Kyles v. Goodyear Tire & Rubber Co. (Lawyers Weekly No. 012-173-17, 25 pp.) (John Tyson, J.) Appealed from the Industrial Commission. N.C. App. Unpub.
Holding: Even though driving a truck on wet floors had become part of plaintiff’s job, there was evidence to support the Industrial Commission’s finding that it had not become part of plaintiff’s job for the steering wheel to jerk when the truck’s tires slid on the wet floor.
The Industrial Commission’s award of benefits is affirmed in part and remanded.
Injury by Accident
Competent and undisputed evidence supports the Commission’s findings of fact that “[w]hen [plaintiff’s] steering wheel jerked due to his truck slipping on a wet floor, this incident interrupted his usual work routine and thereby introduced unusual conditions likely to result in unexpected consequences.“
Even though plaintiff testified the steering wheel on his truck had jerked as a result of hitting wet spots on the floor in the past, the record evidence supports the conclusion that it was not so common for the steering wheel to jerk as to become part of plaintiff’s usual work routine. The Commission’s findings of fact supports its conclusion of law that plaintiff sustained a compensable injury by accident.
However, the Commission erred in failing to specify what plaintiff’s injury was, finding only that it was “left shoulder pain.” The medical condition giving rise to plaintiff’s left shoulder “pop” and pain is a critical fact upon which his right to compensation benefits depends.
We remand this matter to the Commission for further findings of fact concerning the actual injury or medical condition, which resulted in or from plaintiff’s left shoulder pain arising from his May 23, 2014, workplace injury by accident.
Contrary to plaintiff’s argument, undisputed findings of fact demonstrate the Commission considered and weighed the opinion testimony of plaintiff’s treating physician, Dr. Barnes, regarding a causal connection between the May 23, 2014, injury and the ongoing shoulder pain and bursitis Dr. Barnes diagnosed. We affirm the Commission’s conclusion that plaintiff failed to establish a causal connection between his May 23, 2014, incident at work and his later diagnosis of bursitis in his left shoulder.
Dr. Barnes’ opinion – that the May 23, 2014, injury sustained by plaintiff was the inciting event which caused plaintiff’s ongoing shoulder pain – is solely premised on the post hoc, ergo propter hoc fallacy. Dr. Barnes’ testimony shows he based his opinion of the May 23, 2014, incident being the inciting event of plaintiff’s ongoing shoulder pain upon plaintiff telling him he did not have shoulder pain before the incident, but did have shoulder pain after the incident.
The Commission correctly concluded Dr. Barnes’ testimony about the May 23, 2014, being the “inciting event” of plaintiff’s continuing shoulder pain was not competent evidence.
Where company physician Dr. Perez’s medical notes were part of the stipulated medical records, the Commission erred when it declined to consider them simply because Dr. Perez had not been deposed. On remand, the Commission should consider all of the stipulated and competent medical records of Dr. Perez, including the June 2, 2014, office note. After giving due consideration, the Commission’s role is to choose what weight, if any, to give to these records.
Affirmed in part and remanded.