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    "parties": [
      "EMILIO DAVIS, Employee, Plaintiff v. CITY OF NEW BERN, Employer, SELF-INSURED (CRAWFORD & COMPANY, Servicing Agent), Defendants"
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        "text": "HUNTER, Judge.\nThe City of New Bern and Crawford & Company (collectively \u201cdefendants\u201d) appeal an.opinion and award from the Full Industrial Commission (\u201cthe Commission\u201d) which granted Emilio Davis (\u201cplaintiff\u2019) workers\u2019 compensation benefits. After careful consideration, we affirm in part and reverse in part.\nOn 5 May 2003, plaintiff was employed by defendant Crawford & Company in a Maintenance II position, which involved laying sewer and water pipes, making taps, and installing water meters, as well as operating a vacuum truck. On that date, plaintiff slipped and fell, head first, into a sewer pit, injuring his back and shoulder.\nAfter the accident, Dr. Angelo Tellis treated plaintiff for a lumbosacral strain/sprain, noting that plaintiff did not have significant radicular pain, and prescribed anti-inflammatory and pain medications. Dr. Tellis also restricted plaintiff to sedentary activity at that time.\nDr. Tellis continued his treatment of plaintiff during the summer of 2003 and ordered an MRI of plaintiff after he told Dr. Tellis that he had been feeling pain in his left thigh. The MRI revealed no significant disk bulges or neural foraminal narrowing but did reveal degenerative changes at L4-5. When physical therapy and medications failed to resolve plaintiff\u2019s symptoms, Dr. Tellis performed bilateral SI joint injections on 12 August 2003, which provided plaintiff with temporary relief, after which plaintiff was placed back into physical therapy. On 22 September 2003, plaintiff complained to Dr. Tellis of pain in the right side of his lower back and increased pain in his chest. Dr. Tellis continued with the course of physical therapy and sedentary work restrictions, but recommended the use of a cane to help plaintiff become more mobile.\nUpon request of defendants, plaintiff was seen by Dr. Kasselt, an orthopedist. Dr. Kasselt noted that plaintiff performed well on strength tests, used to determine mobility. Dr. Kasselt recommended that plaintiff undergo a psychological evaluation, a functional capacity evalaution, and an MRI of his hips to exclude the possibility of avascular necrosis, and that plaintiff discontinue his use of anti-inflammatory and narcotic medications.\nBecause plaintiffs condition was not improving, he sought chiropractic treatment at this own expense from Dr. Gatlin for approximately two months. Plaintiff also went to his family doctor, Dr. Farina, who ordered nerve tests. The tests showed mild left carpal tunnel syndrome but no significant nerve compression. Due to the lack of nerve compression, Dr. Farina did not recommend a referral to a neurosurgeon.\nOn 6 February 2004, plaintiff sustained a second compensable work injury. Plaintiff was working in a ditch with a vacuum hose when he slipped, fell on his back, and struck his head. Plaintiff felt immediate back and head pain and numbness in his legs. Coworkers summoned an ambulance, which took him to the hospital. Dr. Kevin Geer examined him upon his arrival at Craven Regional Medical Center. Dr. Geer found no neurological damage but plaintiff was anxious and hyperventilating. Dr. Geer took plaintiff out of work for three days and restricted him to light duty work.\nOn 8 February 2004, plaintiff returned to the emergency room with complaints of numbness on the bottom of his feet. An MRI was negative as to any disc herniation, spinal stenosis, or neuroforaminal stenosis. Defendants admitted liability under the Workers\u2019 Compensation Act for this second injury pursuant to a Form 60 and sent plaintiff to Dr. Virginia Ward for treatment.\nDr. Ward examined plaintiff on 10 February 2004. She noted that plaintiff gave an extreme pain response when palpating his back muscles. Dr. Ward stated that it was difficult to examine plaintiff due to his over-reaction to touch and movement. She kept plaintiff out of work, prescribed medications, and ordered a functional capacity work hardening program. Dr. Ward also ordered a work-hardening program due to plaintiff\u2019s poor physical condition.\nDefendants ultimately offered plaintiff light duty work on 20 April 2004. Plaintiff engaged in office type work but had problems staying awake due to his medications.\nPlaintiff was still complaining of pain and eventually sought treatment from Dr.' Michael Apostolou, a neurologist, at his own expense because defendants would not authorize a referral to another doctor. Dr. Apostolou prescribed various medications to plaintiff in an effort to alleviate the pain. When plaintiff did not respond to the medications, Dr. Apostolou performed an electrodiagnostic test on 10 September 2004.\nThe electrodiagnostic test did not reveal a clear indication as to the cause of plaintiffs symptoms. Instead, there was some evidence of demyelinative damage of some peripheral nerves, which was not likely to be traumatic in origin. There was also an indication that plaintiff had no problem with his lumbar and had good strength in his legs.\nPlaintiff continued to complain about worsening pain in September 2004. Dr. Apostolou was puzzled by this development in light of the nerve test results. Dr. Apostolou also questioned the relationship of the pain to the work related injury. After reviewing Dr. Apostolou\u2019s note, defendants advised plaintiff that light duty work would no longer be provided as of 5 November 2004. Plaintiff stopped working on 4 November 2004.\nDefendants present the following issues for this Court\u2019s review: (1) whether the Commission committed \u25a0 reversible error when it struck expert testimony upon a finding that the expert had non-consensual, ex parte communication with defendants; and (2) whether the evidence before the Commission was so speculative that the Commission erred in awarding plaintiff workers\u2019 compensation benefits.\nOur review of an opinion and award of the Commission is limited to a determination of: \u201c(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 supported by competent evidence, the Commission\u2019s findings are binding on appeal even when there exists evidence to support findings to the contrary. Allen v. Roberts Elec. Contr\u2019rs, 143 N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001).\nThe Commission\u2019s conclusions of law are reviewed de novo. Id. at 63, 546 S.E.2d at 139. Accordingly, \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 Ballenger v. ITT Grinnell Industrial Piping, 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987).\nI.\nDefendants first argue that the trial court erred in striking the opinions of Dr. Max R. Kasselt. We disagree.\nThe Commission struck the opinions of Dr. Kasselt, one of plaintiff\u2019s treating physicians, upon a finding that Dr. Kasselt engaged in non-consensual, ex parte communications with defendants\u2019 adjuster. Defendants do not dispute the fact that Dr. Kasselt had a conversation with the adjuster, during which he suggested that surveillance be conducted on plaintiff to determine the validity of his symptoms. The Commission thereafter determined that Dr. Kasselt\u2019s allegiances were with defendants and not plaintiff.\nNon-consensual, ex parte communications between defendants and a plaintiff\u2019s treating physician are prohibited. Salaam v. N.C. Dept. of Transportation, 122 N.C. App. 83, 87, 468 S.E.2d 536, 538-39 (1996). The proper remedy for such ex parte communication is to strike the treating physician\u2019s deposition testimony. Evans v. Young-Hinkle Corp., 123 N.C. App. 693, 696, 474 S.E.2d 152, 153-54 (1996). Accordingly, when the commission found that Dr. Kasselt engaged in non-consensual, ex parte communications with defendants, it properly struck the testimony. However, this Court is not bound by this finding unless it is supported by competent evidence.\nDefendants contend that Dr. Kasselt made \u201crecommendations, with no communication or other suggestion by defendants.\u201d They thus argue that the rule announced in Salaam should not apply as defendants did not solicit the information from plaintiff\u2019s treating physician. Although the evidence presented before the Commission could support such a finding, there is also evidence suggesting that defendants contacted Dr. Kasselt. Specifically, there is evidence that defendants contacted Dr. Kasselt regarding whether plaintiff would need a cane. There was also evidence, based on Dr. Kasselt\u2019s own notes, that he and one of defendants\u2019 employees \u201cdiscussed the situation[.]\u201d The obvious implication of this statement is that it was a two-way conversation, not one in which defendants were merely listening. Additionally, all of Dr. Kasselt\u2019s records were copied directly to defendants without plaintiff\u2019s consent. Under such circumstances, we cannot say that the commission erred in concluding that defendants engaged in ex parte communications with Dr. Kasselt.\nBecause competent evidence supports the Commission\u2019s findings of fact that defendants\u2019 non-consensual, ex parte communications required Dr. Kasselt\u2019s testimony to be stricken from the record, the Commission did not err in striking the testimony. Defendants\u2019 assignments of error as to this issue are therefore overruled.\nII.\nDefendants next argue that the Commission erred in awarding plaintiff workers\u2019 compensation after 4 November 2004 because the medical evidence was too speculative to establish medical causation and disability. We agree.\nIn reviewing findings of fact made by the Commission, we review those findings to determine whether they are supported by competent evidence. Edmonds v. Fresenius Med. Care, 165 N.C. App. 811, 817, 600 S.E.2d 501, 505-06 (2004) (Steelman, J., dissenting), reversed per curiam for reasons stated in dissent, 359 N.C. 313, 608 S.E.2d 755 (2005). If supported by competent evidence, then they are binding on appeal, even though there was evidence to support contrary findings. Id. (citing McRae v. Toastmaster, Inc., 358 N.C. 488, 597 S.E.2d 695 (2004)). This Court will not \u201csift through the evidence and find facts that are different from those actually found by the Commission.\u201d Id.\n\u201cExpert testimony that a work-related injury \u2018could\u2019 or \u2018might\u2019 have caused further injury is insufficient to prove causation when other evidence shows the testimony to be \u2018a guess or mere speculation.\u2019 \u201d Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 264, 614 S.E.2d 440, 446-47 (2005) (quoting Young v. Hickory Bus. Furn., 353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000); citing Edmonds, 165 N.C. App. at 818, 608 S.E.2d at 506). Instead, expert testimony can serve as competent evidence as to causation where the testimony \u201cestablishes that a work-related injury likely\u2019 caused further injuryf.]\u201d Id. at 264, 614 S.E.2d at 447 (emphasis added).\nPlaintiff concedes that his evidence consists of \u201ccould or might\u201d expert testimony regarding the cause of plaintiff\u2019s injury. Plaintiff, however, argues that there is no evidence indicating that the testimony was guess work or mere speculation under Edmonds. Simply put, a plaintiff may not rely on \u201ccould\u201d or \u201cmight\u201d expert testimony to establish causation where there is some evidence that the testimony was speculative. We find evidence of speculation in the record and therefore reverse the Commission as to this issue.\nSpecifically, Dr. Ward testified that plaintiff\u2019s symptoms created a \u201cvery puzzling picture.\u201d Dr. Ward also noted that plaintiff\u2019s symptoms were even more unusual, given the rather \u201cminor trauma\u201d that he suffered. Dr. Apostolou testified that it was \u201cpossible\u201d that plaintiff\u2019s symptoms were the product of a traumatic injury but also presented evidence that the symptoms were consistent with a chronic process. Dr. Voos\u2019s testimony is also speculative as he only testified that plaintiff\u2019s injury \u201ccould\u201d or \u201cmight\u201d be work related. Dr. Tellis also stated that plaintiff\u2019s back and leg pain were of \u201cuncertain etiology\u201d; a statement with which Dr. Voos agreed.\nDr. Gridley, a psychologist, concluded that plaintiff was suffering from a conversion disorder, somatic complaints, and neurologic symptomatology, not the result of a traumatic workplace injury. Dr. Gridley believed that plaintiff could return to work without restrictions, with the possible exception of needing supervision. He also testified that plaintiff could be malingering, particularly if there was no response to further treatment. Another psychiatrist, Dr. Hoeper, diagnosed plaintiff with conversion disorder and a probable lumbosacral muscle strain. He also testified that plaintiff needed to return to work.\nAfter hearing all the evidence, the Commission made the following findings of fact that are relevant to this issue:\n17. Plaintiff began complaining of worse pain in September 2004 without having had further injury or doing significant work activity. Dr. Apostolou was puzzled by this development, particularly in view of the conflicting nerve test results, and he questioned its relationship to the injury at work. Defendant-employer had given plaintiff a light duty job marking where water and sewer lines were located. However, after reviewing Dr. Apostolou\u2019s office note, defendant stopped authorizing further medical treatment and advised plaintiff that light duty work would no longer be provided as of November 5, 2004. Corn sequently, plaintiff stopped working on November 4, 2004. He remained out of work until January 17, 2005 [,] when he began driving a truck on a part-time basis for a trucking company. He drove a dump truck for several months, but the bouncing motion of the truck caused him to experience increasing back pain. By April 2005 he was having considerable difficulty getting out of the truck and he stopped working after April 22, 2005.\n18. Except for an emergency room visit on October 16, 2004, in which the emergency room physician recommended a pain management consultation, plaintiff did not receive further known medical care until July 20, 2005 [,] when he went back to Dr. Tellis, whom he had not seen since November 2003. Dr. Tellis reviewed his history of subsequent injury and treatment. Dr. Tellis was unable to specifically identify the etiology of Plaintiffs back and leg pain, but thought it might be due to sacroiliitis. Dr. Tellis performed a left sacroiliac joint injection on August 3, 2005. There was no indication that he ever saw plaintiff again in follow-up.\n20. Plaintiff then received sponsorship from the North Carolina Division of Vocational Rehabilitation Services and was able to receive further medical treatment. The physician\u2019s assistant for Dr. Voos evaluated him on September 2, 2005. The examination revealed abnormal neurological findings, so the physician\u2019s assistant ordered cervical and lumbar myelograms in order to rule out any impingement on the spinal cord and any nerve root compression. At plaintiff\u2019s follow-up visit, Dr. Voos examined him and reviewed the myelogram, as well as the MRI performed in August 2005. There was no evidence of cord impingement in the cervical spine and no evidence of nerve impingement in the lumboscacral spine, except for the Tarlov cyst. The disk at L4-5 was bulging somewhat and Dr. Voos thought that it might be degenerative. Dr. Voos was of the opinion that a discogram would be necessary in order to verify his impressions and, until plaintiff\u2019s symptoms became intolerable, he did not believe a discogram would be warranted. Consequently, he ordered therapy, including aquatherapy.\nIn summation, there was no expert testimony that the work-related injury \u201clikely\u201d caused plaintiff\u2019s symptoms. Moreover, as noted above, there is ample evidence that the doctors treating plaintiff were uncertain as to the issue of causation. We 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. The opinion and award of the Commission is therefore not supported by competent evidence and is reversed. In light of this holding, we need not reach defendants\u2019 final argument.\nIII.\nIn conclusion, we affirm the Commission\u2019s ruling to strike the testimony of one of plaintiff\u2019s treating physicians as he engaged in non-consensual, ex parte communications with defendants. We reverse the Commission\u2019s finding regarding the cause of plaintiff\u2019s injury as it was not supported by competent evidence.\nAffirmed in part; reversed in part.\nJudges CALABRIA and STROUD concur.\n. Although the Commission struck Dr. Kasselt\u2019s opinions, his medical records noting plaintiff\u2019s complaints and his course of treatment were allowed and were summarized in the Commission\u2019s opinion and award.\n. We note that plaintiff relies on Jarrett v. McCreary Modern, Inc., 167 N.C. App. 234, 241, 605 S.E.2d 197, 202 (2004), which was decided before Edmonds and Cannon, the cases relied on by defendants that were neither acknowledged nor distinguished in plaintiffs brief.\n. By way of comparison, plaintiffs own expert in this case, Dr. Voos, has testified in a different, unrelated case that a plaintiff\u2019s medical problems were \u201clikely\u201d caused by a workplace injury. Avery v. Phelps Chevrolet, 176 N.C. App. 347, 354-55, 626 S.E.2d. 690, 695 (2006). In that case, this Court affirmed the opinion and award of the Full Commission as Dr. Voos\u2019s testimony, although contradicted by several other experts, was competent evidence to support the award of workers\u2019 compensation. In the instant case, there is no medical evidence of plaintiff\u2019s medical issues as being \u201clikely\u201d caused by a workplace injury. Id. at 355, 626 S.E.2d at 695.",
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    ],
    "attorneys": [
      "Edwards & Ricci, RA., by Brian M. Ricci, for plaintiff-appellee.",
      "Teague, Campbell, Dennis & Gorham, L.L.P., by John A. Tomei, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "EMILIO DAVIS, Employee, Plaintiff v. CITY OF NEW BERN, Employer, SELF-INSURED (CRAWFORD & COMPANY, Servicing Agent), Defendants\nNo. COA07-785\n(Filed 15 April 2008)\n1. Workers\u2019 Compensation\u2014 ex parte contact with physician \u2014 testimony struck\nThe Industrial Commission did not err in a workers\u2019 compensation case by striking the testimony of one of plaintiff\u2019s treating physicians where there were nonconsensual ex parte communications by the physician with defendants.\n2. Workers\u2019 Compensation\u2014 causation \u2014 speculative medical testimony\nThe Industrial Commission erred by awarding workers\u2019 compensation where the medical evidence was too speculative to establish medical causation and disability. Plaintiff may not rely on \u201ccould\u201d or \u201cmight\u201d expert testimony to establish causation where other evidence showed that the testimony was speculative.\nAppeal by defendants from an opinion and . award entered 2 February 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 January 2008.\nEdwards & Ricci, RA., by Brian M. Ricci, for plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by John A. Tomei, for defendant-appellants."
  },
  "file_name": "0723-01",
  "first_page_order": 755,
  "last_page_order": 763
}
