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[T] Bragg v. Ameristeel2/18/2003
wn of Valdese, 92 N.C. App. 222, 225, 374 S.E.2d 116, 118-19 (1988).
In this case, the evidence shows that at approximately 8:20 p.m. on 2 April 1999, plaintiff was performing his assigned duty of cleaning out a nozzle on a ladle using a jackhammer. After finishing the task, he was turning to replace the jackhammer when he felt pain in his back and shooting through his legs. The pain was later determined to have been caused by an aggravation of his degenerative disc disease. This is evidence plaintiff sustained an injury to his back while moving the jackhammer during an easily cognizable time period and this movement caused the aggravation of degenerative disc disease in plaintiff's back. Thus, there is competent evidence in the record to support the Commission's findings of fact that plaintiff sustained an injury by accident, and these findings of fact support the Commission's conclusion of law, " laintiff sustained an injury by accident arising out of the scope of his employment as a direct result of a specific traumatic incident of the work assigned."
II.
Defendants next contend there is no evidence in the record to support the Commission's finding of fact that "Dr. McBride opinedthat [plaintiff's] jackhammer work aggravated his pre-existing degenerative disc disease" and thus, the Commission's findings of fact do not support the conclusion of law that plaintiff's injury was caused by moving the jackhammer. Specifically, defendants maintain Dr. McBride was unable to provide a definitive causal connection between the 2 April 1999 incident and plaintiff's degenerative disc disease.
Initially, we note aggravation of a pre-existing condition caused by a work-related injury is compensable under the Workers' Compensation Act. See Smith v. Champion Int'l, 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999). Expert testimony does not have to show to a reasonable degree of medical certainty that the work incident caused the injury asserted. Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 599, 532 S.E.2d 207, 211 (2000). Thus, it is not necessary for an expert to testify that the work incident definitively caused the injury asserted. Instead, there must be "some evidence that the accident at least might have or could have produced the particular disability in question." Id. (internal quotations omitted); see also Young v. Hickory Bus. Furn., 353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000) ("could" or "might" expert testimony may be probative and competent evidence); Holley v. ACTS, Inc., --- N.C. App. ---, ---, 567 S.E.2d 457, 461 (2002) (our courts allow "could" or "might" expert testimony); Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 28, 514 S.E.2d 517, 522 (1999) (plaintiff must present some evidence accident at least might have or could have produced particular disability). In this case, the expert evidence consisted of a letter from Dr. McBride stating his opinion the 2 April 1999 incident aggravated plaintiff's degenerative disc disease resulting in surgery to fuse together discs in plaintiff's back. This evidence was supported by Dr. McBride's deposition testimony. Accordingly, there was competent evidence the 2 April 1999 incident could have aggravated plaintiff's degenerative back condition to support the Commission's finding of fact, and those finding of fact support the Commission's conclusions of law. The Commission therefore did not err in affirming the opinion and award of the deputy commissioner.
Affirmed.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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