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Cannon v. Goodyear Tire & Rubber Co.7/5/2005
xcerpts [of the plaintiff's doctor's testimony] that might be speculative[,] . . . much of the evidence reveals that the doctor expressed her opinions repeatedly and without equivocation." Id. at 573, 603 S.E.2d at 558. Therefore, since the doctor did testify that it was "likely" that the plaintiff's back injury occurred during the work-related accident, competent evidence supported the Commission's conclusion that the work-related accident caused the back injury. Id.
Based on these holdings, it appears that our Supreme Court has created a spectrum by which to determine whether expert testimony is sufficient to establish causation in worker's compensation cases. Expert testimony that a work-related injury "could" or "might" have caused further injury is insufficient to prove causation when other evidence shows the testimony to be "a guess or mere speculation." Young, 353 N.C. at 233, 538 S.E.2d at 916; see also Edmonds, 165 N.C. App. at 818, 608 S.E.2d at 506. However, when expert testimony establishes that a work-related injury "likely" caused further injury, competent evidence exists tosupport a finding of causation. Alexander, 166 N.C. App. at 573, 603 S.E.2d at 558.
We find that, like in Edmonds, the expert testimony in this case "does not rise above a guess or mere speculation." Edmonds, 165 N.C. App. at 818, 600 S.E.2d at 506. Dr. Allen testified that the work-related injury "could have been an exacerbating or aggravating factor" in plaintiff's kyphotic deformity, but further testified that he was uncertain that this was the case:
A: What pushed [the kyphotic deformity] over the edge, I'm not sure if there was anything. . . . I think what he is describing as his presentation, how it's due to any one particular event, I think is not clear.
Q: So it is possible with this condition that, even if the Industrial Commission finds that [plaintiff] did suffer an on-the-job injury on April the 6th, 2001, that it could have nothing to do with the condition that you treated him for here?
A : Correct.
Q: And there's no way for you to determine whether it was totally degenerative or something else specifically caused it?
A: Now I think that the evidence would suggest that he had a major kyphotic deformity present as the major problem. Whether some incident pushed it over the edge, I think, is less clear.
(emphases added).
Dr. Allen's testimony indicates that he was unable to go beyond a guess or speculation in determining whether plaintiff's work-related injury aggravated and/or exacerbated plaintiff'skyphotic deformity. Rather, Dr. Allen's testimony shows that he was unsure as to whether any single event caused the onset of plaintiff's symptoms at all. Further, Dr. Allen testified that plaintiff's 6 April 2001 work-related injury "could have nothing to do with" the kyphotic deformity. The Commission's findings of fact reflect Dr. Allen's uncertainty:
11. Dr. Allen opined that the accident at work could have been an exacerbating or aggravating factor in the onset of plaintiff's cervical myelopathy. . . . Dr. Allen opined that given the long- standing kyphotic deformity, any trauma such as the work-related injury or the car accident of 18 April 2001 could have been sufficient to create plaintiff's current symptoms.
(emphases added).
Under Young and Edmonds, plaintiff has failed to carry his burden of proving that his work-related injury was a causal factor in his kyphotic deformity. Furthermore, Dr. Allen's testimony never indicated that, in his opinion, it was "likely" that the work-related injury caused an aggravation and/or exacerbation of plaintiff's kyphoti
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