North Carolina Lawyers Weekly
Gross v. Gene Bennett Co. (Lawyers Weekly No. 11-07-0065, 12 pp.) (Sanford A. Steelman Jr., J.) Appealed from the Industrial Commission. N.C. App. Click here for the full text of the opinion.
Holding: In a case where employer had agreed to pay a claim on a medicals-only basis and where there was no previous finding or admission of compensability and no agreement as to compensability between the parties, the Parsons presumption does not apply.
Background
Plaintiff was working for defendant in 2007 when he fell through a ceiling, falling approximately 10-12 feet before hitting a concrete floor. He was treated and released to return to full duty several weeks later.
Defendant accepted plaintiff’s workers’ compensation claim on a medicals-only basis. Plaintiff later sought further treatment, and two MRI’s showed degenerative disc disease.
The Industrial Commission found that the plaintiff’s low back condition was a compensable progression from the injuries he sustained in the fall and awarded him temporary total disability from March 6, 2007, until he was able to return to work, as well as payment for medical treatment for his low-back condition.
Defendants appealed, contending that the Parsons presumption does not apply in this case. We agree.
Discussion
Pursuant to the Parsons presumption, where the commission has made a determination that a worker suffered a compensable injury, there is a presumption that additional medical treatment is causally related to the original injury. The burden of proof then shifts to the defendant to prove the original finding of compensable injury is unrelated to the present problem.
In this case, there was no prior determination of the compensability of the plaintiff’s injuries either by the commission, the admission of the employer or agreement of the parties; therefore, the Parsons presumption cannot arise at the initial hearing on compensability before the commission.
Defendant accepted the claim on a medicals-only basis, and it is long established that the acceptance of a medicals-only claim is not an admission of liability.
Defendants also contend that the commission erred by finding that the disc herniation at L4-5 was caused by the March 2007 work accident. We agree.
Expert testimony must be based upon more than speculation and conjecture. The commission assigned greater credibility to the plaintiff’s witness, but defendants argue that a review of testimony shows that the plaintiff had reported a prior back injury in 1997.
The plaintiff’s expert opinion does not rise above the level of possibility or speculation. The evidence does not support the findings of fact, which do not support the conclusions of law.
Because defendants do not challenge the medical causation of injuries between March 5, 2007, and May 1, 2007, we affirm the rulings as they pertain to that time.
Affirmed in part, reversed and remanded in part.
