Williams v. Best Cartage ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-821
NORTH CAROLINA COURT OF APPEALS
Filed: 17 March 2015
JAMES WILLIAMS,
Employee,
Plaintiff
v. The North Carolina Industrial
Commission
I.C. No. X68962
BEST CARTAGE, INC.,
Employer,
and
NATIONAL INTERSTATE INSURANCE CO.,
Carrier,
Defendants.
Appeal by defendants from Opinion and Award entered 27 May
2014 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 3 December 2014.
The Deuterman Law Group, by Jeffrey P. Lewis, for plaintiff.
Teague, Campbell, Dennis & Gorham, L.L.P., by Ben S. Greenberg
and William A. Bulfer, for defendants.
DAVIS, Judge.
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Best Cartage, Inc. (“Best Cartage”) and National Interstate
Insurance Co. (collectively “Defendants”) appeal from the Opinion
and Award of the North Carolina Industrial Commission (“the
Commission”) awarding James Williams (“Plaintiff”) workers’
compensation benefits with respect to his left knee injury. On
appeal, Defendants contend that the Commission erred in (1) failing
to specifically determine the reason for Plaintiff’s fall; and (2)
concluding that Plaintiff’s left knee injury was causally related
to his work-related accident and, therefore, compensable. After
careful review, we affirm the Commission’s Opinion and Award.
Factual Background
Plaintiff was employed as a long-haul semi-truck driver for
Best Cartage. At approximately 6:00 a.m. on 4 October 2011,
Plaintiff parked his truck on an unpaved portion of the parking
lot of a Huddle House restaurant in Bishopville, South Carolina,
intending to have breakfast there. As he opened the driver’s side
door and began to exit the cab, Plaintiff’s left foot “unexpectedly
landed in a hole or on some loose gravel,” and his left knee
twisted. Plaintiff then fell to his right toward the truck and
also twisted his right knee. He felt immediate pain in both knees
with the pain in his left knee being more acute. Later that day,
Plaintiff returned to Best Cartage’s base office in Kernersville,
North Carolina and reported the incident.
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On the following day, Best Cartage sent Plaintiff to PrimeCare
in Kernersville for a medical examination. At PrimeCare, Plaintiff
was treated by Dr. Camille Andy (“Dr. Andy”) who diagnosed him
with a “left medial knee sprain and degenerative joint disease,
and right knee pain.”
On 17 October 2011, Plaintiff filed a Form 18 “Notice of
Accident to Employer and Claim of Employee.” On 26 October 2011,
Defendants responded by submitting a Form 61 “Denial of Workers’
Compensation Claim.” On 31 October 2011, Plaintiff moved to have
his claim assigned for hearing.
On 14 December 2011, Plaintiff saw Dr. Scott Dean (“Dr.
Dean”), an orthopedist, regarding his left knee pain. Dr. Dean
recommended that Plaintiff undergo a total knee replacement of the
left knee. Dr. Dean performed left total knee replacement surgery
on Plaintiff on 13 March 2012. During his deposition, Dr. Dean
testified to a reasonable degree of medical certainty that
Plaintiff’s left knee injury was causally related to his 4 October
2011 accident.
The matter was heard before Deputy Commissioner Robert J.
Harris on 12 March 2013. Deputy Commissioner Harris filed an
opinion and award on 28 August 2013, finding that Plaintiff’s left
knee injury was causally related to the 4 October 2011 incident.
He determined that Plaintiff was therefore entitled to all medical
expenses incurred, or to be incurred, as a result of the injury.
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Defendants appealed to the Full Commission. On 27 May 2014,
the Commission issued an Opinion and Award affirming Deputy
Commissioner Harris’s opinion and award and concluding, in
pertinent part, as follows:
Plaintiff sustained a compensable injury by
accident to his left knee arising out of and
in the course of his employment with
defendant-employer upon the occurrence of the
4 October 2011 incident, which injury caused
a compensable exacerbation of plaintiff’s pre-
existing left knee arthritis condition.
Defendants filed a timely notice of appeal to this Court.
Analysis
Our review of an opinion and award by the 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.” Richardson v. Maxim
Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584
(2008). The Commission’s findings of fact are conclusive on appeal
if supported by competent evidence even if there is evidence to
support contrary findings. Avery v. Phelps Chevrolet, 176 N.C.
App. 347, 353, 626 S.E.2d 690, 694 (2006). On appeal, this Court
will not “weigh the evidence and decide the issue on the basis of
its weight. The court’s duty goes no further than to determine
whether the record contains any evidence tending to support the
finding.” Smith v. Champion Int’l, 134 N.C. App. 180, 182, 517
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S.E.2d 164, 166 (1999) (citation and internal quotation marks
omitted).
I. Nature of Accident
In their first argument on appeal, Defendants challenge the
Commission’s finding of fact 11, which states as follows:
Plaintiff did acknowledge that, as a truck
driver he would have to expect to step down
onto different surfaces, such as pavement,
sand or gravel, when getting out of his truck.
Plaintiff also acknowledged that he was not
sure exactly what his left foot had stepped on
or in when this incident occurred. However,
the Commission finds that the incident was an
unexpected departure from plaintiff’s usual
work routine and/or was an unexplained fall.
The Commission finds that the circumstances of
plaintiff’s injury on 4 October 2011
constituted an interruption of his normal work
routine and the introduction thereby of
unusual circumstances likely to result in
unusual results and/or was an unexplained
fall. As such, on 4 October 2011, plaintiff
sustained an injury by accident arising out of
and in the course of his employment with
defendant-employer.
(Emphasis added.)
Defendants take issue with the Commission’s use of the term
“and/or,” asserting that the Commission “has not made specific
findings as to the crucial facts that are required for a
determination of whether Plaintiff is entitled to Compensation.”
They further contend that the Commission’s “refusal to make a
specific determination with regard to this crucial fact falls short
of its judicial obligations and warrants reversal or, in the
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alternative, remand for a determination as to whether Plaintiff’s
alleged injury constituted an interruption of his normal work
routine due to what he stepped down on or an unexplained fall.”
It is well established that “[u]nder the Workers’
Compensation Act, an injury is compensable if the claimant proves
three elements: (1) that the injury was caused by an accident;
(2) that the injury was sustained in the course of the employment;
and (3) that the injury arose out of the employment.” Philbeck v.
Univ. of Michigan, __ N.C. App. __, __, 761 S.E.2d 668, 671 (2014)
(citation and internal quotation marks omitted).
As an initial matter, we take this opportunity to note our
disapproval of the Commission’s use of the term “and/or.” See
Gibson v. Cent. Mfrs. Mut. Ins. Co., 232 N.C. 712, 717, 62 S.E.2d
320, 323 (1950) (“[T]he Court has inferentially condemned the use
of the term ‘and/or’ in statutes, and in verdicts in judicial
proceedings. Moreover, the annotators of reported cases, and the
text writers indicate that much has been written in condemnation
of the term ‘and/or.’ It is declared, in effect, that the courts
generally hold that the term ‘and/or’ has no place in judicial
proceedings, pleadings, verdict or judgment.” (citation omitted));
Gordon v. State Farm Mut. Auto. Ins. Co., 6 N.C. App. 185, 188,
169 S.E.2d 514, 516 (1969) (“We do not look with favor upon the
ambiguous and uncertain term ‘and/or.’” (citation and internal
quotation marks omitted)).
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Here, the Commission’s use of the term “and/or” compels us to
read the provisions of finding of fact 11 containing this term in
both the conjunctive and the disjunctive. See State ex rel. N.C.
Utils. Comm’n v. McKinnon, 254 N.C. 1, 13, 118 S.E.2d 134, 143
(1961) (explaining that the “oft condemned and ambiguous term
‘and/or’ . . . contains both the conjunctive ‘and’ and the
disjunctive ‘or.’”). Therefore, under this construction, we read
finding of fact 11 as a determination by the Commission that
Plaintiff’s injury was the result of (1) an unexpected departure
from Plaintiff’s usual work routine; (2) an unexplained fall; or
(3) both an unexpected departure from Plaintiff’s usual work
routine and an unexplained fall. See Local Div. 589, Amalgamated
Transit Union, AFL-CIO, CLC v. Com. of Mass., 666 F.2d 618, 627
(1st Cir. 1981) (“[T]he words ‘and/or’ commonly mean ‘the one or
the other or both.’”), cert. denied, 457 U.S. 1117, 73 L.Ed.2d
1329 (1982).
Significantly, Defendants do not argue that there is no
competent evidence in the record to support either of these two
theories of compensability. Rather, they simply argue that the
Commission was required to identify a single cause of Plaintiff’s
injury and make a finding to that effect in its Opinion and Award.
However, Defendants have failed to cite any caselaw specifically
supporting their argument that the Commission’s failure to do so
requires a remand. As such, while we agree that the far better
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practice would have been for the Commission to make a finding as
to one specific cause of Plaintiff’s injury, we cannot hold that
its failure to do so on these facts constituted reversible error
unless one or both of the two theories identified by the Commission
are insufficient to establish compensability under the Act.
Therefore, we must address each of the two theories set out in
finding of fact 11.
It is well settled that an unexpected departure from an
employee’s normal work routine arising out of and in the course
and scope of his employment resulting in injury represents one
theory of compensability under the Act.
The terms “accident” and “injury” are separate
and distinct concepts, and there must be an
“accident” that produces the complained-of
“injury” in order for the injury to be
compensable. An “accident” is an “unlooked
for event” and implies a result produced by a
“fortuitous cause.” If an employee is injured
while carrying on the employee’s usual tasks
in the usual way the injury does not arise by
accident. In contrast, when an interruption
of the employee’s normal work routine occurs,
introducing unusual conditions likely to
result in unexpected consequences, an
accidental cause will be inferred. The
“essence” of an accident is its “unusualness
and unexpectedness.”
Thus, in order to be a compensable “injury by
accident,” the injury must involve more than
the employee’s performance of his or her usual
and customary duties in the usual way.
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Gray v. RDU Airport Auth., 203 N.C. App. 521, 525-26, 692 S.E.2d
170, 174 (2010) (internal citations, quotation marks, brackets,
and ellipses omitted).
However, this Court has held that if an employee’s injury is
caused by a fall occurring during the course and scope of his
employment “[i]t is not essential that there be evidence of any
unusual or untoward condition or occurrence causing [the] fall
which produces injury. The fall itself is the unusual, unforeseen
occurrence which is the accident. A fall is usually regarded as
an accident. . . . [A]n injury that is the result of a fall, which
itself stems from an event that results from both the employee’s
normal work routine and normal conditions, may still constitute an
‘accident.’” Hedges v. Wake Cty. Pub. Sch. Sys., 206 N.C. App.
732, 735, 699 S.E.2d 124, 126 (2010) (emphasis added), disc. review
denied, 365 N.C. 77, 705 S.E.2d 746 (2011).
In addition, a second but related theory of compensability
under the Act is that of the unexplained fall.
In a workers’ compensation case, if the cause
or origin of a fall is unknown or undisclosed
by the evidence, we apply case law unique to
unexplained fall cases. When a fall is
unexplained, and the Commission has made no
finding that any force or condition
independent of the employment caused the fall,
then an inference arises that the fall arose
out of the employment. This inference is
permitted because when the cause of the fall
is unexplained such that there is no finding
that any force or condition independent of the
employment caused or contributed to the
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accident, the only active force involved is
the employee’s exertions in the performance of
his duties.
Philbeck, __ N.C. App. at __, 761 S.E.2d at 672 (internal
citations, quotation marks, brackets, and ellipses omitted).
Thus, while finding of fact 11 is hardly a model of clarity,
the Commission determined that the evidence supported one or both
of two recognized theories of compensability. Therefore, we
conclude that remand is not necessary.
II. Causal Relationship
Defendants next contend that insufficient evidence was
introduced to support the Commission’s determination that
Plaintiff’s left knee injury was causally related to his 4 October
2011 accident. Defendants contend that Dr. Dean’s opinion on
causation was (1) impermissibly speculative; and (2) based upon
the logical fallacy of post hoc, ergo propter hoc. We address
each of these arguments in turn.
A. Causation Testimony of Dr. Dean
When the Commission relies on expert medical testimony, the
expert’s testimony “must be such as to take the case out of the
realm of conjecture and remote possibility” in order to constitute
competent evidence of a causal relationship between the work-
related accident and the injury. Rogers v. Lowe’s Home
Improvement, 169 N.C. App. 759, 765, 612 S.E.2d 143, 147 (2005)
(citation and internal quotation marks omitted). A medical expert
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[s]tating an accident “could or might” have
caused an injury, or “possibly” caused it is
not generally enough alone to prove medical
causation; 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.
Carr v. Dep’t of Health & Human Servs., 218 N.C. App. 151, 155,
720 S.E.2d 869, 873 (2012).
Defendants contend that no competent evidence existed to
support the Commission’s findings of fact 5, 21, 25, and 26. These
findings state as follows:
5. Long before the 4 October 2011 incident
that is the basis of this claim, plaintiff had
bilateral degenerative joint disease in both
of his knees. His bilateral knee condition
had been diagnosed as end-stage, bone-on-bone
osteoarthritis. Plaintiff had undergone a
right-sided total knee replacement in about
2004. However, since starting with defendant-
employer in 2007, he had been able to do his
job without difficulty.
21. As Dr. Dean confirmed in his testimony, he
believed that the 4 October 2011 incident
exacerbated plaintiff’s pre-existing left
knee arthritis condition. As Dr. Dean
testified, the 4 October 2011 incident was the
straw that broke the camel’s back for
plaintiff’s left knee condition and sent it on
a downward spiral to the total knee
replacement. Dr. Dean provided this causation
opinion taking into account plaintiff’s
history, plaintiff’s prior complaints in 2009
of left knee pain, his own objective findings,
and his experience gained through 20 years of
practice in sports medicine. As Dr. Dean
noted, he had seen minimal trauma cause this
scenario before.
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25. The medical treatment that plaintiff has
received for his left knee condition since 4
October 2011 has been reasonably required to
effect a cure, provide relief, and/or lessen
the period of plaintiff’s disability.
26. Further medical treatment for plaintiff’s
left knee condition is reasonably required to
effect a cure and/or provide relief for his
left knee condition.
Defendants further challenge the Commission’s conclusions of
law 1, 3, and 4:
1. Plaintiff sustained a compensable injury by
accident to his left knee arising out of and
in the course of his employment with
defendant-employer upon the occurrence of the
4 October 2011 incident, which injury caused
a compensable exacerbation of plaintiff’s
preexisting left knee arthritis condition.
N.C. Gen. Stat. § 97-2(6); Hedges v. Wake
Cnty. Pub. Sch. Sys., 206 N.C. App. 732, 699
S.E.2d 124 (2010), disc. rev. denied, __ N.C.
__, 705 S.E.2d 746 (2011).
3. Plaintiff is entitled to have defendants
pay for the medical treatment that he has
received for his compensable left knee
condition since 4 October 2011, including, but
not limited to, the diagnostic testing and
imaging, injections, prescriptions, surgery,
hospitalization, physical therapy and mileage
that plaintiff underwent or incurred while
under the care of Dr. G. Scott Dean. N.C.
Gen. Stat. §§ 97-2(19) and 97-25.
4. Plaintiff is entitled to have Dr. G. Scott
Dean designated as his treating physician in
this claim and to have defendants authorize
and pay for the treatment that Dr. Dean
recommends for plaintiff’s compensable left
knee condition, including, but not limited to,
diagnostic testing and imaging, physical
therapy, pain management, prescriptions,
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referrals and mileage. Id.Defendants challenge the portion of finding of fact 5 stating
that “since starting with defendant-employer in 2007, he had been
able to do his job without difficulty,” arguing that “[t]here is
no evidence of record suggesting that Plaintiff had been able to
do his job without difficulty since 2007.” However, they do not
challenge findings of fact 4, 12, and 19. Finding of fact 4
establishes that “Plaintiff started [work] with defendant-employer
as a long-haul semi-truck driver in 2007.” Finding of fact 12
states, in pertinent part, that one day after the accident, “Dr.
Andy diagnosed [Plaintiff with] a left medial knee sprain and
degenerative joint disease, and right knee pain. . . . [S]he wrote
that plaintiff could return to sedentary work, with no lifting
over five pounds, minimal walking and frequent position changes.”
Finding of fact 19 states that approximately nine to ten weeks
later, “Dr. Dean restricted plaintiff to primarily sedentary-type
activity.”
Thus, Defendants do not dispute the fact that Plaintiff was
hired in 2007 and had been working as a truck driver from that
date until the 4 October 2011 injury. No evidence was presented
that he was not able to do his job as a truck driver prior to 4
October 2011. Findings of fact 12 and 19 do establish, however,
that beginning the day after his injury, Plaintiff was restricted
by Dr. Andy from performing his normal duties as a truck driver
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and again by Dr. Dean several weeks later. While Defendants point
to the deposition testimony of Dr. Donna Gates for the purpose of
showing that Plaintiff had complained of left knee pain on 25
November 2009 during a “wellness visit and a recheck of his chronic
medical problems,” this evidence does not suggest that Plaintiff
was unable to perform his job duties prior to the 4 October 2011
accident.
Therefore, while it is clear that Plaintiff had degenerative
joint disease in his left knee prior to the 4 October 2011 injury,
competent evidence exists in the record that the 4 October 2011
incident aggravated his left knee condition, materially
restricting his ability to work. We have consistently held that
[a] work-related injury need not be the sole
causative force to render an injury
compensable. When a pre-existing, non-
disabling, non-job-related condition is
aggravated or accelerated by an accidental
injury arising out of and in the course of
employment so that disability results, then
the employer must compensate the employee for
the entire resulting disability. This
“aggravation rule” does not bar recovery if
there is evidence of a causal connection
between a claimant’s current disability and a
prior condition. It also does not require
that claimant suffer from new or different
symptoms from those of which he previously
complained; rather, the claimant must only
demonstrate that his work-related injury
contributed in some reasonable degree to the
disability.
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Brafford v. Brafford’s Const. Co., 125 N.C. App. 643, 646-47, 482
S.E.2d 34, 37 (1997) (internal citations, quotation marks, and
ellipses omitted).
Finding of fact 21 is supported by the testimony given by Dr.
Dean during his deposition. Indeed, finding of fact 21 largely
tracks the following statements made by Dr. Dean:
A. Again, it just — and I think I put this in
the note that it’s kind of like the fall, sort
of, didn’t necessarily cause the arthritis,
but it sent him on the — it was the straw that
broke the camel’s back. It sent him on the
spiraling path downward, you know, as far as
the — I have just seen that — I have seen that
pattern before.
. . . .
Q. So the decision that that’s the straw that
breaks the camel’s back, is because he’s
telling you that’s when it started getting
worse?
A. Yes.
. . . .
Q. . . . If he had gotten out of the truck .
. . and fell, would that still, kind of, start
this downward spiral.
A. I have seen minimal trauma like that cause
this scenario. I have seen that pattern
before, yes.
Q. So if it was a fall, regardless of — I mean,
he — there was a gravel parking lot, and he
misstepped [sic], or if there was a hole, or
what actually caused the trigger of the fall,
wouldn’t really — would it impact your
decision?
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A. My decision?
Q. Or your opinion?
A. About what really caused it?
Q. Yes, sir.
A. I mean, the mechanism of injury, you
consider how much energy went into the fall,
was it a fall from a height, was it just a
stumble, was it a big impact? Some of that
does, sort of, factor into does this all make
sense with the pattern that I have seen before
with, like, hundreds of other patients? So it
does, kind of, factor into it. And I think
that in his knee, with end stage bone on bone
arthritis, it would not take very much at all
to, kind of, tip him over the edge.
Findings of fact 25 and 26 are also supported by the testimony
of Dr. Dean.
Q. Dr. Dean, you first saw [Plaintiff] for
left knee pain on December 14th, 2011, is that
correct?
A. (The witness reviews notes.) Yes.
. . . .
Q. The next time [Plaintiff] saw you was
January 6th of 2012?
A. (The witness reviews notes.) Yes.
Q. Excuse me. What complaints did [Plaintiff]
have when you saw him on January 6th?
A. (The witness reviews notes.) On January
6th, he had reasonable relief from the left
knee injection performed in December of 2011,
but it was starting to wear off.
. . . .
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Q. . . . What recommendations for treatment
did you make regarding [Plaintiff’s] left knee
at that time?
A. On the 6th, I thought his left knee was
improved with an injection. He did have
pretty severe arthritis. I thought he might
need a knee replacement in the future. I
refilled his Vicodin, which is a pain
medicine, and I was going to see him back in
six months.
. . . .
Q. And what was your plan at that appointment
for treating [Plaintiff]?
A. Left knee replacement.
Q. And in fact, you performed a left knee
replacement on March 13th, 2012, is that
correct?
A. Yes.
. . . .
Q. Dr. Dean, approximately how many knee
replacements do you do in a given year? A
ballpark estimate is fine.
A. Probably 50 to 100.
Q. And in your experience, does a total knee
replacement last the lifetime of the
recipient?
A. No.
Q. How long does it typically last?
A. Depending on the age and activity level and
weight of the patient, maybe 10 year [sic].
Q. And when a total knee replacement wears
out, what’s the recommended method for
treating that?
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A. Typically, it has to be revised, based on
the reason that it has worn out.
Dr. Dean’s testimony also supports findings of fact 25 and 26
in that it details the history of his treatment of Plaintiff’s
knee and Dr. Dean’s accompanying diagnoses and medical
recommendations. Furthermore, Dr. Dean’s testimony that
Plaintiff’s left knee replacement was not a permanent solution and
that his left knee issues would in all likelihood need to be
addressed again in approximately 10 years supports finding of fact
26 by showing that further future medical treatment for Plaintiff’s
left knee condition will be necessary.
Defendants next argue that Dr. Dean’s stated opinions
concerning Plaintiff’s left knee injury were based solely upon
speculation and conjecture. In making this argument, Defendants
point to the following exchange in his deposition:
Q. Dr. Dean, I would like to ask that you
consider the following assumption. Assuming
that prior to October 4th, 2011 [Plaintiff]
was asymptomatic with regards to his left
knee, and that on October 4th, 2011
[Plaintiff] stepped into a hole climbing out
of the cab of his semi truck causing him to
fall, and thereafter he had swelling, pain,
and grinding — reports of a grinding sensation
and a feeling of instability in his left knee.
Assuming those facts, in your opinion, to a
reasonable degree of medical certainty, did
the event of October 4th, 2011 aggravate or
accelerate the condition in [Plaintiff’s] left
knee for which you operated on him on March
13th, 2012?
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[Defendants’ counsel]: Objection. You
can go ahead.
A. Yes. And I think that was stated in the
chart.
Defendants assert that this portion of his testimony was
premised upon the following three assumptions: (1) that Plaintiff
was asymptomatic prior to 4 October 2011; (2) that Plaintiff
stepped into a hole when he exited his tractor trailer and fell as
a result of doing so; and (3) that Plaintiff had swelling, pain,
and a grinding sensation as a result of the fall. Defendants also
contend that this testimony served as the sole basis for Dr. Dean’s
opinion on causation and, therefore, if any of these assumptions
are unsupported by competent evidence, then Dr. Dean’s testimony
is insufficient to establish a causal connection between
Plaintiff’s injury and the 4 October 2011 accident. We reject
Defendants’ argument.
In finding of fact 7 (a finding Defendants have not
challenged), the Commission determined that when Plaintiff’s “left
foot hit the ground, it unexpectedly landed in a hole or on some
loose gravel or sand, and plaintiff’s left knee twisted.” In
addition, finding of fact 8 — also unchallenged by Defendants —
states that “Plaintiff felt immediate pain in both of his knees
upon the occurrence of this incident.”
Even assuming the portion of the hypothetical question
premised on Plaintiff having been asymptomatic prior to the 4
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October 2011 incident was not supported by competent evidence, we
do not believe that this renders Dr. Dean’s ensuing testimony
incompetent on the causation issue. It is well established that
“[a] hypothetical question need only present sufficient facts to
allow the witness to express an intelligent and safe opinion. It
[is] not incumbent on the plaintiff to include in his hypothetical
questions all the evidence bearing upon the fact to be proved; the
defendants ha[ve] the right to present other phases of the evidence
in counter-hypothetical questions.” Robinson v. J. P. Stevens &
Co., 57 N.C. App. 619, 622-23, 292 S.E.2d 144, 146 (1982) (internal
citations, quotation marks, and brackets omitted).
During his cross-examination of Dr. Dean, Defendants’ counsel
did, in fact, pose a counter-hypothetical question:
Q. And then if there — so if there was
evidence to the contrary, if for example,
there was a prior exam that showed bone on
bone or if there was a prior diagnosis of end
stage arthritis with associated pain, then
that would be evidence that the fall didn’t
cause [Plaintiff’s injury]?
A. Again, it just — and I think I put this in
the note that it’s kind of like the fall, sort
of, didn’t necessarily cause the arthritis,
but it sent him on the — it was the straw that
broke the camel’s back. It sent him on the
spiraling path downward, you know, as far as
the — I have just seen that — I have seen that
pattern before.
On redirect examination, Dr. Dean then testified as follows:
Q. You — when [Defendants’ counsel] was
questioning you, we’ve talked about this, kind
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of, the downward spiral and the trigger event
for — or to, kind of, start somebody on that
spiral. And I think you — I don’t want to put
words in your mouth, but I think you indicated
that with the arthritis that [Plaintiff] had
that it wouldn’t take much to, kind of, start
him on that spiral downward. If he had gotten
out of the truck — regardless of whether there
was a hole that he stepped in or not, but he
got out of the truck, lost his balance, and
fell, would that still, kind of, start this
downward spiral?
A. I have seen minimal trauma like that cause
this scenario. I have seen that pattern
before, yes.
We are satisfied that — taken as a whole — Dr. Dean’s opinion
testimony was sufficient to establish causation. As such, the
Commission was entitled to rely upon his testimony that Plaintiff’s
left knee injury was causally related to his 4 October 2011
accident.
B. Post Hoc, Ergo Propter Hoc
Defendants also argue that Dr. Dean based his opinion on the
post hoc, ergo propter hoc logical fallacy. We disagree.
The maxim “post hoc, ergo propter hoc,”
denotes the fallacy of confusing sequence with
consequence, and assumes a false connection
between causation and temporal sequence. As
such, this Court has treated the maxim as
inconclusive as to proximate cause. . . . In
a case where the threshold question is the
cause of a controversial medical condition,
the maxim of “post hoc, ergo propter hoc,” is
not competent evidence of causation.
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Young v. Hickory Bus. Furn., 353 N.C. 227, 232, 538 S.E.2d 912,
916 (2000) (internal citations, quotation marks, and ellipses
omitted).
Defendants’ argument on this issue is based on the following
portion of Dr. Dean’s testimony:
Q: So basically, [the pain] wasn’t there on
day one, he alleges to have the injury on day
two, on day three he has pain. So because it
wasn’t there before and is there now, that’s
how you identify the injury as being the
cause?
A: As, I think I called it, an exacerbating
factor, yes.
However, Dr. Dean also testified as follows:
Q. And the, I guess, objective ability to view
the joint and see if it’s bone on bone or if
there is actual cushion there that could work?
A. Yeah. It’s really just based on his — what
he tells me and then objectively what the knee
is telling me. . . .
. . . .
Q. And then if there — so if there was evidence
to the contrary, if for example, there was a
prior exam that showed bone on bone or if there
was a prior diagnosis of end stage arthritis
with associated pain, then that would be
evidence that the fall didn’t cause it?
A. Again, it just — and I think I put this in
the note that it’s kind of like the fall, sort
of, didn’t necessarily cause the arthritis,
but it sent him on the — it was the straw that
broke the camel’s back. It sent him on the
spiraling path downward, you know, as far as
the — I have just seen that — I have seen that
pattern before.
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. . . .
Q. So the decision that that’s the straw that
breaks the camel’s back, is because he’s
telling you that’s when it started getting
worse?
A. Yes.
. . . .
Q. . . . If he had gotten out of the truck .
. . and fell, would that still, kind of, start
this downward spiral.
A. I have seen minimal trauma like that cause
this scenario. I have seen that pattern
before, yes.
Q. So if it was a fall, regardless of — I mean,
he — there was a gravel parking lot, and he
misstepped [sic], or if there was a hole, or
what actually caused the trigger of the fall,
wouldn’t really — would it impact your
decision?
A. My decision?
Q. Or your opinion?
A. About what really caused it?
Q. Yes, sir.
A. I mean, the mechanism of injury, you
consider how much energy went into the fall,
was it a fall from a height, was it just a
stumble, was it a big impact? Some of that
does, sort of, factor into does this all make
sense with the pattern that I have seen before
with, like, hundreds of other patients? So it
does, kind of, factor into it. And I think
that in his knee, with end stage bone on bone
arthritis, it would not take very much at all
to, kind of, tip him over the edge.
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We are satisfied that Dr. Dean’s determination that a causal
connection existed between the 4 October 2011 accident and
Plaintiff’s left knee injury was based on more than post hoc, ergo
propter hoc reasoning. We have held that where a medical expert
relies upon something more than mere temporal sequence, a post
hoc, ergo propter hoc issue does not exist. See Legette v.
Scotland Mem’l Hosp., 181 N.C. App. 437, 456, 640 S.E.2d 744, 756
(2007) (“[Doctor’s] opinion testimony was not based solely on the
notion of post hoc ergo propter hoc. [Doctor] also testified that
Plaintiff’s description of the accident was consistent with a
trauma of the type that would be associated with the development
of lymphedema in someone with Plaintiff’s medical history.”),
appeal dismissed and disc. review denied, 362 N.C. 177, 658 S.E.2d
273 (2008); see also Carr, 218 N.C. App. at 156, 720 S.E.2d at 874(“[Doctor’s] opinion, however, was based on more than merely the
sequence of events. In his deposition, [Doctor] stated that
although ‘a lot of it is based on timing,’ his opinion was based
on the mechanism of injury as well as the temporal relationship
between the incident and symptoms.”).
In the present case, Dr. Dean relied on Plaintiff’s
description of the accident and his objective diagnosis of the
injury based upon his examination of “hundreds of other patients”
in reaching his opinion to a reasonable degree of medical certainty
that Plaintiff’s left knee injury was causally related to his 4
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October 2011 accident. Therefore, we reject Defendants’
contention that Dr. Dean relied solely on post hoc, ergo propter
hoc reasoning in his opinion regarding causation.
Conclusion
For the reasons stated above, the Commission’s Opinion and
Award is affirmed.
AFFIRMED.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).