             IN THE COURT OF APPEALS OF NORTH CAROLINA

                               No. COA15-1363

                             Filed: 16 August 2016

North Carolina Industrial Commission I.C. No. X72360

GURNEY B. HARRIS, Employee, Plaintiff,

            v.

SOUTHERN COMMERCIAL GLASS, Employer, AUTO OWNERS INSURANCE,
Carrier, Defendants-Appellees,


and


SOUTHEASTERN INSTALLATION INC., Employer, CINCINNATI INSURANCE
COMPANY, Carrier, Defendants-Appellants.


      Appeal by defendants-appellants from Opinion and Award entered 3

September 2015 by the North Carolina Industrial Commission. Heard in the Court

of Appeals 9 June 2016.


      Law Office of Michael A. Swann, P.A., by Michael A. Swann, for plaintiff-
      appellee.

      McAngus, Goudelock & Courie, P.L.L.C., by Viral V. Mehta and Carl M. Short
      III, for defendants-appellees.

      Muller Law Firm, by Tara Davidson Muller, and Anders Newton PLLC, by
      Jonathan Anders and Ray H. “Tripp” Womble, III, for defendants-appellants.


      ZACHARY, Judge.


      Southeastern Installation, Inc. (defendant, with Cincinnati Insurance

Company, defendants) appeals from an opinion and award of the North Carolina
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                                   Opinion of the Court



Industrial Commission (“the Commission”), finding defendants solely liable for

workers’ compensation medical and disability payments to Gurney Harris (plaintiff)

that arose after 1 April 2014, as a result of plaintiff’s injury on that date. On appeal,

defendants argue that the Commission erred by failing to apportion liability for

plaintiff’s workers’ compensation benefits between defendants and plaintiff’s

previous employer, Southern Commercial Glass, Inc. (appellee, with Auto Owners

Insurance Company, appellees). We conclude that the Commission did not err in its

Opinion and Award.

                                        I. Background

      The parties agree that plaintiff is entitled to workers’ compensation medical

and disability benefits for injury to his back arising from and occurring in the course

of his employment. The controversy between the parties concerns the question of

whether the Commission properly determined the liability for plaintiff’s workers’

compensation benefits.

      On 13 July 2010, plaintiff suffered a back injury while working for appellee at

a job site in Georgia.    Appellees accepted plaintiff’s claim as compensable, and

plaintiff received workers’ compensation medical and disability benefits. After this

injury, plaintiff returned to his home in Lexington, North Carolina, and on 30

November 2011, plaintiff and appellees agreed to a change of jurisdiction from

Georgia to North Carolina. Upon his return to Lexington, plaintiff consulted his



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family physician for treatment of low back pain radiating into his left leg. Plaintiff’s

family doctor recommended an MRI, which showed a disc protrusion on the left at

L4-L5. Plaintiff’s family doctor referred plaintiff to Dr. Tadhg O’Gara, an orthopedist

at Wake Forest Baptist Medical Center, for treatment of back pain. Plaintiff treated

conservatively with Dr. O'Gara, undergoing physical therapy and an epidural steroid

injection. However, plaintiff continued to experience low back pain and on 7 October

2010, Dr. Ishaq Syed performed a left L4-L5 microdiscectomy surgery on plaintiff.

      Dr. Syed reviewed an MRI conducted on 1 February 2011, and after finding no

recurrent disc herniation, he referred plaintiff back to Dr. O’Gara. Plaintiff’s last

appointment with Dr. O’Gara was on 28 June 2011, at which time plaintiff reported

having symptoms that “come and go” and that decreased with the use of anti-

inflammatory medications. At this visit, Dr. O’Gara assessed plaintiff at maximum

medical improvement with a fifteen percent (15%) permanent partial impairment

rating to the back and permanent restrictions of lifting up to seventy-five (75) pounds.

      At some point after plaintiff’s accident in July 2010, appellee terminated

plaintiff’s employment, although appellees continued to pay plaintiff workers’

compensation benefits. In January 2012, plaintiff began working for defendant, at

which time plaintiff informed defendant about his July 2010 work-related injury and

his resultant workers’ compensation claim. Plaintiff told defendant that he had

undergone back surgery, that he might need another surgery, and that appellees were



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paying for all medical treatment related to his July 2010 injury. As of 17 July 2014,

the date of the hearing on this matter, plaintiff was still employed by defendant, and

appellee was no longer in business.

      Dr. Max Cohen, an orthopedic surgeon in Greensboro, North Carolina, has

been plaintiff's authorized treating physician since 4 May 2012. When plaintiff first

consulted Dr. Cohen, he told Dr. Cohen about his prior injury and surgery, and

reported that his post-operative pain, which he rated as a five on a scale of one to ten,

was improving. At that meeting, Dr. Cohen noted that plaintiff’s symptoms were

“fairly mild” and that plaintiff could continue working full time. Plaintiff returned to

Dr. Cohen on 25 July 2012, with complaints of back pain radiating into his left leg.

Dr. Cohen ordered an MRI but continued plaintiff’s release to work full time. A third

MRI, obtained on 13 August 2012, showed evidence of the prior surgery at L4-L5 with

recurrent/residual disc material protrusion abutting the traversing left L5 nerve root.

Between September 2012 and April 2014, plaintiff was treated with pain medication,

steroid injections, and medication patches. During this time, plaintiff experienced

several instances of back pain that lasted for a day or more. However, plaintiff

continued to work full time, sometimes as much as 70 hours a week, and continued

to reject the suggestion of further surgery.

      On 1 April 2014, while plaintiff was working in New York City on a job for

defendant, he bent over slightly and then was unable to straighten his back. Plaintiff



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experienced acute pain, and testified that the severity of the pain was such that it

was all he could do to walk to his hotel shower and back to bed. Plaintiff remained

in bed for several days until he returned to North Carolina. Upon returning to North

Carolina, plaintiff consulted with Dr. Cohen on 11 April 2014. Following this visit,

Dr. Cohen placed plaintiff out of work, effective 1 April 2014. Plaintiff did not work

from 1 April 2014 until the date of the hearing on this matter.

      On 30 April 2014, Dr. Cohen requested authorization for plaintiff to undergo

L4-L5 fusion surgery. On 5 May 2014, appellees confirmed that the surgery was

authorized and that indemnity compensation would be paid from 1 April 2014. The

surgery was scheduled for 19 May 2014; however, on 13 May 2014, appellees revoked

their authorization and denied payment of compensation on the grounds that plaintiff

had suffered a new injury on 1 April 2014, for which appellees were not liable. On 15

May 2014, plaintiff filed a motion seeking an order requiring appellees to pay for

plaintiff’s surgery. On 28 May 2014, former Deputy Commissioner Victoria Homick

denied plaintiff’s medical motion, and on 29 May 2014, former Deputy Commissioner

Homick ordered that defendants be added as parties.

      Appellees and defendants each filed an Industrial Commission Form 61

denying plaintiff’s claim for workers’ compensation medical benefits related to his

surgery.   Defendants contended that plaintiff’s need for surgery arose from the

preexisting medical condition caused by his compensable injury in July 2010, and



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that appellees should be responsible for plaintiff’s workers’ compensation benefits.

Appellees asserted that plaintiff suffered a new injury on 1 April 2014, and that

defendants were liable for workers’ compensation benefits related to the new injury.

The case was heard on 17 July 2014 before Deputy Commissioner Chrystal Redding

Stanback. On 18 March 2015, Deputy Commissioner Stanback issued a second

amended opinion and award, holding that plaintiff did not suffer a compensable

injury on 1 April 2014, that plaintiff’s need for surgery was caused by his 13 July

2010 injury, and that appellees were solely liable for plaintiff’s workers’ compensation

medical and disability benefits.

         Appellees appealed to the Full Commission, which heard the case on 5 August

2015. On 3 September 2015, the Commission, in an opinion and award issued by

Commissioner Danny L. McDonald with the concurrence of Industrial Commission

Chairman Andrew T. Heath and Commissioner Charlton L. Allen, reversed Deputy

Commissioner Stanback’s opinion and award. The Commission found that plaintiff

suffered an injury by accident as a result of a specific traumatic incident occurring on

1 April 2014; that this accident materially aggravated his back condition; and that

defendants were solely liable for plaintiff’s workers’ compensation benefits.

Defendants noted a timely appeal from the Commission’s opinion and award to this

Court.

                                   II. Standard of Review



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      It is long established that this Court reviews the opinions and awards of the

Industrial Commission in order to determine “(1) whether the findings of fact are

supported by competent evidence, and (2) whether the conclusions of law are justified

by the findings of fact.” Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492

(2005) (citation omitted). The “ ‘[Industrial] Commission is the sole judge of the

credibility of the witnesses and the [evidentiary] weight to be given their testimony.’ ”

Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson

v. Lincoln Construction Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). “The

Full Commission may refuse to believe certain evidence and may accept or reject the

testimony of any witness. Furthermore, ‘[t]he Commission’s findings of fact are

conclusive on appeal if supported by competent evidence . . . even if there is evidence

which would support a finding to the contrary.’ ” Freeman v. Rothrock, 202 N.C. App.

273, 275-76, 689 S.E.2d 569, 572 (2010) (citing Pitman v. Feldspar Corp., 87 N.C. App.

208, 216, 360 S.E.2d 696, 700 (1987), and quoting Sanderson v. Northeast

Construction Co., 77 N.C. App. 117, 121, 334 S.E.2d 392, 394 (1985)). We review the

Commission's conclusions of law de novo. Griggs v. Eastern Omni Constructors, 158

N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).

          III. The Full Commission’s Resolution of Factual Disputes in this Case

      The parties are in agreement on the general factual and procedural history of

this case, including the fact that on 1 April 2014, plaintiff experienced back pain after



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bending slightly in the course of performing his job duties. The parties disagree

sharply, however, as to the proper characterization and legal significance of this

incident. The evidence offered by the parties at the hearing and relied upon in

support of their appellate arguments reflects this dispute. Therefore, the legal issues

raised on appeal are best understood in the context of the Commission’s resolution of

the evidentiary inconsistencies on this issue, in addition to its interpretation of the

applicable legal principles.

      Defendants assert that during the years following plaintiff’s July 2010 injury,

he suffered from recurring episodes of back pain, some of which required him to miss

work, and that the incident on 1 April 2014 was no different in nature or degree from

the earlier instances of back pain that plaintiff had experienced.         Defendants’

argument that they are not liable for plaintiff’s workers’ compensation benefits is

premised upon their contention that the competent record evidence does not support

a finding or conclusion that plaintiff suffered a new compensable injury by accident

on 1 April 2014. In support of their position, defendants cite excerpts from plaintiff’s

testimony in which plaintiff minimized the significance of the back injury he

experienced on 1 April 2014, and on testimony from Dr. Cohen acknowledging that

plaintiff had experienced back pain prior to 1 April 2014.

      Defendants also place great emphasis on testimony elicited from Dr. Cohen in

response to a hypothetical question posed by defense counsel “based on [plaintiff’s]



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testimony.” Defendants asked Dr. Cohen to assume, hypothetically, that the

Commission found the facts to be as defendants contended, based on plaintiff’s

testimony that the incident on 1 April 2014 was simply another instance of the “exact

same pain” he had previously experienced. Given those facts, defendants asked Dr.

Cohen to assign percentages to the relative contribution to plaintiff’s need for surgery

arising from plaintiff’s prior injury and from the injury on 1 April 2014. In response,

Dr. Cohen testified that under that hypothetical set of facts, plaintiff’s 2010 injury

contributed 70% to his condition in 2014, while plaintiff’s 1 April 2014 incident

contributed 30% to his need for surgery. However, as discussed below, the

Commission did not adopt defendants’ position in its findings of fact, rendering

defendants’ hypothetical question of little relevance to our analysis.

      In contrast, the appellees’ position is that plaintiff experienced an injury by

accident as a result of a specific traumatic incident occurring on 1 April 2014.

Appellees’ argument is supported by Dr. Cohen’s testimony, which was based upon

his examination of plaintiff on 11 April 2014, his review of an MRI conducted shortly

thereafter, and his experience in reviewing “thousands” of MRIs. Dr. Cohen testified

to the following observations:

             1. When Dr. Cohen saw plaintiff on 11 April 2014, plaintiff
             presented with a “significant change” in his symptoms.
             Compared to plaintiff’s prior physical examinations,
             plaintiff now had a “profound weakness” in his left leg.




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             2. Prior to 1 April 2014, plaintiff had never needed or asked
             to be written out of work. Dr. Cohen had no knowledge that
             plaintiff had ever missed work due to back pain and, if he
             had, Dr. Cohen had not authorized it.

             3. Dr. Cohen reviewed four MRIs performed in July 2010,
             February 2011, August 2012, and April 2014. The first
             three showed the expected results of his back surgery.
             However, the April 2014 MRI for the first time showed a
             left foraminal and left lateral disc herniation at L4-L5. Dr.
             Cohen testified that “there has certainly been an injury to
             cause this.”

             4. Although plaintiff’s health care providers had discussed
             the possibility of further surgery with plaintiff several
             times after July 2010, it was only after the 1 April 2014
             incident that plaintiff wanted the surgery. In this regard,
             plaintiff testified that “after that moment, I was through.
             I was done. I needed the surgery after that.”

      Dr. Cohen then testified that his opinion, to a reasonable degree of medical

certainty, was that the incident on 1 April 2014 caused “further injury to the L4-5

disc, resulting in a large recurrent disc hernia on the left at L4-5, which ultimately

resulted in the need for repeat surgery” and that he could “say with medical certainty

that the herniated discs likely resulted from” the 1 April 2014 incident.

      The Commission was thus presented with conflicting evidence as to whether,

on 1 April 2014, plaintiff suffered a new compensable injury by accident resulting

from a specific traumatic incident. The Commission resolved this question in favor

of appellees, as evidenced by the following findings of fact:

             22. While working at a job site for [defendants] in New
             York on April 1, 2014, plaintiff bent over slightly to slide a


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door panel[.] . . . Plaintiff testified that he could not get
back up once he bent over. Plaintiff informed his supervisor
of the occurrence and some co-workers helped plaintiff back
to the hotel where they were staying. Plaintiff testified that
he could not work after this event but remained in his hotel
for four or five days until the job was completed. Plaintiff
testified that the severity of the pain was such that it was
all he could do to get to his hotel shower and back to the
room.

23. Upon returning to North Carolina, plaintiff contacted
Dr. Cohen’s office and obtained an appointment for April
11, 2014. At that appointment, plaintiff informed Dr.
Cohen that he aggravated his back ten days earlier such
that he could not move his back. As noted by Dr. Cohen in
his clinical assessment, plaintiff “was bent over and slid a
box on the ground and felt his back ‘catch.’ ” Since that
event, plaintiff had been unable to return to work. Plaintiff
relayed an interest in surgery to Dr. Cohen for the first
time, and Dr. Cohen ordered an updated MRI to assess
surgical options. Dr. Cohen also excused plaintiff from
work pending reevaluation.

24. Compared to the February 2011 MRI, the MRI of April
27, 2014 showed the development of a left L4-L5 foraminal
to lateral disc protrusion effacing the left lateral recess,
deflecting the traversing nerve roots, and narrowing the
left foramen. Dr. Cohen noted plaintiff’s pain severely
affected his quality of life such that he was unable to work.
Dr. Cohen further noted that plaintiff recently developed
profound left lower extremity weakness and wanted to
pursue surgical options. Dr. Cohen wrote plaintiff out of
work pending surgery.

                            ...

26. Plaintiff testified that it was his understanding he was
out of work due to the pending surgery with Dr. Cohen, not
because he could not work. However, Dr. Cohen’s medical



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note of April 30, 2014 states, “presently, [plaintiff] remains
disabled from gainful employment.”

                             ...

28. In a post-hearing deposition, [appellees] tendered Dr.
Cohen as a medical expert in the field of orthopedic surgery
without objection from the other parties. Dr. Cohen
testified that the changes seen on plaintiff’s lumbar spine
MRI obtained in August 2012 were typical of what he
would expect to see in someone who had undergone a
discectomy. Dr. Cohen testified that from the time he
began treating plaintiff in 2012 until he presented on April
11, 2014, plaintiff maintained a diagnosis of radiculitis and
post-laminectomy syndrome representing the previous
microdiscectomy. However, Dr. Cohen testified that when
plaintiff returned on April 11, 2014, “there had been a
significant change in his symptoms” and “[h]e was in such
bad shape that he wanted to entertain pursuing surgery,
which was something that he in the past had wanted to
avoid.” Dr. Cohen testified that plaintiff related his
significant symptomatic change to an event at work that
aggravated his underlying back condition.

29. Dr. Cohen testified that the updated MRI obtained in
April 2014 showed a large, recurrent disc herniation on the
left at L4-L5, which he described as “a significant change
compared to the previous studies.” Dr. Cohen testified that,
while there is some degree of speculation as to causation,
it was his opinion, to a reasonable degree of medical
certainty, that plaintiff suffered further injury to the L4-
L5 lumbar spine on April 1, 2014, which resulted in his
need for a repeat surgery. He based this opinion on
plaintiff’s profound increase in symptoms that came on
suddenly as a result of the work event of April 1, 2014,
along with the material change in plaintiff's lumbar spine
seen on the April 2014 MRI as compared to prior studies.

30. Dr. Cohen testified that plaintiff already had an
unhealthy disc from his 2010 injury and prior surgery and


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that medical history set plaintiff up for the subsequent
injury he sustained on April 1, 2014. Dr. Cohen testified
that he did not envision the work event of April 1, 2014 to
have been an extremely strenuous activity, but that it
didn’t have to be in order to cause the disc herniation
plaintiff suffered.

31. Dr. Cohen rendered an opinion, to a reasonable degree
of medical certainty, and the Commission so finds, that the
work event of April 1, 2014 caused injury to plaintiff's L4-
L5 disc and materially aggravated his pre-existing back
condition. Dr. Cohen clarified that, although plaintiff was
a surgical candidate for a lumbar fusion as early as
September 14, 2012, plaintiff’s symptoms were still
tolerable to him at that time and he electively deferred
surgery. However, there was a clear difference in plaintiff’s
symptoms subsequent to April 1, 2014, such that plaintiff
could no longer work and wanted to promptly pursue
surgery. Dr. Cohen opined that, considering plaintiff’s back
condition, he would relate seventy percent (70%) of
plaintiff’s need for back surgery to his July 2010 injury and
thirty percent (30%) to the aggravation of that original
injury during the April 1, 2014 work event. Dr. Cohen
further testified that plaintiff was zero percent (0%)
disabled prior to April 1, 2014, as far as wage earning
capacity, but plaintiff was one hundred percent (100%)
disabled after April 1, 2014.

32. The preponderance of the evidence in view of the entire
record establishes that, on April 1, 2014, plaintiff suffered
a “specific traumatic incident” . . . during a judicially
cognizable time period, and that specific traumatic incident
qualifies as a compensable injury by accident as defined by
the North Carolina Workers’ Compensation Act and
applicable case law. The Commission further finds that
plaintiff sustained a material aggravation of his July 2010
back condition as a result of the specific traumatic incident
that arose out of and in the course of his employment with
[defendants] on April 1, 2014.



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                                          ...

             34. The preponderance of the evidence in view of the entire
             record establishes that plaintiff became temporarily and
             totally disabled from work as of April 1, 2014 as a result of
             his aggravation injury to the back.

      As discussed above, the Commission is charged with determination of the

credibility and weight to be given to conflicting testimony. In this case, the Full

Commission’s findings and conclusions were based largely upon Dr. Cohen’s

testimony rather than upon plaintiff’s testimony regarding his recollection of the

degree to which the incident on 1 April 2014 differed from earlier episodes.

                              IV. Apportionment of Liability

      Defendants argue first that the Commission erred by failing to apportion

liability for plaintiff’s workers’ compensation benefits between defendants and

appellees.   Defendants contend that the Commission was required to apportion

liability, based upon (1) Dr. Cohen’s response to defendants’ hypothetical question

and (2) this Court’s opinion in Newcomb v. Greensboro Pipe Co., 196 N.C. App. 675,

677 S.E.2d 167 (2009). We do not find either of these arguments persuasive.

      In Newcomb, as in the present case, the plaintiff suffered successive back

injuries while working for two different employers. The Commission found that the

medical evidence did not establish the degree to which the plaintiff’s injuries and

disability arose from each accident, and held that the two employers were jointly and




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severally liable. On appeal, this Court held that the Commission had not abused its

discretion based upon the facts of the case, and stated that:

             [H]ad the Full Commission been able to determine what
             percentage of plaintiff’s disability stemmed from his 2003
             compensable injury and what percentage stemmed from
             his 2006 compensable injury, then the Full Commission
             would have apportioned responsibility for the disability
             benefits accordingly. Because the Full Commission could
             not so determine, both employers became responsible for
             the full amount, resulting in joint and several liability. The
             Full Commission’s opinion and award is supported by
             reason and shows the exercise of good judgment and
             consideration of equitable principles.

Newcomb, 196 N.C. App. at 682, 677 S.E.2d at 171. Defendants assert that this

statement constitutes a definitive ruling that the Commission “is required” to

apportion liability whenever it is possible to determine the respective percentages of

causation. However, this Court’s holding in Newcomb was that the Commission did

not abuse its discretion by ruling that the employers were jointly and severally liable

where the percentages were not apparent. Newcomb did not hold that the

Commission would have erred as a matter of law if, in a hypothetical case with

different facts, the Commission had failed to apportion liability. Moreover, such a

statement would be dicta, given that it was not necessary for resolution of the issues

presented in Newcomb.

      Secondly, contrary to defendants’ arguments, in the present case the

Commission did not assign numerical or percentage values to the relative



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contributions of plaintiff’s 2010 and 2014 injuries to plaintiff’s need for surgery or his

temporary total disability. The Commission noted Dr. Cohen’s testimony, which was

given in response to defendants’ hypothetical question, that 70% of plaintiff’s need

for surgery was due to his 2010 injury and only 30% was caused by the incident on 1

April 2014. However, the Commission did not make a finding adopting this testimony

as a fact. “This Court has long held that findings of fact must be more than a mere

summarization or recitation of the evidence[.]” Lane v. American Nat’l Can Co., 181

N.C. App. 527, 531, 640 S.E.2d 732, 735 (2007) (citing Hansel v. Sherman Textiles,

304 N.C. 44, 59, 283 S.E.2d 101, 109 (1981)), disc. review denied, 362 N.C. 236, 659

S.E.2d 735 (2008). “ ‘[R]ecitations of the testimony of each witness do not constitute

findings of fact by the trial judge, because they do not reflect a conscious choice

between the conflicting versions of the incident in question which emerged from all

the evidence presented.’ ” Winders v. Edgecombe Cty. Home Health Care, 187 N.C.

App. 668, 673, 653 S.E.2d 575, 579 (2007) (emphasis in original) (quoting In re Green,

67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195, n.1 (1984)). Thus, the Commission’s

statement that Dr. Cohen had “opined” that he could relate 70% of plaintiff’s need for

back surgery to his 2010 injury does not constitute a finding by the Commission that

it was adopting these percentages as fact.

      Moreover, Dr. Cohen’s testimony was elicited in response to a question asking

Dr. Cohen to assume that the Commission would find the facts to be in accord with



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plaintiff’s testimony. However, the Commission did not find, as defendants

contended, that the incident on 1 April 2014 was essentially identical to many prior

instances of back pain experienced by plaintiff. Instead, the Commission adopted Dr.

Cohen’s opinion, which was offered to a reasonable degree of medical certainty, that

plaintiff’s need for surgery in 2014 arose from a specific injury on 1 April 2014.

Defendants never asked Dr. Cohen what percentages he would assign based on Dr.

Cohen’s own testimony and medical records. Nor did defendants ask for Dr. Cohen’s

opinion based on the assumption that the Commission would resolve the factual

inconsistencies in favor of appellees. Because Dr. Cohen’s testimony was premised

on an assumption that did not come to pass -- that the Commission would resolve the

parties’ factual dispute in favor of defendants -- the percentages to which Dr. Cohen

testified cannot be applied to the facts as found by the Commission.

      We conclude that Newcomb did not hold that, as a matter of law, the

Commission is required to apportion liability in every case in which the percentage

of contribution of injuries that a claimant suffers while working for two different

employers may be determined. Further, in this case the Commission did not make a

finding on this issue, but simply noted Dr. Cohen’s testimony in response to

defendants’ hypothetical question. Finally, Dr. Cohen’s testimony was predicated on

the hypothetical assumption that the Commission would find that the 1 April 2014

incident was no different from plaintiff’s earlier episodes of back pain. Given that the



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Commission found to the contrary, Dr. Cohen’s testimony would not support a finding

as to the percentages of causation based on plaintiff’s having suffered a new injury

on 1 April 2014.

          V. The Commission’s Analysis of Causation and Material Aggravation

      Defendants argue next that the Commission “applied erroneous legal

standards regarding material aggravation and causation.” Specifically, defendants

contend that (1) the Commission erred by citing Moore v. Federal Express, 162 N.C.

App. 292, 590 S.E.2d 461 (2004), in support of its conclusion that the incident on 1

April 2014 materially aggravated plaintiff’s prior back injury; (2) the Commission’s

conclusion that plaintiff’s condition was causally related to a new injury was “based

on legally incompetent medical testimony”; and (3) the Commission erred in its

application of the Parsons presumption to the facts of this case. We conclude that

defendants’ arguments lack merit.

       A. Commission’s Conclusion on Material Aggravation of Plaintiff’s Condition

      In Conclusion of Law No. 6, the Commission stated in relevant part that:

             The Commission concludes that plaintiff suffered a specific
             traumatic incident on April 1, 2014 as a result of the work
             assigned by [defendants], which aggravated his pre-
             existing back condition and is, therefore, compensable.
             N.C. Gen. Stat. § 97-2(6); Moore v. Fed Express, 162 N.C.
             App. at 297, 590 S.E.2d at 465; Click [v. Pilot Freight
             Carriers,] 300 N.C. [164,] 167-68, 265 S.E.2d [389,] 391
             [(1980)].




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      Defendants argue that the Commission erred by citing Moore in support of this

conclusion of law, on the grounds that Moore “does not apply to pre-existing, work-

related conditions” and that the analysis in Moore “assumes that the underlying

condition is not related to a compensable event[.]” Moore, however, addressed the

material aggravation of a prior work-related condition. Moore does not address the

distinction posited by defendants, and did not state that its holding applied only to,

or was based on the assumption of, a pre-existing non-work-related condition.

Defendants’ argument on this issue is without merit.

             B. Commission’s Conclusions Regarding the 1 April 2014 Incident

      Defendants argue next that the Commission “improperly concluded that

Plaintiff’s condition arose from a new specific traumatic incident or accident on 1

April 2014[.]” We disagree.

      Defendants contend that the Commission “erred as a matter of law by using

only findings of onset of pain to conclude that a specific traumatic incident occurred.”

However, as set out above, the Commission’s conclusion that plaintiff suffered a

specific traumatic incident on 1 April 2014 was based on more than the fact that the

incident caused plaintiff to experience pain. The Commission found that “Dr. Cohen

rendered an opinion, to a reasonable degree of medical certainty, and the Commission

so finds, that the work event of April 1, 2014 caused injury to plaintiff's L4-L5 disc

and materially aggravated his pre-existing back condition.” Thus, the Commission’s



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conclusion was based on expert medical testimony, and not merely the temporal

connection between the incident on 1 April 2014 and the “onset of pain.”

      Defendants also argue that the Commission improperly relied upon Dr.

Cohen’s testimony, on the grounds that it was based on speculation. Defendants

correctly note that “[a]lthough medical certainty is not required, an expert’s

‘speculation’ is insufficient to establish causation.” Holley v. ACTS, Inc., 357 N.C.

228, 234, 581 S.E.2d 750, 754 (2003). We conclude, however, that defendants have

inaccurately characterized Dr. Cohen’s testimony and his expert opinion as mere

speculation.

      Defendants’ argument is based primarily upon selected excerpts from Dr.

Cohen’s testimony. Defendants contend that Dr. Cohen “actually agree[d] that his

testimony was speculative[.]”     Our review of Dr. Cohen’s deposition, however,

indicates that Dr. Cohen testified that, notwithstanding the degree of speculation

inherent in any medical diagnosis, he believed to a reasonable degree of medical

certainty that plaintiff’s condition arose from a new injury on 1 April 2014 as opposed

to simply the gradual progression of his back condition arising from his July 2010

injury. The testimony cited by defendants was elicited during defendants’ cross-

examination of Dr. Cohen, during which defendants pressed Dr. Cohen to concede

that it was impossible to state with absolute certainty whether plaintiff’s condition

arose from the incident on 1 April 2014. As demonstrated in the following excerpt,



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Dr. Cohen acknowledged that certainty was impossible, but testified that, based on

his experience with many patients and having reviewed “thousands” of MRIs, he had

reached the conclusion that plaintiff’s condition was not simply the result of a gradual

deterioration:

             DEFENDANTS’ COUNSEL: Now, there was no MRI of the
             lumbar spine taken between August of 2012 and April of
             2014.

             DR. COHEN: Correct.

             DEFENDANTS’ COUNSEL: And the MRI doesn’t tell us
             when the disc further herniated. Correct?

             DR. COHEN: Correct.

                                           ...

             DEFENDANTS’ COUNSEL: I mean, it doesn’t tell us
             whether there was some acute event or whether it was all
             progression.

             DR. COHEN: Correct.

                                           ...

             DEFENDANTS’ COUNSEL: But it’s still your testimony
             that -- well, let me put it this way: Is it your opinion that
             the disc was completely stable, in the exact same condition
             from August of 2012 until April 1st of 2014, when it burst
             out due to this incident, or that there was probably
             progression in the meantime?

             DR. COHEN: Well, I don’t know. I’m speculating here, but
             just from seeing thousands and thousands of patients and
             MRI scans, . . . I would not expect that degree of herniation
             that we were seeing on that 2014 MRI scan to be


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             asymptomatic. But again, it possibly could be, but I would
             not expect it[.] . . . It appears to me that it’s more than just
             a slow progression, but, again, you are correct in saying
             that I can’t say that with certainty, but just my previous
             experience tells me that there was some acute change in
             the disc.

      On redirect examination, Dr. Cohen reiterated his opinion, to a reasonable

degree of medical certainty, that plaintiff’s need for surgery arose from a specific

incident on 1 April 2014:

             APPELLEES’ COUNSEL: Now, certainly I believe -- please
             correct me, but I heard you saying that there’s -- on cross-
             examination, there is a degree of speculation involved in
             this. Is that correct?

             DR. COHEN: Yes.

             APPELLEES’ COUNSEL: That you certainly aren’t with
             [plaintiff] or any of your patients on a day-to-day basis. Is
             that correct?

             DR. COHEN: Yes.

             APPELLEES’ COUNSEL: You have to go by what they’re
             telling you on these medical records.

             DR. COHEN: Correct.

             APPELLEES’ COUNSEL: And in this case, we can also go
             by what [plaintiff] is telling the Court at [the] hearing . . .
             (Reading) “I couldn’t work, couldn’t work. It was all I could
             do to get to the shower and back.” Based on this testimony,
             based on your medical records, based on your recollection,
             did the April 1, 2014, incident make him surgical (sic)?

             DR. COHEN: Yes.



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             APPELLEES’ COUNSEL: Did it materially aggravate his
             condition?

             DR. COHEN: Yes.

             APPELLEES’ COUNSEL: Did it materially increase his
             pain complaints?

             DR. COHEN: Yes.

             APPELLEES’ COUNSEL: Did it decrease his range of
             motion?

             DR. COHEN: Yes.

             APPELLEES’ COUNSEL: Did the MRI taken after that
             April 1, 2014, [incident] have new objective findings?

             DR. COHEN: Yes.

             APPELLEES’ COUNSEL: And were those the nerve
             impingement you described earlier?

             DR. COHEN: The enlargement of the disc, herniation, and
             the nerve root impingement.

             APPELLEES’ COUNSEL: These are all your opinions to a
             reasonable degree of medical certainty?

             DR. COHEN: Yes.

      We conclude that although Dr. Cohen candidly acknowledged that he could not

offer a medical opinion to a degree of absolute certainty that entirely removed all

speculation, Dr. Cohen’s opinion, to a reasonable degree of medical certainty, was that

plaintiff had experienced a new injury on 1 April 2014 that materially aggravated




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plaintiff’s prior back condition. In this regard, we note the Commission’s Finding of

Fact No. 29, which states that:

             29. Dr. Cohen testified that the updated MRI obtained in
             April 2014 showed a large, recurrent disc herniation on the
             left at L4-L5, which he described as “a significant change
             compared to the previous studies.” Dr. Cohen testified
             that, while there is some degree of speculation as to
             causation, it was his opinion, to a reasonable degree of
             medical certainty, that plaintiff suffered further injury to
             the L4-L5 lumbar spine on April 1, 2014, which resulted in
             his need for a repeat surgery. He based this opinion on
             plaintiff's profound increase in symptoms that came on
             suddenly as a result of the work event of April 1, 2014,
             along with the material change in plaintiff's lumbar spine
             seen on the April 2014 MRI as compared to prior studies.

      Based upon our review of the entire transcript of Dr. Cohen’s deposition, we

conclude that Dr. Cohen’s opinion was not based on mere speculation, and that the

Commission did not err by relying in part upon Dr. Cohen’s testimony for its findings

and conclusions.

                                  C. The Parsons Presumption

      Finally, defendants argue that the Commission erred by stating in Conclusion

of Law No. 7 that because plaintiff “sustained a new work-related injury by accident

as the result of a specific traumatic incident on April 2, 2014, arising out of his

employment with [defendant], application of the Parsons presumption is not

applicable in this case.” We conclude that even assuming that this conclusion was




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erroneous, it does not require reversal, given that the Commission also stated in the

alternative the results of its application of the Parsons presumption.

      In Parsons v. Pantry, Inc., 126 N.C. App. 540, 542, 485 S.E.2d 867, 869 (1997),

this Court held that after a workers’ compensation claimant meets the initial burden

of proving the compensability of an injury, there arises a presumption that further

medical treatment is directly related to the compensable injury. “ ‘The employer may

rebut the presumption with evidence that the medical treatment is not directly

related to the compensable injury.’ ” Miller v. Mission Hosp., Inc., 234 N.C. App. 514,

519, 760 S.E.2d 31, 35 (2014) (quoting Perez v. Am. Airlines/AMR Corp., 174 N.C.

App. 128, 135, 620 S.E.2d 288, 292 (2005)). Thus, the issue to which Parsons is

generally applied is the compensability of a claimant’s injury. In this case, the parties

agree that plaintiff is entitled to workers’ compensation benefits, and disagree only

as to how the liability for these benefits should be determined.

      In Conclusion of Law No. 7, the Commission also stated that:

             Assuming arguendo that Parsons is applicable, the
             Commission concludes that [appellees] successfully
             rebutted the Parsons presumption based upon the expert
             medical opinion of Dr. Cohen, and that plaintiff failed to
             satisfy his burden of proof once it shifted back to him.

Defendants concede that because the Commission applied the Parsons presumption

despite its conclusion that Parsons was not applicable to this case, “a reversal on this

issue may not change the outcome for [defendants].” Defendants nonetheless ask this



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Court to address this issue “to provide clarity for future matters.” However, “[a]s this

Court has previously pointed out, it is not a proper function of courts ‘to give advisory

opinions, or to answer moot questions, or to maintain a legal bureau for those who

may chance to be interested, for the time being, in the pursuit of some academic

matter.’ ” Martin v. Piedmont Asphalt & Paving, 337 N.C. 785, 788, 448 S.E.2d 380,

382 (1994) (quoting Adams v. North Carolina Department of Natural and Economic

Resources, 295 N.C. 683, 704, 249 S.E.2d 402, 414 (1978)). Because the Commission

stated its ruling applying the Parsons presumption, we are not required to determine

the merits of its conclusion that Parsons did not apply on the facts of this case, and

we decline to entertain it as a hypothetical question.

      For the reasons discussed above, we conclude that the Industrial Commission

did not err and that its Opinion and Award should be

      AFFIRMED.

      Judge STEPHENS and Judge McCULLOUGH concur.




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