x43164.doc

I.C. NO. X43164, CATHY A. OWENBY, Employee, Plaintiff v. INGLES MARKETS, INC., Employer, SELF-INSURED, Defendant.  OPINION AND AWARD by PHILIP A. BADDOUR III, Deputy Commissioner, N.C. Industrial Commission.  Filed 6 December 2012.



This case was heard before the undersigned on January 20, 2012 in Asheville, North Carolina.  Following the hearing, the record remained open to allow the parties to submit additional evidence by post-hearing depositions.  Upon receipt of the depositions of Dr. Tally H. Eddings, Dr. David W. Biggers, and Dr. Stephen M. David, and contentions from both parties, the record in this matter was duly closed on July 6, 2012.  This matter is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Gary A. Dodd, Attorney at Law, Asheville, North Carolina; Gary A. Dodd, appearing.

	Defendant:	Northup McConnell & Sizemore, Attorneys, Asheville, North Carolina; Charles E. McGee, appearing.

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The undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
All parties are properly before the Industrial Commission.
An employee-employer relationship existed between the parties on April 25, 2011.
Plaintiff suffered a compensable injury by accident arising out of and in the course of her employment with Defendant on April 25, 2011.  Pursuant to a Form 60 filed on or about May 17, 2011, Defendant accepted compensability of a bilateral knee injury arising out of said accident. Pursuant to a Form 61 filed on or about July 5, 2011, Defendant has denied compensability for an alleged back injury claimed by Plaintiff.
There is no question as to the misjoinder or nonjoinder of any parties, and the Industrial Commission has jurisdiction over this claim.
Defendant is self-insured.
Plaintiff's average weekly wage is $400.00.
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EXHIBITS
The following exhibits were admitted into evidence:
(a)	Stipulated Exhibit 1:  Pre-Trial Agreement
(b)	Stipulated Exhibit 2:  Indexed Set of Paginated Exhibits
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ISSUES
Whether Plaintiff suffered compensable injuries to her low back, neck, and hands, as a result of her accident at work on April 25, 2011?
To what additional disability compensation, if any, is Plaintiff entitled?
To what additional medical treatment, if any, is Plaintiff entitled?
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	Based upon the competent evidence of record, the undersigned makes the following:
FINDINGS OF FACT
Plaintiff was born on December 12, 1952 and is fifty-nine years old.
Plaintiff began working on April 23, 2011 in the deli department of Defendant grocery store.  Two days later, on April 25, 2011, Plaintiff sustained an admittedly compensable injury by accident to her bilateral knees when she slipped and fell on a slick spot on the floor in the deli department.
After Plaintiff's fall, Ingles Assistant Store Manager Frankie Spears completed a Workers' Compensation Reporting Form.  Mr. Spears asked Plaintiff questions from the Form and completed the Form based upon Plaintiff's responses.  The Form states Plaintiff injured her "knee" and "left side of face" during the fall.  There is no indication on the Form that Plaintiff reported her back, neck, or hands were injured in the fall.
Ingles Store Manager Greg Jackson spoke to Plaintiff after her injury.  Plaintiff informed Mr. Jackson she was going to the doctor for evaluation of her knees.  Plaintiff made no comment about an injury to her low back, neck or hands.
On April 25, 2011, Plaintiff presented to Park Ridge Hospital and was examined by Dr. David W. Biggers.  The intake form completed by Plaintiff and her sister contains no mention of any injured or painful body parts other than Plaintiff's face and knees.  Additionally, Dr. Biggers' medical note only indicates that Plaintiff complained of an injury to her face and lower extremity due to a fall at work.  Following an examination, Plaintiff was diagnosed with contusions to her left leg, right knee, and face.
Dr. Biggers testified that Plaintiff did not report a back injury to him on April 25, 2011, nor did she report any injuries other than injuries to her bilateral knees and face.  Dr. Biggers confirmed that he did "place his hands" on Plaintiff during his examination on April 25, 2011, and did examine her back as part of a full head-to-toe examination.
On May 2, 2011, Plaintiff began treating with Dr. Tally H. Eddings at Blue Ridge Bone & Joint.  At the initial visit, Plaintiff and her sister completed Comprehensive History Questionnaire which makes no reference to Plaintiff's low back, neck, or hands, and lists only "hurting of knees, left eye" as a "chief complaint," notes only "soreness [and] pain, cramps under kneecaps" as "symptoms [plaintiff was] experiencing," and marks only the knees and right eye as areas where she was having pain.  Following an examination, Dr. Eddings diagnosed Plaintiff with bilateral knee contusions and instructed her to remain out of work.  Plaintiff thereafter continued to treat with Dr. Eddings.
Dr. Eddings testified that he examined Plaintiff's lower extremities and placed his hands on her on May 2, 2011, May 12, 2011, and May 26, 2011.  Dr. Eddings further testified that he did not recall Plaintiff reporting an injury to her back prior to her fourth visit on June 14, 2011, and that if she had made a back complaint, he would have examined her back.
On June 14, 2011, Plaintiff reported to Dr. Eddings for the first time that she was experiencing low back pain, more than one and one-half months after her April 25, 2011 fall.  Following an examination, Dr. Eddings referred Plaintiff to a spine specialist.  Plaintiff thereafter began treating with Dr. Stephen M. David at Blue Ridge Bone & Joint.  Dr. David recommended physical therapy.
Despite claiming that she also injured her neck and hands in the April 25, 2011 fall, Plaintiff's medical records do not document any neck complaint until August 24, 2011, four months after the fall.  The first complaint of hand pain is documented on November 3, 2011, more than six months after the fall.
On October 26, 2011, Plaintiff underwent a Functional Capacity Evaluation ("FCE") that showed variable levels of effort and questionable reliability, and led the evaluator to opine that Plaintiff's return to work status could not be determined but Plaintiff could at least function at the sedentary physical demand level.
Dr. Eddings reviewed the results of Plaintiff's FCE on November 1, 2011, and following an examination, placed Plaintiff at maximum medical improvement, assigned a 0% permanent partial impairment rating to her knees, and released her to return to work without restrictions.
Defendant filed a Form 24 Application on November 3, 2011 based upon Plaintiff's release to return to work without restrictions.  On December 15, 2011, Special Deputy Commissioner Kyla K. Block entered an Order approving Defendant's Form 24 Application and authorizing the termination of temporary total disability compensation effective November 3, 2011.
Plaintiff relies upon the testimony of Dr. David to establish that her accident at work caused or aggravated her low back and neck conditions.  However, Dr. David only testified that Plaintiff's pre-existing arthritic spinal changes "could have been exacerbated by . . . a fall onto her back and striking her head."  On cross-examination, Dr. David testified he was not aware of the extent of Plaintiff's prior treatment for pre-existing spinal conditions, and he confirmed that Plaintiff's presentation and symptoms in 2011 were similar to her presentation in 2004, when she sought both lumbar and cervical spine treatment from another physician in his office.  Plaintiff's diagnostic film findings did not change during this time period.
Neither Dr. David, nor any other physician, offered testimony to establish that Plaintiff suffered an injury to her hands as a result of her accident at work on April 25, 2011.
Plaintiff has offered no evidence of an attempt to procure employment since April 25, 2011, and the medical evidence of record establishes Plaintiff retains no disability due to her admittedly compensable bilateral knee injuries.
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	The foregoing findings of fact engender the following:
CONCLUSIONS OF LAW
For an injury to be compensable, it must be an injury by accident arising out of and in the course of the employment.  N.C. Gen. Stat. §97-2(6).  "Where 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."  Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980).  "Could" or "might" expert testimony is insufficient to support a causal connection when there is additional evidence or testimony showing the expert's opinion to be a guess or mere speculation.  Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000).  In the present case, the testimony of Dr. David that Plaintiff's pre-existing arthritic spinal changes "could have been exacerbated" by her accident at work fails to establish a causal relationship beyond speculation.  Additionally, no expert medical testimony was offered to establish that Plaintiff suffered an injury to her hands as a result of her accident at work on April 25, 2011.  Accordingly, Plaintiff has failed to establish the compensability of her alleged low back, neck, and hand conditions.
As Plaintiff has been released to full duty work for her admittedly compensable bilateral knee condition, Plaintiff is not entitled to additional temporary total disability compensation.  N.C. Gen. Stat. §97-29.
Plaintiff is entitled to payment of medical expenses incurred or to be incurred as a result of her admittedly compensable bilateral knee condition as may reasonably be required to effect a cure, provide relief, or lessen the period of disability.  N.C. Gen. Stat. §97-25.
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Based upon the foregoing stipulations, findings of fact and conclusions of law, the undersigned enters the following:
O R D E R
1.  Plaintiff's claim for workers' compensation benefits related to her low back, neck, and hand conditions is DENIED.
Each side shall bear its own costs.
IT IS THEREFORE ORDERED that this matter shall be REMOVED from the docket.



			S/			
PHILIP A. BADDOUR III
DEPUTY COMMISSIONER

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