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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.
TOM BOWEN, EMPLOYEE, Plaintiff-Appellee, v. ABF FREIGHT SYSTEMS,
INC., Successor-in-Interest to CAROLINA FREIGHT CARRIERS
CORPORATION, SELF-INSURED (GAB Robins, Servicing Agent),
Filed: 5 September 2006
1. Workers' Compensation_-standard of review--seeking termination or suspension of
The Industrial Commission did not apply an incorrect standard of review under N.C.G.S.
§ 97-18.1 in a workers' compensation case, because: (1) N.C.G.S. § 97-18.1 does not break down
the hearing process into stages based upon the substance of the evidence to be considered; (2)
contrary to defendant's assertion, nowhere in the statute does it indicate that the Commission
shall consider the employee's refusal of treatment or rehabilitative services at the informal
telephone hearing and any circumstances that may justify refusal at a subsequent formal hearing;
and (3) defendant employer has the burden of establishing a basis for termination or suspension
of compensation to support its Form 24 application, and whether a forecast of evidence is
sufficient is a determination within the sound discretion of the Commission.
2. Workers' Compensation--compliance with vocational rehabilitation efforts--
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee complied with vocational rehabilitation efforts, because: (1) any failure to
cooperate with pursuing a GED prior to the 26 April 2000 administrative order of the
Commission requiring plaintiff to pursue his GED is not a basis for termination of compensation
under N.C.G.S. § 97-25; and (2) there was competent evidence that plaintiff cooperated with
pursuing his GED to the best of his ability after the 26 April 2000 administrative order, and
defendant does not contest the competency of the evidence establishing plaintiff's psychological
3. Workers' Compensation--refusal to accept suitable employment--credibility--work
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee did not unjustifiably refuse any suitable employment including a security
job position, because: (1) the record reveals that the security job position had not been approved
by a physician, and the educational requirements were too high for plaintiff to fulfill; (2) the job
would require filling out reports every once in a while and required an education level of ten
years which was beyond what plaintiff had achieved; (3) although a witness testified that he
would have hired plaintiff for the security guard position but for plaintiff's lack of interest, the
Commission is the sole judge of the credibility of witnesses and could properly have chosen to
give little weight to the witness's testimony; (4) plaintiff's vocational evaluator testified that due
to plaintiff's work limitations it would be difficult for him to obtain a job, and also plaintiff's
aptitude test revealed his language skills are a third-grade level and math skills below a third-
grade level; (5) plaintiff worked the previous fifteen years loading heavy freight and lacked the
transferable vocational skills necessary for new work settings; and (6) plaintiff scheduled and
then attended an interview for the only job recommended by his vocational counselor.
4. Workers' Compensation--total disability--work-related physical and mental
conditions_-suitable sedentary work
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee is totally disabled as a result of his work-related physical and mental
conditions, because: (1) a doctor testified that plaintiff cannot work due to his physical and
mental conditions; and (2) although plaintiff was cleared by a different doctor to perform
sedentary work, there was no suitable employment available to plaintiff who is fifty-seven years
old and only completed the seventh grade, who has no transferable vocational skills, and whose
reading and writing skills are at the third-grade level.
5. Workers' Compensation--injury by accident--depression
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee suffered an injury by accident resulting in depression, because: (1) a
doctor testified that it was his opinion to a reasonable degree of psychiatric certainty that the
vocational rehabilitative efforts were a stressor leading to plaintiff's depression; and (2) where a
physician testifies that plaintiff's depression was caused by several stressors, one of them arising
out of plaintiff's injury by accident, the fact that other stressors exist does not undermine a
finding that the depression was causally related to the injury.
Appeal by defendant from opinion and award entered 12 May 2005
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 11 April 2006.
Hedrick Eatman Gardner & Kincheloe, L.L.P., by Neil P. Andrews
and Jennifer S. Anderson, for defendant-appellant.
Patrick, Harper & Dixon L.L.P., by David W. Hood, and Leslie
M. Yount for plaintiff-appellee.
Tom Bowen (plaintiff) was employed as a dockworker by Carolina
Freight Carriers Corporation, a/k/a ABF Freight Systems, Inc.
(defendant) beginning on 2 February 1995. Plaintiff injured his
lower back while lifting materials in the course and scope of his
employment. Defendant filed a Form 21 admitting the compensability
of plaintiff's low back injury. Plaintiff was authorized to return
to work on 12 June 1995. Plaintiff returned to work for two weeks,but on 27 June 1995 temporary total disability payments were
reinstated for necessary weeks.
An MRI revealed plaintiff had a large disc herniation at L3-4.
Plaintiff also had a bulging disk at L5-S1, the site of a previous,
non-work related injury. Dr. Russell T. Garland performed a
diskectomy on plaintiff on 10 August 1995. An MRI showed that the
L3-4 disc had re-herniated. Plaintiff consulted Dr. Kenneth E.
Wood about his continued leg pain. Dr. Wood performed a
laminectomy and foraminotomy at L3-4. Dr. Wood requested a second
opinion with Dr. Robinson Hicks. Dr. Hicks performed a
decompressive laminectomy at L3-4 with a fusion at L3 to L5. On 6
January 1998 Dr. Hicks released plaintiff at maximum medical
improvement and assigned a 25% permanent partial disability rating
to his back. Plaintiff received a functional capacity evaluation
on 9 February 1998. According to this evaluation, plaintiff could
work in a sedentary capacity.
On 22 September 1999 plaintiff filed a Form 33 requesting a
hearing on his claim that he is permanently and totally disabled.
Defendant began vocational rehabilitation efforts with plaintiff to
assist him with finding sedentary work. Plaintiff met with Ms.
Omega Autry (Ms. Autry) in October of 1999 to begin vocational
rehabilitation. When Ms. Autry was on medical leave from her
position, Ms. Priscilla Styers (Ms. Styers) took over in counseling
plaintiff on his vocational rehabilitative efforts. Ms. Styers
worked with plaintiff from 25 January 2000 through April of 2000.
On 21 March 2000 Ms. Styers referred plaintiff to a job opening atGriffith Security. Plaintiff was interviewed by Doug Carter (Mr.
Carter) at Griffith Security on 22 March 2000. Mr. Carter
testified that he was aware of plaintiff's work restrictions and
that plaintiff's work restrictions fit within the parameters of a
security officer position that was available. He stated that he
would have extended a job offer to plaintiff but for plaintiff's
lack of interest.
On 24 March 2000 defendant filed a Form 24 application seeking
to terminate plaintiff's wage compensation on the basis that he had
failed to cooperate with vocational efforts. Plaintiff filed a
response on 3 April 2000, and Special Deputy Commissioner Gina E.
Cammarano entered an administrative order disapproving defendant's
application. Defendant filed notice of appeal to the Full
Commission from this order.
Plaintiff was examined by Dr. Thomas McKean (Dr. McKean), a
board certified psychiatrist, on 17 April 2000. Dr. McKean
diagnosed plaintiff with a depressive disorder, chronic pain
syndrome, and an adjustment disorder. He stated that obtaining a
GED would be difficult for plaintiff, if not impossible. However,
Dr. McKean's diagnosis did not prohibit plaintiff from further
vocational rehabilitation efforts.
On 15 May 2000 defendant filed a second Form 24 application
seeking to terminate plaintiff's wage compensation and asserting
that plaintiff has willfully refused to cooperate with vocational
efforts. Plaintiff filed a response on 31 May 2000. Special
Deputy Commissioner Ronnie E. Rowell entered an administrativeorder on 15 June 2000 disapproving defendant's Form 24 application.
Defendant filed notice of appeal to the Full Commission from this
order. On 30 August 2001 defendant filed a third Form 24
application seeking to terminate plaintiff's wage compensation.
Defendant asserted that plaintiff had again refused to cooperate
with vocational rehabilitation efforts. After plaintiff filed a
response, Special Deputy Commissioner Myra L. Griffin entered an
order disapproving defendant's Form 24 application. Defendant
filed notice of appeal to the Full Commission from this order as
Plaintiff's request for permanent and total disability was
heard before Deputy Commissioner Chrystal Redding Stanback on 27
March 2002. In an opinion and award entered 5 May 2003, Deputy
Commissioner Stanback determined that plaintiff had complied with
vocational rehabilitation efforts and had not unjustifiably refused
any suitable employment. Pursuant to this decision, plaintiff was
awarded temporary total disability benefits for the remainder of
his life or until further order of the Commission. Defendant
appealed to the Full Commission. On 12 May 2005 the Commission
issued an opinion and award affirming the decision of Deputy
Commissioner Stanback with modifications. Defendant appeals from
the final opinion and award of the Commission.
In considering an appeal from a decision of the North Carolina
Industrial Commission, this Court is limited to reviewing whether
any competent evidence supports the Commission's findings of factand whether the findings of fact support the Commission's
conclusions of law. Deese v. Champion Int'l Corp., 352 N.C. 109,
116, 530 S.E.2d 549, 553 (2000). A finding of fact is conclusive
on appeal if supported by competent evidence, even where there is
evidence to contradict the finding. See Adams v. AVX Corp., 349
N.C. 676, 681, 509 S.E.2d 411, 414 (1998). This Court may not
weigh the evidence or evaluate the credibility of witnesses, as
the Commission is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Id. at 680,
509 S.E.2d at 413.
 Defendant challenges the standard of review applied by the
Commission under N.C. Gen. Stat. § 97-18.1. Pursuant to section
97-18.1, the employer may file a Form 24 with the Commission
seeking to terminate or suspend compensation for total disability.
Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 66, 526 S.E.2d 671,
674 (2000). Section 97-18.1 provides in relevant part:
(c) An employer seeking to terminate or
suspend compensation . . . shall notify the
employee and the employee's attorney of record
in writing of its intent to do so on a form
prescribed by the Commission. . . . This form
shall contain the reasons for the proposed
termination or suspension of compensation, be
supported by available documentation, and
inform the employee of the employee's right to
contest the termination or suspension by
filing an objection in writing to the
Commission within 14 days of the date the
employer's notice is filed with the Commission
or within such additional reasonable time as
the Commission may allow.
(d) . . . If the employee files a timely
objection to the employer's notice, theCommission shall conduct an informal hearing
by telephone with the parties or their
counsel. . . . The Commission shall issue a
decision on the employer's application for
termination of compensation within five days
after completion of the informal hearing. The
decision shall (i) approve the application,
(ii) disapprove the application, or (iii)
state that the Commission is unable to reach a
decision on the application in an informal
hearing, in which event the Commission shall
schedule a formal hearing pursuant to G.S. 97-
83 on the employer's application for
termination of compensation.
N.C. Gen. Stat. § 97-18.1(c) and (d) (2005). Defendant's
applications for termination of compensation are based upon, inter
alia, plaintiff's refusal to cooperate with vocational
rehabilitation. Section 97-25 of our General Statutes, which
addresses the employee's cooperation with the employer's offers of
medical treatment and rehabilitative services, provides in
The refusal of the employee to accept any
medical, hospital, surgical or other treatment
or rehabilitative procedure when ordered by
the Industrial Commission shall bar said
employee from further compensation until such
refusal ceases, and no compensation shall at
any time be paid for the period of suspension
unless in the opinion of the Industrial
Commission the circumstances justified the
N.C. Gen. Stat. § 97-25 (2005).
Defendant contends that, under section 97-18.1, it need only
forecast evidence of plaintiff's refusal at the informal hearing,
and that the Commission may consider justification for the
employee's refusal to cooperate only at the formal hearing. We
disagree with both of defendant's contentions. Section 97-18.1does not break down the hearing process into stages based upon the
substance of the evidence to be considered. Nowhere in the statute
does it indicate, as defendant asserts, that the Commission shall
consider the employee's refusal of treatment or rehabilitative
services at the informal telephone hearing, and any circumstances
that may justify refusal at a subsequent, formal hearing. Also,
according to the plain language of section 97-18.1, the defendant-
employer has the burden of establishing a basis for termination or
suspension of compensation. N.C. Gen. Stat. § 97-18.1(c)(2005)
(the application for termination submitted by the employer shall
contain the reasons for the proposed termination or suspension of
compensation, [and] be supported by available documentation[.]).
And if the employee does not file a timely objection to contest the
employer's application for termination or suspension, then the
Commission may terminate or suspend compensation if there is a
sufficient basis. N.C. Gen. Stat. § 97-18.1(d) (2005). While we
express no opinion on what documentation submitted by the employer
would be sufficient for termination or suspension of compensation,
we note that the statute places the burden on the employer of
providing reasons to support its Form 24 application. Whether a
forecast of evidence is sufficient is a determination within the
sound discretion of the Commission. Defendant's assignment of
error is overruled.
 Next, defendant contends the Commission erred in
concluding that plaintiff complied with vocational rehabilitationefforts. Defendant argues that the record does not contain
competent evidence to support the finding that plaintiff cooperated
with vocational rehabilitation. In particular, defendant asserts
that plaintiff failed to put forth any effort in pursuing his GED.
The competent evidence establishes that plaintiff refused to call
to schedule GED placement testing and refused to enroll in GED
basic skills classes at Cleveland Community College. Ms. Styers
testified that she gave plaintiff the telephone number and asked
him more than once to call and set up a time for the testing. When
plaintiff failed to do this, Ms. Styers scheduled an appointment
for plaintiff. Ms. Janice Neal (Ms. Neal), an instructor of basic
education at Cleveland Community College, testified that plaintiff
missed a scheduled appointment with her on 27 March 2000. She
stated that plaintiff did not call to reschedule.
Foremost, we note that any failure to cooperate with pursuing
a GED prior to the 26 April 2000 administrative order of the
Commission requiring plaintiff to pursue his GED is not a basis for
termination of compensation under section 97-25. See N.C. Gen.
Stat. § 97-25 (2005) (refusal of employee to accept medical
treatment or rehabilitation when ordered by the Industrial
Commission bars employee from further compensation until refusal
ceases); Maynor v. Sayles Biltmore Bleacheries, 116 N.C. App. 485,
488-89, 448 S.E.2d 382, 384-85 (1994) (absent evidence that the
plaintiff failed to cooperate with a vocational rehabilitation
specialist after an order of the Commission requiring suchcooperation, the defendant-employer failed to establish a violation
of section 97-25).
Defendant also asserts that plaintiff made no attempt to
obtain his GED after the 26 April 2000 administrative order. But
there is competent evidence referenced by the Commission in its
findings that plaintiff cooperated with pursuing his GED to the
best of his ability, which was limited by several factors:
16. The first vocational counselor was Omegra
Autry. Subsequent to a medical leave of
absence, Ms. Autry was replaced by another
counselor, Priscilla Styers. Plaintiff, who
had not worked in more than two years, began
to suffer from depression in association with
his chronic back pain, and due to the
demanding nature of the vocational
rehabilitation assignments given him by Ms.
Styers, who was more assertive and more
aggressive than Ms. Autry. Plaintiff
cooperated with vocational rehabilitation
efforts to the best of his ability,
considering his limited education, persistent
and disabling back pain, and his depression.
Ms. Styers insisted that the only way
plaintiff could obtain a job was to get his
GED, the pursuit of which made plaintiff very
uncomfortable, considering his historical lack
of success during his grade school education.
Plaintiff could not bear the stress created by
attending the GED classes and feared
humiliation in the event that he failed them.
21. . . . After counseling plaintiff for eight
months, Dr. McKean opined that because of
plaintiff's depressive issues, chronic pain
issues, learning disability and borderline
mental functioning, plaintiff would not be
able to obtain his GED based upon his mental
issues. Dr. McKean further noted that
pursuing a GED was not appropriate for
plaintiff as it was a stressor that caused him
Defendant does not contest the competency of the evidence
establishing plaintiff's psychological difficulties. Indeed, Dr.McKean stated that participating in a GED program would be
difficult, if not impossible, for plaintiff. Defendant notes that
Dr. McKean did not prohibit plaintiff's participation in a GED
program. But it is not this Court's role to make new findings of
fact based upon the evidence; our review of a finding of fact
entered by the Commission is to determine whether it is supported
by competent evidence. See Adams, 349 N.C. at 681, 509 S.E.2d at
The Commission entered the following finding summarizing the
evidence of plaintiff's affirmative efforts at obtaining a job and
participating in vocational rehabilitation:
22. Despite his chronic back pain and mental
issues, plaintiff cooperated with vocational
rehabilitative efforts. Plaintiff attended
all vocational meetings, took a placement test
for the GED, sought employment on his own by
reviewing advertisements for work in the
Shelby area and speaking to colleagues,
completed sample job applications, got a
criminal background check and paid for the
same, completed job lead forms to the best of
his ability, went to the Employment Security
Commission to locate jobs and scheduled and
attended the only job interview that the
vocational counselor suggested.
Where any competent evidence exists to support a finding of the
Commission, that finding is binding upon this Court. See Deese,
352 N.C. at 116, 530 S.E.2d at 553. Thus, even though there may be
evidence from which a fact finder could determine plaintiff has
failed to cooperate with vocational rehabilitation efforts, we must
uphold the finding.
 Defendant also challenges the Commission's finding that
plaintiff has not unjustifiably refused any suitable employment. Defendant contends that plaintiff violated section 97-32 of the
General Statutes, which states:
If an injured employee refuses employment
procured for him suitable to his capacity he
shall not be entitled to any compensation at
any time during the continuance of such
refusal, unless in the opinion of the
Industrial Commission such refusal was
N.C. Gen. Stat. § 97-32 (2005). The Commission entered a finding
with respect to the Griffith Security position that plaintiff
18. Most of the jobs located by vocational
counselors assigned to plaintiff's claim were
part-time positions, beyond plaintiff's
education or that required a GED. A security
guard position was located for plaintiff;
however, the job required ten years of
education, which the plaintiff lacked, and it
was never approved by a physician. The
security job position was not suitable
employment, and the plaintiff did not
unjustifiably refuse such employment.
Defendant argues on appeal that the Commission's findings are
erroneous because Mr. Carter of Griffith Security stated that he
would have hired plaintiff for the security officer position but
for plaintiff's lack of interest. Defendant contends that this
evidence supports a finding that the Griffith Security job was
suitable and that plaintiff constructively refused this suitable
employment by sabotaging the interview. See Johnson v. Southern
Tire Sales & Serv., 358 N.C. 701, 709, 599 S.E.2d 508, 514 (2004)
(An employer need not show that the employee was specifically
offered a job by some other employer in order to prove that the
employee was capable of obtaining suitable employment.). Thedispute between the parties here hinges on the question of whether
the Griffith Security job was suitable employment. In order to
be suitable, a job must be available to the employee and one that
he is capable of performing. Id.
Contrary to defendant's assertion, the record contains
competent evidence to support the finding that the Griffith
Security job was not suitable employment. The record reveals that
the position had not been approved by a physician, and the
educational requirements were too high for plaintiff to fulfill.
Specifically, plaintiff testified that the Griffith job would
require filling out reports every once in a while and required an
education level of 10 years, beyond what plaintiff had achieved.
Defendant argues nonetheless that the Commission should have given
more weight to the testimony of Mr. Carter. Mr. Carter stated that
he would have extended an offer to plaintiff but for plaintiff's
clear lack of interest. As noted supra, the Commission is the sole
judge of credibility of witnesses and the weight of evidence
presented. See Adams, 349 N.C. at 680, 509 S.E.2d at 413. The
Commission could properly have chosen to give little weight to the
testimony of Mr. Carter. See Cross v. Blue Cross/Blue Shield, 104
N.C. App. 284, 288, 409 S.E.2d 103, 105 (1991) (Commission is sole
judge of credibility of witnesses; it may reject part or all of
testimony of a witness).
Defendant also contends that the Commission's finding on
suitable employment should be reversed where it did not state
whether there were reasonably available jobs if plaintiff wasdiligent in his efforts, citing Johnson v. Southern Tire Sales &
Serv., 358 N.C. 701, 599 S.E.2d 508 (2004). We find this argument
unpersuasive. In Johnson, the plaintiff's vocational
rehabilitation counselor testified that he found approximately
twelve jobs that were within the plaintiff's physical and
vocational restrictions. Johnson, 358 N.C. at 703, 599 S.E.2d at
510. The plaintiff's vocational counselor also testified that the
plaintiff could have found a job if he had made diligent efforts.
Id. at 709, 599 S.E.2d at 514. However, the Commission found that
the plaintiff did not unjustifiably refuse suitable employment
where he received no job offers. Id. at 710, 599 S.E.2d at 514-15.
The Supreme Court stated that this finding was in contravention to
the doctrine of constructive refusal of suitable employment. Id.
The Court held that the Commission's conclusion on suitable
employment must be reversed due to the lack of findings on whether
the plaintiff would have been hired if he had diligently sought
employment. Id., 599 S.E.2d at 515.
Here, in contrast, plaintiff's vocational evaluator at
Cleveland Vocational Industries testified that due to plaintiff's
work limitations it would be difficult for him to obtain a job.
Also, plaintiff's aptitude test revealed his language skills are at
a third-grade level and math skills below a third-grade level.
Plaintiff had worked the previous decade and a half in the heavy
freight industry. The Commission found, in finding of fact number
17, that plaintiff has worked the previous fifteen years loading
heavy freight and lacks the transferable vocational skillsnecessary for new work settings. The Commission's finding was
supported by competent evidence.
Having determined that competent evidence supports the
Commission's findings, we now consider whether the findings support
its conclusions. The relevant conclusion of law states:
2. Plaintiff has complied with vocational
rehabilitation efforts and with prior Orders
of the Industrial Commission regarding the
same and should not have his compensation
ceased for noncompliance. Plaintiff has not
unjustifiably refused any suitable employment.
N.C.G.S. §§97-18.1, 97-25, 97-32.
This conclusion is supported by findings of fact 16, 17, 18, 21,
and 22. The Commission found that the security officer position
was not suitable employment because its educational requirements
were too high and a physician had not approved the position for
plaintiff. With respect to plaintiff's efforts at vocational
rehabilitation, the Commission found that plaintiff was not able to
obtain his GED due to a learning disability, depression, and
chronic pain issues. Significantly, the Commission also found that
plaintiff scheduled and then attended an interview for the only job
recommended by his vocational counselor. Defendant's challenge to
the Commission's conclusion is overruled.
 Next, defendant contends that the Commission erred in
concluding that plaintiff is totally disabled as a result of his
work-related physical and mental conditions. Defendant challenges
the following findings in this regard:
25. Polly Metcalf, vocational coordinator at
Cleveland Vocational Industries, opined thatif plaintiff were to go out and get a job,
based on what they observed, it would be
difficult for him to maintain the job and
stated that the results of the evaluation at
their center would indicate a poor prognosis
for success if plaintiff were employed.
26. Based upon the most competent evidence of
record, plaintiff is unable to earn wages at
this time. Plaintiff's treating physician,
Dr. McKean, has indicated that plaintiff is
unable to work at this time due to both
physical and mental issues.
We determine that competent evidence supports these findings. Dr.
McKean testified that plaintiff cannot work due to his physical and
mental condition. Although plaintiff was cleared by a different
physician to perform sedentary work, the record reveals that there
was no suitable sedentary employment available to plaintiff:
Plaintiff is 57 years old, and his formal education consists of
completing only the seventh grade. Plaintiff has no transferable
vocational skills, having worked the previous fifteen years as a
dockworker loading heavy freight. Plaintiff's reading and writing
skills are at the third-grade level. Given the evidence that
plaintiff was not qualified for sedentary jobs due to their
educational requirements, the Commission did not err in concluding
that plaintiff was totally disabled. See Peoples v. Cone Mills
Corp., 316 N.C. 426, 442-44, 342 S.E.2d 798, 808-09 (1986) (fact
that the plaintiff can perform sedentary work does not prevent
Commission from awarding total disability where there is evidence
that plaintiff is not qualified for sedentary jobs that might be
available due to the plaintiff's lack of education and job skills).
 Finally, defendant contends that the Commission erred in
finding and concluding that plaintiff suffered an injury by
accident resulting in depression. Specifically, defendant argues
that plaintiff failed to establish his depression was causally
related to his injury by accident. The Commission made a finding
on this issue based upon the testimony of Dr. McKean:
20. Dr. Thomas McKean, psychiatrist, first saw
the plaintiff on April 17, 2000, for suicidal
thoughts and depression due to chronic pain
and vocational efforts. Plaintiff's family
history is positive for two family members
committing suicide. Dr. McKean opined that
vocational rehabilitative efforts were one of
the major stressors that led to the
plaintiff's clinical depression. Vocational
rehabilitation continued to be an issue in
plaintiff's life during the course of Dr.
McKean's discussions with plaintiff. Dr.
McKean's psychiatric treatment was necessary
to effect a cure of provide relief or
plaintiff's depressive symptoms.
The Commission then entered the following conclusion:
4. Plaintiff is entitled to reasonable and
necessary nursing expenses, medicines, sick
travel, medical, hospital and other treatment
or course of rehabilitative or pain management
services at defendants' expense reasonably
required to effect a cure, provide relief and
lessen the period of disability. Dr. McKean's
treatment of the plaintiff was reasonably
designed to tend to effect a cure, provide
needed relief from or lessen the period of
disability associated therewith, therefore
defendants shall pay all reasonable and
necessary medical expenses incurred by the
plaintiff as a result of the injury by
accident and related depression. N.C.G.S.
Defendant argues that the testimony of Dr. McKean is speculative
and cannot support a finding that plaintiff's depression is
causally related to his vocational rehabilitative efforts. Dr.McKean testified that depression is a multifactorial illness but
that vocational rehabilitation is one of the stressors that led to
plaintiff's clinical depression. Specifically, Dr. McKean stated
that it was his opinion to a reasonable degree of psychiatric
certainty that the vocational rehabilitative efforts were a
stressor leading to plaintiff's depression. Defendant points out
that Dr. McKean also stated, I don't think a causal specific
relationship could be applied here.
But we must consider this
statement in context; this Court may not determine a witness's
entire testimony is speculative based upon a few selective
excerpts. See Alexander v. Wal-Mart Stores, Inc.
, 166 N.C. App.
563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting),
adopted per curiam
, 359 N.C. 403, 610 S.E.2d 374 (2005).
Where a physician testifies that the plaintiff's depression
was caused by several stressors, one of them arising out of the
plaintiff's injury by accident, the fact that other stressors exist
does not undermine a finding that the depression was causally
related to the injury. See Haponski v. Constructor's, Inc.
N.C. App. 95, 103, 360 S.E.2d 109, 113-14 (1987) (existence of
other possible causes of the plaintiff's depression does not negate
probative value of the physician's testimony that the depression
was caused by the plaintiff's pain). Dr. McKean's testimony that
plaintiff's vocational rehabilitation was a stressor causing
plaintiff's depression supports the Commission's findings and
conclusion. We hold that the Commission's findings are supported by
competent evidence and the findings justify the Commission's
conclusions. As such, we affirm the opinion and award of the North
Carolina Industrial Commission.
Judges WYNN and McGEE concur.
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