An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-932
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 April 2014


MARY B. BENTLEY, Employee,
     Plaintiff,

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. 609188
REVLON, INC., Employer, and CNA
INSURANCE COMPANY, Carrier,
Defendants.

MARY B. BENTLEY, Employee,
Plaintiff

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. X22096
REVLON, INC., Employer, and ESIS
INSURANCE COMPANY, Carrier,
     Defendants.


      Appeal by Plaintiff from opinion and award entered 13 March

2013 by the North Carolina Industrial Commission.                   Heard in the

Court of Appeals 23 January 2014.


      Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and
      George W. Lennon, for Plaintiff.

      Teague Campbell Dennis & Gorham, L.L.P., by Carla M. Cobb
      and Heather T. Baker, for Defendants.


      DILLON, Judge.
                                         -2-


      Mary B. Bentley (Plaintiff) appeals from an opinion and

award     of   the     North     Carolina       Industrial       Commission      (Full

Commission     or     Commission)    (1)       denying    her    claim    for        total

disability      benefits       pertaining      to   a    compensable     injury         by

accident that she sustained on 28 December 1995 (1995 injury)

while working within the scope of her employment with Defendant

Revlon, Inc. (Revlon); and (2) denying her subsequent claim that

she developed an occupational disease as a result of performing

her various job duties during her career at Revlon.                           For the

following reasons, we affirm.

                      I. Factual & Procedural Background

      The evidence presented before the Commission tended to show

the   following:         Plaintiff    was      employed     by    Revlon,       or    its

corporate      predecessors,      from   1983       to   2011.        Plaintiff       was

initially hired as an Inventory Technician to perform assembly

work.

      From 1995 to 1999, Plaintiff worked as a Group Packaging

Leader.     On 28 December 1995, Plaintiff sustained serious injury

to her head, neck, right shoulder, and arm, when she was struck

in the face multiple times by an air hose.                       Plaintiff sought

treatment      from    several     doctors      following       the   1995      injury,
                                            -3-
including Dr. Robert Price, who, in 2000, noted that Plaintiff

had also developed mild carpel tunnel syndrome.

        In   an    opinion     and       award    entered     17    March       2003,   the

Commission        ordered    that       Revlon    pay   all   medical       compensation

necessitated by the 1995 injury.                    The 2003 opinion and award

expressly      left   open        the    “issue    of   what,      if    any,    permanent

partial disability compensation shall be payable to plaintiff .

.   .   until      such     time    as    plaintiff     reaches         maximum    medical

improvement.”

        From 1999 to 2007, Plaintiff worked as a Packaging Services

Clerk, which generally required her to use both hands to package

daily work orders and to perform data entry, though she was

assigned certain work restrictions by Dr. Daphne Cates at Vance

Family       Medicine,      who     was    treating      Plaintiff        for     migraine

headaches, chronic sinusitis, and neck pain associated with her

1995 injury.

        In January 2007, Plaintiff was promoted to the position of

Inventory Technician II, where she worked until she left her

employment with Revlon in 2011.                   Revlon modified the job duties

ordinarily associated with the Inventory Technician II position

to accommodate Plaintiff’s condition and work restrictions.                              In

this new position, Plaintiff performed tasks such as keying in
                                        -4-
data, putting together work folders, and delivering the work

folders to the manufacturing floor.

    On 1 December 2010, Plaintiff presented for treatment at

Raleigh Orthopaedic Clinic, where she was evaluated by a hand

specialist, Dr. Harrison G. Tuttle.                 Plaintiff reported to Dr.

Tuttle that she had been experiencing increasing pain throughout

her right upper extremity over the course of the past year and

that she believed that her pain was “directly associated with

work.”    At that time, Dr. Tuttle completed a “Repetitive Motion

Medical Questionnaire” in which he indicated that Plaintiff’s

job duties placed her at an increased risk of developing, and

caused or significantly contributed to, Plaintiff’s repetitive

motion related injuries, namely, tenosynovitis, tendonitis, and

carpal tunnel syndrome on her right side.

    On 6 January 2011, Plaintiff filed an occupational disease

claim    with    the    Commission,   citing       upper   extremity    conditions

caused   by     the    repetitive   nature    of    her    job   duties.         Revlon

thereafter filed a Form 61 denying Plaintiff’s claim, contending

that Plaintiff had “not sustain[ed] an occupational disease as

[defined]       by     the   NC   Worker’s    Compensation       Act”      and    that

Plaintiff’s “job did not cause and/or place her at an increased

risked to develop her [alleged] conditions.”
                                        -5-
      Plaintiff    worked    intermittently          at    Revlon      following   her

December    2010   appointment      with       Dr.   Tuttle      and    had   stopped

working altogether by March 2011 due to her physical condition.

      Plaintiff’s claim for disability compensation relating to

the 1995 injury and her separate occupational disease claim were

consolidated       and     scheduled       for       hearing        before     Deputy

Commissioner George R. Hall, III, on 3 November 2011.                          On 28

October 2011, counsel for Revlon provided Plaintiff’s counsel

with a video of an individual performing the job duties required

of an Inventory Technician II, the position in which Plaintiff

held from 2007-2011, along with a written job description for

that position.      Both the video and the written job analysis were

compiled     by    Gina      Vieceli,      a     vocational          rehabilitation

specialist.

      Plaintiff requested permission to introduce her own video

evidence, depicting the job duties associated with the positions

she   had   held   at    Revlon   prior    to    2007     when   she     assumed   the

Inventory    Technician      II   position.          The    Deputy      Commissioner

indicated that he would rule on Plaintiff’s request at a later

date, should Plaintiff still wish to present countering evidence

upon reviewing Revlon’s video and job analysis.
                                         -6-
    Following the hearing, the Deputy Commissioner informed the

parties that the record would remain open until 3 February 2012

“to obtain . . . the medical and lay evidence necessary to

complete     the    record.”         Plaintiff       deposed      Dr.    Tuttle,       who

testified that he had diagnosed Plaintiff with tenosynovitis,

dorsal wrist tendinitis, and carpel tunnel and                          that, in his

opinion,   Plaintiff’s       work     at     Revlon      caused     these    maladies.

Plaintiff also deposed Dr. Cates, who opined that Plaintiff was

more likely than not permanently and totally disabled due to the

combined effect of her hand and arm conditions with the chronic

headaches,      sinusitis,     and    neck    pain      resulting    from       the   1995

injury and that Plaintiff could no longer perform her job.

    Defendant deposed Ms. Vieceli and Dr. George Edwards, an

orthopedic surgeon who specializes in hand and upper extremity

surgery,   who      testified    that,       in   his    opinion,       there    was    no

evidence   of      any   “strenuous    or     repetitive     motions        [associated

with the Inventory Technician II position, which Plaintiff held

beginning in 2007] that would be expected to cause” Plaintiff’s

upper extremity conditions.

    On 9 February 2012 – six days after the deadline imposed by

the Deputy Commission to present evidence - Plaintiff moved to

present video evidence of her job duties for the positions she
                                          -7-
held at Revlon prior to 2007, to which Revlon objected.                             The

Deputy Commissioner denied Plaintiff’s motion.

       On 23 July 2012, the Deputy Commissioner entered an opinion

and award in Plaintiff’s favor on both her claims, determining

that     Plaintiff’s       upper     extremity           conditions         constituted

compensable     occupational         diseases          and     that     the    evidence

established     that   Plaintiff         had    been    “totally      disabled    since

March 23, 2011 and that this disability [was] related to both

her 1995 and 2010 workers’ compensation claims.”

       Revlon   appealed    to     the    Full    Commission,         and   Plaintiff’s

claims came on for hearing on 29 November 2012.                        On 12 December

2012, the Commission requested that Revlon submit a proposed

opinion   and   award.      In     the    wake    of    this    request,      Plaintiff

contacted the Commission and requested that “if the Commission

[was] not satisfied with the amount of evidence regarding the

nature of [her] job duties, . . . the record be reopened to

allow the videotaping of all of the jobs [she] performed for

[Revlon] . . . .”

       On 13 March 2013, the Commission entered an opinion and

award – with one member dissenting without written opinion –

reversing the Deputy Commissioner’s decision.                         In its ruling,

the Full Commission (1) denied Plaintiff’s request to present
                                                   -8-
videotape evidence depicting her job duties prior to 2007; (2)

denied Plaintiff’s request for additional temporary partial or

temporary total disability benefits relating to her 1995 injury;

(3) awarded Plaintiff medical benefits pertaining to her 1995

injury       to    the     extent          of     her    permanent        partial           impairment

ratings, a matter that had been left open for determination by

the    Commission’s          2003          opinion       and    award;         and         (4)   denied

Plaintiff’s             occupational             disease       claim,          concluding             that

Plaintiff         had    “failed       to       establish      that      she    suffers          from   a

compensable occupational disease within the meaning of N.C. Gen.

Stat. § 97-53.”            From this opinion and award, Plaintiff appeals.

                                            II. Analysis

       Our    review        of       the        Commission’s        opinion          and     award      is

generally         limited       to    a     determination           of    whether           competence

evidence supports the Commission’s findings of fact and whether

such     findings         are    sufficient              to    support         the     Commission’s

conclusions of law.                  Legette v. Scotland Mem'l Hosp., 181 N.C.

App. 437, 442, 640 S.E.2d 744, 748 (2007).                                 Findings supported

by    competent         evidence       are        binding      on   appeal,          “even       if    the

evidence might also support contrary findings.                                  The Commission’s

conclusions of law are reviewable de novo.”                               Id. at 442-43, 640

S.E.2d at 748 (citations omitted).
                                           -9-
      In    the        present    case,       Plaintiff       appeals        from    the

Commission’s opinion and award denying her occupational disease

claim    and     denying    her    claim      for    total    disability      benefits

pertaining to her 1995 injury.                We address each claim separately

below.

                         A. Occupational Disease Claim

      Plaintiff first argues that the Commission erred in denying

her occupational disease claim.               We disagree.

      A claimant seeking relief under the Workers’ Compensation

Act      bears     “the      burden      of      proving       each     element      of

compensability[.]”           Holley     v.    ACTS,    357    N.C.    228,    234,   581

S.E.2d 750, 754 (2003).            An individual seeking benefits for an

occupational disease must prove, inter alia, that there exists

“a causal relationship between the disease and the employment.”

Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101,

105-06 (1981).

      Here,      the     Commission       denied       Plaintiff’s      occupational

disease claim, reasoning that Plaintiff had failed to present

competent evidence on the issue of causation.                    Specifically, the

Commission       concluded       that   “the        exact    nature    and    probable

genesis” of Plaintiff’s condition “involved complicated medical

questions” such that “only an expert can give competent opinion
                                               -10-
evidence as to the cause.”                 See Click v. Freight Carriers, 300

N.C. 164, 265 S.E.2d 389 (1980) (holding that evidence in the

form    of     expert     testimony       is    required      to   meet     an   employee’s

burden of proof where the cause of the employee’s condition

involves       complex       medical      questions         “far     removed      from    the

ordinary experience and knowledge of laymen”).                            The Commission

further      found    that    the    expert       opinion     concerning         this    issue

provided by Plaintiff’s expert, Dr. Tuttle, was speculative and

inconsistent”        and,     therefore,         did   “not    constitute        sufficient

medical        evidence      to     satisfy       Plaintiff’s        burden       of     proof

[regarding causation].”               See Young v. Hickory Bus. Furn., 353

N.C. 227, 538 S.E.2d 912 (2000) (holding that expert opinion

based     on     speculation        and        conjecture     is     “not    sufficiently

reliable to qualify as competent evidence on issues of medical

causation”).         We believe that these conclusions – that Plaintiff

failed to meet her burden of presenting competent evidence to

support an essential element of her claim, namely causation –

supports       the   Commission’s         decision      to    deny    her    occupational

disease claim.

       Further,      we    believe     that      the   Commission      made      sufficient

findings        to   support        its    conclusions.              Specifically,        the

Commission found as follows:
                                   -11-
              27.   Dr. Tuttle admitted at his deposition
              that he could not state how repetitive
              Plaintiff’s jobs were and that he could not
              remember if he ever knew how repetitive her
              jobs were.    Dr. Tuttle also admitted that
              his opinions “were based on [Plaintiff’s]
              descriptions of her job to me” and that he
              did not recall specifically what Plaintiff
              had told him about her jobs as it was never
              documented in his notes. . . .

              28.    Based on the preponderance of the
              evidence of record, the Full Commission
              finds that Dr. Tuttle’s opinions pertaining
              to “increased risk” and causation were not
              based on a sufficient understanding of the
              specific    exact    duties   required    in
              Plaintiff’s various positions with employer
              and   were   not  based   on  a   sufficient
              understanding of the frequency in which
              those duties were performed.

The   Commission    determined,   essentially,       that   Dr.   Tuttle   had

expressed an opinion that the repetitive nature of Plaintiff’s

job duties had been a cause of her upper extremity conditions,

but that Dr. Tuttle could not recall precisely what Plaintiff’s

job duties were or the repetitiveness with which Plaintiff had

performed them.

      Finally, we believe there was competent evidence in the

record   to    support   the   Commission’s    findings     concerning     Dr.

Tuttle’s      opinion,   specifically     in   Dr.    Tuttle’s    deposition

testimony.       Plaintiff argues that during his deposition, Dr.

Tuttle testified that “he spoke at length to [Plaintiff] about
                                          -12-
her work”; that he had been provided with descriptions of the

job duties for the various positions that Plaintiff had held;

that “both the weight involved and the repetitive nature of the

upper extremities activities contribute[d] to the development of

[Plaintiff’s] medical conditions”; and that it was his opinion

that,       “to   a     reasonable       degree     of     medical      probability,

[Plaintiff’s job duties] were a substantial contributing factor

in    the    onset    of     her    [occupational    disease.]”         Defendants,

however,      point     to    the     following   portions      of   Dr.     Tuttle’s

testimony on cross-examination, in which Dr. Tuttle indicates

his    inability      to     recall    Plaintiff’s       job   duties   or    whether

Plaintiff had ever informed him of the repetition with which she

had performed those duties:

              Q:   When you completed [the Repetitive
              motion medical questionnaire in] December
              2010, did you even know what [Plaintiff’s]
              job duties were?

              [Dr. Tuttle]: . . . [S]he described her
              work duties.     I don’t remember if she
              described it comprehensively, but she went
              over them with me.

              . . . .

              Q.: . . . [W]ould that change your opinions
              about whether or not her job placed her at
              an increased risk of developing . . . ?

              [Dr. Tuttle]: It just depends on the amount
              of repetition that she actually had to do.
                                       -13-


            . . . .

            Q:   But you don’t know exactly how often or
            how repetitive her job duties were?

            [Dr. Tuttle]: At      this    particular      second    I
            can’t tell you.

            Q:    Have you ever known?

            [Dr. Tuttle]: I don’t remember.                She     may
            have gone over that with me.

            . . . .

            Q:   And you don’t know how many times she
            was doing particular functions; is that
            correct?

            [Dr. Tuttle]: At this point, I don’t. . . .
            [A]t   this point I don’t remember the
            details.

            . . . .

            Q:    What did she tell you about her job?

            [Dr. Tuttle]:     I don’t remember.

            Q:   Okay.    Was it ever documented in your
            notes?

            [Dr. Tuttle]:     Doesn’t look like it.

While we recognize that the record reveals evidence indicating

that Dr. Tuttle may have had some understanding of Plaintiff’s

job   duties,    and   the   repetitive       nature   with   which      she   had

performed   those      duties,   the    foregoing      testimony    constitutes
                                        -14-
evidence in support of the Commission’s findings concerning Dr.

Tuttle’s lack of factual basis for his opinion.

    Plaintiff advances two arguments to support her contention

that the Commission erred in decision to deny her occupational

disease   claim.       Plaintiff       first   argues    that   the    Commission

“abused its discretion by simultaneously finding Plaintiff did

not present enough evidence of her job duties while also denying

her motion to videotape her job duties.”                    Second, Plaintiff

argues that the Commission erred by not making findings “about

the corroborating evidence in this case, including both Revlon’s

job descriptions of plaintiff’s jobs in the 1980’s and 1990’s

and the testimony of [a lay witness who gave fact testimony

regarding    Plaintiff’s         job   duties].”     However,    even    assuming

arguendo, that Plaintiff is correct in her arguments, we hold

that the Commission’s failure to consider Plaintiff’s proposed

additional    evidence       –     which,    Plaintiff     avers,     would   have

provided the Commission’s with a better understanding of her job

duties and the repetitive nature thereof – did not constitute

reversible    error.         Specifically,         the   Commission      properly

determined    that,    due       to    the   complicated    medical     questions

involved, Plaintiff was required to present expert testimony in

order to meet her burden of proof with respect to the element of
                                           -15-
causation.      In other words, the Commission’s decision to deny

Plaintiff’s      claim     did     not     rest      upon     any   failure      by   the

Commission to understand the repetitive nature of Plaintiff’s

job   duties,    but     rather     upon      Plaintiff’s       failure     to    present

medical testimony from an expert witness who demonstrated an

understanding of Plaintiff’s job duties sufficient to form a

credible opinion concerning the plausibility that such duties

caused    Plaintiff’s       upper        extremity          conditions.          Notably,

Plaintiff does not contest the Commission’s conclusion that Dr.

Tuttle’s testimony was speculative and, as such, insufficient to

satisfy   Plaintiff’s       burden       in    proving       causation      through   the

opinion of an expert.            Accordingly, Plaintiff’s arguments, even

if correct, do not warrant reversal of the Commission’s decision

to deny her occupational disease claim.

          B. 1995 Injury and Permanent Disability Benefits

      Plaintiff     next        contends      that    the     Commission      erred    in

denying her claim for additional temporary partial or temporary

total disability benefits pertaining to her 1995 injury.                               We

disagree.

      “Disability”        for     workers’        compensation      purposes       “means

incapacity      because    of     injury      to     earn    the    wages    which    the

employee was receiving at the time of injury in the same or any
                                     -16-
other employment.”         N.C. Gen. Stat. § 97-2(9) (2011).        In the

present     case,   Plaintiff     seeks   “additional”   total   disability

benefits,     in    that    the   Commission    has   previously   awarded

Plaintiff – via its 2003 opinion and award – total disability

benefits pertaining to the 1995 injury for certain time periods

between October 1996 and May 1998.           To prove the existence of a

disability, Plaintiff was required to demonstrate each of the

following:

            (1) that [she] was incapable after [her]
            injury of earning the same wages [she] had
            earned before [her] injury in the same
            employment, (2) that [she] was incapable
            after [her] injury of earning the same wages
            [she] had earned before [her] injury in any
            other   employment,  and   (3)  that   [her]
            incapacity to earn was caused by [her]
            injury.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,

683 (1982).     Further, a claimant such as Plaintiff may carry her

burden with respect to the foregoing elements by introducing any

the following types of evidence before the Commission:

            (1) . . . medical evidence that [she] is
            physically or mentally, as a consequence of
            the work related injury, incapable of work
            in any employment; (2) . . . evidence that
            [she] is capable of some work, but that
            [she] has, after a reasonable effort on
            [her] part, been unsuccessful in [her]
            effort to obtain employment; (3) . . .
            evidence that [she] is capable of some work
            but that it would be futile because of
            preexisting    conditions,    i.e.,    age,
                                        -17-
            inexperience, lack of education, to seek
            other employment; or (4) . . . evidence that
            [she] has obtained other employment at a
            wage less than that earned prior to the
            injury.

Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765,

425 S.E.2d 454, 457 (1993) (citations omitted).

       We conclude that the competent record evidence supports the

Commission’s findings, which, in turn, support the Commission’s

conclusion that Plaintiff failed to demonstrate her entitlement

to total disability benefits.             In its 2003 opinion and award,

the    Commission    determined    that       Plaintiff   was   temporarily      and

totally disabled for several periods spanning from 1 October

1996   through   7   May   1998.        The    Commission’s     findings    in   the

present case indicate that, following May 1998, Plaintiff worked

for    roughly   twelve    years   without       incident     prior    to   seeking

treatment from Dr. Tuttle in December 2010 and, moreover, that

such    treatment    pertained     to    Plaintiff’s      alleged     occupational

disease.     These findings support the Commission’s grounds for

denying Plaintiff’s claim for total disability benefits, namely,

that any total disability for purposes of the present case was a

product of Plaintiff’s upper extremity conditions – with respect

to which, as we have held, supra, Plaintiff failed to meet her

burden in proving the existence of an occupational disease - and
                                      -18-
not a product of her 1995 injury.

     Plaintiff contends that the Commission incorrectly employed

a   heightened     standard      in    denying    her     total    disability

compensation     for   her    1995    injury,    specifically,     that   the

Commission required her to prove that her 1995 injury solely

caused,   rather   than      merely   contributed   to,    her    disability.

Plaintiff focuses on the following portion of the Commission’s

conclusion of law 5 as the source of this alleged error:

           Plaintiff has never been medically excused
           from work solely as a result of her
           compensable injury by accident on December
           28, 19951 and has remained successfully
           employed with [Revlon] until she was no
           longer able to work due to her non-
           compensable upper extremity conditions. The
           Full Commission finds that Plaintiff has
           failed to present evidence of disability
           related   to    her   compensable  injury   by
           accident of December 28, 1995 under any of
           the accepted Russell criteria; therefore,
           Plaintiff has not established disability as
           a result of her compensable injury by
           accident on December 28, 1995 and is not
           entitled     to     payment    of    indemnity
           compensation for total disability.

1
  We note that, as previously stated, Plaintiff “was temporarily
and totally disabled” during several time periods between 1
October 1996 and 7 May 1998 and thus it would appear that
Plaintiff did miss work due to the 1995 injury.      Because the
Commission has already awarded Plaintiff compensation for those
periods of disability in its 2003 opinion and award, however, we
construe the Commission’s statement in conclusion of law 5 to
mean that Plaintiff had not been excused from work since the
2003 award solely as result of the 1995 injury.
                                       -19-
(Emphasis added).          Plaintiff’s contention is unpersuasive. We

disagree with Plaintiff’s characterization of conclusion of law

5, which we believe is more appropriately interpreted not as

imposing an erroneous standard, but rather as reinforcing the

Commission’s      finding    that    Plaintiff   had   not    missed    any   work

since May 1998 due to her 1995 injury, but rather that that any

work    missed     by   Plaintiff    after    May   1998     was   a   result   of

Plaintiff’s upper extremity conditions.                As stated above, the

competent    evidence        of     record    supports       the   Commission’s

conclusion   in     this    respect.     Plaintiff’s       contention    on   this

issue is accordingly overruled.

                                  III. Conclusion

       For the foregoing reasons, we affirm the Commission’s 13

March 2013 opinion and award.

       AFFIRMED.

       Judges STROUD and HUNTER, JR. concur.

       Report per Rule 30(e).
