MARY TERRY,
Employee, Plaintiff/Appellee,
v
.
PPG INDUSTRIES, INC.,
Employer,
and
KEY RISK MANAGEMENT SERVICES, INC.,
Carrier, Defendant/Appellants.
Raymond M. Marshall for plaintiff-appellee.
Womble Carlyle Sandridge & Rice, by Philip J. Mohr, for
defendant-appellants.
EAGLES, Chief Judge.
PPG Industries, Inc. and Key Risk Management Services, Inc.
(“defendants”) appeal from an Opinion and Award of the Full
Commission awarding Mary Terry (“plaintiff”) total disability
compensation and ordering defendants to pay for psychological or
psychiatric treatment of the plaintiff. After careful
consideration, we affirm.
PPG Industries, Inc. (“PPG”) employed plaintiff for twenty-one
years. At the time of her injury, plaintiff worked “running” a
“warping chopper.” On 18 September 1995, a “pin truck” struck
plaintiff's left heel causing a contusion. The following day,
plaintiff went to the emergency room where she was given medicationand crutches to use for walking. Plaintiff saw Dr. Hunter Strader,
Jr. (“Dr. Strader”) on 3 October 1995. Plaintiff continued to
suffer pain and Dr. Strader referred plaintiff to Dr. Jasper
Simmons Riggan, III, (“Dr. Riggan”) an orthopedic specialist. Dr.
Riggan examined plaintiff and believed plaintiff suffered a partial
tear of her achilles tendon. Dr. Riggan placed plaintiff in a
fracture walker, a type of removable cast. Over the next several
years, plaintiff still suffered pain along with involuntary muscle
spasms in her lower left leg. Plaintiff was referred to several
doctors during this time.
Defendants admitted plaintiff's right to compensation because
of her 18 September 1995 injury and paid plaintiff temporary total
disability benefits from 20 November 1995 until 25 February 1996
and from 17 June 1996 until 9 January 1997. From January 1997
until July 1997, plaintiff worked in a light duty job for PPG.
Plaintiff still suffered pain and plaintiff's attorney referred her
to a psychologist, Jerry Noble, Ph.D. (“Noble”). Noble saw the
plaintiff on 30 June 1997. Noble diagnosed plaintiff with “major
depression, single episode, without psychotic features.” Noble
examined the plaintiff again on 16 July and “recommended that she
not work.” Noble examined the plaintiff on 28 July and
“recommended that [plaintiff] continue individual psychotherapy”
and “consult a psychiatrist or a physician about psychotropic
medications.”
In early June 1997, plaintiff requested that her claim for
permanent and total disability benefits be assigned for a hearing.The Deputy Commissioner heard the matter and concluded that the
plaintiff was “released to perform light duty work, and the
defendant provided work suitable to her restrictions” and that
plaintiff is entitled to permanent partial disability compensation
for a period of 14.4 weeks. The Deputy Commissioner further
concluded and ordered that defendants pay for psychiatric expenses
but that defendant “is not liable for the treatment by Jerry Noble,
Ph.D., as said treatment was unauthorized.” Plaintiff appealed to
the Full Commission.
The Full Commission heard the case on 28 February 2001 and
affirmed in part and reversed in part the Opinion and Award of the
Deputy Commissioner. The Full Commission concluded that plaintiff
was totally disabled and ordered that defendants pay total
disability compensation until further order of the Commission and
that defendants pay “all medical expenses incurred or to be
incurred in the future including psychological or psychiatric
treatment provided by and through Dr. Jerry Noble.” Defendants
appeal.
On appeal, defendants contend that the Full Commission erred
in: (1) striking the testimony and stipulated medical records of
Dr. Strader based upon his ex parte communication with the
employer; (2) in finding that plaintiff remained disabled, and
thereby justifiably refused employment, based solely on Jerry
Noble's testimony; (3) in determining that plaintiff's disabling
condition was a direct and natural result of her compensable
injury; and (4) in failing to consider the video tape surveillanceof plaintiff in evaluating the plaintiff's credibility. After
careful consideration, we affirm.
“The standard of appellate review of 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 legal conclusions.” Porter v. Fieldcrest
Cannon, Inc., 133 N.C. App. 23, 25, 514 S.E.2d 517, 520 (1999).
“If supported by competent evidence, the Commission's findings are
binding on appeal even when there exists evidence to support
findings to the contrary.” Ward v. Long Beach Vol. Rescue Squad,
151 N.C. App. 717, 720, 568 S.E.2d 626, 628, disc. review denied,
356 N.C. 314, 571 S.E.2d 219 (2002). “This Court reviews the Full
Commission's conclusions of law de novo.” Bowser v. N.C. Dep't of
Corr., 147 N.C. App. 308, 311, 555 S.E.2d 618, 621 (2001), disc.
review denied, 355 N.C. 283, 560 S.E.2d 796 (2002).
Defendants first contend that the Full Commission erred in
striking the testimony and stipulated medical records of Dr.
Strader based upon his ex parte communication with the employer.
Defendants argue that Salaam v. N.C. Dept. of Transportation,
122 N.C. App. 83, 468 S.E.2d 536 (1996), disc. review improvidently
allowed, 345 N.C. 494, 480 S.E.2d 51 (1997) is not applicable to
the facts here because Dr. Strader was not a nonparty treating
physician. Defendant also argues that the conversation was not
with defendant's attorney and that it did not involve plaintiff's
treatment. Defendant further argues that even if Salaam applies tostrike Dr. Strader's testimony, the Full Commission should not have
stricken stipulated medical records. We are not persuaded.
Crist v. Moffatt, 326 N.C. 326, 336, 389 S.E.2d 41, 47 (1990),
held that “defense counsel may not interview plaintiff's nonparty
treating physicians privately without plaintiff's express consent.”
“[T]he Crist rule precludes non-consensual ex parte communications
during adversarial proceedings.” Salaam, 122 N.C. App. at 88, 468
S.E.2d at 539. This Court in Salaam applied Crist to workers'
compensation proceedings. Id. Salaam “conclude[d] the Commission
erred by admitting Dr. Pritchard's deposition testimony in light of
the non-consensual ex parte contact between NCDOT and Dr.
Pritchard.” Id. In reaching its determination, the Court noted
the rationale behind the holding in Crist which included “patient
privacy, the confidential relationship between doctor and patient,
and the adequacy of formal discovery devices.” Id. See also
Pittman v. International Paper Co., 132 N.C. App. 151, 155, 510
S.E.2d 705, 708, aff'd, 351 N.C. 42, 519 S.E.2d 524 (1999).
Here, Dr. Strader has been in private practice for thirty-six
years and is “board certified in family practice.” As part of an
arrangement with PPG, Dr. Strader visits their plant once a week to
see employees with work-related injuries. Dr. Strader first saw
plaintiff on 3 October 1995 for her work-related injury. Dr.
Strader saw plaintiff approximately twenty-four more times between
3 October 1995 and 29 July 1997 about her condition. Dr. Strader
testified that while he “beg[a]n to take a back seat in terms of
treatment,” he would still: [S]ee people in this situation often enough to
be sure that the plant understands what level
of activity is reasonable to confirm with a
consultant that the activities that have been
assigned to the employee are reasonable in
view of the problem that they may be having.
And so at times I will talk with a
consultant, be sure that we understand what
they think is reasonable activity. And be
sure that their medications are being renewed
appropriately, to be sure they're keeping
their appointments with the consultants, and
getting the tests done as ordered.
Plaintiff's counsel asked Dr. Strader if it would “be a fair
statement” that he was clearly “not treating [plaintiff] as a
patient?” Dr. Strader responded that “I can't say that because I
was reviewing her medicines and her consultations and her
complaints as I do with any patient that I see. So I think I was
involved in that, although her primary care was being received from
other physicians.” Upon inquiry as to whether his “relationship
with employees that [he saw] at the plant [was] any different from
[his] physician/patient relationship with patients [he saw] in
[his] office,” Dr. Strader responded “[f]rom my standpoint, no,
there is none.” Based on the evidence, Dr. Strader's role with the
plaintiff is that of a treating physician. While the plaintiff
became a patient of Dr. Strader because of his “arrangement” with
PPG, the “considerations of patient privacy” and “the confidential
relationship between doctor and patient” still exist.
Defendants argue that Dave Ulmer, manager of safety and plant
protection at defendant PPG, not defendants' attorney, talked with
Dr. Strader and that the discussion was not about plaintiff's
condition. Ulmer requested the surveillance of plaintiff. Ulmermet with Dr. Strader and showed him a surveillance videotape of
plaintiff taken without her consent. The tape showed the plaintiff
walking in “closed-toe” shoes with heels. Dr. Strader was asked
whether he recalled having a conversation with Ulmer after watching
the videotape. In response, Dr. Strader testified that “[y]eah.
I told him I was absolutely shocked, because my impression of
[plaintiff] from the very beginning had been that this was a
significant injury and I had certainly taken all of her statements
to me at face value. And I was -- I was shocked to see the film,
and I told him about it.” In response to a question about the
purpose of watching the video, Dr. Strader testified that “I would
assume that -- I did assume that this was information which would
add to my knowledge of the patient's degree of disability.” Dr.
Strader further testified that:
Q. So you-all talked about what you were
going to talk to her --
A. Yeah.
Q. What you were going to do in your
appointment with her?
A. Exactly. And part of that was that I was
not comfortable in discussing the video
or confronting her with that. I did not
think that was appropriate, but that I
did think for my information it was
helpful to know whether she had been
wearing shoes other than just on that
particular day.
. . . .
A. We had not had a long discussion about
how we were going to trick this lady into
answering questions the way we want her
to prove her guilt. We had a very brief
conversation after I viewed the video andthe conclusion whether it originated in
my mind or his was it would be helpful to
me and to them to know whether, you know,
she had been wearing these shoes or not.
Obviously, if she denies it this creates
real problems in their mind and in my
mind when they have her on video wearing
it.
Here, the evidence shows that Dave Ulmer, an employee of
defendant PPG, showed plaintiff's treating physician, a videotape
of plaintiff walking. Ulmer and Dr. Strader then discussed
questioning plaintiff about the type of shoes she had been wearing.
The evidence also showed that Dr. Strader “assume[d] that this was
information which would add to my knowledge of the patient's degree
of disability.” The involvement of Ulmer and his conversation with
Dr. Strader involves the “considerations of protecting patient
privacy, the confidential relationship between physician and
patient and 'the untenable position in which ex parte contacts
place the nonparty treating physician,'” Pittman, 132 N.C. App. at
155, 510 S.E.2d at 708 (citation omitted), which Salaam protects.
The Full Commission also struck Dr. Strader's medical records
that involved the plaintiff following the ex parte contact.
Defendants argue that the plaintiff stipulated to these medical
records and cannot later seek their exclusion. We do not agree.
Here, the plaintiff moved to exclude those records prior to
the hearing before the Deputy Commissioner. In plaintiff's
application for review to the Full Commission, the plaintiff
assigned as error the Deputy Commissioner's denial of the motion to
exclude those records. The Full Commission determined that the ex
parte contact between Ulmer and Dr. Strader violated Salaam. Accordingly, the Full Commission struck those sections of Dr.
Strader's deposition testimony and the medical records which
involved the plaintiff that occurred after the ex parte contact.
Because “[i]n a workers' compensation case, a physician may
not engage in ex parte communications with the defendant,”
Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 261,
523 S.E.2d 720, 724 (1999), this assignment of error is overruled.
Next, defendants contend that the Full Commission erred in
relying on Jerry Noble's testimony to find that plaintiff remained
disabled and thereby justifiably refused employment.
Defendants argue that the Full Commission erred in accepting
the testimony of Noble. First, defendants cite Martin v. Benson,
125 N.C. App. 330, 481 S.E.2d 292 (1997), rev'd on other grounds,
348 N.C. 684, 500 S.E.2d 664 (1998) as support for the argument
that Noble could not provide competent testimony “about whether
plaintiff could return to work based upon her pain” because he is
a psychologist and not a medical doctor. Second, defendants argue
that Noble was not an authorized physician when he gave his
testimony so the Full Commission should not have accepted his
opinion. Defendants argue that plaintiff failed to prove that she
sought or gained approval from the Industrial Commission for
treatment by Noble. We do not agree.
“[T]he opinion testimony of an expert witness is competent if
there is evidence to show that, through study or experience, or
both, the witness has acquired such skill that he is better
qualified than the jury to form an opinion on the particularsubject of his testimony.” Maloney v. Hospital Systems, 45 N.C.
App. 172, 177, 262 S.E.2d 680, 683, disc. review denied, 300 N.C.
375, 267 S.E.2d 676 (1980). “The qualifications of a medical
expert are judged according to the same standards as those of
expert witnesses in general: The common law . . . does not
require that the expert witness on a medical subject shall be a
person duly licensed to practice medicine.” Id. at 178, 262 S.E.2d
at 683 (quoting 2 Wigmore on Evidence § 569, pp. 667-68 (3d ed.
1940)) (emphasis in original). Here, the defendants stipulated
that Noble was a licensed clinical psychologist. As a licensed
clinical psychologist, Noble's testimony regarding the cause of
plaintiff's depression is competent. But see Martin, 125 N.C. App.
at 337, 481 S.E.2d at 296 (holding that the trial court erred in
allowing a neuropsychologist to testify that an accident did not
cause the plaintiff to suffer a closed head injury).
Defendants also argue that Noble's opinion should not be given
any weight because he was not an authorized physician at the time
of his testimony.
“Although an employer that has accepted an employee's injury
as compensable generally has the right to direct the medical
treatment, this right is not unlimited.” Lakey v. U.S. Airways,
Inc., __ N.C. App. __, __, 573 S.E.2d 703, 707 (2002). “[A]n
injured employee may select a physician of his own choosing to
attend, prescribe and assume the care and charge of his case,
subject to the approval of the Industrial Commission.” G.S. § 97-
25. “[T]he injured employee need not seek approval for aphysician's services prior to the treatment.” Ruggery v. N.C.
Dep't of Correction, 135 N.C. App. 270, 276, 520 S.E.2d 77, 82
(1999). “The employee's request for approval may even be filed
after the treatment has been procured, just as long as the request
is filed within a reasonable time thereafter.” Kanipe v. Lane
Upholstery, 141 N.C. App. 620, 626, 540 S.E.2d 785, 789 (2000).
“Approval of an employee-selected physician is left to the sound
discretion of the Commission.” Id. “This Court will disturb the
Commission's determination on this issue only upon a finding of
manifest abuse of discretion.” Lakey, __ N.C. App. at __, 573
S.E.2d at 707.
Here, the plaintiff saw Noble on 30 June 1997 because she
“felt depressed” and suffered “crying spells” and “physical pain.”
Plaintiff saw Noble again on 16 July and 28 July. Plaintiff moved
to allow psychological treatment and to have Noble's treatment
approved by the Industrial Commission on 18 July 1997. The
Industrial Commission denied plaintiff's motion by order filed 12
January 1998 but did state that “[p]laintiff may request a hearing
if she continues to contend that she is in need of psychological
treatment.” Plaintiff moved for authorization within three weeks
from her initial visit with Noble and two days after her second
visit. Plaintiff's request was made within a reasonable amount of
time after she began treatment with Noble. Further, the Full
Commission found that:
Although plaintiff did not receive
authorization from either defendant or the
Industrial Commission for this treatment, the
undersigned note that the only physicianplaintiff was still seeing at this time was
Dr. Strader, and neither Dr. Strader nor any
of the other physicians who had provided
plaintiff with treatment had successfully
effected a cure or provided relief for her
condition.
The Full Commission also found that:
The record in this case contains a letter
dated 14 July 1997 from defendant's then-
counsel, G. Thompson Miller to Ms. Phyllis
Brookbank of Key Risk Management Services, in
which Mr. Thompson states that plaintiff's
counsel called him seeking approval for Dr.
Noble to be designated as plaintiff's treating
physician. Mr. Thompson forwarded the request
to Ms. Brookbank with the recommendation that
the request be denied. There is no further
reference to this issue in the record. Based
on the evidence of record, plaintiff timely
requested that defendant authorize Dr. Noble
as plaintiff's treating psychologist prior to
or shortly after 30 June 1997. There is no
evidence of defendant's response. Dr. Noble's
treatment of plaintiff is authorized.
Competent evidence supports these findings which in turn
support the conclusion to have defendants pay for plaintiff's
treatment by Noble. The Full Commission did not abuse its
discretion in approving Noble's treatment. This assignment of
error is overruled.
Defendants contend that the Full Commission erred in
determining that plaintiff's disabling depression was a direct and
natural result of her compensable injury. We do not agree.
Defendants argue that the Full Commission's findings of fact
and the testimony of Noble do not support the conclusion that the
plaintiff's injury caused her disabling depression. Defendants
argue that the plaintiff's disabling depression was the result of her co-employees' “teasing, criticizing and accusing her of faking
her physical problems.”
The Full Commission made the following findings:
30. Dr. Noble diagnosed plaintiff with major
depression, due at least in part to her
work-related injury. There was some
question as to whether the death of
plaintiff's husband several years earlier
contributed to the level of plaintiff's
depression; however, Dr. Noble stated
that plaintiff's depression most clearly
rested on the occupational injury and the
circumstances at work.
31. On 16 July 1997, plaintiff returned to
Dr. Noble. She stated at that time that
the job she was performing at work
required her to stand, that she could not
stand on a protracted basis, and that
there were no sitting assignments
available to her. Plaintiff related that
she had been subject to teasing and
criticism at work specifically accusing
her of faking her physical problems, and
that she had received the same reactions
from management. These incidents caused
plaintiff great embarrassment, and
further complicated her depression. For
these reasons, Dr. Noble recommended that
plaintiff not return to work.
Based on these findings, the Full Commission concluded that “[a]s
a result of her injury by accident, plaintiff suffers from
disabling depression which is a direct and natural consequence of
her work injury and is therefore compensable.”
In response to a question seeking his opinion as to the cause
of plaintiff's depression, Noble testified that “[t]he most
important factor is her occupational injury.” Further, Finding 31
states that the “teasing and criticism” plaintiff received at work
“further complicated her depression.” (Emphasis added). Inaddition to Noble's testimony, Dr. Strader testified that the
plaintiff suffered chronic pain as a result of her foot and leg
problems and that chronic pain has a psychological effect on
people. Dr. Strader further testified that he “certainly felt that
[plaintiff] was somewhat depressed as I think almost anyone would
be because of the persistence of her problem.” The testimony of
Noble and Strader is competent evidence to support the Full
Commission's findings of fact which in turn support its conclusion
that plaintiff's depression is a “direct and natural consequence of
her work injury.” This assignment of error is overruled.
Defendants contend that the Full Commission erred in failing
to consider the video tape surveillance of the plaintiff in
evaluating plaintiff's credibility. We do not agree.
“Before making findings of fact, the Industrial Commission
must consider all of the evidence. The Industrial Commission may
not discount or disregard any evidence, but may choose not to
believe the evidence after considering it.” Weaver v. American
National Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12
(1996) (emphasis in original).
Here, the Full Commission examined the record and made the
following finding:
23. Dave Ulmer, defendant's director of
safety and plant protection, ordered
video surveillance of plaintiff. On 17
December 1996, without the knowledge or
consent of plaintiff, Mr. Ulmer showed a
portion of the video lasting a few
minutes to Dr. Strader, in which
plaintiff was seen walking in shoes with
heels of one to one and one half inches,
for approximately half a block to andfrom her car at the funeral of a
relative. According to Dr. Strader,
plaintiff was not limping. Dr. Strader
testified that the purpose of Mr. Ulmer
showing him the tape was to cast doubt
upon the extent of plaintiff's injury and
her representation of the level of her
disability. Dr. Strader's opinions were
tainted by defendant's ex parte
communication with him. Following their
viewing of the video tape, Dr. Strader
and Mr. Ulmer discussed plaintiff's
veracity regarding her condition.
The Full Commission then concluded that “[t]he evidence of record
demonstrates that the agent of defendant presented a skewed and
incomplete video record to Dr. Strader in an attempt to distort his
view of plaintiff's truthfulness, and that the attempt was
successful.” The Full Commission considered the video tape
evidence and concluded to disregard it. This assignment of error
is overruled.
Accordingly the Opinion and Award of the Full Commission is
affirmed.
Affirmed.
Judges McCULLOUGH and ELMORE concur.
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