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      "WILLIAM DAVIS, Employee, Plaintiff-Appellee v. HARRAH\u2019S CHEROKEE CASINO, Employer, LEGION INSURANCE COMPANY, (Now Assigned to the North Carolina Insurance Guaranty Association), Carrier, Defendants-Appellants"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nWilliam Davis (plaintiff) worked as a games performance technician for Harrah\u2019s Cherokee Casino (Harrah\u2019s). Plaintiff\u2019s job duties included repairing and performing preventative maintenance on gaming machines. Plaintiff was lifting a thirty-five-pound monitor out of a slot machine on 26 May 2001 when he felt a pain in his lower back. Plaintiff did not report the injury and continued to work until 26 June 2001, when he sought medical attention for recurring pain in his left leg. Plaintiff was treated by a chiropractor who ordered an MRI scan that revealed a herniated disc in plaintiff\u2019s back. Dr. John M. Silver (Dr. Silver) performed back surgery on plaintiff on 7 September 2001. Plaintiff returned to work at Harrah\u2019s on 31 October 2001 and continued working until 27 December 2001.\nPlaintiff called Dr. Silver\u2019s office on 7 November 2001 complaining of pain in his left leg. Plaintiff was prescribed steroid medication. Plaintiff underwent an MRI scan of his back on 20 December 2001, which showed scar tissue around a nerve and \u201csome degenerative changes.\u201d\nAt a follow-up visit with Dr. Silver on 31 December 2001, plaintiff reported he had slipped and fallen onto his back while walking up a ramp at his home. Plaintiff told Dr. Silver he had experienced significant pain in his back and down both legs since his fall. Dr. Silver wrote plaintiff out of work from 27 December 2001 until 1 February 2002. Dr. Silver ordered a myelogram and CAT scan on 2 April 2002, which revealed what Dr. Silver deemed \u201cappropriate degenerative changes for [plaintiff\u2019s] age and the postoperative changes[.]\u201d Dr. Silver performed a second back surgery on plaintiff on 22 April 2002. The purpose of the second surgery was to decompress nerves in plaintiff\u2019s spinal canal, which had become narrowed. Following his second surgery, plaintiff was kept out of work for a period of time that exhausted his leave under the Family Medical Leave Act. Thereafter, plaintiff was fired by Harrah\u2019s for not returning to work.\nA hearing on the matter was held before a deputy commissioner on 23 January 2004. The deputy commissioner concluded that plaintiff sustained a compensable injury by accident on 26 May 2001, but that plaintiff had failed to show that his ongoing back problems after October 2001 were related to the 26 May 2001 compensable injury. Plaintiff appealed to the Industrial Commission (the Commission), which heard the matter on 17 May 2005. In an opinion and award filed 20 June 2005, the Commission modified and affirmed the opinion and award of the deputy commissioner. The Commission concluded that plaintiffs second surgery on 22 April 2002 was a consequence of plaintiffs compensable 26 May 2001 injury. The Commission also concluded that plaintiffs slip and fall in late 2001 aggravated the May 2001 injury, and that the pain and medical consequences plaintiff suffered were a \u201cnatural progression\u201d of the May 2001 injury. The Commission awarded plaintiff ongoing medical and indemnity benefits from 27 December 2001 forward. Defendants appeal.\nDefendants assign error to four findings of fact, arguing the findings are not supported by competent evidence. Defendants assign error to five conclusions of law, arguing the conclusions are not supported by competent findings of fact and are erroneous as a matter of law.\nDefendants concede that plaintiff suffered a compensable injury on 26 May 2001. They further concede their responsibility to compensate plaintiff for medical expenses related to his 7 September 2001 surgery and for lost wages from 26 June 2001 through 31 October 2001. The issues on appeal are: (1) whether plaintiff\u2019s slip and fall in late 2001 was an intervening event sufficient to bar plaintiff from further compensation after the fall; (2) whether plaintiffs surgery on 22 April 2002 was a consequence of plaintiffs compensable May 2001 injury; and (3) whether plaintiff proved an ongoing disability after returning to work following his September 2001 surgery.\nOur Court reviews decisions of the Commission to determine \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) (citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998)). The Commission\u2019s findings of fact are conclusive on appeal if supported by competent evidence, even when there is evidence to support contrary findings. Id. at 115, 530 S.E.2d at 552-53. \u201c[S]o long as there is some evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.\u201d Shah v. Howard Johnson, 140 N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001) (internal quotation omitted). Moreover, \u201c \u2018[t]he evidence tending to support plaintiffs 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.\u2019 \u201d Poole v. Tammy Lynn Ctr., 151 N.C. App. 668, 672, 566 S.E.2d 839, 841 (2002) (quoting Adams at 681, 509 S.E.2d at 414). The Commission\u2019s conclusions of law are reviewed de novo by our Court. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998).\nI. Plaintiff\u2019s slip and fall\nDefendants concede their responsibility for plaintiff\u2019s lost wages from 26 June 2001 through 31 October 2001, the period plaintiff was out of work due to his first surgery. Defendants contend that plaintiff\u2019s fall in late 2001 barred any recovery by plaintiff thereafter. In concluding that plaintiff\u2019s fall was not a bar to recovery, the Commission relied upon our Court\u2019s decision in Horne v. Universal Leaf Tobacco Processors, 119 N.C. App. 682, 459 S.E.2d 797, disc. review denied, 342 N.C. 192, 463 S.E.2d 237 (1995). We held in Home:\nThe aggravation of an injury is compensable if the primary injury arose out of and in the course of employment, and the subsequent aggravation of that injury is a natural consequence that flows from the primary injury. Unless the subsequent aggravation is the result of an independent, intervening cause attributable to [a] claimant\u2019s own intentional conduct, the subsequent aggravation of the primary injury is also compensable.\nId. at 685, 459 S.E.2d at 799 (internal citation omitted). In Home, the claimant suffered a compensable back injury while removing sheets of tobacco from a conveyer belt, and subsequently was involved in an automobile accident. Id. at 683, 459 S.E.2d at 798. Our Court concluded the automobile accident was compensable because it was an aggravation of the claimant\u2019s prior compensable injury, and there was no evidence the accident was attributable to the claimant\u2019s own intentional conduct. Id. at 687, 459 S.E.2d at 801.\nIn the present case, the Commission applied Horne to conclusions six and seven, which defendants contest:\n6. Also at issue is whether the fall that plaintiff suffered outside his home in late November or early December 2001 was an intervening causal event sufficient to bar plaintiff from further compensation. For this to be the case, any injury resulting from [plaintiffs] fall would have to be entirely independent of the com-pensable injury. . . . The slip and fall on ice aggravated the earlier injury and the pain and medical consequences were a natural progression of the early injury.\n7. There has been no allegation that plaintiffs slip and fall on the ice was in any way of his own volition. . . .\nFirst, as defendants do not present any argument in their brief regarding conclusion number seven, their assignment of error to conclusion seven is deemed abandoned. See N.C.R. App. P. 28(b)(6). Accordingly, conclusion of law number seven is binding on appeal.\nIn conclusion six, the Commission\u2019s determination that plaintiffs slip and fall aggravated plaintiffs compensable injury is supported by the Commission\u2019s uncontested findings five and six. In finding five, the Commission found as fact that plaintiff complained of pain in his left leg before the fall, and then complained of pain in both legs after the fall. In finding six, the Commission found as fact that plaintiff \u201cwas in increased pain from the slip on ice.\u201d These uncontested findings support the Commission\u2019s conclusion that plaintiff\u2019s fall aggravated his compensable back injury.\nUnder Horne, an aggravation of a compensable injury is com-pensable \u201c[ujnless [it] is the result of an independent intervening cause attributable to [a] claimant\u2019s own intentional conductf.]\u201d Horne at 685, 459 S.E.2d at 799. As stated above, the Commission determined there was no allegation that plaintiff\u2019s slip and fall was in any way a result of his own intentional conduct. Accordingly, the Commission was correct, under Horne, in determining that plaintiff\u2019s disability resulting from the slip and fall, which aggravated the May 2001 injury and was not the result of plaintiff\u2019s own intentional conduct, was compensable. Plaintiff\u2019s slip and fall in late 2001 was not an intervening event that barred plaintiff from further compensation. Defendants\u2019 assignments of error pertaining to conclusions six and seven are overruled.\nII. Plaintiff\u2019s second surgery\nDefendants assign error to the Commission\u2019s finding number fourteen:\n14. While Dr. Silver opined at his deposition that the second surgery was primarily to correct degenerative changes, he did indicate that changes seen on the MRI relating to scarring and fibrosis around the nerve were related to plaintiff\u2019s first surgery. The report from the April 1, 2002, MRI indicated moderate to severe stenosis at the same level as the earlier surgery due to the prominence of the ligamentum flavum and the scar tissue. Furthermore, Dr. Silver\u2019s actual surgery notes reveal several instances of recisioning scar tissue [.] [The Commission quotes Dr. Silver\u2019s surgery notes at length.] It is clear from this description that in addition to the degenerative changes to plaintiff\u2019s ligamentous flavum, the second surgery involved the removal of scar tissue from the first surgery.\n(Emphasis added). We note this finding is largely comprised of recitations of Dr. Silver\u2019s testimony and written surgery notes, which in themselves do not constitute findings of fact. See, e.g., Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 835 (1998) (noting that recitations of testimony do not constitute findings of fact and \u201creluctantly\u201d accepting the Commission\u2019s recitations as findings of fact). Our Court has stated that \u201cit is the Commission\u2019s duty to find the ultimate determinative facts, not to merely recite evi-dentiary facts and the opinions of experts. This is especially important in light of the requirement that the Commission demonstrate its consideration of the relevant evidence.\u201d Davis v. Weyerhaeuser Co., 132 N.C. App. 771, 776, 514 S.E.2d 91, 94 (1999). However, as the last sentence of finding fourteen reflects the Commission\u2019s consideration of the evidence recited, we find finding fourteen is adequate as a factual finding. Moreover, the evidence recited by the Commission is competent evidence of record to support the Commission\u2019s finding. Dr. Silver explained during his deposition that \u201cthe scarring and the fibrosis around the nerve[] obviously related to the surgery.\u201d The Commission\u2019s statement that the stenosis was \u201cdue to the prominence of the ligamentum flavum and the scar tissue\u201d is supported by the report from plaintiff\u2019s 1 April 2002 myelogram, which notes that the myelogram revealed \u201cmoderate to severe spinal canal steno-sis .. . secondary to prominence of the ligamentum flavum and the scar tissue.\u201d The Commission\u2019s statement that plaintiff\u2019s surgery involved the removal of scar tissue is supported by Dr. Silver\u2019s operative notes in which he recorded that he \u201cdissected\u201d scar tissue from plaintiff\u2019s bone and nerve root.\nDefendants next assign error to finding number fifteen:\n15. As has already been found as fact above, plaintiff\u2019s first surgery would have made him more prone to develop degenerative changes, specifically ligamentous changes. The ligamentum flavum Dr. Silvers removed is a primary spinal ligament, and was identified, along with the scarring, as a primary cause of the stenosis seen on the April 1, 2002, MRI.\nThe first sentence of finding fifteen refers to finding number thirteen, in which the Commission recited a portion of Dr. Silver\u2019s testimony, and found that testimony as fact:\n13. ... The other thing [spinal surgery] does is, by taking down part of the joint and by disrupting ligaments, there is also more of a propensity to develop degenerative changes at that level over time[.]\nDefendants do not assign error to finding number thirteen, which is therefore presumed to be supported by competent evidence and is binding on appeal. See Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982). In finding thirteen, the Commission found as fact that someone who has undergone back surgery is more prone to develop degenerative disease. In finding fifteen, the Commission restated Dr. Silver\u2019s generalized statement, but made it specific to plaintiff. Our Court tends to distinguish between general and specific statements relating to causation and propensity. See Lewis v. N.C. Dep't of Corr., 167 N.C. App. 560, 564-66, 606 S.E.2d 199, 202-03 (2004) (finding competent evidence that a claimant\u2019s work-related injury exacerbated his pre-existing condition where testifying physicians made general statements that stress could exacerbate diabetes and specific statements that the plaintiff\u2019s posttrau-matic stress disorder exacerbated his diabetes); Bondurant v. Estes Express Lines, Inc., 167 N.C. App. 259, 262, 606 S.E.2d 345, 347 (2004) (noting that testifying physicians spoke in terms \u201cboth generally and in [the] plaintiff\u2019s case\u201d). In the present case, while there is competent evidence of record to support the general statement of propensity in finding thirteen, there is no evidence in the record to support the Commission\u2019s more specific finding as to plaintiff\u2019s propensity to develop degenerative changes.\nWe next address the second sentence of finding number fifteen, that the ligamentum flavum Dr. Silvers removed in the second surgery \u201cwas identified, along with the scarring, as a primary cause of the stenosis seen on plaintiffs 1 April 2002 MRI.\u201d We note that the imaging performed on 1 April 2002 was a myelogram and CAT scan, and not an MRI. As noted above, according to a report dated 1 April 2002, the myelogram and CAT scan showed \u201cmoderate to severe spinal canal stenosis ... secondary to prominence of the ligamentum flavum and the scar tissue.\u201d This evidence supports the Commission\u2019s finding that the ligamentum flavum and scarring caused the narrowing of plaintiffs spinal canal.\nFrom its findings, the Commission concluded as a matter of law, and defendants contest:\n3. As a consequence of his [May 2001] back injury, plaintiff required medical treatment, including the surgery performed by Dr. Silver on September 7, 2001, and the second surgery, performed on April 22, 2002. Defendants are responsible for payment of all such reasonably necessary medical treatment incurred by plaintiff for the lower back injury, including said surgeries, and follow-up to those surgeries[.]\n(Emphasis added). Defendants contest this conclusion to the extent the Commission determined plaintiffs second surgery was a consequence of his May 2001 back injury and determined defendants were responsible for payments related to the second surgery. Defendants argue this conclusion is unsupported by the Commission\u2019s viable findings of fact and is erroneous as a matter of law. We disagree.\nThe Commission\u2019s viable findings on this issue establish: (1) as a result of his compensable injury, plaintiff underwent back surgery in September 2001; (2) plaintiff underwent a second back surgery in April 2002 to correct compression of nerves caused by the narrowing of the spinal canal; and (3) the narrowing of plaintiff\u2019s spinal canal was caused by thickened ligamentum flavum and by-scar tissue from the first surgery. From these findings, the Commission concluded that plaintiff\u2019s second surgery was a consequence of his compensable May 2001 injury. We hold that these findings support the Commission\u2019s conclusion.\nDefendants argue that Dr. Silver gave conflicting testimony on whether plaintiff\u2019s degenerative changes were due to the first surgery, or whether the degenerative changes were merely a consequence of plaintiff\u2019s age. However, given the viable factual finding that plaintiff\u2019s stenosis was caused in part by scar tissue from his first surgery, we need not address Dr. Silver\u2019s testimony regarding plaintiffs degenerative changes. Plaintiff has shown that scar tissue from his first surgery, which is an undisputed consequence of his compensable injury, was a causal factor in the stenosis that led to plaintiff\u2019s second surgery. Accordingly, plaintiff\u2019s second surgery is also compensable.\nIII. Plaintiff\u2019s ongoing disability\nOn the issue of plaintiff\u2019s ongoing disability, defendants assign error to the following findings of fact:\n4. . . . Although [plaintiff] had been released to work [on 31 October 2001], plaintiff had not been released from medical care and continued to suffer pain.\n18. Once plaintiff reestablished his disability when Dr. Silver took him back out of work in December 2001, the burden was again shifted back to defendants. Moreover, plaintiff\u2019s entirely credible testimony regarding his condition, history of continuing medical treatment, and qualification for Social Security Disability go far beyond mere presumptions in proving the ongoing nature of his disability and its direct link to his compensable specific traumatic incident.\nFinding number four is supported by competent evidence of record. First, Dr. Silver noted on plaintiffs medical chart on 29 October 2001 that he would \u201csee [plaintiff] back in 6 weeks. . . . For now, he is released back to work and will call me if he has any problems.\u201d Further, Dr. Silver testified in his deposition that plaintiff called Dr. Silver\u2019s office on 7 November 2001 complaining of pain. Plaintiff testified that he suffered back pain from 31 October to 27 December 2001. This assignment of error is overruled.\nFinding eighteen contains statements of fact and law. The second sentence of finding eighteen states in part that the Commission found plaintiff\u2019s testimony to be credible. It is well settled that the Commission is the sole judge of the credibility of evidence, and so we uphold that part of the finding. See Deese, 352 N.C. at 116, 530 S.E.2d at 553. The remainder of the finding pertains to the legal question of plaintiff\u2019s burden in proving ongoing disability. We will address that issue of law below.\nThe Commission made the following conclusions of law, which defendants contest:\n4. As a consequence of his [May 2001] back injury, plaintiff was unable to earn wages in any employment and was temporarily totally disabled from . . . December 27, 2001, and continuing. . . . Defendants are responsible for payment to plaintiff of wage loss compensation at the rate of $283.09 per week during this period. N.C. Gen. Stat. \u00a7 97-29.\n8. With regard to plaintiff\u2019s continuing inability to earn wages, the Court of Appeals affirmed a series of earlier holdings which have held that \u201cmedical evidence that a plaintiff suffers from genuine pain as a result of a physical injury, combined with the plaintiffs own credible testimony that his pain is so severe that he is unable to work, may be sufficient to support a conclusion of total disability.\u201d Knight v. Wal-Mart, 149 N.C. App. 1, 7-8, 562 S.E.2d 434, 439[-]40 (2002). . . . The Knight court also held that the concept of maximum medical improvement (MMI) is not relevant to the determination of entitlement to the continuation of temporary total disability (or TTD) benefits. Knight at 10, 441.\nDefendants argue the Commission\u2019s conclusion that plaintiff was disabled from 27 December 2001 is unsupported by the Commission\u2019s viable findings of fact and is erroneous as a matter of law. We disagree.\nThe burden of proving disability under N.C. Gen. Stat. \u00a7 97-2(9) for the period subsequent to 27 December 2001 is on plaintiff. See Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). Under Russell, a plaintiff may meet this burden of proof by presenting medical evidence that, as a consequence of the work-related injury, the plaintiff is unable to work in any employment. Id. at 765, 425 S.E.2d at 457. As the Commission notes in conclusion eight, our Court has held that \u201cmedical evidence that a plaintiff suffers from genuine pain as a result of a physical injury, combined with the plaintiff\u2019s own credible testimony that his pain is so severe that he is unable to work, may be sufficient to support a conclusion of total disability by the Commission.\u201d Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 8, 562 S.E.2d 434, 440 (2002), aff'd, 357 N.C. 44, 577 S.E.2d 620 (2003). Here, in finding six, the Commission found as fact that Dr. Silver wrote plaintiff out of work from 27 December 2001 through 1 February 2002, and that plaintiff was in increased pain from his fall on the ice. Dr. Silver testified that plaintiffs symptoms following his fall, which we have ruled does not bar continuing compensation, were \u201crelated to the fall\u201d and that a person who has undergone spinal surgery is more likely to suffer \u201cworse symptoms\u201d from an injury to the back. Dr. Silver also testified that plaintiffs activity was \u201climited by pain.\u201d Plaintiff testified at length about the effect his pain had on his ability to work, as well as his qualification for Social Security disability compensation. The Commission found plaintiffs testimony to be credible and sufficient to prove the ongoing nature of his disability. We agree that this evidence satisfies plaintiffs burden under Russell and Knight. Accordingly, we uphold the Commission\u2019s conclusion that plaintiff suffered an ongoing disability after 27 December 2001.\nAffirmed.\nJudge HUNTER concurs.\nJudge STEPHENS dissents with a separate opinion.",
        "type": "majority",
        "author": "McGEE, Judge."
      },
      {
        "text": "STEPHENS, Judge,\ndissenting.\n\u201c[The] rule of causal relation is the very sheet anchor of the [Workers\u2019] Compensation Act. It has kept the Act within the limits of its intended scope, \u2014 that of providing compensation benefits for industrial injuries, rather than branching out into the field of general health insurance benefits.\u201d Duncan v. City of Charlotte, 234 N.C. 86, 91, 66 S.E.2d 22, 25 (1951) (citations omitted). Because I do not believe that the medical evidence in this case is sufficient to support the existence of a causal relationship between Plaintiff\u2019s compen-sable back injury of 26 May 2001 and the second surgical procedure performed on his back on 22 April 2002, I respectfully dissent from the majority opinion.\nIt is undisputed that, sometime around the end of November 2001, Plaintiff slipped on a ramp at his house and fell, landing on his \u201ctailbone or . . . butt.\u201d It is further undisputed that approximately a month earlier, Plaintiff had returned to full-time, full-duty work for his employer in a job that required him to repair gaming machines weighing several hundred pounds. Dr. Silver\u2019s uncontradicted testimony establishes that, according to Plaintiff, he had been doing \u201cvery well\u201d at the time he was released to go back to work, but after the fall, he \u201cbegan to have problems with significant pain in his back and pain down both legs.\u201d When, conservative treatment failed to relieve Plaintiff\u2019s symptoms, Dr. Silver performed a second surgery. The majority agree with the Commission that Plaintiff\u2019s slip and fall aggravated his earlier compensable injury, and thus, the second surgery is compensable under the causation theories applied in Horne v. Universal Leaf Tobacco Processors, 119 N.C. App. 682, 459 S.E.2d 797, disc. review denied, 342 N.C. 192, 463 S.E.2d 237 (1995). I disagree.\nThis Court\u2019s decision in Horne reveals that, following a compen-sable on-the-job injury, Mr. Horne underwent two surgical procedures on his back. While he was still out of work and recovering from the second surgery, he was involved in an automobile accident. Mr. Home\u2019s treating neurosurgeon, Dr. Tomaszek, recommended a fusion to treat Mr. Home\u2019s worsened condition. Owing to the occurrence of the automobile accident, Mr. Horne\u2019s employer denied that the need for the third surgery was causally related to the on-the-job injury. In reversing the Commission\u2019s denial of benefits, this Court noted the uncontradicted testimony of Dr. Tomaszek that (1) the recurrent disk rupture shown on the MRI obtained after the automobile accident was actually present before that accident at the same lumbar level as Mr. Horne\u2019s compensable first surgery, (2) Mr. Home was complaining of \u201cmoderately severe\u201d back and leg pain before the automobile accident and was not \u201ccomfortable\u201d with his surgical results, (3) the automobile accident worsened the abnormal disk, and (4) the \u201cpathology\u201d leading Dr. Tomaszek to recommend a fusion after the automobile accident \u201call stems back to the work-related accident.\u201d Horne, 119 N.C. App. at 686-87, 459 S.E.2d at 800. On this uncontra-dicted evidence, this Court concluded that the automobile accident aggravated Mr. Home\u2019s prior compensable injury, and thus, the consequences of that aggravation were also compensable. It is incomprehensible that a different result could have been reached.\nSimilarly, in Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983), disc. review denied, 310 N.C. 309, 312 S.E.2d 652 (1984), this Court determined that plaintiff was entitled to compensation for complications of phlebitis, arthritis, and severe body pain following a compensable on-the-job leg injury because it was \u201cnot disputed\u201d that such complications \u201cwere the result of plaintiff\u2019s compensable injury.\u201d Accord, Heatherly v. Montgomery Components, Inc., 71 N.C. App. 377, 382, 323 S.E.2d 29, 31 (1984) (plaintiff\u2019s second injury was a \u201crefracture\u201d of his first compensable fracture), disc. review denied, 313 N.C. 329, 327 S.E.2d 890 (1985); Mayo v. City of Washington, 51 N.C. App. 402, 407, 276 S.E.2d 747, 750 (1981) (subsequent incidents \u201creinjured\u201d plaintiff\u2019s original knee injury).\nNo such evidence can be found in this case. On the contrary, the uncontradicted testimony of Plaintiff\u2019s treating neurosurgeon, Dr. Silver, establishes the following: (1) Plaintiff sustained a ruptured disc at the lowest level of his lumbar spine as a result of his on-the-job injury, for which Dr. Silver performed a microdiscectomy on the left to remove the disc fragment that was compressing the nerve; (2) Plaintiff did \u201cvery well\u201d after that surgery and was able to return full time to physically demanding work; (3) the left leg pain for which Dr. Silver prescribed a steroid medication for Plaintiff over the phone within a week of his return to work was not \u201can uncommon thing[;]\u201d (4) Dr. Silver next saw Plaintiff almost two months later after Plaintiff fell at home, and Plaintiff told Dr. Silver that since that fall, \u201che had problems with pain in his back and pain now actually down both legs[,]\u201d whereas the pain from his work injury had been limited to his left leg; (5) the symptoms which Plaintiff experienced after the fall on the ramp were \u201crelated to the fall[;]\u201d (6) the degenerative changes seen on the imaging studies performed after the fall were \u201crelated to a normal aging process [;]\u201d and (7) the surgery performed by Dr. Silver after the fall was a bilateral hemilaminectomy and facetectomy to remove a portion of the lamina of the bone (the vertebrae) on each side and to remove thickened ligaments to decompress the nerves and \u201cgive [them] more room[,]\u201d because Plaintiff\u2019s spinal canal had become narrowed \u201cdue to degenerative change, including thickening of the joints themselves and thickening of the ligaments of the joints.\u201d Moreover, when Dr. Silver was directly asked whether \u201cthis thickening\u201d that he removed to decompress the nerves in Plaintiff\u2019s spinal canal was \u201cdue to postsurgical changes from the first surgery[,]\u201d he unequivocally responded, \u201cNo.This was due to degenerative change at that same level [as the first surgery], not actually scar tissue but rather degenerative changes there.\u201d (Emphasis added). This testimony is undisputed.\nDr. Silver was not asked whether the slip and fall aggravated Plaintiff\u2019s earlier work injury. Indeed, the only question he was asked about the potential relationship between the condition for which he performed the second surgery and the preexisting condition of Plaintiff\u2019s back from the work injury was whether the thickening of the joints and ligaments that he removed during that surgery was \u201cdue to postsurgical changes from the first surgery[] [or] [w]as this scar tissue [?]\u201d As noted above, his uncontradicted answer was unequivocally in the negative, and his explanation establishes that he operated on Plaintiff\u2019s back a second time because of degenerative changes which Plaintiff failed to prove were related in any way to the work injury. In fact, answering questions about his second surgery, Plaintiff testified, \u201c[Dr. Silver] said that I had arthritis . . . around my sciatic nerve that was causing the pain down my leg. ... He said he removed the arthritis around the sciatic nerve.\u201d\nThus, unlike the uncontradicted evidence which overwhelmingly established that a subsequent accident had aggravated the preexisting compensable condition of Mr. Horne\u2019s back, which supported this Court\u2019s holding that \u201cthe subsequent aggravation of [the primary com-pensable] injury is a natural consequence that flows from the primary injury[,]\u201d Hore, 119 N.C. App. at 685, 459 S.E.2d at 799 (citation omitted), the evidence in this case fails to establish that Plaintiff\u2019s fall aggravated his primary compensable injury. There is thus no basis for the Commission\u2019s conclusion, under Horne, that Plaintiff\u2019s \u201cpain and medical consequences [after the fall] were a natural progression of the earlier injury.\u201d Furthermore, because there is no evidence that the subsequent fall aggravated Plaintiff\u2019s earlier injury, it is not necessary to reach the issue of whether Plaintiff\u2019s fall was a result of his own intentional conduct. In any event, as the majority notes, the Commission\u2019s determination that Plaintiff\u2019s slip and fall was not \u201cof his own volition[]\u201d was not a contested issue in the case. It is simply an irrelevant issue unless aggravation is first proved.\nI agree with the majority\u2019s conclusion that the Commission\u2019s finding of propensity (i.e., that Plaintiff\u2019s first surgery made him more prone to develop degenerative changes) is unsupported by the evidence. I disagree, however, with the majority\u2019s approval of the Commission\u2019s selection of information from the medical records to provide support for its conclusion that a causal relationship exists between Plaintiff\u2019s compensable work injury and second surgery, that is, that because Dr. Silver\u2019s operative report indicates that he also removed scar tissue when he removed the thickened joints and ligaments, the second surgery was necessitated by the original compensable injury. I disagree because, as has already been discussed, Dr. Silver unequivocally testified that he performed the second surgery to relieve narrowing of the spinal canal, and that the narrowing was caused by degenerative changes, specifically thickening of the joints and ligaments, not by \u201cpostsurgical changes[,]\u201d and not by scar tissue. This testimony was elicited by Plaintiff. Given Dr. Silver\u2019s unambiguous explanation about the reason that he performed the second surgery, it appears that the removal of scar tissue under these circumstances was merely incidental.\nAllowing the Commission to ignore the expert\u2019s uncontradicted and unequivocal testimony, and to instead substitute its interpretation of the medical records to arrive at a different opinion than the expert has expressed, goes far beyond viewing the evidence in the light most favorable to the employee. Moreover, in my opinion, acquiescing in the Commission\u2019s actions here contravenes the directives of our Supreme Court which has repeated time and again that in cases involving complicated medical questions, \u201conly an expert can give competent opinion evidence as to the cause of the injury.\u201d Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (citing Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965)). Significantly, the Click Court recognized and relied upon \u201cthe continuing medical difficulty in determining the etiology of interver-tebral diseases and injuries[]\u201d in holding that \u201c[r]eliance on Commission expertise is not justified where the subject matter involves a complicated medical question.\u201d Id. at 168, 265 S.E.2d at 391 (citation omitted). Instead,\n[i]n the absence of guidance by expert opinion as to whether the accident could or might have resulted in his injury, the Commission could only speculate on the probable cause of his condition. Medical testimony was therefore needed to provide a proper foundation for the Commission\u2019s finding on the question of the injury\u2019s origin.\nId. at 169, 265 S.E.2d at 392.\nThe question is no less complicated because it concerns the aggravation of a preexisting condition rather than the direct cause of an injury. In fact, the medical causation issues are probably more complex in cases such as this one, involving the existence of a causal link between a traumatic injury and conditions that occur unrelated to trauma, complicated further by the impact of significant recovery from the original traumatic injury before the occurrence of another injurious incident. I am of the opinion that, as in Click, medical testimony was necessary in this case to establish whether Plaintiffs subsequent fall aggravated his original work-related injury. For the reasons stated, I am of the opinion that the evidence fails to establish the requisite causal connection to make Plaintiff\u2019s subsequent surgery compensable. I thus vote to reverse the decision of the Commission.",
        "type": "dissent",
        "author": "STEPHENS, Judge,"
      }
    ],
    "attorneys": [
      "The Law Offices of Lee and Smith, P.A., by D. Andrew Turman, for plaintiff-appellee.",
      "Hedrick Eatman Gardner & Kincheloe, L.L.P., by C.J. Childrers, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "WILLIAM DAVIS, Employee, Plaintiff-Appellee v. HARRAH\u2019S CHEROKEE CASINO, Employer, LEGION INSURANCE COMPANY, (Now Assigned to the North Carolina Insurance Guaranty Association), Carrier, Defendants-Appellants\nNo. COA05-1153\n(Filed 1 August 2006)\n1. Workers\u2019 Compensation\u2014 aggravation of existing back injury \u2014 fall at home not an intervening event\nA fall at home by a workers\u2019 compensation plaintiff aggravated his existing compensable back injury and was not an intervening event that barred further compensation.\n2. Workers\u2019 Compensation\u2014 findings \u2014 more than recitation of evidence required\nA workers\u2019 compensation finding was adequate where the last sentence reflected the Industrial Commission\u2019s consideration of the evidence. Recitations of a physician\u2019s testimony and written surgery notes would not in themselves constitute a finding of fact.\n3. Workers\u2019 Compensation\u2014 findings \u2014 general and specific\u2014 propensity to degenerative back disease following surgery\nThere was no evidence in the record to support the Industrial Commission\u2019s specific finding about this plaintiff\u2019s propensity to develop degenerative disease following back surgery, although there was competent evidence to support the Industrial Commission\u2019s general statement of such a propensity.\n4. Workers\u2019 Compensation\u2014 back injury \u2014 degenerative changes following surgery \u2014 causation\u2014findings\nThe evidence supported the Industrial Commission\u2019s finding that the narrowing of the spinal canal of a workers\u2019 compensation plaintiff with a back injury was caused by the prominence of a primary spinal ligament (the ligamentum flavum) and scarring from surgery.\n5. Workers\u2019 Compensation\u2014 back injury \u2014 second surgery compensable \u2014 supported by findings\nThe Industrial Commission\u2019 conclusion that a workers\u2019 compensation plaintiff\u2019s second back surgery was a consequence of his compensable injury was supported by the findings. Testimony about degenerative changes was not addressed, given the viable finding that plaintiff\u2019s stenosis was caused by scar tissue from his first surgery.\n6. Workers\u2019 Compensation\u2014 back injury \u2014 release for work but not from medical care \u2014 continued pain \u2014 findings supported by evidence\nFindings in a workers\u2019 compensation back case that plaintiff had been released for work but not from medical care and that he continued to suffer pain were supported by medical notes and testimony.\n7. Workers\u2019 Compensation\u2014 credibility \u2014 Industrial Commission as sole judge\nThe Industrial Commission is the sole judge of credibility in workers\u2019 compensation cases. A finding that plaintiff\u2019s testimony was credible was upheld.\n8. Workers\u2019 Compensation\u2014 ongoing disability \u2014 findings\nThe Industrial Commission properly concluded that a workers\u2019 compensation plaintiff suffered an ongoing disability. The Commission found that a physician had written plaintiff out of work, that he was injured in a fall on ice, that the medical testimony was that a person who has undergone spinal surgery is more likely to suffer worse symptoms from an injury to the back and that plaintiff\u2019s activity was limited by pain. Plaintiff testified about the effect the pain had on his ability to work as well as his qualification for social security disability, and the Commission found plaintiff\u2019s testimony to be credible and sufficient to prove the ongoing nature of his disability.\nJudge Stephens dissenting.\nAppeal by defendants from opinion and award entered 20 June 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 April 2006.\nThe Law Offices of Lee and Smith, P.A., by D. Andrew Turman, for plaintiff-appellee.\nHedrick Eatman Gardner & Kincheloe, L.L.P., by C.J. Childrers, for defendants-appellants."
  },
  "file_name": "0605-01",
  "first_page_order": 637,
  "last_page_order": 653
}
