{ "id": 135777, "name": "JUDY CAROLYN YOUNG, Employee v. HICKORY BUSINESS FURNITURE, Employer, SELF-INSURED (ALEXSIS, INC., SERVICING AGENT)", "name_abbreviation": "Young v. Hickory Business Furniture", "decision_date": "2000-12-21", "docket_number": "No. 143A00", "first_page": "227", "last_page": "233", "citations": [ { "type": "official", "cite": "353 N.C. 227" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "527 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": -1 }, { "cite": "137 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091829 ], "year": 2000, "opinion_index": -1, "case_paths": [ "/nc-app/137/0051-01" ] }, { "cite": "127 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "549" } ], "opinion_index": 0 }, { "cite": "257 N.C. 767", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571181 ], "year": 1962, "pin_cites": [ { "page": "767-68" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0767-01" ] }, { "cite": "138 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "262 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570996 ], "year": 1964, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0663-01" ] }, { "cite": "198 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "567-68" } ], "opinion_index": 0 }, { "cite": "283 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560265 ], "year": 1973, "pin_cites": [ { "page": "747-48" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0734-01" ] }, { "cite": "66 S.E. 314", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1909, "pin_cites": [ { "page": "314-15" } ], "opinion_index": 0 }, { "cite": "151 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654937 ], "year": 1909, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc/151/0383-01" ] }, { "cite": "97 S.E. 757", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1919, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "177 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653560 ], "weight": 2, "year": 1919, "pin_cites": [ { "page": "32" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc/177/0031-01" ] }, { "cite": "315 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399854, 2401808, 2396509, 2399198, 2403167 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0743-02", "/nc/310/0743-01", "/nc/310/0743-05", "/nc/310/0743-04", "/nc/310/0743-03" ] }, { "cite": "311 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525640 ], "year": 1984, "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0556-01" ] }, { "cite": "517 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571623, 571722, 571603, 571709, 571583 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0355-01", "/nc/349/0355-02", "/nc/349/0355-03", "/nc/349/0355-04", "/nc/349/0355-05" ] }, { "cite": "502 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465416 ], "year": 1998, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0088-01" ] }, { "cite": "215 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "94" } ], "opinion_index": 0 }, { "cite": "287 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564077 ], "year": 1975, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0515-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "530 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "65" } ], "opinion_index": 0 }, { "cite": "352 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685096 ], "year": 2000, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0136-01" ] }, { "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": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "527 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "348" }, { "page": "348" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091829 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "56" }, { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0051-01" ] } ], "analysis": { "cardinality": 833, "char_count": 15452, "ocr_confidence": 0.771, "pagerank": { "raw": 1.947569209536527e-06, "percentile": 0.9947477632865854 }, "sha256": "720c8fb5fa50ef1a5b7ee7acf53d866f746260dc3e355bfa00b9f878e1d22f32", "simhash": "1:b7126dc255ef8e5a", "word_count": 2448 }, "last_updated": "2023-07-14T19:31:00.841375+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JUDY CAROLYN YOUNG, Employee v. HICKORY BUSINESS FURNITURE, Employer, SELF-INSURED (ALEXSIS, INC., SERVICING AGENT)" ], "opinions": [ { "text": "LAKE, Justice.\nThis case arises from proceedings before the North Carolina Industrial Commission (the Commission) and raises the issue of whether the Commission\u2019s findings of fact were supported by competent evidence establishing causation between an employment-related injury and the development of fibromyalgia.\nOn 3 March 1992, while working for employer-defendant (Hickory Business Furniture), employee-plaintiff (Young) reached across some chairs to lift another chair and felt a pop in her back and the onset of pain. The accident resulted in plaintiff\u2019s suffering a lumbo-sacral strain. Prior to this occurrence, plaintiff had experienced no significant problems with her back.\nFollowing the injury, plaintiff was treated by Dr. Robert Hart, a family practitioner who served as defendant\u2019s physician. Dr. Hart recommended therapy for plaintiff\u2019s complaints of mid-back pain. Plaintiff\u2019s symptoms persisted, and on 31 March 1992, Dr. Hart referred plaintiff to Dr. H. Grey Winfield, an orthopedist. After examination, Dr. Winfield found plaintiff to have full range of motion in the lower extremities, with some evidence of \u201csymptom magnification.\u201d Dr. Winfield continued to treat plaintiff through 21 May 1992, after which plaintiff did not return for a follow-up assessment. On 1 April 1992, the parties entered into a Form 21 agreement, compensating plaintiff at a rate of $226.14 per week for \u201cnecessary weeks.\u201d\nOn her own initiative, plaintiff sought treatment from Dr. Bruce Hilton, a chiropractor, on 9 November 1992, and on 20 July 1993, he rated her as retaining a five percent permanent partial impairment to her back. At the time of the rating, plaintiff continued to experience pain in her back and right hip and tingling in her right leg. On 19 August 1993, the parties signed a Form 26, \u201cSupplemental Memorandum of Agreement as to Payment of Compensation,\u201d stipulating to a five percent permanent partial disability and agreeing to compensation of $226.14 for fifteen weeks, beginning 13 July 1993. Plaintiff continued to work until October 1994, when she was discharged by defendant on the basis that she was not physically able to perform her job.\nIn 1995, plaintiff saw a rheumatologist, Dr. Dennis Payne, for her back problems, whereupon she was diagnosed with fibromyalgia. Dr. Payne\u2019s opinion at that time was that plaintiff\u2019s condition was likely related to her 1992 work-related injury. On 10 January 1995, plaintiff filed a Form 33, requesting that the claim be assigned for hearing, on which she stated that her condition had substantially worsened and that she had been unable to work from 29 August 1994 to the date of the filing. Defendant filed a response on 29 July 1995, stating that there was no medical evidence to support plaintiff\u2019s claim.\nThe matter was heard by Deputy Commissioner Lome L. Dollar on 15 August 1995. On 18 October 1996, she entered an opinion and award concluding that plaintiff had sustained a substantial change in condition and awarding plaintiff temporary total disability compensation from 20 October 1994 and continuing until further order of the Commission. Defendant filed a formal \u201cApplication for Review\u201d by the full Commission on 24 January 1997. The matter was reviewed by the full Commission on 7 April 1997. On 2 June 1997, the Commission, with one commissioner dissenting, entered its opinion and award, essentially affirming the deputy commissioner\u2019s opinion and award. Defendant gave notice of appeal to the Court of Appeals.\nIn a unanimous, unpublished decision filed 21 April 1998, the Court of Appeals held that the Commission failed to make sufficient findings of fact to support its order, vacated the Commission\u2019s opinion and award, and remanded the matter to the Commission \u201cfor definitive findings and proper conclusions therefrom, and entry of the appropriate order.\u201d\nOn 28 January 1999, the full Commission, with one commissioner dissenting, entered a new opinion and award, setting out additional findings of fact and conclusions of law and again awarding plaintiff temporary total disability compensation from 20 October 1994 and continuing until further order of the Commission. Once again, defendant gave notice of appeal to the Court of Appeals.\nIn a published, split decision, the Court of Appeals affirmed the Commission\u2019s opinion and award. Defendant appeals to this Court from the decision of the Court of Appeals on the basis of the dissent.\nThe issue before this Court is whether there was competent evidence presented to establish a causal connection between the original injury by accident to plaintiff\u2019s back on 3 March 1992 and her later diagnosis of fibromyalgia. The Court of Appeals\u2019 majority determined that competent evidence was presented which was sufficient to support the Commission\u2019s findings of fact. We disagree.\nAlthough it is well established that \u201c \u2018[t]he [Industrial] Commission is the sole judge of the credibility of the witnesses and the [evidentiary] weight to be given their testimony,\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)), findings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them, Saunders v. Edenton OB/GYN Ctr., 352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000). In the instant case, the Industrial Commission\u2019s findings of fact with regard to the cause of Ms. Young\u2019s fibromyalgia were based entirely upon the weight of Dr. Payne\u2019s opinion testimony as an expert in the fields of internal medicine and rheumatology. Therefore, the competency of that testimony is determinative in our analysis and decision in this case.\nDue to the complexities of medical science, particularly with respect to diagnosis, methodology and determinations of causation, this Court has held that \u201cwhere the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). However, when such expert opinion testimony is based merely upon speculation and conjecture, it can be of no more value than that of a layman\u2019s opinion. As such, it is not sufficiently reliable to qualify as competent evidence on issues of medical causation. Indeed, this Court has specifically held that \u201can expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.\u201d Dean v. Carolina Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94 (1975); see also Cummings v. Burroughs Wellcome Co., 130 N.C. App. 88, 91, 502 S.E.2d 26, 29, disc. rev. denied, 349 N.C. 355, 517 S.E.2d 890 (1998); Ballenger v. Burris Indus., 66 N.C. App. 556, 567, 311 S.E.2d 881, 887, disc. rev. denied, 310 N.C. 743, 315 S.E.2d 700 (1984).\nIn the case sub judice, the Court of Appeals held that Dr. Payne\u2019s opinion regarding the etiology of plaintiff\u2019s current condition was more than mere speculation and, therefore, was sufficient to support the Commission\u2019s finding that plaintiff\u2019s reactive fibromyalgia was caused or substantially aggravated by her original injury by accident. Young v. Hickory Bus. Furn., 137 N.C. App. 51, 56, 527 S.E.2d 344, 348 (2000). However, a review of Dr. Payne\u2019s deposition, the sole source of evidence pertaining to his opinion, reveals that his opinion as to the causative nature of Ms. Young\u2019s fibromyalgia was based entirely upon conjecture and speculation.\nEarly in his deposition, Dr. Payne testified on direct examination that he frequently could not ascribe a cause for fibromylagia in his patients. He stated: \u201cI must say that a lot of times I have no idea why someone has fibromyalgia. Far and away, fibromyalgia occurs more commonly for unknown reasons.\u201d Later, Dr. Payne agreed with defense counsel\u2019s statement that fibromyalgia was an illness or condition of unknown etiology. Furthermore, Dr. Payne acknowledged that there were no physical tests that one can perform, or testing of any kind with regard to chemical abnormality in the body, which would indicate whether a person has fibromyalgia.\nThe speculative nature of Dr. Payne\u2019s expert opinion is reflected in his testimony that while he acknowledged that he knew of several other potential causes of Ms. Young\u2019s fibromyalgia, he did not pursue any testing to determine if they were, in fact, the cause of her symptoms. For instance, Dr. Payne conceded that he was aware of osteoarthritis in Ms. Young and that her sister was diagnosed with rheumatoid arthritis. However, when asked on cross-examination whether he had performed any tests to rule out other forms of rheumatoid disease or illness that could account for Ms. Young\u2019s symptoms, Dr. Payne testified that he had not. Indeed, when asked by defense counsel whether those tests had been conducted, Dr. Payne simply responded, \u201c[T]hose studies need to have been done.\u201d Additionally, in response to defense counsel\u2019s questions about other potential causes of Ms. Young\u2019s symptoms, Dr. Payne admitted that he did not attempt to ascertain whether plaintiff suffered from any viral or bacterial illnesses during the time between her injury and his diagnosis of fibromyalgia. This response followed the doctor\u2019s acknowledgment of case reports suggesting that fibromyalgia could be associated with a postbacterial illness reaction or a post-viral reaction.\nThe speculative nature of the doctor\u2019s opinion is further reflected in his testimony regarding Ms. Young\u2019s gallbladder surgery in 1994. Plaintiffs surgery took place two years after her injury and seven months before her first visit with Dr. Payne. On cross-examination, the doctor acknowledged that surgery is an \u201cevent that is thought to trigger or aggravate fibromyalgia,\u201d and that, depending on how well Ms. Young tolerated her gallbladder surgery, it \u201ccould have aggravated [plaintiffs] fibromyalgia.\u201d The record therefore supports, through Dr. Payne\u2019s own admissions, at least three potential causes of fibromyalgia in Ms. Young other than her injury in 1992.\nIn reaching his conclusion, however, that plaintiff\u2019s fibromyalgia could be related to her work-related injury, Dr. Payne found it necessary to rely on the maxim \u201cpost hoc, ergo propter hoc,\u201d which is to say in Latin, \u201cafter this, therefore because of this.\u201d On cross-examination, Dr. Payne responded to questioning as follows:\nQ. Is there any way that one can definitively assign a cause or aggravation of fibromyalgia to any particular event other than the application of the doctrine, post hoc ergo propter hoc?\nA. No.\nQ. Okay. In other words, there\u2019s nothing you can do to test it, to look at it, other than she didn\u2019t have it before, she has it now, what intervened, I\u2019m going to blame it on that?\nA. Correct.\nDr. Payne\u2019s total reliance on this premise is shown near the end of his deposition testimony wherein he states: \u201cI think that she does have fibromyalgia and I relate it to the accident primarily because, as I noted, it was not there before and she developed it afterwards. And that\u2019s the only piece of information that relates the two.\u201d\nThe maxim \u201cpost hoc, ergo propter hoc,\u201d denotes \u201cthe fallacy of . . . confusing sequence with consequence,\u201d and assumes a false connection between causation and temporal sequence. Black\u2019s Law Dictionary 1186 (7th ed. 1999). As such, this Court has treated the maxim as inconclusive as to proximate cause. See Johnson v. Western Union Tel. Co., 177 N.C. 31, 32, 97 S.E. 757 (1919); Ballinger v. Rader, 151 N.C. 383, 385, 66 S.E. 314, 314-15 (1909). This Court has also held that \u201c[i]t is a settled principle that the law looks to the immediate and not the remote cause of damage, the maxim being \u2018Causa pr\u00f3xima, sed non remota spectatur.\u2019 \u201d Johnson, 177 N.C. at 33, 97 S.E. at 758. In a case where the threshold question is the cause of a controversial medical condition, the maxim of \u201cpost hoc, ergo propter hoc,\u201d is not competent evidence of causation.\nThe Court of Appeals made no mention of Dr. Payne\u2019s reliance on the aforementioned maxim as the basis for his opinion. It did, however, acknowledge the speculative nature of Dr. Payne\u2019s medical opinion, pointing out that \u201cDr. Payne conceded that fibromyalgia is controversial \u2018because there\u2019s difficulty in objectively studying [the condition].\u2019 \u201d Young, 137 N.C. App. at 56, 527 S.E.2d at 348. Nonetheless, the Court of Appeals concluded that Dr. Payne gave an opinion, \u201cto a reasonable degree of medical certainty, that plaintiff\u2019s compensable \u2018injury could have or would have aggravated or caused the fibromyalgia.\u2019 \u201d Id. This Court has allowed \u201ccould\u201d or \u201cmight\u201d expert testimony as probative and competent evidence to prove causation. See Mann v. Virginia Dare Transp. Co., 283 N.C. 734, 747-48, 198 S.E.2d 558, 567-68 (1973); Lockwood v. McCaskill, 262 N.C. 663, 668, 138 S.E.2d 541, 545 (1964). However, this Court has also found \u201ccould\u201d or \u201cmight\u201d expert testimony insufficient to support a causal connection when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation. See Maharias v. Weathers Bros. Moving & Storage Co., 257 N.C. 767, 767-68, 127 S.E.2d 548, 549 (1962).\nBased on the foregoing analysis, we conclude that Dr. Payne\u2019s testimony, throughout both direct and cross-examination, consists of comments and responses demonstrating his inability to express an opinion to any degree of medical certainty as to the cause of Ms. Young\u2019s illness. Dr. Payne\u2019s responses were forthright and candid, and demonstrated an opinion based solely on supposition and conjecture. We therefore hold that this evidence, the sole evidence as to causation, was incompetent and insufficient to support the Industrial Commission\u2019s findings of fact. The opinion of the Court of Appeals, affirming the Industrial Commission\u2019s findings of fact, is, therefore, reversed and this case is remanded to that court for further remand to the North Carolina Industrial Commission for disposition in accordance with this opinion.\nREVERSED AND REMANDED.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Randy D. Duncan for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by J.A. Gardner, III, and Melissa L. McDonald, for defendant-appellant." ], "corrections": "", "head_matter": "JUDY CAROLYN YOUNG, Employee v. HICKORY BUSINESS FURNITURE, Employer, SELF-INSURED (ALEXSIS, INC., SERVICING AGENT)\nNo. 143A00\n(Filed 21 December 2000)\nWorkers\u2019 Compensation\u2014 causation \u2014 fibromyalgia\u2014doctor\u2019s opinion testimony\nThe Court of Appeals erred in concluding that competent evidence was presented to support the Industrial Commission\u2019s findings of fact with regard to the cause of plaintiff-employee\u2019s fibromyalgia based solely on the opinion testimony of one doctor, because: (1) the doctor\u2019s testimony consists of comments and responses demonstrating his inability to express an opinion to any degree of medical certainty as to the cause of plaintiff\u2019s illness; and (2) the doctor\u2019s testimony demonstrated an opinion based solely on supposition and conjecture.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 137 N.C. App. 51, 527 S.E.2d 344 (2000), affirming an opinion and award entered 28 January 1999, by the North Carolina Industrial Commission. Heard in the Supreme Court on 13 September 2000.\nRandy D. Duncan for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by J.A. Gardner, III, and Melissa L. McDonald, for defendant-appellant." }, "file_name": "0227-01", "first_page_order": 275, "last_page_order": 281 }