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Whitfield v. Laboratory Corporation of America6/17/2003
ords [were] in evidence" is somewhat contradictory to North Carolina Workers' Compensation Rule 612. This rule encourages parties to stipulate medical records into evidence, as opposed to taking multiple depositions, by allowing assessment of the costs of a deposition of a medical witness, including attorney's fees, against the party who refuses to stipulate to medical records. Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 428-29, 552 S.E.2d 269, 273, disc. review denied, 355 N.C. 211, 558 S.E.2d 868 (2001). However, this rule does not prohibit a party from taking depositions if the party believes a deposition will be more useful than stipulated medical records of a medical witness. "The Commission may make rules, not inconsistent with this Article [the North Carolina Workers' Compensation Act], for carrying out the provisions of this Article." N.C. Gen. Stat. ยง 97-80(a) (2001). If the Commission makes rules, it should consider those rules in making its decisions. In the present case, the Commission's findings show that it considered the medical records of Doctors Nichols, Lambertsen, Sanitate, and Adomonis and the reports of Oren LeBlang, along with the deposition of Dr. Huh. The Commission then gave more weight to the deposition of Dr. Huh because of Dr. Huh's training and experience and the fact that Dr. Huh treated plaintiff for an extended period of time, both appropriate bases to accord greater weight to Dr. Huh's deposition. This argument is overruled.
II.
Defendants also argue that the Commission erred in its conclusion that plaintiff had proven a causal relationship between plaintiff's alleged symptoms and any compensable incident at work. As stated above, when reviewing the Commission's conclusions of law we must determine whether the findings of fact support the conclusions of law. However we review conclusions of law by the Commission de novo. Hawley, 146 N.C. App. at 427, 272 S.E.2d at 272.
The plaintiff in a workers' compensation case bears the burden of initially proving each and every element of compensability, including causation. Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 28, 514 S.E.2d 517, 521 (1999). "' 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.'" Demery v. Converse, Inc., 138 N.C. App. 243, 248, 530 S.E.2d 871, 875 (2000) (quoting Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)). "To establish the necessary causal relationship for the injury to be compensable under the Act, 'the evidence must be such as to take the case out of the realm of conjecture and remote possibility.'" Id. (quoting Gilmore v. Board of Education, 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)).
The Commission found that:
27. Based on a description of the slip and fall that plaintiff experienced on June 5, 1998, Dr. Huh was of the opinion and the Full Commission finds that the types of problems he diagnosed for plaintiff were likely to have arisen from such a twisting fall.
This finding, if supported by the evidence, is sufficient to support the Commission's conclusion that plaintiff had shown a causal relationship between plaintiff's symptoms and the compensable accident that occurred on 5 June 1998. Such a finding takes the causal relationship out of the "realm of conjecture and remote possibility" as required. Id. We acknowledge that the "mere possibility of causation," as opposed to the "probability" of causation, is insufficient to support a finding of compensability. Swink v. Cone Mills, Inc.,
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