An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                   NO. COA14-700
                          NORTH CAROLINA COURT OF APPEALS

                             Filed: 31 December 2014


ALAN WELLS,
     Employee,
     Plaintiff,

      v.                                      North Carolina
                                              Industrial Commission
CHARLOTTE MECKLENBURG HOSPITAL                I.C. Nos. X88380 & Y05621
AUTHORITY,
     Employer,

SELF-INSURED,
     Defendant.


      Appeal    by   defendant      from    Opinion      and    Award   entered   17

February     2014    by    the   North     Carolina      Industrial     Commission.

Heard in the Court of Appeals 4 November 2014.


      The Sumwalt Law Firm, by Vernon Sumwalt, for plaintiff-
      appellee.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by Thomas W.
      Page and M. Duane Jones, for defendant-appellant.


      STROUD, Judge.


      Charlotte      Mecklenburg         Hospital     Authority       (“defendant”)

appeals    from     an    opinion   and    award    by    the   Full    Commission.
                                        -2-
Defendant contends that no competent evidence supports some of

the Commission’s findings of fact. Finding no error, we affirm.

                         I.      Factual Background

    In      December    2011,    Alan    Wells      (“plaintiff”)     began    his

employment     with     defendant       as     an     environmental     services

technician.      On 16 February 2012, plaintiff sought treatment

with Dr. Lisette Akers, a family practice physician.                    Although

his “chief complaint” at this visit was a sore in his mouth, he

also noted that he had experienced “pain in the plantar aspect”

of his left foot for about three weeks, which he attributed to

the fact that “he walks a lot.”              He also informed Dr. Akers that

he had “never had any back pain” or “trauma to the back” but was

having some lower back pain which he thought developed “because

he’s been walking with somewhat of a limp because of the heel

and plantar pain.”        Dr. Akers performed a straight leg test,

which was positive on the left and negative on the right.                      She

diagnosed    plaintiff    with     plantar      fasciitis,   noting     that   it

“propagated     to     sciatica”    which       was    “[s]econdary     to     his

malalignment and limping.”

    On 20 February 2012, while throwing a trash bag into a

dumpster at work, plaintiff felt a pop in his back that gave him

a shock in his right leg.           Plaintiff felt a “burning” pain and
                                            -3-
was    forced    to    lean    against      a     wall    for    a     few   minutes   to

recuperate.       Plaintiff finished his shift and then went home.

Plaintiff returned to work the next day, but he experienced

severe pain after trying to dispose of another trash bag.                          After

plaintiff spoke with his supervisor, his supervisor directed him

to an urgent care center, where he was examined by Dr. James

Griggs.          Dr.    Griggs       diagnosed       him        with     acute     lumbar

radiculopathy and lumbar sprain, prescribed pain medication, and

directed plaintiff not to work until he could be evaluated by

Dr. Daniel Davis, an orthopedic spine specialist.

       On 28 February 2012, plaintiff presented to Dr. Davis, and,

on 14 March 2012, Dr. Davis ordered an MRI of plaintiff’s lumbar

spine.      On 19 March 2012, plaintiff underwent the lumbar MRI.

Dr.    Davis    observed      from   the    MRI    results      that     plaintiff     was

suffering from a herniated disc.                  On 16 May 2012, upon referral

of    Dr.   Davis,     plaintiff     presented       to   Dr.    Edward      Hanley,   an

orthopedic surgeon.           After discussing treatment options with Dr.

Hanley, plaintiff elected to proceed with a microdisectomy.                            But

plaintiff did not receive the surgery, because defendant did not

authorize       it.      On    27    June    2012,       at   defendant’s        request,

plaintiff      presented      to    Dr.   Craig    Brigham      for     an   independent

medical examination, and, on 12 December 2012, plaintiff also
                                    -4-
presented to Dr. John Welshofer, an expert in physical medicine

and rehabilitation.

                       II.    Procedural Background

     On 14 June 2012, plaintiff filed Industrial Commission Form

18 giving notice of his Workers’ Compensation claim.                      On or

about 5 July 2012, defendant filed Form 61 denying plaintiff’s

claim.     On or about 30 April 2013, Deputy Commissioner Keischa

Lovelace     ordered   that   defendant        was   entitled   to    terminate

plaintiff’s temporary total disability compensation benefits and

was entitled to a credit for benefits paid to plaintiff after 27

June 2012.    Plaintiff appealed to the Full Commission.

     On 17 February 2014, the Full Commission by Commissioner

Bernadine Ballance reversed the deputy commissioner’s opinion

and awarded plaintiff, inter alia, $246.04 per week in temporary

total    disability    benefits   from    21    February   2012      through   29

January 2013.     Commissioner Linda Cheatham concurred in part and

dissented in part.        On or about 21 February 2014, defendant

received by certified mail the Full Commission’s opinion and

award.     On 24 March 2014, defendant timely filed a notice of

appeal.

                          III. Findings of Fact

A.   Standard of Review
                                           -5-
              We review an order of the Full Commission
              only to determine whether any competent
              evidence supports the Commission’s findings
              of fact and whether the findings of fact
              support the Commission’s conclusions of law.
              Because the Industrial Commission is the
              sole judge of the credibility of the
              witnesses and the weight of the evidence, we
              have repeatedly held that the Commission’s
              findings of fact are conclusive on appeal
              when supported by competent evidence, even
              though there be evidence that would support
              findings to the contrary. In addition, where
              findings of fact are not challenged and do
              not concern jurisdiction, they are binding
              on appeal. The Commission’s conclusions of
              law are reviewed de novo.

Medlin   v.    Weaver    Cooke      Const.,      LLC,    ___    N.C.    ___,   ___,    760

S.E.2d 732, 738 (2014) (citations and quotation marks omitted).

B.    Compensable Injury

      Defendant      contends       that     the    Full       Commission      erred    in

concluding that plaintiff’s injury is compensable, because no

competent evidence supports the Commission’s findings that Dr.

Griggs and Dr. Hanley opined to a reasonable degree of medical

certainty     that     the   incident      caused       or   aggravated     plaintiff’s

back condition.         Relying primarily on Edmonds v. Fresenius Med.

Care, defendant overall argues that the testimony of Dr. Griggs

and   Dr.     Hanley     was   not     competent         because       it   was   merely

speculation.           165   N.C.     App.       811,    600    S.E.2d      501   (2004)

(Steelman, J., dissenting), rev’d per curiam for reasons stated
                                     -6-
in dissent, 359 N.C. 313, 608 S.E.2d 755 (2005). The entirety of

causation evidence must meet the “reasonable degree of medical

certainty” standard necessary to establish a causal link between

plaintiff’s     accident    and    plaintiff’s       injury.      Workman       v.

Rutherford Elec. Membership Corp., 170 N.C. App. 481, 494, 613

S.E.2d   243,   252   (2005).     Although   medical      certainty      is    not

required, an expert’s speculation is insufficient to establish

causation. Id., 613 S.E.2d at 252. “The opinion of a physician

is not rendered incompetent merely because it is based wholly or

in part on statements made to him by the patient in the course

of treatment or examination.” Hutchens v. Lee, ___ N.C. App.

___, ___, 729 S.E.2d 111, 114, disc rev. denied, 366 N.C. 393,

732 S.E.2d 576 (2012).

    Defendant     first    challenges      Finding   of    Fact    23,        which

addressed Dr. Griggs’ opinion:

           Dr. Griggs opined to a reasonable degree of
           medical probability based upon the history
           provided   by   Plaintiff   and   upon   his
           examination of Plaintiff, that Plaintiff’s
           back condition
           is causally related to his February 20, 2012
           incident. This opinion did not change upon
           learning of Plaintiff’s visit to Dr. Akers
           on February 16, 2012 because, “this was an
           acute injury that Dr. Griggs was seeing him
           for.”

(Brackets omitted.)
                                               -7-
       Referring to plaintiff’s visit with Dr. Akers, defendant

argues that “Dr. Griggs’ testimony as a whole shows he is not

sure    at   all      of    the    cause      of     Plaintiff’s       symptoms      and    his

testimony       of    causation         is   merely      a   guess[,      because    he]    was

unaware of Plaintiff treating for back pain four days prior to

his work injury.”             Although defendant notes that his opinion did

not    change         after    being         presented       with      this     information,

defendant concludes that “Dr. Griggs’ testimony, when considered

in its totality, shows he has no clue as to whether Plaintiff’s

current      complaints           are     being      caused       by    his     pre-existing

degenerative condition or his work injury.”

       Although        various      excerpts         from     Dr.      Griggs’      testimony

indicate that his opinion was based in part upon “trust in a

patient,” we disagree that his testimony as a whole discredits

his ultimate opinion of causation, as found by the Commission.

[Griggs Dep. 51] “It is not the role of the appellate courts to

sift through the evidence and find facts that are different from

those actually found by the Commission.” Edmonds, 165 N.C. App.

at 817, 600 S.E.2d at 506 (Steelman, J., dissenting). In his

deposition testimony, Dr. Griggs opined to a reasonable degree

of    medical    certainty         that      the    incident      caused      or   aggravated

plaintiff’s          back   condition.             Dr.   Griggs     did   not      change   his
                                        -8-
opinion after considering Dr. Akers’ observation of plaintiff’s

sciatic pain four days before the incident, because, according

to     Dr.   Griggs,   plaintiff’s      injury      after   the    incident   was

“acute.”     His deposition testimony supports Finding of Fact 23.

       Defendant claims that Dr. Hanley gave his opinion “without

a full and accurate medical history” and that “once he was made

aware of the back pain and radicular leg pain complaints just

days    before   the   work   injury,    Dr.     Hanley’s   causation    opinion

changed      completely[.]”      Finding       of   Fact    24    addressed   Dr.

Hanley’s opinion as to causation:

             Dr. Hanley opined within a reasonable degree
             of medical certainty that, “the described
             incident of February 2012 caused a ruptured
             disc aggravating pre-existing degenerative
             disc disease, causing acute back pain and
             leg pain.” Dr. Hanley further opined, “that
             the described incident of February 2012
             aggravated a pre-existing degenerative disc
             condition in [plaintiff], causing his pain.”
             When asked whether Dr. Akers’ diagnosis of
             sciatica    on   February    16,    2012    was
             inconsistent   with    the    history    [that]
             Plaintiff [had] conveyed to him, Dr. Hanley
             stated,   “maybe”   but   pointed    out   that
             Plaintiff’s pain on February 16, 2012 was
             related to his left lower extremity. Dr.
             Hanley testified that, while back pain can
             move from side to side, “radicular pain
             doesn’t switch sides.”

(Brackets omitted.)

       In his deposition, Dr. Hanley also opined to a reasonable
                                      -9-
degree     of   medical   certainty    that   the   incident     caused   or

aggravated plaintiff’s back condition.          But defendant points out

that, on cross-examination, Dr. Hanley responded in the negative

when asked whether he could opine to a reasonable degree of

medical certainty that the incident caused plaintiff’s injury,

upon being informed of Dr. Akers’ observation of plaintiff’s

sciatic pain four days before the incident.            But, on re-direct

examination,     plaintiff’s      counsel   rehabilitated    Dr.     Hanley’s

opinion:

            Plaintiff’s counsel:     Okay. [Dr. Akers’
            note] also mentions no swelling of the
            spine.    When   [Dr.   Akers]    does   the
            examination, she finds no swelling, no
            tenderness, no numbness, no tingling; in the
            hips, no swelling, no tenderness in the
            hips. Is that consistent with someone who
            has a herniated disc?

            Dr. Hanley:    No.

            . . . .

            Plaintiff’s counsel: . . . [I]f [plaintiff]
            had back pain or had sciatic [(sic)], and he
            performed this activity of throwing trash
            into the bin, could that [have] aggravated,
            then, or caused the herniated disc?

            Dr. Hanley:    Yes.

            Plaintiff’s counsel:    Can       you   give    us   a
            medical basis for that?

            Dr. Hanley:  Well, if you have a weak disc
            related to wear and tear, aging, and you
                                       -10-
            bend and twist, torque your spine, you can
            rip the outer part of the disc, causing a
            piece of disc to push out and pinch the
            nerve passing by.

In addition, as found by the Full Commission, Dr. Hanley noted

the fact that plaintiff’s complaint prior to the incident arose

from his left side, not his right.                 Ultimately, Dr. Hanley’s

testimony    confirmed    his    opinion,     to   a   reasonable    degree   of

medical     certainty,    that   the     incident      caused   or   aggravated

plaintiff’s herniated disc.

    Defendant has challenged on appeal only Findings of Fact 23

and 24, which we have found are supported by competent evidence.

Defendant also discusses in its brief the opinion testimony of

Dr. Welshofer, which is noted in Finding of Fact 25, although it

did not challenge this finding on appeal:

            Dr. Welshofer opined to a reasonable degree
            of medical certainty that the February 20,
            2012   compensable    work-related   accident
            caused, or at the very least, aggravated
            Plaintiff’s    current     back    condition.
            Specifically, Dr. Welshofer opined:

                         I think this gentleman
                         probably had a ruptured
                         disc at L4-5 that led to
                         the rather significant
                         right           sciatica
                         documented by his fast
                         assessment the day after
                         his injury. So even if
                         he     had    underlying
                         spondylosis           or
                                     -11-
                         degeneration,    I   don’t
                         think       that       was
                         materially     exacerbated
                         by his injury. I think
                         there    was     a    disc
                         protrusion. So it’s kind
                         of immaterial because I
                         don’t think he can have
                         that type of MRI finding
                         and not have symptoms
                         that   he    would    have
                         reported to someone if
                         that was a pre-existing
                         condition.

            While Dr. Welshofer testified that he was
            not aware of Plaintiff’s February 16, 2012
            visit to Dr. Akers, he did not reverse his
            causation opinion upon learning of the visit
            and    noted   that    Plaintiff’s   sciatic
            complaints to Dr. Akers were on the opposite
            side.

    Dr. Welshofer may have given a more thorough explanation

than Dr. Griggs or Dr. Hanley of why he did not change his

opinion upon learning of plaintiff’s visit to Dr. Akers, but

overall his opinion testimony was consistent with that of Dr.

Griggs and Dr. Hanley. Thus, the Commission ultimately relied

upon the independent opinions of three different doctors, all of

which were supported by the evidence.          Accordingly, we hold that

competent evidence supports the Commission’s findings that Dr.

Griggs and Dr. Hanley opined to a reasonable degree of medical

certainty   that   the    incident   caused   or   aggravated   plaintiff’s

back condition and that their opinions were not based upon mere
                                     -12-
speculation or conjecture.

C.     Disability

       Defendant next contends that the Full Commission erred in

concluding that defendant suffered from a disability, because no

competent    evidence   supports      the   Commission’s    finding      that

plaintiff made a reasonable, but unsuccessful, effort to find

suitable employment.

            [T]o support a conclusion of disability, the
            Commission must find:     (1) that plaintiff
            was incapable after his injury of earning
            the same wages he had earned before his
            injury in the same employment, (2) that
            plaintiff was incapable after his injury of
            earning the same wages he had earned before
            his injury in any other employment, and (3)
            that this individual’s incapacity to earn
            was caused by plaintiff’s injury.

Medlin, ___ NC at ___, 760 S.E.2d at 736 (citing Hilliard v.

Apex   Cabinet   Co.,   305   N.C.   593,   595,   290   S.E.2d   682,   683

(1982)). A plaintiff may prove the first two Hilliard elements

by satisfying any of the following four prongs:

            (1) The production of medical evidence that
            he   is   physically   or   mentally,   as   a
            consequence of the work related injury,
            incapable of work in any employment; (2) the
            production of evidence that he is capable of
            some work, but that he has, after a
            reasonable   effort   on    his   part,   been
            unsuccessful   in   his   effort   to   obtain
            employment; (3) the production of evidence
            that he is capable of some work but that it
            would be futile because of preexisting
                                      -13-
            conditions, i.e., age, inexperience, lack of
            education, to seek other employment; or (4)
            the production of evidence that he has
            obtained other employment at a wage less
            than that earned prior to the injury.

Id.   at   ___,   760   S.E.2d   at   736-37   (citing   Russell   v.   Lowes

Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454,

457 (1993)).

      Here, in Finding of Fact 36,             the Commission found      that

plaintiff had satisfied the second Russell prong:

            Despite his known restrictions, Plaintiff
            began   a    job    search   in   July    2012   by
            submitting an application to a staffing
            agency. Between July 2012 and December 2012,
            when the evidentiary hearing was held,
            Plaintiff applied for twenty-seven positions
            as documented by his job search logs.
            Plaintiff     sought     employment    in    sales,
            customer service, maintenance and cleaning.
            Plaintiff also applied for jobs as a driver,
            packer, and in restaurants, convenience
            stores    and    retail    clothing   stores.    He
            testified that he primarily did internet
            searches because he had difficulty with the
            physical requirements of going from place to
            place to search for work. Plaintiff has not
            had any job offers. The Full Commission
            finds based upon the preponderance of the
            evidence in view of the entire record that
            Plaintiff has made a reasonable effort to
            find    suitable       employment    under      the
            circumstances of this case, even though he
            applied for some positions that appeared to
            be outside of his work restrictions or his
            skill level.

Relying on Salomon v. The Oaks of Carolina, defendant contends
                                       -14-
that no competent evidence supports this finding. 217 N.C. App.

146,   153,    718    S.E.2d    204,   209    (2011).   Salomon,      however,     is

distinguishable. There, the plaintiff briefly testified that she

had looked at “a couple of places” but did not proffer any other

evidence of her job search. Id. at 152 & n.2, 718 S.E.2d at 208-

09 & n.2. In contrast, here, plaintiff proffered a job search

log, copies of plaintiff’s job applications, and emails from

prospective         employers    confirming         receipt      of      plaintiff’s

applications.         Accordingly,     we    hold    that     competent    evidence

supports      the    Commission’s      finding      that      plaintiff     made   a

reasonable,         but   unsuccessful,        effort       to    find     suitable

employment.1 See Medlin, ___ N.C. at ___, 760 S.E.2d at 738.

                                IV.    Conclusion

       Because competent evidence supports the challenged findings

of fact, we affirm the Commission’s opinion and award.

       AFFIRMED.

       Judges HUNTER and McCULLOUGH concur.

       Report per Rule 30(e).



1
  Defendant also challenges the Commission’s finding that it
would have been futile for plaintiff to seek suitable employment
from 27 April 2012 through 29 January 2013.     But, because we
hold that plaintiff has satisfied the second Russell prong, we
need not address this issue of whether plaintiff has satisfied
the third Russell prong. See Medlin, ___ N.C. at ___, 760 S.E.2d
at 736-37.
