An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-932

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

MARY B. BENTLEY, Employee,

Plaintiff,

v. North Carolina

Industrial Commission

I.C. No. 609188

REVLON, INC., Employer, and CNA 

INSURANCE COMPANY, Carrier,

Defendants.

MARY B. BENTLEY, Employee, 

Plaintiff

v. North Carolina

Industrial Commission

I.C. No. X22096

REVLON, INC., Employer, and ESIS 

INSURANCE COMPANY, Carrier,

Defendants.

Appeal by Plaintiff from opinion and award entered 13 March 

2013 by the North Carolina Industrial Commission. Heard in the 

Court of Appeals 23 January 2014.

Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and 

George W. Lennon, for Plaintiff.

Teague Campbell Dennis & Gorham, L.L.P., by Carla M. Cobb 

and Heather T. Baker, for Defendants.

DILLON, Judge.
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Mary B. Bentley (Plaintiff) appeals from an opinion and 

award of the North Carolina Industrial Commission (Full 

Commission or Commission) (1) denying her claim for total 

disability benefits pertaining to a compensable injury by 

accident that she sustained on 28 December 1995 (1995 injury) 

while working within the scope of her employment with Defendant 

Revlon, Inc. (Revlon); and (2) denying her subsequent claim that 

she developed an occupational disease as a result of performing 

her various job duties during her career at Revlon. For the 

following reasons, we affirm.

I. Factual & Procedural Background

The evidence presented before the Commission tended to show 

the following: Plaintiff was employed by Revlon, or its 

corporate predecessors, from 1983 to 2011. Plaintiff was 

initially hired as an Inventory Technician to perform assembly 

work.

From 1995 to 1999, Plaintiff worked as a Group Packaging 

Leader. On 28 December 1995, Plaintiff sustained serious injury

to her head, neck, right shoulder, and arm, when she was struck

in the face multiple times by an air hose. Plaintiff sought 

treatment from several doctors following the 1995 injury, 
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including Dr. Robert Price, who, in 2000, noted that Plaintiff 

had also developed mild carpel tunnel syndrome.

In an opinion and award entered 17 March 2003, the 

Commission ordered that Revlon pay all medical compensation 

necessitated by the 1995 injury. The 2003 opinion and award

expressly left open the “issue of what, if any, permanent 

partial disability compensation shall be payable to plaintiff . 

. . until such time as plaintiff reaches maximum medical 

improvement.”

From 1999 to 2007, Plaintiff worked as a Packaging Services 

Clerk, which generally required her to use both hands to package 

daily work orders and to perform data entry, though she was 

assigned certain work restrictions by Dr. Daphne Cates at Vance 

Family Medicine, who was treating Plaintiff for migraine 

headaches, chronic sinusitis, and neck pain associated with her 

1995 injury.

In January 2007, Plaintiff was promoted to the position of 

Inventory Technician II, where she worked until she left her 

employment with Revlon in 2011. Revlon modified the job duties

ordinarily associated with the Inventory Technician II position 

to accommodate Plaintiff’s condition and work restrictions. In 

this new position, Plaintiff performed tasks such as keying in 
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data, putting together work folders, and delivering the work 

folders to the manufacturing floor.

On 1 December 2010, Plaintiff presented for treatment at 

Raleigh Orthopaedic Clinic, where she was evaluated by a hand 

specialist, Dr. Harrison G. Tuttle. Plaintiff reported to Dr. 

Tuttle that she had been experiencing increasing pain throughout 

her right upper extremity over the course of the past year and 

that she believed that her pain was “directly associated with 

work.” At that time, Dr. Tuttle completed a “Repetitive Motion 

Medical Questionnaire” in which he indicated that Plaintiff’s 

job duties placed her at an increased risk of developing, and 

caused or significantly contributed to, Plaintiff’s repetitive 

motion related injuries, namely, tenosynovitis, tendonitis, and 

carpal tunnel syndrome on her right side.

On 6 January 2011, Plaintiff filed an occupational disease 

claim with the Commission, citing upper extremity conditions 

caused by the repetitive nature of her job duties. Revlon

thereafter filed a Form 61 denying Plaintiff’s claim, contending

that Plaintiff had “not sustain[ed] an occupational disease as 

[defined] by the NC Worker’s Compensation Act” and that

Plaintiff’s “job did not cause and/or place her at an increased 

risked to develop her [alleged] conditions.”
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Plaintiff worked intermittently at Revlon following her 

December 2010 appointment with Dr. Tuttle and had stopped 

working altogether by March 2011 due to her physical condition.

Plaintiff’s claim for disability compensation relating to 

the 1995 injury and her separate occupational disease claim were 

consolidated and scheduled for hearing before Deputy 

Commissioner George R. Hall, III, on 3 November 2011. On 28 

October 2011, counsel for Revlon provided Plaintiff’s counsel

with a video of an individual performing the job duties required 

of an Inventory Technician II, the position in which Plaintiff

held from 2007-2011, along with a written job description for 

that position. Both the video and the written job analysis were

compiled by Gina Vieceli, a vocational rehabilitation 

specialist.

Plaintiff requested permission to introduce her own video 

evidence, depicting the job duties associated with the positions 

she had held at Revlon prior to 2007 when she assumed the 

Inventory Technician II position. The Deputy Commissioner 

indicated that he would rule on Plaintiff’s request at a later 

date, should Plaintiff still wish to present countering evidence 

upon reviewing Revlon’s video and job analysis.
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Following the hearing, the Deputy Commissioner informed the 

parties that the record would remain open until 3 February 2012

“to obtain . . . the medical and lay evidence necessary to 

complete the record.” Plaintiff deposed Dr. Tuttle, who 

testified that he had diagnosed Plaintiff with tenosynovitis, 

dorsal wrist tendinitis, and carpel tunnel and that, in his 

opinion, Plaintiff’s work at Revlon caused these maladies. 

Plaintiff also deposed Dr. Cates, who opined that Plaintiff was 

more likely than not permanently and totally disabled due to the 

combined effect of her hand and arm conditions with the chronic 

headaches, sinusitis, and neck pain resulting from the 1995 

injury and that Plaintiff could no longer perform her job.

Defendant deposed Ms. Vieceli and Dr. George Edwards, an 

orthopedic surgeon who specializes in hand and upper extremity 

surgery, who testified that, in his opinion, there was no 

evidence of any “strenuous or repetitive motions [associated 

with the Inventory Technician II position, which Plaintiff held 

beginning in 2007] that would be expected to cause” Plaintiff’s

upper extremity conditions.

On 9 February 2012 – six days after the deadline imposed by 

the Deputy Commission to present evidence - Plaintiff moved to 

present video evidence of her job duties for the positions she 
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held at Revlon prior to 2007, to which Revlon objected. The 

Deputy Commissioner denied Plaintiff’s motion.

On 23 July 2012, the Deputy Commissioner entered an opinion 

and award in Plaintiff’s favor on both her claims, determining 

that Plaintiff’s upper extremity conditions constituted 

compensable occupational diseases and that the evidence

established that Plaintiff had been “totally disabled since 

March 23, 2011 and that this disability [was] related to both 

her 1995 and 2010 workers’ compensation claims.”

Revlon appealed to the Full Commission, and Plaintiff’s 

claims came on for hearing on 29 November 2012. On 12 December 

2012, the Commission requested that Revlon submit a proposed 

opinion and award. In the wake of this request, Plaintiff 

contacted the Commission and requested that “if the Commission 

[was] not satisfied with the amount of evidence regarding the 

nature of [her] job duties, . . . the record be reopened to 

allow the videotaping of all of the jobs [she] performed for 

[Revlon] . . . .”

On 13 March 2013, the Commission entered an opinion and 

award – with one member dissenting without written opinion –

reversing the Deputy Commissioner’s decision. In its ruling, 

the Full Commission (1) denied Plaintiff’s request to present 
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videotape evidence depicting her job duties prior to 2007; (2) 

denied Plaintiff’s request for additional temporary partial or 

temporary total disability benefits relating to her 1995 injury; 

(3) awarded Plaintiff medical benefits pertaining to her 1995 

injury to the extent of her permanent partial impairment 

ratings, a matter that had been left open for determination by

the Commission’s 2003 opinion and award; and (4) denied 

Plaintiff’s occupational disease claim, concluding that 

Plaintiff had “failed to establish that she suffers from a 

compensable occupational disease within the meaning of N.C. Gen. 

Stat. § 97-53.” From this opinion and award, Plaintiff appeals.

II. Analysis

Our review of the Commission’s opinion and award is

generally limited to a determination of whether competence 

evidence supports the Commission’s findings of fact and whether 

such findings are sufficient to support the Commission’s 

conclusions of law. Legette v. Scotland Mem'l Hosp., 181 N.C. 

App. 437, 442, 640 S.E.2d 744, 748 (2007). Findings supported 

by competent evidence are binding on appeal, “even if the 

evidence might also support contrary findings. The Commission’s 

conclusions of law are reviewable de novo.” Id. at 442-43, 640 

S.E.2d at 748 (citations omitted).
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In the present case, Plaintiff appeals from the 

Commission’s opinion and award denying her occupational disease 

claim and denying her claim for total disability benefits 

pertaining to her 1995 injury. We address each claim separately 

below.

A. Occupational Disease Claim

Plaintiff first argues that the Commission erred in denying 

her occupational disease claim. We disagree.

A claimant seeking relief under the Workers’ Compensation 

Act bears “the burden of proving each element of 

compensability[.]” Holley v. ACTS, 357 N.C. 228, 234, 581 

S.E.2d 750, 754 (2003). An individual seeking benefits for an 

occupational disease must prove, inter alia, that there exists

“a causal relationship between the disease and the employment.” 

Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 

105-06 (1981).

Here, the Commission denied Plaintiff’s occupational 

disease claim, reasoning that Plaintiff had failed to present 

competent evidence on the issue of causation. Specifically, the 

Commission concluded that “the exact nature and probable 

genesis” of Plaintiff’s condition “involved complicated medical 

questions” such that “only an expert can give competent opinion 
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evidence as to the cause.” See Click v. Freight Carriers, 300 

N.C. 164, 265 S.E.2d 389 (1980) (holding that evidence in the 

form of expert testimony is required to meet an employee’s 

burden of proof where the cause of the employee’s condition 

involves complex medical questions “far removed from the 

ordinary experience and knowledge of laymen”). The Commission 

further found that the expert opinion concerning this issue 

provided by Plaintiff’s expert, Dr. Tuttle, was speculative and 

inconsistent” and, therefore, did “not constitute sufficient 

medical evidence to satisfy Plaintiff’s burden of proof

[regarding causation].” See Young v. Hickory Bus. Furn., 353 

N.C. 227, 538 S.E.2d 912 (2000) (holding that expert opinion 

based on speculation and conjecture is “not sufficiently 

reliable to qualify as competent evidence on issues of medical 

causation”). We believe that these conclusions – that Plaintiff 

failed to meet her burden of presenting competent evidence to 

support an essential element of her claim, namely causation –

supports the Commission’s decision to deny her occupational 

disease claim.

Further, we believe that the Commission made sufficient 

findings to support its conclusions. Specifically, the 

Commission found as follows:
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27. Dr. Tuttle admitted at his deposition 

that he could not state how repetitive 

Plaintiff’s jobs were and that he could not 

remember if he ever knew how repetitive her 

jobs were. Dr. Tuttle also admitted that 

his opinions “were based on [Plaintiff’s] 

descriptions of her job to me” and that he 

did not recall specifically what Plaintiff 

had told him about her jobs as it was never 

documented in his notes. . . .

28. Based on the preponderance of the 

evidence of record, the Full Commission 

finds that Dr. Tuttle’s opinions pertaining 

to “increased risk” and causation were not 

based on a sufficient understanding of the 

specific exact duties required in 

Plaintiff’s various positions with employer 

and were not based on a sufficient 

understanding of the frequency in which 

those duties were performed.

The Commission determined, essentially, that Dr. Tuttle had 

expressed an opinion that the repetitive nature of Plaintiff’s 

job duties had been a cause of her upper extremity conditions,

but that Dr. Tuttle could not recall precisely what Plaintiff’s 

job duties were or the repetitiveness with which Plaintiff had 

performed them.

Finally, we believe there was competent evidence in the 

record to support the Commission’s findings concerning Dr. 

Tuttle’s opinion, specifically in Dr. Tuttle’s deposition 

testimony. Plaintiff argues that during his deposition, Dr. 

Tuttle testified that “he spoke at length to [Plaintiff] about 
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her work”; that he had been provided with descriptions of the 

job duties for the various positions that Plaintiff had held; 

that “both the weight involved and the repetitive nature of the 

upper extremities activities contribute[d] to the development of 

[Plaintiff’s] medical conditions”; and that it was his opinion 

that, “to a reasonable degree of medical probability, 

[Plaintiff’s job duties] were a substantial contributing factor 

in the onset of her [occupational disease.]” Defendants, 

however, point to the following portions of Dr. Tuttle’s 

testimony on cross-examination, in which Dr. Tuttle indicates 

his inability to recall Plaintiff’s job duties or whether 

Plaintiff had ever informed him of the repetition with which she

had performed those duties:

Q: When you completed [the Repetitive 

motion medical questionnaire in] December 

2010, did you even know what [Plaintiff’s] 

job duties were? 

[Dr. Tuttle]: . . . [S]he described her 

work duties. I don’t remember if she 

described it comprehensively, but she went 

over them with me.

. . . .

Q.: . . . [W]ould that change your opinions 

about whether or not her job placed her at 

an increased risk of developing . . . ?

[Dr. Tuttle]: It just depends on the amount 

of repetition that she actually had to do.
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. . . .

Q: But you don’t know exactly how often or 

how repetitive her job duties were?

[Dr. Tuttle]: At this particular second I 

can’t tell you.

Q: Have you ever known?

[Dr. Tuttle]: I don’t remember. She may 

have gone over that with me.

. . . . 

Q: And you don’t know how many times she 

was doing particular functions; is that 

correct?

[Dr. Tuttle]: At this point, I don’t. . . .

[A]t this point I don’t remember the 

details.

. . . .

Q: What did she tell you about her job?

[Dr. Tuttle]: I don’t remember.

Q: Okay. Was it ever documented in your 

notes?

[Dr. Tuttle]: Doesn’t look like it.

While we recognize that the record reveals evidence indicating 

that Dr. Tuttle may have had some understanding of Plaintiff’s 

job duties, and the repetitive nature with which she had 

performed those duties, the foregoing testimony constitutes 
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evidence in support of the Commission’s findings concerning Dr. 

Tuttle’s lack of factual basis for his opinion.

Plaintiff advances two arguments to support her contention 

that the Commission erred in decision to deny her occupational 

disease claim. Plaintiff first argues that the Commission 

“abused its discretion by simultaneously finding Plaintiff did 

not present enough evidence of her job duties while also denying 

her motion to videotape her job duties.” Second, Plaintiff 

argues that the Commission erred by not making findings “about 

the corroborating evidence in this case, including both Revlon’s 

job descriptions of plaintiff’s jobs in the 1980’s and 1990’s 

and the testimony of [a lay witness who gave fact testimony 

regarding Plaintiff’s job duties].” However, even assuming 

arguendo, that Plaintiff is correct in her arguments, we hold 

that the Commission’s failure to consider Plaintiff’s proposed

additional evidence – which, Plaintiff avers, would have 

provided the Commission’s with a better understanding of her job 

duties and the repetitive nature thereof – did not constitute 

reversible error. Specifically, the Commission properly 

determined that, due to the complicated medical questions

involved, Plaintiff was required to present expert testimony in 

order to meet her burden of proof with respect to the element of 
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causation. In other words, the Commission’s decision to deny 

Plaintiff’s claim did not rest upon any failure by the 

Commission to understand the repetitive nature of Plaintiff’s 

job duties, but rather upon Plaintiff’s failure to present 

medical testimony from an expert witness who demonstrated an

understanding of Plaintiff’s job duties sufficient to form a 

credible opinion concerning the plausibility that such duties 

caused Plaintiff’s upper extremity conditions. Notably, 

Plaintiff does not contest the Commission’s conclusion that Dr. 

Tuttle’s testimony was speculative and, as such, insufficient to 

satisfy Plaintiff’s burden in proving causation through the 

opinion of an expert. Accordingly, Plaintiff’s arguments, even 

if correct, do not warrant reversal of the Commission’s decision 

to deny her occupational disease claim.

B. 1995 Injury and Permanent Disability Benefits

Plaintiff next contends that the Commission erred in 

denying her claim for additional temporary partial or temporary 

total disability benefits pertaining to her 1995 injury. We 

disagree.

“Disability” for workers’ compensation purposes “means 

incapacity because of injury to earn the wages which the 

employee was receiving at the time of injury in the same or any 
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other employment.” N.C. Gen. Stat. § 97-2(9) (2011). In the 

present case, Plaintiff seeks “additional” total disability 

benefits, in that the Commission has previously awarded 

Plaintiff – via its 2003 opinion and award – total disability 

benefits pertaining to the 1995 injury for certain time periods 

between October 1996 and May 1998. To prove the existence of a

disability, Plaintiff was required to demonstrate each of the 

following:

(1) that [she] was incapable after [her]

injury of earning the same wages [she] had 

earned before [her] injury in the same 

employment, (2) that [she] was incapable 

after [her] injury of earning the same wages 

[she] had earned before [her] injury in any 

other employment, and (3) that [her]

incapacity to earn was caused by [her]

injury.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 

683 (1982). Further, a claimant such as Plaintiff may carry her

burden with respect to the foregoing elements by introducing any 

the following types of evidence before the Commission:

(1) . . . medical evidence that [she] is 

physically or mentally, as a consequence of 

the work related injury, incapable of work 

in any employment; (2) . . . evidence that 

[she] is capable of some work, but that 

[she] has, after a reasonable effort on 

[her] part, been unsuccessful in [her] 

effort to obtain employment; (3) . . .

evidence that [she] is capable of some work 

but that it would be futile because of 

preexisting conditions, i.e., age, 
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inexperience, lack of education, to seek 

other employment; or (4) . . . evidence that 

[she] has obtained other employment at a 

wage less than that earned prior to the 

injury.

Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 

425 S.E.2d 454, 457 (1993) (citations omitted).

We conclude that the competent record evidence supports the 

Commission’s findings, which, in turn, support the Commission’s

conclusion that Plaintiff failed to demonstrate her entitlement 

to total disability benefits. In its 2003 opinion and award, 

the Commission determined that Plaintiff was temporarily and 

totally disabled for several periods spanning from 1 October 

1996 through 7 May 1998. The Commission’s findings in the 

present case indicate that, following May 1998, Plaintiff worked 

for roughly twelve years without incident prior to seeking 

treatment from Dr. Tuttle in December 2010 and, moreover, that 

such treatment pertained to Plaintiff’s alleged occupational 

disease. These findings support the Commission’s grounds for 

denying Plaintiff’s claim for total disability benefits, namely,

that any total disability for purposes of the present case was a 

product of Plaintiff’s upper extremity conditions – with respect 

to which, as we have held, supra, Plaintiff failed to meet her 

burden in proving the existence of an occupational disease - and
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not a product of her 1995 injury.

Plaintiff contends that the Commission incorrectly employed 

a heightened standard in denying her total disability 

compensation for her 1995 injury, specifically, that the 

Commission required her to prove that her 1995 injury solely 

caused, rather than merely contributed to, her disability. 

Plaintiff focuses on the following portion of the Commission’s 

conclusion of law 5 as the source of this alleged error:

Plaintiff has never been medically excused 

from work solely as a result of her 

compensable injury by accident on December 

28, 19951 and has remained successfully 

employed with [Revlon] until she was no 

longer able to work due to her noncompensable upper extremity conditions. The 

Full Commission finds that Plaintiff has 

failed to present evidence of disability 

related to her compensable injury by 

accident of December 28, 1995 under any of 

the accepted Russell criteria; therefore, 

Plaintiff has not established disability as 

a result of her compensable injury by 

accident on December 28, 1995 and is not 

entitled to payment of indemnity 

compensation for total disability.

 

1 We note that, as previously stated, Plaintiff “was temporarily 

and totally disabled” during several time periods between 1 

October 1996 and 7 May 1998 and thus it would appear that 

Plaintiff did miss work due to the 1995 injury. Because the 

Commission has already awarded Plaintiff compensation for those 

periods of disability in its 2003 opinion and award, however, we 

construe the Commission’s statement in conclusion of law 5 to 

mean that Plaintiff had not been excused from work since the 

2003 award solely as result of the 1995 injury.
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(Emphasis added). Plaintiff’s contention is unpersuasive. We 

disagree with Plaintiff’s characterization of conclusion of law

5, which we believe is more appropriately interpreted not as 

imposing an erroneous standard, but rather as reinforcing the 

Commission’s finding that Plaintiff had not missed any work 

since May 1998 due to her 1995 injury, but rather that that any 

work missed by Plaintiff after May 1998 was a result of 

Plaintiff’s upper extremity conditions. As stated above, the

competent evidence of record supports the Commission’s 

conclusion in this respect. Plaintiff’s contention on this 

issue is accordingly overruled.

III. Conclusion

For the foregoing reasons, we affirm the Commission’s 13 

March 2013 opinion and award.

AFFIRMED.

Judges STROUD and HUNTER, JR. concur.

Report per Rule 30(e).