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KELLY v. DUKE UNIV.,

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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.


NO. COA07-874

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2008

ELSIE J. KELLY, Sister of
BETTY JEAN JEFFREYS, Deceased
Employee,
Plaintiff,

v. North Carolina
Industrial Commission
DUKE UNIVERSITY, Employer, I.C. No. 924879
(Self-Insured),
Defendant.

Appeal by defendant from an Opinion and Award filed 27 April
2007 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 16 January 2008.

Lennon & Camak, P.L.L.C., by George W. Lennon and Michael W.
Bertics, for plaintiff appellee.

Cranfill, Sumner & Hartzog, L.L.P., by Jonathan C. Anders and
Meredith L. Taylor, for defendant appellant
.

McCULLOUGH, Judge.

Defendant appeals an Opinion and Award of the North Carolina
Industrial Commission (“the Commission”), finding that Betty J.
Jeffreys (“decedent”) died as a proximate result of a compensable
occupational disease and awarding decedent’s sole surviving
sibling, Elsie J. Kelley (“plaintiff”), death benefits pursuant to
N.C. Gen. Stat. § 97-38 (2007).
The evidence before the Commission tended to show that
decedent began working as a medical secretary in the AnesthesiaDepartment at Duke University Medical Center (“defendant”) on 13
March 1996.
As part of decedent’s job responsibilities, decedent provided
secretarial and administrative support to an exceptionally
demanding doctor. This doctor criticized decedent in the presence
of others and was generally abusive towards her. The extreme stress
of decedent’s work environment exacerbated her pre-existing
diabetic condition and caused her overall health to deteriorate.
With the aggravation of her diabetic condition, in April 1997,
decedent began to experience a loss of most of the vision in her
right eye. In January 1998, decedent lost most of the vision in
her left eye. Despite her vision problems, decedent continued to
work for defendant until 1 April 1999, when she was placed on
disability retirement.
On 8 April 1999, decedent filed a Form 18, claiming that while
employed by defendant, decedent sustained an injury by accident or
occupational disease on 11 April 1997 as a result of mental stress
induced by her work environment.
On 28 December 2000, following a hearing of the matter, Deputy
Commissioner Jones of the North Carolina Industrial Commission
(“Deputy Commissioner Jones”) filed an Opinion and Award concluding
that decedent had contracted a compensable occupational disease in
which her stressful work environment aggravated and accelerated her
pre-existing diabetic condition, anxiety, depression, and carpal
tunnel syndrome. Deputy Commissioner Jones concluded that
decedent’s diabetes resulted in decedent’s loss of vision in botheyes and awarded decedent total disability compensation benefits
pursuant to N.C. Gen. Stat. § 97-29 (2007) beginning on 1 April
1999.
On 2 February 2001, Dr. Scott V. Joy began treating decedent’s
various conditions, including her insulin-dependent diabetes.
Decedent routinely documented her glucose levels in logbooks, which
Dr. Joy reviewed during their appointments. These glucose levels
began increasing significantly in 2003, and Dr. Joy considered
treating decedent with a continuous glucose monitor.
On 7 January 2004, decedent called Dr. Scott’s triage nurse,
stating that she had been sick for three weeks with chest
congestion and a cough. Based on this phone call, Dr. Joy
diagnosed decedent with an upper respiratory infection and
prescribed her an antibiotic. On 10 January 2004, decedent died.
Decedent did not leave behind any dependents and was survived only
by plaintiff, her sister.
Although no one performed an autopsy on decedent to determine
the cause of decedent’s death, Dr. Joy stated that it was a common
practice to complete a death certificate without performing an
autopsy. Dr. Joy opined that although it was possible that
decedent died due to complications from her respiratory infection,
the most likely cause of decedent’s death was a cardiovascular
event secondary to complications of diabetes. Defendant did not
offer any medical evidence to rebut Dr. Joy’s opinion.
The Commission found that decedent’s death was proximately
caused by complications from her compensable diabetic condition andawarded plaintiff death benefits pursuant to N.C. Gen. Stat. § 97-
38 and funeral expenses pursuant to N.C. Gen. Stat. § 97-40 (2007).
In addition, the Commission concluded that pursuant to N.C. Gen.
Stat. § 97-31 (2007), plaintiff’s estate had a vested right to
payment of 240 weeks of compensation for decedent’s industrial
blindness.
On appeal, defendant contends that the Commission erred by:
(1) failing to conclude that plaintiff’s claim for death benefits
was barred by the statute of limitations set forth in N.C. Gen.
Stat. § 97-38; (2) making findings of fact that are not supported
by competent evidence; and (3) allowing plaintiff to recover
damages under both N.C. Gen. Stat. § 97-29 (2007) and N.C. Gen.
Stat. § 97-31. In addition, plaintiff seeks an award of attorney’s
fees under N.C. Gen. Stat. § 97-88 (2007).

I. Statute of Limitations

Defendant first contends that the Commission erred by failing
to conclude that plaintiff’s claim was barred by the statute of
limitations set forth in N.C. Gen. Stat. § 97-38. Specifically,
defendant contends that because the parties stipulated throughout
the proceedings that decedent’s injury occurred on 11 April 1997,
the statute of limitations began to run as of that date and the
Commission was without authority to determine that decedent was not
disabled until 1 April 1999. Because we find that “date of injury”
and “date of disability” are terms of art under N.C. Gen. Stat. §
97-2 (2007), we disagree. Death benefits under the Workers’ Compensation Act are
governed by N.C. Gen. Stat. § 97-38, which provides, in pertinent
part:
If death results proximately from a
compensable injury or occupational disease and
[occurs] within six years thereafter, or
within two years of the final determination of
disability, whichever is later . . . the
employer shall pay . . . compensation[.]
Id.
We have held that in an occupational disease case, the six-
year statute of limitation provided by § 97-38 begins to run from
the date of the employee’s “disability,” as defined by N.C. Gen.
Stat. § 97-2(9), which is the “’incapacity because of injury to
earn the wages which the employee was receiving at the time of
injury in the same or any other employment.’” Joyner v. J.P.
Stevens and Co.
, 71 N.C. App. 625, 626, 322 S.E.2d 636, 637 (1984)
(citation omitted), disc. review denied, 313 N.C. 330, 327 S.E.2d
891 (1985). “Injury,” on the other hand, is defined by N.C. Gen.
Stat. § 97-2(6), which provides that the term “'[i]njury . . .’
shall mean only injury by accident arising out of and in the course
of the employment, and shall not include a disease in any form[.]”
Thus, it is clear that under § 97-2, “injury” and “disability” do
not have the same meanings.
Because the case before us is an occupational disease case as
opposed to an injury by accident case, we find that the date
relevant for purposes of the statute of limitations is the “date of
disability” rather than the “date of injury.” Here, the statute oflimitations began to run on the date of disability, 1 April 1999,
which the Commission found to be the date that decedent became
incapable of earning the wages that she was receiving at the time
of the injury. The fact that decedent began experiencing symptoms
of her occupational disease on 1 April 1997, the stipulated date of
injury, is irrelevant to our analysis, as decedent maintained her
original earning capacity until 1 April 1999. As such, the
Commission properly concluded plaintiff’s claim was not barred by
the statute of limitations set forth in N.C. Gen. Stat. § 97-38.
Accordingly, this assignment of error is overruled.

II. Cause of Decedent’s Death

Next, defendant contends that the Commission’s finding of fact
as to the cause of decedent’s death is not supported by competent
evidence of record. Defendant argues that Dr. Joy’s opinion was
insufficient, as it was based solely on statistical data and no
autopsy was performed to determine the actual cause of decedent’s
death. We disagree.
In reviewing a decision by the Commission, this Court’s role
"is limited to determining whether there is any competent evidence
to support the findings of fact, and whether the findings of fact
justify the conclusions of law." Cross v. Blue Cross/Blue Shield,
104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). The
Commission’s findings of fact are conclusive upon appeal if
supported by competent evidence, even if there is evidence to
support a contrary finding. Morrison v. Burlington Industries, 304
N.C. 1, 6, 282 S.E.2d 458, 463 (1981). On appeal, this Court maynot reweigh the evidence or assess credibility. Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh’g denied, 350
N.C. 108, 532 S.E.2d 522 (1999). Findings of fact may be set aside
on appeal only "when there is a complete lack of competent evidence
to support them[.]" Young v. Hickory Bus. Furn., 353 N.C. 227, 230,
538 S.E.2d 912, 914 (2000).
The plaintiff in a workers’ compensation case bears the burden
of initially proving "each and every element of compensability,"
including a causal relationship between the injury and his
employment. Whitfield v. Laboratory Corp. of Am., 158 N.C. App.
341, 350, 581 S.E.2d 778, 784 (2003). Plaintiff must prove
causation by a "greater weight" of the evidence or a
"preponderance" of the evidence. Phillips v. U.S. Air, Inc., 120
N.C. App. 538, 541-42, 463 S.E.2d 259, 261 (1995), aff’d, 343 N.C.
302, 469 S.E.2d 552 (1996).
In cases involving complicated medical questions, only an
expert can give competent opinion testimony as to the issue of
causation. Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d
389, 391 (1980). Where, as here, medical opinion testimony is
required, "medical certainty is not required, [but] an expert’s
‘speculation’ is insufficient to establish causation." Holley v.
ACTS
, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003). An
expert witness’s passing use of the word "speculate," however, does
not necessarily establish that the witness engaged in speculation.
Id.
Further, the degree of the doctor’s certainty goes to the
weight of his testimony. Martin v. Martin Bros. Grading, 158 N.C.App. 503, 507-08, 581 S.E.2d 85, 88, cert. denied, 357 N.C. 579,
589 S.E.2d 127 (2003). The decision concerning what weight to give
expert evidence is a duty for the Commission and not this Court.
See Adams, 349 N.C. at 681, 509 S.E.2d at 414.
In the instant case, the only medical deposition testimony
offered into evidence was the testimony of Dr. Joy taken on 29 June
2005. Dr. Joy’s deposition transcript on direct examination reads
in pertinent part:
Q. (By Mr. Lennon) Do you have an opinion
satisfactory to yourself and to a reasonable
degree of certainty as an expert in internal
medicine, and certified diabetes educator, and
as her treating physician, regarding whether
more likely than not, Betty Jean’s death
resulted proximally from her compensable
diabetic condition
?

A. Yes, I believe it’s complications of
diabetes.

* * * *

Q. All right. In your opinion is it
likely that the upper respiratory infection
caused her death?

A. I think there’s no evidence to
suggest that, and she was treated
appropriately for upper respiratory infection.
(Emphasis added.) Dr. Joy’s deposition transcript on cross-
examination reads in pertinent part:
Q. Okay. It’s pretty much speculation
[that decedent died from a cardiovascular
event related to diabetes], isn’t it?

A. I think based on the data and
knowing the complications that Betty Jean had,
cardiovascular events [related to diabetes] are the number one, but she did have an upperrespiratory infection that may have led to
some problems.
(Emphasis added.)
Thus, although Dr. Joy indicated that it was possible that
decedent died of complications from her upper respiratory
infection, Dr. Joy testified that it was “more likely than not”
that decedent’s diabetes caused her death. See Whitfield, 158 N.C.
App. at 351, 581 S.E.2d at 785 (“We acknowledge that the ‘mere
possibility of causation,’ as opposed to the ‘probability’ of
causation, is insufficient to support a finding of
compensability.”) (citation omitted). This opinion was based not
only on the temporal sequence of events, but also on statistical
information and Dr. Joy’s knowledge of the history of decedent’s
condition. We therefore conclude that there is competent evidence
in the record to support the Commission’s finding that decedent’s
death was proximately caused by her compensable occupational
disease. This assignment of error is overruled.

III. Compensation under N.C. Gen. Stat. § 97-31
Finally, defendant contends that the Commission erred in
awarding decedent’s estate a separate award of 240 weeks for loss
of vision under N.C. Gen. Stat. § 97-31 because decedent had
already been awarded total disability compensation under § 97-29.
We agree.
N.C. Gen. Stat. § 97-31 provides:
In cases included by the following
schedule the compensation in each case shall
be paid for disability during the healing
period and in addition the disability shall bedeemed to continue for the period specified,
and shall be in lieu of all other
compensation
, including disfigurement, to wit:

* * * *

(17) The loss of both hands, or both arms, or
both feet, or both legs, or both eyes, or
any two thereof, shall constitute total
and permanent disability, to be
compensated according to the provisions
of G.S. 97-29. The employee shall have a
vested right in a minimum amount of
compensation for the total number of
weeks of benefits provided under this
section for each member involved. When an
employee dies from any cause other than
the injury for which he is entitled to
compensation, payment of the minimum
amount of compensation shall be payable
as provided in G.S. 97-37.

(Emphasis added.)

Our Supreme Court has held that the “in lieu of” clause of
§ 97-31 was intended to “prevent[] double recovery without making
the schedule [provided by § 97-31] an exclusive remedy.” Whitley v.
Columbia Lumber Mfg. Co.
, 318 N.C. 89, 98, 348 S.E.2d 336, 341
(1986). Thus, “[w]here an employee can show both a disability
pursuant to G.S. §§ 97-29 or 97-30 and a specific physical
impairment pursuant to G.S. § 97-31, he may not collect benefits
pursuant to both schemes, but rather is entitled to select the
statutory compensation scheme which provides the more favorable
remedy.” Collins v. Speedway Motor Sports Corp., 165 N.C. App. 113,
119, 598 S.E.2d 185, 190 (2004). As a general rule, “stacking of
benefits covering the same injury for the same time period is
prohibited[.]” Gupton v. Builders Transport, 320 N.C. 38, 43, 357
S.E.2d 674, 678 (1987). Plaintiff argues that decedent never made an election to
receive benefits under § 97-29. We disagree.

(See footnote 1)


Here, the Commission
found as a fact that decedent suffered from a loss of vision in
both eyes and that she was compensated for that impairment by an
award of total disability compensation pursuant N.C. Gen. Stat.
§ 97-29, in the amount of $709.77 per week, beginning 1 April 1999.
She continued to receive these payments until the date of her death
in 2004. Because it is well settled that the “in lieu of” clause of
§ 97-31 is a bar to double recovery, decedent is not entitled to
recover once under § 97-29 and then again under § 97-31.
Therefore, the Commission erred in concluding that decedent’s
estate had a vested right in an additional 240 weeks of
compensation pursuant to § 97-31. Accordingly, we reverse the
Commission’s award of compensation in the amount of $473.20 per
week for 240 weeks.

IV. Attorney’s Fees

Now, we turn to plaintiff’s request for an award of attorney’s
fees pursuant to N.C. Gen. Stat. § 97-88. Section 97-88 provides
that the Commission or a reviewing court may award costs to an
injured employee if the insurer has appealed and, on appeal, the
Commission or reviewing court orders the insurer to make, or
continue to make, payments to the employee. Flores v. Stacy Penny
Masonry Co.
, 134 N.C. App. 452, 459, 518 S.E.2d 200, 205 (1999).
We conclude that the requirements of § 97-88 are satisfied, and we
exercise our discretion to grant plaintiff’s request. We remand to
the Commission to determine the amount of reasonable attorney’s
fees incurred by plaintiff on this appeal.
Accordingly, the Opinion and Award of the Commission is
affirmed in part and reversed in part.
Affirmed in part; reversed in part.
Judges ELMORE and ARROWOOD concur.


Footnote: 1


As an aside, however, we note that even though decedent
elected an award of benefits under § 97-29, if decedent had died
prior to receiving a full 240 weeks of such payments, plaintiff
would then be entitled to recover the more generous vested benefits
available pursuant to § 97-31, less the amount she had already
received. See Gupton, 320 N.C. at 43, 357 S.E.2d at 678
(“[B]ecause the prevention of double recovery, not exclusivity of
remedy, is patently the intent of the ‘in lieu of all other
compensation’ clause in N.C.G.S. § 97-31, a plaintiff entitled to
select a remedy under either N.C.G.S. § 97-31 or N.C.G.S. § 97-30
may receive benefits under the provisions offering the more
generous benefits, less the amount he or she has already
received.”).

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