Adams v. Metals USA2/15/2005
d by competent evidence, the Commission's findings are binding on appeal even when there exists evidence to support findings to the contrary. Allen v. Roberts Elec. Contr'rs, 143 N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001). The Commission's conclusions of law are reviewed de novo. Allen, 143 N.C. App. at 63, 546 S.E.2d at 139.
I.
First, defendants argue that the decision of the Full Commission should be reversed because there did not exist any competent evidence to support the conclusion that plaintiff's injury was caused by his employment. Specifically, defendants seek to undermine plaintiff's evidence by: (1) arguing that the Dr. Kritzer did not testify to a reasonable degree of medical certainty, and (2) suggesting that the evidence merely establishes that plaintiff's condition is possibly related to his work injuries and is speculative at best.
The claimant 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. Lab. Corp. of Amer., 158 N.C. App. 341,350, 581 S.E.2d 778, 784 (2003). "The quantum and quality of the evidence required to establish prima facie the causal relationship will of course vary with the complexity of the injury itself." Hodgin v. Hodgin, 159 N.C. App. 635, 639, 583 S.E.2d 362, 365 (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, 463 S.E.2d 259, 261 (1995). Our Supreme Court has also held that in cases involving complicated medical questions, those questions must be addressed by an expert and only an expert can give competent opinion testimony as to the issue of causation. Click v. Pilot 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, 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). The opinion of a physician is not rendered incompetent merely because it is based wholly or in part on statements made to him by the patient in the course of treatment or examination. Penland v. Bird Coal Co., Inc., 246 N.C. 26, 31, 97 S.E.2d 432, 436 (1957). It is permissible, but not compulsory for a fact-finder to infer causation where a medical expert offers a qualified opinion as to causation, along with an accepted medical explanation as to how such a condition occurs, and where there is additional evidence tending to establish a causal nexus. Johnson v. Piggly Wiggly of Pinetops, Inc., 156 N.C. App. 42, 52, 575 S.E.2d 797, 804 (2003).
"[The Supreme] Court has allowed 'could' or 'might' expert testimony as probative and competent evidence to prove causation." Young v. Hickory Bus. Furniture, 353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000). However, "'could' or 'might' expert testimony insufficient to support a causal connection when there is additional evidence or testimony showing the expert's opinion to be a guess or mere speculation." Id. (citing Maharias v. Weathers Bros. Moving & Storage Co., 257 N.C. 767, 767-68, 127 S.E.2d 548, 549 (1962)). An expert witness' testimony is insufficient to establish causation where the expert witness is unable to express an opinion to "any degree of medical certainty" as to the cause of an illness. Id. Likewise, where an expert witness expressly bases his opinion as to causation of a complex medical condition solely on the maxim post hoc ergo propter hoc (after it, therefore because of it), the witness provides insufficient evidence of causation. Id. at 232-233; 538 S.E.2
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