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NO. COA10-29 NORTH CAROLINA COURT OF APPEALS Filed: 18 January 2011 DAVID GROSS, Employee, Plaintiff, v. GENE BENNETT CO., Employer, AMERICAN HOME ASSURANCE COMPANY, Carrier, Defendants. Appeal by defendants from an Opinion and Award entered 6 October 2009 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 August 2010. Anthony D. Griffin, for plaintiff-appellee. Cranfill Sumner & Hartzog LLP, by James B. Black IV, for defendant-appellants. STEELMAN, Judge. Where there was no previous finding of compensability by the Industrial Commission, no previous admission of compensability by the employer, and no agreement as to compensability between the parties, the Parsons presumption is not applicable. Where Dr. North Carolina Industrial Commission I.C. No. 741638

Allen's opinion as to medical causation did not rise above the level of mere possibility, the Industrial Commission's findings of fact as to medical causation were not supported by competent evidence.

-2I. Factual and Procedural History

David Gross ("plaintiff") was working for Gene Bennett Co. ("Bennett") as a steel fabricator/welder/machinist on 5 March 2007, when he fell through an eight-foot ceiling, falling approximately ten to twelve feet before hitting the concrete floor. was treated at Southeastern Regional Medical Center Plaintiff for his

injuries, and was subsequently treated by Dr. Thomas Florian at Southeastern Occupational Healthworks. Dr. Florian released

plaintiff to return to full duty on 1 May 2007.

Defendants

accepted plaintiff's workers' compensation claim on a medicals-only basis. Plaintiff sought further treatment from Dr. David R. Allen, an orthopedic surgeon, on 30 August 2007 and 25 March 2008. During

the course of his treatment, two MRIs were performed on plaintiff's lower back. The first MRI, on 17 August 2007, showed degenerative

disc disease at L3-4 and L4-5, with a mild disc bulge at L4-5 and L5-S1. A second MRI, on 9 May 2008, showed a disc extrusion or

herniation at L4-5. In an Opinion and Award entered on 6 October 2009, the North Carolina Industrial Commission concluded that plaintiff's then "current low back condition was a compensable progression from the injuries he sustained in his March 5, 2007 fall." The Full

Commission awarded plaintiff temporary total disability from 6 March 2007 continuing until plaintiff was able to return to work, or until further order of the Commission. Defendants were also

ordered to pay for any medical treatment plaintiff received for his low back condition since his release from Dr. Florian's care on 1

-3May 2007, and to pay for any future treatment that may be

necessary. Bennett and American Home Assurance Company (collectively "defendants") appealed on 3 November 2009. II. Defendants contend Parsons Presumption that the Parsons presumption is not

applicable to the facts of this case.

We agree.

The Commission's first conclusion of law states: Based upon the greater weight of the evidence and medical testimony, particularly assigning greater weight to Dr. Allen's testimony, the Full Commission concludes that Plaintiff's current low back condition is a compensable progression from the injuries he sustained in his March 5, 2007 fall. See Perez v. American Airlines, 174 N.C. App. 128 (2005). In Parsons v. Pantry Inc., this Court held that where the

Commission has made a determination that a worker has suffered a compensable injury, there is a presumption that additional medical treatment is causally related to the original injury. App. 540, 542, 485 S.E.2d 867, 869 (1997). 126 N.C.

In this situation, the

burden of proof is shifted from the plaintiff to the defendant "to prove the original finding of compensable injury is unrelated to her present discomfort." Id. In Perez v. American Airlines/AMR

Corp., we held that this presumption was applicable where the employer had filed a Form 60, admitting compensability of the injury. 174 N.C. App. 128, 136, 620 S.E.2d 288, 293 (2005). Perez

also held that a presumption of continuing disability was created by a Form 21 agreement, citing to Kisiah v. W.R. Kisiah Plumbing,

-4124 N.C. App. 72, 77, 476 S.E.2d 434, 436 (1996), disc. review denied, 345 N.C. 343, 483 S.E.2d 169 (1997). Id.

In each of these situations there was a determination of compensability of the original injury, either by the Commission (Parsons), by admission of the employer (Perez), or by agreement of the parties (Kisiah). The presumption arose because of the prior

determination of compensability. In the instant case, there was no prior determination of the compensability of plaintiff's injuries, either by the Commission, the admission of the employer, or by agreement of the parties. In

this case, Industrial Commission Forms 18, 19, 22, 33 and 33R were filed with the Commission. The parties stipulated that

"[d]efendants accepted this claim on a medicals-only basis." There was no stipulation that plaintiff suffered a compensable injury. We hold that in the absence of an admission of compensability of an injury by the employer or an agreement between the parties, the Parsons presumption cannot arise at the initial hearing on compensability before the Commission. "In a workers' compensation

claim, the employee has the [initial] burden of proving that his claim is compensable." Holley v. Acts, Inc., 357 N.C. 228, 231,

581 S.E.2d 750, 752 (2003) (citations and internal quotation marks omitted). Defendants basis. accepted plaintiff's claim on a medicals-only

It has long been the law of this State that acceptance of

a claim on a medicals-only basis "cannot in any sense be deemed an admission of liability." Biddix v. Rex Mills, 237 N.C. 660, 664,

-575 S.E.2d 777, 781 (1953); cited with approval in Knight v. Cannon Mills Co., 82 N.C. App. 453, 467, 347 S.E.2d 832, 841 (1986) (citations omitted), disc. review denied, 318 N.C. 507, 349 S.E.2d 861 (1986); construed in Gore v. Myrtle/Mueller, 362 N.C. 27, 653 S.E.2d 400 (2007) (addressing whether an employer was estopped from asserting that plaintiff's claim was time barred where employer made specific assurances to the injured employee). We hold that the Commission erred in applying the Parsons presumption in this case. III. Medical Causation

Defendants next contend that the Industrial Commission erred in holding that the disc herniation at L4-5 was caused by the 5 March 2007 work accident. A. We agree.

Requirement of Expert Medical Testimony to Show Medical Causation In cases involving complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury. However, when such expert opinion testimony is based merely upon speculation and conjecture, . . . it is not sufficiently reliable to qualify as competent evidence on issues of medical causation. The evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation.

Holley, 357 N.C. at 232, 581 S.E.2d at 753 (internal alternation, citations, and quotation marks omitted); See also Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000).

"Although expert testimony as to the possible cause of a medical

-6condition is admissible if helpful to the [trier of fact], it is insufficient to prove causation, particularly when there is

additional evidence or testimony showing the expert's opinion to be a guess or mere speculation." Holley, 357 N.C. at 233, 581 S.E.2d

at 753 (internal citations and quotation marks omitted). B. Findings and Conclusions of the Industrial Commission 7. Plaintiff presented to Matthew Davis, PAC on March 6, 2007. Plaintiff described the fall the day before and reported that he had a history of prior back injury in 1997. Upon examination of his low back, Plaintiff's range of motion was limited due to pain, and Mr. Davis noted positive Waddell's signs and positive bilateral straight leg raises. Mr. Davis diagnosed multiple contusions and restricted Plaintiff to no lifting; no repetitive bending; no pushing or pulling; no squatting, kneeling, or crawling; and no climbing.

. . . . 18. Based on [Dr. Florian's] review of the April 17, 2007 MRI film vis-

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