{ "id": 8436465, "name": "THOMAS NEIL CANNON, Employee, Plaintiff-Appellee v. GOODYEAR TIRE & RUBBER COMPANY, Employee, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants-Appellants", "name_abbreviation": "Cannon v. Goodyear Tire & Rubber Co.", "decision_date": "2005-07-05", "docket_number": "No. COA04-168", "first_page": "254", "last_page": "266", "citations": [ { "type": "official", "cite": "171 N.C. App. 254" } ], "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": "610 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797423 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0403-01" ] }, { "cite": "603 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "parenthetical": "Hudson, J., dissenting" }, { "page": "558" }, { "page": "573" }, { "page": "558" }, { "page": "558" }, { "page": "558" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 563", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412225 ], "weight": 4, "year": 2004, "pin_cites": [ { "parenthetical": "Hudson, J., dissenting" }, { "page": "571" }, { "page": "573" }, { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0563-01" ] }, { "cite": "608 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "506" } ], "opinion_index": 0 }, { "cite": "359 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800261 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0313-01" ] }, { "cite": "600 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2004, "pin_cites": [ { "parenthetical": "Steelman, J., dissenting" }, { "page": "503" }, { "page": "502-03" }, { "page": "503" }, { "page": "506" }, { "page": "506" }, { "page": "506" }, { "page": "506" }, { "page": "506", "parenthetical": "Steelman, J., dissenting" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 811", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000203 ], "weight": 5, "year": 2004, "pin_cites": [ { "parenthetical": "Steelman, J., dissenting" }, { "page": "812-13" }, { "page": "818" }, { "page": "818" }, { "page": "817" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0811-01" ] }, { "cite": "527 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091829 ], "year": 2000, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0051-01" ] }, { "cite": "215 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "94", "parenthetical": "\"[A]n expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\"" } ], "opinion_index": 0 }, { "cite": "287 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564077 ], "year": 1975, "pin_cites": [ { "page": "522", "parenthetical": "\"[A]n expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0515-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2000, "pin_cites": [ { "page": "915" }, { "page": "913" }, { "page": "914" }, { "page": "915" }, { "page": "916" }, { "page": "916" }, { "page": "916" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "230" }, { "page": "228" }, { "page": "233" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "357 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "685" }, { "page": "685" } ], "opinion_index": 0 }, { "cite": "320 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728549 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "158-59" }, { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0155-01" ] }, { "cite": "470 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "359", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917911 ], "year": 1996, "pin_cites": [ { "page": "466", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0462-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "470" } ], "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "467 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "since the plaintiffs brother's death \"was not attributable to [the] plaintiff's own intentional conduct,\" the plaintiff was entitled to compensation for the exacerbation of his work-related depression" } ], "opinion_index": 0 }, { "cite": "342 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796139, 796140, 795983, 796016, 795895 ], "year": 1996, "pin_cites": [ { "parenthetical": "since the plaintiffs brother's death \"was not attributable to [the] plaintiff's own intentional conduct,\" the plaintiff was entitled to compensation for the exacerbation of his work-related depression" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0651-01", "/nc/342/0651-04", "/nc/342/0651-03", "/nc/342/0651-02", "/nc/342/0651-05" ] }, { "cite": "463 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918192 ], "year": 1995, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0783-01" ] }, { "cite": "173 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "328", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "276 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561636 ], "year": 1970, "pin_cites": [ { "page": "426", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0417-01" ] }, { "cite": "463 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795956, 796120, 796121, 796058, 796094 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0192-03", "/nc/342/0192-01", "/nc/342/0192-04", "/nc/342/0192-05", "/nc/342/0192-02" ] }, { "cite": "459 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "799" }, { "page": "800-01", "parenthetical": "finding that an automobile accident was not an independent, intervening cause of the plaintiff's injury because there was no evidence that the plaintiff's own intentional conduct caused the accident" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917098 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "685" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0682-01" ] }, { "cite": "327 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718689, 4718243, 4721833, 4725486, 4720539 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0329-05", "/nc/313/0329-01", "/nc/313/0329-04", "/nc/313/0329-02", "/nc/313/0329-03" ] }, { "cite": "323 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525367 ], "year": 1984, "pin_cites": [ { "page": "381-82" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0377-01" ] }, { "cite": "312 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400416, 2404356, 2397747, 2398868, 2394174 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0309-03", "/nc/310/0309-01", "/nc/310/0309-02", "/nc/310/0309-05", "/nc/310/0309-04" ] }, { "cite": "308 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522027 ], "year": 1983, "pin_cites": [ { "page": "73-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0069-01" ] }, { "cite": "391 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525042 ], "year": 1990, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0466-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "266 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "300 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561147 ], "year": 1980, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0329-01" ] }, { "cite": "528 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094153 ], "year": 2000, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0480-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 1005, "char_count": 27537, "ocr_confidence": 0.75, "pagerank": { "raw": 3.007286879605046e-07, "percentile": 0.8529437430522011 }, "sha256": "298c497832054543eec9a94b167cb869383b892111be3788806fee62ef141a38", "simhash": "1:82604de8243ae056", "word_count": 4321 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TYSON concur." ], "parties": [ "THOMAS NEIL CANNON, Employee, Plaintiff-Appellee v. GOODYEAR TIRE & RUBBER COMPANY, Employee, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants-Appellants" ], "opinions": [ { "text": "McGEE, Judge.\nThomas Neil Cannon (plaintiff) began working for defendant Goodyear Tire and Rubber Company (Goodyear) in 1976. Plaintiff was employed as a tire builder throughout his employment at Goodyear. Plaintiff went to Doctors\u2019 Urgent Care on 22 March 2001 seeking treatment for blurred vision and \u201ctingling\u201d in his feet. An initial neurological examination by Dr. Michael Christopher Moore (Dr. Moore) was inconclusive. Dr. Moore referred plaintiff to a neurologist and an optometrist. Plaintiff scheduled an appointment with a neurologist, Dr. Rangasamy Ramachandran (Dr. Ramachandran), for 10 April 2001.\nPlaintiff was changing a drum on 6 April 2001, while acting within the scope of his employment. When plaintiff lifted the hoist off the drum, he felt a sharp pain in the lower part of his back. Plaintiff also experienced a \u201ctingling numbness\u201d in his feet but testified that.it was a different sensation than what he had complained of on 22 March 2001. Plaintiff reported the accident to his supervisor and went to the infirmary. Plaintiff was given light duty for the remainder of the day. When plaintiff arrived at work the following day, he returned to the infirmary, complaining of lower back pain and numbness from his knees down to his feet. The infirmary nurse, Wanda Monroe, sent plaintiff to Primary Care Plus. The doctors at Primary Care Plus diagnosed plaintiff with lumbar strain and gave plaintiff light duty. Plaintiff was told to follow up on 9 April 2001 with the company doctor for further assessment. Plaintiff testified that he did not follow up on 9 April 2001 because the doctor at Primary Care Plus \u201cdidn\u2019t do nothing to [him].\u201d\nPlaintiff missed his appointment with Dr. Ramachandran on 10 April 2001 due to illness, and rescheduled the appointment for 18 April 2001. While en route to this appointment, plaintiff was injured in an automobile accident. Plaintiff was taken to the emergency room of Cape Fear Valley Medical Center, where he was diagnosed with thoracic, lumbar, and cervical spine strain, as well as left knee sprain. Plaintiff was prescribed pain medication, was given two days off work, and was given light duty for five days.\nPlaintiff was finally able to see Dr. Ramachandran on 23 April 2001. Dr. Ramachandran ordered an MRI of plaintiff\u2019s cervical spine. The MRI revealed \u201ca large posterior osteophyte at C-4-5 with indented spinal cord on the left paracentral region.\u201d Dr. Ramachandran referred plaintiff to a neurosurgeon.\nPlaintiff saw Dr. Robert Allen (Dr. Allen), a neurosurgeon, on 18 May 2001. Plaintiff did not inform Dr. Allen that plaintiff had been involved in a work-related accident on 6 April 2001 or that plaintiff had been in a car accident on 18 April 2001. Plaintiff did not list either of these events on the \u201cMedical History Questionnaire\u201d (the Questionnaire) that he filled out before the appointment with Dr. Allen. Plaintiff also listed the onset of the symptoms as occurring on 1 April 2001. The Questionnaire also asked whether plaintiff\u2019s visit was \u201crelated to an accident].]\u201d Plaintiff checked the \u201cNO\u201d box next to this question. Finally, Dr. Allen\u2019s notes from plaintiff\u2019s visit states: \u201cThere is no inciting event for [plaintiff\u2019s] symptoms other than he does have a previous history of a pretty major accident as a teenager back when he was around 16 or 17 years old.\u201d\nDr. Allen reviewed plaintiff\u2019s MRI and determined that plaintiff had a kyphotic deformity in the cervical spine. Dr. Allen described plaintiff\u2019s kyphotic deformity as \u201c[i]nstead. of [having] a straight spine, [plaintiff] had a very bad angulation to the spine.\u201d Dr. Allen\u2019s physical examination of plaintiff confirmed this preliminary diagnosis. Although Dr. Allen did not know the cause of the kyphotic deformity, he testified that the deformity was \u201cquite fused,\u201d and therefore \u201csuggestive of very chronic phenomena\u201d or a \u201clong-standing\u201d condition. He believed that the deformity was either a congenital condition or \u201cdue to trauma in the remote past.\u201d Dr. Allen testified.that it was \u201cpotentially\u201d caused by an automobile accident in which plaintiff had been involved when plaintiff was sixteen years old.\nDr. Allen performed surgery on the kyphotic deformity on 27 July 2001. Plaintiff steadily improved after the surgery, returning to work on 26 November 2001. Dr. Allen testified in his deposition that by that time plaintiff had reached maximum medical improvement. Dr. Allen estimated that plaintiff had sustained twenty percent permanent partial disability to his back.\nIn an opinion and award entered 24 October 2003, the Industrial Commission (the Commission) made the following pertinent findings of fact:\n11. Dr. Allen opined that the accident at work could have been an exacerbating or aggravating factor in the onset of plaintiff\u2019s cervical myelopathy. He further opined that plaintiff\u2019s kyphotic deformity caused plaintiff to be more susceptible to injury after a specific traumatic incident. Dr. Allen opined that given the long-standing kyphotic deformity, any trauma such as the work-related injury or the car accident of 18 April 2001 could have been sufficient to create plaintiff\u2019s current symptoms. Dr. Allen was unable to apportion plaintiff\u2019s current condition between the automobile accident when plaintiff was 16, the work-related accident of 6 April 2001, and the auto accident on 18 April 2001.\n12, Plaintiff\u2019s pre-existing condition of kyphotic deformity was materially aggravated and/or exacerbated by the work-related specific traumatic incident of 6 April 2001. Plaintiff\u2019s back condition was further materially aggravated and/or exacerbated by the automobile accident of 18 April 2001.\nThe Commission then made the following pertinent conclusions of law:\n1. On 6 April 2001, plaintiff sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment with defendant-employer. N.C. Gen. Stat. \u00a7 97-2.\n2. On 18 April 2001, plaintiff was in an automobile accident which materially aggravated and/or exacerbated his work-related injury and his pre-existing condition of kyphotic deformity. ... In the instant case, the subsequent aggravation of plaintiff\u2019s condition was not due to an intervening cause attributable to plaintiffs own intentional conduct. Rather, it occurred while plaintiff was on his way to receive treatment for his compensable work-related injury of 6 April 2001; therefore, the aggravation of plaintiff\u2019s condition was a direct and natural result of plaintiff\u2019s compensable injury. N.C. Gen. Stat. \u00a7 97-25.\nChairman Buck Lattimore dissented from the Commission\u2019s opinion and award, stating:\n[Plaintiff\u2019s complaints all regarded a lower back injury on April 6, 2001. Not one of four doctors deposed in this case indicated that plaintiff\u2019s lower lumbar pain allegedly experienced on April 6, 2001 definitely caused or aggravated a pre-existing condition in plaintiff\u2019s cervical spine.\nThe Commission awarded plaintiff: (1) temporary total disability at the rate of $620.00 per week from 23 April 2001 through 25 November 2001 and (2) permanent partial disability at the rate of $620.00 for sixty weeks for the twenty percent permanent partial disability rating to his back. Defendants appeal.\nI.\nWe first note that plaintiff has argued in his brief that defendants\u2019 appeal should be dismissed on the ground that defendants did not timely file the proposed record on appeal. Plaintiff filed a motion to dismiss this appeal on 10 June 2004, in which he presented the same argument, verbatim. Our Court determined this matter in an order denying the motion to dismiss on 23 June 2004.\nII.\nWe have a \u201cquite narrow\u201d standard of review in workers\u2019 compensation cases. Calloway v. Memorial Mission Hosp., 137 N.C. App. 480, 484, 528 S.E.2d 397, 400 (2000). Our review is limited to the consideration of two issues: (1) whether the Commission\u2019s findings of fact are supported by competent evidence; and (2) whether the conclusions of law are supported by the findings of fact. Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). When there is any evidence in the record that tends to support a finding of fact, the finding of fact is supported by competent evidence and is conclusive on appeal. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Likewise, \u201c[w]e are not bound by the findings of the Commission when they are not supported by competent evidence in the record.\u201d English v. J.P. Stevens & Co., 98 N.C. App. 466, 471, 391 S.E.2d 499, 502 (1990).\nDefendants argue that no competent evidence supports the Commission\u2019s finding of fact that plaintiff sustained an injury by specific traumatic incident while lifting a drum hoist. We disagree. Plaintiff testified in detail at the hearing about the 6 April 2001 incident. Plaintiff stated that, while changing a drum, he \u201cpulled on the hoist to lift it off the iron bar.\u201d Plaintiff testified that this action caused him to pull the lower part of his back and experience a sharp pain. Plaintiff then filled out an accident report and went to the infirmary, where he was put on light duty. Plaintiff returned to the infirmary the following day, complaining of lower back pain, and the infirmary nurse sent plaintiff to Primary Care Plus, where he was diagnosed with lumbar strain. Both Harold Brock, plaintiff\u2019s supervisor, and the infirmary nurse confirmed plaintiff\u2019s testimony at the hearing. We hold that this is competent evidence that supports the Commission\u2019s finding of fact and conclusion of law that plaintiff sustained a work-related injury by specific traumatic incident on 6 April 2001.\nIII.\nDefendants next assign error to the Commission\u2019s finding of fact and conclusion of law that plaintiff\u2019s automobile accident aggravated and/or exacerbated his work-related injury. All natural consequences that result from a work-related injury are compensable under the Workers\u2019 Compensation Act. Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 73-74, 308 S.E.2d 485, 488 (1983); disc. review denied, 310 N.C. 309, 312 S.E.2d 652 (1984). Therefore, when a work-related injury leaves an employee in a weakened state that results in further injury, the subsequent injury is compensable. Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 381-82, 323 S.E.2d 29, 31 (1984), disc. review denied, 313 N.C. 329, 327 S.E.2d 890 (1985). However, compensation is precluded when \u201cthe subsequent aggravation is the result of an independent intervening cause attributable to claimant\u2019s own intentional conduct[.]\u201d Horne v. Universal Leaf Tobacco Processors, 119 N.C. App. 682, 685, 459 S.E.2d 797, 799, disc. review denied, 342 N.C. 192, 463 S.E.2d 237 (1995). \u201c \u2018An intervening cause is one occurring entirely independent of a prior cause. When a first cause produces a second cause that produces a result, the first cause is a cause of that result.\u2019 \u201d Petty v. Transport, Inc., 276 N.C. 417, 426, 173 S.E.2d 321, 328 (1970) (citation omitted).\nDefendants argue that the Commission erred when it found that plaintiff was in the 18 April 2001 automobile accident while en route to receive treatment for his 6 April 2001 work-related injury. We find that, regardless of whether plaintiff was en route to receive treatment for his work-related injury, the automobile accident was not an independent intervening cause because it did not result from plaintiffs own intentional conduct. Rather, the evidence shows, and defendants do not contend otherwise, that the automobile accident was the result of another driver\u2019s negligence. Therefore, the accident was not an intervening cause precluding compensation for aggravation of plaintiffs work-related injury. See, e.g., Baker v. City of Sanford, 120 N.C. App. 783, 789, 463 S.E.2d 559, 564 (1995), disc. review denied, 342 N.C. 651, 467 S.E.2d 703 (1996) (since the plaintiffs brother\u2019s death \u201cwas not attributable to [the] plaintiff\u2019s own intentional conduct,\u201d the plaintiff was entitled to compensation for the exacerbation of his work-related depression); Horne, 119 N.C. App. at 687, 459 S.E.2d at 800-01 (finding that an automobile accident was not an independent, intervening cause of the plaintiff\u2019s injury because there was no evidence that the plaintiff\u2019s own intentional conduct caused the accident).\nFurthermore, we find that competent evidence in the record supports the Commission\u2019s conclusion of law that the automobile accident aggravated plaintiff\u2019s work-related injury. Dr. Jeffrey Baldwin (Dr. Baldwin), plaintiff\u2019s chiropractor, testified that the automobile accident exacerbated the work-related injury:\nThe [automobile] accident ... is a trauma to the spine. Even though the majority of the trauma was up top, any trauma to the spine, especially if an area is already damaged, . . . the spine is going to absorb that trauma to some extent throughout the course of the spine, and it\u2019s going to affect the lower back if there was a previous existing problem down there ....\nTherefore, the Commission did not err in finding as fact and concluding as a matter of law that the automobile accident aggravated or exacerbated plaintiff\u2019s work-related injury.\nIV.\nDefendants\u2019 next assignment of error contends that competent evidence does not support the Commission\u2019s finding of fact and conclusion of law that plaintiff\u2019s pre-existing spinal kyphotic deformity was materially aggravated or exacerbated by the 6 April 2001 work-related injury.\nNorth Carolina law is clear that \u201c[w]hen a pre-existing, nondis-abling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment. . . so that disability results, then the employer must compensate the employee for the entire resulting disability[.]\u201d Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981). As long as \u201cthe work-related accident \u2018contributed in \u201csome reasonable degree\u201d \u2019 to [the] plaintiffs disability, [the plaintiff] is entitled to compensation.\u201d Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 466, 470 S.E.2d 357, 359 (1996) (citations omitted). However, a plaintiff must prove by a \u201cpreponderance of the evidence\u201d that the accident was a causal factor resulting in the disability. Ballenger v. ITT Grinnell Industrial Piping, 320 N.C. 155, 158-59, 357 S.E.2d 683, 685 (1987).\nIn workers\u2019 compensation cases that involve \u201ccomplicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Furthermore, \u201cexpert opinion testimony [that] is based merely upon speculation and conjecture . . . is not sufficiently reliable to qualify as competent evidence on issues of medical causation.\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000); see also Dean v. Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94 (1975) (\u201c[A]n expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\u201d).\nIn Young, the plaintiff suffered a lumbo-sacral strain while in the course and scope of her employment. Young, 353 N.C. at 228, 538 S.E.2d at 913. The plaintiff was later diagnosed with fibromyalgia and argued that the work-related injury was the cause of the fibromyalgia. Id. at 229-30, 538 S.E.2d at 914. Our Supreme Court held that there was no competent evidence to support a finding of causation, since the doctor\u2019s testimony on which the plaintiff relied \u201cwas based entirely upon conjecture and speculation.\u201d Id. at 231, 538 S.E.2d at 915. Although the doctor testified that the work-related \u201c \u2018 \u201cinjury could have or would have aggravated or caused the fibromyalgia[,]\u201d \u2019 \u201d id. at 233, 538 S.E.2d at 916 (quoting Young v. Hickory Bus. Furn., 137 N.C. App. 51, 56, 527 S.E.2d 344, 348 (2000)), the Court stated that \u201c \u2018could\u2019 or \u2018might\u2019 expert testimony [is] insufficient to support a causal connection when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\u201d Young, 353 N.C. at 233, 538 S.E.2d at 916.\nOur Supreme Court recently reaffirmed its holding in Young when it adopted the dissents from this Court\u2019s opinions in Edmonds v. Fresenius Med. Care, 165 N.C. App. 811, 600 S.E.2d 501 (2004) (Steelman, J., dissenting), rev\u2019dper curiam for reasons stated in the dissent, 359 N.C. 313, 608 S.E.2d 755 (2005), and Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 603 S.E.2d 552 (2004) (Hudson, J., dissenting), rev\u2019d per curiam for reasons stated in the dissent, 359 N.C. 403, 610 S.E.2d 374 (2005). In Edmonds, the plaintiff suffered from pre-existing kidney problems. 165 N.C. App. at 812-13, 600 S.E.2d at 503. As the result of a compensable work-related injury, the plaintiff was placed on non-steroidal anti-inflammatory drugs (non-steroidals). Id. at 812, 600 S.E.2d at 502-03. The plaintiff claimed that the non-steroidals exacerbated her pre-existing kidney problems, resulting in renal failure, and sought compensation from her employer. Id. at 813, 600 S.E.2d at 503. The dissent adopted by the Supreme Court found that the plaintiff failed to prove that the administration of non-steroidals for her work-related injury caused her renal failure. Id. at 819, 600 S.E.2d at 506. The dissent relied on the Commission\u2019s finding of fact that the expert testimony only indicated that the non-steroidals \u201cpossibly\u201d or \u201ccould or might\u201d have worsened the plaintiff\u2019s kidney problems:\n19. ... [The expert] could not 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. [The expert] testified that [the] plaintiff\u2019s kidney disease could be attributed to a number of factors, including diabetes, hypertension, a drug source injury, or a blunt trauma injury.\nId. at 817-18, 600 S.E.2d at 506. The dissent concluded that \u201c [t]his testimony does not rise above a guess or mere speculation\u201d and therefore was not competent evidence to show causation. Id. at 818, 600 S.E.2d at 506.\nIn contrast, the dissent adopted from Alexander found that competent evidence supported the plaintiff\u2019s claim that a work-related injury to his foot caused a ruptured disk in the plaintiff\u2019s back. 166 N.C. App. at 571, 603 S.E.2d at 558. The dissent stated that although \u201cit [wa]s possible to find a few excerpts [of the plaintiff\u2019s doctor\u2019s testimony] that might be speculative[,] . . . much of the evidence reveals that the doctor expressed her opinions repeatedly and without equivocation.\u201d Id. at 573, 603 S.E.2d at 558. Therefore, since the doctor did testify that it was \u201clikely\u201d that the plaintiffs back injury occurred during the work-related accident, competent evidence supported the Commission\u2019s conclusion that the work-related accident caused the back injury. Id.\nBased on these holdings, it appears that our Supreme Court has created a spectrum by which to determine whether expert testimony is sufficient to establish causation in worker\u2019s compensation cases. Expert testimony that a work-related injury \u201ccould\u201d or \u201cmight\u201d have caused further injury is insufficient to prove causation when other evidence shows the testimony to be \u201ca guess or mere speculation.\u201d Young, 353 N.C. at 233, 538 S.E.2d at 916; see also Edmonds, 165 N.C. App. at 818, 608 S.E.2d at 506. However, when expert testimony establishes that a work-related injury \u201clikely\u201d caused further injury, competent evidence exists to support a finding of causation. Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558.\nWe find that, like in Edmonds, the expert testimony in this case \u201cdoes not rise above a guess or mere speculation.\u201d Edmonds, 165 N.C. App. at 818, 600 S.E.2d at 506. Dr. Allen testified that the work-related injury \u201ccould have been an exacerbating or aggravating factor\u201d in plaintiffs kyphotic deformity, but further testified that he was uncertain that this was the case:\nA What pushed [the kyphotic deformity] over the edge, I\u2019m not sure if there was anything. ... I think what he is describing as his presentation, how it\u2019s due to any one particular event, I think is not clear.\nQ So it is possible with this condition that, even if the Industrial Commission finds that [plaintiff] did suffer an on-the-job injury on April the 6th, 2001, that it could have nothing to do with the condition that you treated him for here?\nA Correct.\nQ And there\u2019s no way for you to determine whether it was totally degenerative or something else specifically caused it?\nA Now I think that the evidence would suggest that he had a major kyphotic deformity present as the major problem. Whether some incident pushed it over the edge, I think, is less clear.\n(emphases added).\nDr. Allen\u2019s testimony indicates that he was unable to go beyond a guess or speculation in determining whether plaintiffs work-related injury aggravated and/or exacerbated plaintiffs kyphotic deformity. Rather, Dr. Allen\u2019s testimony shows that he was unsure as to whether any single event caused the onset of plaintiff\u2019s symptoms at all. Further, Dr. Allen testified that plaintiff\u2019s 6 April 2001 work-related injury \u201ccould have nothing to do with\u201d the kyphotic deformity. The Commission\u2019s findings of fact reflect Dr. Allen\u2019s uncertainty:\n11. Dr. Allen opined that the accident at work could have been an exacerbating or aggravating factor in the onset of plaintiffs cervical myelopathy. ... Dr. Allen opined that given the long-standing kyphotic deformity, any trauma such as the work-related injury or the car accident of 18 April 2001 could have been sufficient to create plaintiff\u2019s current symptoms.\n(emphases added).\nUnder Young and Edmonds, plaintiff has failed to carry his burden of proving that his work-related injury was a causal factor in his kyphotic deformity. Furthermore, Dr. Allen\u2019s testimony never indicated that, in his opinion, it was \u201clikely\u201d that the work-related injury caused an aggravation and/or exacerbation of plaintiffs kyphotic deformity. See Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558. Therefore, we hold that the Commission\u2019s finding of fact that the work-related injury aggravated and/or exacerbated plaintiff\u2019s kyphotic deformity was not supported by competent evidence. We remand to the Commission for new findings of fact and conclusions of law in accordance with the correct legal standard. See Ballenger, 320 N.C. at 158, 357 S.E.2d at 685 (stating that \u201c[w]hen the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legal standard.\u201d); see also Edmonds, 165 N.C. App. at 817, 600 S.E.2d at 506 (Steelman, J., dissenting) (\u201cIt 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.\u201d).\nWe vacate the Commission\u2019s 24 October 2003 opinion and award. We remand for findings of fact and conclusions of law applying the correct legal standard. We also remand for a determination as to the proper amount of compensation to which plaintiff is entitled for his 6 April 2001 work-related injury and its aggravation and/or exacerbation by the 18 April 2001 automobile accident.\nWe deem abandoned those assignments of error not addressed in defendants\u2019 brief. N.C. R. App. P. 28(b)(6).\nVacated and remanded.\nJudges WYNN and TYSON concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff-appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by Nicole Dolph Viele, for defendants-appellants." ], "corrections": "", "head_matter": "THOMAS NEIL CANNON, Employee, Plaintiff-Appellee v. GOODYEAR TIRE & RUBBER COMPANY, Employee, LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants-Appellants\nNo. COA04-168\n(Filed 5 July 2005)\n1. Appeal and Error\u2014 motion to dismiss \u2014 timeliness of proposed record on appeal\nAlthough plaintiff employee contends that defendants\u2019 appeal in a workers\u2019 compensation case should be dismissed on the ground that defendants did not timely file the proposed record on appeal, the Court of Appeals denied the motion to dismiss on 23 June 2004.\n2. Workers\u2019 Compensation\u2014 work-related injury \u2014 specific traumatic incident\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff employee sustained a work-related injury by specific traumatic incident while lifting a drum hoist, because: (1) plaintiff testified in detail at the hearing about the 6 April 2001 incident; and (2) plaintiff\u2019s supervisor and the infirmary nurse confirmed plaintiff\u2019s testimony at the hearing.\n3. Workers\u2019 Compensation\u2014 automobile accident aggravated and/or exacerbated work-related injury \u2014 failure to show independent intervening cause\nThe Industrial Commission did not err in a workers\u2019 compensation case by its finding of fact and conclusion of law that plaintiffs 18 April 2001 automobile accident aggravated and/or exacerbated his 6 April 2001 work-related injury, because: (1) regardless of whether plaintiff was en route to receive treatment for his work-related injury, the automobile accident was not an independent intervening cause since it did not result from plaintiff\u2019s own intentional conduct; and (2) competent evidence in the record supported the conclusion of law that the automobile accident aggravated plaintiff\u2019s work-related injury including the testimony of plaintiff\u2019s chiropractor.\n4. Workers\u2019 Compensation\u2014 expert testimony \u2014 guess or mere speculation\nThe Industrial Commission erred in a workers\u2019 compensation case by its finding of fact and conclusion of law that plaintiff\u2019s preexisting spinal kyphotic deformity was materially aggravated or exacerbated by the 6 April 2001 work-related injury and the case is remanded for new findings of fact and conclusions of law in accordance with the correct legal standard, because: (1) expert testimony that a work-related injury could or might have caused further injury is insufficient to prove causation when other evidence shows the testimony to be a guess or mere speculation, whereas expert testimony that establishes a work-related injury likely caused further injury provides competent evidence to support a finding of causation; (2) the expert testimony in this case does not rise above a guess or mere speculation when the expert testified that the work-related injury could have been an exacerbating or aggravating factor, but he further testified that he was uncertain that this was the case; and (3) the expert testified that he was unsure as to whether any single event caused the onset of plaintiff\u2019s symptoms at all and further testified that plaintiff\u2019s 6 April 2001 work-related injury could have nothing to do with the kyphotic deformity.\n5. Workers\u2019 Compensation\u2014 amount of compensation\u2014 aggravation and/or exacerbation caused by automobile accident\nA workers\u2019 compensation case is remanded for a determination as to the proper amount of compensation to which plaintiff is entitled for his 6 April 2001 work-related injury and its aggravation and/or exacerbation caused by an 18 April 2001 automobile accident.\n6. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nThe assignments of error that were not addressed in defendants\u2019 brief are abandoned pursuant to N.C. R. App. P. 28(b)(6).\nAppeal by defendants from opinion and award entered 24 October 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 January 2005.\nLaw Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff-appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Nicole Dolph Viele, for defendants-appellants." }, "file_name": "0254-01", "first_page_order": 284, "last_page_order": 296 }