An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-883
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 March 2014


CHARLEEN SUSIE VENABLE,

             Employee,

             Plaintiff,

      v.                                      From the North Carolina
                                              Industrial Commission
                                              IC No. X13603

LOWE’S HOME CENTERS, INC.,

             Employer,
and

SELF-INSURED (SEDGWICK CMS,
          Servicing Agent),

             Defendant.


      Appeal by defendants from the Opinion and Award entered 30

April 2013 by the North Carolina Industrial Commission. Heard in

the Court of Appeals 8 January 2014.


      Shankle Law Firm, PA, by Margaret “Maggie” Shankle, for
      plaintiff-appellee.

      Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch,
      and Brad P. Kline, for defendant-appellants.


      STEELMAN, Judge.
                                       -2-
    Where     the   Industrial       Commission’s    findings     of   fact    are

supported    by   competent     evidence     and   these   findings      in   turn

support its conclusions of law, the Opinion and Award of the

Commission is affirmed.

                    I. Factual and Procedural History

    In October of 2010 plaintiff Charleen Susie Venable was

fifty-six years old and had been employed by defendant Lowe’s

Home Centers, Inc., for about ten years. Between 2003 and 2010,

she had been treated intermittently for joint and back pain and

for anxiety and depression by her family physician, Dr. Melva

Bowman.     However,     she   had   no   medical     history     of   cognitive

impairment, speech impediments, or memory loss. On 1 October

2010, plaintiff sustained an injury when she fell off a ladder

and struck her head on a steel beam. Plaintiff came to work the

day after the fall, but was unable to perform her job duties due

to the pain in her back and head. She left work and was seen at

Richmond Memorial Hospital.

    Defendant accepted plaintiff’s back injury as a compensable

injury and referred her to Dr. Kathleen Eaton for treatment. In

October 2010 Plaintiff reported to Dr. Eaton that she had pain

in her upper and lower back, headaches, light sensitivity, and

nausea. At an appointment with Dr. Eaton on 3 December 2010,

plaintiff     reported     daily     headaches,     stuttering,    and    memory
                                              -3-
problems,     which      she     related      to     her     fall    from       the    ladder.

Plaintiff also told Dr. Eaton that she had fallen at home the

day    before      her     doctor’s      appointment.             Dr.    Eaton        referred

plaintiff for treatment by a neurologist. On 23 December 2010

plaintiff was seen by Dr. Bruce Solomon, a neurologist, at which

time   she    was       suffering      from    slurred        and    stuttered         speech,

headaches,      difficulty        finding       the     right       words,      and     memory

issues. Dr. Solomon recommended a neuropsychological examination

of plaintiff to determine if there were psychological causes for

her symptoms.

       At defendant’s request, plaintiff was also examined by Dr.

Alexander Manning, who had a Ph.D. in psychology but is not a

medical doctor. Dr. Manning did not review the results of MRI

and CT scans administered to plaintiff and saw her only for the

purpose of administering neuropsychological tests. Based on his

testing,     Dr.    Manning      identified          several      possible       causes      for

plaintiff’s     symptoms,        including          dementia,       multiple      sclerosis,

demyelinating disease, or somatoform disorder.

       Dr.   Hermanth          Rao,    an      expert        in     neurology         with    a

subspecialty       in    brain    injuries,          began    treating       plaintiff        in

March of 2011. He conducted a physical examination of plaintiff,

reviewed     the    records       of    previous        medical         tests    and    other

physicians, and took a history from plaintiff. Based upon his
                                          -4-
examination, and his review of the MRI and CT scans, an EEG

test, and a sleep study, Dr. Rao ruled out dementia, multiple

sclerosis,       demyelinating      disease,     and    somatoform         disorder    as

possible causes of plaintiff’s symptoms. He treated plaintiff

with a variety of medications and therapies throughout 2011, but

she continued to suffer from headaches, memory loss, and speech

problems.    Dr.        Rao   concluded      that     she    would     benefit      from

participation       in    his    clinic’s    brain     injury       program.   In     his

deposition, Dr. Rao testified to a reasonable degree of medical

certainty that plaintiff’s symptoms were more likely than not

caused by her fall at work on 1 October 2010.

    On      24     February      2011,      plaintiff       filed     an    Industrial

Commission       Form    33   requesting     a   hearing      and    asserting      that

defendant denied the compensability of her head injury. In its

response,    defendant          stated    that      plaintiff       “did    sustain    a

compensable injury by accident” but that “the extent of her

injuries as related to the original work place accident are in

dispute.” The Full Commission reviewed the case on 7 March 2013.

On 30 April 2013, the Commission filed an Opinion and Award

ruling that based “upon the preponderance of the evidence from

the entire record, Plaintiff sustained a compensable traumatic

brain injury as a result of her accident at work on October 1,

2010,” and awarding plaintiff medical and compensation benefits.
                                             -5-
       Defendants appeal.

                              II. Standard of Review

       “The standard of review in workers’ compensation cases has

been firmly established by the General Assembly and by numerous

decisions of this Court. N.C.G.S. § 97-86 (2007). Under the

Workers’ Compensation Act, ‘[t]he Commission is the sole judge

of the credibility of the witnesses and the weight to be given

their testimony.’ Therefore, on appeal from an award of the

Industrial     Commission,          review    is   limited    to   consideration     of

whether competent evidence supports the Commission’s findings of

fact    and        whether     the     findings     support        the    Commission's

conclusions of law. This ‘court’s duty goes no further than to

determine whether the record contains any evidence tending to

support the finding.’”               Richardson v. Maxim Healthcare/Allegis

Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citing

Deese v. Champion Int’l Corp., 352 N.C. 109, 530 S.E.2d 549

(2000), quoting Anderson v. Construction Co., 265 N.C. 431, 433-

34, 144 S.E.2d 272, 274 (1965), and citing Adams v. AVX Corp.,

349 N.C. 676, 681-82, 509 S.E.2d 411, 414 (1998),                             rehearing

denied,    350      N.C.     108,    532   S.E.2d    522     (1999)).     Thus,   “[o]n

appeals    from       the     Industrial       Commission,         the    Commission’s

findings      of    fact     must    be    sustained    if    there      is   competent

evidence in the record to support them. This is so even if there
                                         -6-
is   evidence      which   would    support    a   contrary    finding,   because

‘courts are not at liberty to reweigh the evidence and to set

aside   the    findings     of     the   Commission,      simply   because   other

inferences could have been drawn and different conclusions might

have been reached.’” Hill v. Hanes Corp., 319 N.C. 167, 172, 353

S.E.2d 392, 395 (1987) (citing Lawrence v. Mill, 265 N.C. 329,

144 S.E. 2d 3 (1965), and quoting Rewis v. Insurance Co., 226

N.C. 325, 330, 38 S.E. 2d 97, 100 (1946)). Moreover, findings of

fact that are not challenged are presumed to be supported by

competent     evidence      and    are    binding    on    appeal.    Johnson    v.

Herbie’s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118,

disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003). “The

Commission’s conclusions of law are reviewed de novo.” McRae v.

Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004)

(citing Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534,

491 S.E.2d 678, 681 (1997), disc. rev. denied, 347 N.C. 671, 500

S.E.2d 86 (1998)).

                   III. Full Commission’s Findings of Fact

      On appeal, defendants contend that the “Full Commission’s

findings      of    fact   concerning      whether     plaintiff     sustained    a

compensable traumatic brain injury as a result of her workplace

accident on October 1, 2010, are not supported by the competent

evidence of record[.]” We disagree.
                                          -7-
       Defendants specifically challenge the evidentiary support

only for Findings Nos. 6, 7, 10, 11, 16, and 18-25. However, our

review of the record reveals that each of these findings is

supported by the record or by sworn testimony. Defendants do not

dispute     the     existence        of      testimony       that      supports       the

Commission’s      findings.      Rather,      they     direct    our   attention      to

inconsistencies      in    the     evidence,     and    to     other   evidence      that

might have supported different findings. As discussed above, we

will    affirm    the   Commission’s         findings     of    fact    if    they    are

supported by competent evidence.

       Defendants also argue that the Commission should not have

relied upon the testimony of Dr. Rao, since “his opinion rested

on the flawed post hoc, ergo propter hoc logic[.]” Defendants

contend that Dr. Rao’s opinion was based entirely on the fact

that plaintiff’s symptoms emerged only after her work-related

fall. However, in his deposition, Dr. Rao testified that he

examined plaintiff, reviewed the testing and medical records of

other    health    care     providers,       and     treated     her   with     various

medications and therapies over a period of months. We hold that

Dr.     Rao’s    opinion     was     based      on   more      than    the     temporal

relationship      between    plaintiff’s        fall     and    the    onset    of   her

symptoms, and that the Commission did not err by relying on his
                                           -8-
testimony     concerning       the     causal       relationship      between     her

accident and her symptoms.

     Finally,       defendants      make    a    conclusory   argument     that   the

Commission’s findings of fact do not support its conclusions of

law. However, defendants fail to identify any specific examples

of this contention, to cite any supporting authority, or to make

any argument in support of their contention.

     The thrust of defendants’ arguments is that the Commission

erred in its determinations as to the weight and credibility to

assign   the        evidence   presented.           As    discussed     above,    the

Commission is the sole judge of credibility and of the weight to

be   given     to     the   competent           evidence.   We   hold      that   the

Commission’s        findings   of     fact       were    supported    by   competent

evidence in the record, and affirm the Opinion and Award of the

Commission.

     AFFIRMED.

     Judges STEPHENS and DAVIS concur.

     Report per Rule 30(e).
