By: Matthew P. Blake, Attorney at Law
In Cunningham v. Goodyear, (10/6/2020) the majority of a split Court of Appeals panel made jurisdictional findings that treatment provided by the employer in 2017 was related to a 2014 injury. This finding extended the two-year period under N.C.G.S. § 97-24(a)(ii) and allowed the employee’s otherwise untimely claim.
The employer provided its employees with medical treatment at an on-site dispensary, making treatment available for both work-related and non-occupational conditions. The employee experienced a series of back injuries at work in 2011, 2014, and 2017. She settled her 2011 claim. She stopped treatment in 2015 after her 2014 injury. She alleged a new injury in 2017 after care for her 2014 injury was denied as untimely. She appealed the Commission’s denial of her claim.
The Cunningham majority held that N.C.G.S. § 97-24 implicitly required a causal relationship between an alleged work-related injury and treatment under subsection (a)(ii). It referenced three physicians by name but recited no testimony from them that clearly related the 2017 treatment to the 2014 injury. Instead, the Court supports its jurisdictional finding based on “all the evidence in the record” and mostly relies on statements by a physical therapist and nontestimonial evidence from a podiatrist. The majority reversed the denial and remanded the claim, and the dissent asserted the majority misapplied the standard of review, which supported affirmation of the Commission’s Opinion and Award.
With multiple back injuries, our Supreme Court’s holding in Click v. Pilot Freight, 300 NC 614, 265 S.E.2d 389 (1980) suggests a finding on causation must be supported by expert opinion testimony. Cunningham is a complicated back injury claim, but it is not clear that expert opinion testimony supports the majority’s jurisdictional findings. In a case relying on diagnostic imagery of the spine, testimony from a physical therapist and the nontestimonial opinion of a podiatrist hardly seem consistent with our Supreme Court’s holding in Click.
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