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[T] Crowder v. Preston Trucking Co.11/4/2003
pensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent." Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981). Here, despite plaintiff's pre-existing diagnosis of degenerative disc disease, it is possible for the plaintiff to have sustained a compensable injury where his pre-existing condition was exacerbated by an accident or specific traumatic incident.
Defendant challenges the finding of compensable injury by asserting that the evidence that supports the finding of injury is incompetent medical evidence. Specifically, defendant argues that Dr. Pinzon's testimony as to causation is merely speculative. Dr. Pinzon began seeing plaintiff in January 2000. Dr. Pinzon utilized several objective tests, including x-rays, M.R.I.s and an E.M.G.nerve conduction study. Based on the objective tests and the plaintiff's description of his history, Dr. Pinzon testified that the bottoming out of the truck seat had exacerbated plaintiff's back condition.
The issue of medical causation is particularly complicated and the North Carolina Supreme Court has found that in such cases "only an expert can give competent opinion evidence as to the cause of the injury ." Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003) (quoting Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)). "However, when such expert opinion testimony is based merely upon speculation and conjecture, . . . it is not sufficiently reliable to qualify as competent evidence on issues of medical causation." Id. (quoting Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000)). Testimony must be sufficient to take the case outside the realm of possibilities. Id. at 232-33, 581 S.E.2d at 753. "Could" and "might" evidence is not sufficient. Id. The opinion of a physician is not rendered incompetent merely because it is based wholly or in part on statements made to him by the patient in the course of treatment or examination. Penland v. Bird Coal Co., 246 N.C. 26, 31, 97 S.E.2d 432, 436 (1957).
In Holley the court found that the doctor's opinion was not competent to support a finding of causation. Holley at 233, 581 S.E.2d at 753. The doctor there testified that several factors besides the plaintiff's accident could have caused the plaintiff's injury . Id. Specifically, the doctor in Holley thought it was a"low possibility" that the accident caused the injury and that the accident was just one in a "galaxy of possibilities." Id.
Here, Dr. Pinzon testified that based on the plaintiff's medical history and objective diagnostic tests he conducted, it was his medical opinion that the bottoming out of the truck seat exacerbated the plaintiff's pre-existing back condition. The doctor related that the pain plaintiff described in February 1999 was different from the pain described in January 2000. In February 1999 the plaintiff's pain did not extend below the plaintiff's buttocks, but in January, the plaintiff was complaining of pain down in his legs as well. The doctor found to a "reasonable degree of medical certainty" that this difference, in conjunction with the objective diagnostic tests he performed, supported his conclusion that the accident had exacerbated the plaintiff's condition. Because there was competent evidence in the record to support the Commission's findings, we are bound by the Commission's finding of compensable injury . Accordingly, this assignment of error fails.
Defendant's fourth argument is that the Commission erred in calculating the amount of plaintiff's award. Defendant contends that the award should be reduced by the amount of unemployment benefits
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