{ "id": 4362041, "name": "TIMOTHY ROSE, Employee, Plaintiff v. N.C. DEPARTMENT OF CORRECTION, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent), Defendant", "name_abbreviation": "Rose v. N.C. Department of Correction", "decision_date": "2012-03-06", "docket_number": "No. COA11-780", "first_page": "380", "last_page": "385", "citations": [ { "type": "official", "cite": "219 N.C. App. 380" } ], "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": "636 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637060 ], "weight": 11, "year": 2006, "pin_cites": [ { "page": "558" }, { "page": "558", "parenthetical": "emphasis added" }, { "page": "558" }, { "page": "618" }, { "page": "559" }, { "page": "619" }, { "page": "559" }, { "page": "558" }, { "page": "618" }, { "page": "558", "parenthetical": "citation omitted and emphasis added" }, { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0553-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "753" }, { "parenthetical": "citation and quotation marks omitted" }, { "page": "754" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "year": 2003, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "692 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "362 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "824" }, { "parenthetical": "emphasis added" }, { "page": "825" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358100 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "273" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0271-01" ] }, { "cite": "335 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "53" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523384 ], "year": 1985, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0450-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(6)" }, { "page": "(6)", "parenthetical": "emphasis added" }, { "page": "(6)" }, { "page": "617" } ], "opinion_index": 0 }, { "cite": "360 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787177 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "618" }, { "page": "618" }, { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0609-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] } ], "analysis": { "cardinality": 564, "char_count": 11386, "ocr_confidence": 0.746, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3471768045164023 }, "sha256": "3c5003ac6b54dd3986d0e5755990a7e5352d91fed6fb34c0de673255939d2649", "simhash": "1:a1a4e6625e970053", "word_count": 1848 }, "last_updated": "2023-07-14T22:16:59.313771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and HUNTER, Jr., concur." ], "parties": [ "TIMOTHY ROSE, Employee, Plaintiff v. N.C. DEPARTMENT OF CORRECTION, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent), Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nThe North Carolina Department of Correction (the \u201cDOC\u201d) appeals from the 25 February 2011 opinion and award of the Full Commission of the North Carolina Industrial Commission. In that opinion and award, the Full Commission affirmed an award by the Deputy Commissioner of temporary total disability compensation to Timothy Rose (\u201cplaintiff\u2019). The DOC alleges that plaintiff failed to establish a causal connection between a compensable injury and the back pain for which he seeks compensation. Consequently, the DOC alleges the Full Commission erred in affirming the Award and Opinion of the Deputy Commissioner because: (1) the Full Commission\u2019s findings of fact are not supported by competent evidence, and (2) the Full Commission\u2019s conclusions of law are contrary to North Carolina caselaw. After careful review, we affirm the opinion and award of the Industrial Commission.\nBackground\nPlaintiff began working for the DOC in 2007 and was employed as a correctional officer at the time he sustained an injury at work on 3 February 2008. On that date, plaintiff fell forward while walking up the stairs and struck his right knee on one of the stairs. That same day, plaintiff filed an Employee Initial Report of Injury reporting an injury to his right knee. The night of his fall, plaintiff was treated for pain in his right knee. Plaintiff later testified that upon striking his knee he felt an immediate sensation of pain \u201cthat went from [his] butt cheek down\u2014all the way down to [his] foot.\u201d\nPlaintiff received treatment at the local hospital over the next month and began seeking treatment from Dr. George Miller, a board certified orthopedic surgeon, in March 2008. On 27 March 2008, plaintiff reported pain in his right foot, left leg, and back pain. An MRI scan showed plaintiff had a disc protrusion that was pressing on the right L5 nerve in his spine. Dr. Miller referred plaintiff to Dr. Kurt Voos (\u201cDr. Voos\u201d), also a board certified orthopedic surgeon.\nDr. Voos performed back surgery on plaintiff on 5 June 2008. However, plaintiff continued to have lower back and leg pain and has required continued narcotic medication. Dr. Voos determined plaintiff had reached maximum medical improvement with 10% permanent partial disability for his back.\nOn 29 April 2008, plaintiff\u2019s employer denied compensation for plaintiff\u2019s lower back condition. Plaintiff\u2019s workers\u2019 compensation claim was heard on 9 March 2009. Deputy Commissioner Ledford filed an opinion and award on 29 July 2010 concluding plaintiff was entitled to benefits for injuries to his lower back and his right knee. The DOC appealed to the Full Commission, which, on 25 February 2011, affirmed the Deputy Commissioner\u2019s decision finding, inter alia, that: plaintiff\u2019s 3 February 2008 accident\nwas a significant contributing or causative factor in plaintiff\u2019s development of a disc bulge at L4-L5-The Full Commission finds by the greater weight of the medical evidence, that plaintiff\u2019s back pain did not develop immediately at the time of the fall and that fact does not negate the casual connection to the accident.\nPlaintiff was awarded temporary total disability of $355.52 per week from 27 March 2008 until further order of the Industrial Commission as well as medical expenses resulting from the injuries. The DOC appeals from the decision of the Full Commission.\nOur review of an opinion and award of the Industrial Commission \u201cis limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law. This \u2018[C]ourt\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (internal citation omitted) (quoting Anderson v. Lincoln Const. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).\nDiscussion\nThe thrust of the DOC\u2019s first argument is that a back injury is not a compensable injury if the symptoms of the injury developed gradually over a period of time. We disagree.\nIn support of its argument, the DOC relies on Chambers v. Transit Mgmt., 360 N.C. 609, 618, 636 S.E.2d 553, 558 (2006). In Chambers, the North Carolina Supreme Court concluded the evidence in that case was insufficient to establish the plaintiff suffered a \u201cspecific traumatic incident\u201d as required by N.C. Gen. Stat. \u00a7 97-2(6). Section 97-2(6) defines an \u201cinjury\u201d under the Workers\u2019 Compensation Act, in pertinent part:\nWith respect to back injuries, however, where injury to the back arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned, \u201cinjury by accident\u201d shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident.\nN.C. Gen. Stat. \u00a7 97-2(6) (2009) (emphasis added). The Chambers Court noted prior caselaw established that a \u201cspecific traumatic incident\u201d under section 97-2(6) \u201cmeans the \u2018injury must not have developed gradually but must have occurred at a cognizable time.\u2019 \u201d Chambers, 360 N.C. at 618, 636 S.E.2d at 558 (emphasis added) (quoting Bradley v. E.B. Sportswear, Inc., 77 N.C. App. 450, 452, 335 S.E.2d 52, 53 (1985)).\nIn light of Chambers, the DOC argues plaintiffs back condition is not compensable because plaintiffs evidence establishes he did not report back pain until approximately six weeks after his fall. The DOC\u2019s argument, however, incorrectly applies our Supreme Court\u2019s reasoning in Chambers.\nThe distinguishing factor of Chambers is that the plaintiff was seeking compensation for an injury that was the result of \u201c \u2018no particular inciting event.\u2019 \u201d Id. at 617, 636 S.E.2d at 558. The plaintiff \u201cpresented no evidence linking [his] pain to the occurrence of an injury.\u201d Id. at 618, 636 S.E.2d at 559. Thus, the Chambers Court concluded the plaintiff failed to establish the injury was \u201c \u2018the direct result of a specific traumatic incident\u2019 and \u2018causally related to such incident.\u2019 \u201d Id. at 619, 636 S.E.2d at 559 (quoting N.C. Gen. Stat. \u00a7 97-2(6) (2005)).\nThe DOC appears to base its reliance on Chambers on the fact that the plaintiff in that case described a \u201c \u2018gradual onset\u2019 \u201d of pain. Id. at 617, 636 S.E.2d at 558. The Chambers Court recognized, however, that a compensable \u201c \u2018injury must not have developed gradually.\u2019 \u201d Id. at 618, 636 S.E.2d at 558 (citation omitted and emphasis added). The Court did not conclude that the gradual onset of pain would be determinative of the compensability of a claim, noting that pain \u201cas a general rule, [is] the result of a \u2018specific traumatic incident.\u2019 \u201d Chambers, 360 N.C. at 619, 636 S.E.2d at 559 (quoting Roach v. Lupoli Constr. Co., 88 N.C. App. 271, 273, 362 S.E.2d 823, 824 (1987)). Rather, the Chambers Court concluded that the gradual onset of the plaintiff\u2019s pain \u201cwithout more, does not establish evidence of a specific traumatic incident.\u201d Id. (emphasis added).\nHere, it is undisputed that plaintiff fell and suffered an injury to his knee while at work. Chambers, therefore, does not, as a matter of law, require the conclusion that plaintiff failed to establish a \u201cspecific traumatic incident\u201d as the DOC contends. As this Court stated in Roach:\nJust because [the plaintiff] felt pain for the first time hours after the time he alleges he injured himself, does not mean that the \u201cspecific traumatic incident\u201d could not have occurred when he says it did. Logic dictates that injury and pain do not have to occur simultaneously for [the plaintiff] to establish that he sustained a compensable injury ....\n88 N.C. App. at 273, 362 S.E.2d at 825. The DOC\u2019s argument is overruled.\nThe remaining issue raised by the DOC is whether the record contains competent evidence to support the Full Commission\u2019s finding that plaintiff\u2019s 3 February 2008 fall was a \u201ccontributing or causative factor\u201d in plaintiff\u2019s back injury. We conclude it does.\nIt is the plaintiff that bears the burden of establishing a causal connection between his injury and an accident arising out of and suffered in the course of employment. Gray v. RDU Airport Auth., _ N.C. App. _, _, 692 S.E.2d 170, 174 (2010). The DOC argues plaintiff has failed to meet his burden because the testimony of his medical expert as to the cause of plaintiff\u2019s injury was no more than a guess or mere speculation.\nIn cases of \u201ccomplicated 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 v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003). The evidence upon which a medical expert bases his or her opinion as to causation \u201cmust be such as to take the case out of the realm of conjecture and remote possibility.\u201d Id. (citation and quotation marks omitted). The entirety of the evidence must establish a \u201creasonable degree of medical certainty\u201d as to causation. Id. at 234, 581 S.E.2d at 754.\nHere, plaintiff\u2019s medical expert, Dr. Voos, testified in his deposition as follows:\n[Counsel]: Well, more likely than not to a reasonable degree of medical certainty, can you relate all of the problems that [plaintiff] had based on all the different scenarios that we\u2019ve talked about today back to the February 3 incident?\n[Dr. Voos]: I won\u2019t speak to the knee. I don\u2019t know if he ever had anything done with the knee pain per say but I would say for his back yes. (Emphasis added.)\nThus, the record establishes that plaintiff\u2019s medical expert concluded to a \u201creasonable degree of medial certainty\u201d that plaintiff\u2019s fall on 3 February 2008 was the cause of his lower back pain. The DOC\u2019s argument is overruled.\nIn summary, the record contains competent evidence to support the Full Commission\u2019s findings of fact and justifies its conclusions of law. The opinion and award of the Industrial Commission is affirmed.\nAffirmed.\nJudges GEER and HUNTER, Jr., concur.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Law Offices of James Scott Farrin, by Barry G. Jennings and Douglas Berger, for plaintiff-appellee.", "Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for defendant-appellant." ], "corrections": "", "head_matter": "TIMOTHY ROSE, Employee, Plaintiff v. N.C. DEPARTMENT OF CORRECTION, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Servicing Agent), Defendant\nNo. COA11-780\n(Filed 6 March 2012)\n1. Workers\u2019 Compensation\u2014back injury\u2014pain developing gradually\nThe Industrial Commission did not err in a workers\u2019 compensation case by affirming the award of the Deputy Commissioner for temporary total disability compensation for a back injury where the pain from the injury developed gradually over a period of time. It was undisputed that plaintiff- fell and suffered an injury while at work, and the injury and the pain did not have to be simultaneous.\n2. Workers\u2019 Compensation\u2014back injury\u2014fall as contributing factor\nThe record in a workers\u2019 compensation case contained sufficient evidence to support a finding that plaintiff\u2019s fall was a contributing or a causative factor to his injury. Plaintiff\u2019s medical expert concluded to a reasonable degree of medical certainty that plaintiff's fall was the cause of his lower back injury.\nAppeal by defendant from opinion and award entered 25 February 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 December 2011.\nLaw Offices of James Scott Farrin, by Barry G. Jennings and Douglas Berger, for plaintiff-appellee.\nAttorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for defendant-appellant." }, "file_name": "0380-01", "first_page_order": 390, "last_page_order": 395 }