 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Young v. Hickory Business Furniture3/21/2000
ion and award of the Industrial Commission.
AFFIRMED.
Judge MARTIN concurs.
Judge HORTON dissents with a separate opinion.
Judge HORTON dissenting.
On 3 March 1992, Judy Carolyn Young (plaintiff) injured her back in a compensable accident while employed by Hickory Business Furniture. After a period of temporary total disability, plaintiff retained a five percent permanent partial disability of her back, for which she was compensated. Plaintiff now contends that she has sustained a substantial change of condition since 15 October 1993, when she last received compensation. In a divided decision, the Full Commission found that plaintiff's condition substantially worsened, that she became unable to work on 19 October 1994 because of fibromyalgia, and that her condition is likely to be permanent. The Full Commission concluded as a matter of law that the medical testimony offered by plaintiff to support a substantial change in her condition " not have to arise to a medical certainty." The Commission concluded that plaintiff met her burden of proof "when her physicians testify that the cause 'could or might' have likely produced the effect."
Where an employee seeks to establish a substantial change in condition pursuant to N.C. Gen. Stat. ยง 97-47 (1999), the burden is on the employee to prove the causal relationship between the new condition and the injury that is the basis of the award the employee seeks to modify. Blair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996) (citations omitted). Here, even assuming that the employee's condition has worsened and that she suffers from fibromyalgia, the Commission erred in finding that there was a causal connection between the original injury by accident to her lower back and the fibromyalgia. The Commission's error resulted from applying the wrong standard to the medical evidence.
Rather than requiring the employee to produce evidence "'indicat a reasonable scientific probability that the stated cause produced the stated result,'" Phillips v. U.S. Air, Inc., 120 N.C. App. 538, 542, 463 S.E.2d 259, 262 (1995), aff'd, 343 N.C. 302, 469 S.E.2d 552 (1996) (citation omitted), the Commission concluded that plaintiff's "medical testimony does not have to arise to a medical certainty." Thus the Commission would apparently find that the Phillips requirement of "reasonable scientific probability" is met when plaintiff's doctor testified that the compensable accident "could or might" have produced the result (fibromyalgia). Our cases have, however, consistently mandated a higher degree of proof than that required by a majority of the Commission in this case. See, for example, id. at 542, 463 S.E.2d at 262; and Hinson v. National Starch & Chemical Corp., 99 N.C. App. 198, 202, 392 S.E.2d 657, 659 (1990).
In Phillips, the employee contended that he contracted salmonella from drinking contaminated water at work, and thereafter developed chronic fatigue syndrome. The Commission rejected his claim, finding first that " here is no sufficient convincing medical evidence to any reasonable degree of medical certainty that plaintiff developed his salmonella infection from drinking contaminated water at work . . . ." Phillips, 120 N.C. App. at 540-41, 463 S.E.2d at 262-63. The Commission further pointed out that " he exact cause of . . . [chronic fatigue syndrome] remains unknown as does its manner of transmission." Id. at 541, 463 S.E.2d at 263. Further, even assuming that Phillips contracted salmonella from contaminated water at work, the Commission found "there is no convincing medical evidence to any reasonable degree of medical certain
Page 1 2 3 4 5 6 7 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|