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Whitfield v. Laboratory Corporation of America6/17/2003
65 N.C. App. 397, 398, 309 S.E.2d 272, 271 (1983). However, this finding of fact speaks to the "probability," not the "possibility," of causation, and thus will support the conclusion of compensability if the finding of fact is supported by the evidence in the record. See id.
Dr. Huh testified in his deposition that, not only is it "possible," but that it is "likely" that plaintiff's near fall is the cause of her current pain. Dr. Huh also testified that he could say with a degree of "substantial certainty" that the fall on 5 June 1998 was the cause of plaintiff's back pain. Defendants argue that Dr. Huh had no basis for his opinion and his testimony was therefore inadmissible under (1) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 125 L. Ed. 2d 469, 481 (1993), because it was not "ground in the methods and procedures of science," and (2) under Young, 353 N.C. at 230, 538 S.E.2d at 915, because his testimony was entirely based on "mere speculation or possibility." Dr. Huh examined plaintiff several times over the period of more than a year and a half, he knew about the fall that occurred on 5 June 1998, and he diagnosed the injuries of which plaintiff complains. As we have already stated, Dr. Huh's deposition testimony is not speculative and it focuses on the probability, not simply the possibility, that the fall on 5 June 1998 caused plaintiff's injuries. Dr. Huh's testimony as to causation was competent and could be considered by the Commission. "The Commission's findings will not be disturbed on appeal if they are supported by competent evidence even if there is contrary evidence in the record." Hawley, 146 N.C. App. at 427, 552 S.E.2d at 272 (citing Deese, 352 N.C. 109, 530 S.E.2d 549 (2000) and Peoples v. Cone Mills Corp., 316 N.C. 426, 432, 342 S.E.2d 798, 803 (1986)). Although there is contrary evidence in the record, we find that Dr. Huh's testimony was competent evidence to support the Commission's findings and its conclusion that plaintiff had shown a causal relationship between the fall on 5 June 1998 and the symptoms for which plaintiff seeks recovery. This argument is overruled.
III.
Defendants next argue that the Commission erred in finding that plaintiff was entitled to temporary total disability benefits. A plaintiff in a workers' compensation case has the burden of showing the injury complained of resulted from an accident arising out of and in the course and scope of her employment. Henry v. Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950); Smith v. Cotton Mills, Inc., 31 N.C. App. 687, 690, 230 S.E.2d 772, 774 (1976). With respect to a back injury, a plaintiff may show that the injury is the result of an accident, or that the alleged injury is the direct result of a specific traumatic incident of the work assigned. Richards v. Town of Valdese, 92 N.C. App. 222, 224, 374 S.E.2d 116, 118 (1988), disc. review denied, 324 N.C. 337, 378 S.E.2d 799 (1989). Defendants argue that plaintiff failed to carry her burden of proof.
Defendants basically contend that the deputy commissioner correctly determined that plaintiff's evidence concerning her back injury was not credible. Defendants argue that testimony by the four authorized physicians and a physical therapist, all opining that plaintiff was malingering, was the only credible evidence as to plaintiff's injuries, and the Commission erred in reversing the deputy commissioner.
Plaintiff presented medical evidence in the form of deposition testimony by Dr. Huh. Plaintiff also testified as to the injury to her lower back. Defendants argue that this evidence was entitled to no weight. As stated above,
here "defendants' interpretation of the evidence is not
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