on the same subject matter.\nId. In Goins, we distinguished between the property rights at issue and reasoned the employee had previously filed a claim for lifetime disability benefits, while the wife was pursuing a claim for death benefits. 90 N.C. App. at 93-94, 367 S.E.2d at 337. Although the determination of \u201cdisability\u201d was common to both actions, the wife was entitled to a separate determination and was \u201cnot collaterally estopped to litigate the issue of total permanent disability.\u201d Id. at 93, 367 S.E.2d at 337.\nOn 14 July 2000, the ESC issued its Appeals Decision by Appeals Referee Charles M. Brown, Jr., which disqualified plaintiff from unemployment benefits because plaintiff had \u201cmade threatening remarks about other employees of the employer.\u201d The ESC concluded that plaintiff \u201cwas discharged for misconduct connected with his work.\u201d Plaintiff did not appeal this decision.\nDefendant argues this determination by the ESC\u2019s Appeals Decision prevented re-litigation of the same issue before the Commission, but fail to cite any cases or other authority where res judicata or collateral estoppel were applied in workers\u2019 compensation cases to support their argument. Although this factual determination of plaintiff\u2019s misconduct is similar, the different interests at stake, namely whether unemployment benefits and compensation for disability should be awarded to plaintiff, distinguish ESC\u2019s determination from the issue before the Commission. This assignment of error is overruled.\nVII. Findings of Fact Regarding Other Conditions\nDefendant argues the Commission erred by finding that plaintiff\u2019s urological and psychological conditions are compensable and the findings of fact regarding the compensability of these conditions are not supported by competent evidence. We disagree.\nA. Urological Condition\nDefendant contends no evidence supports the Commission\u2019s finding of fact which states:\nUpon consideration of the testimony of Dr. Wheeler, Dr. Dominick Carbone, and the record as a whole, the greater weight of the evidence establishes that plaintiffs impotence, blood in urine, and problems with urination including a burning sensation upon urination and inability to control urination, were caused by the accident on February 21, 1997.\nIn his deposition dated 5 April 2002, plaintiff\u2019s counsel questioned Dr. Wheeler, who testified as follows:\nQ: In your opinion, is [plaintiff\u2019s pain from the injury] more likely to have caused the impotency than a pack a day or smoking habit that [plaintiff] may have had for 20 years?\nA: Again, I see patients with post-traumatic injuries . . . and my opinion in regard to Mr. Workman is that his cigarettes could or might have caused his impotence and that his low back pain could or might have contributed as well to his impotence ....\nUnder our Supreme Court\u2019s holding in Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003), \u201ccould or might\u201d testimony is insufficient to establish medical causation in a workers\u2019 compensation claim. Edmonds v. Fresenius Med. Care, 165 N.C. App. 811, 818, 600 S.E.2d 501, 506 (2004) (J. Steelman, dissenting), rev\u2019d per curiam, 359 N.C. 313, 608 S.E.2d 755 (2005).\n[0]nly an expert can give competent opinion evidence as to the cause of the injury. However, when such expert opinion testimony is based merely upon speculation and conjecture, ... it is not sufficiently reliable to qualify as competent evidence on issues of medical causation. The evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation.\nHolley, 357 N.C. at 232, 581 S.E.2d at 753 (internal citations and quotations omitted).\nThe following month after deciding Edmonds, our Supreme Court in Alexander v. Wal-Mart Stores, Inc., reiterated \u201cthe role of the Court of Appeals is \u2018limited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u2019\u201d 166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004) (J. Hudson, dissenting) (quoting Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)), rev\u2019d per curiam, 359 N.C. 403, 610 S.E.2d 374 (2005). Our Supreme Court reversed and adopted the dissenting opinion in Alexander, holding the greater weight of the evidence standard was met through a medical expert\u2019s testimony \u201cestablishing] that it was \u2018likely\u2019 that [plaintiff\u2019s injury] occurred during the accident 166 N.C. App. at 573, 603 S.E.2d at 558 (emphasis supplied).\nAttached to Dr. Wheeler\u2019s deposition as Exhibit 4 is a treatment note dated 1 February 2001, wherein Dr. Wheeler stated that plaintiff\u2019s \u201cimpotence is, more likely than not, related to his injury.\u201d\nWhen later asked if plaintiff\u2019s impotence was \u201cmore likely\u201d caused by back pain resulting from plaintiff\u2019s fall, Dr. Wheeler testified that the work-related injuries \u201ccould or might have . . . contributed\u201d to plaintiff\u2019s impotence.\nOur Supreme Court has held \u201cthat the entirety of causation evidence\u201d must \u201cmeet the reasonable degree of medical certainty standard necessary to establish a causal link between plaintiff\u2019s\u201d accident and their injury. Holley, 357 N.C. at 234, 581 S.E.2d at 754. \u201cAlthough medical certainty is not required, an expert\u2019s \u2018speculation\u2019 is insufficient to establish causation.\u201d Id.\nThe doctor in Alexander expressed her causation opinion \u201crepeatedly and without equivocation\u201d that plaintiff\u2019s injury \u201clikely . . . occurred during the accident.\u201d 166 N.C. App. at 573, 603 S.E.2d at 558. While plaintiff\u2019s expert did not testify plaintiff\u2019s impotence \u201clikely . . . occurred during\u201d the work-related accident, his treatment note opined that plaintiff\u2019s \u201cimpotence is, more likely than not, related to his injury.\u201d Id. Although Dr. Wheeler\u2019s later testimony used the terms \u201c \u2018could\u2019 or \u2018might,\u2019 \u201d Holley, 357 N.C. at 232, 581 S.E.2d at 753, and was not \u201cwithout equivocation\u201d as shown by Dr. Wheeler\u2019s conflicting testimony and his medical notes, the Commission is the \u201csole judge\u201d of Dr. Wheeler\u2019s credibility, Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558. Credibility issues caused by any variance in Dr. Wheeler\u2019s treatment notes and his later testimony was for the Commission to decide. Harrell, 45 N.C. App. at 205, 262 S.E.2d at 835 (\u201c[T]he Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness\u2019s testimony....\u201d).\nIn both Edmonds and Alexander, our Supreme Court reaffirms the holding in Holley that \u201cmere possibility has never been legally competent to prove causation. Although medical certainty is not required, an expert\u2019s \u2018speculation\u2019 is insufficient to establish causation.\u201d Holley, 357 N.C. at 234, 581 S.E.2d at 754 (internal citation omitted); Edmonds, 165 N.C. App. at 818, 600 S.E.2d at 506; Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558. In reversing the Commission, the Holley Court noted, \u201cplaintiff\u2019s doctors were unable to express an opinion to any degree of medical certainty as to the cause of plaintiff\u2019s [injury].\u201d Id.\nPlaintiff\u2019s expert evidence of causation exceeded \u201cspeculation.\u201d Dr. Wheeler\u2019s testimony of \u201ccould or might,\u201d together with his impression recorded in his treatment notes that plaintiff\u2019s injury \u201cmore likely than not [was] related to his injury\u201d is competent evidence to sustain the Commission\u2019s conclusion of law that plaintiff\u2019s impotence and urination conditions were caused by the accident. Id. at 234, 581 S.E.2d at 754; Edmonds, 165 N.C. App. at 818, 600 S.E.2d at 506; Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558. The Commission\u2019s finding of fact is supported by competent evidence in the record. Its conclusion of law awarding compensation for plaintiff\u2019s urological condition is affirmed.\nB. Psychological Condition\nDefendant contends the Commission erred by finding:\nDr. Brian A. Simpson, a psychologist, testified that there is a \u201cvery strong linkage\u201d between plaintiff\u2019s development of depression, the accident on February 21, 1997, and \u201cthe other events that precipitated, such as chronic pain, such as functional limitations, such as occupation loss . . . .\u201d Dr. Simpson further testified[,] \u201cit would be very improbable\u201d that plaintiff\u2019s depression began only after he was terminated, and that in his opinion plaintiff\u2019s termination aggravated his depression, which \u201cpre-existed the termination from work.\u201d The greater weight of the evidence establishes that plaintiffs depression is causally related to the accident on February 21, 1997.\nDr. Simpson\u2019s deposition expert testimony supports this finding of fact. Dr. Simpson testified, that in his expert opinion, \u201ca very strong linkage\u201d exists between the injury and plaintiff\u2019s development of depression. He also opined, \u201cI think it would be very improbable that [plaintiff] did not suffer depression until his termination in February of 2000 and then, as a result of that termination, develop depression. ... It is my opinion though that the termination of his employment did aggravate his depression.\u201d Further, Dr. Simpson testified:\nIt was my opinion though and based upon the sequence of events that occurred from the time of his injury that \u2014 that the development of depression pre-existed the termination from work and pre-existed the marriage rupture, but did develop subsequent to and related to his injury and chronic pain and the other events that occurred following that\nI would submit that in reconstructing the sequence of events that his falling as a work injury and the medical complications of that, that it would be reasonable to believe that depression then developed rather rapidly following that injury.\nDr. Simpson\u2019s testimony of \u201ca very strong linkage\u201d regarding the causation of plaintiff\u2019s psychological condition to his accident is sufficient \u201cto take the case out of the realm of conjecture and remote possibility . . . .\u201d 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)). Competent evidence supports the Commission\u2019s finding of fact. This assignment of error is overruled.\nVIII Medical Expenses\nDefendant argues the Commission erred by requiring them to pay all medical expenses, not just related medical expenses, on behalf of plaintiff. We disagree.\nDefendant argues the Commission\u2019s opinion and award is overly broad by ordering defendant to pay for a \u201ccomprehensive evaluation of all of plaintiff\u2019s medical conditions\u201d and then pay for \u201cany treatment recommended by it.\u201d In support of this assignment of error, defendant fails to cite any authority for this proposition other than their cite to \u201cN.C. Gen. Stat. \u00a7 97(2)\u201d and the broad assertion that \u201cthe Order violates the Workers\u2019 Compensation Act.\u201d N.C. Gen. Stat. \u00a7 97-2, which we presume is the statute defendant attempts to cite as authority, is the section entitled \u201cDefinitions\u201d of the Workers\u2019 Compensation Act. Defendant fails to argue how this statute applies to their assignment of error or which portions of this statute are applicable. Under Rule 28 of the North Carolina Rules of Appellate Procedure, \u201c[assignments of error ... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d N.C.R. App. P. 28(b)(6) (2004); see also Bass, 166 N.C. App. at 612, 603 S.E.2d at 388. We do not reach the merit of this assignment of error and it is dismissed.\nIX. Conclusion\nThe Commission did not err in finding defendant failed to satisfy their burden under Seagraves to show plaintiff was terminated for misconduct and not as a result of his compensable injury. The Commission did not err in considering attorney Cobourn\u2019s affidavit, despite the fact defendant did not have an opportunity to cross-examine him. The affidavit contained no \u201csignificant new evidence\u201d and plaintiff and his wife had testified to those facts. Cummins, 149 N.C. App. at 185, 560 S.E.2d at 372. Collateral estoppel does not bar plaintiffs claim for workers\u2019 compensation before the Commission even though the ESC reached a different disposition on plaintiff\u2019s unemployment benefits. Competent evidence in the record supports the Commission\u2019s finding of fact that plaintiff\u2019s injury at work caused his psychological condition.\nCompetent evidence in the record supports the Commission\u2019s finding of fact that plaintiff\u2019s impotence and urological condition were caused by his accident on 21 February 1997.\nThe Commission failed to make adequate findings of fact to show plaintiff proved his total disability or is \u201ccapable of some work.\u201d Springer, 160 N.C. App. at 577, 586 S.E.2d at 556. We remand for entry of findings of fact on this issue.\nThe opinion and award is affirmed in part and remanded for further findings of fact on plaintiff\u2019s total disability.\nAffirmed in part and Remanded.\nJudge McGEE concurs.\nJudge WYNN concurs in the result only by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge\nconcurring with separate opinion.\nI respectfully concur in the result from the majority\u2019s decision to affirm the Commission\u2019s finding of fact on causation of Mr. Workman\u2019s urological condition. Following our Supreme Court\u2019s decision in Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 571, 603 S.E.2d 562, 558 (2004) (Hudson, J., dissenting), rev\u2019d per curiam, 359 N.C. 403, 610 S.E.2d 374 (2005), since there was competent evidence that Mr. Workman\u2019s urological condition was \u201cmore likely than not\u201d caused by his work-place injury, and all of the evidence supports a conclusion of total disability, I would affirm the Commission\u2019s Opinion and Award. 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.\nCausation under the Workers Compensation Act\nIn North Carolina, the underlying purpose of the North Carolina Workers\u2019 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\u2019 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\u2019t, 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).\nAfter 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\u2019s finding of fact. The finding states in part, \u201c[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\u2019s impotence, . . . [was] caused by the accident on February 21, 1997.\u201d\nWhere, as here, medical opinion testimony is required, \u201cmedical certainty is not required, [but] an expert\u2019s \u2018speculation\u2019 is insufficient to establish causation.\u201d 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\u2019s injury. And under Adams, even in determining causation, the Commission\u2019s finding of fact must stand if supported 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 \u201cmore likely than not\u201d that the impotence was related to Mr. Workman\u2019s 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 \u201cgreater weight\u201d of the evidence or a \u201cpreponderance\u201d of the evidence), aff\u2019d, 343 N.C. 302, 469 S.E.2d 552 (1996). Therefore, there is competent evidence to support the finding of fact.\nI 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 \u201cwithout equivocation.\u201d 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 \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Our review \u201c \u2018goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414 (citation omitted). The Commission\u2019s findings of fact \u201care conclusive on appeal when supported by competent evidence,\u201d 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 \u201cwhen there is a complete lack of competent evidence to support them[.]\u201d 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 \u201cis entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Deese, 352 N.C. at 115, 530 S.E.2d at 553.\nIn Alexander, our Supreme Court reiterated the role of this Court by adopting Judge Hudson\u2019s dissent stating, \u201cI 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\u2019s role is not to engage in such a weighing of the evidence.\u201d Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558. The majority states that, \u201cThe doctor in Alexander expressed her causation opinion \u2018repeatedly and without equivocation\u2019 . . . .\u201d But to be sure, the complete statement from Alexander was that \u201cmuch of the evidence reveals that the doctor expressed her opinions repeatedly and without equivocation.\u201d Id. (emphasis supplied). Thus, Alexander does not require that all of the evidence must show that the doctor expressed his opinion \u201cwithout equivocation.\u201d\nHere, where the records of Dr. Wheeler support the Commission\u2019s 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).\nAs 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\u2019s finding is supported by competent evidence. Accordingly, the opinion and award of the Commission should be affirmed.\nRemand for Findings on Disability\n\u201cOrdinarily, 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.\u201d N.C. Dep\u2019t of Env\u2019t & 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\u2019s 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.\nThe 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 establish one of the elements under Russell, the burden shifts to the defendant to \u201ccome 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).\nWhile, 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.\nLike 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.\n. I agree with the majority\u2019s holding in that it finds that the Commission did not err in finding and concluding that the employer\u2019s decision to terminate Plaintiff was not for misconduct or fault; the Commission did not err in considering Cobourn\u2019s affidavit; collateral estoppel does not bar Plaintiff\u2019s claim for workers\u2019 compensation; and competent evidence in the record supports the Commission\u2019s finding of fact that Plaintiff\u2019s injury at work caused his psychological condition.", "type": "concurrence", "author": "WYNN, Judge" } ], "attorneys": [ "Daniel Law Firm, P.A., by Stephen T. Daniel and Warren T. Daniel, for plaintiff-appellee.", "Teague, Campbell, Dennis & Gorham, L.L.P., by J. Matthew Little and Tara Davidson Muller, for defendant-appellant." ], "corrections": "", "head_matter": "JOHNNY E. WORKMAN, Employee, Plaintiff v. RUTHERFORD ELECTRIC MEMBERSHIP CORPORATION, Employer, SELF INSURED (FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, Third Party Administrator), Defendant\nNo. COA04-491\n(Filed 7 June 2005)\n1. Workers\u2019 Compensation\u2014 disability \u2014 discharge for misconduct\nWorkers\u2019 compensation benefits are barred if an employee\u2019s loss of wages is attributable to a wrongful act resulting in loss of employment, but the employee is entitled to benefits if the loss of wages is due to the employee\u2019s work-related disability. The elements required for payment to be barred include a showing that the same misconduct would result in the termination of a nondisabled employee. The plaintiff in this case, frustrated at not being assigned work within his medical limitations, repeated a joke from a lawyer, but committed no act of physical violence. The Commission found that there was no evidence that another employee who made similar statements would have been terminated.\n2. Workers\u2019 Compensation\u2014 affidavit \u2014 opportunity to rebut \u2014 corroborative\nThe trial court did not abuse its discretion in a workers\u2019 compensation case in the admission and consideration of an affidavit from an attorney who told plaintiff a joke, which was interpreted as a threat when plaintiff repeated it and for which plaintiff was fired. Although defendant contended that the Commission should have allowed it the opportunity to rebut or discredit the evidence, it was only corroborative of other testimony and was not prejudicial even if erroneously admitted because the remaining findings support the Commission\u2019s conclusion.\n3. Workers\u2019 Compensation\u2014 disability \u2014 factors in determining \u2014 findings\nAn Industrial Commission conclusion that a workers\u2019 compensation plaintiff was disabled was remanded where the Commission made no findings regarding one of the four factors indicating disability and whether plaintiff had met that burden.\n4. Workers\u2019 Compensation\u2014 discharge for misconduct\u2014 Employment Security Commission decision \u2014 not res judicata\nA workers\u2019 compensation determination of whether plaintiff was terminated for misconduct, which would bar benefits, was not prevented'by the Employment Security Commission\u2019s decision on the subject. Defendant did not cite authority for application of res judicata or collateral estoppel, and, while the factual determination is similar, the different interests at stake distinguish the ESC\u2019s determination from the issue before the Industrial Commission.\n5. Workers\u2019 Compensation\u2014 causation \u2014 findings\u2014medical testimony \u2014 more than speculation\nThe Industrial Commission\u2019s finding of fact in a workers\u2019 compensation case that plaintiff\u2019s urological condition was caused by his accident was supported by competent evidence in the record. The testimony of plaintiff\u2019s medical expert was not without equivocation, but it was more than speculation, and the Commission is the sole judge of the credibility of witnesses.\n6. Workers\u2019 Compensation\u2014 causation \u2014 expert testimony\u2014 more than conjecture\nCompetent evidence supported the Industrial Commission\u2019s finding of fact in a workers\u2019 compensation case that plaintiff\u2019s depression is causally related to his work-related accident. A psychologist\u2019s testimony of \u201ca very strong linkage\u201d between the development of plaintiff\u2019s psychological condition and his accident is sufficient to take the case beyond conjecture and remote possibility.\n7. Appeal and Error\u2014 preservation of issues \u2014 assignments of error \u2014 sufficiency of supporting authority\nAn assignment of error concerning medical expenses in a workers\u2019 compensation case was dismissed where defendant cited (incorrectly) only the definitions portion of the Workers\u2019 Compensation Act and did not argue how the statute applied to the assignment of error.\nJudge Wynn concurring.\nAppeal by defendant from opinion and award entered 18 November 2003 by Commissioner Christopher Scott for the North Carolina Industrial Commission. Heard in the Court of Appeals 7 December 2004.\nDaniel Law Firm, P.A., by Stephen T. Daniel and Warren T. Daniel, for plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by J. Matthew Little and Tara Davidson Muller, for defendant-appellant." }, "file_name": "0481-01", "first_page_order": 511, "last_page_order": 531 }