{ "id": 8301094, "name": "TONY D. AVERY, Employee, Plaintiff v. PHELPS CHEVROLET, Self-Insured, Employer and SEDGWICK CMS, INC., Servicing Agent, Defendants", "name_abbreviation": "Avery v. Chevrolet", "decision_date": "2006-03-07", "docket_number": "No. COA05-562", "first_page": "347", "last_page": "358", "citations": [ { "type": "official", "cite": "176 N.C. App. 347" } ], "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": "619 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633945, 12633946, 12633947 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/619/0408-01", "/se2d/619/0408-02", "/se2d/619/0408-03" ] }, { "cite": "621 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634284, 12634285 ], "year": 2005, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0177-01", "/se2d/621/0177-02" ] }, { "cite": "614 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633150 ], "year": 2005, "pin_cites": [ { "page": "446-47", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0440-01" ] }, { "cite": "359 N.C. 851", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799266, 3802596, 3802504, 3800488, 3793931, 3799639, 3796090 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0851-04", "/nc/359/0851-01", "/nc/359/0851-05", "/nc/359/0851-06", "/nc/359/0851-07", "/nc/359/0851-03", "/nc/359/0851-02" ] }, { "cite": "609 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2005, "pin_cites": [ { "page": "448" }, { "page": "448", "parenthetical": "citations omitted" }, { "page": "448" }, { "page": "448" }, { "page": "448" } ], "opinion_index": 0 }, { "cite": "169 N.C. 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App.", "case_ids": [ 8468908 ], "weight": 5, "year": 2005, "pin_cites": [ { "page": "176" }, { "page": "176" }, { "page": "176" }, { "page": "176" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0173-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1998, "pin_cites": [ { "page": "414" }, { "page": "414" }, { "page": "413", "parenthetical": "citation omitted" }, { "page": "414" }, { "page": "414", "parenthetical": "citation omitted" }, { "page": "413-14" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "682" }, { "page": "680", "parenthetical": "citation omitted" }, { "page": "680-81" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "360 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788609, 3798210, 3794011, 3798347, 3792242, 3792946, 3788475 ], "year": 2005, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0061-06", "/nc/360/0061-03", "/nc/360/0061-05", "/nc/360/0061-02", "/nc/360/0061-07", "/nc/360/0061-04", "/nc/360/0061-01" ] }, { "cite": "171 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436465 ], "year": 2005, "pin_cites": [ { "page": "264", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0254-01" ] }, { "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", "year": 2004, "pin_cites": [ { "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 563", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412225 ], "year": 2004, "pin_cites": [ { "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0563-01" ] }, { "cite": "608 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "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", "year": 2004, "pin_cites": [ { "parenthetical": "Steelman, J., dissenting" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 811", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000203 ], "year": 2004, "pin_cites": [ { "parenthetical": "Steelman, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0811-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "year": 2004, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "488 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139458, 139363, 139469, 139548, 139613 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0546-05", "/nc/346/0546-03", "/nc/346/0546-04", "/nc/346/0546-02", "/nc/346/0546-01" ] }, { "cite": "484 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710610 ], "year": 1997, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0354-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "year": 2000, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(6)" }, { "page": "(19)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 971, "char_count": 28805, "ocr_confidence": 0.742, "pagerank": { "raw": 6.5754854646575e-08, "percentile": 0.4026964506424892 }, "sha256": "872cd3ea13afb468a771d4502ba3ccdc35e38ecbf838199093cb22978efd5fe4", "simhash": "1:e54563cb5e1e324e", "word_count": 4613 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STEELMAN concur." ], "parties": [ "TONY D. AVERY, Employee, Plaintiff v. PHELPS CHEVROLET, Self-Insured, Employer and SEDGWICK CMS, INC., Servicing Agent, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendants appeal from an order of the North Carolina Industrial Commission (\u201cCommission\u201d) awarding plaintiff (1) temporary total disability for time missed from work, (2) costs for medical treatment related to his injury, and (3) attorneys\u2019 fees. For the reasons which follow, we affirm.\nThe evidence before the Commission tended to show that plaintiff, who had a high school education, began working as a mechanic for defendant Phelps Chevrolet (\u201cPhelps\u201d) in 1987. On 3 January 1996, plaintiff fell backwards while stepping off of a stool, striking his back and right shoulder on a concrete block. Plaintiff felt \u201cmajor pain\u201d in his neck and shoulder as soon as he fell, and he could not move his shoulder. He received immediate medical attention at \u201cMed Center One\u201d where x-rays were taken and his shoulder was put in a sling. Plaintiff continued to return to Med Center One for six months where he received physical therapy and a steroid shot in his right shoulder. When he failed to improve, he was recommended to Dr. Steven L. Wooten, a board-certified orthopaedist.\nDr. Wooten first saw plaintiff in March of 1996. At that time, Dr. Wooten stated plaintiff \u201chad good motion in his shoulder. His muscle strength was good, but due to his persistent pain I [recommended] an MRI scan of his shoulder.\u201d Plaintiff scheduled an appointment for the MRI, but he was too large to fit into the MRI scan. Instead, Dr. Wooten obtained an arthrogram to determine if plaintiff had a tear of his rota-tor cuff. The arthrogram indicated a large tear of the rotator cuff, which Dr. Wooten recommended plaintiff undergo surgery to repair. In April 1996, the injury to plaintiffs right shoulder was accepted as compensable, and he was paid temporary total disability beginning 30 April 1996.\nPlaintiffs rotator cuff surgery took place on 23 April 1996. After surgery, plaintiff testified that when he turned his neck, he felt \u201clike it was pulling the shoulder in two.\u201d Dr. Wooten continued to send plaintiff to therapy, and he recommended plaintiff not use his right hand and keep his right arm in a sling while at work. When Dr. Wooten saw plaintiff on 24 May 1996, plaintiff continued to have \u201ctightness over his neck in that same area, but it was improving.\u201d A month later, Dr. Wooten found plaintiff\u2019s neurologic exam to be normal. However, plaintiff continued to have pain in the right side of his neck and down his arm into his hand. Dr: Wooten believed the pain was a result of either (1) the nerve block administered to plaintiff during surgery, (2) a herniated cervical disk in plaintiffs neck, or (3) continued pain from the rotator cuff tear.\nA subsequent arthrogram indicated plaintiff had a \u201cpersistent or recurrent rotator cuff tear.\u201d However, Dr. Wooten stated that \u201c[m]ost people with a rotator cuff tear won\u2019t have neck pain or pain below the elbow,\u201d leading him to believe that an additional cause of plaintiff\u2019s pain might be a herniated cervical disk. Dr. Wooten first considered the possibility that a herniated disk was the cause of plaintiffs pain in August of 1996, seven months after plaintiffs accident. Although he stated that symptoms of a cervical disk herniation generally appear sooner than seven months after an injury takes place, he believed it was \u201cpossible\u201d the injury caused the cervical disk herniation.\nDr. Wooten recommended plaintiff see Dr. William J. Mallon, an expert in the field of orthopedic surgeries with a sub-specialty in shoulder and elbow surgery. Dr. Mallon treated plaintiff between 19 June 1997 and 12 June 2001 and performed two surgeries on plaintiffs shoulder. The first surgery was to repair his rotator cuff, after which plaintiff improved briefly. However, because plaintiff continued to have pain, Dr. Mallon performed a second surgery on 15 January 1999. During this surgery, Dr. Mallon removed a portion of plaintiffs distal clavicle, or collar bone, at the joint where the collar bone meets the shoulder blade. Plaintiff again improved briefly then later regressed. In May of 1999, plaintiff told Dr. Mallon he was \u201c50 percent better than before ... but not normal yet and [his injury] continued to hurt him a fair amount.\u201d\nOn 26 May 1999, plaintiff was \u201cpulling on an air conditioning part\u201d at work when he lost his grip and \u201cdeveloped a sharp shooting paih in his shoulder.\u201d Dr. Mallon indicated he thought plaintiff had \u201cintrinsic tendonopathy,\u201d meaning his tendon was intact but weaker than normal, and some activities that were not previously painful now caused pain in the tend\u00f3n. Dr. Mallon restricted plaintiff from raising his right arm above shoulder level, lifting more than ten pounds, and standing on ladders or unrestricted heights. When Dr. Mallon saw plaintiff on 6 November 2000, plaintiff was complaining of pain radiating up into his neck muscles. At that point, Dr. Mallon felt the best course of action for plaintiff was to go to a pain clinic. On 12 June 2001, Dr. Mallon referred plaintiff to Dr. Lynn Johnson at the Greenville Pain Clinic.\nDr. Johnson practices in pain management and is board-certified in anesthesiology and pain medicine. He first saw plaintiff on 1 October 2001, at which time plaintiff complained of neck, shoulder, and arm pain in his right side. Dr. Johnson observed the following symptoms in plaintiff: (1) limited right shoulder range of motion; (2) pain and tenderness of the right shoulder; (3) nerve root irritation of the wrist and elbow; (4) tenderness in the neck; and (5) tenderness and decreased sensitivity to light touch in his right arm. Dr. Johnson recommended plaintiff have an EMG, which is a nerve conduction study of the arm, and a cervical MRI scan of his neck. Having lost a significant amount of weight since 1996, plaintiff was able to obtain the MRI scan. The MRI indicated multilevel disk protrusions between the C3 and C7 disks, a potential herniation at C7-T1, and a herniation at C5-6. The EMG revealed some problem with the nerves in plaintiffs right wrist and arm, but it did not indicate a nerve root irritation. Despite this, Dr. Johnson believed there was nerve root irritation, stating that EMGs are \u201crelatively insensitive to the wide spectrum of nerve problems\u201d and do not pick up small or sensory nerve problems readily. Dr. Johnson prescribed pain medication and performed a nerve root block of the C6 nerve on plaintiff\u2019s right side, but when plaintiff did not improve, he referred him to Dr. Kurt Voos, an expert in the field of orthopaedic surgery.\nDr. Voos first saw plaintiff on 11 March 2002. At that time, plaintiff complained of \u201c[s]hooting pain into the right shoulder, forearm, thumb, index finger, along with numbness and tingling.\u201d Plaintiff described his pain as an eight on a scale of one to ten. Dr. Voos reviewed plaintiffs MRI, which revealed a herniated disk at C5-6 and C6-7. He recommended plaintiff receive a cervical epidural steroid injection, which Dr. Johnson\u2019s associate performed on 17 June 2002. When asked whether he believed the disk herniation could or might have been caused by the 3 January 1996 injury, he replied, \u201cI think it could have been, yes.\u201d Upon reviewing Dr. Wooten\u2019s records indicating plaintiff had symptoms of disk herniation in August of 1996, Dr. Voos stated that the herniation was \u201clikely to be related to the injury.\u201d (Emphasis added). Dr. Voos further stated it was \u201cvery likely\u201d plaintiff\u2019s pain from the rotator cuff tear had initially masked the symptoms he would have had from a herniated disk in his neck.\nA hearing before a deputy commissioner was held to determine if plaintiff\u2019s cervical spine problems were related to his compensable injury of 3 January 1996. The majority of the medical testimony indicated plaintiff \u201ccould or might\u201d have a cervical spine condition as a result of his 3 January 1996 fall, which the deputy commissioner found to be insufficient to establish a causal relationship between the incident and his current condition. He made, inter alia, the following relevant findings:\n14. Dr. Wooten, an orthopedic surgeon, was certainly in the best position to given [sic] an opinion regarding the genesis of plaintiff\u2019s cervical spine problem insofar as it might relate to the injury because he treated plaintiff during the year following the injury and during the time the first possibly related symptoms manifested themselves. He testified in essence that a causal relationship was possible but was not likely and that he would have expected radicular symptoms to have developed sooner than seven months after the injury. In over twenty-two years as a Deputy Commissioner, the undersigned cannot remember another case where a treating physician related a herniated disc to an injury where there was such a long delay in the development of symptoms. Consequently, the cervical spine condition with which plaintiff was diagnosed in approximately March 2002 was not proven by- the greater weight of the credible evidence to have been a proximate result of the January 3, 1996 injury by accident.\n15. In addition, the May 26, 1999 injury by accident was not proven to have caused or aggravated the cervical spine condition at issue.\nThe deputy commissioner therefore concluded as a matter of law that plaintiff was \u201cnot entitled to benefits under the Workers\u2019 Compensation Act for his cervical spine condition.\u201d\nThe full Industrial Commission reversed the holding of the deputy commissioner, finding \u201cPlaintiff\u2019s cervical disc problems are causally related to his January 3, 1996 injury by accident.\u201d In its Finding of Fact No. 22, the Commission stated:\n22. When asked whether Plaintiff\u2019s cervical disc herniations could or might have been caused by the January 3, 1996 injury, Dr. Voos replied, \u201cI think it could have been, yes.\u201d Based on Plaintiff\u2019s medical records, Dr. Voos opined that it was likely that Plaintiff\u2019s cervical conditions are related to his January 3, 1996 injury.\n(Emphasis added). The Commission then made the following conclusions of law:\n1. On or about January 3,1996, Plaintiff sustained a compensable injury by accident to his right shoulder. On or about May 26, 1999, Plaintiff sustained a compensable injury by accident and/or aggravation of a pre-existing condition to his arm and shoulder as set forth in the Form 18 filed by Plaintiff on August 31, 1999 and the Form 60 filed by Defendant-Employers on June 27, 2001. N.C. Gen. Stat. \u00a7 97-2(6).\n2. Plaintiff\u2019s cervical spine herniations are causally related to his compensable injury by accident of January 3, 1996 and May 26, 1999 aggravation of his injury.\n3. Defendants are obligated to pay Plaintiffs medical expenses resulting from his compensable injury by accident, including treatment for his neck injuries, for so long as such treatment may be reasonably required to effect a cure, provide relief, or lessen the period of disability. N.C. Gen. Stat. \u00a7\u00a7 97-2(19), 97-25.\n4. Plaintiff is entitled to be rated for any permanent partial disability he may have sustained to his cervical spine.\nThe Commission awarded plaintiff (1) \u201ctemporary total disability compensation at the rate of $465.40 per week for any days missed from work as a result of his cervical disc herniations and related cervical conditions,\u201d (2) \u201cmedical expenses incurred or to be incurred by Plaintiff as a result of his compensable cervical disc condition so long as such evaluations, treatments and examinations may reasonably be required to effect a cure, give relief and/or lessen Plaintiffs period of disability,\u201d and (3) attorneys\u2019 fe.es \u201cin the amount of 25% of the compensation due Plaintiff pursuant to this award.\u201d Defendants appeal.\nOn appeal, defendants argue the opinion and award of the Commission should be reversed for the following reasons: (1) the medical evidence is so speculative so \u00e1s to be insufficient to establish a causal connection between plaintiff\u2019s right shoulder injury on 3 January 1996 and his alleged cervical spine injuries or condition; (2) the Commission failed to make any findings of fact with regard to the consideration, credibility and relevancy of the testimony of the treating physician Dr. Mallon; and (3) the Commission failed to make any findings of fact with regard to the consideration, credibility and relevancy of the testimony regarding plaintiff\u2019s failure to inform his treating physicians of his alleged cervical spine injury.\n\u201cThe standard of review for an appeal from an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). If there is competent evidence to support the findings of fact, they are conclusive on appeal even though there is evidence to support contrary findings. Hedrick v. PPG Industries, 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc. review denied, 346 N.C. 546, 488 S.E.2d 801 (1997). The Commission\u2019s conclusions of law are reviewed de novo. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).\nDefendants first argue the medical evidence is so speculative it is insufficient to establish a causal relationship between plaintiffs injury on 3 January 1996 and his cervical spine condition. Our Supreme Court has stated that \u201cexpert opinion testimony . . . 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). Expert testimony indicating only that plaintiffs condition \u201ccould or might\u201d have been related to the compensable injury is not competent evidence to show causation. 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). However, where expert testimony finds it \u201clikely\u201d that plaintiffs injury was related to the workplace accident, our Supreme Court has determined that to be competent evidence to establish a causal connection between the accident and the injury. 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). Pursuant to our Supreme Court\u2019s adoptions of the dissents in Edmonds and Alexander, this Court recently stated:\nit 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 of mere speculation.\u201d However, when expert testimony establishes that a work-related injury \u201clikely\u201d caused further injury, competent evidence exists to support a finding of causation.\nCannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 264, 614 S.E.2d 440, 446-47, disc. review denied, 360 N.C. 61, 621 S.E.2d 177 (2005) (citations omitted).\nIn the present case, Dr. Kurt Voos stated in his deposition he believed it was \u201clikely\u201d plaintiff\u2019s cervical disc herniation was related to plaintiff\u2019s 3 January 1996 workplace accident. Although other medical experts testified plaintiff\u2019s injury \u201ccould\u201d or \u201cmight\u201d have been the result of his workplace accident, where the evidence is conflicting, the Commission\u2019s findings of fact are conclusive on appeal. Adams v. AVX Corp., 349 N.C. 676, 682, 509 S.E.2d 411, 414 (1998). Furthermore, \u201c[t]he evidence tending to support plaintiff\u2019s claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Id. at 681, 509 S.E.2d at 414. Because our standard of review is to determine whether there is \u201cany competent evidence in the record\u201d to support the Commission\u2019s findings, and because our Supreme Court has found expert testimony that an accident \u201clikely\u201d caused a subsequent injury to be competent evidence to support a finding of causation, we must overrule defendants\u2019 first argument that the medical evidence was insufficient to establish a causal connection between plaintiff\u2019s workplace accident and his cervical spine injury.\nDefendants\u2019 second argument is that the Commission\u2019s opinion and award should be reversed because it failed to make any findings of fact with regard to the consideration, credibility and relevancy of the testimony of Dr. Mallon. Defendants cite Gutierrez v. GDX Automotive, 169 N.C. App. 173, 176, 609 S.E.2d 445, 448, disc. review denied, 359 N.C. 851, 619 S.E.2d 408 (2005), which states the Commission \u201cmust consider and evaluate all the evidence before it is rejected,\u201d and \u201cit is reversible error for the Commission to fail to consider the testimony or records of a treating physician.\u201d Gutierrez, 169 N.C. App. at 176, 609 S.E.2d at 448 (citations omitted).\nThe Commission made the following findings of fact regarding Dr. Mallon\u2019s deposition testimony:\n11. Dr. Mallon is board-certified in orthopedics and has a sub-specialty in shoulder and elbow surgery. He treated plaintiff from September 19, 1997 to June 12, 2001. On September 19, 1997, Dr. Mallon indicated in his medical notes that plaintiff had already had a workup on his neck and had received a nerve block in his neck with no significant relief.\n12. On August 27, 1997, Dr. Mallon performed surgery for Plaintiff\u2019s tom rotator cuff. On October 14, 1997, Plaintiff did not complain about neck pain. On November 25, 1997, Plaintiff complained of neck pain but stated that his neck was not hurting like it did previously. Plaintiff continued to complain of pain in his neck and shoulder.\n13. Plaintiff underwent a second surgery by Dr. Mallon on January 15, 1999 to excise approximately a centimeter of his clavicle. This surgery was related to plaintiffs January 3, 1996 injury. Defendants reinstated his temporary total disability benefits on January 15, 1999 and paid plaintiff benefits until May 17, 1999, when plaintiff was due to return to work. After his second, surgery, plaintiff had some improvement, but subsequently began complaining of right arm pain again after he reported that he had re-injured himself on May 26, 1999 when he pulled a part off an air conditioner and experienced a sharp shooting pain in his shoulder.\n14. Plaintiff had not previously undergone an MRI due to his size. Dr. Mallon noted that plaintiff\u2019s weight had dropped from 340 to 235. On August 5, 1999, Dr. Mallon assigned the following restrictions to Plaintiff: no overhead use of the right arm, no raising right arm above shoulder level, no lifting of more than ten pounds, no ladders and no unrestricted heights.\n.15. On November 6, 2000, Plaintiff reported to Dr. Mallon that most of his pain was in his neck area. Dr. Mallon had a functional capacity examination (FCE) performed. It revealed myofascial pain around the levator scapula, trapezius and scalene muscles (all muscles in the neck). Plaintiff also demonstrated a positive impingement sign.\n16. As the result of an FCE, Dr. Mallon placed Plaintiff on the following restrictions: no lifting over 10 pounds, no overhead work and no overhead lifting. However, the sharp pain in Plaintiff\u2019s neck and right shoulder and arm returned. Dr. Mallon believed that there was a nerve problem, but he indicated to Plaintiff he had done all he could. On June 12, 2001, Dr. Mallon referred Plaintiff to Dr. Lynn Johnson at Greenville Pain Clinic.\n19. An MRI taken in March 2002 revealed cervical herniated discs at C5-6 and C6-7. When asked during his deposition whether Plaintiff\u2019s compensable injury on January 3, 1996 caused the herniated cervical discs, Dr. Mallon responded, \u201cI guess it could have.\u201d\nThese extensive findings of fact regarding Dr. Mallon\u2019s evaluations of plaintiff make it clear the Commission did \u201cconsider and evaluate\u201d the evidence presented by Dr. Mallon as required in Gutierrez. Gutierrez, 169 N.C. App. at 176, 609 S.E.2d at 448. Plaintiffs argument in this respect has no merit.\nDefendants further argue under Gutierrez the Commission erred by \u201cfailfing] to make a finding of fact with regard to why Dr. Mallon\u2019s deposition testimony was given no weight as compared to the testimony of Dr. Voos.\u201d Defendants incorrectly interpret Gutierrez as requiring this Court to reverse the Commission where it gave one expert\u2019s opinion greater weight than another\u2019s. \u201cThe commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (citation omitted). As we previously noted, where the evidence is conflicting, the Commission\u2019s findings of fact are conclusive on appeal. Id. at 682, 509 S.E.2d at 414. Therefore, as long as it is clear from the record the Commission did consider conflicting expert testimony, we will not question its acceptance of one theory over another. \u201c[T]his Court \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Id. at 681, 509 S.E.2d at 414 (citation omitted). Therefore, defendant\u2019s second argument is overruled.\nDefendants\u2019 final argument is that the opinion and award of the Commission should be reversed because the Commission failed to make any findings of fact with regard to the consideration, credibility and relevancy of plaintiff\u2019s failure to inform his initial treating physicians of his alleged cervical spine injury. Defendants again rely on Gutierrez, where this Court concluded the Commission erred by not entering findings of fact regarding plaintiff\u2019s failure to report her back injury to a physician treating her for unrelated medical problems. We determined her failure to mention her back pain to the physician treating her for menstrual problems and headaches was \u201cmaterial evidence\u201d indicating her back injury may have resolved, and the Commission therefore should have entered \u201ca finding of fact regarding the consideration, credibility, or relevancy\u201d of this conflicting evidence. Gutierrez, 169 N.C. App. at 176, 609 S.E.2d at 448.\nIn the present case, defendants contend plaintiff failed to complain of neck pain between 3 January 1996 and 20 March 1996. Plaintiff did, however, make continuous complaints of severe and persistent shoulder pain. First, we note both Dr. Wooten and Dr. Voos testified that pain medication and the rotator cuff tear in plaintiff\u2019s shoulder might have masked the symptoms of plaintiff\u2019s neck injury during that period of time, and Dr. Mallon testified that shoulder and neck \u201csymptoms overlap quite a bit.\u201d Also, in Gutierrez, the Commission failed to enter any findings of fact regarding the testimony of a treating physician whose testimony constituted \u201cmaterial evidence\u201d that plaintiff might have recovered from her injury. Here, in contrast, the Commission did make findings of fact indicating plaintiff did not complain of neck pain until 3 May 1996, four months after his accident. It also made findings, however, that all of plaintiffs treating physicians testified plaintiffs neck pain \u201ccould\u201d have been or was \u201clikely\u201d caused by his 3 January 1996 accident. Therefore, it is clear the Commission did consider plaintiffs failure to complain specifically of neck pain between January and March of 1996 yet still determined the January accident \u201clikely\u201d caused his neck injury. We cannot find, as in Gutierrez, that the Commission failed to consider conflicting evidence.\nDefendants also argue the Commission\u2019s findings do not address plaintiffs failure to complain of neck pain to Dr. Mallon even though he testified at the hearing his neck had never stopped hurting since 3 January 1996. We listed the Commission\u2019s findings of fact regarding Dr. Mallon\u2019s testimony above, including the following: (1) \u201c[o]n October 14, 1997, Plaintiff did not complain about neck pain\u201d to Dr. Mallon; (2) \u201c[o]n November 25, 1997, Plaintiff complained of neck pain but stated that his neck was not hurting like it did previously;\u201d (3) \u201c[p]laintiff continued to complain of pain in his neck and shoulder;\u201d (4) Dr. Mallon performed a functional capacity examination which revealed a positive impingement sign and pain in plaintiff\u2019s neck muscles; (5) Dr. Mallon believed plaintiff had. a nerve problem; and (6) Dr. Mallon stated plaintiff\u2019s accident \u201ccould have\u201d caused the herniated cervical discs. These findings indicate the Commission fully considered plaintiff\u2019s initial failure to report neck pain to Dr. Mallon. It is not this Court\u2019s role to weigh the credibility of the evidence. Adams v. AVX Corp., 349 N.C. at 680-81, 509 S.E.2d at 413-14; see also Gutierrez, 169 N.C. App. at 176, 609 S.E.2d at 448. We have already concluded there was competent evidence to support the Commission\u2019s decision that plaintiff\u2019s accident caused his cervical disc herniation. Therefore, having determined the Commission fully weighed conflicting evidence, we must overrule defendants\u2019 third and final argument and affirm the decision of the Commission.\nAffirmed.\nJudges McGEE and STEELMAN concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Edwards & Ricci, P.A., by Brian M. Ricci, for plaintiff-appellee.", "Teague, Campbell, Dennis & Gorham, L.L.P., by John A. Tomei and Kathryn Deiter-Maradei, for defendant-appellants." ], "corrections": "", "head_matter": "TONY D. AVERY, Employee, Plaintiff v. PHELPS CHEVROLET, Self-Insured, Employer and SEDGWICK CMS, INC., Servicing Agent, Defendants\nNo. COA05-562\n(Filed 7 March 2006)\n1. Workers\u2019 Compensation\u2014 expert testimony \u2014 causation\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that the medical evidence established a causal connection between plaintiff\u2019s shoulder injury on 3 January 1996 and his cervical spine condition based on a doctor\u2019s testimony stating he believed it was likely, because: (1) our Supreme Court has found expert testimony that an accident likely caused a subsequent injury to be competent evidence to support a finding of causation; (2) although other medical experts testified plaintiff\u2019s injury could or might have been the result of his workplace accident, where the evidence is conflicting, the Commission\u2019s findings of fact are conclusive on appeal; and (3) the evidence tending to support plaintiff\u2019s claim is viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence.\n2. Workers\u2019 Compensation\u2014 expert testimony \u2014 findings of fact \u2014 consideration\u2014credibility\u2014relevancy\nThe Industrial Commission did not err in a workers\u2019 compensation case by allegedly failing to make any findings of fact with regard to the consideration, credibility, and relevancy of the testimony of a board certified orthopedist, because: (1) the extensive findings of fact regarding the orthopedist\u2019s evaluations of plaintiff show the Commission did consider and evaluate the evidence presented by the orthopedist; and (2) as long as it is clear from the record that the Commission did consider conflicting expert testimony, the Court of Appeals will not question its acceptance of one theory over another.\n3. Workers\u2019 Compensation\u2014 findings of fact \u2014 failure to inform initial treating physicians of injury\nThe Industrial Commission did not err in a workers\u2019 compensation case by failing to make any findings of fact with regard to the consideration, credibility and relevancy of plaintiff\u2019s failure to inform his initial treating physicians of his alleged cervical spine injury, because: (1) although plaintiff failed to complain of neck pain between 3 January 1996 and 20 March 1996, plaintiff did make continuous complaints of severe and persistent shoulder pain; (2) two doctors testified that pain medication and the rotator cuff tear in plaintiffs shoulder might have masked the symptoms of plaintiffs neck injury during that period of time, and another doctor testified that shoulder and neck symptoms overlap quite a bit; (3) all of plaintiff\u2019s treating physicians testified plaintiff\u2019s neck pain could have been or was likely caused by his 3 January 1996 accident; and (4) the Commission did consider plaintiff\u2019s failure to complain specifically of neck pain between January and March 1996, yet still determined the January accident likely caused plaintiff\u2019s neck injury.\nAppeal by defendants from decision entered 17 February 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 January 2006.\nEdwards & Ricci, P.A., by Brian M. Ricci, for plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by John A. Tomei and Kathryn Deiter-Maradei, for defendant-appellants." }, "file_name": "0347-01", "first_page_order": 379, "last_page_order": 390 }