Home / Courts / N.C. Court of Appeals Unpublished / Workers’ Compensation – Back Injury – Pre-existing Condition – Aggravation Claim – Insufficient Evidence

Workers’ Compensation – Back Injury – Pre-existing Condition – Aggravation Claim – Insufficient Evidence

Holding: Although plaintiff’s neurosurgeon opined that a workplace incident had aggravated plaintiff’s pre-existing back condition, since the only basis for the neurosurgeon’s opinion was plaintiff’s account of the injury and his resulting pain, the neurosurgeon did not express an independent, objective medical opinion that plaintiff’s alleged injury likely caused or contributed to plaintiff’s back condition.

We affirm the Industrial Commission’s denial of benefits.

Plaintiff argues that co-worker Greg Branch’s testimony that plaintiff sustained a work-related injury in the course of his job duties on May 16, 2013, was “uncontroverted and it was clearly error [for the Commission] to completely disregard this competent evidence.” However, Branch acknowledged that he did not see the alleged injury occur. Although he heard a pop or similar sound and then plaintiff’s expression of pain, Branch was watching the aisle as plaintiff attempted to get an item off a top shelf. Branch then testified to plaintiff’s apparent difficulties on May 16 and 17, 2013, but Branch left his job with defendant shortly thereafter and had no further in-person interaction with plaintiff.

The evidence thus showed that Branch, who was not a medical expert or treating physician, did not witness plaintiff’s alleged injury firsthand and had little contact with plaintiff after the incident. The Commission was free to assign less weight to Branch’s testimony in determining whether plaintiff in fact suffered a work-related injury as alleged.

Furthermore, an unchallenged finding of fact suggests the Commission did consider plaintiff’s account of the events of May 16, 2013. The Commission was entitled to consider the testimony but decide to afford it little weight.

Plaintiff also challenges the Commission’s treatment of the testimony of neurosurgeon Dr. Scott McCloskey. Nevertheless, the Commission explicitly acknowledged Dr. McCloskey’s testimony that plaintiff’s alleged 2013 workplace incident “aggravated his pre-existing back condition,” but ultimately gave greater weight to other testimony by Dr. McCloskey indicating there was no medically apparent change in plaintiff’s back condition between the last time he saw plaintiff – in 2010 – and 2013.

The Commission concluded that plaintiff failed to prove that he sustained a compensable specific traumatic incident of the work assigned on May 16, 2013.

The unchallenged findings of fact showed that, inter alia, (1) plaintiff “had a significant history of back problems prior to 16 May 2013,” including a decades-old high school wrestling injury and a 2010 work-related injury; (2) prior to the alleged May 16, 2013, incident, plaintiff “was taking a significant amount of opioid medication on a daily basis for his chronic back condition”; (3) a 2010 MRI of plaintiff’s lumbar spine showed he suffered from degenerative, grade II spondylolisthesis, the same condition doctors observed on an MRI conducted after the alleged 2013 workplace incident; (4) plaintiff considered having back surgery in 2010; and (5) plaintiff reported to a neurosurgeon in 2010 that he had experienced low back pain “for years and years” and that the 2010 work-related injury “aggravated his symptoms.” Further, plaintiff’s credibility as a witness – which was for the Commission to determine – was key because the only direct evidence of the alleged specific traumatic event was plaintiff’s own account. In finding of fact seven, which plaintiff also has not challenged, the Commission found that Physician Assistant Vaassen expressed concerns in late May 2013 that plaintiff was exaggerating his symptoms and “not [being] consistent with the severity of [his] complaints.”

We overrule plaintiff’s argument that the Commission erred in concluding that plaintiff did not prove he suffered a specific traumatic incident at work on May 16, 2013.

Finally, the Commission did not err in concluding that the expert medical testimony supported, at best, a “mere possibility of causation.”

Dr. McCloskey did not examine plaintiff until several weeks after the alleged workplace incident. The only basis for Dr. McCloskey’s opinion as to causation was plaintiff’s account of the May 16, 2013, injury and his resulting pain. Dr. McCloskey did not express an independent, objective medical opinion that plaintiff’s alleged injury likely caused or contributed to plaintiff’s back condition.

The testimony of Dr. McCloskey and Dr. Christopher Brown explaining that a new traumatic event “can” exacerbate a patient’s pre-existing back condition even if no change is clinically detectable did not indicate a reasonable scientific probability that plaintiff’s stated cause produced plaintiff’s stated result.


Byrd v. Lowe’s Home Centers, Inc. (Lawyers Weekly No. 012-028-18, 27 pp.) (Linda McGee, C.J.) Appealed from the Industrial Commission; M. Alan LeCroy for plaintiff; Matthew Covington and Walter Dennis for defendants. N.C. App. Unpub.


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