Workers' Compensation--witnesses--right to cross-examine
The Industrial Commission abused its discretion in a workers' compensation action by
allowing significant new evidence to be admitted from physicians but denying defendants the
opportunity to depose or cross-examine the physicians or requiring plaintiff to be examined by
defendant's experts. 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.
Law Offices of George W. Lennon, by George W. Lennon and
Michael W. Ballance, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan,
for defendant-appellants.
HUNTER, Judge.
K-Mart and KM Administrative Services (collectively
“defendants”) appeal from an amended opinion and award of the North
Carolina Industrial Commission (“Commission”), awarding Wendy H.
Allen (“plaintiff”) workers' compensation benefits for her
fibromyalgia. Because we conclude that the Commission denied
defendants their right to cross-examine plaintiff's independent
medical examiners upon which the Commission based its decision and
denied defendants an opportunity to be heard by the Commission with
regard to those examiners' reports, we hold that the Commissionmanifestly abused its discretion with regard to admitting those
reports into evidence. Therefore, we reverse and remand.
Plaintiff began working as a night stocker for K-Mart on 27
March 1995. On 30 May 1995, plaintiff sustained a compensable
workers' compensation injury when she lifted a box of stationery to
put into a shopping cart and pulled a muscle in her left side.
Several days later pursuant to defendants' safety coordinator's
urging, plaintiff went to Urgent Care to see a doctor who diagnosed
plaintiff as having a left shoulder strain. The doctor prescribed
muscle relaxers and immobilized plaintiff's arm in a sling. He
further took plaintiff out of work for four days and sent her to
physical therapy. After several days, the doctor released
plaintiff to go back to work with light duty restrictions of no
lifting, pushing, or pulling. Plaintiff returned to work on 20
June 1995 as a telephone operator to comply with her light duty
restrictions. In her new position, plaintiff worked various shifts
as she was filling in for other employees when they were away from
work.
As a result of plaintiff's subjective complaints of pain,
defendants sent plaintiff to see Dr. Whitehurst, an orthopedic
surgeon. Dr. Whitehurst stated that plaintiff's clinical findings
could not be explained on a physiological basis. On 6 July 1995,Dr. Whitehurst released plaintiff to return to work without any
restrictions, stating that he “would project that she would beconsidered to have reached her maximum medical improvement in 10-14
days.” He further stated that he did “not project any permanent
partial impairment rating.”
Defendants offered plaintiff her night stocker's position;
however, plaintiff declined, requesting instead to be moved to a
day shift. Because there was no day stocker position available,
plaintiff was assigned and accepted a customer specialist position.
Because of the shift change, plaintiff's pay was reduced. During
her trial return to work, plaintiff never mentioned having any
difficulty doing any of the work assigned her. In fact, plaintiff
performed all of her assigned job duties upon returning to work.
Plaintiff continued to work through the summer, until she had
a disagreement with personnel officer, Ms. Strickland. Although
plaintiff never reported the argument to anyone in her employer's
company, plaintiff never returned to work after 30 August 1995. In
her briefs to the Commission and to this Court, plaintiff cites her
disagreement with Ms. Strickland as the reason--stating that she
believed Ms. Strickland “fired” her. However, plaintiff concedes
that no words to that effect were ever spoken. One week later,
pursuant to company policy, K-Mart fired plaintiff for “fail[ing]
to show up for work or call in.”
After more than two months from the time she last saw Dr.
Whitehurst on 6 July, and without expressing further complaint to
defendants, plaintiff began seeing a family physician (“Dr.
Miller”) on 22 September 1995, complaining of back pain. Plaintiff
did not seek authorization from either defendants or theCommission. Initially, Dr. Miller diagnosed plaintiff as having a
“cervical muscle strain, lumbar muscle strain.” She further noted
that plaintiff had been depressed and suffering from anxiety/panic
attacks for more than one and one-half years. Although Dr. Miller
did not contact plaintiff's previous physician to obtain
plaintiff's medical history, Dr. Miller continued prescribing the
same medication for plaintiff's emotional problems that plaintiff
had been taking during that period of time. On 28 September 1995,
plaintiff returned to Dr. Whitehurst demanding testing which Dr.
Whitehurst believed to be unnecessary. Nevertheless, upon
plaintiff's insistence, Dr. Whitehurst conducted an MRI of
plaintiff's back and an EMG and nerve conduction studies on her
left arm. All tests on plaintiff returned with normal results.
Dr. Miller, upon receiving plaintiff's test results, forwarded
the MRI results to a Duke Hospital neuroradiologist for
interpretation. He, too, determined that the MRI was normal.
Nonetheless, Dr. Miller referred plaintiff to Dr. Ezzeddine, a
radiologist at Duke for further examination. He conducted another
MRI and EMG on plaintiff, both of which again returned with normal
results. Dr. Ezzeddine “noted that plaintiff had a physical exam
displaying hysterical tendencies and that the likelihood of a
neuropathy [that is, any disease of the nerves] or a radiculopathy
[any diseased condition of roots of spinal nerves] accounting for
her symptoms was quite slim.” Finally, Dr. Miller diagnosed
plaintiff with fibromyalgia “sort of by exclusion because all ofthe other tests . . . looked pretty normal.” However, prior to
the hearing before the deputy commissioner, plaintiff never sought
out a specialist familiar with fibromyalgia.
Deputy Commissioner John Hedrick made his findings and set out
an opinion and award filed 22 July 1997, denying plaintiff any
further workers' compensation, finding that “[a]s of 30 August
1995, plaintiff was no longer disabled as a result of her injury on
30 May 1995 [and awarding plaintiff] payment of all medical
expenses incurred as a result of her musculoskeletal strain on 30
May 1995, but . . . not . . . for treatment of fibromyalgia. . . .”
On 31 July 1997, plaintiff filed her notice of appeal to the
Full Commission. Five months later on 29 December 1997, plaintiff
filed a motion for independent psychiatric and fibromyalgia
specialist examinations. On 12 January 1998, defendants filed
their brief to the Full Commission and included their first
objection to plaintiff's request, stating:
To allow the plaintiff to submit additional
evidence at this late date would essentially
allow the plaintiff to re-litigate this claim
after a decision has been rendered and would
require a whole new hearing in order to obtain
additional lay witness evidence, depositions
of the new physicians, contentions and then
possible appeals.
(Emphasis added). Further, if plaintiff's request was allowed,
defendants requested in the alternative that plaintiff be required
to submit to an independent medical examination by a physician of
defendants' choosing. The matter was heard by the Full Commission
on 26 January 1998. By interlocutory order, the Full Commission
allowed plaintiff sixty days from 3 February 1998 to obtainpsychiatric and rheumatology expert opinions. It never addressed
defendants' objection. On 10 February 1998, defendants requested
clarification of the order from the Commission, specifically as to
whether the physicians plaintiff was to see would be chosen by
mutual agreement and again requesting that afterward, plaintiff be
required to submit to “an independent medical examination by a
qualified rheumatologist and/or psychiatrist of defendants[']
choosing.” Based on the record, that request also went without
response.
On 6 April 1998 (sixty-three days after the order allowing
plaintiff a sixty-day extension of time), plaintiff requested
another sixty-day extension claiming that she had been unable to
find a rheumatologist willing to accept a workers' compensation
patient and that she had a psychiatric evaluation set up for 1 May
1998. Commissioner Scott extended plaintiff's time to file medical
reports on or before 8 June 1998. Plaintiff submitted a
psychiatric report by Dr. Margaret Dorfman on 26 May and at the
same time requested the Commission to allow her to see Dr. Alan
Spanos, “a general practitioner with experience in the diagnosis
and treatment of fibromyalgia,” instead of seeing a rheumatologist.
Plaintiff stated the reason being that no rheumatologist would take
her case for fear of not being paid. Plaintiff did not request the
Commission's assurance of payment to any rheumatologist. However,
she did request the Commission assure Dr. Spanos “that payment
would be forthcoming immediately after approval from the Industrial
Commission.” Defendants objected (for a third time) stating that the original basis fo
r plaintiff's motion for
an I.M.E. with a rheumatologist was Dr.
Miller's testimony in her deposition that a
rheumatologist would be in a better position
to make a diagnosis of fibromyalgia and
testify regarding the causation issue. If
plaintiff now wishes to see a physician other
than a rheumatologist, then her original basis
for her motion for an IME is not substantiated
by any evidence whatsoever.
Without ruling on defendants' objection, Commissioner Scott allowed
plaintiff's request in his order of 4 June 1998. Dr. Spanos'
report was submitted to the Commission on 16 July 1998.
On 22 September 1998, defendants filed with the Commission a
fourth objection to plaintiff's independent medical examinations.
Again, the Commission did not respond to defendants' objection. On
24 September 1998, the Full Commission issued its opinion and award
for plaintiff, finding in pertinent part that:
28. Plaintiff's fibromyalgia, related
pain syndromes and her musculoskeletal and
neuropathic disfunctions as diagnosed by Dr.
Spanos, were caused or significantly
aggravated by her injury by accident on 30 May
1995.
29. Plaintiff's psychiatric problems,
panic attacks and depression as diagnosed by
Dr. Dorfman, were caused or significantly
aggravated by her injury by accident on 30 May
1995.
Defendants have preserved six assignments of error. However,
because we are remanding this case to the Commission for further
action consistent with this opinion, we choose to address only one.
Defendants assign error to the Commission's use of discretion in
allowing and considering the independent medical examinations of
Drs. Dorfman and Spanos as evidence, without permitting defendantsto depose or cross-examine either physician or requiring plaintiff
to submit to an independent medical examination by a physician of
defendants' choosing. Defendants contend the Commission abused its
discretion, committing reversible error. We agree. Defendants
should have been allowed the opportunity to discredit the doctors'
reports.
In the record, we find that defendants filed five separate
objections to the Commission's allowance of the independent medical
examinations (12 January 1998, 2 June 1998, 12 August 1998, 22
September 1998, and 9 October 1998), one request to depose the new
physicians (9 October 1998) -- aside from having argued the need
for the physicians' depositions in their brief to the Full
Commission filed on 12 January 1998, and six requests to have
plaintiff submit to an independent medical examination by a
physician of defendants' choosing (12 January 1998, 10 February
1998, 2 June 1998, 12 August 1998, 22 September 1998, and 9 October
1998). Case law establishes that, in this regard, the Commission
is governed by “general rules of practice . . . . [And it], in
turn, must formally enter [its] ruling[s] into the record before
making the award.” Ballenger v. Burris Industries, 66 N.C. App.
556, 562, 311 S.E.2d 881, 885 (1984) (emphasis added). However,
from the record, the Commission responded to none of defendants'
objections or requests. Only in its amended opinion and award
filed 23 October 1998, addressing defendants' “Motion for
Reconsideration” filed after the Commission had already issued its
opinion and award in plaintiff's favor, did the Commission finallydeny “defendant[s'] requests that it be allowed to obtain the
deposition testimony of Dr. Dorfman and Dr. Spanos and that
plaintiff be ordered to submit to an independent medical
examination by a rheumatologist and psychiatrist of its choosing.”
We note that in its ruling, the Commission never states that
defendants' requests, motions or objections were not timely made,
thus they were properly before the Commission. The failure of the
Commission to timely address defendants' pending requests, motions
and objections without a doubt prejudiced the defendants in that
they had no reason to seek other means by which they could protect
their interests. The Commission's untimely ruling of 23 October
1998 left defendants without the option of fervently seeking from
the Commission its permission to depose the physicians, effectively
denying them due process because they lacked the opportunity to
discredit the evidence submitted by Drs. Spanos and Dorfman.
Our courts have long held that “[s]trictly speaking, the rules
of evidence applicable in our general courts do not govern the
Commission's own administrative fact-finding. . . .” However, the
Commission must “conform to court procedure [where] required by
statute or to preserve justice and due process.” Haponski v.
Constructor's Inc., 87 N.C. App. 95, 97, 360 S.E.2d 109, 110 (1987)
(citations omitted). It has long been the law in North Carolina
that:
a party to an action or proceeding, either
civil or criminal, may elicit from an opposing
witness on cross-examination particular facts
having a logical tendency to show that the
witness is biased against him or his cause, orthat the witness is interested adversely to
him in the outcome of the litigation.
State ex rel. Everett v. Hardy, 65 N.C. App. 350, 352, 309 S.E.2d
280, 282 (1983) (quoting State v. Hart, 239 N.C. 709, 711, 80
S.E.2d 901, 903 (1954). Furthermore,
Cross-examination of an opposing witness for
the purpose of showing his bias or interest is
a substantial legal right, which the trial
judge can neither abrogate nor abridge to the
prejudice of the cross-examining party.
Hart at 711, 80 S.E.2d at 903. See also Warren v. Jackson, 125
N.C. App. 96, 101, 479 S.E.2d 278, 281 (1997). The evidence
offered by Drs. Spanos and Dorfman was completely different from
any other evidence admitted up to then. Therefore, upon its
admittance of the reports, the Commission necessarily should have
allowed defendants the opportunity to “attack the probative value
of [the] opinion testimony . . . .” Thompson v. Lenoir Transfer
Co., 72 N.C. App. 348, 350, 324 S.E.2d 619, 621 (1985).
The opportunity to be heard and the right to cross-examine
another party's witnesses are tantamount to due process and basic
to our justice system. We agree with defendants that the
Commission manifestly abused its discretion by allowing significant
new evidence to be admitted but denying defendants the opportunity
to depose or cross-examine the physicians, or requiring plaintiff
to be examined by experts chosen by 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. We, therefore, reverse and remand to the Full Commission to
act in accordance with this opinion.
Reversed and remanded.
Judges GREENE and WALKER concur.
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