McGee v. Colonial Life & Accident Insurance

WELLS, Judge. The rules as to summary judgment have been previously and adequately established and explained by our appellate courts and need not be repeated here. See Moore v. Fielderest Mills, Inc., 296 N.C. 467, 469-70, 251 S.E. 2d 419, 421-22 (1979). We hold that the forecast of evidence presented by the materials before the trial court discloses a triable issue of fact and that summary judgment was improvidently entered. The dispositive issue in this appeal is whether the medical evidence forecast by defendant in the affidavit of Dr. Callison is conclusive as to the direct, independent and exclusive cause of plaintiff’s disability, or, stated in the alternative, whether plaintiff’s lay testimony is competent to establish such causation. Relying on the opinion of our Supreme Court in Gillikin v. Burbage, 263 N.C. 317, 139 S.E. 2d 753 (1965), defendant contends that plaintiffs affidavit is insufficient as a matter of law to rebut Dr. Callison’s opinion as to the cause of plaintiffs disability, and that the case sub judice presents a situation where expert medical testimony is essential to establish causation as defined in the policy. Gillikin was a negligence case where plaintiff attempted to establish a blow from a car door as the cause of her injury. The opinion of the Court was posited on whether plaintiff’s evidence was sufficient to show that the blow from the car door had caused a ruptured disc. We quote in pertinent part: In this record there is not a scintilla of medical evidence that plaintiffs ruptured disc might, with reasonable probability, have resulted from the accident on June 12, 1962. “If it is not reasonably probable, as a scientific fact, that a particular effect is capable of production by a given cause, and the witness (expert) so indicates, the evidence is not sufficient to establish prima facie the causal relation, and if the testimony is offered by the party having the [76] burden of showing the causal relation, the testimony, upon objection, should not be admitted and, if admitted, should be stricken.” Lockwood v. McCaskill, 262 N.C. 663, 138 S.E. 2d 541, 545. 263 N.C. at 324, 139 S.E. 2d at 759. In contrast to the precise situation dealt with in Gillikin, our appellate courts have frequently stated the rule that there are many instances in which lay testimony is competent to establish cause of injury (or death). See, e.g., Williams v. Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975); Tickle v. Insulating Co., 8 N.C. App. 5, 173 S.E. 2d 491 (1970), cert. denied, 276 N.C. 728 (1970); Jordan v. Glickman, 219 N.C. 388, 14 S.E. 2d 40 (1941) and cases cited therein. Cf., Click v. Freight Carriers, 300 N.C. 164, 265 S.E. 2d 389 (1980); Soles v. Farm Equipment Co., 8 N.C. App. 658, 175 S.E. 2d 339 (1970). In the case sub judice, Dr. Callison’s expert opinion testimony is clearly competent and persuasive, but it is not conclusive. Plaintiff’s testimony that prior to his fall, he had suffered from discomforting but not disabling back problems, but that after the fall the severity of his pain was sufficient to disable him, is also competent for the jury to consider and weigh as to the cause of his disability. See Soles v. Farm Equipment Co., supra. It provides far more than a mere scintilla. It is evidence which might reasonably satisfy an impartial mind as to the sole cause of plaintiffs disability. See 2 Stansbury’s N.C. Evidence § 210, at 152-53 (Brandis rev. 1973). We also note with interest that in this particular fact situation, defendant’s position is substantially weakened by information and statements contained in plaintiffs medical records introduced by defendant. Dr. Callison’s patient history, operative report, and hospital discharge summary establish that plaintiffs acute symptoms began after his fall, persisted without relief after the fall, and were not relieved by disc surgery. Dr. Callison’s own evaluation of plaintiff was cautious and qualified as to the cause of his pain and disability. His hospital discharge summary contained the following statements: [77] ment at home and was subsequently admitted to St. Joseph’s Hospital on 11/22/77 where he remained until 12/ 23/77. During this extended hospital stay he was treated with rest, traction, PT and medication without significant relief. He was seen in consultation by Dr. Alexander Maitland and Dr. Nelson Watts who failed to find any neurological or medical explanation of his persistence of severe right sciatica. Lumbar myelogram was performed at that time which showed some slight asymmetry of nerve root at L4, L5 on the right with a spinal fluid protein of 72 mgs. percent. An epidural venogram showed a complete block at L4, L5 and L5-S1 on the right. However, because of the paucity of objective physical findings, I was very reluctant to advise surgical intervention. He was seen in neurosurgical consultation by Dr. Van Blaricom who agreed there was some functional overlay to the problem. He was given an intrathecal injection of Marcaine with no significant improvement. [76] The patient had sustained a fall on 11/15/77 while working as a meat cutter in Ingle’s Super Market and at that time developed accentuation of low back pain and associated rt. sciatica. He did not respond to conservative treat- [77] Accordingly, he was discharged home to continue conservative treatment at home. However, he failed to show any improvement and over the following week continued to have disabling and unrelenting right sciatica. The patient was advised that we were at a stalemate as far as his treatment program was concerned with very little else in a positive aggressive nature to offer him other than an exploratory procedure to look at the L4, L5 nerve roots on the right. This was felt to be justified in spite of the physical findings because of his failure to respond to conservative treatment and the abnormal myelogram and epidural venogram findings with the elevated spinal fluid protein. However, a cautious prognosis was offered and the patient was advised very frankly that it was possible he could have surgery with no significant relief. The patient was then admitted to the hospital on 2/21/ 78 and was taken to surgery on 2/22/78 with a hemilaminectomy being performed at L4 and L5 on the right. The only old firm annular bulges were found at L4 and L5. Both discs were opened and only a few fragments of nucleus could be removed. The L3 disc space was also explored but the disc was not opened at this level. [78] Following surgery the patient’s wounds healed nicely and he had an uneventful postoperative course. He remained afebrile. However, he experienced absolutely no relief of his right sciatica which persisted following surgery in a severe unrelenting manner. ... It would thus appear that Dr. Callison’s evaluation of plaintiff when considered in relation to the cause of plaintiffs disability might be susceptible of differing inferences by a jury, and thus indicate a need for cross-examination of Dr. Callison on this point. See Kidd v. Early, 289 N.C. 343, 370, 222 S.E. 2d 392, 410 (1976). Defendant also contends that Horn v. Insurance Co., 265 N.C. 157, 143 S.E. 2d 70 (1965); Hicks v. Insurance Co., 29 N.C. App. 561, 225 S.E. 2d 164 (1976); and Hooks v. Insurance Co., 43 N.C. App. 606, 259 S.E. 2d 567 (1979) contain the controlling rules of law as to accident insurance policies similar to the policy in the case sub judice, and require our affirmance of the judgment below. We cannot agree. Horn is distinguishable on the facts, as clearly indicated in the Court’s opinion. We quote the dispositive portion. Plaintiff, in § 14 of his complaint, alleged insured suffered shock, blows and injuries which “caused his heart to stop beating and caused his death.” The evidence supports the allegation that the immediate cause of death was the failure of the heart' to perform its normal function. The evidence is sufficient to support a finding that the shock of excitement created by running off the road and striking the tree caused a strain on the heart and blood vessels, which they, because of the diseased condition, could not stand. This is as far as the evidence will warrant a factual finding. ... (Emphasis supplied.) 265 N.C. at 164, 143 S.E. 2d at 75-76. In Horn, there was no evidence that the accident could have been the sole cause of death. Hicks is also not in point. In that case this Court held that plaintiff’s evidence in opposition to defendant’s motion for summary judgment raised only the inference that the decedent’s fall contributed to the cause of death. In the case sub judice, plaintiff’s evidence supports an inference that the fall was the sole cause of his disability. [79] Hooks is not in point because in that case, this Court found that “all the evidence is to the effect that the ... accident was not the sole cause of plaintiffs disability.” (Emphasis supplied.) 43 N.C. App. at 611, 259 S.E. 2d at 570. We also note that plaintiffs position in the case subjudice is supported by the opinion of this Court in Emanuel v. Insurance Co., 35 N.C. App. 435, 242 S.E. 2d 381 (1978), to the effect that a question of fact exists in this case as to whether plaintiffs previous back problems were so severe as to be classified as a “disease” within the meaning of the policy. Id., at 442, 242 S.E. 2d at 385. Following the reasoning of Emanuel, we believe that in the case sub judice, in determining whether the fall was the sole cause of plaintiffs disability within the meaning of the policy, it would be for the jury to consider the following factors: the seriousness of plaintiffs fall; his general health before the fall; and, the evidence as to the degree of disc degeneration before the fall. The judgment of the trial court is Reversed. Judges Vaughn and Becton concur.