{ "id": 4163301, "name": "SONIA EDITH CASTANEDA, Employee, Plaintiff v. INTERNATIONAL LEG WEAR GROUP, Employer, THE HARTFORD, Carrier, Defendants", "name_abbreviation": "Castaneda v. International Leg Wear Group", "decision_date": "2008-12-02", "docket_number": "No. COA08-526", "first_page": "27", "last_page": "42", "citations": [ { "type": "official", "cite": "194 N.C. App. 27" } ], "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": "661 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641153 ], "year": 2008, "pin_cites": [ { "page": "749", "parenthetical": "No. COA07-874" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0745-01" ] }, { "cite": "619 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633954, 12633955 ], "year": 2005, "pin_cites": [ { "parenthetical": "\"The fact that the treating physician in the case could not state with reasonable medical certainty that plaintiff's accident caused his disability, is not dispositive - the degree of the doctor's certainty goes to the weight of his testimony.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0495-01", "/se2d/619/0495-02" ] }, { "cite": "646 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638857 ], "year": 2007, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0604-01" ] }, { "cite": "657 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640599 ], "weight": 8, "year": 2008, "pin_cites": [ { "page": "904" }, { "page": "905" }, { "page": "903" }, { "page": "905" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0899-01" ] }, { "cite": "518 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "204", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145362 ], "year": 1999, "pin_cites": [ { "page": "458", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0452-01" ] }, { "cite": "472 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "401" }, { "page": "401" }, { "page": "401" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "233-34" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0228-01" ] }, { "cite": "581 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "87", "parenthetical": "\"On appeal, this Court may not re-weigh the evidence or assess credibility.\"" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188268 ], "year": 2003, "pin_cites": [ { "page": "506", "parenthetical": "\"On appeal, this Court may not re-weigh the evidence or assess credibility.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0503-01" ] }, { "cite": "581 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "785", "parenthetical": "\"the 'mere possibility of causation,' as opposed to the 'probability' of causation, is insufficient to support a finding of compensability\"" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187488 ], "year": 2003, "pin_cites": [ { "page": "351", "parenthetical": "\"the 'mere possibility of causation,' as opposed to the 'probability' of causation, is insufficient to support a finding of compensability\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0341-01" ] }, { "cite": "190 N.C. App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157612 ], "year": 2008, "pin_cites": [ { "page": "739", "parenthetical": "No. COA07-874" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0733-01" ] }, { "cite": "360 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794376 ], "year": 2005, "pin_cites": [ { "parenthetical": "\"The fact that the treating physician in the case could not state with reasonable medical certainty that plaintiff's accident caused his disability, is not dispositive - the degree of the doctor's certainty goes to the weight of his testimony.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0054-01" ] }, { "cite": "608 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470306 ], "year": 2005, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0469-01" ] }, { "cite": "583 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "365", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957863 ], "year": 2003, "pin_cites": [ { "page": "639", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0635-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2003, "pin_cites": [ { "page": "754", "parenthetical": "\"Plaintiff has the burden to prove each element of compensability.\" (Citations omitted)" }, { "page": "753", "parenthetical": "quotation omitted" }, { "page": "753" }, { "page": "753-54" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "234", "parenthetical": "\"Plaintiff has the burden to prove each element of compensability.\" (Citations omitted)" }, { "page": "232" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "184 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8186439 ], "year": 2007, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0497-01" ] }, { "cite": "193 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162118 ], "year": 2008, "pin_cites": [ { "page": "89-90", "parenthetical": "quoting Estate of Gainey v. Southern Flooring & Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0086-01" ] }, { "cite": "561 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125602 ], "year": 2002, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0105-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "606 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "124", "parenthetical": "quoting Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411620 ], "year": 2004, "pin_cites": [ { "page": "454-55", "parenthetical": "quoting Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0449-01" ] }, { "cite": "189 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156196 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "281-82" }, { "page": "282-83" }, { "page": "280" }, { "page": "282-83" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0277-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "700", "parenthetical": "internal brackets and quotations omitted" }, { "page": "699" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "496", "parenthetical": "internal brackets and quotations omitted" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "619 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633954, 12633955 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/619/0495-01", "/se2d/619/0495-02" ] }, { "cite": "657 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640599 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "904", "parenthetical": "quoting Adams, 168 N.C. App. at 476, 608 S.E.2d at 362." }, { "page": "904", "parenthetical": "\"[Wjhere an expert witness expressly bases his opinion as to causation of a complex medical condition solely on the maxim post hoc ergo propter hoc (after it, therefore because of it), the witness provides insufficient evidence of causation.\"" } ], "opinion_index": 1, "case_paths": [ "/se2d/657/0899-01" ] }, { "cite": "391 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "502" } ], "opinion_index": 1 }, { "cite": "98 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525042 ], "year": 1990, "pin_cites": [ { "page": "471" } ], "opinion_index": 1, "case_paths": [ "/nc-app/98/0466-01" ] }, { "cite": "589 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "357 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491424, 491841, 491598, 491502, 491829, 491835, 491710 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0578-03", "/nc/357/0578-06", "/nc/357/0578-05", "/nc/357/0578-02", "/nc/357/0578-07", "/nc/357/0578-04", "/nc/357/0578-01" ] }, { "cite": "485 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 1 }, { "cite": "345 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54001, 53908, 53845, 53911, 53913 ], "year": 1997, "opinion_index": 1, "case_paths": [ "/nc/345/0751-03", "/nc/345/0751-04", "/nc/345/0751-01", "/nc/345/0751-02", "/nc/345/0751-05" ] }, { "cite": "477 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "679" } ], "opinion_index": 1 }, { "cite": "124 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890015 ], "year": 1996, "pin_cites": [ { "page": "528" } ], "opinion_index": 1, "case_paths": [ "/nc-app/124/0526-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "684" } ], "opinion_index": 1 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "360 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794376 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/360/0054-01" ] }, { "cite": "608 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "362" }, { "page": "362" }, { "page": "362" } ], "opinion_index": 1 }, { "cite": "168 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470306 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "475-76" }, { "page": "476" }, { "page": "476" } ], "opinion_index": 1, "case_paths": [ "/nc-app/168/0469-01" ] }, { "cite": "583 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "365" } ], "opinion_index": 1 }, { "cite": "159 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957863 ], "year": 2003, "pin_cites": [ { "page": "639" } ], "opinion_index": 1, "case_paths": [ "/nc-app/159/0635-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "752", "parenthetical": "\"In a worker's compensation claim, the employee has the burden of proving that his claim is compensable.\" (Citation and quotation omitted)" } ], "opinion_index": 1 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "231", "parenthetical": "\"In a worker's compensation claim, the employee has the burden of proving that his claim is compensable.\" (Citation and quotation omitted)" }, { "page": "232" }, { "page": "233" }, { "page": "233" }, { "page": "233" }, { "page": "233" } ], "opinion_index": 1, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "189 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156196 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "281-82", "parenthetical": "quoting Adams, 168 N.C. App. at 476, 608 S.E.2d at 362." }, { "page": "281-82" } ], "opinion_index": 1, "case_paths": [ "/nc-app/189/0277-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "700", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 1 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "year": 2004, "pin_cites": [ { "page": "496", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0488-01" ] } ], "analysis": { "cardinality": 1115, "char_count": 35143, "ocr_confidence": 0.736, "pagerank": { "raw": 6.184055466713763e-08, "percentile": 0.38360556928222456 }, "sha256": "81b75a999cfa2640b54bf352453c9a6ac52d1cfd90eefe97688ecc565a18f4eb", "simhash": "1:af3231ebeebf7e46", "word_count": 5653 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge TYSON respectfully dissents in a separate opinion." ], "parties": [ "SONIA EDITH CASTANEDA, Employee, Plaintiff v. INTERNATIONAL LEG WEAR GROUP, Employer, THE HARTFORD, Carrier, Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nInternational Leg Wear Group (\u201cILG\u201d) and The Hartford (collectively, \u201cdefendants\u201d) appeal from the Full Commission of the North Carolina Industrial Commission\u2019s (\u201cthe Commission\u201d) Opinion and Award, which granted Sonia Edith Castaneda (\u201cplaintiff\u2019) temporary total disability benefits. We affirm.\nI. Facts\nPlaintiff, age 41, began to work for ILG in its shipping and packaging department in May 2005. Plaintiff\u2019s job duties required her to lift boxes weighing between five and 125 pounds and move them from one conveyor belt to another. On Thursday, 20 October 2005, another employee pushed a \u201cheavy\u201d box down a conveyor belt while plaintiff had her back turned to it, facing the opposite direction. The box struck plaintiff\u2019s lower back and caused her to lose her balance. As plaintiff fell, she \u201c[held] onto the rails.\u201d\nPlaintiff\u2019s fellow employees helped her regain her balance since she was unable to stand on her own. Plaintiff testified she felt immediate pain in her lower back and right leg. Plaintiff was transported to the Frye Hospital emergency room where she was prescribed \u201cmuscle relaxation medicine\u201d and instructed not to return to work the next day.\nThe following Monday, 24 October 2005, plaintiff failed to return to work because of severe pain in her back and legs. She informed her supervisors why she was absent. On Tuesday, 25 October 2005, plaintiff returned to work and asked supervisors to send her to a doctor. Plaintiff\u2019s supervisor responded by sending plaintiff to the safety precautions office. After she returned from that office, plaintiffs supervisor asked her to sign a \u201cwritten verbal\u201d warning concerning her work performance. Plaintiff alleged she was unable to read the warning due to her limited knowledge of English, but understood \u201cit said that [she] was not getting along with other people.\u201d Plaintiff believed she was being terminated and refused to sign the paper. Plaintiff placed her initials under the following handwritten sentence: \u201cRefused to sign because she feels that she gets along well with American people.\u201d Plaintiff contends her supervisors told her that placing her initials on the paper would show they had presented her with the warning. Plaintiff did not receive any prior warnings before this incident. The facts are disputed whether plaintiff voluntarily resigned or was terminated from her employment with ILG on 25 October 2005.\nOn 26 October 2005, ILG arranged for plaintiff to seek medical care at the Hart Industrial Clinic. Plaintiff was prescribed pain medication and placed on work restrictions. The work restrictions limited her to lifting five pounds or less and prohibited her from any activity, requiring bending or twisting. Plaintiff was subsequently treated by Dr. Myron Smith, III (\u201cDr. Smith\u201d) at Carolina Orthopedic. Dr. Smith determined plaintiff suffered from \u201clow back sprain with lower extremity weakness.\u201d Due to the weakness in plaintiffs right leg, Dr. Smith ordered an.MRI on the lumbar spine. Dr. Smith left his association with Carolina Orthopedic. Plaintiffs care was transferred to Dr. Christopher Daley (\u201cDr. Daley\u201d), a board certified orthopedic surgeon, who examined and treated her. Plaintiff was subsequently referred to Dr. Ralph Maxy (\u201cDr. Maxy\u201d), a board certified orthopedic surgeon specializing in spinal surgery.-\nOn 23 November 2005, a spinal MRI was performed on the plaintiff. The MRI revealed a possible L4-5 annular disc tear. Both Dr. Daley and Dr. Maxy submitted deposition testimony to .Deputy Commissioner Ronnie E. Rowell (\u201cDeputy Commissioner Rowell\u201d). Dr. Daley unequivocally opined that plaintiffs \u201cquestionable\u201d annular tear was not causally related to the incident that occurred on 20 October 2005. Dr. Daley diagnosed plaintiff with \u201clumbar spondylosis\u201d associated with degenerative disk disease. Dr. Maxy disagreed and opined that it \u201cwas quite possible\u201d plaintiffs annular disc tear resulted from this specific incident.\nDeputy Commissioner Rowell accorded greater weight to the testimony of Dr. Maxy and concluded plaintiff had sustained an injury by accident, arising out of and in the course of her employment with ILG, which resulted in an annular disc tear injury. Deputy Commissioner Rowell further concluded plaintiff was entitled to temporary total compensation benefits beginning 20 October 2005 until further order of the Commission. Defendants were ordered to pay: (1) compensation to plaintiff at the rate of $346.68 per week and (2) all medical expenses incurred by plaintiff as a result of this injury. Without hearing or receiving further evidence, a divided panel of the Full Commission adopted the Opinion and Award of Deputy Commissioner Rowell. Commissioner Dianne C. Sellers dissented on the basis that Dr. Maxy\u2019s opinion \u201camount[ed] to speculation and plaintiff [] failed to carry the burden of proving by competent evidence that a causal relationship exist[ed] between the work-related accident and her annular disc tear.\u201d Defendants appeal.\nII. Standard of Review\n\u201c[W]hen reviewing Industrial Commission decisions, appellate courts must examine whether any competent evidence supports the Commission\u2019s findings of fact and whether those findings . . . support the Commission\u2019s conclusions of law.\u201d McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (internal brackets and quotations omitted). The Full Commission\u2019s findings are conclusive-on appeal where based on competent evidence, even when there is evidence to the contrary. Raper v. Mansfield Sys., Inc., 189 N.C. App. 277, 281-82, 657 S.E.2d 899, 904 (2008). \u201cThe 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 Barbour v. Regis Corp., 167 N.C. App. 449, 454-55, 606 S.E.2d 119, 124 (2004) (quoting Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)). The Commission\u2019s conclusions of law are reviewed de novo. Effingham v. Kroger Co., 149 N.C. App. 105, 109, 561 S.E.2d 287, 291 (2002). \u201cWhere there are sufficient findings of fact based on competent evidence to support the Commission\u2019s conclusions of law, the award will not be disturbed because of other erroneous findings which do not affect the conclusions.\u201d Meares v. Dana Corp., 193 N.C. App. 86, 89-90, - S.E.2d -, - (2008) (quoting Estate of Gainey v. Southern Flooring & Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608 (2007)) (internal brackets and quotation marks omitted).\nIII. Causation\nDefendants argue plaintiff failed to establish a causal relationship existed between the work-related accident and plaintiff\u2019s annular disc tear. We disagree.\nDefendants challenge the following findings of fact entered by the Commission regarding the cause of plaintiffs injury:\n3. On the morning of October 20, 2005, plaintiff was working with her back to the conveyor line when one of the heavier boxes was being pushed off the conveyor line by another employee. Plaintiff was unaware of the box and was struck in her mid to low back area and was pushed forward, which twisted her spine in the process. As plaintiff was falling to the floor she landed on some racks.\n8. On November 23, 2005, plaintiff had a spinal MRI, which revealed an L4-5 annular disc tear. Dr. Maxy testified that more likely than not, plaintiffs injury at work caused the traumatic L4-5 annular disc tear, which is the reason for plaintiffs ongoing pain and plaintiffs absence of symptoms prior to her injury at work.\n9. The Full Commission gives greater weight to the testimony of Dr. Maxy, who specializes in spinal disorders, than to Dr. Daley, who does not specialize in spinal disorders.\nBased on these findings, the Commission concluded as a matter of law, \u201c[o]n October 20, 2005, plaintiff sustained an injury by accident, arising out of and in the course of her employment with defendant resulting in an annular disc tear injury.\u201d\nThe burden rests upon the plaintiff to produce competent evidence establishing each element of compensability, including a causal relationship between the work-related accident and his or her injury. See Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003) (\u201cPlaintiff has the burden to prove each element of compensability.\u201d (Citations omitted)). \u201cThe quantum and quality of the evidence required to establish prima facie the causal relationship will of course vary with the complexity of the injury itself.\u201d Hodgin v. Hodgin, 159 N.C. App. 635, 639, 583 S.E.2d 362, 365 (2003) (quotation omitted). Where complicated medical questions are presented before the Commission, \u201conly an expert can give competent opinion evidence as to the cause of the injury.\u201d Holley, 357 N.C. at 232, 581 S.E.2d at 753 (quotation omitted).\nExpert testimony is insufficient to prove causation when \u201cthere is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\u201d Holley, 357 N.C. at 233, 581 S.E.2d at 753. In Holley, the Supreme Court concluded when a doctor\u2019s testimony revealed the speculative nature of his opinion, such evidence was insufficient to establish causation. Id. In Holley, one of plaintiff\u2019s doctors testified there was a \u201clow possibility\u201d that plaintiff\u2019s accident caused her injury. Id. Another doctor testified, \u201cI am unable to say with any degree of certainty whether or not [the injury] is related to the development of her [medical condition]\u201d and \u201cI don\u2019t really know what caused [plaintiff\u2019s medical condition].\u201d Id. at 233, 581 S.E.2d at 753-54.\nThe facts in Holley are distinguishable from the case at bar. The Full Commission found that \u201cplaintiff had a spinal MRI, which revealed an L4-5 annular disc tear.\u201d This finding was based on competent evidence. Dr. Maxy testified that \u201c[s]he did have an L4/5 annular tear. ...\u201d Although Dr. Maxy admitted that \u201cyou can\u2019t tell for sure\u201d what the cause of the annular tear was, this qualifying language goes towards the weight of his testimony and does not rise to the level of \u201cguess\u201d or \u201cspeculation\u201d as the doctor\u2019s testimony in Holley. See Adams v. Metals USA, 168 N.C. App. 469, 483, 608 S.E.2d 357, 365 (2005), aff\u2019d per curiam, 360 N.C. 54, 619 S.E.2d 495 (2005) (\u201cThe fact that the treating physician in the case could not state with reasonable medical certainty that plaintiff\u2019s accident caused his disability, is not dispositive \u2014 the degree of the doctor\u2019s certainty goes to the weight of his testimony.\u201d). Dr. Maxy testified it was \u201cquite possible\u201d and \u201cmore likely than not\u201d that the tear was caused by plaintiff\u2019s work-related injury. See Kelly v. Duke Univ., 190 N.C. App. 733, 739, 661 S.E.2d 745, 749 (June 3, 2008) (No. COA07-874) (concluding doctor\u2019s testimony that plaintiff\u2019s death was more likely than not caused by her diabetes is competent evidence to support causation) (quoting Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341, 351, 581 S.E.2d 778, 785 (2003) (\u201cthe \u2018mere possibility of causation,\u2019 as opposed to the \u2018probability\u2019 of causation, is insufficient to support a finding of compensability\u201d)).\nThe dissent contends Dr. Maxy\u2019s opinion is speculative because he based his opinion in part on the assumption that plaintiff suffered a \u201cviolent motion,\u201d and there was no competent evidence to find plaintiff \u201carched her back violently\u201d or otherwise suffered a \u201cviolent motion.\u201d We respectfully disagree. Dr. Maxy opined that \u201cif she arched her back violently, that would cause violent motion between the two vertebrae which could in fact lead to an annular tear. That\u2019s' the sense in which it can cause an annular tear, any violent motion from the box hitting the back.\u201d Although no competent evidence supports a finding that plaintiff in fact arched or twisted her back when she was hit by the box, there is other evidence from which the Full Commission could base a finding that plaintiff\u2019s injury caused her annular tear. Estate of Gainey, supra. Dr. Maxy also opined that blunt force trauma, such as being struck forcefully in the back, could cause an annular tear. Plaintiff testified she was hit in the lower back with a heavy box which caused her to lose her balance and grab onto the rails. Viewing the facts in the light most favorable to the plaintiff, it is reasonable to infer that when someone is struck by a heavy box with enough force to push a person forward, that motion can be characterized as a violent motion. Barbour, supra. Since there was evidence supporting a finding that plaintiff suffered a violent motion, Dr. Maxy\u2019s opinion is not based on speculation.\nIn Raper v. Mansfield Sys., Inc., 189 N.C. App. at 282-83, 657 S.E.2d at 905, this Court concluded that there was no evidence precisely identifying the cause of injury. In that case, the plaintiff developed carpal tunnel syndrome after a work accident. Id. A doctor testified that if plaintiff had sprained his wrist as a result of the accident, the wrist sprain \u201cmore likely\u201d was the cause of the carpal tunnel syndrome. Id., 189 N.C. App. at 280, 657 S.E.2d at 903. However, there was no evidence supporting a finding that plaintiff sprained his wrist. Id., 189 N.C. App. at 282-83, 657 S.E.2d at 905. In addition, the doctor acknowledged the sprain could have been caused by diabetes or another cause unrelated to the accident. Id.\nHere, it is reasonable to infer from plaintiff\u2019s testimony describing the accident, that she suffered a violent motion when she was hit by the box and that the motion caused trauma to the spine, which resulted in the annular tear. The credibility and weight of Dr. Maxy\u2019s testimony is for the Full Commission. See Martin v. Martin Bros. Grading, 158 N.C. App. 503, 506, 581 S.E.2d 85, 87 (2003) (\u201cOn appeal, this Court may not re-weigh the evidence or assess credibility.\u201d). Viewed in the light most favorable to the plaintiff, plaintiff\u2019s testimony describing the accident and Dr. Maxy\u2019s opinion based on the \u201cobjective finding\u201d on the MRI as well as plaintiff\u2019s past medical history of no prior symptoms, is competent evidence for the Commission to conclude that the annular tear was a compensable injury. Barbour, supra. We affirm on this issue.\nIV. Inability to Find Suitable Employment\nDefendants also argue that because plaintiff was terminated for misconduct, she \u201cterminated any efforts by Employer-Defendant to satisfy providing any work within any medical restrictions\u201d and she is not entitled to benefits. We disagree.\nWhen an employee has sustained a compensable injury, has been provided light duty or rehabilitative employment, and is terminated for misconduct or other fault of the employee, the termination \u201cdoes not automatically constitute a constructive refusal to accept employment so as to bar the employee from receiving benefits. . . .\u201d Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 233-34, 472 S.E.2d 397, 401 (1996). \u201c[U]nder the Seagraves' test, to bar payment of benefits, an employer must demonstrate initially that: (1) the employee was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to the employee\u2019s compensable injury.\u201d McRae, 358 N.C. at 493, 597 S.E.2d at 699. The initial burden is on the employer. Seagraves, 123 N.C. App. at 233, 472 S.E.2d at 401.\nIf the employer meets this burden, the burden shifts to the employee to rebut the presumption that the employee\u2019s misconduct was a constructive refusal to perform the work provided, resulting in a forfeiture of benefits for lost earnings. Id. at 234, 472 S.E.2d at 401. The employee must show that his or her inability to find other employment at a wage comparable to that earned prior to the injury is due to the work-related disability. Id. In deciding these questions, \u201cthe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 458, 518 S.E.2d 200, 204 (1999) (citation omitted).\nDefendants argue that plaintiff constructively refused employment when she failed to sign the letter and is not entitled to any disability benefits.\nIn the instant case, the Full Commission found that:\nOn October 24, 2005, plaintiff was in severe pain. She called work and stayed out that day. On October 25, 2005, when plaintiff returned to work, she asked to be sent to a doctor. Defendant had plaintiff go to the office where she was requested to sign a \u201cwritten verbal\u201d warning about work performance. Plaintiff believed she would be terminated if she signed the form, but did initial her name to the form. Defendant was not satisfied and terminated plaintiff. Plaintiff had no prior misconduct or warnings. The undersigned find that there is insufficient evidence to support a finding that plaintiff was terminated for misconduct.\nEven if the Full Commission erred in determining that plaintiff was not terminated for misconduct, if she showed that her inability to find other employment at a wage comparable to the wage she earned prior to the injury is due to a work-related disability, then her payments are not barred. Seagraves, supra.\nThe Full Commission found that\nPlaintiff has completed an extensive job search without success at various employers and temporary agencies. Plaintiffs prior jobs all required bending, twisting, arid stooping which she can no longer do as a result of her work related injury while employed by defendant. Plaintiff has been on various work restrictions and continues to be assigned restrictions by Dr. Maxy of no lifting more than 15 pounds and no excessive bending, twisting or stooping.\nThe Full Commission concluded that \u201cPlaintiff has been unable to find suitable employment as a result of her injury, and is entitled to temporary total disability compensation beginning October 20, 2005, and continuing until further order of the Commission. N. C. Gen. Stat. \u00a7 97-29.\u201d\nPlaintiff testified that she could not do \u201cpick-and-pack\u201d jobs because of doctor\u2019s restrictions on lifting, bending, twisting and stooping. Plaintiff submitted an exhibit showing that from March 2006 until May 2006 she sought employment from more than twenty employers. Plaintiff also testified that she was told by one employer that due to her physical limitations she could not perform the job duties of the position.\nViewing the evidence in the light most favorable to the plaintiff, we hold that this evidence supports the conclusion of law that plaintiff\u2019s inability to find comparable employment is due to her compensable injury.\nAffirmed.\nJudge McCULLOUGH concurs.\nJudge TYSON respectfully dissents in a separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion erroneously holds plaintiff presented competent evidence to establish a causal relationship between her work-related accident and alleged annular disc tear and affirms the Commission\u2019s Opinion and Award granting plaintiff temporary total disability benefits. Dr. Maxy\u2019s expert medical opinion concerning the cause of plaintiff\u2019s injury was based upon mere speculation and conjecture and is insufficient to meet plaintiff\u2019s burden of proof to establish the essential element of causation. I respectfully dissent.\nI. Standard of Review\n[W]hen reviewing Industrial Commission decisions, appellate courts must examine whether any competent evidence supports the Commission\u2019s findings of fact and whether those findings . . . support the Commission\u2019s conclusions of law. The Commission\u2019s findings of fact are conclusive on appeal when supported by such competent evidence, even though there is evidence that would support findings to the contrary.\nMcRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (internal citations and quotations omitted).\nThe Commission\u2019s mixed findings of fact and conclusions of law and its conclusions of law applying the facts are fully reviewable de novo by this Court. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982); Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. rev. denied, 345 N.C. 751, 485 S.E.2d 49 (1997).\nII. Causal Relationship\nDefendants assign error to the Commission\u2019s Opinion and Award and argue plaintiff failed to establish the essential element of a causal relationship between her work-related accident and alleged annular disc tear. I agree and vote to reverse the Commission\u2019s Opinion and Award.\nA. Speculation and Conjecture\nThe burden of proof rests upon the plaintiff to produce relevant, probative, and competent evidence to establish a causal relationship exists between the work-related accident and the alleged injury. See Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003) (\u201cIn a worker\u2019s compensation claim, the employee has the burden of proving that his claim is compensable.\u201d (Citation and quotation omitted)). \u201cThe quantum and quality of the evidence required to establish prima facie the causal relationship will of course vary with the complexity of the injury itself.\u201d Hodgin v. Hodgin, 159 N.C. App. 635, 639, 583 S.E.2d 362, 365 (citation omitted), disc. rev. denied, 357 N.C. 578, 589 S.E.2d 126 (2003). \u201cIn cases involving complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Holley, 357 N.C. at 232, 581 S.E.2d at 753 (citation and quotation omitted).\nWhen medical opinion testimony is necessary, \u201cmedical certainty is not required, but an expert\u2019s speculation is insufficient to establish causation.\u201d Adams v. Metals USA, 168 N.C. App. 469, 475-76, 608 S.E.2d 357, 362 (citation and quotation omitted), aff\u2019d per curiam, 360 N.C. 54, 619 S.E.2d 495 (2005). This Court recently reiterated:\n[Our] Supreme Court has allowed \u201ccould\u201d or \u201cmight\u201d expert testimony as probative and competent evidence to prove causation. However, \u201ccould\u201d or \u201cmight\u201d expert testimony is insufficient to support a causal connection when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation. An expert witness\u2019 testimony is insufficient to establish causation where the expert witness is unable to express an opinion to any degree of medical certainty as to the cause of an illness. Likewise, where an expert witness expressly bases his opinion as to causation of a complex medical condition solely on the maxim post hoc ergo propter hoc (after it, therefore because of it), the witness provides insufficient evidence of causation.\nRaper v. Mansfield Sys., Inc., 189 N.C. App. 277, 281-82, 657 S.E.2d 899, 904 (2008) (quoting Adams, 168 N.C. App. at 476, 608 S.E.2d at 362.) (emphasis supplied)); see also Holley, 357 N.C. at 233, 581 S.E.2d at 753 (\u201cAlthough expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury, it is insufficient to prove causation, particularly when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\u201d (Internal citation and quotation omitted)).\nHere, defendants challenge the following findings of fact contained in the Commission\u2019s Opinion and Award regarding the issue of causation:\n3. On the morning of October 20, 2005, plaintiff was working with her back to the conveyor line when one of the heavier boxes was being pushed off the conveyor line by another employee. Plaintiff was unaware of the box and was struck in her mid to low back area and was push\u00e9d forward, which twisted her spine in the process. As plaintiff was falling to the floor she landed on some racks.\n8. On November 23, 2005, plaintiff had a spinal MRI, which revealed an L4-5 annular disc tear. Dr. Maxy testified that more likely than not, plaintiffs injury at work caused the traumatic L4-5 annular disc tear, which is the reason for plaintiffs ongoing pain and plaintiffs absence of symptoms prior to her injury at work.\n9. The Full Commission gives greater weight to the testimony of Dr. Ralph Maxy, who specializes in spinal disorders, than to Dr. Daley, who does not specialize in spinal disorders.\nThe Commission concluded as a matter of law, \u201c[o]n October 20, 2005, plaintiff sustained an injury by accident, arising out of and in the course of her employment with defendant resulting in an annular disc tear injury.\u201d Findings of fact numbered 3 and 8 are not supported by competent evidence in the record before us and do not support the Commission\u2019s conclusion of law.\nFinding of fact numbered 3 states, \u201c[p]laintiff was unaware of the box and was struck in her mid to low back area and was pushed forward, which twisted her spine in the process.\u201d (Emphasis supplied). During the hearing, plaintiff offered no testimony or any other evidence tending to support the notion that she had \u201ctwisted\u201d her spine as she fell to the ground after being hit with a box. \u201cWe are not bound by the findings of the Commission when they are not supported by competent evidence in the record.\u201d English v. J.P. Stevens & Co., 98 N.C. App. 466, 471, 391 S.E.2d 499, 502 (1990).\nThe dispositive issue before this Court becomes whether Dr. Maxy\u2019s expert testimony was sufficient to establish a causal relationship between plaintiff\u2019s work-place accident and her injury. Dr. Maxy\u2019s testimony and other record evidence shows his expert opinion was based upon mere conjecture or speculation. Holley, 357 N.C. at 233, 581 S.E.2d at 753.\nOn direct examination, and after being asked a hypothetical question that paralleled the facts at bar, Dr. Maxy testified that \u201c[i]t is quite possible that [the 20 October 2005 incident] caused the injury noted on the MRI, the annular tear.\u201d (Emphasis supplied). Dr. Maxy based his opinion upon \u201cthe objective finding on the MRI plus her history, the fact she did not have these symptoms prior to the box hitting her on her back.\u201d Dr. Maxy testified he had not reviewed plaintiffs MRI itself, but only the Radiology Report. Dr. Maxy testified that the objective finding he was referring to indicated: \u201cthat there are findings that represent \u2014 may represent an atypical annular tear.\u201d (Emphasis supplied). Upon review of the actual Radiology Report, the \u201cobjective finding\u201d Dr. Maxy was referencing states, \u201c2. Fluid signal within the left posterolateral aspect of the interverebral L4-5 disc. This may represent a somewhat atypical annular tear or simply fluid within the substance of the disc material.\u201d (Emphasis supplied).\nDr. Maxy further testified that the annular tear \u201ccould\u201d cause the symptoms plaintiff was experiencing, but that \u201c[i]t doesn\u2019t commonly\u201d and acknowledged that other patients can present with an annular tear based upon a \u201cdegenerative change.\u201d Dr. Maxy\u2019s concerns and plaintiff\u2019s non-cooperation were also noted in Dr. Maxy\u2019s physical exam:\nAlso there were some findings on exam [sic] that seemed to be somewhat perplexing. I couldn\u2019t examine her motor function very well because it seemed, as if she was giving me less than full effort. And so I couldn\u2019t tell whether or not she had any true weakness. She also seemed to walk with a left-sided antalgic gait, in other words, a left-sided limp when in fact she told us that the pain was worse down the right side than it was on the left. So there were some inconsistencies.\n(Emphasis supplied). Dr. Maxy testified that if there had not been \u201can objective finding\u201d on the MRI, he would not have placed plaintiff on any work restrictions.\nThe following colloquy on cross-examination is quite significant and indicative of the wholly speculative nature of Dr. Maxy\u2019s testimony:\n[Defense counsel]: I believe if I understand your testimony correctly and you testified that it certainly was possible for the force of a box striking someone\u2019s back, I assume that the box striking the back caused enough force to jar the area between the two vertebrae?\n[Dr. Maxy]: Right, exactly. It\u2019s not the box itself that hits the disk and causes a rupture. That\u2019s not what happens, but the box hitting her in the back could cause a violent, violent motion between two vertebrae. For example, if she arched her back violently, that would cause violent motion between two vertebrae which could in fact lead to an annular tear. That\u2019s the sense in which it can cause an annular tear, any violent motion from the box hitting the back.\n[Defense counsel]: Again so I\u2019m assuming if a box comes with some significant force and hits you in the back or then throws you forward or in a manner that doesn\u2019t cause you to do the violent motion, then it would not cause an annular tear?\n[Dr. Maxy]: That\u2019s correct. It\u2019s not the blunt force of the box itself that causes the tear as much as the violent motion between the two vertebrae that could cause the tear.\n[Defense counsel]: So without knowing exactly how [plaintiff] reacted when the box struck her, can you really tell for sure if that incident is what caused the annular tear?\n[Dr. Maxy]: Well, you can\u2019t tell for sure in any of this, to tell you the truth. You really can\u2019t. I base my opinion on her history and the findings. If she told me she had had a long history of back pain, it would be less likely the cause.\n(Emphasis supplied). Dr. Maxy clearly based his expert opinion on the presumption that plaintiff had \u201carched her back violently\u201d or that some other \u201cviolent motion\u201d occurred after she was hit with the box. However, as the majority\u2019s opinion correctly states, \u201cno competent evidence supports a finding that plaintiff in fact arched or twisted her back when she was hit by the box[.]\u201d Further, Dr. Maxy frankly acknowledged that without knowing how plaintiff reacted when the box struck her, he could not opine whether the incident at ILG caused the annular tear.\nAfter a review of Dr. Maxy\u2019s deposition testimony, I agree with Commissioner Sellers\u2019s dissenting opinion and would hold that Dr. Maxy\u2019s medical opinion regarding the cause of plaintiff\u2019s injury is only \u201ca guess or mere speculation.\u201d Holley, 357 N.C. at 233, 581 S.E.2d at 753. Dr. Maxy did not review plaintiff\u2019s MRI and based his diagnosis in part on a finding in the Radiology Report that \u201cmay represent an atypical annular tear.\u201d (Emphasis supplied). Based solely on his own physical exam, Dr. Maxy would not have placed plaintiff on any work restrictions.\nB. After it., therefore because of it\nDr. Maxy heavily emphasized plaintiffs medical history, \u201cthe fact she did not have these symptoms prior to the box hitting her on her back[,]\u201d and implicitly stated that if plaintiff had presented a history of back pain, his diagnosis would have been different. Dr. Maxy\u2019s opinion is also pure post hoc ergo propter hoc testimony and does not prove causation. See Raper, 189 N.C. App. at 281-82, 657 S.E.2d at 904 (\u201c[Wjhere an expert witness expressly bases his opinion as to causation of a complex medical condition solely on the maxim post hoc ergo propter hoc (after it, therefore because of it), the witness provides insufficient evidence of causation.\u201d).\nOn cross-examination, Dr. Maxy testified that without knowing how plaintiff reacted when the box struck her, he \u201c[could not] tell for sure\u201d if the incident at ILG is what caused the annular tear. Nonetheless, Dr. Maxy opined that based upon the \u201cobjective finding\u201d in the Radiology Report, in combination with plaintiff\u2019s history, plaintiff\u2019s work-related accident \u201cmore likely than not\u201d caused an annular tear.\nBecause a majority of the Commission assigned greater credibility to Dr. Maxy\u2019s opinion and we are bound by this determination, a review of the quantum of Dr. Maxy\u2019s testimony shows it is insufficient to establish to a reasonable medical certainty that plaintiff\u2019s accident was causally related to her annular disc tear. See Holley, 357 N.C. at 233, 581 S.E.2d at 753 (\u201cAlthough expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury, it is insufficient to prove causation, particularly when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\u201d (Internal citation and quotation omitted)).\nDr. Maxy\u2019s expert testimony is insufficient to support the Commission\u2019s conclusion of law that \u201c[o]n October 20, 2005, plaintiff sustained an injury by accident, arising out of and in the course of her employment with defendant resulting with an annular disc tear injury.\u201d Because the Commission\u2019s Opinion and Award is affected with error on this basis, it is unnecessary to address defendant\u2019s remaining assignment of error.\nII. Conclusion\nDr. Maxy\u2019s testimony is insufficient to establish to a reasonable degree of medical certainty that plaintiffs work-related accident was causally related to her annular disc tear. Holley, 357 N.C. at 233, 581 S.E.2d at 753; Adams, 168 N.C. App. at 476, 608 S.E.2d at 362. Under de novo review, the Commission\u2019s conclusion of law that plaintiff sustained an injury by accident, arising out of and in the course of her employment, resulting in an annular disc tear is unsupported by its findings of fact and is erroneous as a matter of law. The Commission\u2019s Opinion and Award granting plaintiff temporary total disability benefits is erroneous and should be reversed. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Randy D. Duncan, for plaintiff-appellee.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.R, by M. Duane Jones, for defendants-appellants." ], "corrections": "", "head_matter": "SONIA EDITH CASTANEDA, Employee, Plaintiff v. INTERNATIONAL LEG WEAR GROUP, Employer, THE HARTFORD, Carrier, Defendants\nNo. COA08-526\n(Filed 2 December 2008)\n1. Workers\u2019 Compensation\u2014 back injury \u2014 causation\u2014sufficiency of evidence\nThe evidence in a workers\u2019 compensation case was sufficient to permit the Industrial Commission to find that plaintiffs annular disc tear injury was caused by a work-related accident where it was reasonable to infer from plaintiff\u2019s testimony that she suffered a violent motion when she was struck by a box on a conveyor belt and that the motion caused trauma to the spine; plaintiff had a spinal MRI which revealed an annular disc tear; and an orthopedic surgeon testified that it was \u201cquite possible\u201d and \u201cmore likely than not\u201d that the tear was, caused by plaintiff\u2019s work-related accident.\n2. Workers\u2019 Compensation\u2014 ability to find comparable employment \u2014 termination\nThe evidence in a workers\u2019 compensation case supported the Industrial Commission\u2019s conclusion that plaintiff\u2019s inability to find comparable employment is due to her compensable injury where her employment was terminated after her injury. Even if the Commission erred by determining that plaintiff was not terminated for misconduct, she testified that she could not do similar jobs because of medical restrictions, she submitted an exhibit showing her efforts to find employment, and she testified that she was told by one employer that she could not perform the duties of the position because of her physical limitations.\nJudge TYSON dissenting.\nAppeal by defendants from Opinion and Award entered 10 January 2008 by Commissioner Buck Lattimore for the North Carolina Industrial Commission. Heard in the Court of Appeals 25 September 2008.\nRandy D. Duncan, for plaintiff-appellee.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.R, by M. Duane Jones, for defendants-appellants." }, "file_name": "0027-01", "first_page_order": 59, "last_page_order": 74 }