{ "id": 12172491, "name": "NORLINDA PHILBECK, Employee, Plaintiff v. UNIVERSITY OF MICHIGAN, Employer, and STAR INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Philbeck v. University of Michigan", "decision_date": "2014-07-15", "docket_number": "No. COA13-911", "first_page": "124", "last_page": "135", "citations": [ { "type": "official", "cite": "235 N.C. App. 124" } ], "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": "668 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642251, 12642252, 12642253 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/668/0783-01", "/se2d/668/0783-02", "/se2d/668/0783-03" ] }, { "cite": "362 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12642105 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/667/0467-01" ] }, { "cite": "654 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640029 ], "year": 2007, "pin_cites": [ { "page": "265", "parenthetical": "\"Findings of fact that are not challenged on appeal are binding on this Court.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0263-01" ] }, { "cite": "648 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639160 ], "year": 2007, "pin_cites": [ { "page": "922", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0917-01" ] }, { "cite": "637 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637253 ], "year": 2006, "pin_cites": [ { "page": "301", "parenthetical": "\"This Court may not weigh the evidence or make determinations regarding the credibility of the witnesses.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0299-01" ] }, { "cite": "187 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375801 ], "year": 2007, "pin_cites": [ { "page": "706", "parenthetical": "\"Findings of fact that are not challenged on appeal are binding on this Court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0703-01" ] }, { "cite": "692 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "638", "parenthetical": "\"In addition to medical testimony, an employee's own testimony that he is in pain may be evidence of disability.\" (citation and quotation marks omitted)" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 660", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174983 ], "year": 2010, "pin_cites": [ { "page": "670", "parenthetical": "\"In addition to medical testimony, an employee's own testimony that he is in pain may be evidence of disability.\" (citation and quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0660-01" ] }, { "cite": "185 N.C. App. 677", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212228 ], "year": 2007, "pin_cites": [ { "page": "684", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0677-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "264 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "813", "parenthetical": "holding that workers' compensation claim was compensable where plaintiff could not recall why he fell and \"[t]he evidence, or lack thereof, on the cause of the fall is sufficient to sustain the finding that the cause of the fall was unknown\"" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549900 ], "year": 1980, "pin_cites": [ { "page": "232", "parenthetical": "holding that workers' compensation claim was compensable where plaintiff could not recall why he fell and \"[t]he evidence, or lack thereof, on the cause of the fall is sufficient to sustain the finding that the cause of the fall was unknown\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0228-01" ] }, { "cite": "563 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "305", "parenthetical": "explaining that Commission is sole judge of weight and credibility of evidence and, as such, may accord less weight to testimony of medical expert if it determines that expert's opinions are based on inaccurate account of circumstances surrounding injury" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081805 ], "year": 2002, "pin_cites": [ { "page": "514", "parenthetical": "explaining that Commission is sole judge of weight and credibility of evidence and, as such, may accord less weight to testimony of medical expert if it determines that expert's opinions are based on inaccurate account of circumstances surrounding injury" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0506-01" ] }, { "cite": "353 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "395", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740836 ], "year": 1987, "pin_cites": [ { "page": "172", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0167-01" ] }, { "cite": "743 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "51", "parenthetical": "\"Unchallenged findings of fact are presumed to be supported by competent evidence and are binding on appeal.\"" } ], "opinion_index": 0 }, { "cite": "180 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242879 ], "year": 2006, "pin_cites": [ { "page": "434", "parenthetical": "\"This Court may not weigh the evidence or make determinations regarding the credibility of the witnesses.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0432-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "552", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "115", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "269 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1980, "pin_cites": [ { "page": "672" }, { "page": "669" }, { "page": "668" }, { "page": "669" }, { "page": "672" }, { "page": "669" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 489", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551366 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "496" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0489-01" ] }, { "cite": "596 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "35", "parenthetical": "citation and quotation marks omitted" }, { "page": "35", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897276 ], "year": 2004, "pin_cites": [ { "page": "343", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0339-01" ] }, { "cite": "705 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "699 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "126", "parenthetical": "citation and quotation marks omitted" }, { "page": "127" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "206 N.C. App. 732", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4177654 ], "year": 2010, "pin_cites": [ { "page": "734", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/206/0732-01" ] }, { "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": "719 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "713 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "212 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4079142 ], "year": 2011, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/nc-app/212/0287-01" ] }, { "cite": "688 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "682 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 511", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169964 ], "year": 2009, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0511-01" ] }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "584" }, { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] } ], "analysis": { "cardinality": 995, "char_count": 25813, "ocr_confidence": 0.701, "pagerank": { "raw": 1.245255942803688e-07, "percentile": 0.608858277065574 }, "sha256": "0a9c4dd6161be0e5e51a04aed7c69c01650419c86124afffbe563967830cadc6", "simhash": "1:800d460eac55a6d6", "word_count": 4097 }, "last_updated": "2023-07-14T16:54:11.341648+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and STEPHENS concur." ], "parties": [ "NORLINDA PHILBECK, Employee, Plaintiff v. UNIVERSITY OF MICHIGAN, Employer, and STAR INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "DAVIS, Judge.\nUniversity of Michigan and Star Insurance Company (collectively \u201cDefendants\u201d) appeal from the Opinion and Award of the North Carolina Industrial Commission (\u201cthe Commission\u201d) awarding Norlinda Philbeck (\u201cPlaintiff\u201d) workers\u2019 compensation benefits. The primary issue before us is whether the Commission erred in concluding that Plaintiff\u2019s accident was due to an unexplained fall and, therefore, compensable. After careful review, we affirm the Commission\u2019s Opinion and Award.\nFactual Background\nPlaintiff is a 67-year-old woman who was employed at the time of her injury by the University of Michigan as a field interviewer in social sciences research. Plaintiff\u2019s job duties required her to travel from her home in North Carolina to various locations on the East Coast to interview potential participants for a research study. Plaintiff would travel to an assigned location and interview randomly selected individuals.\nOn 8 August 2011, Plaintiff was in Columbia, Maryland conducting interviews for the study. Plaintiff visited a small apartment complex and attempted to interview one of the residents. When she discovered that the resident was not eligible to participate in the study, Plaintiff began walking back to her vehicle. On the way to her vehicle, Plaintiff fell and fractured her left arm near her wrist. At the hearing before the deputy commissioner, Plaintiff testified: \u201cI don\u2019t know why I fell. ... I might have stumbled. I don\u2019t know what happened.... Seconds after I hit the ground I think that I -1 was kind of dazed. I think I might have been on the ground a few seconds and then I looked at my arm and I could see that it was knocked out of place. It was deformed.\u201d\nPlaintiff was transported to Laurel Regional Hospital for treatment, and medical personnel administered various tests in an effort to determine why she had fallen. Plaintiff testified that the emergency room staff \u201cdidn\u2019t know why [she] fell\u201d and \u201csaid there was no medical reason.\u201d Medical records from the emergency room indicated that Plaintiff had suffered a fall, was unable to explain what caused her to fall, and had experienced a loss of consciousness. Dr. Michael E. Carlos, one of her treating physicians at Laurel Regional Hospital, noted that \u201cvasovagal mechanism\u201d was the \u201cmost likely reason for the syncope [loss of consciousness]\u201d and that the injury to Plaintiff\u2019s arm was a \u201cleft radioulnar fracture.\u201d\nDr. Neveen Habashi (\u201cDr. Habashi\u201d), Plaintiff\u2019s primary care physician since 2006, reviewed Plaintiff\u2019s medical records from Laurel Regional Hospital and opined that Plaintiff\u2019s fall was caused by heat exhaustion. Dr. Habashi was not, however, able to state with a reasonable degree of medical certainty that heat exhaustion was the cause of Plaintiff\u2019s fall. Instead, Dr. Habashi noted that since Plaintiff had \u201cno underlying medical problems that would predispose her\u201d to falling and passing out, Plaintiff\u2019s fall was likely \u201cenvironmentally related.\u201d Dr. Habashi also acknowledged that at the time she concluded that Plaintiff\u2019s fall was probably heat related, she was not aware of the note on Plaintiff\u2019s intake records from the hospital stating that Plaintiff \u201cwas not overheating.\u201d\nWhen Plaintiff returned to North Carolina, she sought treatment for her left arm from Dr. Mark McGinnis (\u201cDr. McGinnis\u201d), an orthopedic surgeon. Dr. McGinnis surgically repaired the fracture on 15 August 2011 using a dorsal plate and seven surgical screws. Plaintiff subsequently had numerous follow-up visits with Dr. McGinnis. Dr. McGinnis took Plaintiff out of work until 6 September 2011, at which time he released her to work with a one-pound lifting restriction for her left arm. On 18 October 2011, Dr. McGinnis placed Plaintiff on a left arm lifting restriction of no more than 20 pounds. On 12 December 2011, Dr. McGinnis concluded that Plaintiff had reached maximum medical improvement and released Plaintiff to work without restrictions.\nPlaintiff filed a Form 18 seeking workers\u2019 compensation benefits in connection with her 8 August 2011 fall, and on 15 November 2011, Defendants denied Plaintiff\u2019s claim on the basis that the \u201calleged injuries were a result of [an] idiopathic condition.\u201d The matter was heard by Deputy Commissioner Phillip A. Holmes on 22 May 2012. Deputy Commissioner Holmes filed an opinion and award on 22 October 2012 concluding that Plaintiff\u2019s injury was \u201cdue to factors that were not job related\u201d and denying her claim for workers\u2019 compensation benefits.\nPlaintiff appealed, and the Full Commission heard the matter on 1 March 2013. In its Opinion and Award filed on 25 April 2013, the Commission, with one commissioner dissenting, reversed the deputy commissioner and awarded Plaintiff temporary total disability benefits. Defendants appealed to this Court.\nAnalysis\nI. Compensability of Plaintiffs Injury\nOur review of an opinion and award of the Industrial Commission is \u201climited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law.\u201d Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008). When reviewing the Commission\u2019s findings of fact, this Court\u2019s \u201cduty goes no further than to determine whether the record contains any evidence tending to support the finding[s].\u201d Id. (citation and quotation marks omitted).\nThe findings of fact made by the Commission are conclusive on appeal if supported by competent evidence even if there is also evidence that would support a contrary finding. Nale v. Ethan Allen, 199 N.C. App. 511, 514, 682 S.E.2d 231, 234, disc. review denied, 363 N.C. 745, 688 S.E.2d 454 (2009). The Commission\u2019s conclusions of law, however, are reviewed de novo. Gregory v. W.A. Brown & Sons, 212 N.C. App. 287, 295, 713 S.E.2d 68, 74, disc. review denied, _ N.C. _, 719 S.E.2d 26 (2011). Evidence supporting the plaintiff\u2019s claim is to be viewed in the light most favorable to the plaintiff, and the plaintiff is entitled to the benefit of any reasonable inferences that may be drawn from the evidence. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).\nUnder the Workers\u2019 Compensation Act, an injury is compensable if the claimant proves three elements: \u201c(1) that the injury was caused by an accident; (2) that the injury was sustained in the course of the employment; and (3) that the injury arose out of the employment.\u201d Hedges v. Wake Cty. Pub. Sch. Sys., 206 N.C. App. 732, 734, 699 S.E.2d 124, 126 (2010) (citation and quotation marks omitted), disc. review denied, _ N.C. _, 705 S.E.2d 746 (2011). Here, Defendants acknowledge that Plaintiffs injury was (1) caused by an accident; and (2) sustained in the course of her employment. However, the Commission erred in awarding compensation, they argue, because the injury did not arise out of Plaintiff\u2019s employment. Specifically, they contend that Plaintiff fell because she fainted and, as such, her injury could not be deemed com-pensable under the doctrine of \u201cunexplained falls.\u201d\nIn a workers\u2019 compensation case, if the cause or origin of a fall is unknown or undisclosed by the evidence, \u201cwe apply case law unique to unexplained fall cases. When a fall is unexplained, and the Commission has made no finding that any force or condition independent of the employment caused the fall, then an inference arises that the fall arose out of the employment.\u201d Id. at 736, 699 S.E.2d at 127. This inference is permitted because when the cause of the fall is unexplained such that \u201c[t]here is no finding that any force or condition independent of the employment caused or contributed to the accidentf,]... the only active force involved [is] the employee\u2019s exertions in the performance of his duties.\u201d Id. (citation omitted).\nUnexplained falls, however, are differentiated in our case law from falls associated with an idiopathic condition of the employee. \u201cAn idiopathic condition is one arising spontaneously from the mental or physical condition of the particular employee.\u201d Hodges v. Equity Grp., 164 N.C. App. 339, 343, 596 S.E.2d 31, 35 (2004) (citation and quotation marks omitted). Unlike a fall with an unknown cause \u2014 where \u201can inference that the fall had its origin in the employment is permitted\u201d \u2014 a fall connected to an idiopathic condition is not presumed to arise out of the employment. Id. at 344, 596 S.E.2d at 35 (citation and quotation marks omitted). Instead, the compensability of an injury caused by a fall associated with an idiopathic condition is determined as follows:\n(1) Where the injury is clearly attributable to an idiopathic condition of the employee, with no other factors intervening or operating to cause or contribute to the injury, no award should be made; (2) Where the injury is associated with any risk attributable to the employment, compensation should be allowed, even though the employee may have suffered from an idiopathic condition which precipitated or contributed to the injury.\nHollar v. Montclair Furniture Co., 48 N.C. App. 489, 496, 269 S.E.2d 667, 672 (1980).\nDefendants argue that Plaintiff\u2019s injury was not compensable because her fall (1) was a result of an idiopathic condition; and (2) was not associated with any risk attributable to her employment. In making this argument, Defendants rely primarily on Hollar. In Hollar, the plaintiff was working in an \u201cextremely hot\u201d and poorly ventilated work environment when she \u201csuddenly, for an unexplained reason, felt as if she were passing out.\u201d Id. at 490, 269 S.E.2d at 669. The plaintiff fainted, fell to the floor, and struck her back. The Commission concluded that the plaintiff\u2019s injury was not compensable, and she appealed to this Court. Id. at 489, 269 S.E.2d at 668.\nOn appeal, we first noted that the plaintiff\u2019s fall \u201cd[id] not come within the \u2018unexplained\u2019 category of falls\u201d because \u201cit [was] clear that [the] plaintiff fell because she fainted.\u201d Id. at 491, 269 S.E.2d at 669. Consequently, we determined that the compensability of the plaintiff\u2019s claim turned on why she fainted \u2014 specifically, \u201cwhether [her] fainting was caused in any part by the conditions or circumstances of her employment.\u201d Id. at 497, 269 S.E.2d at 672. Because the record was devoid of any medical evidence as to why the plaintiff fainted, we remanded the matter to the Commission so that it could determine if the plaintiff\u2019s fainting was caused solely by an idiopathic condition or if it was in some way associated with the conditions of her employment. Id.\nDefendants contend that this Court\u2019s decision in Hollar is controlling in the present case. As such, they argue that the Commission erred in applying the law of unexplained falls to Plaintiff\u2019s claim. We disagree.\nHere, in determining that Plaintiff\u2019s injury arose from her employment and was therefore compensable, the Commission made the following pertinent findings of fact:\n4. The fall on August 8, 2011, occurred while Plaintiff was walking in a parking lot after the conclusion of an attempted interview at an apartment complex. Plaintiff had been out of her car for approximately 10 to 15 minutes when she fell. Plaintiff does not recall what, if anything, caused her to fall. She did not recall any broken pavement or objects that caused her fall.\n5. Immediately after the fall, Plaintiff was taken by an ambulance and admitted to Laurel Regional Hospital, whereupon she informed her medical providers that \u201cshe was not overheated\u201d prior to the fall. She was unable to tell the Emergency Room staff why she fell. The ambulance crew that transported Plaintiff interviewed an unnamed witness at the scene of the fall, who reported that she did not see any obvious reason to cause Plaintiffs fall.\n6. While admitted to Laurel Regional Hospital, Dr. Michael E. Carlos, treated Plaintiff and noted that \u201cvasovagal mechanism\u201d was the \u201cmost likely reason for the syncope\u201d and that dehydration \u201cpredisposed her to vasovagal syncope.\u201d\n8. On August 19, 2011, Plaintiff treated with her primary care physician, Dr. Naveen Habashi. Dr. Habashi opined that Plaintiff fainted and fell due to exposure to environmental elements, such as overheating. Dr. Habashi also opined that the facts related to Plaintiffs food and fluid intake prior to the fall were \u201cconsistent with a person potentially suffering from a dehydration condition,\u201d and that dehydration contributed to Plaintiffs fainting. However, Dr. Habashi was not able to testify to a reasonable degree of medical certainty that heat exhaustion, dehydration, or any other medical condition caused Plaintiffs fall. The Full Commission finds Dr. Habashi\u2019s testimony to be speculative with regard to the cause of Plaintiffs fall and assigns little weight to the opinions of Dr. Habashi. Dr. Habashi testified that the diagnosis made by Dr. Carlos of \u201cvasovagal mechanism\u201d is a non-specific diagnosis and by itself, it does not explain why Plaintiff fell.\n12. Plaintiff at various times has speculated that she may have fallen due to being overheated, dehydrated, or stressed, but Plaintiff consistently reported and testified that she actually does not know what caused her to fall. Based upon the preponderance of the credible evidence of record, the Full Commission finds that there is insufficient evidence that Plaintiff was overheated due to her work environment, and there is insufficient evidence that Plaintiff fainted and fell due to heat exhaustion.\n13. Plaintiff recalled the sight of almost hitting the ground and seeing her deformed wrist immediately after the fall while lying on the ground. Plaintiff testified that she may have been dehydrated on August 8, 2011, because she did not eat or drink any fluids between breakfast at 8:00 a.m. and the fall which occurred at 2:30 p.m., but there is insufficient medical evidence to support a finding that she fell due to dehydration.\n14. The Full Commission finds that Plaintiff\u2019s fall was due to factors that were not disclosed by the evidence, and that her fall was unexplained. There was no competent medical opinion evidence presented to establish a medical or idiopathic reason for her fall.\nBased on these findings, the Commission concluded as a matter of law that \u201cPlaintiffs unexplained fall on August 8, 2011, constitute [d] a com-pensable injury by accident.\u201d\nContrary to Defendants\u2019 contention, Hollar is distinguishable from the present case. In Hollar, the fact that it was the plaintiffs fainting episode that caused her to fall and sustain an injury was uncontroverted. Hollar, 48 N.C. App. at 491, 269 S.E.2d at 669. Here, conversely, the Commission found that the medical evidence did not sufficiently establish the cause of Plaintiff\u2019s fall. Furthermore, the Commission declined to make a finding that Plaintiff did, in fact, faint. We believe that based on the conflicting evidence in the record, the absence of such a finding was permissible.\nPlaintiff stated on several occasions that she does not know why she fell. While at various times she speculated that she could have been overheated, dehydrated, or stressed at the time she fell, she provided no consistent explanation of the reason for her fall. The medical evidence suggests that Plaintiff suffered a loss of consciousness at some point but fails to provide clarity as to whether Plaintiff fell because she fainted. The Commission determined that the testimony offered by Dr. Habashi regarding the possible cause of Plaintiff\u2019s fall was speculative and assigned that testimony little weight. The Commission therefore concluded that there was insufficient credible evidence that Plaintiff fell due to heat exhaustion or dehydration.\nIt is well established that the Commission \u201cis the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000) (citation and quotation marks omitted). As such, its determinations regarding the credibility of witnesses or the weight certain evidence is to be accorded are not reviewable on appeal. See Seay v. Wal-Mart Stores, Inc., 180 N.C. App. 432, 434, 637 S.E.2d 299, 301 (2006) (\u201cThis Court may not weigh the evidence or make determinations regarding the credibility of the witnesses.\u201d).\nThe Commission\u2019s findings that Plaintiff \u201cdoes not know what caused her to fall\u201d and \u201crecalled the sight of almost hitting the ground\u201d are supported by competent record evidence. Furthermore, these findings were not challenged by Defendants on appeal and are thus binding on this Court. See Allred v. Exceptional Landscapes, Inc., _ N.C. App. _, _, 743 S.E.2d 48, 51 (2013) (\u201cUnchallenged findings of fact are presumed to be supported by competent evidence and are binding on appeal.\u201d). The Commission\u2019s findings as to the appropriate weight and consideration to be accorded to the medical evidence regarding the various theories of why Plaintiff might have fallen are within its discretion as the trier of fact, and this Court is \u201cnot 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 Hill v. Hanes Corp., 319 N.C. 167, 172, 353 S.E.2d 392, 395 (1987) (citation and quotation marks omitted).\nOnce the Commission determined that the evidence suggesting Plaintiffs fall occurred because of heat exhaustion or dehydration was speculative and entitled to little to no weight, there was no remaining evidence regarding the cause or origin of her fall. Consequently, we cannot conclude that the Commission erred in its ultimate determination that Plaintiff\u2019s fall was unexplained and \u201cdue to factors that were not disclosed by the evidence.\u201d See Sheenan v. Perry M. Alexander Constr. Co., 150 N.C. App. 506, 514, 563 S.E.2d 300, 305 (2002) (explaining that Commission is sole judge of weight and credibility of evidence and, as such, may accord less weight to testimony of medical expert if it determines that expert\u2019s opinions are based on inaccurate account of circumstances surrounding injury).\nThus, the Commission\u2019s findings that (1) Plaintiff does not know why she fell; and (2) the medical theories explaining the various possible causes of her fall were speculative and unsupported by sufficient evidence, support its legal conclusion that Plaintiff\u2019s fall was unexplained. See Slizewski v. Int\u2019l Seafood, Inc., 46 N.C. App. 228, 232, 264 S.E.2d 810, 813 (1980) (holding that workers\u2019 compensation claim was compensable where plaintiff could not recall why he fell and \u201c[t]he evidence, or lack thereof, on the cause of the fall is sufficient to sustain the finding that the cause of the fall was unknown\u201d). As such, we affirm the Commission\u2019s determination that Plaintiff\u2019s injury was compensable.\nII. Temporary Total Disability Benefits\nDefendants next assert that the Commission erred in awarding Plaintiff temporary total disability benefits beyond 12 December 2011, the date Plaintiff was released to return to work without any permanent restrictions. Defendants argue that as of that date she could no longer establish that her injury was affecting her ability to earn her pre-injury wage and that, for this reason, an award of temporary total disability benefits was improper. We disagree.\n\u201cThe term \u2018disability\u2019 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 N.C. Gen. Stat. \u00a7 97-2(9) (2013). Accordingly, to support a conclusion of disability, the Commission must find\n(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual\u2019s incapacity to earn was caused by plaintiffs injury.\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). A claimant may prove the first two elements of disability through several methods, including\n(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that 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 (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\nRussell v. Lowes Prod. Distrib\u2019n, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted); see Medlin v. Weaver Cooke Constr., LLC, _ N.C. _, _ S.E.2d _, slip op. at 12-13 (No. 411A13) (filed Jun. 12,2014) (explaining that plaintiff \u201cmay prove the first two elements through any of the four methods articulated in Russell, but these methods are neither statutory nor exhaustive\u201d)- \u201cIn addition, a claimant must also satisfy the third element, as articulated in Hilliard, by proving that his inability to obtain equally well-paying work is because of his work-related injury.\u201d Medlin, _ N.C. _, _ S.E.2d _, slip op. at 13.\n\u201cThe absence of medical proof of total disability . . . does not preclude a finding of disability under one of the other three Russell tests.\u201d Britt v. Gator Wood, Inc., 185 N.C. App. 677, 684, 648 S.E.2d 917, 922 (2007) (citation, quotation marks, and brackets omitted) (concluding that plaintiff could still be disabled under second or third prong of Russell test despite being released to work without restrictions). Here, citing Hilliard, the Commission found Plaintiff had proved that \u2014 as a result of her injury and despite a reasonable effort on her part \u2014 she was unable to obtain suitable employment within her restrictions. Specifically, the Commission found that once Plaintiff was released to return to work, the University of Michigan did not have a job available for her and that Plaintiff \u201cengaged in an unsuccessful, reasonable job search after being released to work with restrictions, but received no job offers.\u201d The Commission further found that Plaintiff\u2019s reasonable job search continued until 2 February 2012, when she refused suitable employment offered to her by the University of Michigan. As such, the Commission concluded that Plaintiff \u201csuffered a loss in wage earning capacity as a result of her compensable injury . . . through February 2, 2012\u201d but \u201chas failed to prove any loss of wage earning capacity as a result of her compensable August 8, 2011 injury after February 2, 2012.\u201d\nThese findings are supported by Plaintiff\u2019s testimony regarding both her job search and her ongoing experience with pain and range-of-motion limitations after being released to work. See Davis v. Hospice & Palliative Care of Winston-Salem, 202 N.C. App. 660, 670, 692 S.E.2d 631, 638 (2010) (\u201cIn addition to medical testimony, an employee\u2019s own testimony that he is in pain may be evidence of disability.\u201d (citation and quotation marks omitted)). Nor do Defendants specifically challenge these findings. As such, they are binding on appeal. See Strezinski v. City of Greensboro, 187 N.C. App. 703, 706, 654 S.E.2d 263, 265 (2007) (\u201cFindings of fact that are not challenged on appeal are binding on this Court.\u201d), disc. review denied, 362 N.C. 513, 668 S.E.2d 783 (2008). Because the Commission\u2019s findings of fact support its conclusion that Plaintiff established that she was unable to earn her pre-injury wage in the same or any other employment from 12 December 2011 to 2 February 2012 under the second prong of Russell and that Plaintiff\u2019s inability to earn her pre-injury wage was caused by her injury, we overrule Defendants\u2019 argument and affirm the Commission\u2019s award of temporary total disability benefits to Plaintiff.\nConclusion\nFor the reasons stated above, we affirm the Commission\u2019s Opinion and Award.\nAFFIRMED.\nJudges STEELMAN and STEPHENS concur.", "type": "majority", "author": "DAVIS, Judge." } ], "attorneys": [ "Bobby L. Bollinger, Jr. for plaintiff-appellee.", "Rudisill White & Kaplan, RL.L.C., by John R. Blythe, for defendants-appellants." ], "corrections": "", "head_matter": "NORLINDA PHILBECK, Employee, Plaintiff v. UNIVERSITY OF MICHIGAN, Employer, and STAR INSURANCE COMPANY, Carrier, Defendants\nNo. COA13-911\nFiled 15 July 2014\n1. Workers\u2019 Compensation\u2014compensable injury\u2014unexplained faU\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff\u2019s accident was due to an unexplained fall and was, therefore, compensable. The Commission\u2019s findings that plaintiff did not know why she fell and that the medical theories explaining the various possible causes of her fall were speculative and unsupported by sufficient evidence were supported by the record and these finding supported its legal conclusion that plaintiff\u2019s fall was unexplained.\n2. Workers\u2019 Compensation\u2014temporary total disability benefits\u2014inability to earn pre-injury wage\u2014caused by injury\nThe Industrial Commission did not err in a workers\u2019 compensation case by awarding plaintiff temporary total disability benefits beyond the date plaintiff was released to return to work without any permanent restrictions. The Commission\u2019s findings were supported by competent evidence, and these findings supported its conclusion that plaintiff was unable to earn her pre-injury wage in the same or any other employment under the second prong of Russell and that plaintiff\u2019s inability to earn her pre-injury wage was caused by her injury.\nAppeal by defendants from opinion and award entered 25 April 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 8 January 2014.\nBobby L. Bollinger, Jr. for plaintiff-appellee.\nRudisill White & Kaplan, RL.L.C., by John R. Blythe, for defendants-appellants." }, "file_name": "0124-01", "first_page_order": 134, "last_page_order": 145 }