{ "id": 4165123, "name": "GLORIA COOPER, Employee, Plaintiff v. BHT ENTERPRISES, Employer, Self-Insured, and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants", "name_abbreviation": "Cooper v. BHT Enterprises", "decision_date": "2009-02-17", "docket_number": "No. COA08-711", "first_page": "363", "last_page": "377", "citations": [ { "type": "official", "cite": "195 N.C. App. 363" } ], "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": "644 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638309, 12638310, 12638311 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/644/0231-01", "/se2d/644/0231-02", "/se2d/644/0231-03" ] }, { "cite": "628 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635582 ], "year": 2006, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0402-01" ] }, { "cite": "639 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637619, 12637620, 12637621 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/639/0652-01", "/se2d/639/0652-02", "/se2d/639/0652-03" ] }, { "cite": "630 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635993 ], "year": 2006, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0681-01" ] }, { "cite": "661 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641004 ], "year": 2008, "pin_cites": [ { "page": "255", "parenthetical": "\" 'Disability' is defined by a diminished capacity to earn wages, not by physical impairment.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0249-01" ] }, { "cite": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "year": 2005, "pin_cites": [ { "page": "493", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "659 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640718 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/659/0435-01" ] }, { "cite": "362 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640560 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/657/0666-03" ] }, { "cite": "654 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640028 ], "year": 2007, "pin_cites": [ { "page": "257", "parenthetical": "citing Deese v. Champion Int'l Corp., 352 N.C. 109, 114, 530 S.E.2d 549, 552 (2000)" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0254-01" ] }, { "cite": "619 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634065 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "909" }, { "page": "910" }, { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0907-01" ] }, { "cite": "361 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741607, 3737130, 3738894, 3739255, 3742617, 3740890, 3745628 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0356-04", "/nc/361/0356-06", "/nc/361/0356-03", "/nc/361/0356-05", "/nc/361/0356-07", "/nc/361/0356-02", "/nc/361/0356-01" ] }, { "cite": "177 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. 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App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157629 ], "year": 2008, "pin_cites": [ { "page": "278-79", "parenthetical": "\" 'Disability' is defined by a diminished capacity to earn wages, not by physical impairment.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0274-01" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "year": 2005, "pin_cites": [ { "page": "43", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "citations omitted" }, { "page": "457" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. 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Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)" }, { "page": "414" }, { "page": "414" }, { "page": "413" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "quoting Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)" }, { "page": "681" }, { "page": "681" }, { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "552" }, { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "114" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "187 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375343 ], "year": 2007, "pin_cites": [ { "page": "584", "parenthetical": "citing Deese v. Champion Int'l Corp., 352 N.C. 109, 114, 530 S.E.2d 549, 552 (2000)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0580-01" ] }, { "cite": "173 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8354421 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/173/0740-01" ] }, { "cite": "585 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491744, 491866, 491659, 491910 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0460-04", "/nc/357/0460-01", "/nc/357/0460-02", "/nc/357/0460-03" ] }, { "cite": "579 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185540 ], "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0168-01" ] } ], "analysis": { "cardinality": 1248, "char_count": 34823, "ocr_confidence": 0.75, "pagerank": { "raw": 1.0686921241607369e-07, "percentile": 0.5592119463335508 }, "sha256": "33a30d889e3cbc7227e3c471ec848efab6f4e549b3b442836e263dc5070e73ff", "simhash": "1:ab054baa153b715e", "word_count": 5672 }, "last_updated": "2023-07-14T21:32:21.117771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEPHENS concur." ], "parties": [ "GLORIA COOPER, Employee, Plaintiff v. BHT ENTERPRISES, Employer, Self-Insured, and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nPlaintiff Gloria Cooper appeals from an Opinion and Award by the North Carolina Industrial Commission (\u201cCommission\u201d), which limited the benefits awarded to her by the deputy commissioner\u2019s Opinion and Award, and from an order denying her motions to amend and reconsider the Full Commission\u2019s Opinion and Award. We affirm.\nThe parties stipulated that an employment relationship existed between plaintiff and defendant-employer BHT Enterprises at the time of the 7 March 2003 accident, and that plaintiff \u201csuffered a compensable injury by accident involving her lower back arising out of and in the course of her employment\u201d with defendant-employer. The Full Commission\u2019s unchallenged and, therefore, binding findings of fact, see Johnson v. Herbie\u2019s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118 (concluding that, where a party failed to assign error to the Industrial Commission\u2019s findings of fact, those findings are \u201cpresumed to be supported by competent evidence\u201d and are, thus, \u201cconclusively established on appeal\u201d), disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003), are as follows:\n1. At the time of the hearing before the Deputy Commissioner, plaintiff was a 47 year-old female with a high school education.\n2. At the time of her admittedly compensable low back injury on March 7, 2003, plaintiff had worked for defendant for approximately 14 years as a meat cook in a McDonald\u2019s restaurant.\n3. Prior to March 7, 2003, plaintiff did not have any health problems that prevented her from working.\n4. While at work on March 7, 2003, plaintiff entered a walk-in freezer to shelve some bagels. While exiting the freezer, plaintiff slipped on some ice and fell to the floor.\n5. Plaintiff continued to work immediately following the accident, but presented to Nash Urgent Care with complaints of lower back pain later the same day. Plaintiff did not complain of or report any cervical or neck symptoms. X-rays of plaintiff\u2019s lumbar and thoracic spine were negative. Plaintiff was released to return to light-duty work; however, defendant informed plaintiff that no light-duty work was available.\n7. On April 14, 2003, plaintiff presented to Dr. Grieg McAvoy for an orthopaedic evaluation. Dr. McAvoy interpreted x-rays of plaintiff\u2019s thoracic and lumbar spine to be within normal limits. Dr. McAvoy diagnosed plaintiff with low back pain with no signs of nerve deficits or nerve irritation, recommended a home exercise program, and released plaintiff to return to regular duty work without restrictions.\n8. Plaintiff delivered a full duty release note to defendant, however she did not return to work due to her belief that she was unable to work. Larry Thomas Winbourne, director of operations for defendant, testified that he was aware of plaintiff\u2019s April 14, 2003 full-duty release by Dr. McAvoy. He testified that plaintiff\u2019s position was held open for her, and that defendant was \u201choping she\u2019s come back to work.\u201d Mr. Winbourne further testified that plaintiff was considered to be on \u201cmedical leave\u201d and was \u201cnever terminated.\u201d\n9.On June 16, 2003, plaintiff returned to Dr. McAvoy for re-evaluation. At this visit, she complained of both lower back and neck pain[, the description of which was recorded in Dr. McAvoy\u2019s medical notes as \u201ca catch in her neck\u201d]. Dr. McAvoy ordered another lumbar MRI but did not order a cervical MRI. The lumbar MRI was performed on July 3, 2003 and revealed slight osteoarthritic changes but no disc extrusion or stenosis. On the basis of this MRI, Dr. McAvoy, on July 3, 2003, deemed plaintiff to have reached maximum medical improvement, assigned a permanent partial disability rating of 0% to plaintiffs back, and advised plaintiff to \u201ccontinue with normal activities without restrictions.\u201d\n10. Plaintiff began overlapping treatment with her primary care physician, Dr. Samuel Wesonga, at the Boice-Willis Clinic on April 24, 2003. Plaintiff initially reported only lower back pain to Dr. Wesonga, and made no mention of cervical or neck pain. It was not until September 24, 2003, over six months after the March 7, 2003 injury by accident that plaintiff reported both lower back/extremity pain and neck/shoulder pain to Dr. Wesonga.\n11. Dr. Wesonga ordered a cervical MRI for the first time since plaintiffs accident at work. The MRI revealed disc herniations superimposed on severe circumferential spinal stenosis at C5-C6 and C6-C7. As a result, Dr. Wesonga referred plaintiff for neurosurgical evaluation.\n12. On December 16, 2003, plaintiff presented to Dr. Lucas J. Martinez, a neurosurgeon at Rocky Mount Neurosurgical and Spine Consultants. Dr. Martinez diagnosed plaintiff with herniated disks in the neck at C6-C7 on the left and C5-C6 on the right.\n13. On February 5, 2004, Dr. Martinez performed cervical surgery that consisted of an anterior cervical microdiscectomy and anterior interbody fusion at C6-C7.\n14. Following her surgery, plaintiff continued to treat with Dr. Martinez, including a regimen of physical therapy from which she was discharged on August 12, 2004. Plaintiff last saw Dr. Martinez on August 25, 2004, but continued to treat with Dr. Wesonga for chronic pain as of the date of hearing before the Deputy Commissioner.\nThe Commission also found that plaintiff \u201cfailed to show disability beyond her release to return to work on April 14, 2003.\u201d Plaintiff did not challenge this finding.\nAfter receiving. evidence, .the deputy commissioner filed an Opinion and Award on 9 May 2006, which concluded that plaintiff was entitled to (1) \u201ctotal disability compensation at the [stipulated] rate of $111.96 per week from March 8, 2008 and continuing until plaintiff returns to work or until further order of the Commission,\u201d and (2) \u201cpayment of medical expenses incurred or to be incurred as a result of her compensable upper and lower back conditions as may reasonably be required to effect a cure, provide relief, or lessen the period of disability.\u201d (Emphasis added.) Defendant-employer and its third-party administrator Key Risk Management Services (collectively \u201cdefendants\u201d) appealed to the Full Commission on 11 May 2006. On 13 February 2007, the Full Commission entered an Opinion and Award affirming in part, and reversing in part, the deputy com-, missioner\u2019s decision. The Full Commission concluded that plaintiff was entitled to (1) \u201ctotal disability compensation at the [stipulated] rate of $111.96 per week from March 8, 2008, through April 14, 2003, the date she was released to return to full-duty work,\u201d and (2) \u201cpayment of medical expenses incurred or to be incurred [only] as a result of her low back condition as may reasonably be required to effect a cure, provide relief, or lessen the period of disability.\u201d (Emphasis added.) Plaintiff filed a Motion to Amend the Opinion and Award pursuant to Rule 59 of the North Carolina Rules of Civil Procedure, and a Motion to Reconsider the Opinion and Award pursuant to Workers\u2019 Compensation Rule 701, both dated 22 February 2007, on the grounds that \u201cthe evidence before the Commission [wa]s insufficient to justify its decision.\u201d On 9 March 2007, defendants filed Responses to Plaintiff\u2019s Motion to Amend and Motion to Reconsider. On 25 March 2008, the Full Commission denied plaintiff\u2019s motions, finding that \u201cplaintiff has not shown good grounds for the Full Commission to amend, reconsider, or make additional findings in this matter.\u201d Plaintiff appealed to this Court from the Commission\u2019s 13 February 2007 Opinion and Award and its 25 March 2008 order denying her motions.\nWe first address plaintiff\u2019s contention that the Commission erred by hearing defendants\u2019 appeal from the deputy commissioner\u2019s Opinion and Award. Plaintiff asserts that defendants failed to file a Form 44 pursuant to Workers\u2019 Compensation Rule 701(2), which defendants do not dispute. Although defendants properly filed a brief with the Commission after giving notice of their appeal, as also required by Rule 701(2), plaintiff argues that defendants\u2019 mere failure to file a Form 44 constitutes an abandonment of defendants\u2019 grounds for appeal to the Full Commission. We disagree.\nWorkers\u2019 Compensation Rule 701(2) of the North Carolina Industrial Commission provides that, after giving sufficient notice of appeal to the Full Commission, an appellant must complete a Form 44 Application for Review, which is supplied by the Commission, stating the grounds for its appeal \u201cwith particularity.\u201d Workers\u2019 Comp. R. of N.C. Indus. Comm\u2019n 701(2), 2009 Ann. R. (N.C.) 1006. The appellant must then file and serve the completed Form 44 and an accompanying brief within the specified time limitations \u201cunless the Industrial Commission, in its discretion, waives the use of the Form 44.\u201d See id.\nLike defendants in the present case, in Roberts v. Wal-Mart Stores, Inc., 173 N.C. App. 740, 619 S.E.2d 907 (2005), the plaintiff did not file a Form 44 after giving notice of her appeal to the Full Commission. See id. at 742, 619 S.E.2d at 909. However, unlike defendants in the present case, the Roberts plaintiff also failed to file a brief or \u201cany other document with the Full Commission setting forth grounds for appeal with particularity.\u201d See id. at 744, 619 S.E.2d at 910. While we recognized then, as we do now, that the Commission may waive the use of Form 44, we also recognized that Rule 701(2) \u201cspecifically requires that grounds for appeal be set forth with particularity.\u201d See id. (internal quotation marks omitted). Accordingly, in Roberts, we concluded that \u201cthe portion of Rule 701 requiring appellant to state with particularity the grounds for appeal may not be waived by the Full Commission . . . [because, w]ithout notice of the grounds for appeal, an appellee has no notice of what will be addressed by the Full Commission.\u201d Id. Thus, because the Roberts plaintiff failed to state her appeal with particularity, we held that the Commission committed reversible error by issuing an Opinion and Award based \u201csolely on the record.\u201d See id.\nHowever, unlike the appealing plaintiff in Roberts, defendants in the present case complied with Rule 701(2)\u2019s requirement to state the grounds for appeal with particularity by timely filing their brief after giving notice of their appeal to the Full Commission. Additionally, plaintiff does not argue that she did not have adequate notice of defendants\u2019 grounds for appeal. Plaintiff asserts only that defendants\u2019 failure to file a Form '44 should have been deemed an abandonment of defendants\u2019 appeal. Since both this Court and the plain language of the Industrial Commission\u2019s rules have recognized the Commission\u2019s discretion to waive the filing requirement of an appellant\u2019s Form 44 where the appealing party has stated its grounds for appeal with particularity in a brief or other document filed with the Full Commission, we overrule these assignments of error.\n\u201cThe Industrial Commission and the appellate courts have distinct responsibilities when reviewing workers\u2019 compensation claims.\u201d Billings v. General Parts, Inc., 187 N.C. App. 580, 584, 654 S.E.2d 254, 257 (2007) (citing Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 114, 530 S.E.2d 549, 552 (2000)), disc. review denied, 362 N.C. 175, 659 S.E.2d 435 (2008). The Industrial Commission is \u201c \u2018the fact finding body,\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999), and is \u201c \u2018the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Id. (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). \u201cThis being true, [the Commission] may accept or reject'the testimony of a witness, either in whole or in part, depending solely upon whether it believes or disbelieves the same.\u201d Anderson v. Northwestern Motor Co., 233 N.C. 372, 376, 64 S.E.2d 265, 268 (1951).\nThis Court, on the other hand, \u201c \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight.\u2019 \u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Anderson, 265 N.C. at 434, 144 S.E.2d at 274); see also Rewis v. New York Life Ins. Co., 226 N.C. 325, 330, 38 S.E.2d 97, 100 (1946) (\u201cThe courts are not at liberty to reweigh the evidence and to set aside the findings of the Commission, simply because other inferences could have been drawn and different conclusions might have been reached.\u201d).\nInstead, \u201cappellate courts must examine \u2018whether any competent evidence supports the Commission\u2019s findings of fact and whether [those] findings . . . support the Commission\u2019s conclusions of law.\u2019 \u201d McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (alteration and omission in original) (quoting Deese, 352 N.C. at 116, 530 S.E.2d at 553). If the findings of fact are supported by competent evidence, those findings are conclusive on appeal \u201c \u2018even though there be evidence that would support findings to the contrary.\u2019 \u201d See Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)). While we recognize that \u201c[t]he evidence tending to support plaintiff\u2019s claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence,\u201d id. (citing Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937)), this Court\u2019s \u201c \u2018duty goes no further than to determine whether the record contains any evidence tending to support the finding[s made by the Industrial Commission].\u2019 \u201d Id. (quoting Anderson, 265 N.C. at 434, 144 S.E.2d at 274).\nI.\nPlaintiff first contends there was no competent evidence to support the Commission\u2019s Findings of Fact 6, 15, 16, or 17, and contends these findings do not support its conclusion that plaintiff \u201cfailed to show that her cervical back condition[ \u2014 i.e., her neck problem \u2014 ] was proximately caused by the March 7, 2003 injury by accident.\u201d Plaintiff argues that the Commission erroneously \u201cdisregarded\u201d the stipulated medical records, plaintiff\u2019s own testimony, and the expert medical testimony. We disagree.\nA.\nIn its Finding of Fact 6, the Commission found that \u201c[p]laintiff continued to treat with Nash Urgent Care for lower back pain on March 12, 17 and 27, 2003[, but] . . . did not complain of or report any cervical or neck symptoms during these visits.\u201d It also found that, at her 2 April 2003 appointment, plaintiff \u201creported lower back pain, with pain radiating into her upper back and neck, and was referred for an orthopaedic evaluation.\u201d \u201cThis visit was the first that plaintiff reported any neck pain, and plaintiff did not report any neck pain to any of her medical providers until September 24, 2003, over six months after the March 7, 2003 injury by accident.\u201d\nPlaintiff asserts that the Commission erred in making this finding since the reason her low back pain was her \u201cchief complaint\u201d was not because she had no neck pain during those six months, but simply because she chose to \u201cconsistently focus[ only] on what hurt the most\u201d at each of her medical visits. Plaintiff also testified that, when she complained of \u201cback pain,\u201d she meant that her entire back was hurting, including her neck. However, since \u201c[t]he Commission is not required to accept the testimony of a witness, even if the testimony is uncontradicted,\u201d see Hassell v. Onslow County Bd. of Educ., 362 N.C. 299, 307, 661 S.E.2d 709, 715 (2008), and is \u201c \u2018the sole judge of the credibility of the witnesses and the weight to be given their testimony,\u2019 \u201d see Adams, 349 N.C. at 680, 509 S.E.2d at 413 (quoting Anderson, 265 N.C. at 433-34, 144 S.E.2d at 274), we cannot conclude that the Commission erred when it did not find plaintiff\u2019s testimony as fact.\nPlaintiff next asserts that the Commission erred in making this finding because plaintiff claims that she did complain of neck pain at medical visits prior to her 24 September 2003 visit with Dr. Wesonga. In support of this assertion, plaintiff directs this Court\u2019s attention to the stipulated medical records from 16 June 2003, where she states that she complained to Dr. McAvoy of her ongoing neck pain. However, the chart notation from 16 June reflects only that plaintiff complained of symptoms that the treating physician recorded as, simply, \u201ca catch in her neck.\u201d As further support that she regularly complained of neck pain prior to 24 September, plaintiff attempts to rely on a 9 May 2003 chart notation, which indicated that \u201c[s]he does have some mild increased pain with full forward flexion and hyper-extension.\u201d However, a careful reading of the 9 May chart note in its entirety shows that plaintiff presented at this visit only \u201cfor evaluation of her low back and left lower extremity pain,\u201d and that the excerpted phrase was made in relation to both plaintiff\u2019s neck and back.\nAfter a thorough review of the stipulated medical records, the only evidence that plaintiff complained of neck pain prior to 24 September 2003 \u2014 other than the 2 April 2003 visit, recognized but dismissed by the Commission as an \u201cisolated instance of neck pain\u201d in this challenged finding of fact \u2014 is the 16 June reference to her complaint of \u201ca catch in her neck.\u201d Instead, our review found that the references to plaintiff\u2019s neck in the medical records prior to 24 September \u2014 for example, on 30 April 2003, 3 May 2003, 5 May 2003, and 1 July 2003 \u2014 did not show any complaints from plaintiff regarding ongoing pain, but rather only reflected post-examination assessments by plaintiff\u2019s health care providers, who determined that her neck had \u201c[n]o muscle stiffness,\u201d and was \u201cnon-tender\u201d with painless range of movement, \u201csupple,\u201d and \u201c[s]oft, supple\u201d with \u201c[n]o lymphadenopathy.\u201d\nTherefore, we conclude that there was competent evidence to support the Commission\u2019s finding that plaintiff did not begin to make regular complaints of neck pain to her medical providers until 24 September 2003, \u201cover six months after the March 7, 2003 injury by accident,\u201d and that there was \u201cinsufficient evidence\u201d to support a finding that plaintiffs report of an \u201cisolated instance of neck pain\u201d on 2 April 2003 \u201cwas proximately related to her later treatment for .cervical disc herniation by Dr. Martinez.\u201d\nB.\n\u201cIn evaluating the causation issue, this Court can do no more than examine the record to determine whether any competent evidence exists to support the Commission\u2019s findings as to causation . . . .\u201d Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 598, 532 S.E.2d 207, 210 (2000) (omission in original) (internal quotation marks omitted). \u201c[W]hen conflicting evidence is presented, the Commission\u2019s finding of causal connection between the accident and the disability is conclusive [and binding on the reviewing court].\u201d Id. (first alteration in original) (internal quotation marks omitted).\nHowever, \u201c[i]n a case where the threshold question is the cause of a controversial medical condition, the maxim of \u2018post hoc, ergo propter hoc,\u2019 is not competent evidence of causation.\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 232, 538 S.E.2d 912, 916 (2000). \u201cThe maxim \u2018post hoc, ergo propter hoc,\u2019 denotes \u2018the fallacy of . . . confusing sequence with consequence,\u2019 and assumes a false connection between causation and temporal sequence.\u201d Id. (omission in original) (quoting Black\u2019s Law Dictionary 1186 (7th ed. 1999)). \u201cAs such, this Court has treated the maxim as inconclusive as to proximate cause.\u201d Id.\nIn its Findings of Fact 15, 16, and 17, the Commission found that Drs. Wesonga and Martinez believed there was a causal link between plaintiff\u2019s cervical condition and her 7 March 2003 work-related fall. However, it further found that Dr. Wesonga \u201cexpressly conceded that the sole basis for his causation opinion with respect to plaintiff\u2019s neck condition was the mere temporal proximity of her symptoms to the fall,\u201d and that Dr. Martinez \u201calso based his causation opinion on the temporal proximity of plaintiff\u2019s symptoms to the fall.\u201d As a result, it found that, \u201c[b]ased upon the greater weight of the competent medical evidence of record, . . . plaintiff failed to show that her cervical back condition [wa]s causally related to her accident at work on March 7, 2003.\u201d\nOur review of the record reveals that Dr. Wesonga initially testified that it was his opinion within a reasonable degree of medical certainty that plaintiffs neck problem was related to her fall on 7 March 2003. He testified, \u201cIt\u2019s not unusual for folks to be involved in an injury and not have any symptoms in one part of the body, and then later on develop symptoms down the road,\u201d and that \u201cyou could make a very reasonable assumption that, you know, if somebody\u2019s injured they may be focused in on one part of their body and not pay attention to the rest of their body.\u201d However, Dr. Wesonga also testified that, if plaintiff had not developed any cervical symptoms until six months after her fall, he could not say to any reasonable degree of medical certainty that plaintiff\u2019s fall \u201cmore than likely caused her cervical problem.\u201d He further testified:\nQ. And you can\u2019t say with any degree of medical certainty that her fall at work on March 7th, 2003 calls for [sic] a cervical condition?\nA. Yes, you can. Yes, you can. I mean, she again from the fact that she never had a problem before and now she has a problem cause and effect look as though it\u2019s an issue of a time \u2014 time frame, you know.\nQ. Okay. So your opinion is based simply on the fact that she didn\u2019t have these problems before and that sometime afterward, even if it\u2019s six months afterwards she developed these problems. That\u2019s the basis for your opinion?\nA. Exactly.\nSimilarly, Dr. Martinez initially testified that it was his opinion within a reasonable degree of medical certainty that plaintiff\u2019s neck problem was caused by her work-related fall. However, he later testified that, \u201c[i]f it is true\u201d that plaintiff did not have any cervical symptoms until six months after her fall, it \u201cwould be correct\u201d that he could not state that her condition was related to that fall within a reasonable degree of medical certainty.\nSince we have already concluded that there was competent evidence to support the Commission\u2019s finding that plaintiff did not report having ongoing neck pain during the six months following her work-related fall, we must also conclude that there was competent evidence to support the Commission\u2019s determination that the testimony of Drs. Wesonga and Martinez could not support a finding, within a reasonable degree of medical certainty, that plaintiff\u2019s cervical back condition was causally related to her work-related fall. Therefore, we hold that the Commission correctly determined that plaintiff \u201cfailed to'show\u201d that her cervical back condition was proximately caused by her work-related fall. Accordingly, these assignments of error are overruled.\nII.\nPlaintiff next contends the Commission erred by concluding as a matter of law that she \u201cfailed to show\u201d that she was entitled to compensation for medical expenses incurred as a result of her cervical back condition.\n\u201cFor an injury to be compensable under the terms of the Workmen\u2019s Compensation Act, it must be proximately caused by an accident arising out of and suffered in the course of employment.\u201d Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Therefore, our decision to affirm the Commission\u2019s conclusion that plaintiff failed to show that her cervical back condition was proximately caused by her 7 March 2003 work-related fall renders it unnecessary to address this assignment of error.\nIII.\nFinally, plaintiff contends the Commission erred when it concluded that she was entitled to disability compensation only through 14 April 2003, which was the date she was \u201creleased to return to full-duty work.\u201d Plaintiff argues that she presented sufficient evidence to satisfy her burden of proving her continuing disability under Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), and claims that she is entitled to continuing temporary total disability compensation.\n\u201c \u2018Disability,\u2019 within the North Carolina Workers\u2019 Compensation Act, means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 493 (2005) (internal quotation marks omitted); see also Cross v. Falk Integrated Tech., Inc., 190 N.C. App. 274, 278-79, 661 S.E.2d 249, 255 (2008) (\u201c \u2018Disability\u2019 is defined by a diminished capacity to earn wages, not by physical impairment.\u201d). \u201cIn order to obtain compensation under the Workers\u2019 Compensation Act, the claimant has the burden of proving the existence of h[er] disability and its extent.\u201d Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). To prove her disability, the claimant has the burden of proving that, after her work-related injury, she was incapable of earning the same wages she had earned before her injury in either the same or any other employment, and that her incapacity to earn was caused by her compensable injury. See Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). Unless the claimant is entitled to a presumption of disability in her favor based on one of three limited circumstances, see Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 706, 599 S.E.2d 508, 512 (2004), the claimant may meet the burden of proving her disability in one of four ways:\n(1) the production of medical evidence that [s]he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment,\n(2) the production of evidence that [s]he is capable of some work, but that [s]he has, after a reasonable effort on [her] part, been unsuccessful in [her] effort to obtain employment,\n(3) the production of evidence that [s]he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment, or\n(4) the production of evidence that [s]he has obtained other employment at a wage less than that earned prior to the injury.\nRussell, 108 N.C. App. at 765, 425 S.E.2d at 457 (citations omitted). It is only after the claimant has met this initial burden of proving her disability that the burden will then shift to a defendant who claims that the claimant-employee is capable of earning wages. See Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 32-33, 398 S.E.2d 677, 682 (1990). If a defendant makes such a claim, then that defendant \u201cmust come forward with evidence to show not only that suitable jobs are available, but also that the [claimant-employee] is capable of getting one, taking into account both physical and vocational limitations.\u201d See id. at 33, 398 S.E.2d 682.\nIn the present case, \u201c[s]ince there was neither a previous award of continuing disability nor a Form 21 or Form 26 agreement, plaintiff could not rely upon a presumption of disability and was required to meet [her] burden of proof under Russell.\u201d See Ramsey v. Southern Indus. Constructors Inc., 178 N.C. App. 25, 42, 630 S.E.2d 681, 692, disc. review denied, 361 N.C. 168, 639 S.E.2d 652 (2006). Plaintiff appears to contend that she has satisfied her burden to establish her disability under either of Russell\u2019s first or second methods of proof. We disagree.\nIn support of her contention that she was still \u201cincapable of work in any employment\u201d after 14 April 2003, see Russell, 108 N.C. App. at 765, 425 S.E.2d at 457, plaintiff directs this Court\u2019s attention to two medical excuse notes signed by Dr. Wesonga and one note signed by Dr. Wesonga\u2019s physician\u2019s assistant, which state that plaintiff was unable to work on 30 April, 1 May, 2 May, 5 May, and 1 July 2003 due to her \u201ccurrent medical problems\u201d and \u201clow back pain injury.\u201d Plaintiff also refers to Dr. Wesonga\u2019s testimony in which he stated that, as of the date of his deposition on 12 May 2005, he had still not returned plaintiff to work.\nHowever, a further review of Dr. Wesonga\u2019s testimony shows that, aside from plaintiff\u2019s complaints of some pain, Dr. Wesonga could not cite any objective medical reason to keep plaintiff from returning to work with respect to her compensable back injury:\nQ. And would it be fair to say that when you were examining [plaintiff] from the April 24, 2003 \u2014 December 24, 2003 \u2014 that was respect [sic] to her back, her physical examinations were objectively normal?\nA. Yes.\nQ. So basically the only thing you had to go on were [plaintiff\u2019s] subjective complaints with respect to her back?\nA. Yes.\nQ. You couldn\u2019t \u2014 you couldn\u2019t corroborate or verify her subjective complaints with any objective findings?\nA. Correct.\nQ. So when you were \u2014 when you did take [plaintiff] out of work during that period of time that was based completely on her subjective complaints?\nA. Yes.\nQ. There were no objective findings to keep her out of work; is that correct?\nA. Correct.\nThis testimony is consistent with the Commission\u2019s unchallenged finding that, at her 14 April 2003 visit with Dr. McAvoy at the Rocky Mount Orthopaedics & Sports Medicine Center, \u201cDr. McAvoy diagnosed plaintiff with low back pain with no signs of nerve deficits or nerve irritation, recommended a home exercise program, and released plaintiff to return to regular duty work without restrictions.\u201d As plaintiff offered no other medical evidence in support of her assertion that she was \u201cincapable of work in any employment\u201d after 14 April 2003 as a result of her work-related injury, we conclude that plaintiff failed to meet her burden of proving her disability under the first method in Russell.\nPlaintiff seems to alternatively argue that she has proven her continuing disability under the Russell second method of proof, see Russell, 108 N.C. App. at 765, 425 S.E.2d at 457, offering testimony that she was capable of some work but that, in the month that followed her injury, on the several occasions she sought light duty work with her employer, she was told there was none available. However, plaintiff offered no other evidence to prove that she made a \u201creasonable\u201d effort to obtain employment. As the record contains no indication that plaintiff made any other attempts to obtain employment, we cannot conclude that she proved her disability under the second prong of Russell. Cf. Perkins v. U.S. Airways, 177 N.C. App. 205, 214, 628 S.E.2d 402, 408 (2006) (\u201cMs. Perkins alternatively argues that because she contacted U.S. Airways about a light duty position and they did not offer her one, the Commission erred by not concluding she was disabled under the second option [of Russell] .... Ms. Perkins cites to no authority \u2014 and we know of none \u2014 that would have required U.S. Airways to offer Ms. Perkins such a position. The record contains no indication that Ms. Perkins made any other attempts to obtain employment. The Commission was free to decide, as it did, that Ms. Perkins\u2019 single contact with U.S. Airways was insufficient to establish she had made a reasonable effort to obtain employment under the second Russell option.\u201d), disc. review denied, 361 N.C. 356, 644 S.E.2d 231 (2007).\nTherefore, we conclude that plaintiff has failed to prove that she was disabled after Dr. McAvoy released her to full-duty work on 14 April 2003. Accordingly, we hold that the Commission correctly concluded that plaintiff was entitled to disability compensation only until 14 April 2003, and affirm the Commission\u2019s Opinion and Award and its order denying plaintiff\u2019s motions to amend and reconsider its Opinion and Award.\nAffirmed.\nJudges WYNN and STEPHENS concur.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Morrison Law Firm, P.L.L.C., by B. Perry Morrison, Jr., Thomas & Farris, PA., by Albert S. Thomas, Jr., and Rose, Rand Attorneys, by Paul N. Blake, III, for plaintiff-appellant.", "Cranfill, Sumner & Hartzog LLP, by J. Gregory Newton, and Meredith Taylor Berard, for defendants-appellees." ], "corrections": "", "head_matter": "GLORIA COOPER, Employee, Plaintiff v. BHT ENTERPRISES, Employer, Self-Insured, and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants\nNo. COA08-711\n(Filed 17 February 2009)\n1. Workers\u2019 Compensation\u2014 appeal from deputy commissioner \u2014 Form 44 not filed \u2014 discretion to waive\nThe Industrial Commission in a workers\u2019 compensation case did not err by hearing an appeal from a deputy commissioner where defendants did not file a Form 44. Both a Court of Appeals opinion and the plain language of the Industrial Commission\u2019s rules have recognized the Commission\u2019s discretion to waive the required Form 44 filing where the appealing party has stated its grounds for appeal with particularity in a brief or other document filed with the Commission.\n2. Workers\u2019 Compensation\u2014 back injury \u2014 subsequent neck condition \u2014 timing of complaints to medical providers\u2014 finding\nThere was competent evidence in a workers\u2019 compensation case to support the Industrial Commission\u2019s finding that plaintiff did not begin to make regular complaints of neck pain to her medical providers until more than six months after the injury, and that there was insufficient evidence to support a finding that a report of isolated neck pain was proximately related to her later treatment for a cervical disc herniation.\n3. Workers\u2019 Compensation\u2014 back injury \u2014 subsequent cervical condition \u2014 causation\u2014medical testimony \u2014 post hoc, ergo propter hoc\nThere was competent evidence in a workers\u2019 compensation case arising from a back injury and a later cervical condition to support the Industrial Commission\u2019s determination that the testimony of two doctors could not support a finding that the neck condition was causally related to the work-related fall. Where the question is the cause of a controversial medical condition, the confusion of sequence with consequence (post hoc, ergo propter hoc) is not competent evidence of causation.\n4. Workers\u2019 Compensation\u2014 disability \u2014 only through date of release\nThe Industrial Commission did not err by concluding that a workers\u2019 compensation plaintiff was entitled to disability compensation only through the date she was released to return to full duty work. There was no presumption of disability in this case, the doctor who issued medical excuse notes could not cite any objective medical reason to keep plaintiff from returning to work with respect to her compensable back injury, and plaintiff offered only the absence of light duty work with her employer in the month after the injury to prove that she had made a \u201creasonable\u201d effort to obtain work.\nAppeal by plaintiff from Opinion and Award entered 13 February 2007 and order entered 25 March 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 1 December 2008.\nMorrison Law Firm, P.L.L.C., by B. Perry Morrison, Jr., Thomas & Farris, PA., by Albert S. Thomas, Jr., and Rose, Rand Attorneys, by Paul N. Blake, III, for plaintiff-appellant.\nCranfill, Sumner & Hartzog LLP, by J. Gregory Newton, and Meredith Taylor Berard, for defendants-appellees." }, "file_name": "0363-01", "first_page_order": 395, "last_page_order": 409 }