An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-653
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 7 January 2014


ROSEANNE MUCKLE,

      Employee,

      Plaintiff

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. X33108

DOLGENCORP, LLC, Employer, SELF-
INSURED (DOLLAR GENERAL RISK
MANAGEMENT, Administrator),

      Defendant.


      Appeal by Defendant from opinion and award entered 6 March

2013 by the North Carolina Industrial Commission.                      Heard in the

Court of Appeals 4 November 2013.


      Brumbaugh, Mu & King, P.A., by Kenneth W. King, Jr., for
      Plaintiff.

      Patterson Dilthey, LLP, by Phillip J. Anthony and James A.
      Barnes IV, for Defendant.


      DILLON, Judge.


      Dolgencorp,        LLC    (Defendant)   appeals      from   an   opinion   and

award   entered     by    the    Full   Commission    of    the   North    Carolina
                                       -2-
Industrial    Commission      (the   Commission)       in   favor     of   Roseanne

Muckle (Plaintiff).      For the following reasons, we reverse.

                 I. Factual & Procedural Background

      On or about 27 December 20101, Plaintiff was employed by

Defendant as a store manager at Dollar General, Inc., when she

slipped and fell while collecting shopping carts in the store’s

icy parking lot.       Plaintiff returned to work the following day,

but had difficulty performing her job duties and informed her

district manager that she needed to see a doctor.

      Plaintiff was referred to Inner Banks Urgent Care, where

she   was   examined    by    Dr.    Nancy    Brous    on   17   January     2011.

Plaintiff reported pain on the right side of her lower back and

buttocks down to her right thigh, and a tingling and numbness in

her   lower   back.      The    X-rays       taken    revealed   no    fractures;

Plaintiff was given pain medication and placed on light duty

work restrictions.

      Plaintiff returned to Dr. Brous for a follow-up examination

on 24 January 2011.          According to Dr. Brous’s notes, Plaintiff

reported that she had had “almost total resolution of her pain.”



1
  Both parties state in their briefs that the incident giving
rise to this case occurred on 27 December 2010.            The
Commission’s findings stated that the incident occurred on 26
December 2010, however, and the record evidence is conflicting
in this respect.
                                          -3-
Dr. Brous also noted: “It is a little tender in the buttock area

to touch but she has no pain and is able to stand all day.

[Plaintiff was initially placed] on light duty, but [] was never

on light duty.           She is able to do her full job.”                Dr. Brous

further noted       that she would “close this case” if Plaintiff

remained “pain free” upon returning for subsequent examination,

but     also    noted    her    concern    that    perhaps     Plaintiff’s      pain

medication was “masking any symptoms.”

      Plaintiff was examined again by Dr. Brous on 31 January

2011.     Plaintiff reported to Dr. Brous that her pain symptoms

had improved, but that she had some discomfort in her back that

grew worse       when    she did “a good deal of walking or                [] any

pulling.”       Plaintiff also reported feeling a “burning pain” from

shingles, with          which she had been diagnosed           on   the previous

visit.

      Plaintiff continued to perform her regular job duties –

which included stooping, bending, lifting, and stocking shelves

– and to work her regular hours, notwithstanding the prescribed

light    duty    work    restrictions.          Plaintiff   testified    that    the

“seasonal       slowdown”      and   resulting    payroll    reduction    for    her

store essentially forced her to work her usual shifts and that

this worsened her injury-related symptoms.                  The Commission found
                                     -4-
as fact that “during the three weeks after the January 31, 2011

medical visit, Plaintiff had to work 10 hour days, 7 days per

week to prepare for the upcoming store inventory.”

    On   25    February   2011,    Plaintiff   submitted      her   letter    of

resignation to Defendant.         Plaintiff testified that she resigned

because of the pain she was experiencing at work and that she

had indicated the same in her resignation letter.

    On   3    March    2011,   Plaintiff   presented    for    treatment      at

Carolina East Family Medicine, where she was examined by Dr.

Charles Jahrsdorfer.       Plaintiff reported the 27 December 2010

incident, that she was experiencing increased pain which she

believed was related to the incident, and that she was also

experiencing numbness from her “left buttocks down to her [left]

knee.”   (Emphasis added).        Dr. Jahrsdorfer noted that Plaintiff

exhibited a decreased range of motion in her back and diagnosed

her with back pain with radiculopathy and muscle spasms.                     Dr.

Jahrsdorfer ordered an MRI, which revealed a “moderately large”

herniated disk on Plaintiff’s right side.

    On   21    March   2011,   Plaintiff   was   examined     by    Dr.    Keith

Tucci,   a    neurosurgeon.       Plaintiff    again   reported     pain     and

numbness on her left side.         Dr. Tucci reviewed the MRI and noted

a “small disc bulge” on Plaintiff’s right side; he concluded
                                        -5-
that Plaintiff did not need surgery and instead referred her for

physical therapy.

      On 28 March 2011, Plaintiff was examined by Dr. Jahrsdorfer

for treatment unrelated to this case.                 Plaintiff did not report

any back pain on this visit.             The nurse’s notes from the visit

provide      that   Plaintiff       stated    “she    feels     fine”    and     that

Plaintiff had “[n]o further complaints.”

      Two days later, on 30 March 2011, Plaintiff filed a Form 18

notice      of   injury   seeking     workers’   compensation         benefits    in

connection with the 27 December 2010 incident and filed a Form

33 requesting that her claim be assigned for hearing.                    Defendant

filed a Form 63 agreeing to pay medical benefits, but agreed to

do so without prejudice, expressly reserving the right to later

deny the compensability of Plaintiff’s alleged injury.

      On 2 August 2011, Plaintiff returned to Dr. Jahrsdorfer for

treatment unrelated to the 27 December 2010 incident.                          During

this visit, however, Plaintiff reported that she had continued

to experience increasing back pain.

      On 27 October 2011, Plaintiff presented for treatment at

the Center for Scoliosis & Spinal Surgery in Greenville, where

she   was    examined     by   an   orthopedic       surgeon,   Dr.     Scot   Reeg.

Plaintiff reported to Dr. Reeg that she had been experiencing
                                        -6-
pain in her right side.            Dr. Reeg reviewed Plaintiff’s MRI and

noted a large ruptured disk on Plaintiff’s right side.                     Dr. Reeg

determined      that    Plaintiff’s     symptoms    –   which    included    right-

sided back and leg pain, limping, and a “neurologic deficit” in

the leg – were consistent with both his physical examination of

Plaintiff and the MRI and thus believed that Plaintiff’s case

was “straightforward.”

       Meanwhile, a hearing concerning Plaintiff’s injury and the

27 December 2010 incident was held before Deputy Commissioner

Mary     C.     Vilas   on    20   September       2011.        However,     Deputy

Commissioner Vilas filed an order holding the record open until

21 December 2011, in order to give the parties a chance to

depose    their      witnesses,    which   included     Dr.     Jahrsdorfer,    Dr.

Tucci, and Dr. Reeg.

       On 27 August 2012, Deputy Commissioner Vilas entered an

opinion       and   award   requiring   that   Defendant      “pay   all    medical

expenses incurred or to be incurred as a result of [Plaintiff’s

27 December 2010] compensable injury[.]”                Defendant appealed to

the Commission, which, on 6 March 2013, filed an opinion and

award affirming the Deputy Commissioner’s opinion and award with

minor modifications.           The Commission concluded that Plaintiff

had “sustained a compensable injury to her back . . . as a
                                          -7-
result of an injury by accident arising out of and in the course

of     her    employment     with    Defendant”      and,     consequently,     that

Defendant was required to “pay Plaintiff temporary and total

disability compensation at a rate of $420.47 per week from the

date     of    Plaintiff’s    resignation       on   February     25,    2011   and

continuing until Plaintiff returns to work or further Order of

the    Commission.”        From     the   Commission’s       opinion    and   award,

Defendant now appeals.

                                    II. Analysis

       Defendant contends that the Commission “erred in finding

and concluding that Plaintiff’s alleged symptoms after January

2011 were casually related to her 27 December 2010 injury.”                       We

agree.

       Our standard of review is well-established:

              Our review of an opinion and award by the
              Commission is limited to two inquiries: (1)
              whether there is any competent evidence in
              the record to support the Commission’s
              findings of fact; and (2) whether the
              Commission’s    conclusions  of    law   are
              justified by the findings of fact. If
              supported    by   competent  evidence,   the
              Commission’s findings are conclusive even if
              the evidence might also support contrary
              findings. The Commission’s conclusions of
              law are reviewable de novo.

Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442–43, 640

S.E.2d        744,   748      (2007)      (internal         citations    omitted).
                                       -8-
Furthermore, “[i]t is well established in North Carolina that

the Workers’ Compensation Act should be liberally construed and

that [w]here any reasonable relationship to employment exists,

or employment is a contributory cause, the court is justified in

upholding the award as arising out of employment.”                    Hollin v.

Johnston County Council on Aging, 181 N.C. App. 77, 84, 639

S.E.2d 88, 93 (2007) (citations and quotation marks omitted)

(second   alteration    in    original).      “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.”

Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414

(1998).

    There is no dispute that Plaintiff was working within the

scope of her employment when she slipped and fell in the Dollar

General parking lot on 27 December 2010.              Rather, the point of

contention    raised   is    whether    the   27    December   2010    incident

caused Plaintiff’s present condition, such that her condition is

compensable under the workers’ compensation provisions of our

General Statutes.      Plaintiff argues that her “current medical

condition    is   causally    related    to   her   compensable   injury     by

accident of 27 December 2010” and that the Commission’s findings
                                             -9-
and conclusions in this respect are supported by the competent

evidence of record.            Defendant argues that the expert testimony

presented     in     this      case       was    insufficient      to      support     the

Commission’s conclusion “that Plaintiff’s alleged symptoms after

January     2011   were     causally        related    to    her   27    December      2010

injury.”

      The   claimant      in    a    workers’      compensation         claim   “has    the

burden of proving that his claim is compensable.”                         Henry v. A.C.

Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761

(1950).        The    plaintiff           must     “produce    competent        evidence

establishing each element of compensability, including a causal

relationship between the work-related accident and his or her

injury.”     Castaneda v. Int’l Leg Wear Grp., 194 N.C. App. 27,

31,   668    S.E.2d    909,         913    (2008);     see    Hollar      v.    Montclair

Furniture Co., Inc., 48 N.C. App. 489, 490, 269 S.E.2d 667, 669

(1980)    (providing      that      a     workers’    compensation       claimant      must

prove (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”).                              “Although

the employment-related accident ‘need not be the sole causative

force to render an injury compensable,’ the plaintiff must prove

that the accident was a causal factor by a ‘preponderance of the
                                         -10-
evidence.’”         Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581

S.E.2d 750, 752 (2003) (citations omitted).

      Our Supreme Court has stated the following with respect to

the role of expert testimony in establishing causation:

            In cases involving ‘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.’     ‘However,
            when such expert opinion testimony is based
            merely upon speculation and conjecture, . .
            . it is not sufficiently reliable to qualify
            as competent evidence on issues of medical
            causation.’ ‘[T]he evidence must be such as
            to take the case out of the realm of
            conjecture and remote possibility, that is,
            there must be sufficient competent evidence
            tending    to  show   a   proximate    causal
            relation.’

Id.   at   232,     581    S.E.2d   at   753    (internal    citations    omitted)

(alterations in original).

      Here,       the     Commission     determined      that    causation     was

established       through     the   deposition      testimony     of    Dr.   Reeg.

Although      the       evidence    indicated     that      Plaintiff    initially

reported pain in her right side to Dr. Brous on 17 January 2011;

reported “almost a total resolution of her pain” at a follow-up

visit with Dr. Brous on 24 January 2011; reported improvement in

her back pain in an additional follow-up with Dr. Brous on 31

January 2011; reported pain and numbness in her left side to Dr.
                                      -11-
Jahrsdorfer on 3 March 2011; reported pain and numbness on her

left side to Dr. Tucci on 21 March 2011; did not report any back

pain when she was examined by Dr. Jahrsdorfer on 28 March 2011,

but stated she felt “fine”; and reported pain in her right side

when   she   was   examined   by   Dr.   Reeg      on   27   October   2011,   the

Commission     concluded,     based   on     Dr.    Reeg’s     testimony,      that

causation had been established as follows:

             29. Dr. Reeg was asked during his deposition
             if Plaintiff would “be expected to have
             symptomology on her left side with a right-
             sided   dis[c]   presentation?”      Dr.   Reeg
             explained   that    if   a   patient    has   a
             significantly ruptured disc that has mass
             effect on the nerve, or the nerve is
             pinched, causing radicular pain, then the
             symptoms tend to stay one-sided. He further
             explained that “[i]f it’s a smaller disc
             herniation     where    there’s    significant
             disruption of the disc, sometimes you’ll see
             flipping back and forth depending on how the
             disc leaks rather than compresses the nerves
             and so I think it depends on the nature of
             the disc pathology that’s taking place in
             the canal and epidural space.”

             30. Based on the preponderance of the
             evidence in view of the entire record,
             including but not limited to careful review
             of the medical evidence, the MRI report and
             the testimony of Doctors Jahrsdorfer, Tucci
             and Reeg, the Full Commission finds that
             Plaintiff has disc herniations . . . . The
             Full Commission further finds that Plaintiff
             fairly    consistently    had    right-sided
             symptoms, with left-sided symptoms noted
             when she saw Dr. Tucci on March 21, 2011.
             Dr. Reeg was clear in his testimony that he
                                         -12-
            frequently sees symptoms present in patients
            in different areas than one would typically
            expect and that he had no reason to doubt
            the veracity of Plaintiff’s presentation of
            her condition.

            31. Based upon a preponderance of the
            evidence in view of the entire record, the
            Full Commission finds that both Plaintiff’s
            right-sided low back and lower extremity and
            occasional    left-sided    lower    extremity
            presentation of her symptoms are causally
            related    to   her   December    2[7],   2010
            compensable injury by accident.

      We   conclude   that   the     Commission’s        findings   of   fact    are

inadequate to support its conclusion concerning causation set

forth in “finding of fact” 31.2               The Commission makes no finding

that Dr. Reeg – or any other medical expert – stated his opinion

that Plaintiff’s injuries were, in fact, causally related to her

workplace fall. Further, our careful review of the deposition

transcript    reveals    that      Dr.        Reeg   expressly   refrained      from

offering such an opinion.          Rather, he testified that he had not

reviewed Plaintiff’s medical records – other than the MRI taken

by   Dr.   Jahrsdorfer   –   prior       to    his   testimony   and   that,    upon

learning of Plaintiff’s reports to other physicians, he could

not express any opinion with respect to causation in this case.
2
  We re-characterize improperly labelled “findings of fact” as
conclusions of law, which, as such, must be supported by the
competent evidence of record.   State v. Sparks, 362 N.C. 181,
185–86, 657 S.E.2d 655, 658 (2008) (reviewing de novo a
conclusion of law that the trial court had mislabeled as a
finding of fact).
                                 -13-
For instance, when asked whether Plaintiff’s pain “on one side

or the other” was related to the 27 December 2010 incident, Dr.

Reeg   responded:   “I   think   someone   will   have   to   make   a

determination on looking through these records.      I’m not sure I

can resolve that for you.”       Moreover, when Plaintiff’s counsel

asked Dr. Reeg whether he would be able to offer his opinion on

causation if he were able to review Plaintiff’s MRI, Dr. Reeg

responded, “I don’t think so.”     The exchange between Plaintiff’s

counsel and Dr. Reeg proceeded as follows:

          Q: Okay. What additional information . . .
          do you need in order to resolve that issue:

          A: The history comes in significantly in
          making that determination and the history is
          a little muddled by some of what I’ve heard
          tonight so that makes it harder. . . .

          [W]hen I saw her in the office I thought it
          was   pretty    straightforward.  She   was
          complaining solely of right-sided pain with
          right-sided pathology on MRI. I didn’t have
          a lot of question about it, but when called
          upon to make an opinion on no right but
          left-sided symptoms it’s hard for me to
          explain that.   That is not typical for her
          type of pathology that I saw her with in
          October.

          Q: Would it make a difference if the
          evidence showed that the only time she
          complained of left-lower extremity pain was
          in the one medical visit that she had with
          Dr. Tucci on March 21, 2011?

          A: No.    I mean, I wouldn’t change my opinion
                                      -14-
            if it was one time or three times. I still
            can’t explain why suddenly her symptoms
            would switch from one side to the other
            based   on  medical   reasons.     The   disc
            pathology in the spine is not going to be
            flopping from one side to the other so to me
            that’s not an anatomical issue there. . . .

            When I see her in the office, you know, I’m
            not looking to established causality at that
            point.   . . .   But I would say . . . that
            [the]   constellation  of   symptoms  as  it
            relates to her anatomical problem are hard
            for me to explain because they are not
            typical for people that have a significant
            acute disc herniation.     So . . . with a
            reasonable degree of medical certainty can I
            establish causality to her symptoms?       I
            can’t. I’m not going to necessarily try to
            prove it or disprove it.     I’m just saying
            that presentation is not consistent.

Notwithstanding       the     foregoing,      Plaintiff’s       counsel     again

attempted      to   elicit    an    opinion   from      Dr.   Reeg    concerning

causation:

            Q: Okay.    Do you have an opinion to a
            reasonable degree of medical probability as
            to whether the mechanism of her injury, the
            fall in December of 2010, more likely than
            not caused the herniated disc that was shown
            on the MRI?

            A: I don’t.

    Finally,        Plaintiff’s     counsel     asked     whether     Dr.     Reeg

believed that it was possible that Plaintiff’s fall could have

caused her injury.           Dr. Reeg responded that the mechanism of

injury   was    possible,     but   “it    would   be    hard   for   [him]    to
                                       -15-
establish causation based on some of the information that has

come to bare tonight.”

      In Edmonds v. Fresenius Med. Care, 359 N.C. 313, 608 S.E.2d

755 (2005), our Supreme Court reversed this Court’s decision to

affirm   the   Commission’s      award    of     benefits,       and   adopted        the

dissenting opinion in that case, which stated that an expert’s

testimony that an action “possibly” or “could or might” have

caused an injury “does not rise above a guess or speculation and

does not meet the [causation] requirements set forth in Holley”

and, further, that it was “not the role of the Commission to

render   expert      opinions   [in]    cases        involving   complex        medical

questions, [where] only an expert can give opinion evidence as

to the cause of an injury.”            Edmonds v. Fresenius Med. Care, 165

N.C. App. 811, 818-19, 600 S.E.2d 501, 506 (2004) (Steelman, J.,

dissenting) (citing Holley, 357 at 232, 581 S.E.2d at 753).

      Here,    the   Commission    concluded          that    causation       had   been

established based on testimony from Dr. Reeg that there was a

generalized possibility that the workplace accident might have

caused Plaintiff’s injuries; and, in so concluding, ignored Dr.

Reeg’s   explicit      testimony       that     he    was     unable     to    draw    a

conclusion concerning causation in this case.                    We conclude that

Dr.   Reeg’s      testimony,    like      the        expert    opinion        testimony
                                   -16-
presented in Edmonds, was insufficient to meet the requirements

concerning causation testimony as set forth by our Supreme Court

in Holley.

    Accordingly, we hold that Plaintiff has failed to carry her

burden   of   establishing   a   causal    connection   between   the   27

December 2010 incident and the injuries underlying her present

workers’   compensation   claim.     The   Commission’s   6   March   2013

opinion and award is

    REVERSED.

    Chief Judge MARTIN and Judge STEELMAN concur.

    Report per Rule 30(e).
