             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-500

                               Filed: 3 July 2018

North Carolina Industrial Commission, I.C. No. 13-007190

LISA A. GARRETT, Employee, Plaintiff,

            v.

THE GOODYEAR TIRE & RUBBER CO., Employer, LIBERTY MUTUAL
INSURANCE CO., Carrier, Defendants.


      Appeals by Plaintiff and Defendants from an Opinion and Award filed 10

February 2017 by the Full North Carolina Industrial Commission. Heard in the

Court of Appeals 20 September 2017.


      Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner and David P.
      Stewart, for plaintiff-appellant.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Matthew
      J. Ledwith, for defendants-appellees.


      MURPHY, Judge.


      Lisa A. Garrett (“Plaintiff”) and The Goodyear Tire & Rubber Company

(“Goodyear”) and Liberty Mutual Insurance Company (“Liberty”) (collectively

“Defendants”) appeal from an Opinion and Award filed 10 February 2017 by the

North Carolina Industrial Commission. For the reasons discussed herein, we affirm

in part and remand in part.

                                BACKGROUND
                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



       Plaintiff is approximately 56 years old, has a high school diploma, and

previously served in the United States Navy. She first worked at the Goodyear plant

in Fayetteville beginning on 12 June 2000 until sometime in 2001 when she was laid

off. In 2007, Goodyear rehired Plaintiff, and on 15 June 2009, she started a new

position with the company as a Production Service Carcass Trucker (“Carcass

Trucker”). The Carcass Trucker position required Plaintiff to operate a stand-up,

three-wheeled motorized vehicle in an industrial and warehouse setting. The position

also included the following physical demands and frequencies:

      One-Hand Pull with Right Hand – 15 pounds of force

      Lift, Push, Pull to Change Battery – 30 pounds

      Pick Up Fallen Tire – 25 pounds

       After working approximately one year as a Carcass Trucker, Plaintiff

underwent two surgeries, a spinal fusion on 15 October 2010 and a right shoulder

surgery on 29 December 2011. On 29 November 2012, Plaintiff’s treating physician,

Dr. Musante of Triangle Orthopedic Associates, medically released her to return to

work, and she resumed employment as a Carcass Trucker with Goodyear

       A year later, on 15 December 2013, another employee driving a stand-up

vehicle collided with Plaintiff’s vehicle. This is the workplace accident triggering

Plaintiff’s workers’ compensation claim and is the subject of this appeal. After the

accident, Plaintiff initially resumed working, but she soon started “feeling something



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                                  Opinion of the Court



weird,” and a numbness in the back of her neck. Plaintiff then reported the accident

to her supervisor, received treatment at Goodyear, and went to the emergency room.

Goodyear completed Industrial Commission Form 19 (Employer’s Report of

Employee’s Injury) and stated it knew of the incident and that Plaintiff received

“[m]inor on-site remedies by employer medical staff.” Plaintiff then began to see

several health care providers for her symptoms.

       On 18 December 2013, Plaintiff saw Dr. Perez-Montes, and complained of pain

in her neck and back. Dr. Perez-Montes imposed modified work (i.e. “light-duty”)

restrictions that included “no repetitive bending or twisting, as well as no pulling,

pushing, or lifting of more than 15 pounds.” Approximately two weeks after the

accident, Plaintiff returned to work as a Carcass Trucker, subject to these light-duty

restrictions.

       Defendants assigned Plaintiff a nurse case manager, who scheduled a 9 April

2014 appointment with a pain management specialist, Dr. Kishbaugh.                Dr.

Kishbaugh noted that Plaintiff was suffering from “low back and leg pain, cervical

and thoracic back pain, and pain in the shoulder region with numbness and tingling

involving the arms.” Dr. Kishbaugh referred Plaintiff for physical therapy to address

her low back pain and suggested she follow up with a neurosurgeon for her neck

complaints. On 21 April 2014, Plaintiff visited the office of Dr. David Musante, her

treating physician after her 2010 and 2011 surgeries and the doctor who released her



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                                   Opinion of the Court



for work in November 2012. Plaintiff complained of neck pain to Dr. Musante’s

Physician’s Assistant. X-rays and an MRI scan of her neck and spinal areas were

ordered.

        Goodyear initially accommodated Plaintiff’s light-duty work restrictions, and

Plaintiff continued working there as a Carcass Trucker while she received medical

treatment. However, on 12 May 2014, Goodyear notified Plaintiff that it would no

longer accommodate her work restrictions. Plaintiff then went on leave and began

receiving accident and sickness disability benefits through an employer-sponsored

plan.

        While on leave, Plaintiff participated in a functional capacity evaluation

(“FCE”) with physical therapist Frank Murray on 29 October 2014. Two weeks later,

on 13 November 2014, Dr. Kishbaugh reviewed the FCE, which concluded that

Plaintiff “could perform the physical demands and essential functions of the …

Carcass Trucker position.” Dr. Kishbaugh determined that it was appropriate for

Plaintiff to return to work, consistent with the conclusions of the 29 October 2014

FCE. Four days after Dr. Kishbaugh’s determination that Plaintiff could return to

work, on 17 November 2014, Plaintiff sought and obtained a note from Dr. Musante

excusing her from driving the carcass truck. Dr. Musante provided the note due to

Plaintiff’s “treatment for degeneration of a cervical intervertebral disc.” Plaintiff

continued to remain out of work.



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                                    Opinion of the Court



      On 2 January 2015, Plaintiff filed a Form 18 with the Industrial Commission

giving notice of her workers’ compensation claim to Goodyear. On 29 January 2015,

Plaintiff underwent an independent medical evaluation (“IME”) with Dr. Jon Wilson

upon referral of Goodyear’s accident and sickness insurance carrier. Dr. Wilson

concluded that Plaintiff could not at the time drive a carcass truck safely, but that

she could work full time at a sedentary level. On 13 February 2015, Defendants filed

a Form 63 Notice to Employee of Payment of Medical Benefits Only Without

Prejudice.

      Plaintiff then filed a Form 33 on 22 April 2015, requesting a hearing before the

Industrial Commission because “Defendants failed to file any forms” and “treated the

claims as compensable.” Almost three months later, on 16 July 2015, Goodyear made

an employment offer to Plaintiff for the Carcass Trucker position at her prior wages,

but Plaintiff refused the offer. Plaintiff later testified that she “did not want to return

to work as a [C]arcass [T]rucker because of the bouncing nature of the truck.”

Goodyear then filed a Form 61 on 18 August 2015, denying liability for the 15

December 2013 incident. This was the same day that the claim was assigned for

hearing before Deputy Commissioner Phillip Baddour.

      Prior to the 18 August 2015 hearing before the Deputy Commissioner, the

parties stipulated that the issues to be heard were:

             (a) Whether Plaintiff’s claims should be deemed admitted
             based upon the actions of Defendants?


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              (b) If not deemed admitted, whether Plaintiff suffered
              compensable injuries to her neck, low back, and bilateral
              shoulders?

              (c) If so, to what compensation, if any, is Plaintiff entitled?

              (d) Whether Dr. Musante should be designated as
              Plaintiff’s authorized treating physician for her neck and
              low back conditions?

              (e) Whether Plaintiff is entitled to attorney’s fees pursuant
              to [N.C.G.S.] § 97-88.1?

Deputy Commissioner Baddour filed his Opinion and Award on 23 June 2016 and

concluded that both Plaintiff’s neck and low back conditions were causally related to

the work accident and that she was entitled to total disability compensation from “13

May 2014 to the present and continuing until she returns to work or compensation is

otherwise legally terminated.”       Plaintiff’s bilateral shoulder condition was not

compensable and she was not entitled to attorney’s fees. The Deputy Commissioner’s

Opinion and Award also stated “[t]he Commission may not prohibit Defendants from

contesting compensability of Plaintiff’s claims as a sanction for Defendants’ failure to

timely admit or deny the claims.” Defendants then filed a notice of appeal to the Full

Commission.

      On 10 February 2017, the Full Commission filed its Opinion and Award. The

Full Commission considered several evidentiary sources, including Dr. Musante’s

deposition testimony, the stipulated medical records of Dr. Kishbaugh and Dr. Perez-

Montes, as well as Plaintiff’s statements and testimony.          The Full Commission

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                                   Opinion of the Court



concluded that Plaintiff’s low back condition was not a compensable injury but her

neck condition was. Plaintiff was awarded total temporary disability compensation

for her neck injury from 13 May 2014 (the date Goodyear stopped accommodating her

light-duty work restrictions) to 16 July 2015 (the date Plaintiff refused Defendants’

offer to return to her previous position at the same wages). Plaintiff and Defendants

timely appealed this Opinion and Award.             Each party alleges that the Full

Commission committed several errors, and we address Plaintiff’s and Defendants’

issues in turn.

                              STANDARD OF REVIEW

      Our review of an Opinion and Award of the Industrial Commission “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) (citation and quotation marks

omitted).

                  PLAINTIFF-EMPLOYEE’S ISSUES ON APPEAL

      Plaintiff’s appeal is addressed in three parts: (A) preservation of the estoppel

issue for review by the Full Commission; (B) causation of Plaintiff’s low back injury;

and, (C) Plaintiff’s determination of disability.



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                                   Opinion of the Court



                               A. Issue Preservation

      Plaintiff first argues that the Full Commission erred in failing to consider her

argument that Defendants were estopped from denying the compensability of her

claims through their actions. She contends that Defendants waived their right to

contest compensability of her claims because subsequent to her Form 18 Notice of

Claim filing, Defendants neither admitted liability, denied liability, nor did they file

a Form 63 Notice of Payment Without Prejudice regarding the claim within 30 days

as required by statute and Industrial Commission Rules. See N.C.G.S. § 97-18(j)

(2017); 04 NCAC 10A.0601 (2017) (titled Employer’s Obligations Upon Notice; Denial

of Liability; And Sanctions). Plaintiff also argues that after her Form 18 filing,

Defendants engaged in a course of conduct, including an allegedly improper use of

Form 63 designed “to direct and limit every aspect of [Plaintiff’s] medical care to her

medical and legal detriment” while “avoiding their legal obligation to admit or deny

her claim.” Without addressing the merits of Plaintiff’s substantive argument, we

conclude that the Full Commission erred by failing to address this issue of estoppel

because Plaintiff properly raised the issue before the Deputy Commissioner and the

Full Commission.

      When this case was before the Deputy Commissioner, the parties’ pre-trial

agreement stipulated the issues to be heard.          Stipulation 9 (B) of the pre-trial

agreement states that Plaintiff contends the issues to be heard are:



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                                   Opinion of the Court



             Whether [D]efendant’s accepted this claim pursuant to
             [N.C.G.S.] § 97-18(d), when [D]efendants took a recorded
             statement, provided medical treatment in the outsourced
             medical clinic on premises, paid for the emergency room
             visit, sent [Plaintiff] out for medical treatment and
             diagnostic studies, and assigned a nurse case manager to
             the file, and failed to file any Industrial Commission form
             either accepting or denying this claim in a timely manner
             and failed to send to the medical providers from whom
             [D]efendants required [Plaintiff] to treat the mandatory
             letter stating that they do not accept the claim?

The Deputy Commissioner’s Opinion and Award listed the five issues to be heard and

one was the issue of whether Goodyear was estopped from denying the

compensability of Plaintiff’s claims.

             (a) Whether Plaintiff’s claims should be deemed admitted
             based upon the actions of Defendants?

However, the Deputy Commissioner did not adjudicate this specific issue. Conclusion

of Law 1 of his Opinion and Award only states:

             1. The Commission may not prohibit Defendants from
             contesting compensability of Plaintiff’s claims as a sanction
             for Defendants’ failure to timely admit or deny the claims.
             [N.C.G.S.] § 97-18(j).

When the Full Commission heard this case, it invoked the “law of the case” doctrine

and determined that Plaintiff waived the issue because she did not appeal from the

Deputy Commissioner’s Opinion and Award. The 10 February 2017 Opinion and

Award of the Full Commission states:




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                                    Opinion of the Court



             Plaintiff did not appeal from the [Deputy Commissioner’s]
             Opinion and Award of June 23, 2016 as to the issues of . .
             . whether [D]efendants’ actions constitute an acceptance of
             [P]laintiff’s claim . . . [.] Accordingly, the Findings of Fact
             and Conclusions of Law issued by the Deputy
             Commissioner in the June 23, 2016 Opinion and Award are
             the law of the case as to those issues from which no appeal
             was taken by [P]laintiff.
      It is well-established that “[t]he law of estoppel does apply in workers’

compensation proceedings, and liability may be based upon estoppel to contravene an

insurance carrier’s subsequent attempt to avoid coverage of a work-related injury.”

See e.g., Carroll v. Daniels & Daniels Construction Co., 327 N.C. 616, 620, 398 S.E.2d

325, 328 (1990). “[E]stoppel requires proof that the party to be estopped must have

misled the party asserting the estoppel either by some words or some action or by

silence.” Id. at 621, 398 S.E.2d. at 328 (citation omitted). In a workers’ compensation

proceeding, “the burden is on the plaintiff to show that the [defendants] misled the

plaintiff by words, acts, or silence.” Id.

      In Lewis v. Beachview Exxon Serv., we addressed a situation similar to the

present case. 174 N.C. App. 179, 182, 619 S.E.2d 881, 882 (2005), rev’d on other

grounds, 360 N.C. 469, 629 S.E.2d 152 (2006). The parties’ pre-trial agreement

“stipulated that the issues before both the deputy commissioner and the Full

Commission included ‘whether defendants are estopped from denying plaintiff’s

pulmonary condition.’” Lewis, 174 N.C. App. at 182, 619 S.E.2d. at 882-83. However,

the Opinion and Award included “no findings of fact or conclusions of law regarding


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                                  Opinion of the Court



waiver or estoppel,” and we held that the “Commission failed to consider the

application of the doctrine of estoppel to the factual scenario at hand[]” and remanded

to the Commission to address the issue. Id. at 183, 619 S.E.2d. at 883 (citations

omitted).

      Regarding the “law of the case doctrine,” our Supreme Court has stated:

             [a]s a general rule, when an appellate court passes on
             questions and remands the case for further proceedings to
             the trial court, the questions therein actually presented
             and necessarily involved in determining the case, and the
             decision on those questions become the law of the case, both
             in subsequent proceedings in the trial court and on a
             subsequent appeal, provided the same facts and the same
             questions, which were determined in the previous appeal,
             are involved in the second appeal.

Tennessee-Carolina Transp., Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181,

183 (1974) (internal citations and quotation marks omitted). We have further

explained that the law of the case doctrine “provides that when a party fails to

appeal from a tribunal’s decision that is not interlocutory, the decision below

becomes the ‘law of the case’ and cannot be challenged in subsequent proceedings in

the same case.” Boje v. D.W.I.T., L.L.C., 195 N.C. App. 118, 122, 670 S.E.2d 910,

912 (2009). In Boje, the Deputy Commissioner’s Opinion and Award included a

finding of fact that the defendant did not have workers’ compensation coverage on

the date of the plaintiff’s accident. Id. There, the defendant did not appeal the

finding to the Full Commission, and we held that this finding was the law of the



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                                   Opinion of the Court



case and the defendant was “barred from relitigating that issue in subsequent

proceedings.” Id.

      However, “[t]he doctrine of the law of the case is not an inexorable command,

or a constitutional requirement, but is, rather, a flexible discretionary policy which

promotes the finality and efficiency of the judicial process.” Goetz v. N.C. Dep’t of

Health & Human Servs., 203 N.C. App. 421, 432, 692 S.E.2d 395, 403 (2010)

(quotation marks omitted). Moreover, the Full Commission “is not an appellate

court” and “[t]he Commission may not use its own rules to deprive a plaintiff of the

right to have his case fully determined.” Joyner v. Rocky Mount Mills, 92 N.C. App.

478, 482, 374 S.E.2d 610, 613 (1988). In Joyner, we observed:

             [a]lthough it hardly need be repeated, that the “[F]ull
             Commission” is not an appellate court in the sense that it
             reviews decisions of a trial court. It is the duty and
             responsibility of the [F]ull Commission to make detailed
             findings of fact and conclusions of law with respect to every
             aspect of the case before it.

Id.

      In the case at bar, Defendants maintain that the issue of whether they should

be estopped from denying Plaintiff’s claims was not before the Full Commission

because Plaintiff did not appeal the Deputy Commissioner’s Opinion and Award.

However, since there were no findings or conclusions in the Deputy Commissioner’s

Opinion and Award that addressed the issue of estoppel, the issue was not

adjudicated, and there was nothing for Plaintiff to appeal to the Full Commission.


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                                         Opinion of the Court



Although labeled as a “Conclusion of Law,” the Deputy Commissioner’s Conclusion of

Law 1 is not a legal conclusion because it is not the result of the application of legal

principles to evidentiary facts. See In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d

672, 675 (1997) (“As a general rule, however, any determination requiring the

exercise of judgment, or the application of legal principles, is more properly classified

a conclusion of law.”). Rather, Conclusion of Law Number 1 merely paraphrases a

statutory provision with potential relevance to the issue of Plaintiff’s estoppel claim.

It reads:

               1. The Commission may not prohibit Defendants from
               contesting compensability of Plaintiff’s claims as a sanction
               for Defendants’ failure to timely admit or deny the claims.
               [N.C.G.S.] § 97-18(j).1
       “While the Commission is not required to make findings as to each fact

presented by the evidence, it must find those crucial and specific facts upon which

the right to compensation depends.” Lewis, 174 N.C. App. at 182, 619 S.E.2d at 883

(citation omitted). More specifically, “the Commission must address the issue of

estoppel[]” when the issue is raised. Id. Here the issue of estoppel was raised before

the Deputy Commissioner via the pre-trial agreement and in Plaintiff’s brief to the

Full Commission.         Nevertheless, the Full Commission “failed to consider the



       1    Specifically, N.C.G.S. § 97-18(j) provides that the Commission may order reasonable
sanctions against an employer that does not, within 30 days following the notice of an employee’s claim
from the Commission either admit, deny, or initiate payments without prejudice and when such
sanctions are ordered, “shall not prohibit the employer or insurer from contesting the compensability
of or its liability for the claim.” N.C.G.S. § 97-18(j) (2017).

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                                         Opinion of the Court



application of the doctrine of estoppel to the factual scenario at hand.”                            Id.

Additionally, by invoking the law of the case doctrine, the Full Commission avoided

its duty to “make detailed findings of fact and conclusions of law with respect to every

aspect of the case before it.” Joyner, 92 N.C. App. at 482, 374 S.E.2d at 613. This

deprived Plaintiff of her right to have her case fully and finally determined.2 We

remand this matter to the Industrial Commission to consider whether the facts of

this case support a conclusion that Defendants should be estopped from denying the

compensability of Plaintiff’s claims. Should the Full Commission determine that the

doctrine of estoppel applies, it should determine whether Defendants are liable for

the workers’ compensation benefits. The Full Commission should rely on the findings

of fact already made and may make any additional findings it deems necessary.

                      B. Causation of Plaintiff’s Low Back Injury

        Plaintiff next contends that the Full Commission erred by concluding she failed

to prove that her low back condition was caused by the December 2013 workplace

accident. We disagree.




        2 Defendants also argue that Plaintiff waived the issue of whether her claims should be deemed
admitted based upon the actions of Defendants because she did not submit a Form 44 Application for
Review to the Full Commission. See 04 NCAC 10A.0701(d) (April 2018). Since Plaintiff did not appeal
any finding or conclusion of the Deputy Commissioner to the Full Commission, from a procedural
standpoint, Plaintiff was the appellee before the Full Commission. The Industrial Commission rules
do not require an appellee to submit a Form 44, only the appellant. See 04 NCAC 10A.0701(e) (April
2018). The appellee is, however, required to submit a brief, and Plaintiff did submit a brief raising the
specific issue of whether Plaintiff’s claims should be deemed admitted based upon the actions of
Defendants.

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                                    Opinion of the Court



      “The claimant in a workers’ compensation case bears the burden of initially

proving each and every element of compensability, including a causal relationship

between the injury and his employment.” Adams v. Metals USA, 168 N.C. App. 469,

475, 608 S.E.2d 357, 361 (2005) (citations and internal quotation marks omitted).

“[W]here the exact nature and probable genesis of a particular type of injury involves

complicated medical questions far removed from the ordinary experience and

knowledge of laymen, only an expert can give competent opinion evidence as to the

cause of the injury.” Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d

912, 915 (2000) (citations omitted). However, “an expert is not competent to testify

as to a causal relation which rests upon mere speculation or possibility.” Id.

      We have held that an expert medical opinion stating an accident “could,”

“might have” or “possibly” caused an injury is generally insufficient to prove medical

causation. See Carr v. Dep’t of Health & Human Servs., 218 N.C. App. 151, 155, 720

S.E.2d 869, 873 (2012) (citations omitted). However, “supplementing that opinion

with statements that something ‘more than likely’ caused an injury or that the

witness is satisfied to a ‘reasonable degree of medical certainty’ has been considered

sufficient” to establish causation under the Workers Compensation Act. Id. (citing

Young, 353 N.C. at 233, 538 S.E.2d at 916; Kelly v. Duke Univ., 190 N.C. App. 733,

740, 661 S.E.2d 745, 749 (2008)).




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                                        Opinion of the Court



       Here, the Full Commission concluded that Plaintiff “failed to present

competent medical expert opinion evidence, as required by our case law, to establish

a relationship between her low back condition and the December 15, 2013 workplace

accident.” Plaintiff contends that this conclusion was erroneous because the Full

Commission ignored the stipulated medical records of Dr. Perez-Montes and Dr.

Kishbaugh, and improperly discounted the medical opinion testimony of Dr.

Musante, and characterized it as “speculative.” As to both arguments, we disagree.

       “It is reversible error for the Commission to fail to consider the testimony or

records of a treating physician.” Whitfield v. Laboratory Corp. of Am., 158 N.C. App.

341, 348, 581 S.E.2d 778, 784 (2003). In Whitfield, the appellant argued that the

Commission erred by wholly disregarding the stipulated medical records of the

plaintiff’s treating physicians. Id. at 348, 581 S.E.2d at 783. We disagreed, and

noted that the Commission made numerous findings concerning plaintiff’s visits to

these doctors. Id. at 349, 581 S.E.2d at 784. The Commission “simply accorded

greater weight” to the        expert medical opinion of a doctor who provided sworn

deposition testimony, as it is entitled to do. Id. Similarly, here the Full Commission’s

Opinion and Award included several findings of fact that reference Plaintiff’s

stipulated medical records.3         Plaintiff is therefore unable to show that the Full


       3  The Full Commission’s consideration of Dr. Perez-Montes and Dr. Kishbaugh’s medical
records is evinced by Findings of Fact 7, 8, 9, and 10. See I.C. No. 13-007190, N.C. Indus. Comm’n,
Opinion And Award, p. 8 (Feb. 10 2017) (“7. On December 18 2013, [P]laintiff presented to Dr. Marcelo



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                                        Opinion of the Court



Commission failed to consider these medical records because a number of findings in

the Opinion and Award expressly reference these records, the physicians who

provided them, and the information contained therein.

       Plaintiff also claims that the Full Commission did not give “proper weight” to

these stipulated medical records during their review.                  However, “[i]t is for the

Commission to determine . . . the weight to be given the evidence, and the inferences

to be drawn from it.” Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d

121, 124 (2002). Moreover, when medical records are stipulated to, the only aspect of

the records the parties are stipulating to is their authenticity. In Hawley v. Wayne

Dale Const., we noted that “stipulating to the record’s authenticity is not the same as

stipulating to the accuracy of the diagnosis,” nor does such stipulation “preclude

taking a deposition, calling the author as a witness or introducing contrary evidence.”

Hawley v. Wayne Dale Const., 146 N.C. App. 423, 429, 552 S.E.2d 269, 273 (2001).

Although the medical records of Dr. Perez-Montes and Dr. Kishbaugh were

stipulated, nothing would have prohibited these physicians from providing a sworn

medical opinion regarding the cause of Plaintiff’s lower back condition. However,




R. Perez-Montes . . . for follow-up after her work incident of December 15, 2013. . . He diagnosed
musculoskeletal pain and cervical spasm”); Id. at 9 (“8. Dr. Perez-Montes ordered a lumbar spine
MRI[.]”); Id. (“9. . . . Dr. Perez Montes diagnosed degenerative disc disease/facet syndrome of the
lower spine and referred [P]laintiff to pain management treatment.”); Id. (“10. At Plaintiff’s initial
appointment on April 9, 2014, Dr. Kishbaugh noted low back and leg pain, cervical and thoracic back
pain, and pain in the shoulder region with numbness and tingling involving the arms.”).

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neither doctor was deposed, and it was for the Full Commission to determine the

weight to be given to their records and the inferences to be drawn from them.

       Plaintiff’s final argument regarding her low back condition is that the Full

Commission improperly characterized Dr. Musante’s medical opinion as “speculative”

because it was based upon a hypothetical. Finding of Fact 27 of the Full Commission

stated:

             27. The Commission finds that Dr. Kishbaugh, having
             treated [P]laintiff’s low back since April 2014, would have
             been in the best position to provide an expert medical
             opinion as to the cause of plaintiff’s low back condition.
             However, neither party obtained deposition testimony or a
             written opinion from Dr. Kishbaugh as to this issue, and
             the Commission finds that Dr. Musante’s opinion as to the
             cause of [P]laintiff’s low back condition is insufficient to
             establish a causal relationship between [P]laintiff’s low
             back condition and the work incident of December 15, 2013
             given its speculative nature and the fact that Dr. Musante
             has never evaluated or treated [P]laintiff’s low back.

This finding was based on Dr. Musante’s deposition testimony, which was in part

based on a hypothetical. Regarding Plaintiff’s back condition, Dr. Musante

testified:

             I can only speculate about her back because I don’t have any
             recollection of symptoms prior to, or knowledge of her back
             prior to this accident. I would simply answer in terms of
             what I’ve seen here and in a hypothetical. If she reported
             to me she had no history of seeking medical attention for
             her back and had no problems with her back prior to this
             accident, and then began to have back and leg symptoms, I
             would conclude that the accident caused or aggravated


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             most likely    some    previously     asymptomatic   lumbar
             pathology.

      While an expert medical opinion based on a hypothetical may be admissible as

competent evidence in workers’ compensation proceedings, it cannot be based on

conjecture and speculation. See Haponski v. Constructor’s, Inc., 87 N.C. App 95, 100-

03, 360 S.E.2d 109, 112-13 (1987).       Additionally, a medical opinion that relies

exclusively on the maxim of “post hoc, ergo propter hoc” is speculative incompetent

evidence of causation. See Young, 353 N.C. at 232, 538 S.E.2d at 916; see also Pine v.

Wal-Mart Assocs. Inc., ___ N.C. App. ___, ___, 804 S.E.2d 769, 777 (2017) (“[E]xpert

medical testimony based solely on the maxim ‘post hoc, ergo propter hoc’—which

‘denotes the fallacy of ... confusing sequence with consequence’—does not rise to the

necessary level of competent evidence.”).

      In Young, a medical expert was asked to provide an opinion on whether the

plaintiff’s fibromyalgia was causally related to a workplace accident. Young, 353 N.C.

at 232, 538 S.E.2d at 916. The expert testified:

             I think that she does have fibromyalgia and I relate it to
             the accident primarily because, as I noted, it was not there
             before and she developed it afterwards. And that’s the only
             piece of information that relates the two.

Id. (emphasis added). Our Supreme Court held that this opinion relied solely on the

maxim post hoc, ergo propter hoc, and was therefore “not competent evidence of

causation.” Id.



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                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



      In the instant case, Plaintiff claimed that the December 2013 workplace

accident caused a neck injury and a low back injury. However, Dr. Musante only

treated Plaintiff for her neck, not for her back, and he had no knowledge of her back

condition prior to the December 2013 workplace accident. Although his opinion

regarding the cause of Plaintiff’s low back symptoms was based on a hypothetical,

which is not incompetent evidence per se, Dr. Mustante’s testimony demonstrated

that his opinion as to causation was based exclusively on the temporal relationship

between the date the claimant sought medical attention and the date of the workplace

accident.   Therefore, Dr. Musante’s post hoc ergo proper hoc testimony was

insufficient to establish a causal relationship between Plaintiff’s low back condition

and the December 2013 workplace accident.

      Based on the foregoing, the Full Commission did not err by concluding Plaintiff

failed to prove that her low back condition was caused by the 15 December 2013

workplace accident.

                   C. Determination of Plaintiff’s Disability

      Plaintiff’s remaining issue contends that the Full Commission misapplied the

law in analyzing her disability claims. We disagree.

      A determination of disability is a conclusion of law we review de novo. Pine,

___ N.C. App. at ___, 804 S.E.2d at 773. “When the Commission acts under a

misapprehension of the law, the award must be set aside and the case remanded for



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                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                   Opinion of the Court



a new determination using the correct legal standard.” Ballenger v. ITT Grinnell

Indus. Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987) (citation omitted);

see also Weaver v. Dedmon, ___ N.C. App. ___, ___, 801 S.E.2d 131, 133 (2017) (“A

decision by the North Carolina Industrial Commission that contains contradictory

factual findings and misapplies controlling law must be set aside and remanded to

the Commission[.]”). “Disability” is defined as an “incapacity because of injury to earn

the wages which the employee was receiving at the time of the injury in the same or

any other employment.”      N.C.G.S. § 97-2(9) (2017).    To 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.” Hilliard v. Apex Cabinet Co., 305

N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (citing N.C.G.S. § 97-2(9)). The plaintiff

bears the burden of proof to establish disability, but once the plaintiff has done so,

the burden shifts to the defendant “to show not only that suitable jobs are available,

but also that the plaintiff is capable of getting one, taking into account both physical

and vocational limitations.” Wilkes v. City of Greenville, 369 N.C. 730, 745, 799 S.E.2d

838, 849 (2017) (citations omitted). Additionally, under N.C.G.S. § 97-32, “[i]f an

injured employee refuses suitable employment . . . the employee shall not be entitled



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                    GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                 Opinion of the Court



to any compensation at any time during the continuance of such refusal, unless in the

opinion of the Industrial Commission such refusal was justified.” N.C.G.S. § 97-32

(2017).

      Plaintiff does not challenge any specific findings made by the Full Commission

as unsupported by the evidence. Rather, Plaintiff argues that the Full Commission

erred in concluding she was only entitled to temporary disability for her neck injury

from 12 May 2014 (the date Goodyear no longer accommodated her “light-duty” work

restrictions imposed by Dr. Perez-Montes) to 16 July 2016 (the date Goodyear

extended an offer of employment for Plaintiff to return to her previous position as a

Carcass Trucker).     Plaintiff advances several different theories, none we find

prevailing.

      Plaintiff first argues that the Full Commission erred by affording greater

weight to the medical opinion of Mr. Murray (the licensed physical therapist who

conducted Plaintiff’s Functional Capacity Evaluation), than the medical opinion of

Dr. Wilson. We again note that it is for the Commission to determine the weight to

be given the evidence, and the inferences to be drawn from it. Rackley, 153 N.C. App.

at 472, 570 S.E.2d at 124.       “We will not reweigh the evidence before the

Commission[.]” Beard v. WakeMed, 232 N.C. App. 187, 191, 753 S.E.2d 708, 711

(2014).




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                       GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                         Opinion of the Court



       Second, Plaintiff contends that the Full Commission erred by “mechanically”

employing the disability methods set forth in Russell v. Lowes Product Distribution,

108 N.C. App. 762, 425 S.E.2d 454 (1993).4 Plaintiff is correct in that the Russell

methods “are neither statutory nor exhaustive” and “are not the only means of

proving disability.” Wilkes, 369 N.C. at 745, 799 S.E.2d at 849 (citing Medlin v.

Weaver Cooke Const., LLC, 367 N.C. 414, 422, 760 S.E.2d 732, 737 (2014)).

Nonetheless, the Full Commission’s findings and conclusions clearly indicate that it

understood that it is not limited to the Russell methods to determine if the ultimate

standard of disability set forth in Hilliard and N.C.G.S. § 97-2(9) is met.5 Moreover,

Plaintiff’s argument that the Full Commission was “too mechanical” in the

application of the Russell factors is, in essence, a request for us to reweigh the

evidence, which we will not do. Hall v. U.S. Xpress, Inc., ___ N.C. App. ___, ___, 808

S.E.2d 595, 605 (2017).




       4  Under Russell, the employee may prove disability “in one of four ways: (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 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.” Russell, 108 N.C. App. at 765, 425 S.E.2d at 457 (internal citations
omitted).
        5 Conclusion of Law 4 of in the Full Commission’s Opinion and Award states that the “Russell

factors are not exhaustive and do not preclude the Commission from considering other means of
satisfying the ultimate standard of disability set forth in Hilliard. See Medlin v. Weaver Cooke Const.,
LLC, 367 N.C. 414, 760 S.E.2d 732 (2014).”

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                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



      Plaintiff also contends that the Full Commission erred by concluding that she

unjustifiably refused an offer of suitable employment by refusing to return to her

previous position as a Carcass Trucker on 16 July 2015. She challenges Conclusion

of Law 5 of the Full Commission’s Opinion and Award:

             5. Plaintiff admittedly refused to return to her pre-injury
             job, which defendant employer offered to her by letter of
             July 16, 2015, despite being released to that job by Dr.
             Kishbaugh and Dr. Musante based upon the valid and
             reasonable FCE performed by Mr. Murray. Accordingly,
             the Commission concludes that [P]laintiff unjustifiably
             refused suitable employment as of July 16, 2015. [N.C.G.S.]
             § 97-2(22) (2016).

N.C.G.S. § 97-32 precludes compensation if an injured employee unjustifiably refuses

to accept an offer of “suitable employment.”

             If an injured employee refuses suitable employment as
             defined by [N.C.G.S. §] 97-2(22), the employee shall not be
             entitled to any compensation at any time during the
             continuance of such refusal, unless in the opinion of the
             Industrial Commission such refusal was justified.

N.C.G.S § 97-32 (2017). N.C.G.S. § 97-2(22) defines “suitable employment” as:

             employment offered to the employee or . . . employment
             available to the employee that (i) prior to reaching
             maximum medical improvement is within the employee’s
             work restrictions, including rehabilitative or other
             noncompetitive employment with the employer of injury
             approved by the employee’s authorized health care
             provider or (ii) after reaching maximum medical
             improvement is employment that the employee is capable
             of performing considering the employee’s preexisting and
             injury-related physical and mental limitations, vocational

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                                   Opinion of the Court



             skills, education, and experience and is located within a
             50-mile radius of the employee’s residence at the time of
             injury or the employee’s current residence if the employee
             had a legitimate reason to relocate since the date of injury.
             No one factor shall be considered exclusively in
             determining suitable employment.
N.C.G.S. § 97-2(22) (2017), amended by 2015 N.C. Sess. Laws 286. Accordingly, our

review of this argument is limited to determining whether the Full Commission’s

unchallenged findings of fact support the conclusion that Goodyear made Plaintiff

an offer of “suitable employment,” and that Plaintiff unjustifiably refused this offer.

      By letter dated 16 July 2015, Goodyear offered Plaintiff her pre-injury position

as a Carcass Trucker. Plaintiff did not accept this offer. At the time Goodyear made

the offer, the unchallenged findings demonstrate that Plaintiff had already been

medically cleared by one of her doctors to perform the duties of a Carcass Trucker.

This clearance was based on the results of Plaintiff’s 29 October 2014 FCE.

Specifically, Finding of Fact 17 states:

             17. Plaintiff returned to Dr. Kishbaugh on November 13,
             2014, at which time he reviewed the FCE by Mr. Murray.
             As noted by Dr. Kishbaugh, [P]laintiff expressed concern
             that she would “hurt” after sitting or riding in a truck for a
             full shift. However, [P]laintiff did not express concerns
             about cervical rotation needed to drive the carcass truck.
             Dr. Kishbaugh assessed [P]laintiff at maximum medical
             improvement . . . and encouraged her to discuss retirement
             versus return to work options with defendant-employer,
             although it was appropriate for [P]laintiff to return to work
             per the FCE conclusions.




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                    GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                   Opinion of the Court



Plaintiff maintains that assuming arguendo she was physically capable of returning

to her pre-injury employment as a Carcass Trucker, it was still error for the Full

Commission to conclude that her refusal to accept Goodyear’s 16 July 2015

employment offer was unjustifiable.       Plaintiff asserts that her refusal to accept

Goodyear’s employment offer was not “unjustifiable” because she feared

she would suffer another injury while working in that position. Plaintiff principally

relies on Bowden v. Boling Co. to support her argument. Bowden v. Boling Co., 110

N.C. App. 226, 429 S.E.2d 394 (1993).

      In Bowden, the employee worked in a furniture factory and was injured when

a machine malfunctioned and collapsed on his left arm, trapping him for forty-five

minutes. Id. at 228-29, 429 S.E.2d at 395-96. The accident caused third-degree

burns, as well as severe muscle and nerve damage, and the employee was diagnosed

as having a 100% disability of his left arm. Id. After the employee reached maximum

medical improvement, the defendant-employer offered him three jobs in the same

factory. Id. However, these jobs would have required the employee to use the same

kinds of machines that trapped, injured, and caused him to lose the ability to use his

left arm. The Full Commission concluded that the jobs offered by the employer to the

employee “were not suitable for his capacity” and that his refusal to accept them did

not preclude compensation. Id. at 231, 429 S.E.2d at 397. The employer appealed

and argued “that even if [a] plaintiff’s fear is reasonable, the fear of returning to work



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                                  Opinion of the Court



after an injury does not render an employee totally disabled under the Workers’

Compensation Act.” Id. at 213, 429 S.E.2d. at 398. We disagreed and affirmed the

Full Commission, reasoning:

             if a person’s fear of returning to work renders the job
             unsafe for his performance then it is illogical to say that a
             suitable position has been offered. Although plaintiff may
             be able to perform work involving the use of his right arm,
             the availability of positions for a person with one functional
             arm does not in itself preclude the Commission from
             making an award for total disability if it finds upon
             supported evidence that plaintiff because of other
             preexisting conditions is not qualified to perform the kind
             of jobs that might be available in the marketplace. While
             the positions offered to plaintiff by defendants may in fact
             be performed by a person with only one functional arm, the
             question is whether the jobs could be performed safely by
             this plaintiff.

Id. at 232-33, 429 S.E.2d at 398 (citation omitted).

      The instant case is distinguishable from Bowden because it involves a

drastically different set of factual circumstances. In Bowden, the injured employee

lost the ability to use his left arm after a “machine used to steam and bend pieces of

wood” collapsed on his arm and trapped him for 45 minutes. Id. at 228, 429 S.E.2d

at 396. This injury was so severe that it required treatment at the Burn Unit at

North Carolina Memorial Hospital. Here, Plaintiff was operating a low-speed

battery-powered utility vehicle (in essence, a forklift) when another Goodyear

employee operating a similar vehicle collided with Plaintiff’s vehicle. Unlike Bowden,

Plaintiff did not go to the ER immediately after the accident. In fact, after the


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                                         Opinion of the Court



collision, she retained the mental and physical wherewithal to engage in a heated

verbal altercation with the employee who struck her vehicle,6 and resume her normal

work activity.       After feeling “something weird,” and reporting “numbness” to

Goodyear’s in-house medical staff, Plaintiff went to urgent care, took two weeks off,

and came back to work. Then, for the next 15 months, Plaintiff continued to drive

the same work vehicle she was operating when the accident occurred. In light of

these differences between Bowden and the present case, we conclude that Bowden is

not determinative on this issue.

       Plaintiff also contends the Full Commission’s Opinion and Award failed to

address her argument regarding her fear of driving the carcass truck. We reject this

contention and have previously held that:

               The Full Commission must make definitive findings to
               determine the critical issues raised by the evidence, and in
               doing so must indicate in its findings that it has
               “considered or weighed” all testimony with respect to the
               critical issues in the case. It is not, however, necessary that
               the Full Commission make exhaustive findings as to each
               statement made by any given witness or make findings
               rejecting specific evidence that may be contrary to the
               evidence accepted by the Full Commission. . . . Such
               “negative” findings are not required.




       6   Plaintiff made a recorded statement at her home to a Liberty Mutual Insurance
representative, and recounted the altercation as follows: “[a]ll right, someone slammed into me . . . I
saw a flash of person flying by going up the main aisle[.] . . . he came flying back, jumped out of his
truck and came at me telling me ‘I was a cunt from hell, I was a bitch that needed to be put down’ and
I told him to ‘take your tiny dick and move on.’. . . We had a confrontation for some time.”

                                                - 28 -
                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                   Opinion of the Court



Boylan v. Verizon Wireless, 224 N.C. App. 436, 443, 736 S.E.2d 773, 778 (2012)

(citations omitted) (emphasis added). While it is true that the Full Commission did

not make any specific findings regarding any potential effect that Plaintiff’s alleged

“fear” of operating a carcass truck would have on her ability to safely perform the

duties of that job, it is clear that the Full Commission made those findings necessary

to support its conclusion that Plaintiff unjustifiably refused Goodyear’s offer of

suitable employment. Plaintiff’s contention that the Commission “failed to address”

her fear of driving argument is a request for us to require the Industrial Commission

to make “negative findings” to support its conclusion (i.e., Plaintiff was not afraid of

driving the carcass truck). See id. This is something we will not do.

      As our review of this is limited to determining whether the Full Commission’s

findings support its conclusions, we hold that that Findings of Fact 17, 31, 32, 33, 34,

35, and 37 adequately support the conclusion that Goodyear made an offer of “suitable

employment” and Plaintiff unjustifiably refused this offer. Finding of Fact 17 states

that as of 13 November, 2014, Dr. Kishbaugh was of the opinion that “it was

appropriate for plaintiff to return to work per the FCE conclusions.” Finding of Fact

31 states that “[b]y letter dated July 16, 2015, . . . defendant-employer offered

[P]laintiff to return to work in her pre-injury position as a Production Service Carcass

Trucker.” Finding of Fact 32 states that “Plaintiff did not return to her pre-injury

position as offered.” Finding of Fact 33 states that “Dr. Musante testified that . . .



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                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                   Opinion of the Court



[P]laintiff would not suffer any harm in driving the truck required of her pre-injury

job” and though “driving the truck may cause [P]laintiff to suffer a flare in her

symptoms and hurt, doing so posed no risk of harm to [P]laintiff.” Dr. Musante also

testified that “it appeared that Plaintiff was trying to not do that job.” Findings of

Fact 34 and 35 also demonstrate that Plaintiff’s treating physicians believed she was

“capable of much more than sedentary-duty work,” and the work restrictions

recommended in her FCE, if implemented, would allow her to work “in her pre-injury

position as a Production Service Carcass Trucker.”         These findings sufficiently

demonstrate that the job offered was “within the employee’s work restrictions,

including rehabilitative or other noncompetitive employment with the employer of

injury approved by the employee’s authorized health care provider.” See N.C.G.S. §

97-2(22) (defining suitable employment).


      Furthermore, Finding of Fact 37 supports the conclusion that Plaintiff’s refusal

to accept Goodyear’s offer was unjustifiable. This finding states that Plaintiff “did

not want to return to work as a [C]arcass [T]rucker because of the bouncing nature

of the truck,” and that she testified that she “can’t be bounced around like that.”

Plaintiff’s own testimony counters any claim that her refusal was justified under the

rationale of Bowden, which stands for the proposition that “if a person’s fear of

returning to work renders the job unsafe for his performance then it is illogical to say

that a suitable position has been offered” and that the relevant question is whether


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                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                   Opinion of the Court



the jobs available are jobs that “could be performed safely by this plaintiff.” Bowden,

110 N.C. App. at 232-33, 429 S.E.2d at 398. Plaintiff’s testimony was that she was

“afraid of getting hit again,” “afraid of her disk getting worse” and she “can’t be

bounced around like that.” She argues that this evidence clearly establishes that her

refusal to return to work as a Carcass Trucker was justified. However, Plaintiff’s

interpretation of her own testimony is not the only reasonable interpretation, and

“[i]t is for the Commission to determine the credibility of the witnesses, the weight to

be given the evidence, and the inferences to be drawn from it.” Rackley, 153 N.C.

App. at 472, 570 S.E.2d at 124.

      Accordingly, we affirm the Full Commission’s conclusion that Plaintiff

unjustifiably refused an offer of suitable employment on 16 July 2016, and was not

entitled to disability compensation for her neck injury after that date.

                      DEFENDANTS’ ISSUES ON APPEAL

      Defendants raise two issues on appeal.              They first argue that the Full

Commission erred in concluding that Plaintiff’s cervical neck condition is

compensable. Defendants also argue that the Full Commission erred by failing to

enter sufficient findings to support the conclusion that Plaintiff was disabled from 13

May 2014 to 16 July 2015.

                     A. Causation of Plaintiff’s Neck Injury
      Regarding the compensability of Plaintiff’s neck injury, Conclusion of Law 3 of

the Full Commission’s Opinion and Award states:

                                          - 31 -
                    GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                     Opinion of the Court



             3. Based on the expert medical opinion of Dr. Musante, the
             Commission concludes that the workplace accident of
             December 15, 2013 caused or contributed to [P]laintiff’s
             current neck condition by materially aggravating her pre-
             existing, asymptomatic neck condition, thereby rendering
             it a compensable injury by accident.
Dr. Musante was Plaintiff’s treating physician for her cervical neck condition during

her 2011 and 2012 surgeries and also after the December 2013 workplace accident.

During his deposition, Dr. Musante testified that it was his opinion that the

workplace accident contributed to or aggravated the underlying pre-existing

asymptomatic condition in the neck:

             Q. What is that opinion?

             A. The–my opinion is that the accident contributed to or
             aggravated an underlying preexisting minimally to
             asymptomatic condition in the neck. . . I can only speculate
             about her back[.]

              ...

             Q. And is that medical opinion within a reasonable degree
             of medical certainty?

             A. Yes.

Dr. Musante based this opinion on his treatment history with Plaintiff and his clinical

evaluation of her neck injury:

             Q. And is that medical opinion based upon your training,
             your clinical evaluation, your education, your experience,
             the medical literature and your familiarity since 2010 with
             [Plaintiff] and her medical conditions?

             A. Yes, for the neck.

                                            - 32 -
                     GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



              ....

             A. So it would be – it was based – I was actually treating
             her for her cervical spine in January. I made my conclusion
             based upon the history that she provided and the imaging
             that I had.

             ....

             Q. Would you say that what takes you from the
             incident could have been or is a possible cause of
             her pain to saying more likely than not it is a cause
             of her pain is solely the temporal nature of her
             complaints?
             Plaintiff’s Counsel: Objection
             A. I would say that the temporal nature, the fact
             that she wasn’t seeking attention from me prior to
             the accident, and then began seeking attention[.]
      Defendants argue that Dr. Musante’s deposition testimony was insufficient to

support the Full Commission’s conclusion that Plaintiff’s neck condition was a

compensable injury. Specifically, Defendants contend that Dr. Musante’s testimony

only went to whether Plaintiff’s “pain complaints” were related to the workplace

accident. Defendants also maintain that his testimony was “speculative” because it

relied on the temporal nature of Plaintiff’s complaint history before and after the

incident. As to both theories, we disagree.

      Regarding Defendants’ theory that Dr. Musante’s testimony only went to

whether Plaintiff’s pain complaints were related to the workplace accident, we

initially note that “when treating pain patients, a physician’s diagnosis often depends



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                                  Opinion of the Court



on the patient’s subjective complaints, and this does not render the physician’s

opinion incompetent as a matter of law.” Yingling v. Bank of Am., 225 N.C. App. 820,

836, 741 S.E.2d 395, 406 (2013) (citations, quotation marks, and alterations omitted).

Furthermore, it is well-established that an aggravation of a pre-existing condition

can be a compensable injury under the Workers’ Compensation Act. Morrison v.

Burlington Indus., 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981) (stating that “[a]n

employer takes the employee as he finds her with all her pre-existing infirmities and

weaknesses” and a workers’ compensation claimant can be compensated for the

“aggravation and acceleration of a pre-existing infirmity.”). Here, Dr. Musante’s

medical opinion was that the December 2013 accident “aggravated an underlying pre-

existing minimally to asymptomatic condition in the neck.” This is a compensable

injury under the Workers’ Compensation Act. Id. Moreover, his testimony did not

only address Plaintiff’s own reports of pain. Dr. Musante testified that his medical

opinion was also based on Plaintiff’s medical history, MRI images and X-rays.

      Similarly, Defendants’ contention that Dr. Musante’s opinion regarding

Plaintiff’s neck injury was “speculative” incompetent evidence of causation because it

relied on the temporal nature of Plaintiff’s complaint history is also without merit.

Young, discussed in greater detail supra, held that “expert medical testimony based

solely on the maxim ‘post hoc, ergo propter hoc’—which ‘denotes the fallacy of ...

confusing sequence with consequence’—does not rise to the necessary level of



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                                   Opinion of the Court



competent evidence.” See Pine, ___ N.C. App. at ___, 804 S.E.2d at 777 (citing Young,

353 N.C. at 232, 538 S.E.2d at 916). However, an expert is not always precluded from

relying on the temporal sequence of events (e.g. “post hoc, ergo propter hoc”) in

forming his or her opinion as to the cause of a claimant’s injury. For example, in Pine,

we distinguished that case from Young “[b]ecause a full review of [the expert’s]

testimony demonstrate[d] that his opinion was based on more than merely post hoc,

ergo propter hoc, and went beyond a ‘could’ or ‘might’ testimony[.]” Pine, ___ N.C.

App. at ___, 804 S.E.2d at 778 (emphasis added).

      Here, Dr. Musante did consider the temporal relationship between the date of

Plaintiff’s workplace accident and the dates she sought medical attention. However,

the temporal sequence of events was not the only factor he considered. Unlike his

opinion regarding the cause of Plaintiff’s low back condition, Dr. Musante’s opinion

regarding the cause of Plaintiff’s neck injury was not based “solely” on post hoc, ergo

propter hoc reasoning. Dr. Musante was Plaintiff’s treating physician for her neck

condition and had been since 2010. He also conducted physical exams of Plaintiff and

reviewed MRI images. Relying on all of this information, in addition to the temporal

sequence of events surrounding the December 2013 workplace accident, Dr. Musante

testified that it was his medical opinion “within a reasonable degree of medical

certainty” that the workplace accident caused Plaintiff’s neck injury. This medical

opinion was based on more than mere speculation.



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                                   Opinion of the Court



      Our role is “limited to reviewing whether any competent evidence supports the

Commission’s findings of fact and whether the findings of fact support the

Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116,

530 S.E.2d 549, 553 (2000) (emphasis added). In light of this role, we conclude that

Dr. Musante’s testimony supported the conclusion that the aggravation of Plaintiff’s

pre-existing neck condition was caused by the December 2013 workplace accident and

was a compensable injury.

                    B. Temporary Disability Determination
      The Full Commission concluded that Plaintiff was entitled to temporary total

disability compensation for the period of 13 May 2014 to 16 July 2015 for her neck

injury. Defendants argue that the Commission erred by failing to enter sufficient

findings to support the conclusion that Plaintiff was disabled from 13 May 2014 to 16

July 2015. We agree and conclude that the Commission failed to make sufficient

findings regarding the effect that Plaintiff’s compensable neck injury had on her

ability to earn wages between 13 May 2014 and 16 July 2015.

      A determination of disability is a conclusion of law we review de novo, and “the

claimant has the burden of proving the existence of his disability and its extent.”

Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). In

addition to proving that a compensable injury occurred as the result of a workplace

accident, a plaintiff must also prove (1) she was “incapable after her injury of earning

the same wages earned prior to injury in the same employment,” (2) she was

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                                  Opinion of the Court



“incapable after her injury of earning the same wages she earned prior to injury in

any other employment,” and (3) her “incapacity to earn wages was caused by [her]

injury.” Hilliard, 305 N.C. at 595, 290 S.E.2d at 683 (emphasis added). “After the

plaintiff meets her burden to establish disability, the burden shifts to the employer

to show not only that suitable jobs are available, but also that the [employee] is

capable of getting one, taking into account both physical and vocational limitations.”

Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 279, 661 S.E.2d 249, 253-54

(2008) (citations omitted). “An employer can overcome the presumption of disability

by providing evidence that: (1) suitable jobs are available for the employee; (2) that

the employee is capable of getting said job taking into account the employee’s physical

and vocational limitations; (3) and that the job would enable employee to earn some

wages.” Id. (emphasis added).

      We have often stated that the Commission must make specific findings that

address the “crucial questions of fact upon which plaintiff’s right to compensation

depends.” Wilkes, 369 N.C. at 746, 799 S.E.2d at 850 (citing Guest v. Brenner Iron &

Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955)); see also Singleton v. Durham

Laundry Co., 213 N.C. 32, 34-35, 195 S.E. 34, 35 (1938) (“It is the duty of the

Commission to make such specific and definite findings upon the evidence reported

as will enable this Court to determine whether the general finding or conclusion

should stand, particularly when there are material facts at issue.”).



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                                  Opinion of the Court



      For example, in Carr, like the instant case, the Commission concluded that the

plaintiff was entitled to temporary total disability. Carr, 218 N.C. App. at 151, 720

S.E.2d at 869. We remanded because the Commission failed to make necessary

findings. Specifically, we held that before the Commission could conclude that the

claimant was entitled to temporary total disability compensation, it must make

findings as to “whether plaintiff has made a reasonable effort to obtain employment,

but been unsuccessful, or that it would be futile for plaintiff to seek work because of

preexisting conditions.” Id. at 158, 720 S.E.2d at 875. We reached this result because

the medical evidence did not show claimant was incapable of working in any

employment. Carr, 218 N.C. App. at 157, 720 S.E.2d at 875.

      More recently, in Wilkes v. City of Greenville, our Supreme Court remanded a

decision of the Commission because the Commission did not make any findings

addressing how the plaintiff’s injury “may have affected his ability to engage in wage-

earning activities.” Wilkes, 369 N.C. at 747-48, 799 S.E.2d at 850. The plaintiff in

Wilkes was employed as a landscaper and was injured in a motor vehicle accident

during the course of employment. Id. at 732, 799 S.E.2d at 841. In concluding that

the plaintiff was disabled, the Commission found that he had suffered “severe

tinnitus” as the result of the accident. Id. at 732, 799 S.E.2d at 841. However, while

the Commission’s findings indicated that the plaintiff had “numerous pre-existing

limitations” that affected his ability to earn wages in other employment after the



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                                         Opinion of the Court



workplace accident,7 “the Commission made no related findings on how the plaintiff’s

compensable tinnitus . . . affected his ability to engage in wage-earning activities.”

Id. Our Supreme Court remanded to the Commission to “take additional evidence if

necessary and to make specific findings addressing the plaintiff’s wage-earning

capacity, considering his compensable tinnitus in the context of all the pre-existing

and coexisting conditions bearing upon his wage-earning capacity.” Id.

        In the present case, the Full Commission concluded that Plaintiff ’s neck injury

was compensable, and that she was entitled to temporary total disability for her neck

injury. The findings of the Commission support the conclusion that Plaintiff was

unable to earn the same wages in the “same employment” during the period of

temporary total disability because Goodyear no longer accommodated her light-duty

work restrictions after 13 May 2014. However, the Opinion and Award does not

sufficiently address how Plaintiff’s neck injury affected her ability to engage in all

wage-earning activities after 13 May 2014. The evidence before the Commission did

not show that Plaintiff was incapable of working in any employment between the

dates of 13 May 2014 and 16 July 2015. Plaintiff’s “light-duty” work restrictions only

required her to refrain from some, but not all work activities.8 Also, as of 29 January

2015, Plaintiff’s doctors believed she was capable of working full time in a sedentary


        7 For example, the plaintiff in Wilkes was over the age of sixty, had an IQ under 70, and had a
limited education and work experience. Wilkes, 369 N.C. at 745, 799 S.E.2d at 849.
        8 Plaintiff’s work restrictions required her to refrain from repetitive bending and twisting, and

the pulling, pushing, or lifting of more than 15 pounds.

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                    GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



position. Like Carr, the evidence here showed that Plaintiff was not incapable of

working in any employment. However, the Full Commission failed to make any

findings addressing whether after a reasonable effort on Plaintiff’s part, she had been

unsuccessful in her effort to obtain employment, or it would have been futile for her

to seek other employment.      As such, there are no findings addressing whether

Plaintiff had any limitations that precluded her from obtaining “any other

employment” at the same wages.       Hilliard, 305 N.C. at 595, 290 S.E.2d at 683

(emphasis added).     As in Carr, we cannot determine what evidence Plaintiff

introduced to meet her burden to show that her inability to find equally lucrative

work in any other employment between the dates of 13 May 2014 and 16 July 2015

was caused by her compensable neck injury.

      Based upon the record before us, we cannot affirm the award. Accordingly, we

remand this case to the Commission. On remand, the Commission shall make specific

findings addressing Plaintiff’s wage-earning capacity, considering her compensable

neck injury in the context of all the preexisting and coexisting conditions, as well as

all vocational limitations bearing upon her wage-earning capacity.

                                   CONCLUSION


      We affirm in part and remand in part. We affirm the Commission’s conclusions

that: (1) Plaintiff failed to prove that her low back condition was caused by the

December 2013 workplace accident; (2) Plaintiff met her burden to establish that her


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                   GARRETT V. THE GOODYEAR TIRE & RUBBER CO.

                                  Opinion of the Court



neck condition was caused by the December 2013 workplace accident; and (3) the Full

Commission did not err in concluding that Plaintiff’s refusal of Goodyear’s 16 July

2015 employment offer was unjustified. We remand this matter to the Industrial

Commission to: (1) to consider whether the facts of this case support a conclusion that

the employer or the insurance carrier should be estopped from denying coverage; and

(2) to make specific findings addressing Plaintiff’s wage-earning capacity between the

dates of 13 May 2014 and 16 July 2015.


      AFFIRMED IN PART; REMANDED IN PART.

      Judges CALABRIA and ZACHARY concur.




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