RICKY B. HANDY,
Employee, Plaintiff
v
.
PPG INDUSTRIES,
Employer, Self-Insured
and
KEY RISK MANAGEMENT SERVICES,
Servicing Agent, Defendants
No brief for pro se plaintiff-appellee.
Womble Carlyle Sandridge & Rice, PLLC, by Phillip Mohr, for
defendant-appellants.
THOMAS, Judge.
Defendants, PPG Industries and Key Risk Management Services,
appeal from an opinion and award of the North Carolina Industrial
Commission in favor of plaintiff, Ricky B. Handy.
They contend the Commission erred in determining the Deputy
Commissioner did not violate their due process or equal protection
rights by (1) changing plaintiff's theory of recovery ex mero motu
from injury by accident to occupational disease; (2) ordering ex
mero motu that a physician not present at the hearing be asked
questions; (3) formulating questions and an essential factual
hypothetical to be submitted to the physician; and (4) in sum,
assisting plaintiff with his claim. The Commission, based in part on the deposition testimony of
the physician ordered to testify by the Deputy Commissioner,
allowed plaintiff's claim and ordered defendants to pay all
resulting medical expenses. Based on the reasons herein, we affirm
the opinion and award of the Commission.
At the outset, we note plaintiff appeared pro se before the
Deputy Commissioner and the Full Commission, and did not file a
brief on appeal.
The facts are as follows: Plaintiff began working for
defendant-employer PPG in April 1994. During most of his
employment, plaintiff was a twist machine operator (TMO) in the
manufacturing of yarn.
His job consisted of three primary tasks. First, he was
required to doff his machine, which involved removing up to eighty
bobbins weighing between two and thirty-five pounds from the frame
of the machine and placing them on a pin truck. Doffing was not
required on most days, however.
Plaintiff's second task was cleaning the machine.
Approximately twelve times per shift, he used long brushes to clean
the inside of the frame of the machine, and used steel wool and
chemical towels to clean the other parts.
Plaintiff's third and perhaps most important task was called
the wrap-in procedure. His twist machine contained large spools of
fiberglass thread, referred to as packages, which were located at
two different levels, six-and-a-half and seven feet off the ground.
There were forty spools on each level. A certain length of threadwas required to hang from a package to allow plaintiff to thread
the machine and attach the thread to a bobbin. The machine was
supposed to automatically release the appropriate amount of thread,
but, in July 1997, it began to malfunction. As a result, plaintiff
often had to reach up and turn each package six or seven times,
overcoming the resistance in the packages in order to release the
thread. Plaintiff is five feet six-and-a-half inches in height,
which meant he often had to stand on his toes and reach over his
head to turn the packages.
Once the machine was fully threaded, plaintiff would then
monitor it to make sure the spindles were running. He would also
sweep the area around the machine.
Additionally, the evidence indicates plaintiff was a regular
weightlifter from 1991 until early 1998, but, thereafter, he lifted
weights at a reduced level and stopped doing certain exercises.
In November 1997, plaintiff began experiencing pain in his
left shoulder when he reached to turn the packages. He also
experienced the pain at night while not at work. Occasionally he
awakened with numbness in his left arm. He finally saw a
physician's assistant about his shoulder pain in late January 1998.
The physician's assistant noted that plaintiff complained of
increased pain when lifting weights and experienced improvement
when he avoided lifting them. Plaintiff was advised to take anti-
inflammatory medication and stop weightlifting.
On 10 February 1998, plaintiff saw Dr. Richard Worf, his
family doctor, and reported continuing shoulder pain. On 25 February 1998, as he was turning one of the packages at
work, plaintiff experienced a sharp pain in his left shoulder. He
was treated by the company nurse with heat and ice. On 5 March
1998, plaintiff saw Dr. Chris Christakos and reported shoulder
problems associated with overhead activity at work as well as
weightlifting. Christakos diagnosed plaintiff as suffering from
left shoulder impingement syndrome and prescribed medication and
rest. Nevertheless, plaintiff's symptoms persisted with only
slight improvement.
On 24 March 1998, Christakos gave plaintiff a steroid
injection in his left shoulder and referred him to physical
therapy. Plaintiff continued to see Christakos over the next six
months. Despite shoulder pain, plaintiff remained at PPG in a
light duty position.
Christakos eventually referred plaintiff to Dr. Gregory
Holthusen, an orthopaedic surgeon, who examined him on 28 October
1998. Holthusen was advised that plaintiff had suffered shoulder
pain for over a year. Plaintiff also reported his shoulder had
been treated with a cortisone injection and physical therapy but
the pain persisted. He described his overhead lifting at work and
weightlifting. Holthusen diagnosed plaintiff as suffering from
"rotator cuff tendinitis secondary to subacromial impingement."
Plaintiff was treated with an injection to the subacromial space
and his work restrictions were continued for two weeks.
On 3 February 1999, plaintiff again saw Holthusen and reported
increased symptoms associated with repeated overhead reaching. Plaintiff was advised not to perform activities above shoulder
level.
Despite plaintiff's shoulder problems, he neither missed time
at work nor sustained a reduction in wages.
On 11 August 1998, plaintiff filed a Form 33 request for
hearing in which he contended he suffered a left shoulder injury on
25 February 1998. Defendants responded by denying plaintiff
suffered an injury by accident or an occupational disease.
Plaintiff's claim was heard by Deputy Commissioner Morgan
Chapman on 10 February 1999. Plaintiff appeared pro se and
testified on his own behalf. He failed to present any additional
witnesses and failed to present any medical testimony on the issue
of causation. Diane Swicegood, plant nurse at PPG, testified for
defendants, who were represented by counsel. Plaintiff's answers
to interrogatories, his employee health record, and an employee
incident report were admitted into evidence.
Following the hearing, the Deputy Commissioner held the record
open on her own motion for the receipt of medical records. She
explained she would treat the claim as one for an occupational
disease and would permit the parties to submit written questions to
be mailed to Dr. Holthusen. The parties' written questions would
be added to questions she herself intended to prepare.
Defendants requested that Holthusen's testimony be taken by
deposition. The Deputy Commissioner granted defendants' request.
She ordered her factual hypothetical and follow-up questions be
submitted first and only then would defendants be allowed to cross-examine Holthusen.
In compliance with the Deputy Commissioner's order,
Holthusen's deposition was taken on 1 December 1999. Although he
received notice, plaintiff did not appear at the deposition or
submit questions. Defense counsel began the deposition by reading
the Deputy Commissioner's factual hypothetical and asking the
Deputy Commissioner's prepared questions. Defense counsel entered
an objection on the record. In response to the Deputy
Commissioner's hypothetical and follow-up questions, Holthusen
testified that plaintiff's job duties (1) placed him at risk of
developing shoulder tendinitis and (2) contributed to his
development of tendinitis. Defense counsel then proceeded with a
lengthy cross-examination of Holthusen covering approximately
thirty-one pages of transcript.
On 11 June 2000, the Deputy Commissioner entered an opinion
and award. She found plaintiff had not suffered an injury by
accident and concluded his shoulder tendinitis was an occupational
disease. She ordered defendants to pay all resulting medical
expenses, past and future. Defendants appealed to the Full
Commission. The Full Commission affirmed and defendants now appeal
to this Court.
The basis of defendants' appeal is their contention that the
Full Commission erred in determining the Deputy Commissioner had
not become an advocate for plaintiff, thus abandoning her role as
an impartial fact finder and decision maker.
The courts of this State have long held that the rules ofprocedure and evidence applicable in our general courts do not
govern the Industrial Commission's administrative fact-finding
function. See Maley v. Furniture Co., 214 N.C. 589, 200 S.E. 438
(1939); Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 535
S.E.2d 602 (2000); Allen v. K-Mart, 137 N.C. App. 298, 528 S.E.2d
60 (2000); Haponski v. Constructor's Inc., 87 N.C. App. 95, 360
S.E.2d 109 (1987). In fact, the Workers' Compensation Act (Act)
mandates that the processes, procedures, and discovery under the
Act "shall be as summary and simple as reasonably may be." N.C.
Gen. Stat. § 97-80(a) (2001). The Commission is empowered to make
rules for carrying out the provisions of the Act consistent with
this stated purpose. Id. Members of the Commission, as well as
deputy commissioners, are empowered to take evidence and enter
orders, opinions, and awards. N.C. Gen. Stat. § 97-79(b) (2001).
In interpreting an earlier version of the Act in Maley, our
Supreme Court stated:
The Industrial Commission is an
administrative board, with quasi-judicial
functions. The manner in which it transacts
its business is a proper subject of statutory
regulation and need not necessarily conform to
court procedure except where the statute so
requires, or where, in harmony with the
statute, or where it fails to speak, the Court
of last resort, in order to preserve the
essentials of justice and the principles of
due process of law, shall consider rules
similar to those observed in strictly judicial
investigations in courts of law to be
indispensable or proper.
Maley, 214 N.C at 594, 200 S.E. at 441 (emphasis in original). In
accord with the Supreme Court's view in Maley, this Court has
consistently held that the Commission must conform to courtprocedure and evidentiary rules where required to preserve justice
and due process. See Goff, 140 N.C. App. at 134-35, 535 S.E.2d at
605-06 (holding the Commission erred by allowing the plaintiff to
admit a new doctor's report without allowing the opposing parties
an opportunity to cross-examine the doctor); Allen, 137 N.C. App.
at 304, 528 S.E.2d at 64-65 (holding the Commission erred by
allowing significant new evidence from physicians to be admitted
while 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); Matthews v. Charlotte-
Mecklenburg Hosp. Auth., 132 N.C. App. 11, 21, 510 S.E.2d 388, 395
(1999) (holding the Commission erred by not allowing the defendant
to present evidence in a hearing in which the defendant had the
burden of proof).
"Whenever a governmental tribunal . . . considers a case in
which it may deprive a person of life, liberty or property, it is
fundamental to the concept of due process that the deliberative
body give that person's case fair and open-minded consideration."
Crump v. Bd. of Education, 326 N.C. 603, 613, 392 S.E.2d 579, 584
(1990). Essential to due process is a fair trial in a fair
tribunal with an unbiased, impartial decision maker. Id. at 613-
15, 392 S.E.2d at 584-85. To make out a due process claim based on
this theory, the complaining party must show the decision maker
possesses a disqualifying personal bias. Leiphart v. N.C. School
of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (1986).
"Bias has been defined as 'a predisposition to decide a cause or anissue in a certain way, which does not leave the mind perfectly
open to conviction[.]'" Crump, 326 N.C. at 615, 392 S.E.2d at 585
(quoting Black's Law Dictionary 147 (5th ed. 1979)).
Defendants first contend the Deputy Commissioner violated
their due process rights by changing plaintiff's theory of
recovery. However, there is nothing in the record on appeal to
indicate plaintiff elected at any time to proceed solely on the
theory of injury by accident to the exclusion of an occupational
disease theory. Further, defendants have failed to identify any
statute or Industrial Commission rule requiring a workers'
compensation claimant to choose between injury by accident and
occupational disease as a basis for recovery. N.C. Gen. Stat. §
97-52 (2001) states that an injury resulting from an occupational
disease "shall be treated as the happening of an injury by accident
within the meaning of the North Carolina Workers' Compensation
Act." We conclude plaintiff was not required to make an election
and thus the Deputy Commissioner's decision to treat his claim as
one based on an occupational disease did not violate defendants'
due process rights.
We likewise disagree with defendants' next contention that
their due process rights were violated by the Deputy Commissioner's
decision to order the testimony of Holthusen. The Commission, as
well as deputy commissioners, are statutorily empowered to order
testimony be taken by deposition. N.C.G.S. § 97-80(d); N.C.G.S. §
97-79(b) (granting deputy commissioners the same powers as members
of the Commission under N.C.G.S. § 97-80). Further, IndustrialCommission Rule 612 allows a commissioner or deputy commissioner to
order the deposition of a witness following a hearing when
additional testimony from the witness is necessary to the
disposition of the case. 4 NCAC 10A.0612(a) (2001). The courts of
this State are also permitted to call witnesses to testify, with or
without a request from a party. N.C.R. Evid. 614(a) (2001). Here,
the Deputy Commissioner originally intended for written questions
to be submitted to Holthusen. It was defendants who then requested
a deposition. The subsequent ordering of Holthusen's deposition
did not indicate a disqualifying personal bias on her part or
deprive defendants of an impartial decision maker in violation of
due process.
Defendants argue the Deputy Commissioner continued her role as
advocate for plaintiff in violation of their due process rights by
preparing the factual hypothetical and follow-up questions for
Holthusen. They claim those questions went beyond clarifying
Holthusen's testimony and instead sought to elicit new testimony
necessary to satisfy plaintiff's burden of proof.
N.C.R. Evid. 614(b) (2001) specifically allows the trial court
to "interrogate witnesses, whether called by itself or by a party."
Such interrogation, in the exercise of the trial court's duty to
supervise and control the course of a trial, has consistently been
allowed for the purpose of clarifying contradictory or confusing
testimony. See State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566,
571 (1986); State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d
403, 409 (1986); State v. Hill, 105 N.C. App. 489, 494, 414 S.E.2d73, 77 (1992); State v. Chandler, 100 N.C. App. 706, 710, 398
S.E.2d 337, 339 (1990). In interrogating a witness, the court may
not intimate an opinion as to the witness's credibility, State v.
Long, 113 N.C. App. 765, 771, 440 S.E.2d 576, 579 (1994), or
express an opinion as to whether any essential fact has been
proved. State v. Lowe, 60 N.C. App. 549, 552, 299 S.E.2d 466, 468
(1983). However, a trial court may ask questions that elicit
testimony which proves an element of the case so long as the court
does not comment on the strength of the evidence or the credibility
of the witness. State v. Smarr, 146 N.C. App. 44, 52-53, 551
S.E.2d 881, 886 (2001), disc. review denied, 355 N.C. 291, 561
S.E.2d 500 (2002); Lowe, 60 N.C. App. at 552, 299 S.E.2d at 468.
The submission of the questions "must be conducted with care and in
a manner which avoids prejudice to either party." Chandler, 100
N.C. App. at 710, 398 S.E.2d at 339 (citing State v. Colson, 274
N.C. 295, 163 S.E.2d 376 (1968)).
Here, plaintiff appeared pro se before the Deputy
Commissioner, while defendants were represented by counsel. At the
conclusion of the hearing, the Deputy Commissioner developed a
factual hypothetical and four questions to be read to plaintiff's
physician. Defendants were again represented by counsel at the
deposition. Defense counsel read the prepared hypothetical and
four questions to plaintiff's physician.
Following the physician's answers, defendants proceeded with
their cross-examination. The Deputy Commissioner, who was not
present at the deposition, did not comment on the strength of theevidence or the credibility of the witness. The fact that
Holthusen's answers were dispositive of an essential issue does not
constitute error. See Smarr, 146 N.C. App. at 52-53, 551 S.E.2d at
886. The questions presented by the Deputy Commissioner were
neutral, which, depending upon the answer, could benefit either
plaintiff or defendants. See Lowe, 60 N.C. App. at 552, 299 S.E.2d
at 468 (finding no error in trial court's questions to a witness;
the witness's responses were the only evidence as to the value of
a television set in a felony larceny case).
"This Court will not interfere with the trial court's exercise
of its duty to control the conduct and course of the trial absent
a showing of manifest abuse." Long, 113 N.C. App. at 771, 440
S.E.2d at 580. Defendants advance no plausible argument why the
Commission, and in turn deputy commissioners, should not hold the
same power to interrogate witnesses when performing their
administrative fact-finding function. The Deputy Commissioner's
questions to Holthusen do not indicate a disqualifying personal
bias on her part. Thus, there was no violation of defendants' due
process right to a fair trial and impartial decision maker. The
Deputy Commissioner did not abuse her discretion in submitting the
hypothetical and follow-up questions to Holthusen.
Defendants next contend "the Deputy Commissioner's actions
violated the statutory prohibition against the Industrial
Commissioner representing a claimant in a compensation hearing."
Again, we disagree.
N.C. Gen. Stat. § 97-79(f) (2001) states: The Commission shall create an ombudsman
program to assist unrepresented claimants,
employers, and other parties, to enable them
to protect their rights under this Article.
In addition to other duties assigned by the
Commission, the ombudsman shall meet with, or
otherwise provide information to, injured
employees, investigate complaints, and
communicate with employers' insurance carriers
and physicians at the request of the claimant.
Assistance provided under this subsection
shall not include representing the claimant in
a compensation hearing.
Here, the record does not indicate that a N.C.G.S. § 97-79(f)
ombudsman was involved in assisting plaintiff. Since the Deputy
Commissioner acted within her discretion in preparing and
submitting the questions to plaintiff's physician, these actions do
not amount to "representing the claimant in a compensation
hearing." Id.
Defendants' final contention is that the Deputy Commissioner's
actions violated their equal protection rights under the North
Carolina Constitution and the United States Constitution. They
claim she violated the statutory prohibition against the Commission
representing a claimant and that no rational basis exists for her
actions. We disagree.
The questions submitted by the Deputy Commissioner did not
convey or express an opinion with respect to an essential element
of plaintiff's claim or the credibility of Holthusen as a witness.
The questions did not indicate a disqualifying personal bias or
predisposition on the part of the Deputy Commissioner. As noted,
the questions were neutral and could have benefitted either party.
Accordingly, the actions of the Deputy Commissioner did not violateN.C.G.S. § 97-79(f) and did not constitute representing plaintiff
at the hearing. She acted within her discretion in preparing and
submitting the questions to Holthusen. Defendants' equal
protection rights were thus not violated.
We find no constitutional or statutory infirmity in the
actions taken by the Deputy Commissioner in the instant case.
However, it is important to stress that the Commission or a deputy
commissioner, as well as a trial court, should be resolutely
careful in calling and interrogating witnesses. Not only should
there be no prejudice to a party, but there also should be no
reasonable perception of prejudice. Neutrality and the appearance
of neutrality are equally critical in maintaining the integrity of
our judicial and quasi-judicial processes.
For the reasons stated herein, we affirm the opinion and award
of the Industrial Commission.
Affirmed.
Chief Judge EAGLES and Judge MARTIN concur.
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