Workers’ Compensation – Issue Preservation – Disability Insurance – Back Injury – Causation

While defendants’ Form 44 appeal to the Industrial Commission did not specifically claim entitlement to a credit for the accident and sickness (A&S) disability plan funded by the defendant-employer, defendants did challenge the deputy commissioner’s award, which failed to address a stipulated exhibit including the A&S payment information. Furthermore, even if defendants failed to preserve the issue of a credit for A&S payments, the Commission has the duty to decide all matters in controversy between the parties.

We affirm the Commission’s decision to grant defendants a credit for the A&S payments, as well as its award of benefits for plaintiff’s back injury.

Although Rule 701 of the Workers’ Compensation Rules of the North Carolina Industrial Commission contemplates that a Form 44 “shall state the grounds for . . . review . . . . with particularity” and that “[g]rounds for review not set forth in the Form 44 . . . are deemed abandoned,” these rules do not limit the power of the Commission to review or modify the findings of fact found by a deputy commissioner. Accordingly, the Commission had jurisdiction to amend the deputy commissioner’s opinion and award by making findings on the A&S credit issue and adjudicating the matter even if it were not adequately presented.

Defendants argue that plaintiff’s doctors committed the logical fallacy of post hoc, ergo propter hoc – that is, confusing sequence with consequence – in opining that plaintiff’s back injury was caused by a tire-throwing incident at work on April 23, 2014. However, as defendants concede, neurosurgeon Dr. Larry Carson explicitly rejected the suggestion that his expert opinion on causation was based only on temporality; instead, he reiterated that it was grounded in his consideration of plaintiff’s medical history, the reported incident, his physical exam, and the diagnostic evidence. Nor did physiatrist Dr. Paul Singh testify that his causation opinion was based only on temporality. Rather, both doctors said their opinions were based on other diagnostic evidence.

Additionally, plaintiff’s lower back injuries can be, and were, diagnostically identifiable. Further, the exacerbation of plaintiff’s pre-existing lower back condition could be precisely identified based on diagnostic evidence, her medical history, her reported pain and symptoms, and the reported movements she made while throwing tires during the April 2014 incident, implicating the exact mechanism by which that incident may have exacerbated her pre-existing lower back condition.

Competent evidence supported the Commission’s findings of fact, which in turn supported its conclusion that plaintiff suffered a compensable injury on April 23, 2014.

Affirmed.

Haulcy v. Goodyear Tire & Rubber Co. (Lawyers Weekly No. 011-185-18, 19 pp.) (Rick Elmore, J.) Appealed from the Industrial Commission. Kathleen Sumner and David Stewart for plaintiff; M. Duane Jones and Matthew Ledwith for defendants. N.C. App.