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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
WILLIE MAYFIELD, Employee, Plaintiff, v. PARKER HANNIFIN,
Employer, Self-Insured, FRANK CATES SERVICING COMPANY, Servicing
Filed: 15 November 2005
1. Workers' Compensation_contact with plaintiff's doctor_limited
A workers' compensation defendant is limited to obtaining information from a plaintiff's
physician by one of the methods recognized in the rules or as provided by statutes. In this case,
defendant improperly sent plaintiff's doctor a facsimile to obtain evidence for use in a hearing
without plaintiff's consent, and the doctor's opinions rendered after that date were properly
2. Workers' Compensation_testimony from treating physician_tainted by contact with
The Industrial Commission did not err in a workers' compensation proceeding by
excluding opinions from plaintiff's treating physician after an ex parte contact from defendant.
The advocate's language of the facsimile from defendant was designed to affect the answer and
the Commission could reasonably find that the opinion was tainted after the fax.
3. Constitutional Law_equal protection_restricting defense counsel's contact with
There was no equal protection violation in a workers' compensation case in barring
particular ex parte communications between defense counsel and treating physicians. Defense
counsel and plaintiff's counsel are not similarly situated due to differing confidentiality
4. Workers' Compensation_conflicting medical opinions_weight of
evidence_conclusions inconsistent with findings and award
The Industrial Commission was entitled in a workers' compensation case to give greater
weight to one of several conflicting medical opinions concerning plaintiff's back injury, and the
evidence was sufficient to support the Commission's finding that the plaintiff's leg condition was
causally related to his compensable back injury. However, the Commission's conclusions were
inconsistent with the findings and the ultimate award (apparently due to clerical error in modifying
the Deputy Commissioner's award) and the case was remanded.
5. Workers' Compensation_improper contact with doctor_shifting treatment
When a doctor's views have been affected by an improper communication from a
defendant, the Industrial Commission is entitled to shift the treatment of plaintiff to another
Appeal by defendant from Opinion and Award filed 28 July 2004
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 22 August 2005.
Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Matthew D.
Glidewell and M. Duane Jones, for defendant-appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Linda Stephens,
J. Matthew Little, Season D. Atkinson, and William A. Bulfer,
for amicus curiae North Carolina Association of Defense
Defendant Parker Hannifin appeals from the Industrial
Commission's opinion and award granting total disability benefits
to plaintiff Willie Mayfield. Defendant argues on appeal that the
Full Commission improperly excluded certain evidence from one of
plaintiff's treating physicians after defendant, without
plaintiff's consent, sent the physician a facsimile that was copied
to plaintiff's counsel. Because we hold that the facsimile
violated the principles set out in Crist v. Moffatt, 326 N.C. 326,
389 S.E.2d 41 (1990) and Salaam v. N.C. Dep't of Transp., 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), we affirm the Full Commission's
exclusion of that evidence. We further hold that, although the
Commission's decision is supported by competent evidence, we must
remand for further proceedings because of an inconsistency between
the findings of fact and conclusions of law.
Facts and Procedural History
Beginning in 1998, plaintiff worked for defendant as a hose
fabricator, a position requiring him to cut and assemble hydraulic
hoses. On 11 January 2001, while lifting a hydraulic hose onto atable, plaintiff felt a snapping in his lower back and began
experiencing pain in that area. A few days later, he developed
numbness in his left leg and left foot. On 19 February 2001,
defendant filed a Form 19 that described the incident as involving
a lower back injury. On the same date, plaintiff ceased working,
and defendant began paying plaintiff temporary total disability
To address plaintiff's symptoms, defendant referred him to Dr.
Chris Guest, a general practitioner. Dr. Guest diagnosed plaintiff
with central canal stenosis with a resultant nerve root
encroachment. When conservative treatment failed, Dr. Guest
referred plaintiff to Dr. Randy O. Kritzer, a neurosurgeon. At
plaintiff's first appointment with Dr. Kritzer, on 13 March 2001,
plaintiff reported that his back pain had resolved, but that he was
continuing to experience numbness in his left leg. Dr. Kritzer
diagnosed plaintiff with chronic degenerative spine conditions
coupled with spondylosis. Plaintiff received two epidural shots,
but then declined further conservative treatment. Because Dr.
Kritzer did not believe surgery would be effective, he released
plaintiff from his care on 8 May 2001.
Following a recommendation from his rehabilitation nurse,
plaintiff requested that Dr. Donald Hertweck, of Triad Internal
Medicine Associates, P.A., be designated as his primary treating
physician. Defendant agreed, and plaintiff went to his first
appointment with Dr. Hertweck on 28 June 2001. He reported
continuing pain, heaviness, and numbness in his left foot, although
he had no back pain. Dr. Hertweck examined plaintiff and notedthat his "symptoms do not correlate with the history of a back
injury. . . . At this time, I cannot correlate his sensation of
heaviness and weakness to obvious medical reason. It may still be
related to his back."
On 9 July 2001, plaintiff was referred to Dr. Albert K. Bartko
III of the Southeastern Orthopaedic Specialist Sports Medicine
Center. Dr. Bartko is board certified in physical medicine and
rehabilitation. At plaintiff's initial examination with Dr.
Bartko, plaintiff reported resolution of his lower back pain, but
described pain on the front of his left thigh, knee, and calf. At
the time of plaintiff's initial visit, Dr. Bartko indicated in his
medical note that it was unusual for plaintiff's leg and foot pain
to persist when his lower back pain had resolved. He expressed
concern to plaintiff that the leg pain might have a different
cause, such as a mini-stroke or diabetes. Dr. Bartko limited
plaintiff to sedentary or light duty, with no lifting of more than
15 pounds occasionally and no repetitive bending, twisting, or
During plaintiff's next three follow-up visits with Dr. Bartko
in July and August, plaintiff's leg symptoms showed little to no
improvement. On 25 September 2001, plaintiff was terminated from
work due to his unavailability for six consecutive months. At that
time, plaintiff remained on work restrictions and had not commenced
any light duty or rehabilitative employment.
On 26 September 2001, plaintiff reported to Dr. Bartko that
his back pain had returned three weeks earlier. Dr. Bartko noted
that plaintiff had exhausted conservative treatment options withrespect to his back and that plaintiff was not a good surgical
candidate. He, therefore, decided that plaintiff had reached
maximum medical improvement, assigned a three percent permanent
partial disability rating to plaintiff's back, and released
plaintiff from his care. He stated in his medical note that he
felt plaintiff's leg problems were not causally related to
plaintiff's lower back condition and, therefore, not work related.
Regarding a return to work, Dr. Bartko expressed the view that if
the back symptoms were plaintiff's only problem, he would be
capable of returning to sedentary or light duty work with
restrictions that took his back condition into account. Given,
however, the nature and severity of plaintiff's leg symptoms, Dr.
Bartko was doubtful whether plaintiff could realistically even do
sedentary to light work.
On 7 November 2001, defendant filed a Form 60, in which
defendant admitted plaintiff's right to compensation for a "back
strain." The Form 60 confirmed that plaintiff was receiving
temporary total disability compensation at a rate of $344.00 per
week. On 11 February 2002, plaintiff filed a Form 33 requesting a
hearing "[t]o determine compensability and benefits due plaintiff."
The case was scheduled for a hearing before Deputy Commissioner
Bradley W. Houser on 12 August 2002.
In preparation for the hearing, defendant sent plaintiff a
letter on 31 July 2002, informing plaintiff that he was scheduled
for a return appointment with Dr. Bartko on 2 August 2002. At 6:38
p.m. on the following day, 1 August 2002, defendant's counsel faxed
a letter to Dr. Bartko's office. A note on the facsimile coversheet said, "Please see that Dr. Bartko receives these documents
before Mr. Mayfield's 8/2/02 2:15 p.m. appt. Thanks." (Emphasis
original.) The faxed letter stated in pertinent part:
My clients, who are Defendants in the
above-captioned workers' compensation claim,
have scheduled Mr. Mayfield's August 2, 2002,
appointment with you in order to try and
answer the following specific questions.
1. First, as of Mr. Mayfield's August
2, 2002, appointment with you,
should Mr. Mayfield be under any
work restrictions strictly
pertaining to his back and resulting
from his lower back injury of
01/11/01, considering the fact that
he has not worked or presumably
undertaken any other strenuous
physical tasks since you released
him at maximum medical improvement
on September 26, 2001?
2. Is it possible to apportion Mr.
Mayfield's overall disability (that
is, the sum of all of the factors
medically and physically preventing
Mr. Mayfield from returning to work
as of August 2, 2002) as between the
impairment to Mr. Mayfield's lower
back resulting from his 01/11/01
back injury and his multiple other
complaints and conditions, including
his left leg complaints, residual
stroke symptoms, heart condition,
and other physical conditions? In
other words, can you say what
percentage of Mr. Mayfield's
inability to return to work is
directly attributable to the 3%
permanent partial impairment with
which you have rated him?
3. If it is not possible to apportion
Mr. Mayfield's overall disability as
between the 3% permanent partial
impairment to his lower back, and
Mr. Mayfield's other physical and
medical complaints and conditions,
is the 3% permanent partial
impairment of Mr. Mayfield's lowerback a substantial and material
factor in Mr. Mayfield's overall
I would appreciate it if you would answer
these three questions in any medical record
generated as a result of your August 2, 2002,
examination of Mr. Mayfield. I certainly
appreciate your time and attention to these
(Emphases original.) Simultaneously, defense counsel faxed a copy
of this letter to plaintiff's attorney.
Following plaintiff's appointment, Dr. Bartko responded to the
facsimile from defendant's counsel by faxing his office notes to
both plaintiff's counsel and defendant's counsel. The office notes
specifically addressed the three questions posed by defendant's
counsel and stated that the three percent disability rating was
assigned for plaintiff's lower back symptoms only and that
plaintiff's "inability to work with the restrictions that I have
put forth is solely related to his non-work-related problems."
Following the hearing on 12 August 2002 and 4 November 2002,
the Deputy Commissioner granted plaintiff's motion for an
independent medical examination by Dr. Mark W. Roy, a neurosurgeon.
Dr. Roy examined plaintiff on 8 January 2003 and concluded that
plaintiff's back strain had caused damage to the nerve running into
plaintiff's left leg, which then caused plaintiff's episodic pain
in that leg. Dr. Roy further concluded that plaintiff's left leg
symptoms were causally related to the back strain that occurred on
11 January 2001.
The Deputy Commissioner filed an opinion and award on 26
September 2003, rejecting plaintiff's contention that Dr. Bartko'stestimony was tainted by an improper ex parte communication from
defendant's counsel and determining that although plaintiff's back
injury of 11 January 2001 was compensable, his left lower extremity
symptoms were not causally related to his January 2001 injury. The
Deputy Commissioner concluded that plaintiff's compensable injury
had caused total disability for only the period 19 February 2001
through 26 September 2001.
Plaintiff appealed to the Full Commission. In an opinion and
award filed 28 July 2004, the Full Commission modified in part and
reversed in part the Deputy Commissioner's decision. The
Commission first concluded that defendant's 1 August 2002 contact
with Dr. Bartko was improper under Salaam and excluded Dr. Bartko's
post-1 August 2002 opinions. In addressing the merits of
plaintiff's claim, the Full Commission found that as a result of
the compensable 11 January 2001 injury by accident, plaintiff had
sustained an injury to both his back and his leg. The Commission
awarded plaintiff total disability benefits from 11 January 2001
"and continuing until further order of the Commission or plaintiff
returns to full time employment subject to the attorney fee awarded
herein." The Commission also approved Dr. Roy as plaintiff's
primary care physician. Defendant timely appealed the Full
Commission's decision to this Court.
Defendant argues three issues on appeal: (1) whether the
Commission erred in excluding evidence from Dr. Bartko under
Salaam, (2) whether competent evidence supports the Commission's
finding that plaintiff's left leg condition and continuingdisability after 26 September 2001 are causally related to
plaintiff's compensable injury, and (3) whether the Commission
erred in approving Dr. Roy as plaintiff's treating physician.
Defendant has not brought forward in its brief a number of other
assignments of error; they are deemed abandoned. N.C.R. App.
Communications Between Defendant and Dr. Bartko
 Defendant argues that the faxed communication from
defendant to Dr. Bartko on 1 August 2002 did not violate Crist
because the communication was not ex parte
counsel received a copy. Defendant does not, however, dispute that
plaintiff never consented to this communication.
, a medical malpractice case, our Supreme Court upheld
a finding by the trial court that defense counsel had acted
improperly by talking privately with plaintiff's non-party treating
, 326 N.C. at 331, 389 S.E.2d at 44. The Supreme
Court concluded that:
[T]he gravamen of the issue is not whether
evidence of plaintiff's medical condition is
subject to discovery, but by what methods the
evidence may be discovered. We conclude that
considerations of patient privacy, the
confidential relationship between doctor and
patient, the adequacy of formal discovery
devices, and the untenable position in which
contacts place the nonparty treating
physician supersede defendant's interest in a
less expensive and more convenient method of
discovery. We thus hold that defense counsel
may not interview plaintiff's nonparty
treating physicians privately without
plaintiff's express consent. Defendant
instead must utilize the statutorily
recognized methods of discovery enumerated in
N.C.G.S. § 1A-1, Rule 26.
at 336, 389 S.E.2d at 47. This Court in Salaam
held that the
principles in Crist
applied equally in the worker's compensation
, 122 N.C. App. at 88, 468 S.E.2d at 539. While
both involved oral communications, this Court
confirmed in Porter v. Fieldcrest Cannon, Inc.
, 133 N.C. App. 23,
30, 514 S.E.2d 517, 523 (1999) that Crist
controlled with respect to written communications between an
employer and the plaintiff's treating physicians.
Defendant focuses exclusively on the question whether the
facsimile could be considered an ex parte
communication. In doing
so, however, it overlooks a fundamental aspect of Crist
holding that the statutory waiver of the physician/patient
privilege addressed only whether certain information could be
disclosed, the Court observed that "the question remains by what
procedures and subject to what controls the exchange of information
shall proceed." Crist
, 326 N.C. at 334, 389 S.E.2d at 46. The
Court then pointed out that "[o]ther courts have concluded that
formal discovery procedures enable defendants to reach all relevant
information while simultaneously protecting the patient's privacy
by ensuring supervision over the discovery process, via presence of
counsel or judicial intervention, if warranted." Id.
rejected the defendant's objection to depositions as being
expensive and time-consuming as well as its objection regarding the
tactical advantage given to the plaintiff as "'insignificant when
compared with the patient-plaintiff's interest in maintaining the
confidentiality of personal and possibly embarrassing information,
irrelevant to the determination of the case being tried.'" Id.
at335, 389 S.E.2d at 46 (quoting Nelson v. Lewis
, 130 N.H. 106, 111,
534 A.2d 720, 723 (1987)). For that reason, the Court held that
"[d]efendant instead must utilize the statutorily recognized
methods of discovery enumerated in N.C.G.S. § 1A-1, Rule 26." Id.
at 336, 389 S.E.2d at 47.
In short, Crist
not only forbid ex parte
between a defendant and a plaintiff's physician, but also expressly
limited the methods by which a defendant may obtain relevant
substantive information to statutorily recognized means. The
question before this Court is, therefore, whether defendant's
facsimile was a statutorily authorized method of obtaining
In N.C. Gen. Stat. § 97-80 (2003), the General Assembly
authorized the Commission to adopt rules providing for and limiting
the use of interrogatories and other forms of discovery in workers'
compensation cases. In accordance with this authorization, the
Commission adopted Rules 605 through 607, governing discovery.
Workers' Comp. R. of N.C. Indus. Comm'n 605, 606, & 607, 2005 Ann.
R. (N.C.) 935-37. Based on Crist
, a workers' compensation
defendant is limited to obtaining information from a plaintiff's
physician by one of the methods recognized in those rules or as
provided by other statutes.
Defendants argue that they must be allowed to contact
physicians in order to direct medical treatment, to obtain records,
or schedule depositions. We note that defendants are entitled by
statute to obtain medical records without a plaintiff's consent.
N.C. Gen. Stat. § 97-25 (2003) ("[A]n employer paying medicalcompensation to a provider rendering treatment under this Chapter
may obtain records of the treatment without the express
authorization of the employee.").
(See footnote 1)
While the bare need for other
communications cannot trump the fundamental principles set out in
, we need not address precisely what non-
substantive communications may be permissible since the facsimile
at issue in this case cannot by any measure be considered an
attempt to direct medical treatment or a non-substantive
communication. It was an attempt to obtain evidence for use in the
hearing before the Deputy Commissioner.
We also observe that defendant's arguments should, in any
event, be presented to the General Assembly. It is for the General
Assembly to weigh the policy considerations and determine what
methods of disclosure should be permitted. For example, in its
most recent session, the General Assembly added N.C. Gen. Stat. §
97-25.6, entitled "Reasonable access to medical information." 2005
N.C. Sess. Laws 4.8, sec. 6.1.
This new subsection of the Workers' Compensation Act provides
that "[n]otwithstanding the provisions of G.S. 8-53, any law
relating to the privacy of medical records or information, and the
prohibition against ex parte communications at common law," an
employer or insurer paying medical compensation to a provider
rendering treatment under the Workers' Compensation Act may obtain
records of that treatment without the express authorization of theemployee and, upon written notice to the employee, may obtain
directly from the medical provider medical records relating to
evaluation or treatment of the current injury or condition for
which the employee is claiming compensation. Id.
The new N.C.
Gen. Stat. § 97-25.6 further provides:
An employer or insurer paying compensation for
an admitted claim or paying without prejudice
pursuant to G.S. 97-18(d) may communicate with
an employee's medical provider in writing,
limited to specific questions promulgated by
, to determine, among other
information, the diagnosis for the employee's
condition, the reasonable and necessary
treatment, the anticipated time that the
employee will be out of work, the
relationship, if any, of the employee's
condition to the employment, the restrictions
from the condition, the kind of work for which
the employee may be eligible, the anticipated
time the employee will be restricted, and the
permanent impairment, if any, as a result of
the condition. When these questions are used,
a copy of the written communication shall be
provided to the employee at the same time and
by the same means as the communication is
provided to the provider.
(emphasis added). This statute became effective on 29
September 2005 "and appl[ies] to claims pending and filed on or
after that date." Id.
This amendment provides further support for our conclusion
that defendant's facsimile was impermissible. The General Assembly
has determined that it is necessary to limit the type of questions
that may be asked and to ensure that the questions are neutrally
drafted. Significantly, defendant's facsimile in this case would
not have been allowed under this statute. Nor does the facsimile
fall within any permissible form of discovery. While the questions
asked are analogous to interrogatories, there is no discoveryprovision that authorizes posing interrogatories to a non-party.
Workers' Comp. R. of N.C. Indus. Comm'n 605, 2005 Ann. R.
(N.C.) 935 ("Interrogatories may, without leave of the Industrial
Commission, be served upon any party after the filing of a Form 18,
Form 18B, or Form 33, or after approval of Form 21.").
Defendant was required to take Dr. Bartko's deposition in
order to obtain the information that it sought by its facsimile.
If defendant wished to ensure that Dr. Bartko, in the course of his
examination of plaintiff, considered certain topics, it was free to
work informally with plaintiff's counsel to agree upon a list of
issues to submit to the doctor. As the Supreme Court stated in
, "[w]e do not intend by this holding to discourage consensual
informal discovery." 326 N.C. at 336, 389 S.E.2d at 47.
Defendant argues alternatively that Crist
apply because, due to the time elapsed since Dr. Bartko last saw
plaintiff, Dr. Bartko was no longer plaintiff's treating physician.
This argument cannot be reconciled with defendant's own brief in
which it contends that the Commission exceeded its authority in
removing Dr. Bartko as the treating physician based on the
facsimile communication. That argument presumes Dr. Bartko was
plaintiff's treating physician. Further, we can perceive no
factual or legal basis for concluding that Dr. Bartko was
transformed from a treating physician into a doctor simply
performing an independent medical examination.
 Defendant next argues that even if the facsimile was
improper, the Commission erred in determining that it improperly
tainted Dr. Bartko's opinions. Since that assessment involves afactual question, the issue for this Court is whether any evidence
exists to support the Commission's finding of taint. Our review of
that facsimile indicates that it was not neutrally phrased, but
rather was couched in an advocate's language, designed to affect
the answer. Defendants, however, point to the fact that Dr. Bartko
had already expressed his opinion a year earlier that plaintiff's
left leg symptoms were not causally related to the 11 January 2001
injury. The facsimile communication, however, focused on different
issues: whether and to what extent plaintiff's back injury
contributed to an inability to work. While Dr. Bartko's September
2001 opinion may be read as suggesting that his back injury and
left leg condition were combining to result in total disability,
Dr. Bartko's August 2002 opinion stated that plaintiff's inability
to work was solely related to his non-work-related problems. The
Full Commission could reasonably find that this aspect of Dr.
Bartko's opinion was tainted.
In sum, because we agree with the Commission that defendant's
counsel's facsimile to Dr. Bartko was improper under Crist
progeny, we hold that the Full Commission did not err in excluding
from evidence all opinions rendered by Dr. Bartko after 1 August
2002. Therefore, we overrule defendant's assignments of error
pertaining to the exclusion of Dr. Bartko's August 2002 evidence.
 The North Carolina Association of Defense Attorneys has
filed a brief amicus curiae
in which it argues that barring defense
counsel from communicating with treating physicians in the manner
at issue in this case constitutes a violation of defendants' equal
protection rights under the North Carolina and United Statesconstitutions. Although defendant has not pressed this argument,
it is in any event without merit. Equal protection requires that
"all persons similarly situated be treated alike." Richardson v.
N.C. Dep't of Correction
, 345 N.C. 128, 134, 478 S.E.2d 501, 505
(1996). When distinctions are made among those who are similarly
situated _ but no suspect class or fundamental right is involved _
that distinction must only bear a "rational relationship to some
legitimate state interest." Id.
are founded on the confidential relationship
between a patient and his or her physician and the need to protect
that relationship. When it comes to protecting the plaintiff's
interests in confidentiality, defense counsel and plaintiff's
counsel are not similarly situated. Defense counsel is adverse to
plaintiff and generally has no obligation to keep information
obtained from or regarding plaintiff confidential. On the other
hand, plaintiff's counsel is ethically bound to confidentiality,
Rev. R. of Prof. Conduct of N.C. State Bar 1.6, 2005 Ann. R. (N.C.)
682, and to zealous advocacy of his or her client's best interests,
Rev. R. of Prof. Conduct of N.C. State Bar 0.1, 2005 Ann. R.
(N.C.) 660. In protecting a patient's privacy, there is not the
same need to regulate communications between the patient's attorney
and the patient's doctor. Thus, the two groups _ defense counsel
and plaintiff's counsel _ are not in this instance similarly
situated. The amicus' policy arguments regarding the possibility
that a plaintiff's counsel might improperly affect a doctor'stestimony are irrelevant to the pertinent question and should be
directed to the General Assembly.
Causation of Plaintiff's Left Leg Condition
 Defendant next contends that the Full Commission
erroneously found that plaintiff's left leg condition was causally
related to his compensable back injury. Defendant argues that the
Full Commission ignored competent evidence, in the form of Dr.
Bartko's and Dr. Kritzer's opinions, and relied on incompetent
evidence, in the form of Dr. Roy's opinions.
As our Supreme Court has held, "appellate review of an award
from the Commission is generally limited to two issues: (1)
whether the findings of fact are supported by competent evidence,
and (2) whether the conclusions of law are justified by the
findings of fact." Johnson v. Southern Tire Sales & Serv.
N.C. 701, 705, 599 S.E.2d 508, 512 (2004). With respect to the
findings of fact, t
his Court "'does not have the right to weigh the
evidence and decide the issue on the basis of its weight. The
[C]ourt's duty goes no further than to determine whether the record
contains any evidence tending to support the finding.'" Deese v.
Champion Int'l Corp.
, 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000)
(quoting Anderson v. Lincoln Constr. Co.
, 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)). "[T]his Court is bound by such evidence,
even though there is [other] evidence that would have supported a
finding to the contrary." Porterfield v. RPC Corp.
, 47 N.C. App.
140, 144, 266 S.E.2d 760, 762 (1980). Moreover, the Commission is "'the sole judge of the
credibility of the witnesses and the weight to be given their
testimony.'" Melton v. City of Rocky Mount
, 118 N.C. App. 249,
255, 454 S.E.2d 704, 708 (quoting Hilliard v. Apex Cabinet Co.
N.C. 593, 595, 290 S.E.2d 682, 683-84 (1982)), disc. review denied
340 N.C. 568, 460 S.E.2d 319 (1995). For this reason, the Full
Commission "may, of course, properly refuse to believe particular
evidence. It may accept or reject all or part of the testimony of
. . . any . . . witness, and need not accept even uncontradicted
testimony." Pitman v. Feldspar Corp.
, 87 N.C. App. 208, 216, 360
S.E.2d 696, 700 (1987), disc. review denied
, 321 N.C. 474, 364
S.E.2d 924 (1988).
Defendant argues first that the Commission failed to consider
the evidence of Dr. Bartko and Dr. Kritzer. The Commission,
however, specifically found that Dr. Kritzer was unable to testify
to a reasonable degree of medical certainty regarding any causal
relationship between plaintiff's left leg complaints and his 11
January 2001 injury. With respect to Dr. Bartko, the Commission
included five findings of fact reciting Dr. Bartko's treatment of
plaintiff and his opinions prior to August 2002. The Commission
then found: "Regarding the causation opinions given in this
matter, the Full Commission gives greater weight to the opinions
given by Dr. Roy, than the opinions of Dr. Bartko and Dr. Kritzer."
Thus, the Commission was faced with conflicting opinions and
it chose, as it was entitled to do, to give greater weight to Dr.
Roy's opinion. We note that defendant's counsel indicated that hehad "[n]o objection" when plaintiff's counsel tendered Dr. Roy as
a "board certified expert in neurosurgery." Dr. Roy then testified
that, in his opinion, to a reasonable degree of medical certainty,
plaintiff's complaints regarding his back and left leg were related
both to his work-related injury and to congenital and degenerative
defects. He could not, however, apportion between the two. He
indicated that he was "not really too disturbed" by the fact
plaintiff sometimes presented with leg pain and no back pain
because he observed that with patients "relatively commonly." Dr.
Roy stated that, in his opinion, plaintiff exacerbated or
aggravated his pre-existing spondylosis or stenosis when he lifted
the hose on 11 January 2001 and, at that time, also irritated or
damaged the nerve going into his left leg. This evidence is
sufficient to support the Commission's finding that plaintiff's
left leg condition was caused by his 11 January 2001 injury by
accident. See Counts v. Black & Decker Corp.
, 121 N.C. App. 387,
390, 465 S.E.2d 343, 345 (holding that an employee is entitled to
total disability when a combination of non-compensable illnesses
and a work-related shoulder injury rendered her incapable of
working), disc. review denied
, 343 N.C. 305, 471 S.E.2d 68 (1996).
Defendant's arguments on appeal regarding Dr. Roy go to
questions of credibility and weight. While defendant points to
portions of Dr. Roy's testimony that it believes support its
position or suggest speculation, this Court has previously noted
that "[c]ontradictions in the testimony go to its weight . . . ."
Harrell v. J. P. Stevens & Co.
, 45 N.C. App. 197, 205, 262 S.E.2d830, 835, disc. review denied
, 300 N.C. 196, 269 S.E.2d 623
(1980). Further, as Judge Hudson stated in a dissenting opinion
adopted by the Supreme Court in Alexander v. Wal-Mart Stores, Inc.
359 N.C. 403, 610 S.E.2d 374 (2005) (per curiam), it is not "the
role of this Court to comb through the testimony and view it in the
light most favorable to the defendant, when the Supreme Court has
clearly instructed us to do the opposite. Although by doing so, it
is possible to find a few excerpts that might be speculative, this
Court's role is not to engage in such a weighing of the evidence."
Alexander v. Wal-Mart Stores, Inc.
, 166 N.C. App. 563, 573, 603
S.E.2d 552, 558 (2004) (Hudson, J., dissenting).
Accordingly, the Commission's findings of fact regarding
causation are supported by competent evidence and, therefore,
conclusive on appeal. When, however, we turn to the Commission's
conclusions of law, they are not consistent with either the
findings of fact or the ultimate award.
The Commission made the following findings of fact.
5. . . . Dr. Kritzer was unable to
testify to a reasonable degree of medical
certainty regarding any causal relationship
between plaintiff's left leg and left lower
extremity complaints and his back injury of 11
. . . .
11. . . . Dr. Bartko opined that
plaintiff's left leg and left lower extremity
symptoms were not causally related to any back
condition, work-related, congenital,
degenerative, or otherwise. . . .
. . . .
15. On the issue of causation, Dr. Roy
opined that plaintiff's left leg and left
lower extremity symptoms were causally related
to his 11 January 2001 injury by accident. . .
. . . .
18. Regarding the causation opinions
given in this matter, the Full Commission
gives greater weight to the opinions given by
Dr. Roy, than the opinions of Dr. Bartko and
Dr. Kritzer. . . .
In other words, as discussed above, the Commission found that
plaintiff's left leg condition was caused by the 11 January 2001
The Commission's conclusions of law, however, include the
3. On 11 January 2001, plaintiff
sustained an injury by accident arising out of
and in the course of his employment with
defendant-employer. N.C. Gen. Stat. §97-2(6).
As the result of his 11 January 2001 injury by
accident, plaintiff sustained an injury to his
However, based upon the credible
lay and medical evidence of record,
plaintiff's left leg and lower left extremity
symptoms are not the natural result of, or
causally related to his 11 January 2001 injury
. . . .
4. As the result of his 11 January 2001
injury by accident, plaintiff is entitled to
have defendant pay total disability
compensation at the rate of $365.12 per week
for the period of 19 February 2001 through 26
. . . .
5. Plaintiff is entitled to be paid
permanent partial disability compensation for
the three percent (3%) rating assigned to his
back. N.C. Gen. Stat. §97-31(23).
On the other hand, the Commission's Award states: 1. Defendant shall pay for all related
medical expenses incurred as a result of
[plaintiff's] 11 January 2001 injury by
accident, including treatment for plaintiff's
2. Defendant shall pay plaintiff
temporary total disability benefits at a
weekly rate of $365.12 per week from 11
January 2001 and continuing until further
order of the Commission or plaintiff returns
to full time employment subject to the
attorney fee awarded herein.
Based upon our review of the record, it appears that the Full
Commission modified the Deputy Commissioner's findings of fact and
award in order to allow compensation for the leg condition and
total disability after 26 September 2001, but that the Commission
did not also modify the conclusions of law. While we recognize
that this may be a mere clerical error, we must nonetheless reverse
and remand to allow the Commission to resolve the inconsistencies.
See Hollar v. Montclair Furniture Co., 48 N.C. App. 489, 497, 269
S.E.2d 667, 672 (1980) (reversing and remanding to the Full
Commission for further proceedings, after holding that the
Commission's findings of fact did not justify its conclusions of
Approval of Dr. Roy as Primary Care Physician
 Finally, defendant argues that the Commission erred in
approving Dr. Roy as plaintiff's primary care physician. Defendant
notes that the Commission found that "plaintiff's relationship with
Dr. Bartko was so compromised by defendant's communication that
plaintiff can no longer continue as plaintiff's treating physician. The Full Commission approves Dr. Roy as plaintiff's treating
physician." Defendant argues that this was in effect a remedy for
the ex parte
communication and that "[t]here is no case law even
suggesting the removal of a physician as authorized treating
physician as a remedy for an ex parte
communication between a
defendant and a treating physician." Additionally, defendant
contends that the Commission failed to make findings of fact
regarding how plaintiff's relationship with Dr. Bartko was
The Commission's decision to approve a doctor as an employee's
treating physician is reviewed for an abuse of discretion. Lakey
v. U.S. Airways, Inc.
, 155 N.C. App. 169, 174, 573 S.E.2d 703, 707
(2002), disc. review denied
, 357 N.C. 251, 582 S.E.2d 271 (2003).
Since the Commission's findings of fact are adequate for us to
determine the basis for the Commission's decision, we need not
remand for further findings.
When the Commission decides, as here, that a doctor's views
have been affected by an improper communication from a defendant,
the Commission is entitled to shift the treatment of the plaintiff
to another physician. Moreover, the Commission's decision in this
case is supported by the Commission's findings that Dr. Bartko had
released plaintiff from his care, but plaintiff was still
experiencing pain. See, e.g.
, Terry v. PPG Indus., Inc.
, 156 N.C.
App. 512, 520, 577 S.E.2d 326, 332-33 (holding that the Commission
did not abuse its discretion in approving treatment by a particular
physician when none of the other authorized physicians hadsuccessfully provided relief for her condition), disc. review
, 357 N.C. 256, 583 S.E.2d 290 (2003); Lakey
, 155 N.C. App.
at 174, 573 S.E.2d at 707 ("[P]laintiff was released to work by her
approved physician while still suffering from pain. Therefore, we
do not find that the Commission abused its discretion in allowing
approval of plaintiff's physician."). Thus, no basis exists to
overturn the Commission's decision to approve Dr. Roy as
plaintiff's primary care physician.
Affirmed in part, reversed and remanded in part.
Chief Judge MARTIN and Judge BRYANT concur.
This provision was moved from N.C. Gen. Stat. § 97-25 to §
97-25.6 by H.B. 99, 2005-2006 Gen. Assem. (N.C. 2005), 2005 N.C.
Sess. Laws 448, sec. 6.1.
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