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NO. COA04-711
NORTH CAROLINA COURT OF
APPEALS
Filed: 18 October 2005
RANDY
R. LEWIS,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 744105
BEACHVIEW EXXON SERVICE,
Employer,
and
PENN
NATIONAL INSURANCE CO.,
Carrier,
Defendants.
Appeal by plaintiff from
opinion and award entered by the North Carolina Industrial Commission on 30
January 2004. Heard in the Court of
Appeals 1 March 2005.
Wilson & Ratledge,
P.L.L.C., by Perry J. Pelaez, for plaintiff-appellant.
Cranfill, Sumner &
Hartzog, L.L.P., by Buxton S. Copeland & Meredith T. Black, for
defendant-appellees.
HUDSON, Judge.
Deputy Commissioner W.
Bain Jones heard this case on 25 February 2002 and filed an opinion and award
on 31 July 2002, awarding plaintiff temporary total disability, medical
benefits, and attendant care for his claim related to his pulmonary
condition. Defendants appealed to the
Full Commission which, on 30 January 2004, reversed the opinion of the deputy
commissioner. Plaintiff appeals. For the reasons discussed below, we remand
the case for further findings and conclusions.
The evidence tends to
show that on 16 September 1997, while working as a mechanic for
defendant-employer, plaintiff felt a pop and severe pain in the abdomen when he
used a pry bar to change a crankshaft.
Plaintiff notified defendant-employer and went to Carteret General
Hospital (the hospital) the following day, where he was diagnosed with a
hernia. On 19 September 1997, Dr.
Richard Wray surgically repaired the hernia.
Plaintiff was released from the hospital the following day, 20 September
1997. On 21 September 1997, plaintiff
developed chest tightness, shortness of breath, and wheezing. He went back to the hospital, where he was
diagnosed with pneumococcal pneumonia and re-admitted. Plaintiff was treated with antibiotics and
discharged approximately one week later, with a diagnosis of severe obstructive
lung disease.
By 7 October 1997,
plaintiff’s hernia had healed. On 22
October 1997, Dr. Wray released plaintiff to work concerning his hernia
repair. However, Dr. Joseph Nutz
continued to treat plaintiff’s pulmonary condition and did not release him to
work. On 25 October 1997, plaintiff
again experienced chest tightness, shortness of breath, coughing and
congestion. He returned to the hospital
for four days and was diagnosed with chronic obstructive pulmonary
disease. Plaintiff had asthma as a
child and smoked all of his adult life.
In November 1997,
defendants referred plaintiff to Dr. Ted Kunstling, a pulmonary disease
specialist. After examining plaintiff,
Dr. Kunstling determined that plaintiff had experienced acute “exacerbation of
chronic obstructive pulmonary disease by a lower respiratory infection, which
occurred subsequent to his inguinal hernia repair.” In an evaluation letter to defendants’ claims representative, Dr.
Kunstling indicated that plaintiff’s pulmonary condition was causally related
to the hernia operation. Defendants
then filed a Form 60, admitting plaintiff’s right to compensation as of 31
December 1997.
In April 1998, Dr.
Kunstling indicated plaintiff could return to work in jobs that required no
strenuous exertion and no exposure to dust, fumes, or extreme
temperatures. On 28 May 1998, Dr.
Kunstling determined that plaintiff had reached maximum medical improvement as
to his asthma but would continue to need treatment for future exacerbations. Although plaintiff was offered several jobs,
he was too symptomatic to accept employment, as verified by Dr. Kunstling. On 13 May 1999, Dr. Kunstling indicated that plaintiff was
totally and permanently disabled due to his pulmonary condition.
Plaintiff filed a Form
33 on 8 July 2000, for failure to pay medical expenses. On 26 September 2000, defendants filed a
Form 33R, contending that plaintiff’s condition was not causally related to his
compensable injury from 16 September 1997.
Then on 4 October 2000, defendant-carrier filed a Form 62, reducing
plaintiff’s temporary total disability for alleged prior miscalculation of the
average weekly wage. Defendants hired
Dr. Gregory Pape, Chief of Pulmonary and Critical Care Medicine at East Carolina
School of Medicine, and Dr. Albert Schwartz, Chief of Pulmonary Medicine at
Duke University to review plaintiff’s case. Dr. Schwartz examined plaintiff on
8 February 2001, and Dr. Pape evaluated him on 15 February 2001. Both doctors also reviewed the medical
records and each independently concluded that plaintiff’s pulmonary condition was not the result of
his surgery or hospital-acquired pneumonia, but rather was the result of
smoking, pre-existing asthma, and community-based pneumonia acquired prior
to his hernia surgery.
Plaintiff’s first three
arguments in his brief essentially assert that the Commission erred by failing
to address his estoppel defense.
Plaintiff argues that N.C. Gen. Stat. §97-18(d)(2000) required
defendants to contest plaintiff’s claim within ninety days from his injury and
that they failed to do so. It is
undisputed that after filing a Form 60, defendants paid plaintiff for three
years before contesting the compensability of the injury. Plaintiff contends that defendants waived
their right to contest compensability of his pulmonary condition when they did
not contest it within ninety days of the injury. Similarly, plaintiff argues that because defendants paid him for
three years without denying his claim, that they should now be estopped from
denying his claim. Without addressing
the merits of plaintiff’s substantive arguments here, we conclude that the
Commission erred in failing to address these issues.
The parties stipulated
that the issues before both the deputy commissioner and the Full Commission
included “whether defendants are estopped from denying plaintiff’s pulmonary
condition.” These stipulations of the
issues are set forth in both opinions.
The scope of this Court’s review of an Industrial Commission decision is
limited:
(1) the full Commission
is the sole judge of the weight and credibility of the evidence, and (2)
appellate courts reviewing Commission
decisions are limited to reviewing whether any competent evidence supports the Commission’s
findings of fact and whether the findings of fact support the Commission’s
conclusions of law.
Deese v. Champion Int’l
Corp., 352
N.C. 109, 116, 530 S.E.2d 549, 553 (2000) (citing Adams v. AVX Corp., 349
N.C. 676, 509 S.E.2d 411 (1998)). We
may not “weigh the evidence and decide the issue on the basis of its weight,”
but must only determine whether the record contains “any evidence tending to
support the finding.” Adams, 349
N.C. at 681, 509 S.E.2d at 414 (internal citation and quotation marks omitted).
However, the Commission made no
findings of fact or conclusions of law regarding waiver or estoppel here.
“While the Commission is
not required to make findings as to each fact presented by the evidence, it
must find those crucial and specific facts upon which the right to compensation
depends.” Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 705,
599 S.E2d 508, 511 (2004) (internal citations and quotations omitted). More specifically, the Commission must
address the issue of estoppel. Purser
v. Heatherlin Properties, 137 N.C. App. 332, 338, 527 S.E.2d 689, 693
(2000); see also Bowen v. Cra-Mac Cable Services, Inc., 60 N.C. App.
241, 247, 298 S.E.2d 760, 763 (1983).
Here, as in Purser, “the Industrial Commission failed to consider
the application of the doctrine of estoppel to the factual scenario at
hand.” 137 N.C. at 338, 527 S.E.2d at
693. Accordingly, we remand this
matter to the Industrial Commission for further proceedings and to make
findings of fact and conclusions of law regarding all issues raised by the
evidence upon which plaintiff’s right to compensation depends.
In light of this
conclusion, we decline to address plaintiff’s other arguments.
Reversed and remanded.
Judge WYNN concurs.
Judge STEELMAN concurs
in part and dissents in part.
NO.
COA04-711
NORTH CAROLINA COURT OF
APPEALS
Filed: 18 October 2005
RANDY
R. LEWIS,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 744105
BEACHVIEW EXXON SERVICE,
Employer,
and
PENN
NATIONAL INSURANCE CO.,
Carrier,
Defendants.
STEELMAN,
Judge concurring in part and dissenting in part.
I
concur with the majority opinion, remanding this matter to the Industrial
Commission for further findings of fact and conclusions of law on the issue of
estoppel. This issue was clearly before
the Commission, is specifically mentioned in the Opinion and Award, and was
extensively discussed in Commissioner Ballance’s dissenting opinion. However, the Commission made no findings of
fact or conclusions of law on this issue.
I
dissent as to the majority opinion’s refusal to discuss the remaining issues
brought forward by plaintiff’s appeal, and specifically to the remanding of
this case to the Commission, allowing it to make findings and conclusions as to
“all issues raised by the evidence upon which plaintiff’s right to compensation
depends.”
The
estoppel issue is entirely separate and distinct from the issue of whether plaintiff is entitled to
receive compensation under the facts of this case. If the Commission erred in not awarding compensation, then this
renders the estoppel question moot. If
the Commission properly denied compensation, then this limits the scope of the
Commission’s review upon remand to the question of estoppel.
Plaintiff
brings forward four arguments challenging the findings of fact and conclusions
of law. “Appellate review of an order
and award of the Industrial Commission is limited to a determination of whether
the findings of the Commission are supported by the evidence and whether the
findings in turn support the legal conclusions of the Commission. This is so even though there is evidence
which would support a finding to the contrary.” Simon v. Triangle Materials,
Inc., 106 N.C. App. 39, 41, 415 S.E.2d 105, 106 (1992) (citation
omitted).
The
essential facts in this case are not in dispute. Plaintiff suffered a hernia on 16 September 1997 in the course
and scope of his employment. On 19
September 1997, the hernia was surgically repaired, and plaintiff was released
from the hospital the following day. On
21 September 1997, plaintiff was admitted to the hospital with pneumococcal
pneumonia. Plaintiff was subsequently
found to be totally and permanently disabled as a result of chronic obstructive
pulmonary disease. The dispute in this
case is over the conflicting opinions of medical experts on two points: (1)
whether plaintiff contracted pneumococcal pneumonia while hospitalized for his
hernia surgery; and (2) whether the pneumonia resulted in an exacerbation of
his prior chronic pulmonary disease.
As
to the first point, plaintiff’s expert, Dr. Kunstling, based his opinion that
the pneumonia was a “complication of the surgery’ upon the temporal
relationship between his hospitalization and contracting pneumonia, and the
type of pneumonia. Defendant’s expert,
Dr. Pape, rendered an opinion that the pneumonia was unrelated to his
hospitalization. This was based upon
the temporal relationship between the hospitalization and the type of
pneumonia. Dr. Pape testified that when
a patient develops pneumonia within 5 days of hospitalization, it was more
likely acquired in the community and not the hospital. Since plaintiff developed pneumonia within
two days of his hospitalization, it was acquired in the community, prior to his
hospitalization.
As
to the second point, Dr. Kunstling gave an opinion that plaintiff experienced
“an exacerbation of chronic obstructive pulmonary disease by a lower
respiratory infection, which occurred subsequent to his surgical hernia
repair.” Dr. Pape testified that
plaintiff’s subsequent respiratory problems were not related to his hernia
surgery. Defendant’s other expert, Dr.
Schwartz, testified that the respiratory and pulmonary problems that plaintiff
experienced were unrelated to the hernia surgery. He further opined that plaintiff’s current condition was not
aggravated by the pneumonia.
The
Commission made the following finding concerning the testimony of these
experts:
21. Though he treated plaintiff prior in time to Dr. Pape and Dr. Schwartz, Dr. Kunstling is not in a better position than these doctors to determine whether plaintiff’s hernia surgery is the cause of plaintiff’s subsequent pulmonary and respiratory conditions. Dr. Kunstling bases his causation opinion on incorrect facts and on a temporal relation between the hernia surgery and the respiratory problems plaintiff has developed. Dr. Kunstling’s opinion is given less weight than that of Dr. Pape and Dr. Schwartz, who both opine that plaintiff’s current pulmonary conditions are a result of a combination of his 20-plus year smoking history, his asthma and the community-based pneumonia he acquired prior to his hernia surgery.
The
credibility of witnesses and the weight to be given to a witness’ testimony are
matters for the Industrial Commission to decide. Russell v. Lowes Prod. Distr., 108 N.C. App. 762,
765, 425 S.E.2d 454, 457 (1993). I
would hold that there is evidence before the Commission to support each of the
challenged findings of fact. It is
irrelevant whether there is evidence that would support contrary findings. Simon, 106 N.C. App. at 41, 415
S.E.2d at 106.
The
opinions of each of the experts were proper and admissible. When faced with conflicting expert opinions,
it is for the Commission to resolve these conflicts. Wagoner v. Douglas Battery Mfg. Co., 80 N.C. App.
163, 164, 341 S.E.2d 120, 121 (1986) (citation omitted). The Commission’s findings support its
conclusions that the plaintiff’s disability was not the result of his hernia
surgery.
I
would affirm the Commission’s decision that plaintiff’s pulmonary condition was
not the result of his hernia surgery and is not compensable, and that the
hernia surgery did not materially aggravate or exacerbate his pre-existing
pulmonary condition.