All opinions are subject to modification
and technical correction prior to official publication in the North Carolina
Reports and North Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NO. COA06-148
NORTH CAROLINA
COURT OF APPEALS
Filed: 6
February 2007
ALENE
LEGETTE,
Employee,
Plaintiff-Appellee,
v. North
Carolina Industrial Commission
I.C.
File Nos. 213344 & 409717
SCOTLAND MEMORIAL HOSPITAL,
Employer,
SOUTH
CAROLINA PROPERTY AND
CASUALTY
GUARANTY ASSOCIATION,
Carrier,
Defendants-Appellants.
Appeal by
Defendants from opinion and award entered 6 October 2005 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 17 October 2006.
The Jernigan
Law Firm, by Gina E. Cammarano, for Plaintiff-Appellee.
Young Moore and
Henderson P.A., by Jeffrey T. Linder, Michael W. Ballance, and Angela N. Farag,
for Defendants-Appellants.
McGEE, Judge.
Scotland
Memorial Hospital (the hospital) and South Carolina Property and Casualty
Guaranty Association (collectively Defendants) appeal from an opinion and award
of the North Carolina Industrial Commission (the Commission) filed 6 October
2005. The Commission’s opinion and
award reversed an opinion and award by Deputy Commissioner Phillip A. Holmes,
which had determined that Alene Legette (Plaintiff) did not sustain a
compensable injury by accident.
At a hearing
before the Deputy Commissioner, Plaintiff testified that she became a
registered nurse in 1971, and began working as a nurse for the hospital in
October 2000. Plaintiff worked the
night shift every Friday, Saturday and Sunday.
Plaintiff testified that she hurt her left arm as she was repositioning
a patient during her shift at the hospital on 12 October 2001. Plaintiff testified that pulling a patient
up in bed “was normally a two-person maneuver.” However, because the hospital was understaffed, Plaintiff had to
reposition a patient without assistance.
She testified that because she had no help in moving the patient, it was
necessary for her to stand closer to the patient and to the bed than she would
have with assistance. Plaintiff also
testified that the patient was heavy and non-ambulatory and that she had to use
more force than if she had had assistance.
Plaintiff
testified that when she moved the patient, she felt “a sharp pain underneath
[her] left armpit or breast area extending toward the back of [her] shoulder
and in [her] arm and shoulder[.]” Plaintiff further stated that “[a]lmost
immediately in just a little while, [her] arm started swelling, and it extended
further down [her] arm into [her] wrist to the tops of [her] fingers.”
Plaintiff
testified that she completed her shift and worked her next two shifts. Plaintiff took Ibuprofen for her pain and
swelling. Plaintiff testified that
during her 13 October 2001 to 14 October 2001 shift, she “went down to the
emergency room with [her] shift supervisor, and [they] saw the emergency room
doctor.” Plaintiff testified that the
doctor offered her Lortab for her pain, but Plaintiff declined to take the
medicine while working.
Suzanne Parent
(Ms. Parent) testified that she was a registered nurse on staff at the hospital
in October 2001. Ms. Parent testified
that she remembered when Plaintiff injured her arm and that Plaintiff told her
she had injured her arm “pulling a patient.”
Ms. Parent also testified that she saw Plaintiff’s arm the next night
and that Plaintiff’s “left arm had swollen about two times its normal
size. It was a deep, beefy red.” Gail Peterson (Ms. Peterson) testified that
she was a “nursing supervisor, patient care supervisor” at the hospital in
October 2001. Ms. Peterson testified
that the hospital encouraged nurses to get help when moving heavy patients.
Plaintiff
testified that she went to her family physician, Dr. James Currin (Dr. Currin),
for treatment on 15 October 2001. Dr.
Currin gave Plaintiff a prescription for an antibiotic and an
anti-inflammatory. Plaintiff testified
that she returned to work for her next series of weekend shifts on 19 October
2001. However, Plaintiff showed her arm
to her supervisor, Ms. Peterson, and told Ms. Peterson that the pain and
swelling in her left arm was severe.
Ms. Peterson told Plaintiff to go home.
Plaintiff left work on 20 October 2001 and has not returned to work.
Plaintiff saw
Dr. Diana B. McNeill (Dr. McNeill) at Duke University Medical Center on 19
November 2001. Dr. McNeill noted that
Plaintiff was having a “significant problem with lymphedema in the left arm
after heavy lifting.” Dr. McNeill also noted
that Plaintiff had a “history of breast carcinoma with left modified radical
mastectomy with no dissection 10/10 nodes negative and 37 radiation treatments
since 1998.” Dr. McNeill also stated:
“I think [Plaintiff] really needs a referral to the lymphedema clinic.” Plaintiff was also seen on 27 November 2001
by Dr. Brian Parkes (Dr. Parkes), a general surgeon in Laurinburg, who also
noted Plaintiff’s history of breast cancer.
Dr. Parkes stated: “[Plaintiff] was doing some heavy lifting at work and
felt pain in her biceps region and serratus anterior. Subsequently she developed pitting edema from the elbow to the
hand.” Plaintiff was also seen by
several other doctors.
After the
hearing before the Deputy Commissioner, Defendants took the deposition of Dr.
George Paschal, III (Dr. Paschal), who testified that about twenty percent of
people who have radiation and surgery for breast cancer will develop
lymphedema. Dr. Paschal explained that
lymphedema is a disorder caused by “the malarrangement of lymphatic flow
secondary to an obstruction.” Dr.
Paschal further stated that “[t]he disorder will slowly progress over time
until it reaches a point that symptoms become noticeable to the patient.” Dr. Paschal further testified as follows:
“The scarring slowly contracts over a period of time, three to five years
usually before you see any obstruction of flow, although it can happen sooner
and it can happen later.” Dr. Paschal
stated that Plaintiff likely suffered from lymphedema. However, Dr. Paschal also stated that “the
activities [Plaintiff] performed on the day in question were simply what she
was doing when the lymphatic flow was curtailed sufficient to bring her
condition to her attention, but did not cause or materially aggravate or
materially accelerate the underlying pathology.”
The Deputy
Commissioner filed an opinion and award on 12 July 2004, concluding that
Plaintiff did not sustain a compensable injury by accident. Plaintiff appealed to the Commission and
filed a Form 44, setting forth several alleged errors. After the parties filed briefs, the
Commission ordered the case to be reopened.
The Commission further ordered that “the parties shall have 60 days from
the date of [the] Order within which to take the deposition of Dr. James
Currin.”
Plaintiff’s
counsel tendered Dr. Currin as an expert in medicine, with a specialty in
family practice, and Defendants’ counsel objected. Dr. Currin testified that he was a board certified family
practitioner who practiced at Laurinburg Family Practice from 1980 until his
retirement on 6 July 2004. Over the
course of his twenty-five year career, Dr. Currin treated about one hundred
patients with lymphedema. However,
because Dr. Currin saw his patients multiple times during his twenty-five year
career, he may have seen those one hundred patients with lymphedema “a thousand
times.”
Dr. Currin
testified that he saw Plaintiff in October 2001, and diagnosed her with
lymphedema. Plaintiff’s arm was swollen
and painful. Dr. Currin testified that
Plaintiff’s alleged accident at work “may have caused [her left arm swelling],
or certainly may have aggravated [her left arm swelling] if she was prone to
lymphedema related to the previous breast cancer surgery.” Dr. Currin also testified that Plaintiff’s
alleged accident “probably aggravated [her left arm swelling].” Dr. Currin further testified as follows:
Q. Okay, and what’s the basis for your
opinion?
A. The fact that she had no symptoms prior
to that day.
Q. Okay, and was the way that [Plaintiff]
described the incident consistent with a trauma of the type that would be
associated with the development of lymphedema with someone with her history?
[DEFENDANTS’
COUNSEL]: Objection.
A. Yes.
Dr. Currin also
testified that, assuming Plaintiff had some pre-existing, asymptomatic
lymphedema, Plaintiff’s alleged accident at work “did aggravate the condition.” Dr. Currin testified that the basis of his
opinion was that “[Plaintiff] had had no problems with that arm prior to that
injury.”
On redirect
examination, Dr. Currin testified as follows:
Q. Okay, but would you be able to say that
[Plaintiff’s alleged accident] more likely than not aggravated [any
pre-existing asymptomatic lymphedema]?
A. Based on my history from her that day
that prior to that incident she had had no problem, and after that her symptoms
started, it would be that that’s when the problem started.
Q. Okay. So just to clarify, because it’s important, as you talked about before . . ., can you testify that . . . that incident more likely than not or probably aggravated her underlying . . . condition or her predisposition to lymphedema?
[DEFENDANTS’
COUNSEL]: Objection.
A. Yes.
The Commission
filed an opinion and award on 6 October 2005, concluding, inter alia,
that on 12 October 2001, Plaintiff sustained an injury by accident arising out
of and in the course of her employment with the hospital. The Commission also concluded that
Defendants had actual notice of Plaintiff’s injury by accident. Defendants appeal.
Our review of
an opinion and award by the Commission is limited to two inquiries: (1) whether
there is any competent evidence in the record to support the Commission’s
findings of fact; and (2) whether the Commission’s conclusions of law are
justified by the findings of fact. Counts
v. Black & Decker Corp., 121 N.C. App. 387, 389, 465 S.E.2d 343, 345, disc.
review denied, 343 N.C. 305, 471 S.E.2d 68 (1996). If supported by competent evidence, the
Commission’s findings are conclusive even if the evidence might also support
contrary findings. Jones v. Candler
Mobile Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995). The Commission’s conclusions of law are
reviewable de novo. Whitfield
v. Laboratory Corp. of Am., 158 N.C. App. 341, 348, 581 S.E.2d 778, 783
(2003).
I.
Defendants
first argue the Commission erred by concluding that “[P]laintiff sustained an
injury by accident arising out of and in the course of her employment with [the
hospital].” An accident is “‘an
unlooked for and untoward event which is not expected or designed by the person
who suffers the injury.’“ Porter v.
Shelby Knit, Inc., 46 N.C. App. 22, 26, 264 S.E.2d 360, 363 (1980) (quoting
Hensley v. Cooperative, 246 N.C. 274, 278, 98 S.E.2d 289, 292
(1957)). “The elements of an ‘accident’
are the interruption of the routine of work and the introduction thereby of
unusual conditions likely to result in unexpected consequences.” Id.
However, “once an activity, even a strenuous or otherwise unusual
activity, becomes a part of the employee’s normal work routine, an injury
caused by such activity is not the result of an interruption of the work routine
or otherwise an ‘injury by accident’ under the Workers’ Compensation Act.” Bowles v. CTS of Asheville, 77 N.C.
App. 547, 550, 335 S.E.2d 502, 504 (1985).
In the present
case, the Commission made the following relevant findings of fact:
2. On October 12, 2001, [P]laintiff was
injured while repositioning a patient.
Because the hospital was understaffed, she had no one to assist her in
what was normally a two-person maneuver to pull a patient up in bed. Therefore, [P]laintiff moved the patient by
herself, which meant that she had to position her body differently than she
normally would, by standing closer to the patient and to the head of the
bed. This particular patient was heavy,
non-ambulatory, and unable to assist [P]laintiff with the move. Plaintiff had to use more force with her
arms and legs than usual. As she moved
the patient, [P]laintiff felt a sharp pain underneath her left armpit and in
her breast area.
3. Soon after the lifting incident,
[P]laintiff’s left arm began swelling into her wrist and fingers. Sue Parent, another nurse on the floor, saw
[P]laintiff’s swollen left arm and recalled that [P]laintiff said she injured
the arm pulling a patient. Ms. Parent
also testified that the following night [P]laintiff’s arm was swollen to twice
the normal size and was dark red.
Plaintiff’s supervisor did not recall whether [P]laintiff reported the
left arm injury on October 12, 2001.
Plaintiff continued to work the rest of her shift and took Ibuprofen to
try ro reduce the pain and swelling.
Plaintiff also worked the following two nights. During the shift on October 13, 2001,
[P]laintiff went with Monica Miller, the shift supervisor, to the Emergency
Room where a doctor offered to give [P]laintiff Lortab, a prescription
painkiller that [P]laintiff declined to take while working.
Defendants do
not specifically challenge the testimonial support for these findings. Rather, Defendants argue that Plaintiff
could not recall the name, gender or room number of the patient she was lifting
at the time of the alleged accident.
Defendants also argue that the supervisor to whom Plaintiff allegedly
reported the accident did not work on 13 October 2001 and that the hospital’s
records did not show evidence that Plaintiff was seen in the emergency room on
that date. Defendants further argue
that, although the Commission found it was unusual for Plaintiff to have moved
a patient by herself, Plaintiff admitted that she had moved patients by herself
on prior occasions. Plaintiff’s
supervisor, Ms. Peterson, also testified that other nurses lifted patients by
themselves. Furthermore, Defendants
argue that although the Commission found that the patient Plaintiff moved was
non-ambulatory and heavy, most patients are moved when they are asleep and
therefore most patients are heavy and non-ambulatory.
However, even
though there may have been competent evidence in the record to support contrary
findings, as Defendants assert, the findings of the Commission are binding
because they are supported by the competent testimony of Plaintiff and Ms.
Parent. See Jones, 118 N.C. App.
at 721, 457 S.E.2d at 317.
Defendants also
argue that “even if one believes [P]laintiff’s story, her incident at work does
not constitute a compensable ‘accident.’“
In support of their argument, Defendants cite Landry v. U.S. Airways,
Inc., 150 N.C. App. 121, 563 S.E.2d 23, rev’d per curiam for reasons
stated in the dissent, 356 N.C. 419, 571 S.E.2d 586 (2002), where our
Supreme Court adopted Judge Hunter’s dissent.
In Landry, the plaintiff was injured at work when he grabbed a
mailbag that was heavier than he expected.
Id. at 122, 563 S.E.2d at 24.
The Commission found that the plaintiff was required to load and unload
mail, freight and luggage as part of his job; that the packages, which included
mail sacks, ranged in weight from one pound to four hundred pounds; that there
was no way for the plaintiff to know how much the packages weighed until he
picked them up; that it was not unusual for certain mailbags to be heavy and
for the plaintiff to be unaware of this until he picked them up; that the
plaintiff was performing his normal job duties in the normal manner and using
his normal motion when he was injured; that the plaintiff never knew the weight
of a mailbag until he lifted it; and that “[m]ailbags often varied in weight
and were heavier or lighter than anticipated.”
Id. at 122-23, 563 S.E.2d at 25.
The Commission then concluded that the plaintiff did not sustain an
injury by accident. Id. at 123,
563 S.E.2d at 25. The majority in the
Court of Appeals held that the Commission’s finding that “[m]ailbags often
. . . were heavier or lighter than anticipated[,]” was unsupported by
the evidence because the Plaintiff never testified that the fact that mailbags
were often overweight was unanticipated by him. Id. at 124, 563 S.E.2d at 26. The majority also pointed out that the plaintiff “testified he
could generally estimate the weight of mailbags by sight but found this
particular mailbag heavier than anticipated.”
Id. The majority held
that the plaintiff’s undisputed testimony supported a finding that “an unlooked
for and untoward event occurred which was not expected by [the] [p]laintiff[,]”
leading to the conclusion that the plaintiff sustained an injury by accident. Id.
Thus, the majority reversed the Commission and remanded the matter. Id. at 124-25, 563 S.E.2d at 26.
The dissent
stated:
Although [the]
plaintiff may not have specifically stated that the mailbags were often heavier
or lighter than “anticipated,” the evidence as a whole clearly supports the
Commission’s findings that [the] plaintiff’s job required him to lift weights
of up to 400 pounds; that [the] plaintiff never knew prior to lifting mailbags
how much they weighed; that it was not unusual for mailbags to be extremely
heavy and that [the] plaintiff would be unaware of the heavy weight of the bags
until he lifted them; and that [the] plaintiff was engaged in his normal duties
and using his normal motions when injured.
Id. at 126, 563
S.E.2d at 27. The dissent also held
that these findings, which were supported by competent evidence, supported the
Commission’s conclusion that the plaintiff did not sustain an injury by
accident. Id. On appeal, our Supreme Court adopted the
dissent, thereby reversing the Court of Appeals’ majority opinion. Landry, 356 N.C. at 419, 571 S.E.2d
at 587.
Unlike Landry,
the findings in the present case establish that Plaintiff was performing a task
that was not part of her normal work routine when she was injured. Moving patients was normally a two-person
job. Again, although there was evidence
that could have supported a contrary finding, we are bound by the findings
because they are supported by the competent testimony of Plaintiff and Ms.
Parent. See Jones, 118 N.C. App.
at 721, 457 S.E.2d at 317. Because the
hospital was understaffed and Plaintiff had to move the patient by herself, she
had to position her body differently than normal and had to use more force than
normal. On the contrary, the plaintiff in Landry, as determined by
the findings in that case, was performing his normal job in the usual manner
when he was injured. Landry, 150
N.C. App. at 126, 563 S.E.2d at 27.
Moreover, in Landry, it was not unusual for mailbags to be
extremely heavy and for the plaintiff to be unaware of this until he lifted
them. Id.
We conclude
that the Commission’s findings of fact, which are supported by competent
evidence, support its conclusion of law that “[P]laintiff sustained an injury
by accident arising out of and in the course of her employment with [the
hospital].” Therefore, we affirm the
order of the Commission.
II.
Defendants next
argue that even if Plaintiff suffered a compensable injury by accident,
Plaintiff’s claim still should have been barred for failure to give timely
written notice of the accident to her employer, pursuant to N.C. Gen. Stat.
§97-22. Under N.C. Gen. Stat. §97-22
(2005),
Every injured
employee or his representative shall immediately on the occurrence of an
accident, or as soon thereafter as practicable, give or cause to be given to
the employer a written notice of the accident, and . . . no
compensation shall be payable unless such written notice is given within 30
days after the occurrence of the accident or death, unless reasonable excuse is
made to the satisfaction of the Industrial Commission for not giving such
notice and the Commission is satisfied that the employer has not been
prejudiced thereby.
However, our
Court has held that the “[f]ailure of an employee to provide written notice of
her injury will not bar her claim where the employer has actual knowledge of
her injury.” Lakey v. U.S. Airways,
Inc., 155 N.C. App. 169, 172, 573 S.E.2d 703, 706 (2002), disc. review
denied, 357 N.C. 251, 582 S.E.2d 271 (2003).
Defendants make
three specific arguments: (1) there is no evidence to support the Commission’s
finding that the hospital had actual notice of Plaintiff’s injury by accident
on 13 October 2001; (2) the Commission failed to find that Plaintiff provided a
reasonable excuse for not giving written notice; and (3) the Commission’s
findings do not justify its conclusion that Defendants were not prejudiced.
The Commission found that “[the hospital] had actual, verbal notice of the injury by accident on October 13, 2001, when [P]laintiff’s supervisor went with her to the Emergency Room[.]” Defendants argue (1) that there is no competent evidence to support the finding because the emergency room records do not show that Plaintiff was seen there, (2) that the nurses’ communication notebook shows that the person to whom Plaintiff allegedly reported her injury, Monica Miller, did not work with Plaintiff on 13 October 2001, and (3) that Arletha Brown was Plaintiff’s shift supervisor on 13 October 2001 and testified that Plaintiff did not report an injury to her.
The Commission’s
challenged finding is supported by the testimony of Plaintiff, who testified
that her shift supervisor, Monica Miller, accompanied her to the hospital’s
emergency room on 13 October 2001.
Although the Commission appears to have been mistaken in referring to
the date as 13 October 2001, rather than 14 October 2001, when Monica Miller
filled in as Plaintiff’s shift supervisor, this mistake is not material. The remainder of the Commission’s finding is
supported by competent evidence.
Therefore, the hospital had actual notice of Plaintiff’s injury by
accident, which obviated the need for Plaintiff to provide written notice. See Lakey, 155 N.C. App. at 172, 573
S.E.2d at 706.
Defendants also
argue the Commission erred by failing to find that Plaintiff had a reasonable
excuse for the delay in providing written notice. However, because the Commission found that Defendants had actual
knowledge of Plaintiff’s injury, the Commission was not required to make a
finding regarding written notice. Even
assuming, arguendo, that the Commission was required to make such a
finding, the Commission did find that “[P]laintiff’s application for disability
benefits provided written notice of the incident on November 27, 2001.” Although this was more than thirty days
after the incident, our Court has held that “a ‘reasonable excuse’ for failing
to give timely notice includes ‘a belief that [the] employer is already
cognizant of the accident.’“ Westbrooks
v. Bowes, 130 N.C. App. 517, 528, 503 S.E.2d 409, 416 (1998) (quoting Lawton
v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160
(1987)). Therefore, by finding that
Plaintiff gave verbal notice of the injury by accident to her shift supervisor,
the Commission implicitly found that Plaintiff believed the hospital was
already cognizant of her injury and that Plaintiff had a reasonable excuse for
failing to give written notice within thirty days of the accident.
Defendants also
argue the Commission’s findings do not support its conclusion that Defendants
were not prejudiced by Plaintiff’s delay in providing written notice of the
accident. However, because the
Commission found that the hospital had actual knowledge of Plaintiff’s injury,
the Commission was not required to make
findings regarding prejudice to Defendants. We overrule the assignments of error grouped under this argument.
III.
Defendants next
argue the Commission erred
by allowing
Plaintiff to take the deposition of Dr. James Currin after the record had
closed, after briefs had been presented, and after oral argument had taken
place, where Plaintiff had not made such a request before the Deputy
Commissioner and did not make such a request in either the Form 44 or brief to
the . . . Commission on appeal.
Under N.C. Gen.
Stat. §97-85 (2005),
[i]f application
is made to the Commission within 15 days from the date when notice of the award
shall have been given, the full Commission shall review the award, and, if good
ground be shown therefor, reconsider the evidence, receive further evidence,
rehear the parties or their representatives, and, if proper, amend the award[.]
Defendants
argue that N.C.G.S. §97-85 “is predicated on the notion that the party seeking
to reopen the record will have raised this as an issue with particularity in
advance, and the opposing party will have been given an opportunity to
respond.” Defendants cite Roberts
v. Wal-Mart Stores, Inc., 173 N.C. App. 740, 619 S.E.2d at 907 (2005),
where our Court held that the portion of the Workers’ Compensation Rules
requiring appellants to state with particularity the grounds for appeal may not
be waived by the Commission. Id.
at 744, 619 S.E.2d at 910. In Roberts,
the plaintiff alleged that while working in the defendant-employer’s cafe, she
“felt a snap in her lower back as she was lifting a bag-in-a-box of soft drink
syrup weighing fifty-five pounds.” Id.
at 741, 619 S.E.2d at 908. The
plaintiff notified the defendant-employer of her injury more than six months
after the incident. Id. at 742,
619 S.E.2d at 909. A deputy
commissioner held that the plaintiff suffered a compensable incident at work,
but concluded that the plaintiff’s claim should be denied for failure to give
timely notice pursuant to N.C.G.S. §97-22.
Id. The plaintiff filed a
notice of appeal with the Commission, but did not file a Form 44 or a brief
with the Commission. Id.
In Roberts,
the Commission issued an order waiving oral argument and announced it would
file a decision based upon the record. Id. The defendant-employer and the defendant
insurance company (collectively the defendants) petitioned the Commission to
allow them to present oral and written arguments, but never received a
response. Id. The Commission found that the plaintiff had
been unable to earn the same or greater wages for a period of approximately two
months and awarded the plaintiff total disability compensation for that period
of time. Id. at 742-43, 619
S.E.2d at 909. The Commission further
instructed the defendants to pay all of the plaintiff’s medical expenses
incurred as a result of the compensable injury. Id. at 743, 619 S.E.2d at 909.
On appeal, the
defendants argued “they were prejudiced by the
. . . Commission’s sudden declaration . . . that [the]
plaintiff’s claims would be decided without briefs or oral arguments and that
its decision would be based upon the record.”
Id. at 743-44, 619 S.E.2d at 910. Our Court recognized that pursuant to Rule 701(2) of the Workers’
Compensation Rules, the “‘[f]ailure to state with particularity the grounds for
appeal shall result in abandonment of such grounds, as provided in paragraph
(3).’“ Id. at 744, 619 S.E.2d at
910 (quoting Workers’ Comp. R. of N.C. Indus. Comm’n 701(2), 2005 Ann. R.
(N.C.) 919, 943). Rule 701(3) states
that “‘[p]articular grounds for appeal not set forth in the application for
review shall be deemed abandoned, and argument thereon shall not be heard
before the Full Commission.’“ Id.
(quoting Workers’ Comp. R. of N.C. Indus. Comm’n 701(3), 2005 Ann. R. (N.C.)
919, 943). While our Court also
recognized that the Commission has the discretion to waive the use of a Form
44, we held that “the portion of Rule 701 requiring [an] appellant to state
with particularity the grounds for appeal may not be waived by the
. . . Commission.” Id. Our Court reversed the Commission and
vacated its opinion and award. Id.
In the present
case, based upon Roberts, Defendants argue they were unfairly deprived
of notice that Plaintiff would request the opportunity to present additional
evidence. However, Roberts is
inapposite. In Roberts, the Commission
violated its own rules by deciding the appeal based upon the record when the
plaintiff never set forth the grounds for appeal. In the present case, Plaintiff filed a Form 44 setting forth the
grounds for appeal. However, because
the Deputy Commissioner determined that Plaintiff did not suffer an injury by
accident, Plaintiff’s grounds for appeal focused on that determination. When Plaintiff made application to the
Commission, the Commission was authorized, pursuant to N.C.G.S. §97-85, to
re-open the record to take additional evidence.
The present
case is analogous to Lynch v. Construction Co., 41 N.C. App. 127, 254
S.E.2d 236, disc. review denied, 298 N.C. 298, 259 S.E.2d 914 (1979),
where the plaintiff sought benefits for an injury by accident that allegedly
occurred at work. Id. at 127,
254 S.E.2d at 236. The plaintiff
alleged he slipped and fell at work on 1 March 1973, but did not report the
fall to his foreman until 5 March 1973.
Id. at 127-28, 254 S.E.2d at 236. The plaintiff was treated for pain two weeks after the accident
and continued to work for the defendant until 8 May 1973, when he was admitted
to the hospital. Id. at 128, 254
S.E.2d at 236-37. Dr. Guy L. Odom (Dr.
Odom) operated on the plaintiff to remove a ruptured disc on 22 May 1973 and
continued to treat the plaintiff thereafter.
Id. at 128, 254 S.E.2d at 237.
Dr. Odom opined that the “plaintiff reached maximum improvement by 13
December 1973 with a 20 per cent permanent partial disability.” Id.
“The deputy hearing commissioner sustained objections by [the]
defendant’s counsel to two questions asked of Dr. Odom as to whether the
witness had an opinion satisfactory to himself ‘as to what caused’ the
condition of which [the] plaintiff complained.” Id. Dr. Odom then
testified that the plaintiff’s condition could have been caused by several
factors other than a fall. Id. The deputy commissioner found that the
plaintiff sustained an injury by accident on 1 March 1973, entitling him to
“temporary total disability from 8 May 1973 to 13 December 1973 and for 20
percent permanent partial disability . . . for a period of sixty
weeks.” Id.
On appeal, the
Commission, on its own motion, remanded the case to take additional medical
testimony regarding the causal connection.
Id. The defendant
appealed and we granted the defendant’s petition for writ of certiorari. Id. at 129, 254 S.E.2d at 237. The defendant argued the Commission exceeded
the power granted to it by N.C.G.S. §97-85 because no good ground was shown to
receive further evidence. Id. The defendant specifically argued that “the
‘good ground’ which [N.C.]G.S. [§] 97-85 requires to be shown before the
Commission may ‘receive further evidence’ means something more than the mere
failure of a claimant to make out his case after he has had a fair opportunity
to do so.” Id. at 130, 254
S.E.2d at 238.
Our Court
recognized that “[i]t is axiomatic that the Workmens’ Compensation Act should
be liberally construed to achieve its purpose of providing compensation to
employees injured by accident arising out of and in the course of their
employment[.]” Id. Our Court also recognized that the strict
procedural rules applicable to ordinary civil actions are not appropriate in
workers’ compensation proceedings. Id. Our Court held that the powers given to the
Commission under N.C.G.S. §97-85 “are plenary powers to be exercised in the
sound discretion of the Commission.
Specifically, we hold that whether ‘good ground be shown therefore’ in
any particular case is a matter within the sound discretion of the
Commission[.]” Id. at 130-31,
254 S.E.2d at 238. We then held that
the Commission did not abuse its discretion, and we affirmed the Commission’s
opinion and award. Id. at 131,
254 S.E.2d at 238.
In the present
case, as in Lynch, Defendants have not demonstrated that the Commission
abused its discretion by reopening the record to receive further evidence. Because the Deputy Commissioner determined
that Plaintiff did not sustain a compensable injury by accident, Plaintiff’s
grounds for appeal focused on that ruling.
The Commission had the discretion to reopen the record on the issue of
causation, especially where the Deputy Commissioner did not reach that
issue. We overrule the assignments of
error grouped under this argument.
IV.
Defendants
argue the Commission abused its discretion and deprived Defendants of due
process by allowing Plaintiff to take Dr. Currin’s deposition “where Defendants
were not subsequently allowed to [re-depose] their expert witnesses, or to
present new briefs or arguments encompassing all of the evidence in the
case.” Defendants rely upon Allen v.
K-Mart, 137 N.C. App. 298, 528 S.E.2d 60 (2000), where the plaintiff, a
stocker for K-Mart, sustained a compensable injury “when she lifted a box of
stationery to put into a shopping cart and pulled a muscle in her left
side.” Id. at 298-99, 528 S.E.2d
at 61. The plaintiff was seen by a
doctor at Urgent Care, and then by an orthopedic surgeon, who released the
plaintiff to return to work without restriction and who further stated that the
plaintiff would not have any permanent partial impairment rating. Id. at 299, 528 S.E.2d at 61-62. The plaintiff continued to work until she
had a disagreement with a personnel officer.
Id. at 299, 528 S.E.2d at 62.
The plaintiff did not return to work after 30 August 1995. Id.
The plaintiff
began seeing a family physician, Dr. Miller, who initially diagnosed the
plaintiff as having a cervical and lumbar muscle strain. Id. at 300, 528 S.E.2d at 62. Dr. Miller also noted that the plaintiff
“had been depressed and suffering from anxiety/panic attacks for more than one
and one-half years.” Id. Dr. Miller eventually “diagnosed [the]
plaintiff with fibromyalgia ‘sort of by exclusion because all of the other
tests . . . looked pretty normal.’“ Id. However, the
plaintiff never sought a specialist in the field of fibromyalgia prior to the
hearing before a deputy commissioner. Id.
The deputy commissioner found that
as of 30 August 1995, the plaintiff was no longer disabled as a result of her
compensable injury. Id. The deputy commissioner awarded the
plaintiff all medical expenses she incurred as a result of her compensable
injury, but denied any medical expenses for treatment of fibromyalgia. Id.
The plaintiff
filed notice of appeal and, five months later, filed a “motion for independent
psychiatric and fibromyalgia specialist examinations.” Id. at 300-01, 528 S.E.2d at 62. The defendants objected but the Commission
did not respond to the objection, and the Commission allowed the plaintiff
sixty days to obtain psychiatric and rheumatology expert opinions. Id. at 301, 528 S.E.2d at 62-63. The Commission allowed the plaintiff an
additional extension of time and the plaintiff then submitted a psychiatric
report by Dr. Margaret Dorfman (Dr. Dorfman).
Id. at 301, 528 S.E.2d at 63.
The plaintiff also asked the Commission to allow her to see Dr. Alan
Spanos (Dr. Spanos), who was a general practitioner with experience in
diagnosing and treating fibromyalgia, instead of seeing a rheumatologist. Id.
The defendants again objected, but the Commission allowed the plaintiff
to see Dr. Spanos and submit his report to the Commission, without addressing
the defendants’ objection. Id.
at 301-02, 528 S.E.2d at 63.
The Commission
relied upon Dr. Dorfman’s report to find that the plaintiff’s “psychiatric
problems, panic attacks and depression . . . were caused or
significantly aggravated by her injury by accident[.]” Id. at 302, 528 S.E.2d at 63. The Commission relied upon Dr. Spanos’
report to find that the plaintiff’s “fibromyalgia, related pain syndromes and
her musculoskeletal and neuropathic disfunctions . . . were
caused or significantly aggravated by her injury by accident[.]” Id.
On appeal, our
Court reversed the Commission’s opinion and award, recognizing that “[t]he
evidence offered by Drs. Spanos and Dorfman was completely different from any
other evidence admitted up to then.” Id.
at 304, 528 S.E.2d at 64-65. We also
recognized that the defendants had filed five separate objections to the
independent medical examinations, a request to depose the new physicians, and
six requests for an independent medical examination by a physician of the
defendants’ choosing, and that the Commission did not respond to any of the
objections or requests. Id. at
302-03, 528 S.E.2d at 63-64. Our Court
held as follows:
We agree with
[the] defendants that the Commission manifestly abused its discretion by
allowing significant new evidence to be admitted but denying [the] defendants
the opportunity to depose or cross-examine the physicians, or requiring [the]
plaintiff to be examined by experts chosen by [the] defendants. Therefore, we hold that where the Commission
allows a party to introduce new evidence which becomes the basis for its
opinion and award, it must allow the other party the opportunity to rebut or
discredit that evidence.
Id. at 304, 528
S.E.2d at 64-65.
In the present
case, unlike in Allen, Defendants had the opportunity to, and did,
cross-examine Dr. Currin during his deposition. Defendants also argue they were not allowed to re-depose their
expert witnesses and were not allowed to present new briefs or arguments. However, Defendants never requested the
opportunity to re-depose their witnesses.
Rather, in their letter objecting to the Commission’s decision to allow
Plaintiff to depose Dr. Currin, Defendants stated:
It would be
prejudicial to [D]efendants, and contrary to basic procedure, for [P]laintiff
to now be allowed to call her expert witnesses after [D]efendants have called
theirs. The only remedy would be to
allow [D]efendants to re-call Dr. Paschal and Mr. Moore again after
[P]laintiff’s experts testify, and tax the costs of those depositions to
[P]laintiff.
Also, the
Commission did not rule that Defendants could not present additional
argument. The Commission only stated,
in its order reopening the case, that “[n]o further oral arguments or briefs
will be required.” For the reasons
stated above, we overrule these assignments of error.
V.
Defendants
argue the Commission erred by relying upon the testimony of Dr. Currin. Specifically, Defendants argue that Dr.
Currin’s testimony was not sufficiently reliable under the standard set forth
in State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), and reiterated
in Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674
(2004). Defendants argue that Dr.
Currin’s opinion that Plaintiff’s accident at work probably aggravated her
lymphedema was not based upon a reliable theory because Dr. Currin did not cite
any established medical techniques or review any studies establishing that a
single incident can aggravate pre-existing lymphedema. Defendants also argue that Dr. Currin’s
testimony was legally insufficient to prove causation because his opinion was
based solely on the notion of post hoc ergo propter hoc.
It appears that
our courts have not decided whether the standard for admissibility of expert
testimony set forth in Goode and Howerton applies in workers’
compensation cases. However, even
assuming arguendo, without deciding, that the Goode and Howerton
standard applies, Dr. Currin’s testimony was sufficiently reliable. In Howerton, our Supreme Court
reiterated the three-part test for evaluating the admissibility of expert
testimony which had been stated in Goode: “(1) Is the expert’s proffered
method of proof sufficiently reliable as an area for expert testimony?
. . . (2) Is the witness testifying at trial qualified as an
expert in that area of testimony? . . . (3) Is the expert’s
testimony relevant?” Howerton,
358 N.C. at 458, 597 S.E.2d at 686 (citing Goode, 341 N.C. at 527-29,
461 S.E.2d at 639-41).
When
determining the reliability of expert testimony, the trial court should first
“look to precedent for guidance in determining whether the theoretical or
technical methodology underlying an expert’s opinion is reliable.” Id. at 459, 597 S.E.2d at 687. However, where the trial court is without
precedential guidance, the trial court should focus on the following
nonexclusive factors of reliability: “‘the expert’s use of established
techniques, the expert’s professional background in the field, the use of
visual aids before the jury . . ., and independent research conducted
by the expert.’“ Id. at 460, 597
S.E.2d at 687 (quoting State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d
847, 852-53 (1990)). Our Supreme Court
emphasized that “reliability is thus a preliminary, foundational inquiry into
the basic methodological adequacy of an area of expert testimony. This assessment does not, however, go so far
as to require the expert’s testimony to be proven conclusively reliable or
indisputably valid before it can be admitted into evidence.” Id.
Therefore, our Supreme Court held: “[O]nce the trial court makes a
preliminary determination that the scientific or technical area underlying a
qualified expert’s opinion is sufficiently reliable (and, of course, relevant),
any lingering questions or controversy concerning the quality of the expert’s
conclusions go to the weight of the testimony rather than its admissibility.” Id. at 461, 597 S.E.2d at 688.
Dr. Currin
testified that he was a board certified family practitioner who practiced at
Laurinburg Family Practice from 1980 until his retirement on 6 July 2004. Over the course of his twenty-five year
career, Dr. Currin treated about one hundred patients with lymphedema. However, because Dr. Currin saw his patients
multiple times during his twenty-five year career, he may have seen those one
hundred patients with lymphedema “a thousand times.” Because of Dr. Currin’s experience in treating lymphedema, we
hold that Dr. Currin’s expert opinion testimony was sufficiently reliable. As in Howerton, “any lingering
questions or controversy concerning the quality of the expert’s conclusions go
to the weight of the testimony rather than its admissibility.” Howerton, 358 N.C. at 461, 597 S.E.2d
at 688.
Defendants also
argue that Dr. Currin’s testimony was legally insufficient because it was based
solely upon the notion of post hoc ergo propter hoc. A claimant in a workers’ compensation case
bears the burden of proving, by a preponderance of the evidence, a causal
relationship between the injury and the claimant’s employment. Adams v. Metals USA, 168 N.C. App.
469, 475, 608 S.E.2d 357, 361, aff’d per curiam, 360 N.C. 54, 619 S.E.2d
495 (2005). “[W]here the exact nature
and probable genesis of a particular type of injury involves 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.” Click v. Freight
Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). “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.” Id. “‘[C]ould’ or
‘might’ expert testimony [is] 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.” Young v.
Hickory Bus. Furn., 353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000). Moreover, “if an expert’s opinion as to
causation is wholly premised on the notion of post hoc ergo propter hoc
(after it, therefore because of it), then the expert has not provided competent
record evidence of causation.” Singletary
v. N.C. Baptist Hosp., 174 N.C. App. 147, 154, 619 S.E.2d 888, 893 (2005)
(citing Young, 353 N.C. at 232-33, 538 S.E.2d at 916).
In the present
case, Dr. Currin repeatedly testified to a medical certainty that Plaintiff’s
accident at work probably aggravated her pre-existing lymphedema. Therefore, despite Defendants’ urging, we
are not faced with a situation where Dr. Currin only presented “could” or
“might” testimony. Furthermore, Dr.
Currin’s opinion testimony was not based solely on the notion of post hoc
ergo propter hoc. Dr. Currin also
testified that Plaintiff’s description of the accident was consistent with a
trauma of the type that would be associated with the development of lymphedema
in someone with Plaintiff’s medical history.
In Young,
our Supreme Court held that the evidence on causation in that case, which was
solely based upon the notion of post hoc ergo propter hoc, was
insufficient to support the Commission’s findings of fact that the plaintiff’s
fibromyalgia was caused by an accident at work. Id. at 233, 538 S.E.2d at 917. However, in Young, the plaintiff’s expert on causation
testified that “fibromyalgia [is] an illness or condition of unknown
etiology[,]” id. at 231, 538 S.E.2d at 915, and the Court pointed out
that fibromyalgia is a controversial medical condition. Id. at 232-33, 538 S.E.2d at
916. Moreover, the plaintiff’s expert
on causation acknowledged that he knew of several other potential causes of the
plaintiff’s fibromyalgia, but did not pursue any testing to determine whether
they were the causes of the plaintiff’s fibromyalgia. Id. at 231-32, 538 S.E.2d at 915-16. Unlike fibromyalgia, which was at issue in Young,
lymphedema does not appear to be a controversial medical condition. Defendants’ expert, Dr. Paschal, testified
that Plaintiff likely suffers from lymphedema.
Dr. Paschal simply testified that Plaintiff’s accident at work did not
aggravate her lymphedema. Also, unlike Young,
no other potential causes for the aggravation of Plaintiff’s preexisting, but
unsymptomatic lymphedema were identified in the present case. For the reasons stated above, we affirm the
Commission on this issue and overrule the assignments of error grouped under
this argument.
Defendants have
failed to set forth argument pertaining to their remaining assignments of
error, and we therefore deem them abandoned.
See N.C.R. App. P. 28(b)(6).
Affirmed.
Judges WYNN and
McCULLOUGH concur.