1. Workers' Compensation--causation--work-related accident
There was competent evidence to support the Industrial Commission's findings and
conclusions in a workers' compensation case that plaintiff employee's tinnitus and headaches
arose out of an injury by accident entitling plaintiff to temporary total benefits and temporary
partial disability, including evidence that: (1) plaintiff testified he had not had problems with
headaches or ringing in his ears prior to the work-related injury; (2) plaintiff's neurologist testified
plaintiff's complaints were consistent with a post-traumatic injury; and (3) other doctors testified
it is possible that these injuries stemmed from plaintiff's work-related injury.
2. Workers' Compensation--witnesses--right to cross-examine
The Industrial Commission abused its discretion in a workers' compensation case by
allowing significant new evidence to be admitted from a doctor's report but denying defendants
an opportunity to question the witness doctor, because: (1) the evidence was completely different
from any other evidence admitted up to that point in the case, and therefore, the Commission
should have allowed defendants the opportunity to attack the probative value of the opinion
testimony; and (2) 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.
Thomas & Farris, by Eliot F. Smith, for plaintiff-appellee.
Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, for
defendant-appellants.
EAGLES, Chief Judge.
Foster Forbes Glass Division and Gallagher Bassett Services,
Inc. (collectively “defendants”) appeal from an amended opinion and
award of the North Carolina Industrial Commission (“Commission”)
awarding David Goff (“plaintiff”) workers' compensation benefits forhis tinnitus, headaches, and depression. Because we conclude
that
the Commission denied defendants their right to examine Dr. Whitt,
upon whose additional report the Commission based its decision, we
reverse in part, and remand the case to the Industrial Commission.
Plaintiff began working for defendant in January 1979. At
the time of the work-related injury, plaintiff worked as a cold end
shift supervisor, and had been so employed for six years. As a
shift supervisor, plaintiff was responsible for the equipment on
each of six lines, inspecting all production, and supervising the
forty employees who run the six production lines. Plaintiff's work
area was very noisy and busy at all times.
On 17 May 1995, an automatic palletizer machine experienced
problems. Plaintiff climbed the stairs on top of the machine about
twenty feet off the ground, lay down on top of the plate and hung
his head and shoulders off to reach down. As he did this, he
received an electrical shock. He became stunned and “probably
lost consciousness.” Subsequently he reported to the nurse's
office. He remembered having “black vision” and a lack of balance.
On 11 July 1995, plaintiff was seen by his family physician for
headaches. The family physician referred plaintiff to a
psychiatrist for depression. On 12 July 1995, Dr. Whitt, a
psychiatrist, saw plaintiff, diagnosed him with depression, andprescribed various medications for him. On 28 July 1995, plaintiff
was “written out of work” by Dr. Whitt. Plaintiff remained out of
work until 30 September 1995, when Dr. Whitt released him for work.
Plaintiff began to receive short-term disability benefits, for his
depression, on 27 July 1995 and continued to receive them until he
returned to work on 30 September 1995.
Plaintiff continued to experience headaches though August 1995
and was referred to a neurologist, who diagnosed plaintiff withheadache syndrome and tinnitus of the left ear. Tinnitus is
characterized by continuous ringing in the ears. Still complaining
of the headaches and ringing in his ears, plaintiff was further
referred to an otorhinolaryngologist. By 22 November 1995,
plaintiff could no longer perform his duties because of the
increased headaches and tinnitus. At that time plaintiff began
again to receive short-term disability payments and continued to
receive them until 8 April 1996, when he began receiving long-term
disability.
On 29 January 1998, Deputy Commissioner Taylor filed an
opinion and award, determining that plaintiff's depression was not
the result of a work related injury, and awarding plaintiff
temporary partial disability compensation at a rate of $476.81 per
week.
Defendants filed a notice of appeal to the Full Commission on
13 February 1998. The Full Commission filed its opinion and award
25 August 1998, refusing to alter the Deputy Commissioner's opinion
and award except for the findings regarding plaintiff's depression.
The Full Commission ordered that additional medical evidence was
required before a final determination on that issue could be made.
The Commission gave the parties sixty days to obtain additional
psychological and neurological evaluations of the plaintiff and to
submit those records directly to the Commission. Plaintiff was
reevaluated by Dr. Whitt on 13 and 14 October 1998, and Dr. Whitt's
report, dated 5 November 1998, was submitted directly to the
Commission. By letter to the Commission, defendants objected tothe 5 November 1998 report on the grounds of hearsay, and
requested, in the alternative, that if the Commission found the
report to be admissible, the Commission grant the defendants an
additional 30 days to submit contentions.
The Commission amended its opinion and award on 5 March 1998
based on Dr. Whitt's report of 5 November 1998, stating:
24. Pursuant to the Full Commission's August 25,
1998 Opinion and Award, Dr. Whitt re-evaluated plaintiff
on October 13 and 14, 1998. Following this re-
evaluation, Dr. Whitt opined that plaintiff's May 17,
1995 work related injury was a significant contributing
factor in the exacerbation of plaintiff's depression.
25. Based upon the credible medical evidence of
record, plaintiff's depression was significantly
exacerbated by his May 17, 1995 injury by accident.
Defendant's objection was never addressed by the Commission.
The standard of review for an appeal from an opinion and award
of the Industrial Commission is limited to a determination of (1)
whether the Commission's findings of fact are supported by any
competent evidence in the record; and (2) whether the Commission's
findings justify its conclusions of law. Aaron v. New Fortis
Homes, Inc., 127 N.C. App. 711, 714, 493 S.E.2d 305, 306 (1997).
This is true even when there is evidence that would support
contrary findings. Ross v. Mark's Inc., 120 N.C. App. 607, 610,
463 S.E.2d 302, 304 (1995), Hilliard v. Apex Cabinet Co., 305 N.C.
593, 595, 290 S.E.2d 682, 684 (1982), Gilliam v. Perdue Farms, 112
N.C. App. 535, 536, 435 S.E.2d 780, 781 (1993).
[1]Defendants first challenge the Commission's findings and
conclusions that plaintiff's tinnitus and headaches arose out of aninjury by accident. In order for plaintiff to recover benefits
under the Act, he must show that his injuries resulted from (1) an
accident, (2) arising out of his employment, and (3) within the
course of his employment. Pickrell v. Motor Convoy, Inc., 322 N.C.
363, 366, 368 S.E.2d 582, 584 (1988).
Appellants argue that there was no competent evidence
presented that the plaintiff's tinnitus and headaches were
proximately caused by the 17 May 1995 injury. Defendants contend
that the tinnitus and headaches might be the result of an
occupational disease, a claim for relief never asserted by the
plaintiff. The Full Commission found:
19. As a direct and proximate cause of his injury
by accident arising out of and in the course of his
employment on May 17, 1995, plaintiff suffered severe
headaches and severe tinnitus of the left ear.
The plaintiff testified that he had not had problems with
headaches or ringing in his ears prior to the 17 May 1995 injury.
The plaintiff's neurologist testified that plaintiff's complaints
were consistent with a post-traumatic injury. Further, other
doctors testified that it is possible that these injuries stemmed
from plaintiff's work related injury. We hold that this evidence
is sufficient to support the Commission's findings of fact. We
also hold the findings of fact support the Commission's holding
that plaintiff was entitled to temporary total benefits for the
period of 22 November 1995 to 1 November 1996, and temporary
partial disability from 1 November 1996.
[2]The defendant also challenges the admissibility of Dr.
Whitt's report dated 5 November 1998. The Commission, relying onthis report, determined that plaintiff's depression was
significantly exacerbated by the electrical shock. The Commission
based its award of temporary partial disability benefits on this
finding.
We addressed a similar situation in Allen v. K-Mart, 137 N.C.
App. 298, 528 S.E.2d 60 (2000). There the Commission admitted
medical examiners' reports, over objection, without allowing
defendants to cross-examine the medical examiners. We held:
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, or
that 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.
Allen, 137 N.C. App. at 303-04, 528 S.E.2d at 64 (citations
omitted). In that case, the evidence offered by the additional
doctors was completely different from any other evidence admitted
up to then. Id. Therefore, upon admission of the reports, the
“Commission necessarily should have allowed defendants theopportunity 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), Allen v. K-Mart, 137 N.C. App.
at 304, 528 S.E.2d at 64.
Here, the defendants objected to the subsequent report of Dr.
Whitt being admitted without the opportunity to question the
witness. The Commission, in its finding number 24, clearly states
the report dated 5 November 1998, is the sole basis for the
Commission's finding of exacerbation. The defense timely objected
and requested an opportunity to examine Dr. Whitt with regard to
this report. 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.
For the foregoing reasons we affirm the opinion and award of
the Industrial Commission with regard to plaintiff's headaches and
tinnitus. As to the issue of plaintiff's depression, we reverse and
remand to the Full Commission for further proceedings consistent
with this opinion.
Affirmed in part, reversed and remanded in part.
Judges MARTIN and HORTON concur.
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