An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-883
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
CHARLEEN SUSIE VENABLE,
Employee,
Plaintiff,
v. From the North Carolina
Industrial Commission
IC No. X13603
LOWE’S HOME CENTERS, INC.,
Employer,
and
SELF-INSURED (SEDGWICK CMS,
Servicing Agent),
Defendant.
Appeal by defendants from the Opinion and Award entered 30
April 2013 by the North Carolina Industrial Commission. Heard in
the Court of Appeals 8 January 2014.
Shankle Law Firm, PA, by Margaret “Maggie” Shankle, for
plaintiff-appellee.
Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch,
and Brad P. Kline, for defendant-appellants.
STEELMAN, Judge.
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Where the Industrial Commission’s findings of fact are
supported by competent evidence and these findings in turn
support its conclusions of law, the Opinion and Award of the
Commission is affirmed.
I. Factual and Procedural History
In October of 2010 plaintiff Charleen Susie Venable was
fifty-six years old and had been employed by defendant Lowe’s
Home Centers, Inc., for about ten years. Between 2003 and 2010,
she had been treated intermittently for joint and back pain and
for anxiety and depression by her family physician, Dr. Melva
Bowman. However, she had no medical history of cognitive
impairment, speech impediments, or memory loss. On 1 October
2010, plaintiff sustained an injury when she fell off a ladder
and struck her head on a steel beam. Plaintiff came to work the
day after the fall, but was unable to perform her job duties due
to the pain in her back and head. She left work and was seen at
Richmond Memorial Hospital.
Defendant accepted plaintiff’s back injury as a compensable
injury and referred her to Dr. Kathleen Eaton for treatment. In
October 2010 Plaintiff reported to Dr. Eaton that she had pain
in her upper and lower back, headaches, light sensitivity, and
nausea. At an appointment with Dr. Eaton on 3 December 2010,
plaintiff reported daily headaches, stuttering, and memory
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problems, which she related to her fall from the ladder.
Plaintiff also told Dr. Eaton that she had fallen at home the
day before her doctor’s appointment. Dr. Eaton referred
plaintiff for treatment by a neurologist. On 23 December 2010
plaintiff was seen by Dr. Bruce Solomon, a neurologist, at which
time she was suffering from slurred and stuttered speech,
headaches, difficulty finding the right words, and memory
issues. Dr. Solomon recommended a neuropsychological examination
of plaintiff to determine if there were psychological causes for
her symptoms.
At defendant’s request, plaintiff was also examined by Dr.
Alexander Manning, who had a Ph.D. in psychology but is not a
medical doctor. Dr. Manning did not review the results of MRI
and CT scans administered to plaintiff and saw her only for the
purpose of administering neuropsychological tests. Based on his
testing, Dr. Manning identified several possible causes for
plaintiff’s symptoms, including dementia, multiple sclerosis,
demyelinating disease, or somatoform disorder.
Dr. Hermanth Rao, an expert in neurology with a
subspecialty in brain injuries, began treating plaintiff in
March of 2011. He conducted a physical examination of plaintiff,
reviewed the records of previous medical tests and other
physicians, and took a history from plaintiff. Based upon his
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examination, and his review of the MRI and CT scans, an EEG
test, and a sleep study, Dr. Rao ruled out dementia, multiple
sclerosis, demyelinating disease, and somatoform disorder as
possible causes of plaintiff’s symptoms. He treated plaintiff
with a variety of medications and therapies throughout 2011, but
she continued to suffer from headaches, memory loss, and speech
problems. Dr. Rao concluded that she would benefit from
participation in his clinic’s brain injury program. In his
deposition, Dr. Rao testified to a reasonable degree of medical
certainty that plaintiff’s symptoms were more likely than not
caused by her fall at work on 1 October 2010.
On 24 February 2011, plaintiff filed an Industrial
Commission Form 33 requesting a hearing and asserting that
defendant denied the compensability of her head injury. In its
response, defendant stated that plaintiff “did sustain a
compensable injury by accident” but that “the extent of her
injuries as related to the original work place accident are in
dispute.” The Full Commission reviewed the case on 7 March 2013.
On 30 April 2013, the Commission filed an Opinion and Award
ruling that based “upon the preponderance of the evidence from
the entire record, Plaintiff sustained a compensable traumatic
brain injury as a result of her accident at work on October 1,
2010,” and awarding plaintiff medical and compensation benefits.
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Defendants appeal.
II. Standard of Review
“The standard of review in workers’ compensation cases has
been firmly established by the General Assembly and by numerous
decisions of this Court. N.C.G.S. § 97-86 (2007). Under the
Workers’ Compensation Act, ‘[t]he Commission is the sole judge
of the credibility of the witnesses and the weight to be given
their testimony.’ Therefore, on appeal from an award of the
Industrial Commission, review is limited to consideration of
whether competent evidence supports the Commission’s findings of
fact and whether the findings support the Commission's
conclusions of law. This ‘court’s duty goes no further than to
determine whether the record contains any evidence tending to
support the finding.’” Richardson v. Maxim Healthcare/Allegis
Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citing
Deese v. Champion Int’l Corp., 352 N.C. 109, 530 S.E.2d 549
(2000), quoting Anderson v. Construction Co., 265 N.C. 431, 433-
34, 144 S.E.2d 272, 274 (1965), and citing Adams v. AVX Corp.,
349 N.C. 676, 681-82, 509 S.E.2d 411, 414 (1998), rehearing
denied, 350 N.C. 108, 532 S.E.2d 522 (1999)). Thus, “[o]n
appeals from the Industrial Commission, the Commission’s
findings of fact must be sustained if there is competent
evidence in the record to support them. This is so even if there
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is evidence which would support a contrary finding, because
‘courts are not at liberty to reweigh the evidence and to set
aside the findings of the Commission, simply because other
inferences could have been drawn and different conclusions might
have been reached.’” Hill v. Hanes Corp., 319 N.C. 167, 172, 353
S.E.2d 392, 395 (1987) (citing Lawrence v. Mill, 265 N.C. 329,
144 S.E. 2d 3 (1965), and quoting Rewis v. Insurance Co., 226
N.C. 325, 330, 38 S.E. 2d 97, 100 (1946)). Moreover, findings of
fact that are not challenged are presumed to be supported by
competent evidence and are binding on appeal. Johnson v.
Herbie’s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118,
disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003). “The
Commission’s conclusions of law are reviewed de novo.” McRae v.
Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004)
(citing Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534,
491 S.E.2d 678, 681 (1997), disc. rev. denied, 347 N.C. 671, 500
S.E.2d 86 (1998)).
III. Full Commission’s Findings of Fact
On appeal, defendants contend that the “Full Commission’s
findings of fact concerning whether plaintiff sustained a
compensable traumatic brain injury as a result of her workplace
accident on October 1, 2010, are not supported by the competent
evidence of record[.]” We disagree.
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Defendants specifically challenge the evidentiary support
only for Findings Nos. 6, 7, 10, 11, 16, and 18-25. However, our
review of the record reveals that each of these findings is
supported by the record or by sworn testimony. Defendants do not
dispute the existence of testimony that supports the
Commission’s findings. Rather, they direct our attention to
inconsistencies in the evidence, and to other evidence that
might have supported different findings. As discussed above, we
will affirm the Commission’s findings of fact if they are
supported by competent evidence.
Defendants also argue that the Commission should not have
relied upon the testimony of Dr. Rao, since “his opinion rested
on the flawed post hoc, ergo propter hoc logic[.]” Defendants
contend that Dr. Rao’s opinion was based entirely on the fact
that plaintiff’s symptoms emerged only after her work-related
fall. However, in his deposition, Dr. Rao testified that he
examined plaintiff, reviewed the testing and medical records of
other health care providers, and treated her with various
medications and therapies over a period of months. We hold that
Dr. Rao’s opinion was based on more than the temporal
relationship between plaintiff’s fall and the onset of her
symptoms, and that the Commission did not err by relying on his
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testimony concerning the causal relationship between her
accident and her symptoms.
Finally, defendants make a conclusory argument that the
Commission’s findings of fact do not support its conclusions of
law. However, defendants fail to identify any specific examples
of this contention, to cite any supporting authority, or to make
any argument in support of their contention.
The thrust of defendants’ arguments is that the Commission
erred in its determinations as to the weight and credibility to
assign the evidence presented. As discussed above, the
Commission is the sole judge of credibility and of the weight to
be given to the competent evidence. We hold that the
Commission’s findings of fact were supported by competent
evidence in the record, and affirm the Opinion and Award of the
Commission.
AFFIRMED.
Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).
Venable v. Lowe's Home Ctrs., Inc.
Combined Opinion