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Perez v. American Airlines/AMR Corp.10/18/2005
(7 October 2005) (No. 156A05). As has been previously stressed, it is not "the role of this Court to comb through the testimony and view it in the light most favorable to the defendant . . . . Although by doing so, it is possible to find a few excerpts that might be speculative, this Court's role is not to engage in such a weighing of the evidence." Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting), adopted per curiam, 359 N.C. 403, 610 S.E.2d 374 (2005).
Defendant points out that Dr. Patterson, in contrast to the other two experts, testified that it was possible that plaintiff's herniated disc was related to her injury in 1998 but that he could not make this connection to a reasonable degree of medical certainty:
Q: So would you agree that at this point in time, it would be speculation to relate the herniated disc in July of 2002 to the work injury in 1998?
A: I think it's -- yeah, I think it's hard to say. I think it's specul--- I guess you would say it's speculative. I mean, there's just no way to say for sure. I mean, it's possible, but it's not definite.
After reviewing the evidence and the testimony of the expert witnesses, the Commission found, in finding of fact number 20, that plaintiff's herniated disc was causally related to her compensable injury based upon the greater weight of the credible medical evidence. Defendant's argument regarding the credibility of Dr. Bullard and Dr. Patrick in light of Dr. Patterson's testimony must fail, as the Commission could have found the testimony of these two expert witnesses more credible than the testimony of Dr. Patterson. See Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (determining credibility and the weight to be given witness testimony is the role of the Commission). As there is competent evidence to support the Commission's findings of the causal relationship between the treatment in 2002 and the injury in 1998, we are bound by them. Id. at 681, 509 S.E.2d at 414. The Commission's corresponding conclusion of law that plaintiff's herniated disc was causally related to the compensable injury of 1998 is supported by its findings.
Defendant also challenges the finding that, as a result of the 1998 injury, plaintiff has a 10% permanent functional impairment of her back. This finding is supported by the medical opinion of Dr. Bullard, who assigned a 10% permanent impairment rating to plaintiff's disc injury. Defendant does not dispute Dr. Bullard's opinion that plaintiff suffered a 10% permanent impairment as aresult of the herniated disc. Instead, defendant argues that the opinion is immaterial because there is no competent evidence that the herniated disc is causally related to the compensable injury of 1998. However, as discussed supra, there is competent evidence in the record to support the finding that plaintiff's herniated disc was causally related to the 1998 injury. The Commission did not err in awarding plaintiff compensation for a 10% permanent disability.
Additional Medical Compensation
Finally, defendant contends that the Commission erred in concluding that plaintiff was entitled to additional medical compensation under N.C. Gen. Stat. ยง 97-25. Specifically, defendant assigns error to conclusion of law number 2, in which the Commission stated that plaintiff was entitled to a rebuttable presumption that the herniated disc was directly related to the original compensable injury and that defendant failed to rebut this presumption.
Defendant argues that the Commission misapplied the law by concluding that the Parsons presumption applies to plaintiff's claim for additional m
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