An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.
Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina
Rules of Appellate Procedure.




                                        NO. COA14-821
                               NORTH CAROLINA COURT OF APPEALS

                                        Filed:        17 March 2015


JAMES WILLIAMS,
     Employee,
     Plaintiff

        v.                                                    The North Carolina Industrial
                                                              Commission
                                                              I.C. No. X68962
BEST CARTAGE, INC.,
     Employer,

and

NATIONAL INTERSTATE INSURANCE CO.,
     Carrier,
     Defendants.



       Appeal by defendants from Opinion and Award entered 27 May

2014 by the North Carolina Industrial Commission.                                         Heard in the

Court of Appeals 3 December 2014.


       The Deuterman Law Group, by Jeffrey P. Lewis, for plaintiff.

       Teague, Campbell, Dennis & Gorham, L.L.P., by Ben S. Greenberg
       and William A. Bulfer, for defendants.


       DAVIS, Judge.
                                        -2-


      Best Cartage, Inc. (“Best Cartage”) and National Interstate

Insurance Co. (collectively “Defendants”) appeal from the Opinion

and   Award    of    the   North   Carolina    Industrial   Commission   (“the

Commission”)        awarding   James     Williams   (“Plaintiff”)   workers’

compensation benefits with respect to his left knee injury.                 On

appeal, Defendants contend that the Commission erred in (1) failing

to specifically determine the reason for Plaintiff’s fall; and (2)

concluding that Plaintiff’s left knee injury was causally related

to his work-related accident and, therefore, compensable.                After

careful review, we affirm the Commission’s Opinion and Award.

                               Factual Background

      Plaintiff was employed as a long-haul semi-truck driver for

Best Cartage.         At approximately 6:00 a.m. on 4 October 2011,

Plaintiff parked his truck on an unpaved portion of the parking

lot of a Huddle House restaurant in Bishopville, South Carolina,

intending to have breakfast there.            As he opened the driver’s side

door and began to exit the cab, Plaintiff’s left foot “unexpectedly

landed in a hole or on some loose gravel,” and his left knee

twisted.      Plaintiff then fell to his right toward the truck and

also twisted his right knee.           He felt immediate pain in both knees

with the pain in his left knee being more acute.             Later that day,

Plaintiff returned to Best Cartage’s base office in Kernersville,

North Carolina and reported the incident.
                                     -3-


     On the following day, Best Cartage sent Plaintiff to PrimeCare

in Kernersville for a medical examination. At PrimeCare, Plaintiff

was treated by Dr. Camille Andy (“Dr. Andy”) who diagnosed him

with a “left medial knee sprain and degenerative joint disease,

and right knee pain.”

     On 17 October 2011, Plaintiff filed a Form 18 “Notice of

Accident to Employer and Claim of Employee.”          On 26 October 2011,

Defendants responded by submitting a Form 61 “Denial of Workers’

Compensation Claim.”      On 31 October 2011, Plaintiff moved to have

his claim assigned for hearing.

     On 14 December 2011, Plaintiff saw Dr. Scott Dean (“Dr.

Dean”), an orthopedist, regarding his left knee pain.             Dr. Dean

recommended that Plaintiff undergo a total knee replacement of the

left knee.   Dr. Dean performed left total knee replacement surgery

on Plaintiff on 13 March 2012.         During his deposition, Dr. Dean

testified    to   a   reasonable    degree   of   medical   certainty   that

Plaintiff’s left knee injury was causally related to his 4 October

2011 accident.

     The matter was heard before Deputy Commissioner Robert J.

Harris on 12 March 2013.           Deputy Commissioner Harris filed an

opinion and award on 28 August 2013, finding that Plaintiff’s left

knee injury was causally related to the 4 October 2011 incident.

He determined that Plaintiff was therefore entitled to all medical

expenses incurred, or to be incurred, as a result of the injury.
                                   -4-


      Defendants appealed to the Full Commission.            On 27 May 2014,

the   Commission   issued   an   Opinion     and   Award    affirming   Deputy

Commissioner    Harris’s    opinion    and    award   and    concluding,   in

pertinent part, as follows:

            Plaintiff sustained a compensable injury by
            accident to his left knee arising out of and
            in the course of his employment with
            defendant-employer upon the occurrence of the
            4 October 2011 incident, which injury caused
            a compensable exacerbation of plaintiff’s pre-
            existing left knee arthritis condition.

Defendants filed a timely notice of appeal to this Court.

                                 Analysis

      Our review of an opinion and award by the Commission is

“limited to consideration of whether competent evidence supports

the Commission’s findings of fact and whether the findings support

the   Commission’s   conclusions      of   law.”      Richardson   v.   Maxim

Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584

(2008). The Commission’s findings of fact are conclusive on appeal

if supported by competent evidence even if there is evidence to

support contrary findings.       Avery v. Phelps Chevrolet, 176 N.C.

App. 347, 353, 626 S.E.2d 690, 694 (2006).            On appeal, this Court

will not “weigh the evidence and decide the issue on the basis of

its weight.     The court’s duty goes no further than to determine

whether the record contains any evidence tending to support the

finding.”     Smith v. Champion Int’l, 134 N.C. App. 180, 182, 517
                                      -5-


S.E.2d 164, 166 (1999) (citation and internal quotation marks

omitted).

I. Nature of Accident

     In their first argument on appeal, Defendants challenge the

Commission’s finding of fact 11, which states as follows:

            Plaintiff did acknowledge that, as a truck
            driver he would have to expect to step down
            onto different surfaces, such as pavement,
            sand or gravel, when getting out of his truck.
            Plaintiff also acknowledged that he was not
            sure exactly what his left foot had stepped on
            or in when this incident occurred. However,
            the Commission finds that the incident was an
            unexpected departure from plaintiff’s usual
            work routine and/or was an unexplained fall.
            The Commission finds that the circumstances of
            plaintiff’s   injury   on   4   October   2011
            constituted an interruption of his normal work
            routine and the introduction thereby of
            unusual circumstances likely to result in
            unusual results and/or was an unexplained
            fall. As such, on 4 October 2011, plaintiff
            sustained an injury by accident arising out of
            and in the course of his employment with
            defendant-employer.

(Emphasis added.)

     Defendants take issue with the Commission’s use of the term

“and/or,” asserting that the Commission “has not made specific

findings    as   to   the   crucial   facts   that   are   required   for   a

determination of whether Plaintiff is entitled to Compensation.”

They further contend that the Commission’s “refusal to make a

specific determination with regard to this crucial fact falls short

of its judicial obligations and warrants reversal or, in the
                                -6-


alternative, remand for a determination as to whether Plaintiff’s

alleged injury constituted an interruption of his normal work

routine due to what he stepped down on or an unexplained fall.”

     It   is   well   established     that   “[u]nder   the   Workers’

Compensation Act, an injury is compensable if the claimant proves

three elements:   (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.”     Philbeck v.

Univ. of Michigan, __ N.C. App. __, __, 761 S.E.2d 668, 671 (2014)

(citation and internal quotation marks omitted).

     As an initial matter, we take this opportunity to note our

disapproval of the Commission’s use of the term “and/or.”          See

Gibson v. Cent. Mfrs. Mut. Ins. Co., 232 N.C. 712, 717, 62 S.E.2d

320, 323 (1950) (“[T]he Court has inferentially condemned the use

of the term ‘and/or’ in statutes, and in verdicts in judicial

proceedings.   Moreover, the annotators of reported cases, and the

text writers indicate that much has been written in condemnation

of the term ‘and/or.’   It is declared, in effect, that the courts

generally hold that the term ‘and/or’ has no place in judicial

proceedings, pleadings, verdict or judgment.” (citation omitted));

Gordon v. State Farm Mut. Auto. Ins. Co., 6 N.C. App. 185, 188,

169 S.E.2d 514, 516 (1969) (“We do not look with favor upon the

ambiguous and uncertain term ‘and/or.’” (citation and internal

quotation marks omitted)).
                                     -7-


     Here, the Commission’s use of the term “and/or” compels us to

read the provisions of finding of fact 11 containing this term in

both the conjunctive and the disjunctive.           See State ex rel. N.C.

Utils. Comm’n v. McKinnon, 254 N.C. 1, 13, 118 S.E.2d 134, 143

(1961) (explaining that the “oft condemned and ambiguous term

‘and/or’   .   .   .   contains   both   the   conjunctive   ‘and’   and   the

disjunctive ‘or.’”).       Therefore, under this construction, we read

finding of fact 11 as a determination by the Commission that

Plaintiff’s injury was the result of (1) an unexpected departure

from Plaintiff’s usual work routine; (2) an unexplained fall; or

(3) both an unexpected departure from Plaintiff’s usual work

routine and an unexplained fall.         See Local Div. 589, Amalgamated

Transit Union, AFL-CIO, CLC v. Com. of Mass., 666 F.2d 618, 627

(1st Cir. 1981) (“[T]he words ‘and/or’ commonly mean ‘the one or

the other or both.’”), cert. denied, 457 U.S. 1117, 73 L.Ed.2d

1329 (1982).

     Significantly, Defendants do not argue that there is no

competent evidence in the record to support either of these two

theories of compensability.         Rather, they simply argue that the

Commission was required to identify a single cause of Plaintiff’s

injury and make a finding to that effect in its Opinion and Award.

However, Defendants have failed to cite any caselaw specifically

supporting their argument that the Commission’s failure to do so

requires a remand.       As such, while we agree that the far better
                                  -8-


practice would have been for the Commission to make a finding as

to one specific cause of Plaintiff’s injury, we cannot hold that

its failure to do so on these facts constituted reversible error

unless one or both of the two theories identified by the Commission

are   insufficient   to   establish   compensability   under   the   Act.

Therefore, we must address each of the two theories set out in

finding of fact 11.

      It is well settled that an unexpected departure from an

employee’s normal work routine arising out of and in the course

and scope of his employment resulting in injury represents one

theory of compensability under the Act.

           The terms “accident” and “injury” are separate
           and distinct concepts, and there must be an
           “accident” that produces the complained-of
           “injury” in order for the injury to be
           compensable.   An “accident” is an “unlooked
           for event” and implies a result produced by a
           “fortuitous cause.” If an employee is injured
           while carrying on the employee’s usual tasks
           in the usual way the injury does not arise by
           accident. In contrast, when an interruption
           of the employee’s normal work routine occurs,
           introducing unusual conditions likely to
           result   in   unexpected    consequences,   an
           accidental cause will be inferred.         The
           “essence” of an accident is its “unusualness
           and unexpectedness.”

           Thus, in order to be a compensable “injury by
           accident,” the injury must involve more than
           the employee’s performance of his or her usual
           and customary duties in the usual way.
                                -9-


Gray v. RDU Airport Auth., 203 N.C. App. 521, 525-26, 692 S.E.2d

170, 174 (2010) (internal citations, quotation marks, brackets,

and ellipses omitted).

     However, this Court has held that if an employee’s injury is

caused by a fall occurring during the course and scope of his

employment “[i]t is not essential that there be evidence of any

unusual or untoward condition or occurrence causing [the] fall

which produces injury.   The fall itself is the unusual, unforeseen

occurrence which is the accident.     A fall is usually regarded as

an accident. . . . [A]n injury that is the result of a fall, which

itself stems from an event that results from both the employee’s

normal work routine and normal conditions, may still constitute an

‘accident.’”   Hedges v. Wake Cty. Pub. Sch. Sys., 206 N.C. App.

732, 735, 699 S.E.2d 124, 126 (2010) (emphasis added), disc. review

denied, 365 N.C. 77, 705 S.E.2d 746 (2011).

     In addition, a second but related theory of compensability

under the Act is that of the unexplained fall.

          In a workers’ compensation case, if the cause
          or origin of a fall is unknown or undisclosed
          by the evidence, we 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.      This inference is
          permitted because when the cause of the fall
          is unexplained such that there is no finding
          that any force or condition independent of the
          employment caused or contributed to the
                                           -10-


            accident, the only active force involved is
            the employee’s exertions in the performance of
            his duties.

Philbeck,    __     N.C.    App.    at   __,      761    S.E.2d    at     672    (internal

citations, quotation marks, brackets, and ellipses omitted).

     Thus, while finding of fact 11 is hardly a model of clarity,

the Commission determined that the evidence supported one or both

of two recognized theories of compensability.                             Therefore, we

conclude that remand is not necessary.

II. Causal Relationship

     Defendants       next       contend    that        insufficient      evidence     was

introduced     to     support      the     Commission’s           determination       that

Plaintiff’s left knee injury was causally related to his 4 October

2011 accident.         Defendants contend that Dr. Dean’s opinion on

causation was (1) impermissibly speculative; and (2) based upon

the logical fallacy of post hoc, ergo propter hoc.                              We address

each of these arguments in turn.

     A. Causation Testimony of Dr. Dean

     When the Commission relies on expert medical testimony, the

expert’s testimony “must be such as to take the case out of the

realm of conjecture and remote possibility” in order to constitute

competent evidence of a causal relationship between the work-

related     accident       and    the    injury.          Rogers     v.    Lowe’s     Home

Improvement, 169 N.C. App. 759, 765, 612 S.E.2d 143, 147 (2005)

(citation and internal quotation marks omitted).                     A medical expert
                               -11-


          [s]tating an accident “could or might” have
          caused an injury, or “possibly” caused it is
          not generally enough alone to prove medical
          causation;   however,   supplementing   that
          opinion with statements that something “more
          than likely” caused an injury or that the
          witness is satisfied to a “reasonable degree
          of medical certainty” has been considered
          sufficient.

Carr v. Dep’t of Health & Human Servs., 218 N.C. App. 151, 155,

720 S.E.2d 869, 873 (2012).

     Defendants contend that no competent evidence existed to

support the Commission’s findings of fact 5, 21, 25, and 26.   These

findings state as follows:

          5. Long before the 4 October 2011 incident
          that is the basis of this claim, plaintiff had
          bilateral degenerative joint disease in both
          of his knees.    His bilateral knee condition
          had been diagnosed as end-stage, bone-on-bone
          osteoarthritis.    Plaintiff had undergone a
          right-sided total knee replacement in about
          2004. However, since starting with defendant-
          employer in 2007, he had been able to do his
          job without difficulty.

          21. As Dr. Dean confirmed in his testimony, he
          believed that the 4 October 2011 incident
          exacerbated plaintiff’s pre-existing left
          knee arthritis condition.        As Dr. Dean
          testified, the 4 October 2011 incident was the
          straw that broke the camel’s back for
          plaintiff’s left knee condition and sent it on
          a   downward   spiral   to   the   total  knee
          replacement. Dr. Dean provided this causation
          opinion taking into account plaintiff’s
          history, plaintiff’s prior complaints in 2009
          of left knee pain, his own objective findings,
          and his experience gained through 20 years of
          practice in sports medicine.      As Dr. Dean
          noted, he had seen minimal trauma cause this
          scenario before.
                             -12-



         25. The medical treatment that plaintiff has
         received for his left knee condition since 4
         October 2011 has been reasonably required to
         effect a cure, provide relief, and/or lessen
         the period of plaintiff’s disability.

         26. Further medical treatment for plaintiff’s
         left knee condition is reasonably required to
         effect a cure and/or provide relief for his
         left knee condition.

    Defendants further challenge the Commission’s conclusions of

law 1, 3, and 4:

         1. Plaintiff sustained a compensable injury by
         accident to his left knee arising out of and
         in the course of his employment with
         defendant-employer upon the occurrence of the
         4 October 2011 incident, which injury caused
         a compensable exacerbation of plaintiff’s
         preexisting left knee arthritis condition.
         N.C. Gen. Stat. § 97-2(6); Hedges v. Wake
         Cnty. Pub. Sch. Sys., 206 N.C. App. 732, 699
         S.E.2d 124 (2010), disc. rev. denied, __ N.C.
         __, 705 S.E.2d 746 (2011).

         3. Plaintiff is entitled to have defendants
         pay for the medical treatment that he has
         received for his compensable left knee
         condition since 4 October 2011, including, but
         not limited to, the diagnostic testing and
         imaging, injections, prescriptions, surgery,
         hospitalization, physical therapy and mileage
         that plaintiff underwent or incurred while
         under the care of Dr. G. Scott Dean.      N.C.
         Gen. Stat. §§ 97-2(19) and 97-25.

         4. Plaintiff is entitled to have Dr. G. Scott
         Dean designated as his treating physician in
         this claim and to have defendants authorize
         and pay for the treatment that Dr. Dean
         recommends for plaintiff’s compensable left
         knee condition, including, but not limited to,
         diagnostic testing and imaging, physical
         therapy,   pain   management,   prescriptions,
                               -13-


          referrals and mileage.   Id.

     Defendants challenge the portion of finding of fact 5 stating

that “since starting with defendant-employer in 2007, he had been

able to do his job without difficulty,” arguing that “[t]here is

no evidence of record suggesting that Plaintiff had been able to

do his job without difficulty since 2007.”   However, they do not

challenge findings of fact 4, 12, and 19.      Finding of fact 4

establishes that “Plaintiff started [work] with defendant-employer

as a long-haul semi-truck driver in 2007.”     Finding of fact 12

states, in pertinent part, that one day after the accident, “Dr.

Andy diagnosed [Plaintiff with] a left medial knee sprain and

degenerative joint disease, and right knee pain. . . . [S]he wrote

that plaintiff could return to sedentary work, with no lifting

over five pounds, minimal walking and frequent position changes.”

Finding of fact 19 states that approximately nine to ten weeks

later, “Dr. Dean restricted plaintiff to primarily sedentary-type

activity.”

     Thus, Defendants do not dispute the fact that Plaintiff was

hired in 2007 and had been working as a truck driver from that

date until the 4 October 2011 injury.    No evidence was presented

that he was not able to do his job as a truck driver prior to 4

October 2011.   Findings of fact 12 and 19 do establish, however,

that beginning the day after his injury, Plaintiff was restricted

by Dr. Andy from performing his normal duties as a truck driver
                                -14-


and again by Dr. Dean several weeks later.     While Defendants point

to the deposition testimony of Dr. Donna Gates for the purpose of

showing that Plaintiff had complained of left knee pain on 25

November 2009 during a “wellness visit and a recheck of his chronic

medical problems,” this evidence does not suggest that Plaintiff

was unable to perform his job duties prior to the 4 October 2011

accident.

     Therefore, while it is clear that Plaintiff had degenerative

joint disease in his left knee prior to the 4 October 2011 injury,

competent evidence exists in the record that the 4 October 2011

incident    aggravated   his   left    knee   condition,   materially

restricting his ability to work.      We have consistently held that

            [a] work-related injury need not be the sole
            causative   force   to   render    an   injury
            compensable.    When a pre-existing, non-
            disabling,   non-job-related    condition   is
            aggravated or accelerated by an accidental
            injury arising out of and in the course of
            employment so that disability results, then
            the employer must compensate the employee for
            the entire resulting disability.          This
            “aggravation rule” does not bar recovery if
            there is evidence of a causal connection
            between a claimant’s current disability and a
            prior condition.   It also does not require
            that claimant suffer from new or different
            symptoms from those of which he previously
            complained; rather, the claimant must only
            demonstrate that his work-related injury
            contributed in some reasonable degree to the
            disability.
                              -15-


Brafford v. Brafford’s Const. Co., 125 N.C. App. 643, 646-47, 482

S.E.2d 34, 37 (1997) (internal citations, quotation marks, and

ellipses omitted).

    Finding of fact 21 is supported by the testimony given by Dr.

Dean during his deposition.   Indeed, finding of fact 21 largely

tracks the following statements made by Dr. Dean:

         A. Again, it just — and I think I put this in
         the note that it’s kind of like the fall, sort
         of, didn’t necessarily cause the arthritis,
         but it sent him on the — it was the straw that
         broke the camel’s back. It sent him on the
         spiraling path downward, you know, as far as
         the — I have just seen that — I have seen that
         pattern before.

         . . . .

         Q. So the decision that that’s the straw that
         breaks the camel’s back, is because he’s
         telling you that’s when it started getting
         worse?

         A. Yes.

         . . . .

         Q. . . . If he had gotten out of the truck .
         . . and fell, would that still, kind of, start
         this downward spiral.

         A. I have seen minimal trauma like that cause
         this scenario.    I have seen that pattern
         before, yes.

         Q. So if it was a fall, regardless of — I mean,
         he — there was a gravel parking lot, and he
         misstepped [sic], or if there was a hole, or
         what actually caused the trigger of the fall,
         wouldn’t really — would it impact your
         decision?
                               -16-


         A. My decision?

         Q. Or your opinion?

         A. About what really caused it?

         Q. Yes, sir.

         A. I mean, the mechanism of injury, you
         consider how much energy went into the fall,
         was it a fall from a height, was it just a
         stumble, was it a big impact? Some of that
         does, sort of, factor into does this all make
         sense with the pattern that I have seen before
         with, like, hundreds of other patients? So it
         does, kind of, factor into it. And I think
         that in his knee, with end stage bone on bone
         arthritis, it would not take very much at all
         to, kind of, tip him over the edge.

    Findings of fact 25 and 26 are also supported by the testimony

of Dr. Dean.

         Q. Dr. Dean, you first saw [Plaintiff] for
         left knee pain on December 14th, 2011, is that
         correct?

         A. (The witness reviews notes.) Yes.

         . . . .

         Q. The next time [Plaintiff]      saw   you   was
         January 6th of 2012?

         A. (The witness reviews notes.) Yes.

         Q. Excuse me. What complaints did [Plaintiff]
         have when you saw him on January 6th?

         A. (The witness reviews notes.) On January
         6th, he had reasonable relief from the left
         knee injection performed in December of 2011,
         but it was starting to wear off.

         . . . .
                    -17-


Q. . . . What recommendations for treatment
did you make regarding [Plaintiff’s] left knee
at that time?

A. On the 6th, I thought his left knee was
improved with an injection.     He did have
pretty severe arthritis. I thought he might
need a knee replacement in the future.     I
refilled his Vicodin, which is a pain
medicine, and I was going to see him back in
six months.

. . . .

Q. And what was your plan at that appointment
for treating [Plaintiff]?

A. Left knee replacement.

Q. And in fact, you performed a left knee
replacement on March 13th, 2012, is that
correct?

A. Yes.

. . . .

Q. Dr. Dean, approximately how many knee
replacements do you do in a given year? A
ballpark estimate is fine.

A. Probably 50 to 100.

Q. And in your experience, does a total knee
replacement  last   the   lifetime  of   the
recipient?

A. No.

Q. How long does it typically last?

A. Depending on the age and activity level and
weight of the patient, maybe 10 year [sic].

Q. And when a total knee replacement wears
out, what’s the recommended method for
treating that?
                                       -18-



              A. Typically, it has to be revised, based on
              the reason that it has worn out.

       Dr. Dean’s testimony also supports findings of fact 25 and 26

in that it details the history of his treatment of Plaintiff’s

knee    and     Dr.   Dean’s      accompanying      diagnoses   and   medical

recommendations.             Furthermore,     Dr.   Dean’s   testimony    that

Plaintiff’s left knee replacement was not a permanent solution and

that his left knee issues would in all likelihood need to be

addressed again in approximately 10 years supports finding of fact

26 by showing that further future medical treatment for Plaintiff’s

left knee condition will be necessary.

       Defendants     next    argue   that    Dr.   Dean’s   stated   opinions

concerning Plaintiff’s left knee injury were based solely upon

speculation and conjecture.           In making this argument, Defendants

point to the following exchange in his deposition:

              Q. Dr. Dean, I would like to ask that you
              consider the following assumption. Assuming
              that prior to October 4th, 2011 [Plaintiff]
              was asymptomatic with regards to his left
              knee,   and   that  on   October   4th,   2011
              [Plaintiff] stepped into a hole climbing out
              of the cab of his semi truck causing him to
              fall, and thereafter he had swelling, pain,
              and grinding — reports of a grinding sensation
              and a feeling of instability in his left knee.
              Assuming those facts, in your opinion, to a
              reasonable degree of medical certainty, did
              the event of October 4th, 2011 aggravate or
              accelerate the condition in [Plaintiff’s] left
              knee for which you operated on him on March
              13th, 2012?
                                       -19-


                [Defendants’ counsel]: Objection.                 You
                can go ahead.

            A. Yes.    And I think that was stated in the
            chart.

     Defendants assert that this portion of his testimony was

premised upon the following three assumptions:               (1) that Plaintiff

was asymptomatic prior to 4 October 2011; (2) that Plaintiff

stepped into a hole when he exited his tractor trailer and fell as

a result of doing so; and (3) that Plaintiff had swelling, pain,

and a grinding sensation as a result of the fall.               Defendants also

contend that this testimony served as the sole basis for Dr. Dean’s

opinion on causation and, therefore, if any of these assumptions

are unsupported by competent evidence, then Dr. Dean’s testimony

is   insufficient     to     establish      a    causal    connection     between

Plaintiff’s injury and the 4 October 2011 accident.                     We reject

Defendants’ argument.

     In   finding     of    fact   7   (a     finding     Defendants    have   not

challenged), the Commission determined that when Plaintiff’s “left

foot hit the ground, it unexpectedly landed in a hole or on some

loose gravel or sand, and plaintiff’s left knee twisted.”                      In

addition, finding of fact 8 — also unchallenged by Defendants —

states that “Plaintiff felt immediate pain in both of his knees

upon the occurrence of this incident.”

     Even   assuming       the   portion    of   the    hypothetical     question

premised on Plaintiff having been asymptomatic prior to the 4
                               -20-


October 2011 incident was not supported by competent evidence, we

do not believe that this renders Dr. Dean’s ensuing testimony

incompetent on the causation issue.   It is well established that

“[a] hypothetical question need only present sufficient facts to

allow the witness to express an intelligent and safe opinion.   It

[is] not incumbent on the plaintiff to include in his hypothetical

questions all the evidence bearing upon the fact to be proved; the

defendants ha[ve] the right to present other phases of the evidence

in counter-hypothetical questions.”   Robinson v. J. P. Stevens &

Co., 57 N.C. App. 619, 622-23, 292 S.E.2d 144, 146 (1982) (internal

citations, quotation marks, and brackets omitted).

     During his cross-examination of Dr. Dean, Defendants’ counsel

did, in fact, pose a counter-hypothetical question:

          Q.   And then if there — so if there was
          evidence to the contrary, if for example,
          there was a prior exam that showed bone on
          bone or if there was a prior diagnosis of end
          stage arthritis with associated pain, then
          that would be evidence that the fall didn’t
          cause [Plaintiff’s injury]?

          A. Again, it just — and I think I put this in
          the note that it’s kind of like the fall, sort
          of, didn’t necessarily cause the arthritis,
          but it sent him on the — it was the straw that
          broke the camel’s back. It sent him on the
          spiraling path downward, you know, as far as
          the — I have just seen that — I have seen that
          pattern before.

On redirect examination, Dr. Dean then testified as follows:

          Q. You — when [Defendants’ counsel] was
          questioning you, we’ve talked about this, kind
                                -21-


            of, the downward spiral and the trigger event
            for — or to, kind of, start somebody on that
            spiral. And I think you — I don’t want to put
            words in your mouth, but I think you indicated
            that with the arthritis that [Plaintiff] had
            that it wouldn’t take much to, kind of, start
            him on that spiral downward. If he had gotten
            out of the truck — regardless of whether there
            was a hole that he stepped in or not, but he
            got out of the truck, lost his balance, and
            fell, would that still, kind of, start this
            downward spiral?

            A. I have seen minimal trauma like that cause
            this scenario.    I have seen that pattern
            before, yes.

     We are satisfied that — taken as a whole — Dr. Dean’s opinion

testimony was sufficient to establish causation.       As such, the

Commission was entitled to rely upon his testimony that Plaintiff’s

left knee injury was causally related to his 4 October 2011

accident.

     B. Post Hoc, Ergo Propter Hoc

     Defendants also argue that Dr. Dean based his opinion on the

post hoc, ergo propter hoc logical fallacy.    We disagree.

                 The maxim “post hoc, ergo propter hoc,”
            denotes the fallacy of confusing sequence with
            consequence, and assumes a false connection
            between causation and temporal sequence. As
            such, this Court has treated the maxim as
            inconclusive as to proximate cause. . . . In
            a case where the threshold question is the
            cause of a controversial medical condition,
            the maxim of “post hoc, ergo propter hoc,” is
            not competent evidence of causation.
                                 -22-


Young v. Hickory Bus. Furn., 353 N.C. 227, 232, 538 S.E.2d 912,

916 (2000) (internal citations, quotation marks, and ellipses

omitted).

    Defendants’ argument on this issue is based on the following

portion of Dr. Dean’s testimony:

            Q: So basically, [the pain] wasn’t there on
            day one, he alleges to have the injury on day
            two, on day three he has pain. So because it
            wasn’t there before and is there now, that’s
            how you identify the injury as being the
            cause?

            A: As, I think I called it, an exacerbating
            factor, yes.

    However, Dr. Dean also testified as follows:

            Q. And the, I guess, objective ability to view
            the joint and see if it’s bone on bone or if
            there is actual cushion there that could work?

            A. Yeah. It’s really just based on his — what
            he tells me and then objectively what the knee
            is telling me. . . .

            . . . .

            Q. And then if there — so if there was evidence
            to the contrary, if for example, there was a
            prior exam that showed bone on bone or if there
            was a prior diagnosis of end stage arthritis
            with associated pain, then that would be
            evidence that the fall didn’t cause it?

            A. Again, it just — and I think I put this in
            the note that it’s kind of like the fall, sort
            of, didn’t necessarily cause the arthritis,
            but it sent him on the — it was the straw that
            broke the camel’s back. It sent him on the
            spiraling path downward, you know, as far as
            the — I have just seen that — I have seen that
            pattern before.
                      -23-



. . . .

Q. So the decision that that’s the straw that
breaks the camel’s back, is because he’s
telling you that’s when it started getting
worse?

A. Yes.

. . . .

Q. . . . If he had gotten out of the truck .
. . and fell, would that still, kind of, start
this downward spiral.

A. I have seen minimal trauma like that cause
this scenario.    I have seen that pattern
before, yes.

Q. So if it was a fall, regardless of — I mean,
he — there was a gravel parking lot, and he
misstepped [sic], or if there was a hole, or
what actually caused the trigger of the fall,
wouldn’t really — would it impact your
decision?

A. My decision?

Q. Or your opinion?

A. About what really caused it?

Q. Yes, sir.

A. I mean, the mechanism of injury, you
consider how much energy went into the fall,
was it a fall from a height, was it just a
stumble, was it a big impact? Some of that
does, sort of, factor into does this all make
sense with the pattern that I have seen before
with, like, hundreds of other patients? So it
does, kind of, factor into it. And I think
that in his knee, with end stage bone on bone
arthritis, it would not take very much at all
to, kind of, tip him over the edge.
                                  -24-


     We are satisfied that Dr. Dean’s determination that a causal

connection   existed   between    the   4    October   2011      accident   and

Plaintiff’s left knee injury was based on more than post hoc, ergo

propter hoc reasoning.     We have held that where a medical expert

relies upon something more than mere temporal sequence, a post

hoc, ergo propter hoc issue does not exist.                 See Legette v.

Scotland Mem’l Hosp., 181 N.C. App. 437, 456, 640 S.E.2d 744, 756

(2007) (“[Doctor’s] opinion testimony was not based solely on the

notion of post hoc ergo propter hoc.         [Doctor] also testified that

Plaintiff’s description of the accident was consistent with a

trauma of the type that would be associated with the development

of lymphedema in someone with Plaintiff’s medical history.”),

appeal dismissed and disc. review denied, 362 N.C. 177, 658 S.E.2d

273 (2008); see also Carr, 218 N.C. App. at 156, 720 S.E.2d at 874

(“[Doctor’s] opinion, however, was based on more than merely the

sequence of events.       In his deposition, [Doctor] stated that

although ‘a lot of it is based on timing,’ his opinion was based

on the mechanism of injury as well as the temporal relationship

between the incident and symptoms.”).

     In   the   present   case,   Dr.       Dean   relied   on    Plaintiff’s

description of the accident and his objective diagnosis of the

injury based upon his examination of “hundreds of other patients”

in reaching his opinion to a reasonable degree of medical certainty

that Plaintiff’s left knee injury was causally related to his 4
                               -25-


October   2011   accident.    Therefore,   we   reject   Defendants’

contention that Dr. Dean relied solely on post hoc, ergo propter

hoc reasoning in his opinion regarding causation.

                             Conclusion

    For the reasons stated above, the Commission’s Opinion and

Award is affirmed.

    AFFIRMED.

    Judges ELMORE and STEPHENS concur.

    Report per Rule 30(e).
