Edmonds v. Fresenius Medical Care

STEELMAN, Judge

dissenting.

I must respectfully dissent from the majority opinion based upon the holdings of our Supreme Court in Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003), and Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (2000).

In reviewing findings of fact of the Industrial Commission (the “Commission”), our standard of review is to determine whether those findings are supported by competent evidence. Faison v. Allen Canning Co., 163 N.C. App. 755, 751, 594 S.E.2d 446, 448 (2004). If so, then they are binding on appeal, even though there was evidence to support contrary, findings. McRae v. Toastmaster, 158 N.C. 70, 75, 579 S.E.2d 913, 916 (2004). It is not the role of the appellate courts to sift through the evidence and find facts that are different from those actually found by the Commission.

In this case, Dr. Burgess’s testimony on medical causation was conflicting. The Industrial Commission made the following findings of fact causally connecting plaintiff’s treatment with non-steroidal anti-inflammatory drugs to her renal failure:

19. Dr. Burgess testified that plaintiff’s exposure to the non-steroidal anti-inflammatory drugs, “possibly” or “could or might” have worsened plaintiff’s kidney function. Dr. Burgess could hot say that it was probable; he could only say that it was possible. He stated he could not give an opinion, to a reasonable degree of medical certainty, without knowing all the information surround*818ing the drugs. Dr. Burgess testified that plaintiff’s kidney disease could be attributed to a number of factors, including diabetes, hypertension, a drug source injury, or a blunt trauma injury. Finally, Dr. Burgess testified that because plaintiff had both diabetes and hypertension, she is more likely to need dialysis.
20. Given the evidence of record that renal failure can occur in individuals with a short exposure history to non-steroidal anti-inflamatories, and Dr. Burgess’s testimony indicating a possible link between plaintiff’s worsening renal condition and her use of non-steroidal anti-inflamatories, the Full Commission finds that plaintiff’s use of such medication to treat her back injury more likely than not worsened or exacerbated her pre-existing kidney problems.

Based upon these findings, the Commission concluded that plaintiff showed, by the greater weight of the evidence, that the non-steroidal medications taken to treat her compensable back injury exacerbated her pre-existing kidney problems.

In Holley our Supreme Court stated:

Although expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury, it is insufficient to prove causation, particularly “when there is additional evidence or testimony showing the expert’s opinion to be a guess or mere speculation.”

Holley, 357 at 233, 581 S.E.2d at 753 (internal citations omitted).

In this case, the only medical testimony linking the administration of non-steroidal anti-inflammatory drugs to plaintiff’s reduced renal function was that of Dr. Burgess. As found by the Commission, his testimony was only that the drugs “possibly” or “could or might” have caused plaintiff’s renal problems. Further, the Commission found that Dr. Burgess could not give an opinion to a reasonable degree of medical certainty on causation. This testimony does not rise above a guess or mere speculation and does not meet the requirements set forth in Holley. Id.

Clearly, the Commission recognized the weakness of Dr. Burgess’s testimony and attempted in finding of fact twenty to buttress his opinion with testimony of other witnesses that a short exposure to non-steroidal anti-inflamatories can result in renal failure. The Commission thus attempted to link together the testimony *819of several expert witnesses and render its own medical opinion that the medications “more likely than not worsened or exacerbated her pre-existing kidney problems.” Further, Dr. Burgess also testified that a short exposure to non-steroidal anti-inflamatories can result in renal failure yet he did not reach the same conclusion as the Commission. It is not the role of the Commission to render expert opinions. In cases involving complex medical questions, only an expert can give opinion evidence as to the cause of an injury. Holley, 357 at 232, 581 S.E.2d at 753.

I would hold that plaintiff has failed to prove that her loss of renal function was causally related to the administration of non-steroidal anti-inflamatories. Without that causal link, the kidney injuries did not arise out of a compensable injury and she is not entitled to compensation for those injuries under Chapter 97.