Faison v. Allen Canning Co.

2. An employee-employer relationship existed between the named employee and the named employer.

3. The named employer is self-insured.

4. The employee's average weekly wage is $268.75, which yields a compensation rate of $179.16 per week.

5. The employee started missing work because of a condition on or about February 2, 1999.

6. The parties contested whether or not the condition arose out of and in the course of employment and whether this claim is compensable. The issues to be heard by the Full Commission are:

Whether plaintiff sustained an occupational disease while in the course and scope of her employment on or about February 2, 1999, as defined by G.S. §§ 97-2(2) and 97-53(13);

Whether plaintiff is entitled to TTD for the period of February 2, 1999, to the present and continuing;

Whether defendant is entitled to attorney's fees because plaintiff unreasonably prosecuted her case; and

Whether defendant reasonably defended the claim based on the evidence presented.

Stipulated documents were Industrial Commission Forms, plaintiff's answers to pre-hearing interrogatories and medical records submitted on May 25, 2001, at the hearing before the deputy commissioner.

The deposition of Dr. Eddie N. Powell is a part of the evidentiary record in this case.

2. On February 2, 1999, Dr. Eddie Powell completed a Medical Certification (Family and Medical Leave Act of 1993) indicating that the plaintiff was unable to return to employment in any capacity from February 2, 1999, through March 2, 1999. The diagnosis was listed as severe shoulder bursitis and ruled out bilateral carpal tunnel syndrome versus radiculopathy. On the second page of the FMLA form, Dr. Powell marked that plaintiff was being taken out of work on February 2, 1999, for reasons unrelated to an injury or sickness arising out of plaintiff's employment.

3. Dr. Powell completed a second Medical Certification on March 4, 1999. Dr. Powell indicated that plaintiff was unable to return to employment in any capacity from March 3, 1999, through April 4, 1999. Dr. Powell diagnosed plaintiff with peripheral neuropathy versus radiculopathy. Dr. Powell also wrote plaintiff out of work from April 5, 1999, through May 5, 1999, for peripheral neuropathy and from May 5, 1999, through May 12, 1999, for cervical radiculopathy.

4. On March 5, 1999, plaintiff filed for short-term disability and listed her condition as bursitis. Plaintiff received short-term disability benefits from February 2, 1999, through August 16, 1999, at which time the maximum benefit had been paid out. At that time, plaintiff filed a workers' compensation claim listing the date of injury as November 2, 1999.

5. On June 12, 1999, Dr. Powell completed another Medical Certification authorizing plaintiff out of work from June 12, 1999, through August 14, 1999, for peripheral neuropathy and arm neuropathy with left carpal tunnel syndrome. Plaintiff was again authorized out of work from August 27, 1999, through September 22, 1999, for cervical radiculopathy with peripheral neuropathy and arm neuropathy with left carpal tunnel syndrome.

6. On September 21, 1999, plaintiff returned to Dr. Powell for a follow up of her arm symptoms. Dr. Powell's diagnosis changed to peripheral neuropathy with second trimester pregnancy with carpal tunnel syndrome. As a result of this condition, plaintiff was authorized out of work from September 21, 1999, through November 2, 1999. This condition remained unchanged and, accordingly, the plaintiff was authorized out of work from November 21, 1999, through May 29, 2000.

7. On October 23, 2000, Dr. Powell found plaintiff to be at maximum medical improvement, released plaintiff from his care and stated that her symptoms had resolved. Dr. Powell did not provide plaintiff with a permanent partial impairment rating.

8. Plaintiff worked as a seamer for defendant-employer as a seasonal employee for approximately six years. Plaintiff said that she would put a sleeve of lids onto a machine.

9. Plaintiff testified that her position with defendant-employer was running a seamer for a total of approximately seven hours a day. According to plaintiff, running the seamer included placing sleeves of lids into a machine that would put lids onto a can.

10. Plaintiff also testified that the different lines that she worked varied in speed, such as the beans lines, which she said were slower than others. Plaintiff admitted that when running a line with beans, "you didn't have to reach in the box that much" to get out the lids. Plaintiff's job also included inspecting goods on a product line that did not deal with repetitive motion. When plaintiff went out of work in November of 1999, she was working solely on the inspection line. Before she left, plaintiff explained to her supervisor, Robert Caldwell, that she was feeling pain in her chest.

11. Mr. Robert Caldwell is a production manager for defendant-employer. In describing the nature of plaintiff's position, Mr. Caldwell testified that the weight of the objects plaintiff would pick up were somewhere from 2.5 to 2.8 pounds. Mr. Caldwell stated at most there was potentially "a little repetition" in plaintiff's job duties if you were to try and take a few of the ends at a time and load the magazine on the 300 line. Plaintiff did not perform this type of loading. Plaintiff would place the stack or sleeve of lids in the machine.

12. There would be about a minute and a half interval before having to re-stack the lids. The employees running the machines were monitoring the product line when not filling up the sleeves. The sleeves plaintiff handled were only approximately 2.5 to 2.8 pounds. The employees would rotate the jobs including working at an inspection position that did not require repetitive use of the hands. The plant made a special attempt to place an employee on the inspection line if they had any medical problems.

13. When plaintiff left on short-term disability leave, she was working on the inspection line because she had previously informed Mr. Caldwell that her chest was bothering her.

14. Dr. Powell indicated that plaintiff's description of her job duties told him little about her position and claimed that she was a "very poor historian." Dr. Powell agreed that working eight hours a day grabbing sleeves and slamming them down into a machine would cause someone to be at a greater risk of contracting CTS. However, there was no testimony from plaintiff or Mr. Caldwell that plaintiff slammed down any lids. Dr. Powell also asserted that CTS was rarely found in canning and was more readily found in work that required a ten to twelve hour day.

15. Dr. Powell stated that he found carpal tunnel mainly in the following situations:

". . . heavy-duty use of the hands, as you might say. Cans will be — I will say medium use. I'm talking about a gentleman that has to pull, you know, a six to seven, eight pound, you know, guts out of a hog, or they're sitting up and they have to cut the ham, and that ham weighs four or five, you know, ten pounds. I note that there's an increasing likelihood with that, but not too many canners."

16. Dr. Powell said that he had never visited the plant nor had seen a videotape of plaintiff's job duties.

17. Plaintiff had notable weight problems and a pregnancy that potentially could have caused her CTS. Dr. Powell testified that being overweight could be an increased factor in contracting CTS. Plaintiff's medical records show that she was well in excess of 200 pounds at times.

18. Plaintiff's pregnancy also raises questions as to how she contracted the disease. Dr. Powell would not commit to the theory that pregnancy could be linked to CTS. However, his testimony shows there is a difference in the field of research. Dr. Powell stated that he would have to adhere to the current standard answer until further research had been completed.

19. Dr. Powell's diagnosis of plaintiff's CTS coincides very well with her pregnancy and the date of her recovery with the end of her pregnancy. Dr. Powell did not diagnose plaintiff with CTS until June 12, 1999, which corresponds favorably to when plaintiff became pregnant. Moreover, plaintiff's problems resolved approximately seven weeks after her pregnancy ended.

20. Dr. Powell opined that there was a 5% to 10% chance that CTS cases are idiopathic.

21. After being asked about plaintiff providing him with her job duty functions, Dr. Powell testified that plaintiff never provided them to him and that he could only answer the question "truthfully."

22. Dr. Powell stated that he could not render a medical opinion as to a medical degree of certainty, because he did not have enough information "to base any kind of decision." Dr. Powell reluctantly stated at one point in his testimony that plaintiff's condition "could have" been a result of her job. However, he later clarified that he did not really know the answer to that question. Dr. Powell maintained that his main problem with the issue of causation was that plaintiff did not provide him with the information he required to give an accurate opinion. Dr. Powell stated that he asked plaintiff "on five different visits" to describe the use of her hands at work, but she never told him.

23. In answering the question of whether plaintiff could have developed her condition from her employment, Dr. Powell established that:

"I — I don't like to look back in retrospect and try to change an answer that I didn't have that history when it was — when it was presented to me. That's unfair to the defendant. That's unfair to the patient. And furthermore, it's unfair to the education that's been bestowed upon me by God and man about medicine. If that patient cannot give me a reliable history, that's the patient's fault. It's not the company's fault. It's not the doctor's fault."

24. Plaintiff has failed to prove by the greater weight of the evidence that her condition was linked to her employment. Instead, medical testimony and testimony at the hearing clearly show that plaintiff was never taken out of work for a condition related to her employment. Dr. Powell took plaintiff out of work for a condition that was not work related based upon the FMLA form and never indicated in his medical records that the condition was related. Moreover, Dr. Powell could not relate plaintiff's condition to her job. The facts of the case show that plaintiff was working a different job at the time she left work. The plaintiff was taken out of work for an unrelated condition. She became pregnant while out of work, and she was diagnosed with CTS at the same time. She had her child, recovered from CTS after the child's birth and is currently able to work.

25. There is no evidence that defendant defended this action in bad faith or without reasonable grounds. There are, therefore, also no grounds for awarding plaintiff attorney's fees in this case.

(13) Any disease . . . which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary disease of life to which the general public is equally exposed outside of the employment.

2. Whether the disease is enumerated by the Act determines the elements that the plaintiff will have to prove in order to succeed in his or her claim. If the disease is not enumerated, the plaintiff must proceed under N.C. Gen. Stat. § 97-53(13). In such cases, the following elements must be proven:

(1) The disease must be characteristic of a trade or occupation (there must be an increased risk to the individual on account of this employment), and

(2) The disease must not be an ordinary disease of life to which the public is equally exposed outside of the employment; and

(3) There must be proof of causal connection between the disease and the employment.

These requirements were discussed in the North Carolina Supreme Court case of Booker v. Duke University Medical Center, 297 N.C. 458,256 S.E.2d 189 (1979). In Booker, the Court stated as follows:

A disease is "characteristic" of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question . . . "peculiar to the occupation" means that the conditions of the employment must result in a hazard which distinguished it in character from the general run of occupations . . . and is in excess of that attending employment in general.

Id. Accordingly, plaintiff has not shown enough evidence through testimony or medical evidence to overcome her burden of proving a link between her job duties and her condition.

3. In order to support workers' compensation benefits, there must be medical evidence to "a reasonable scientific probability that the stated cause produced the stated result. Evidence is insufficient on causation if it `raises a mere conjecture, surmise, and speculation." Phillips v.US Air, Inc., 120 N.C. App. 538, 542, 463 S.E.2d 259, 262 (1995). When positing a link between the injury and the action, a "probability" is not enough in medical testimony to prove causation. Peeler v. PiedmontElastic, Inc., 132 N.C. App. 713, 514 S.E.2d 108 (1999). In addition, inYoung v. Hickory Bus. Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) the Supreme Court addressed the use of "could have" when stating an opinion about the cause of fibromyalgia. The Court noted that while it has previously found "could" or "might" expert testimony to be competent evidence to prove causation, see id. at ___, 538 S.E.2d at 916 (citingMann v. Virginia Dare Transp. Co., 283 N.C. 734, 747-48, 198 S.E.2d 558,567-68 (1973)), it also found "could" and "might" expert testimony to be insufficient to support a causal connection when there is additional evidence or testimony to show the expert's opinion to be a guess or mere speculation, see Id. (citing Maharias v. Weather Bros. Moving Storage Co., 257 N.C. 767, 767-68, 127 S.E.2d 548, 549 (1962)). Dr. Powell clearly stated in this case that he did not have the information to determine whether plaintiff's condition was related to her employment. He took plaintiff out of work on February 2, 1999, for reasons unrelated to an injury or sickness arising out of plaintiff's employment. Dr. Powell's testimony was consistent with this opinion. Thus, plaintiff has not proven by the greater weight of the evidence that her job duties caused her condition.

North Carolina General Statute § 97-88.1 states as follows:

If the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for defendant's attorney or plaintiff's attorney upon the party who has brought or defended them.

The purpose of this section is to "prevent `stubborn, unfounded litigiousness' which is inharmonious with the primary purpose of the Workers' Compensation Act to provide compensation to injured employees." The facts of this case show that plaintiff did not have sufficient evidence to prove an occupational disease. Consequently, there is no evidence that defendant defended this action in bad faith or without reasonable grounds. Therefore, there are no grounds for awarding attorney's fees to either side.

Each side shall bear its own costs.

This the ___ day of January 2002.

S/____________ BUCK LATTIMORE CHAIRMAN

CONCURRING:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

The majority and the Deputy Commissioner have, in my view, overlooked the time-honored mandate of the North Carolina Supreme Court that "the evidence tending to support plaintiff's 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."Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937), cited with approval in Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).

The Worker's Compensation Act in North Carolina is an embodiment of the General Assembly's intent to "compel industry to take care of its own wreckage." Hyler v. G.T.E. Products Co., 333 N.C. 258 at 268,425 S.E.2d 698, 704 (1993). "The Worker's Compensation Act is to be construed liberally, and benefits are not to be denied upon technical, narrow or strict interpretation of its provisions." Matthews v.Charlotte-Mecklenburg Hospital, 132 N.C. App. 11, 21, 510 S.E.2d 388,395, dis. rev, den. 350 N.C. 834, ___ S.E.2d ___ (1999); Dayal v.Provident Life, 71 N.C. App. 131, 132, 321 S.E.2d 452, 453 (1984).

My vote is to reverse the Deputy Commissioner and pay the benefits to the injured worker that North Carolina law demands.

To establish a right to workers' compensation benefits for an occupational disease under North Carolina General Statute § 97-53(13) (1991), the employee must show: (1) the disease is characteristic of individuals engaged in the particular trade or occupation in which the claimant is engaged; (2) the disease is not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there is a causal relationship between the disease and the claimant's employment. Rutledgev. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983). The evidence in the present case meets the criteria set forth by the North Carolina Supreme Court in Rutledge.

The first two elements of the Rutledge test require a showing that the Plaintiff in an occupational disease claim was placed at an increased risk of developing the disease when compared to members of the public not so employed. Id. at 93 and 94, 365. Ms. Faison's treating physician, Dr. Powell, was deposed following the hearing of this claim. Dr. Powell's testimony satisfies the first two elements of the Rutledge test. Dr. Powell was given a description of Ms. Faison's job duties, consistent with both Ms. Faison's testimony and Robert Caldwell's testimony. Based on this job description, Dr. Powell testified that Ms. Faison was at an increased risk of developing carpal tunnel syndrome. (Powell depo p. 15)

The third element of Rutledge requires a showing of a causal relationship between the disease and the employment. This element was also established by Dr. Powell's deposition testimony. Dr. Powell testified that carpal tunnel syndrome was usually found in people who do a job requiring continuous use of the hands over a period of 18 months to three years. (Powell depo pp. 17 and 18) Dr. Powell was asked if the fact that Ms. Faison had worked with defendant-employer for six years influenced his opinion as to whether her carpal tunnel syndrome could have been caused by her job. Dr. Powell testified, "In most likelihood, if I had a good job description, it would be positive." (Powell depo p. 28) During his deposition, Dr. Powell was shown an insurance form that was completed by his office stating that Ms. Faison's condition was not due to sickness or injury arising out of her employment. Dr. Powell testified that he had answered that particular question truthfully. (Powell depo p. 22) However, later in his deposition, Dr. Powell explained that Ms. Faison has not given him a history of the type of work she performed, so based on that he had to answer the question on the form that her work did not cause her carpal tunnel syndrome. (Powell depo p. 29) Dr. Powell testified that based on Ms. Faison's job description as it was testified to at the hearing of this claim that Ms. Faison's carpal tunnel syndrome probably came from her occupation. (Powell depo p. 29)

Deputy Commissioner Garner and the majority of the Full Commission panel found that Ms. Faison's pregnancy raised questions as to how she contracted carpal tunnel syndrome. (Finding of Fact # 18, page 6) This finding of fact is not supported by the evidence. Dr. Powell clearly testified that pregnancy was not a condition that can cause carpal tunnel syndrome. (Powell depo p. 22) Deputy Commissioner Garner and the majority also stated that Dr. Powell's diagnosis of carpal tunnel syndrome coincided with Ms. Faison's pregnancy and the date of her recovery with the end of her pregnancy. (Finding of Fact # 19, page 6) This finding of fact is also not supported by the evidence. The medical records from Dr. Powell, as well as his deposition testimony, establish that Dr. Powell was suspicious of carpal tunnel syndrome as early as his initial evaluation of Ms. Faison on February 2, 1999. This was approximately four to five months before Ms. Faison became pregnant, which was in June or July 1999.

Dr. Powell did testify that Ms. Faison's weight could have been a factor in her carpal tunnel syndrome. (Powell depo p. 23) This does not negate Dr. Powell's testimony that Ms. Faison's carpal tunnel syndrome was caused by her job. The law does not require that the job be the only cause; it is sufficient that the job is one of the causes. This was discussed by the Court of Appeals in Peagler v. Tyson Foods, Inc.,138 N.C. App. 593, 532 S.E.2d 207 (2000). In Peagler, the Court of Appeals cited the North Carolina Supreme Court's opinion in Lockwood v.McCaskill, 262 N.C. 663, 138 S.E.2d 541 (194), which stated in part that, "a result in a particular case may stem from a number of causes. . . . All that is necessary is that an expert express an opinion that a particular cause was capable of producing the injurious result."Id. at 600, 211 and 212.

Deputy Commissioner Garner and the majority also erred in his application of the law to the causation standard in Conclusion of Law #3. In that Conclusion of Law, Deputy Commissioner Garner and the majority stated that there must be medical evidence to a reasonable scientific probability that the sated cause produced the stated result. They further stated that a probability in not enough in medical testimony to prove causation, citing Young v. Hickory Business Furniture, 353 N.C. 227,538 S.E.2d 912 (2000) where the Supreme Court noted that while it has previously found "could" or "might" expert testimony to be competent evidence to prove causation, see Id. at 916 (citing Mann v. Virginia DareTransp. Co., 283 N.C. 734, 747-48, 198 S.E.2d 558, 567-68 (1973)), it also found "could" and "might" expert testimony to be insufficient to support a causal connection when there is additional evidence or testimony to show the expert's opinion to be a guess or mere speculation, see Id. (citing Maharias v. Weather Bros. Moving Storage Co., 257 N.C. 767, 767-68, 127 S.E.2d 548, 549 (1962)). There is not evidence in the present case showing Dr. Powell's opinion to be mere speculation. Reliance on this particular case was erroneous.

The Court of Appeals recently addressed this issue in Holley v. Acts,Inc. 567 S.E.2d 457 (2000). This case involved a plaintiff with a diagnosis of deep venous thrombosis (DVT). The Deputy Commissioner who heard the claim concluded that the plaintiff's DVT was not the result of her injury by accident to her left leg arising out of and in the course of her employment. The Full Commission reversed the Deputy Commissioner's Opinion and Award and concluded that the plaintiff's DVT was caused by her injury by accident. On appeal to the North Carolina Court of Appeals, the defendant argued that the medical evidence was insufficient to establish a causal link between plaintiff's injury and her DVT. The Court of Appeals discussed the case law on this issue, citing the same cases and language cited in the majority Opinion and Award in the present case. The Court then discussed the medical testimony. The doctor testified that it was possible that the plaintiff's DVT was caused by her accident at work. Id. at 461. The doctor could not say to a reasonable degree of medical certainty, or even a reasonable degree of medical probability, that the accident caused plaintiff's DVT, only that it was a reasonable possibility. Id. at 461. The doctor further testified that the accident at work could have caused the DVT, or it could have happened despite the accident. Id. at 462. The Court of Appeals held that this testimony was sufficient to provide the causal connection, and that this testimony rose above mere speculation and conjecture. Id. at 462. The testimony from Dr. Powell in the present case also rises above mere speculation and conjecture. In fact, Dr. Powell's testimony is at least as strong as the doctor's testimony in the Holley case.

It is clear from Dr. Powell's testimony that Ms. Faison's job duties with defendant-employer placed her at an increased risk of developing carpal tunnel syndrome as opposed to members of the general public not so employed. Dr. Powell's testimony clearly satisfies the criteria established to bring an occupational disease claim under the North Carolina Workers' Compensation Act.

The evidence in the present claim also establishes that Ms. Faison was disabled from February 2, 1999, until October 23, 2000. North Carolina General Statute § 97-2(9) defines disability as incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment. Dr. Powell kept Ms. Faison out of work from February 2, 1999, until October 23, 2000. There is no evidence to contradict that Ms. Faison was completely unable to perform her job duties with defendant-employer until Dr. Powell released her from his care once her carpal tunnel syndrome had resolved on October 23, 2000.

The majority's findings of fact and conclusions of law are erroneous and not supported by the greater weight of the evidence. The medical evidence provides a sufficient basis for a causal connection between Plaintiff's employment and her carpal tunnel syndrome. The medical evidence also establishes that Plaintiff s job duties with defendant-employer placed her at an increased risk of developing carpal tunnel syndrome.

This 13th day of February 2003.

S/_____________ THOMAS J. BOLCH COMMISSIONER