Pine v. Wal-Mart Assocs., Inc.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-203

Filed: 5 September 2017

North Carolina Industrial Commission, I.C. No. X86249

PATRICIA PINE, Employee, Plaintiff,

v.

WAL-MART ASSOCIATES, INC. #1552, Employer, and NATIONAL UNION FIRE
INSURANCE CO., Carrier (CLAIMS MANAGEMENT, INC. Third-Party
Administrator), Defendants.

Appeal by Defendants from an Opinion and Award entered 10 November 2015

by the Full North Carolina Industrial Commission. Heard in the Court of Appeals 9

August 2016.

Doran Shelby Pethel and Hudson, P.A., by David A. Shelby, for Plaintiff-
Appellee.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Holly M. Stott and M. Duane
Jones, for Defendant-Appellants.

INMAN, Judge.

This appeal involves a commonly relied upon presumption in North Carolina

workers’ compensation law, which shifts from an employee to an employer the burden

of proof for causation of an injury. At issue is whether the North Carolina Industrial

Commission erred by applying this presumption, known as the Parsons presumption,

to a medical condition not listed on an employer’s admission of compensability form.
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Opinion of the Court

Wal-Mart Associates, Inc., employer, and National Union Fire Insurance Co.,

carrier, (collectively “Defendants”) appeal from an Opinion and Award of the Full

North Carolina Industrial Commission (the “Commission”) awarding Patricia Pine,

employee, (“Plaintiff”) compensation for medical treatment for injuries to her neck,

wrist, shoulder, hand, and left knee and ongoing disability payments.

Following an amendment to the North Carolina Workers Compensation Act by

the North Carolina General Assembly, we hold that it was error for the Commission

to apply the Parsons presumption in this case. However, the error does not require

reversal because the Commission also found that Plaintiff had proved by a

preponderance of the evidence that her additional medical conditions were causally

related to her workplace injury, thereby satisfying her burden of proof absent the

presumption. Accordingly, we affirm the Commission’s Opinion and Award.

Factual and Procedural History

On 29 December 2011, while at work, Plaintiff tripped and fell face-forward

over the bottom of a stairway ladder. As she fell, she extended her right arm to break

the fall; her wrist hit the floor first, followed by her right shoulder area, her left knee,

and her chest near her collarbone. One of Plaintiff’s co-workers witnessed the fall

and confirmed that Plaintiff complained of left knee and right hand, wrist, and

shoulder pain.

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Opinion of the Court

Plaintiff, at the direction of her employer, went to Dr. Clifford Callaway, who

diagnosed her with a shoulder sprain. Plaintiff followed up with Dr. Callaway several

times throughout January 2012. Dr. Callaway updated his diagnosis to include a left

knee sprain, a cervical strain, and a wrist sprain, and referred Plaintiff to Dr. James

Comadoll, an orthopedic specialist.

Dr. Comadoll ordered an MRI of Plaintiff’s right shoulder and diagnosed

Plaintiff with a possible right rotator cuff tear and a left knee contusion. Plaintiff

followed up with Dr. Comadoll within one month complaining of neck soreness and

issues with range of motion. Dr. Comadoll ordered an EMG1 to look for signs of nerve

entrapment. The EMG showed Plaintiff suffered from carpal tunnel syndrome in her

right wrist, so Dr. Comadoll performed a carpal tunnel release surgery. Because

Plaintiff still complained of left knee pain, Dr. Comadoll ordered an MRI of Plaintiff’s

left knee, which showed a possible lateral meniscus anterior horn tear.

Dr. Comadoll referred Plaintiff to Dr. Michael Getter, a board-certified

orthopedic surgeon who specializes in spinal surgery, for further evaluation of her

continued complaints of numbness and pain in her upper extremities. Dr. Getter

ordered a cervical MRI for Plaintiff, which showed degenerative disc disease causing

stenosis compressing the nerve at C4-5, C5-6, and C6-7. Dr. Getter recommended

1 An EMG, also known as an electromyogram, is “[a] graphic representation of the electric
currents associated with muscular action.” Stedman’s Medical Dictionary 283110 (28 th ed. 2014).

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Opinion of the Court

surgery to decompress the nerve and to prevent progressive neurological problems

and muscle atrophy.

At the request of Defendants, Plaintiff underwent additional medical

examinations. Dr. Joseph Estwanik diagnosed Plaintiff with a partial full thickness

tear of her right rotator cuff for which he recommended arthroscopic surgery. Dr.

Louis Koman, a board-certified orthopedic surgeon with a certificate of subspecialty

in hand surgery, diagnosed Plaintiff with a carpal boss, a traumatic sagittal band

rupture, and cervical spine pathology that was causing some residual symptoms in

her right upper extremity despite the carpal tunnel release.

Meanwhile, Plaintiff filed a Form 18, Notice of Accident to Employer, related

to her fall at work, citing injuries to her “RUE, LLE, neck and any other injuries

causally related.” In response, Wal-Mart filed a Form 60, Employer’s Admission of

Employee’s Right to Compensation, admitting compensability for Plaintiff’s claim

with regard to the injuries suffered to her right shoulder and arm. Wal-Mart

subsequently filed a Form 61, Denial of Workers’ Compensation Claim, denying

compensability for Plaintiff’s cervical spine condition as “a new injury outside of her

employment” and “unrelated to the original compensable injury.”

Following a hearing before the Industrial Commission, deputy commissioner

Kim Ledford issued an Opinion and Award concluding, as shown by the greater

weight of competent medical opinion, that as a consequence of her workplace accident

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Opinion of the Court

Plaintiff not only suffered the shoulder injury admitted by Wal-Mart, but also

sustained injuries to her right wrist and left knee and aggravated her pre-existing

cervical disc condition. Both parties appealed to the Full Commission.

Following additional proceedings, the Commission found, inter alia:

20. Based upon a preponderance of the evidence, the Full
Commission places greater weight on the testimony of Dr.
Callaway, Dr. Comadoll, Dr. Getter, and Dr. Koman, than
that of Dr. Estwanik, and finds that Plaintiff’s pre-existing
cervical disc disease was aggravated by her fall at work on
December 29, 2011. Additional medical treatment with Dr.
Getter, including but not limited to surgery, is reasonable
and necessary to effect a cure, give relief, or lessen the
period of disability related to this injury.

...

22. Based upon a preponderance of the evidence in view of
the entire record, the Full Commission finds that Plaintiff’s
carpal tunnel syndrome and sagittal band rupture were
caused by the December 29, 2011 injury by accident. The
Full Commission further finds, by a preponderance of the
evidence that Plaintiff’s carpal boss was materially
aggravated by the December 29, 2011 injury by accident.
Additional medical treatment, including but not limited to
surgery with Dr. Koman, is reasonable and necessary to
effect a cure, give relief, or lessen the period of disability
related to these injuries.

The Commission concluded that because Wal-Mart accepted as compensable

Plaintiff’s right shoulder injuries, a rebuttable presumption arose that Plaintiff’s

other medical conditions were causally related to the compensable injury. It then

concluded:

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Opinion of the Court

3. Defendants failed to present sufficient evidence to rebut
the presumption that Plaintiff’s carpal tunnel syndrome,
carpal boss, sagittal band rupture, dystrophic right hand
symptoms, neck, and left knee problems are causally
related to the December 29, 2011 injury by accident. See
Gonzalez v. Tidy Maids, Inc., 2015 N.C. App. LEXIS 138,
768 S.E.2d 886 (2015). . . .

The Commission awarded Plaintiff “all reasonable and necessary medical

expenses which tend to effect a cure, give relief or lessen the period of Plaintiff’s

disability, incurred or to be incurred by Plaintiff for treatment of her right shoulder,

left knee, right carpal tunnel syndrome, right sagittal band rupture, right hand

dystrophic condition, right carpal boss, and neck injuries.”

Defendants timely appealed.

Analysis

Defendants argue that the Commission acted under a misapprehension of the

law when it relied on this Court’s decision in Wilkes v. City of Greenville, __ N.C. App.

__, __, 777 S.E.2d 282, 286 (2015) (citations omitted), aff’d in part, aff’d as modified

in part, and remanded by __ N.C. __, 799 S.E.2d 838 (2017), and applied the

presumption established by this Court in Parsons v. Pantry, Inc., 126 N.C. App. 540,

485 S.E.2d 867 (1997), shifting to Defendants the burden of proving that Plaintiff’s

other injuries were not causally related to her right shoulder injury suffered in her

fall at work. Defendants further assert that Plaintiff failed to meet her burden of

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Opinion of the Court

proof without the Parsons presumption to establish a causal relationship between the

injuries. We disagree.

A. Standard of Review

Appellate review of an opinion and award of the North Carolina Industrial

Commission is “limited to determining: (1) whether the findings of fact are supported

by competent evidence, and (2) whether those findings support the Commission’s

conclusions of law.” Reed v. Carolina Holdings, __ N.C. App. __, __, 796 S.E.2d 102,

108-09 (2017) (citing Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553,

555 (2006)). Findings of fact supported by competent evidence are binding on appeal,

Chaisson v. Simpson, 195 N.C. App. 463, 470, 673 S.E.2d 149, 156 (2009), and

unchallenged findings of fact are presumed to be supported by competent evidence,

Morgan v. Morgan Motor Co. of Albemarle, 231 N.C. App. 377, 380, 752 S.E.2d 677,

680 (2013). However, 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). And

“[w]hen the Commission acts under a misapprehension of the law, the award must

be set aside and the case remanded for a new determination using the correct legal

standard.” Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158, 357

S.E.2d 683, 685 (1987) (citation omitted).

B. Parsons Presumption

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Opinion of the Court

Defendants specifically challenge the Commission’s Conclusions of Law

Numbers 1 and 3 related to Plaintiff’s neck, wrist, and hand injuries, asserting that

the Commission misapplied the Parsons presumption to those medical conditions not

previously admitted by Wal-Mart in its Form 60. This argument is supported by a

recent statutory amendment, even though the amendment was enacted while this

appeal has been pending. However, the error does not require reversal because the

Commission made adequate findings that Plaintiff met her burden of proving

causation without the presumption.

The North Carolina Workers’ Compensation Act requires employers to provide

medical compensation for the treatment of compensable injuries, including

“additional medical compensation . . . directly related to the compensable injury” that

is designed to effectuate a cure, provide relief, or lessen the period of disability. Perez

v. American Airlines/AMR Corp., 174 N.C. App. 128, 135, 620 S.E.2d 288, 292 (2005)

(internal quotation marks and citation omitted); N.C. Gen. Stat. § 97-25 (2015). “It

is well established that an employee seeking compensation for an injury bears the

burden of demonstrating that the injury suffered is causally related to the work-

related accident.” Wilkes, __ N.C. App. at __, 777 S.E.2d at 286.

Our Court has long held that once an employee obtained a compensation award

for a workplace injury, if that employee seeks additional compensation for treatment

of later developing medical conditions claimed to be causally related to the

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Opinion of the Court

compensable injury, the Commission should presume “that the additional medical

treatment is directly related.” Perez, 174 N.C. App. at 135, 620 S.E.2d at 292;

Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869. “The employer may rebut the

presumption with evidence that the medical treatment is not directly related to the

compensable injury.” Perez, 174 N.C. App. at 135, 620 S.E.2d at 292. This

presumption allows an employee to obtain additional compensation for medical

conditions related to a compensable injury without having to re-litigate the issue of

causation. Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869 (“To require [a] plaintiff

to re-prove causation each time she seeks treatment for the very injury that the

Commission has previously determined to be the result of a compensable accident is

unjust and violates our duty to interpret the [Workers’ Compensation] Act in favor of

injured employees.”).

In Parsons, the plaintiff was working as a store clerk when two men entered

the store and assaulted her, striking her in the forehead and shooting her four times

with a stun gun. Id. at 540, 485 S.E.2d at 868. The Industrial Commission awarded

the plaintiff compensation for her injuries, which were primarily frequent headaches.

Id. at 540-41, 485 S.E.2d at 868-69. Eight months after the award, the plaintiff

sought compensation for additional treatment of her headaches, but the Commission

denied her claim because she “ ‘ha[d] not introduced any evidence of causation

between her injury and her headache complaints at the time of the hearing’ and . . .

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Opinion of the Court

‘failed to meet her burden of proof for showing the necessity of continued or additional

medical treatment.’ ” Id. at 541, 485 S.E.2d at 869. Our Court reversed the

Commission’s opinion and award, holding that “[i]n effect, requiring that [the]

plaintiff once again prove a causal relationship between the accident and her

headaches in order to get further medical treatment ignores th[e] prior award.” Id.

at 542, 485 at 869.

In Perez, this Court extended the Parsons presumption to instances in which

the Commission had not directly ruled on compensability of an injury because the

employer had admitted it by filing of a Form 60 and had paid compensation to the

employee. Perez, 174 N.C. App. at 136, 620 S.E.2d at 293 (“As the payment of

compensation pursuant to a Form 60 amounts to a determination of compensability,

we conclude that the Parsons presumption applies in this context.”). The Perez Court

noted that “[t]he presumption of compensability applies to future symptoms allegedly

related to the original compensable injury.” Id. at 136-37 n. 1, 620 S.E.2d at 293 n. 1

(emphasis added) (rejecting the defendant’s argument that the plaintiff suffered a

different injury from the injury stated on the Form 60).

In Clark v. Sanger Clinic, 175 N.C. App. 76, 623 S.E.2d 293 (2005), this Court

declined to extend the Parsons presumption to an injury that had not previously been

deemed compensable by the Commission. The Court rejected the plaintiff’s argument

that the Parsons presumption applied to the plaintiff’s compensation claim for

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degenerative arthritis after the plaintiff had obtained an award for a knee injury

caused by an accident at work. Id. at 79, 623 S.E.2d at 296. The Clark decision

emphasized in its holding the reasoning in Parsons that the presumption’s purpose

was to alleviate a plaintiff from having to re-prove causation for the “very injury” the

Commission determined compensable. Id. at 76, 623 S.E.2d at 296 (quoting Parsons,

126 N.C. App. at 542, 485 S.E.2d at 869).

In Wilkes, this Court again extended the Parsons presumption, holding that

“the Parsons presumption applies even where the injury or symptoms for which

additional medical treatment is being sought is not the precise injury originally

deemed compensable.” Wilkes, __ N.C. App. at __, 777 S.E.2d at 287 (citing Carr v.

Dep’t of Health & Human Servs. (Caswell Ctr.), 218 N.C. App. 151, 156, 720 S.E.2d

869, 874 (2012)). The plaintiff in Wilkes suffered numerous physical injuries in a

work related car accident, which his employer accepted as compensable. Id. at __,

777 S.E.2d at 284. After the employer began providing medical compensation for the

plaintiff’s physical injuries, the parties disagreed about the extent of the plaintiff’s

other injuries. Id. at __, 777 S.E.2d at 284. The plaintiff was seeking compensation

for, inter alia, depression and anxiety, injuries which were not listed on his employer’s

Form 60. Id. at __, 777 S.E.2d at 285. Our Court held that the Commission erred by

failing to apply the Parsons presumption “to his request for additional medical

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treatment and compensation for his complaints of anxiety and depression.” Id. at __,

777 S.E.2d at 285.

After this Court heard Defendants’ appeal in this case, our Supreme Court

affirmed the holding in Wilkes2 which applied the Parsons presumption to medical

conditions not included on an employer’s admission of compensability form, but

alleged to be related to the compensable injury. Wilkes at __, 799 S.E.2d at 846

(“Accordingly, we conclude that an admission of compensability approved under [N.C.

Gen. Stat.] § 97-82(b) entitles an employee to a presumption that additional medical

treatment is causally related to his compensable injury.”).

The General Assembly, however, promptly abrogated the Supreme Court’s

decision in Wilkes by amending N.C. Gen. Stat. § 97-82. 2017 N.C. Sess. Laws 2017-

124. Section 1.(a) rewrites N.C. Gen. Stat. § 97-82(b) as follows:

(b) If approved by the Commission, a memorandum of
agreement shall for all purposes be enforceable by the
court’s decree as hereinafter specified. Payment pursuant
to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d)
when compensability and liability are not contested prior
to expiration of the period for payment without prejudice,
shall constitute an award of the Commission on the
question of compensability of and the insurer’s liability for
the injury as reflected on a form prescribed by the
Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) for
which payment was made. An award of the Commission
arising out of G.S. 97-18(b) or G.S. 97-18(d) shall not create
a presumption that medical treatment for an injury or
condition not identified in the form prescribed by the

2The Supreme Court modified other aspects of this Court’s decision in Wilkes unrelated to this
appeal. Wilkes, __ N.C. at __, 799 S.E.2d at 848-51.

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Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) is
causally related to the compensable injury. An employee
may request a hearing pursuant to G.S. 97-84 to prove that
an injury or condition is causally related to the compensable
injury. Compensation paid in these circumstances shall
constitute payment of compensation pursuant to an award
under this Article.

2017 N.C. Sess. Laws 2017-124, § 1.(a) (emphasis added). N.C. Gen. Stat. § 97-18(b)

provides that an employer admits compensability by filing a Form 60 with the

Industrial Commission, and N.C. Gen. Stat. § 97-18(d) provides that an employer can

pay for an employee’s medical treatment without admitting compensability by filing

a Form 63.

Section 1.(b) of the Session Law amending N.C. Gen. Stat. § 97-82 provides

that the intent of the General Assembly in amending the Workers’ Compensation Act

was “to clarify, in response to Wilkes v. City of Greenville, that an injury not

identified in an award arising out of [N.C. Gen. Stat. §] 97-18(b) or [N.C. Gen. Stat.

§] 97-18(d) is not presumed to be causally related to the compensable injury . . . .”

2017 N.C. Sess. Laws 2017-124, § 1.(b). The statutory amendment binds our decision

in this case because Section 1.(c) provides that the statute applies to all claims

“accrued or pending prior to, on, or after” the date on which the amendment became

law. 2017 N.C. Sess. Laws 2017-124, § 1.(c).

The medical conditions Plaintiff seeks compensation for were not admitted by

Wal-Mart because they were not listed on its admission of compensability form.

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Opinion of the Court

Plaintiff’s reliance on this Court’s decision in Wilkes fails in light of the General

Assembly actions. We therefore hold that the Commission’s application of the

Parsons presumption in this case was error. Generally, such an error would require

a remand to the Commission for the application of the correct legal standard.

However, as explained below, we instead affirm the Commission’s Opinion and Award

because it includes factual findings applying the correct legal standard to support its

award. In other words, the Commission found an alternative factual basis for its

award, which we affirm.

This Court’s decision in Wilkes relied on Carr to apply the Parsons

presumption to the plaintiff’s claims for mental health conditions not listed on his

employer’s admission of compensability form. Wilkes, __ N.C. App. at __, 777 S.E.2d

at 287. However, a closer reading of Carr, in light of the case before us, reveals that

Carr differs from Wilkes in a manner dispositive to this case. In Carr, unlike in

Wilkes, the Industrial Commission found separately that the plaintiff met her burden

of proof for causation absent the Parsons presumption. Carr, 218 N.C. App. at 156,

720 S.E.2d at 874.

In Carr, the plaintiff was diagnosed with injuries to her left hand and her neck

following a workplace accident. Id. at 152, 720 S.E.2d at 871-72. The defendant

admitted the compensability of her left hand injuries, but denied the compensability

of her neck injury. Id. at 153, 720 S.E.2d at 872. Before the Commission, the plaintiff

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presented testimony by a neurosurgeon who opined that her neck injury was causally

related to the accident. Id. at 153-54, 720 S.E.2d at 872. In its Opinion and Award,

the Commission discussed the Parsons presumption but also found that the plaintiff

had met her burden of proof to establish that she had suffered the neck injury as a

result of the same accident. Id. at 156, 720 S.E.2d at 874. This Court, affirming the

Commission’s award of medical compensation, held that “[a]though the Commission

recited the Parsons presumption, it did not rely on it in finding the [plaintiff’s] neck

injury compensable.” Id. at 156, 720 S.E.2d at 874. Nothing in the recent amendment

to N.C. Gen. Stat. § 97-82 suggests that the General Assembly sought to alter our

Court’s holding in Carr.

This case is indistinguishable from Carr. Wal-Mart filed a Form 60 accepting

compensability for Plaintiff’s injuries to her “right shoulder/arm,” but has denied

compensability for her other medical conditions, specifically, aggravation of a pre-

existing cervical disc disease, carpal tunnel syndrome, a sagittal band rupture,

aggravation of carpal boss, left knee problems, and dystrophic right hand symptoms.

The Commission erred in apply the Parsons presumption in its Conclusions of

Law. But the Commission also found that Plaintiff had proved by a preponderance

of the evidence—the applicable standard of proof absent the Parsons presumption—

that her additional injuries were causally related to her workplace accident and are

therefore compensable. The Commission’s Finding of Fact Number 20, quoted in full

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above, expressly states that “[b]ased upon a preponderance of the evidence, the Full

Commission . . . finds that Plaintiff’s pre-existing [condition] was aggravated by her

fall at work . . . .” (emphasis added). The Commission’s Finding of Fact Number 22,

quoted in full above, expressly states that “[b]ased upon a preponderance of the

evidence, the Full Commission finds that Plaintiff’s [medical conditions not admitted

by Wal-Mart] were caused by . . . [her] accident.” (emphasis added).

The Commission’s use of affirmative language in these findings of fact

indicates it placed the burden of proof on Plaintiff to demonstrate causation of her

disputed additional medical conditions. By contrast, had the Commission placed the

burden of proof on Defendants for these findings, the Opinion and Award would have

stated that “the Full Commission does not find that Plaintiff’s injuries were not

caused by her accident.”

The Commission’s separate findings of fact determining causation are

supported by competent evidence, as discussed infra, or unchallenged and thus

presumed to be supported by competent evidence.3 Accordingly, we hold that

regardless of the Commission’s discussion of the Parsons presumption in its

Conclusions of Law, its Opinion and Award should be affirmed because the

Commission found that Plaintiff proved by a preponderance of the evidence a causal

3 In addition to the challenged Findings of Fact Numbers 14 and 19, which are supported by
competent evidence, the Commission’s other unchallenged Findings of Fact Numbers 6, 7, 16, 20, and
22 support our affirmation of its Opinion and Award.

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relationship between her compensable injury by accident and the medical conditions

for which she now seeks compensation.4

C. Causation

Defendants do not challenge the Commission’s Findings of Fact Numbers 20

and 22, quoted supra, in which the Commission found that Plaintiff proved causation

of her additional medical conditions “[b]ased upon a preponderance of the evidence .

. . .” Rather, Defendants challenge the Commission’s Findings of Fact Numbers 14,

addressing Dr. Getter’s causation opinion, and 19, addressing Dr. Koman’s causation

opinion. Defendants argue that the expert opinions relied upon by the Commission

were unsupported by the record evidence, based on speculation and conjecture, and

therefore are not competent evidence; Defendants assert that without this evidence,

Plaintiff failed to prove that her neck, hand, and wrist injuries were causally related

to her workplace accident. We disagree.

To be compensable under the Workers’ Compensation Act, an injury must

result from an accident “arising out of and in the course of the employment[.]” N.C.

4 Our dissenting colleague, citing the North Carolina Rules of Appellate Procedure Rule 10,
asserts that we may not “invent a non-explicit alternative basis to re-weigh or view the evidence in a
manner to affirm the Award of the Commission, particularly where Plaintiff-Appellee has not cross-
assigned as error the Commission’s omission of an ‘alternative basis in law’ to support its Opinion and
Award.” Rule 10 states that “an appellee may list proposed issues on appeal . . . that deprived the
appellee an alternative basis in law . . . .” N.C. R. App. P. 10(c) (2017) (emphasis added). Rule 10,
however, further notes that “[a]n appellee’s list of proposed issues on appeal shall not preclude an
appellee from presenting arguments on other issues in its brief.” Id. Here, Plaintiff has presented in
her brief to this Court the argument that “[t]he Full Commission made Findings of Fact based on the
evidence presented and determined Plaintiff proved that her current conditions were causally related
to the December 29, 2011 compensable injury.”

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Gen. Stat. § 97-2(6) (2015). When the primary injury has been shown to arise out of

and in the course of employment, “every natural consequence that flows from the

injury likewise arises out of the employment . . . .” English v. J.P. Stevens & Co., 98

N.C. App. 466, 470, 391 S.E.2d 499, 501 (1990) (citations omitted). “Although the

employment-related accident need not be the sole causative force to render an injury

compensable, the plaintiff must prove that the accident was a causal factor by a

preponderance of the evidence[.]” Holley v. ACTS, Inc., 357 N.C. 228, 231-32, 581

S.E.2d 750, 752 (2003) (internal quotation marks and citations omitted).

“There must be competent evidence to support the inference that the accident

in question resulted in the injury complained of, i.e., some evidence that the accident

at least might have or could have produced the particular disability in question.”

Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). “[W]here the

exact nature and probable genesis of a particular type of injury involves complicated

medical questions far removed from the ordinary experience and knowledge of

laymen, only an expert can give competent opinion evidence as to the cause of the

injury.” Id. at 167, 265 S.E.2d at 391 (citations omitted). This Court has further

noted that “[w]hen expert opinion is based ‘merely upon speculation and conjecture,’

it cannot quality as competent evidence of medical causation.” Carr, 218 N.C. App.

at 154-55, 720 S.E.2d at 873 (quoting Young v. Hickory Bus. Furn., 353 N.C. 227, 230,

538 S.E.2d 912, 915 (2000)). “Stating an accident ‘could or might’ have caused an

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injury, or ‘possibly’ caused it is not generally enough alone to prove medical causation;

however, supplementing that opinion with statements that something ‘more than

likely’ caused an injury or that the witness is satisfied to a ‘reasonable degree of

medical certainty’ has been considered sufficient.” Carr, 218 N.C. App. at 155, 720

S.E.2d at 873 (citations omitted).

In certain instances, expert medical testimony has been found to fall short of

competent evidence where it is based on speculation and conjecture. Young, 353 N.C.

at 230, 538 S.E.2d at 915 (“[W]hen such expert opinion testimony is based merely

upon speculation and conjecture, it can be of no more value than that of a layman’s

opinion.”); Dean v. Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94 (1975) (holding

that “an expert is not competent to testify as to a causal relation which rests upon

mere speculation or possibility.” (citation omitted)). The Court in Young held that

expert medical testimony based solely on the maxim “post hoc, ergo propter hoc”—

which “denotes the fallacy of . . . confusing sequence with consequence”—does not rise

to the necessary level of competent evidence. 353 N.C. at 232, 538 S.E.2d at 916

(alteration in original) (internal quotation marks and citations omitted). A careful

review of that expert’s testimony revealed that there were at least three alternative

potential causes to the plaintiff’s condition and that the doctor had performed no tests

to rule them out. Id. at 231, 538 S.E.2d at 915. The expert’s opinion of causation was

entirely based upon the “post hoc, ergo propter hoc” fallacy, which he affirmed was

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Opinion of the Court

“the only piece of information that relate[d] the [condition to the injury by accident].”

Id. at 232, 538 S.E.2d at 916 (internal quotation marks omitted).

Here, Plaintiff presented various medical records and expert testimony from

several of her treating physicians. Among those testifying was Dr. Louis Koman who

stated that “[i]t was [his] opinion, within a reasonable degree of medical certainty”

that Plaintiff’s cervical arthritis and carpal boss were pre-existing conditions

exacerbated by her 29 December 2011 fall. Dr. Koman also testified that Plaintiff’s

sagittal band rupture was “more likely than not” caused by the same fall. Dr. Michael

Dennis Getter testified that Plaintiff’s fall materially aggravated her condition and

that the fall was most likely the cause of her current symptoms. Dr. James Comadoll

testified that Plaintiff’s fall exacerbated and materially aggravated her degenerative

cervical condition.

Defendants challenge the Commission’s findings as to Dr. Koman’s opinion on

the basis that his opinions were based on conjecture and speculation and not

supported by the evidence in the record. Our review of Dr. Koman’s deposition

reveals key distinctions from the opinion testimony at issue in Young. Here, unlike

in Young, there were no other potential causes of Plaintiff’s injuries, and while Dr.

Koman did rely on the maxim “post hoc, ergo propter hoc,” his reliance was relevant

and necessary. Dr. Koman testified that based on Plaintiff’s medical history and a

lack of any other potential cause, the fall was more likely than not the cause of

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Opinion of the Court

Plaintiff’s additional medical conditions. Dr. Koman testified that in reaching his

opinion he “took a history, [he] reviewed the medical records[,] . . . did a physical

exam, . . . x-rays, . . . [and] diagnostic testing[,]” and “fit that all into [his] experience,

the literature, the probabilities of what happened, [and] when and whether it was all

consistent[.]” Because a full review of Dr. Koman’s testimony demonstrates that his

opinion was based on more than merely post hoc, ergo propter hoc, and went beyond

a “could” or “might” testimony, we hold the Commission properly determined it to be

competent evidence.

Defendants also challenge the causation opinion testimony by Dr. Getter,

asserting that it relied on the assumption that Plaintiff’s head was thrown about

during the fall and that the evidence in the record does not support this fact. Dr.

Getter testified that Plaintiff’s symptoms were consistent with “some accident of some

kind where your head is thrown back and forth on your neck like a flexion extension

injury in a car, falling down, . . . falling down then having your head fall forward.”

(emphasis added). The Commission found, and Defendants do not challenge, that

“she tripped and fell face-forward over the bottom of a stairway ladder.” We hold that

the record supports Dr. Getter’s testimony and his reliance on the type of injuries

that resulted in Plaintiff’s symptoms. Accordingly, Dr. Getter’s testimony was based

on more than mere speculation and conjecture and was properly considered as

competent evidence.

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Opinion of the Court

We do not agree with Defendants’ contention that the opinions of Dr. Koman

and Dr. Getter were so speculative as to render them incompetent. Their testimony

along with the others cited by the Commission and the evidence contained in the

record support the Commission’s conclusion that the additional medical conditions

complained of by Plaintiff were causally related to Plaintiff’s fall.

It is not within the scope of our review to determine the weight given to

testimony, as “ ‘the sole judge of the credibility of witnesses’ and the weight given to

their testimony” is the Commission. Pittman v. Thomas & Howard, 122 N.C. App.

124, 129, 468 S.E.2d 283, 286 (1996) (quoting Russell v. Lowes Product Distribution,

108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)). The Commission explicitly

“place[d] greater weight on the testimony of Dr. Callaway, Dr. Comadoll, Dr. Getter,

and Dr. Koman, than that of Dr. Estwanik,” in its determination of causation of the

present injuries. We hold that the Commission’s findings were supported by

competent evidence, and that those findings support the Commission’s conclusions of

law.

Conclusion

While the Commission discussed the Parsons presumption in its Opinion and

Award, the presumption was unnecessary for the Commission’s determination of

causation. The record demonstrates competent evidence to support the Commission’s

factual findings that Plaintiff proved causation by a preponderance of the evidence,

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Opinion of the Court

which support the Commission’s conclusions of law that Plaintiff’s medical conditions

are causally related to her workplace injury and are therefore compensable.

Accordingly, we hold in error that part of the Commission’s Opinion and Award

discussing the Parsons presumption and affirm the Commission’s Opinion and

Award.

AFFIRMED.

Judge BRYANT concurs.

Judge TYSON concurs in part, dissents in part, with separate opinion.

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 No. COA16-203– Pine v. Wal-Mart Assocs., Inc.

TYSON, Judge, concurring in part, dissenting in part.

I fully concur with those portions of the majority’s opinion, which hold it was

reversible error for the Industrial Commission to apply the Parsons presumption in

this case, based upon the General Assembly’s recent amendment to the North

Carolina Workers’ Compensation Act, 2017 N.C. Sess. Laws 2017-124, § 1. The

amendment was enacted after the Commission’s Opinion and Award, but is expressly

applicable because this appeal was pending after enactment. See 2017 N.C. Sess.

Laws 2017-124, § 1.(c).

I respectfully dissent from the majority’s determination that the Commission

inherently found and concluded Plaintiff had met her burden to prove the medical

conditions, for which she is seeking additional compensation, are causally related to

her original and accepted compensable injury, without regard to the Parsons

presumption. This conclusion is unsupported by the Commission’s Findings of Fact

or Conclusions of Law. The Industrial Commission’s Opinion and Award, awarding

Plaintiff additional compensation for injuries and conditions not listed or accepted by

Defendants on the Form 60, is properly set aside and remanded. I respectfully

dissent.

I. Standard of Review

This Court reviews an opinion and award of the Commission to determine

“whether there is any competent evidence in the record to support the Commission’s
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TYSON, J., concurring in part, dissenting in part

findings and whether those findings support the Commission’s conclusions of law.”

Oliver v. Lane Co., 143 N.C. App. 167, 170, 544 S.E.2d 606, 608 (2001).

“[T]he Commission is the fact finding body. . . . [and] is the sole judge of the

credibility of the witnesses and the weight to be given to their testimony.” Adams v.

AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (internal citations and

quotation marks omitted). “Where there is competent evidence to support the

Commission’s findings, they are binding on appeal even in light of evidence to support

contrary findings.” Starr v. Gaston Cty. Bd. of Educ., 191 N.C. App. 301, 304-05, 663

S.E.2d 322, 325 (2008).

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). We all agree there

is error in the Commission’s Opinion and Award. “When the Commission acts under

a misapprehension of the law, the award must be set aside and the case remanded

for a new determination using the correct legal standard.” Ballenger v. ITT Grinnell

Indus. Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987) (citation omitted).

II. Parsons presumption

As the majority’s opinion notes, after this Court heard Defendants’ appeal and

the Supreme Court of North Carolina had issued its opinion in Wilkes on 9 June 2017,

the General Assembly, less than three weeks later on 29 June 2017, amended and

enacted N.C. Gen. Stat. § 97-82, to read:

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TYSON, J., concurring in part, dissenting in part

(b) If approved by the Commission, a memorandum of
agreement shall for all purposes be enforceable by the
court’s decree as hereinafter specified. Payment pursuant
to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d)
when compensability and liability are not contested prior
to expiration of the period for payment without prejudice,
shall constitute an award of the Commission on the
question of compensability of and the insurer’s liability for
the injury as reflected on a form prescribed by the
Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d)
shall not create a presumption that medical treatment for
an injury or condition not identified in the form prescribed
by the Commission pursuant to G.S. 97-18(b) or G.S. 97-
18(d) is causally related to the compensable injury. An
employee may request a hearing pursuant to G.S. 97-84 to
prove that an injury or condition is causally related to the
compensable injury. Compensation paid in these
circumstances shall constitute payment of compensation
pursuant to an award under this Article.

2017 N.C. Sess. Laws 2017-124, § 1.(a).

The General Assembly clearly stated its intent in 2017 N.C. Sess. Laws 2017-

124 was “to clarify, in response to Wilkes v. City of Greenville, that an injury not

identified in an award arising out of [N.C. Gen. Stat. §] 97-18(b) or [N.C. Gen. Stat.

§] 97-18(d) is not presumed to be causally related to the compensable injury . . . .”

2017 N.C. Sess. Laws 2017-124, § 1.(b).

N.C. Gen. Stat. § 97-18(b) provides that an employer accepts as compensable

the injuries listed on a Form 60 filed with the Industrial Commission. The General

Assembly specified the amended N.C. Gen. Stat. § 97-82 applies to all claims “accrued

or pending prior to, on, or after” the date on which the amendment became law. 2017

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TYSON, J., concurring in part, dissenting in part

N.C. Sess. Laws 2017-124, § 1.(c). The amended statute applies to the Opinion and

Award before us. See id.

The Wilkes decision, expressly referred to as the reason for the amendment in

2017 N.C. Sess. Laws 2017-124, and expressly relied upon by Plaintiff and the

Commission, held that “the Parsons presumption applies even where the injury or

symptoms for which additional medical treatment is being sought is not the precise

injury originally deemed compensable.” Wilkes v. City of Greenville, __ N.C. App. __,

__, 777 S.E.2d 282, 287 (2015), aff’d as modified, __ N.C. __, 799 S.E.2d 838 (2017).

The rebuttable presumption in Parsons provides where a Plaintiff’s injury has

been proven to be compensable, it is presumed that additional medical treatment is

directly related to the compensable injury, unless rebutted by the employer. Perez v.

Am. Airlines/AMR Corp., 174 N.C. App. 128, 135-36, 620 S.E.2d 288, 292 (2005); see

Parsons v. Pantry, Inc., 126 N.C. App. 540, 542, 485 S.E.2d 867, 869 (1997).

All of the original injuries Plaintiff listed were accepted by Defendants as

compensable injuries. As such, Plaintiff was not required to meet her burden to prove

these injuries arose in the course and scope of her employment, or that the original

injuries by accident were causally related to her employment. See Perez, 174 N.C.

App. at 136, 620 S.E.2d at 293 (determining Parsons presumption applied where

employer admitted compensability for employee’s injuries on Form 60); Sims v.

Charmes/Arby’s Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d 277, 281 (employer

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TYSON, J., concurring in part, dissenting in part

filing Form 60 pursuant to N.C. Gen. Stat. § 97-18(b) “will be deemed to have

admitted liability and compensability”), disc. review denied, 353 N.C. 729, 550 S.E.2d

782 (2001).

I agree with the majority’s conclusion that 2017 N.C. Sess. Laws 2017-124,

which amended N.C. Gen. Stat. § 97-82, expressly abrogates and supplants this

Court’s and our Supreme Court’s holdings in Wilkes that “an admission of

compensability approved under [N.C. Gen. Stat.] § 97-82(b) entitles an employee to a

presumption that additional medical treatment is causally related to his compensable

injury.” Wilkes at __, 799 S.E.2d at 846.

As the medical conditions for which Plaintiff is seeking compensation were not

listed or accepted by Defendants in their Form 60, the majority’s opinion correctly

concludes the General Assembly’s amendment of N.C. Gen. Stat. § 97-82 shows the

Commission erred in applying the Parsons presumption to relieve Plaintiff of her

burden of proof of causation. I also concur with the majority opinion’s conclusion,

correctly stating: “Generally, such an error would require a remand to the

Commission for the application of the correct legal standard.” See Ballenger, 320 N.C.

at 158, 357 S.E.2d at 685.

“When the Commission acts under a misapprehension of the law, the award

must be set aside and the case remanded for a new determination using the correct

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TYSON, J., concurring in part, dissenting in part

legal standard.” Id. at 158, 357 S.E.2d at 685 (citation omitted). This appeal is

properly set aside and remanded to the Commission. See id.

III. Burden of Proof

In spite of this clear precedent and directive to set aside and remand, I must

respectfully dissent from the majority’s affirmation of the Commission’s Opinion and

Award “on alternative grounds.” The Commission did not make factual findings and

conclusions based thereon, independently of, and without consideration of the

Parsons presumption, as extended by Wilkes. The Commission never imposed nor

applied the correct legal standard upon Plaintiff, who bears the burden to prove

causation. No “alternative basis” has been proven by Plaintiff nor stated by the

Commission for this Court to properly affirm the Opinion and Award.

“Plaintiff must prove causation by a greater weight of the evidence or a

preponderance of the evidence.” Adams v. Metals USA, 168 N.C. App. 469, 475, 608

S.E.2d 357, 361 (citation and internal quotation marks omitted), aff’d, 360 N.C. 54,

619 S.E.2d 495 (2005).

The majority’s opinion asserts the Commission’s error in applying the Parsons

and Wilkes standard “does not require reversal because the Commission made

adequate findings that Plaintiff met her burden of proving causation without the

presumption.” (emphasis supplied). The majority’s implicit and erroneous

determination that the Commission clearly placed the burden of proof on Plaintiff to

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TYSON, J., concurring in part, dissenting in part

prove causation is not supported by the Commission’s findings of fact, to which we

are bound. Such a conclusion is also directly contradicted by the Commission’s

unambiguous conclusions of law, which expressly cited and relied upon Parsons and

Wilkes.

In its Opinion and Award, the Commission made, inter alia, the following

Conclusions of Law:

1. On December 29, 2011, Plaintiff sustained a
compensable injury by accident arising out of and in the
course of her employment with Defendant-Employer. N.C.
Gen. Stat. § 97-2(6). Defendants accepted liability for this
injury on a Form 60, Employer’s Admission of Employee’s
Right to Compensation, dated October 4, 2012, on which
they indicated, for body part(s) involved, “Right
shoulder/arm.” In Parsons v. Pantry, Inc., 126 N.C. App.
540, 485 S.E.2d 867 (1997) the Court held that where a
Plaintiff’s injury has been proven to be compensable, there
is a presumption that the additional medical treatment is
directly related to the compensable injury. The Parsons
presumption is a rebuttable presumption and Defendants
have the burden of producing evidence showing the
treatment is not directly related to the compensable injury.
In order to rebut the presumption, Defendants must present
expert testimony or affirmative medical evidence tending to
show that the treatment Plaintiff seeks is not directly
related to the compensable injury. Perez v. Am.
Airlines/AMR Corp., 174 N.C. App. 128, 136-37, 620
S.E.2d 288, 293 (2005). The Form 60 thus creates a
rebuttable presumption that Plaintiff’s other complaints are
causally related to the December 29, 2011 injury by
accident. See Wilkes v. City of Greenville, 2015 N.C. App.
LEXIS 826 (N.C. Ct. App. Oct. 6, 2015) (holding that the
Parsons presumption applies even where the injury or
symptoms for which additional medical treatment is being
sought is not the precise injury originally deemed

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TYSON, J., concurring in part, dissenting in part

compensable).

....

3. Defendants failed to present sufficient evidence to rebut
the presumption that Plaintiff’s carpal tunnel syndrome,
carpal boss, sagittal band rupture, dystrophic right hand
symptoms, neck, and left knee problems are causally
related to the December 29, 2011 injury by accident. See
Gonzalez v. Tidy Maids, Inc., 2015 N.C. App. LEXIS 138,
768 S.E.2d 886 (2015). However, Defendants did rebut the
presumption that Plaintiff’s Dupuytren’s condition is
related to the December 29, 2011 injury by accident. Id.

(emphasis supplied). Conclusions of Law 1 and 3 clearly indicate the Commission

solely predicated its Opinion and Award for Plaintiff on the Parsons presumption and

Wilkes being applicable to these facts, and unlawfully shifted the burden to rebut the

presumption onto Defendants. We all agree the Parsons presumption, as extended

by Wilkes, cannot apply here. The General Assembly’s recent amendment to N.C.

Gen. Stat. § 97-82 wholly abrogated Wilkes v. City of Greenville, __ N.C. __, 799 S.E.2d

838.

Because the Commission incorrectly relied upon Wilkes to apply the Parsons

presumption to Defendants, and Defendants accepted liability for Plaintiff’s original

injury as compensable on their Form 60, Plaintiff has never been required to carry

her burden to prove causation for any of her injuries, putatively arising from her 29

December 2011 workplace accident.

The majority opinion states, “The Commission also found that Plaintiff had

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TYSON, J., concurring in part, dissenting in part

proven by a preponderance of the evidence—the applicable standard of proof absent

the Parsons presumption—that her additional injuries were causally related to her

workplace accident and are therefore compensable.” This notion misstates Plaintiff’s

burden of proof for the applicable standard of proof. The standard of proof is the

“preponderance of the evidence,” regardless of the applicability of the Parsons

presumption. See Adams, 168 N.C. App. at 475, 608 S.E.2d at 361 (stating that

causation must be proven by a preponderance of the evidence).

The Parsons presumption, rather than changing the standard of proof, instead

shifts the burden to the employer to rebut the presumption that subsequent injuries

and treatments are causally related to the original accepted injury for which

compensation has been previously awarded. See Parsons, 126 N.C. App. at 542, 485

S.E.2d at 869 (“defendants now have the responsibility to prove the original finding

of compensable injury is unrelated to [employee’s] present discomfort”).

Nowhere in the record or in the Opinion and Award did the Commission

conclude Plaintiff has met her burden of proof to show causation. As Parsons and

Wilkes cannot apply to shift the burden to Defendants to rebut the presumption of

causation, the Commission’s conclusions clearly misapprehend the law as amended

on Plaintiff’s burden to prove causation. The Commission’s misapprehension is

clearly evident from the plain language of its Opinion and Award, which only refers

to Defendants, not Plaintiff, as bearing the burden to rebut causation, and

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TYSON, J., concurring in part, dissenting in part

Defendants “failure” to present sufficient evidence to rebut the Parsons presumption

on all of Plaintiff’s injuries except for Plaintiff’s Dupuytren’s condition.

The majority’s opinion mischaracterizes the Commission’s Findings of Fact

number 20 and 22 as showing the Commission placed and adjudicated the burden of

proof on Plaintiff to establish causation of her additional medical conditions. Finding

of Fact number 20, as quoted by the majority opinion, states “[b]ased upon a

preponderance of the evidence, the Full Commission . . . finds that Plaintiff’s pre-

existing [condition] was aggravated by her fall at work.” Finding of Fact number 22

states “[b]ased upon a preponderance of the evidence, the Full Commission finds that

Plaintiff’s [medical conditions not admitted by Wal-Mart] caused by . . . [her]

accident.” This language states the required standard of proof, but never states that

Plaintiff had carried her burden of proof.

The majority’s opinion construes the Commission’s use of standard language

in these two Findings of Fact as indicating the Commission alternatively placed the

burden of proof on Plaintiff to show causation, despite its express reliance on Parsons

and Wilkes to conclude and award for Plaintiff. The majority states “had the

Commission placed the burden of proof on Defendants for these findings, the Opinion

and Award would have stated that ‘the Full Commission does not find that Plaintiff’s

injuries were not caused by her accident.” I disagree.

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TYSON, J., concurring in part, dissenting in part

The Commission’s Findings of Fact do not indicate which party bore the burden

of proof to show or rebut causation, especially in light of the unequivocal language of

Conclusions of Law 1 and 3 expressly indicating the Commission allocated to

Defendants the burden to rebut causation. Presuming, arguendo, that the Findings

of Fact quoted by the majority tend to suggest the Commission alternatively placed

the burden to prove causation upon Plaintiff, the language of the Commission’s

Conclusions of Law strongly indicate the Commission placed the burden to rebut

causation upon Defendants. The Opinion and Award is wholly unclear upon which

party the Commission placed, or considered as having, the burden of proof to show or

rebut causation. As such, the Award must be set aside and remanded.

Interpreting the Commission’s Findings of Facts even as the majority asserts,

merely shows that it is unclear upon which party the Commission allocated the

burden of proof of causation. Our precedents require us to set aside and remand to

the Commission for a new hearing on causation with the burden of proof clearly

placed on Plaintiff. See Ballenger, 320 N.C. at 158, 357 S.E.2d at 685; see In re C.B.,

187 N.C. App. 803, 807, 654 S.E.2d 21, 24 (2007) (remanding case to trial court where

burden of proof stated in trial court’s order was ambiguous).

The majority’s opinion Carr v. Dep’t of Health & Human Servs. 218 N.C. App.

151, 720 S.E.2d 869 (2012), and asserts the Commission separately found Plaintiff

had met her burden of proof for causation, absent the Parsons presumption and

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TYSON, J., concurring in part, dissenting in part

Wilkes. The majority’s opinion proclaims Carr is “indistinguishable” from the case at

bar. I disagree.

In Carr, the defendant argued the Parsons presumption did not apply when

the plaintiff’s injury was a wholly different injury from the one accepted by the

defendant on the Rule 60 admission of compensability form. Id. at 156, 720 S.E.2d at

874. The Industrial Commission recited the Parsons presumption in its Opinion and

Award. This Court in Carr determined that, regardless of whether the Parsons

presumption applied, the Industrial Commission did not rely on Parsons in finding

the plaintiff’s new injuries causally related to the prior injuries the employer

admitted were compensable. Id.

Carr is distinguishable from the case at bar for several reasons. First, the

Court in Carr did not state the Parsons presumption was the only rule recited by the

Commission, as here, in the Opinion and Award regarding the burden of proof, only

that the Commission did recite it. See id. (“Although the Commission recited the

Parsons presumption, it did not rely on it in finding the neck injury compensable.”

(emphasis supplied)).

Second, Carr is also clearly distinguishable by the fact N.C. Gen. Stat. § 97-82

had not been amended while the appeal was pending in that case. Here, the

Commission was relying on the former version of N.C. Gen. Stat. § 97-82, and clearly

and expressly upon Wilkes’ interpretation that the statute at that time did not

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TYSON, J., concurring in part, dissenting in part

prohibit the Parsons presumption from applying when an employer admits

compensability for different injuries on Form 60. See N.C. Gen. Stat. § 97-82(b)(2015),

amended by 2017 N.C. Sess. Laws 2017-124.

The Commission’s conclusions in the Opinion and Award are necessarily and

expressly predicated on the former version of N.C. Gen. Stat. § 97-82(b) as interpreted

by Wilkes. The Opinion and Award’s conclusions are wholly dependent upon the

Parsons presumption, as extended by Wilkes, to apply after Wal-Mart admitted

compensability for Plaintiff’s previous injury on its Form 60 admission of

compensability, but not liability for any of the injuries asserted here.

This salient fact, viewed in conjunction with the Opinion and Award only

applying the Parsons presumption with regard to the burden of proof of causation,

and stating Defendants bore the burden to rebut causation, contradicts the majority’s

assertion that the Commission, wholly independently of Parsons, alternatively placed

and kept the burden of proof upon Plaintiff to prove causation.

We all agree the Opinion and Award clearly and unambiguously shows the

Commission misapprehended the law by placing the burden to rebut causation upon

Defendants. The required outcome here is to set aside the Award and remand. See

Ballenger, 320 N.C. at 158, 357 S.E.2d at 685 (“When the Commission acts under a

misapprehension of the law, the award must be set aside and the case remanded for

a new determination using the correct legal standard.”).

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TYSON, J., concurring in part, dissenting in part

The Commission did not explicitly set forth any “alternative basis” to support

its conclusions, and the Commission’s conclusions explicitly invokes the Parsons

presumption and Wilkes several times. None of the Commission’s findings of fact

state the Plaintiff has met her burden of proof on causation.

We cannot read into the Opinion and Award an alternative basis to prove

Plaintiff met her burden of proof to show causation, when the Commission clearly

and expressly placed the burden to rebut causation upon Defendants. See Vaughan

v. Carolina Indus. Insulation, 183 N.C. App. 25, 34-5, 643 S.E.2d 613, 619 (2007)

(affirming Commission’s decision on an alternative basis explicitly stated in the

Commission’s conclusions of law when the primary basis was made on an error of

law).

This Court cannot invent a non-explicit alternative basis to re-weigh or view

the evidence in a manner to affirm the Award of the Commission, particularly where

Plaintiff-Appellee has not cross-assigned as error the Commission’s omission of an

“alternative basis in law” to support its Opinion and Award. See N.C. R. App. P. 10(c)

(appellee may cross-assign error to omission of trial court when omission raises “an

alternative basis in law” for supporting the order of the trial court).

Plaintiff has not done so here, but attempts to assert an “alternative basis”

after Parsons was unlawfully used to shift the burden to rebut upon Defendants. The

Commission made no explicit findings or conclusions to support the majority’s

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TYSON, J., concurring in part, dissenting in part

affirmance on any other grounds, other than unlawfully under Parsons and Wilkes.

This error requires the Opinion and Award to be set aside and remanded to the

Commission. See Ballenger, 320 N.C. at 158, 357 S.E.2d at 685 (“When the

Commission acts under a misapprehension of the law, the award must be set aside

and the case remanded for a new determination using the correct legal standard”).

IV. Dr. Koman’s Testimony is Insufficient to Establish Causation of Plaintiff’s Hand

and Wrist Conditions

The majority’s opinion views Dr. Koman’s testimony regarding Plaintiff’s hand

and wrist conditions as competent evidence. I respectfully disagree. Even

erroneously applying Parsons and Wilkes, the Commission’s Conclusion of Law 3

states: “Defendants did rebut the presumption that Plaintiff’s Dupuytren’s condition

is related to the December 29, 2011 injury by accident.”

As the majority notes: for an injury to be compensable under the Workers’

Compensation Act, the injury must result from an accident “arising out of and in the

course of the employment[.]” N.C. Gen. Stat. §97-2(6) (2015). “There must be

competent evidence to support the inference that the accident in question resulted in

the injury complained of, i.e., some evidence that the accident at least might have or

could have produced the particular disability in question.” Click v. Freight Carriers,

300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). “[W]here the exact nature and

probable genesis of a particular type of injury involves complicated medical questions

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TYSON, J., concurring in part, dissenting in part

far removed from the ordinary experience and knowledge of laymen, only an expert

can give competent opinion evidence as to the cause of the injury.” Id. (citations

omitted). This Court has further noted that “[w]hen expert opinion is based ‘merely

upon speculation and conjecture,’ it cannot qualify as competent evidence of medical

causation.” Carr, 218 N.C. App. at 154-55, 720 S.E.2d at 873 (quoting Young v.

Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000)). “Stating an

accident ‘could or might’ have caused an injury, or ‘possibly’ caused it is not generally

enough alone to prove medical causation; however, supplementing that opinion with

statements that something ‘more than likely’ caused an injury or that the witness is

satisfied to a ‘reasonable degree of medical certainty’ has been considered sufficient.”

Id. at 155, 720 S.E.2d at 873 (citations omitted).

Our Supreme Court held in Young that expert medical testimony based on the

maxim “post hoc, ergo propter hoc” which means, “after this, therefore because of this”

is “not competent medical evidence of causation.” Young, 353 N.C. at 232, 538 S.E.2d

at 916.

Dr. Koman’s opinion relied upon the “post hoc, ergo propter hoc” fallacy in

making his conclusions. Dr. Koman testified as follows:

Q. Okay. So just to kind of clarify your opinion, are you
saying that, since she did not have symptoms before the
fall, and she has symptoms after the fall, therefore her - -
whatever is causing her symptoms was caused by the fall?

A. That’s medicine. It may or may not be law, but that’s

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TYSON, J., concurring in part, dissenting in part

medicine.

Q. So does that mean yes, that’s - -

A. That means yes.

....

Q. And so you found that the exacerbation of the [carpal
boss] was caused by the fall. So my question is going to be
the same as it was for the [sagittal] band. Is it your opinion
that, because she didn’t have - - well, I guess, how do you
get that the fall caused the carpal tunnel boss?

A. It’s the absence of history that refutes that, and that’s
all.

Q. What do you mean by absence of history?

A. That there was no other event that I know of.

Q. So back to that she didn’t have any issues before the
accident, she had issues after, therefore it was caused by
the accident?

A. Correct.

Q. Okay.

A. So you have to have evidence that something else
happened that you can give me, and then I can actually
answer whether it’s, more likely than not, caused by that.
In the absence of that, [post hoc, ergo proctor hoc] is the
reason.

Dr. Koman’s testimony clearly shows he solely relied on the “post hoc, ergo

propter hoc” fallacy in concluding Plaintiff’s carpal boss aggravation and sagittal band

rupture were causally related to her fall on 29 December 2011. Dr. Koman’s

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TYSON, J., concurring in part, dissenting in part

testimony is not competent evidence for Plaintiff to prove her carpal boss aggravation

and sagittal band rupture were causally related to her accepted Form 60 injury.

Young, 353 N.C. at 232-33, 538 S.E.2d at 916.

V. Conclusion

We all agree the Parsons presumption, as extended by Wilkes, cannot place or

shift the burden upon Defendants to rebut that Plaintiff’s new injuries were causally

related to the compensable injury listed and admitted by Defendants on the Form 60.

N.C. Gen. Stat. § 97-82(b)(2015), amended by 2017 N.C. Sess. Laws 2017-124.

To the extent the majority’s opinion purports to affirm the Commission’s

Opinion and Award, independently of the Parsons presumption and Wilkes, Plaintiff

was never required, and the Commission did not require, find, nor conclude Plaintiff

had met her burden, to prove the medical conditions, are causally related to her

original and admitted compensable injury. The majority’s decision to affirm, despite

the clear and acknowledged errors, is based upon a wholly unsupported alternative

basis, not stated in the Opinion and Award. See Ballenger, 320 N.C. at 158, 357 S.E.2d

at 685.

Dr. Koman’s testimony is premised on the incompetent “post hoc, ergo proctor

hoc” fallacy, and does not prove causation. Young, 353 N.C. at 232-33, 538 S.E.2d at

916. Testimony tending to show “an accident ‘could or might’ have caused an injury,

or ‘possibly’ caused it’” is not evidentiary support. Carr, 218 N.C. App. at 155, 720

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TYSON, J., concurring in part, dissenting in part

S.E.2d at 873.

Plaintiff bears the burden to prove causation. See Adams, 168 N.C. App. at

475, 608 S.E.2d at 361. The Opinion and Award is properly set aside and remanded

to the Commission for Plaintiff to prove her new or additional injuries are causally

related to her listed and accepted injuries on Form 60 by a preponderance of the

evidence. Defendants do not bear any burden to rebut or show the absence of

causation. 2017 N.C. Sess. Laws 2017-124, § 1. I respectfully dissent.

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