Appeal by plaintiff from an opinion and award entered 1
September 2004 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 14 September 2005.
Law Offices of George W. Lennon, by George W. Lennon, for
plaintiff-appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Jan N. Pittman
and Jacob H. Wellman, for defendant-appellees.
HUNTER, Judge.
Deborah Perry (“plaintiff”) appeals from an opinion and award
of the North Carolina Industrial Commission (“Commission”) entered
1 September 2004. For the reasons stated herein, we affirm the
Commission's opinion and award.
Plaintiff was employed by U.S. Assemblies in August of 1997,
and sustained a back injury on 3 September 1997 while lifting
boxes. Plaintiff was treated for a mechanical lower back injury
and muscular injury to the lower abdomen, and provided with light-duty work in accordance with the treating physician's orders.
Plaintiff left U.S. Assemblies's employment for personal reasons on
7 October 1997, but continued to complain of severe back pain and
sought further treatment.
In plaintiff's initial claim to the Commission in 1998, the
deputy commissioner found that plaintiff had sustained a
compensable back injury, that suitable light work had been offered
to plaintiff, and that plaintiff had refused such work without
justification by her termination of employment. The deputy
commissioner further found that plaintiff reached maximum medical
improvement by July 1998 and sustained no permanent partial
disability as a result of the injury, and found plaintiff's claim
of chronic pain lacked credibility. The deputy commissioner
concluded that plaintiff was entitled to medical compensation
arising from the injury only, and was not entitled to temporary
total or permanent partial disability.
Plaintiff appealed to the Full Commission, which affirmed the
deputy commissioner's holding with some minor amendments, including
a conclusion that plaintiff was not entitled to have defendants
provide for either a psychological evaluation or psychological
care. Plaintiff did not appeal the Full Commission's order.
In November 2001, plaintiff filed a Form 33 request for a
hearing, alleging a claim for change of condition due to a
psychological condition and chronic disabling pain, as well as
additional medical expenses. Defendants moved to dismiss
plaintiff's claim related to her psychological condition on theground of res judicata, and the motion was granted. The deputy
commissioner found the evidence showed plaintiff did not develop a
somatoform pain disorder or depression as a result of the September
1997 injury, and that plaintiff's chronic pain was not related to
the injury. The deputy commissioner denied plaintiff's claim.
Plaintiff appealed to the Full Commission. The Full
Commission found that plaintiff's claim regarding her psychological
condition was not properly dismissed on the ground of res judicata,
as no final judgment had been made on the merits. However, the
Full Commission determined, on the basis of the evidence of record
regarding plaintiff's psychological condition, that “plaintiff's
disability, if any, is due to the psychological conditions and not
to the compensable injury. The psychological conditions are not
causally related to the September 1997 low back strain.” The Full
Commission denied plaintiff's claim. Plaintiff appeals.
I.
We first note the appropriate standard of review for appeals
from the Industrial Commission. The standard of review is narrow
in worker's compensation cases, “limited to the consideration of
two issues: (1) whether the Commission's findings of fact are
supported by competent evidence; and (2) whether the conclusions of
law are supported by the findings of fact.”
Cannon v. Goodyear
Tire & Rubber Co., ___ N.C. App. ___, ___, 614 S.E.2d 440, 444,
disc. review denied, ___ N.C. ___, 621 S.E.2d 177 (2005). “'In
Workers' Compensation cases, the Industrial Commission's findings
of fact are conclusive on appeal if there is any competent evidenceto support them, even if there is conflicting evidence.'”
Brown v.
Family Dollar Distrib. Ctr., 129 N.C. App. 361, 363, 499 S.E.2d
197, 198 (1998) (citation omitted). “'[T]his Court is “not at
liberty to reweigh the evidence and to set aside the findings . . .
simply because other . . . conclusions might have been reached.”
“This is so, notwithstanding [that] the evidence upon the entire
record might support a contrary finding.”'”
Id. (citations
omitted). We now address plaintiff's assignments of error.
II.
Plaintiff first contends the Commission erred as a matter of
law in failing to decide all matters in controversy. Plaintiff
contends that the failure of an expert to answer cross-examination
questions relating to records not in evidence created a matter of
controversy between the parties which was not addressed by the
Industrial Commission. We disagree.
Plaintiff cites as authority the case of
Bank v. Motor Co.,
216 N.C. 432, 5 S.E.2d 318 (1939). In
Bank, the Industrial
Commission found a death to be in the course of employment when a
salesman for Reid Motor Co. was shot.
Id. at 433, 5 S.E.2d at 319.
The finding was based on the testimony of Jack Freeze (“Freeze”),
the individual who shot the salesman.
Id. at 435, 5 S.E.2d at 321.
At the hearing before the Commission, Freeze answered some of
claimant's questions, then refused to answer further.
Id. at 433,
5 S.E.2d at 320. On cross-examination, Freeze again answered some
questions, then refused to answer additional questions of
consequence.
Id. The Supreme Court stated that, “where a witnessrefuses to answer pertinent questions on cross-examination, his
testimony on direct examination should be stricken out.”
Id. at
434, 5 S.E.2d at 320. “'This doctrine rests on the common law rule
that no evidence should be admitted but what was or might be under
the examination of both parties and that
ex parte statements are
too uncertain and unreliable to be considered in the investigation
of controverted facts.'”
Id. (citation omitted). As a result, the
Court determined the findings based on Freeze's testimony were
founded upon incompetent evidence and not conclusive, and therefore
ordered them set aside.
Id. at 435, 5 S.E.2d at 321.
Here, plaintiff was examined by Dr. Siegel, an independent
medical examiner, in November 2002. During Dr. Siegel's
deposition, defendants instructed him to not answer plaintiff's
questions concerning reports by Dr. Rollins, a psychiatrist who had
previously examined plaintiff, as evidence concerning plaintiff's
psychological condition, including Dr. Rollins's reports, had not
yet been admitted pending a ruling by the deputy commissioner. Dr.
Siegel did not answer the questions.
Plaintiff was afforded the opportunity to cross-examine Dr.
Siegel as to all pertinent issues other than the reports related to
plaintiff's psychological condition. Plaintiff's cross-examination
questions as to Dr. Rollins's reports, which defendants had not
questioned plaintiff regarding, related to items not in evidence
pending a specific ruling by the Commission as to whether matters
pertaining to plaintiff's psychological condition could be
considered in the claim. As such, they were not “pertinentquestions” to issues “'under the examination of both parties'” at
the time of the deposition.
Bank, 216 N.C. at 434, 5 S.E.2d at 320
(citation omitted). We find no evidence in the record to indicate
that plaintiff sought an opportunity to further depose the witness
as to the issue of plaintiff's psychiatric condition after such
evidence was admitted by the deputy commissioner. The deposition
testimony therefore need not be stricken from the record.
Further, assuming
arguendo that Dr. Siegel's failure to answer
such questions would require his testimony to be stricken, we note
that the Commission's finding that plaintiff's psychological
condition was not related to the work-related injury incurred in
September 1997 is supported by competent evidence from plaintiff's
own witnesses, as addressed
infra in Section IV. We therefore find
no merit to plaintiff's assignment of error.
III.
Plaintiff next contends the Industrial Commission erred as a
matter of law in failing to recognize that the burden of proof
shifted to defendants as to plaintiff's claims for additional
medical compensation. We disagree.
In claims for “additional compensation for medical treatment,
the medical treatment sought must be 'directly related to the
original compensable injury.'”
Reinninger v. Prestige Fabricators,
Inc., 136 N.C. App. 255, 259, 523 S.E.2d 720, 723 (1999) (citation
omitted). In the case of
Parsons v. Pantry, Inc., 126 N.C. App.
540, 485 S.E.2d 867 (1997), this Court held that once an employee
has established a compensable injury, the employer bears the burdenof proof as to causation in a claim for additional medical
compensation which “lessens the period of disability, effects a
cure or gives relief” under N.C. Gen. Stat. § 97-25 (2003).
Id. at
541-42, 485 S.E.2d at 869. In
Parsons, the plaintiff had
established causation between the workplace injury and headaches,
and had been awarded future medical treatment.
Id. at 542, 485
S.E.2d at 869. The Court found that in a claim for additional
medical compensation for treatment of continued headaches, the
defendant bore the burden of producing evidence showing that the
plaintiff's headaches were not related to the original injury.
Id.
Here, in the prior unappealed order of 6 July 2000, the Full
Commission determined that plaintiff had suffered a lumbar strain
from the September 1997 injury and had reached full maximum medical
improvement as of July 1998. The Commission further held that
plaintiff lacked credibility as to claims of chronic pain and did
not injure her cervical spine as a result of the September 1997
incident. The order limited compensation to medical compensation
arising from the injury by accident and specifically found that
plaintiff was not entitled to treatment for unrelated conditions
and psychological care. Plaintiff's claims for additional medical
compensation relate to care for chronic pain and a psychological
condition, conditions specifically excluded from the finding of
plaintiff's original compensable injury, a lumbar strain. As
plaintiff had not established causation for these medical
conditions in the initial order, we find that the Commission didnot improperly shift the burden of proof in determining plaintiff's
claim.
IV.
Plaintiff next contends the Industrial Commission erred as a
matter of law in the findings and conclusions, specifically in its
findings and conclusions that plaintiff's psychological condition
and resulting disability were not causally related to plaintiff's
compensable injury, and that plaintiff had failed to prove a change
of condition. We disagree.
As discussed
supra, this Court's review of a Commission order
is limited to the consideration of two issues: “(1) whether the
Commission's findings of fact are supported by competent evidence;
and (2) whether the conclusions of law are supported by the
findings of fact.”
Cannon, ___ N.C. App. at ___, 614 S.E.2d at
444. “The Commission's findings of fact are conclusive on appeal
if supported by competent evidence even though there is evidence to
support a contrary finding. The Commission's findings of fact may
be set aside on appeal only where there is a complete lack of
competent evidence to support them.”
Jones v. Candler Mobile
Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995)
(citations omitted).
When seeking a modification of a final order on the basis of
a change of condition, “'[t]he burden is on the party seeking the
modification to prove the existence of the new condition and that
it is causally related to the injury that is the basis of the award
the party seeks to modify.'”
Grantham v. R. G. Barry Corp., 127N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997) (citation omitted).
“An employee satisfies this burden by producing medical evidence
showing 'he is physically or mentally,
as a consequence of the work
related injury, incapable of work in any employment.'”
Id.
(emphasis added) (citation omitted).
Here, a review of the record shows that the Commission made
numerous findings that supported the conclusion that plaintiff's
claims were not caused by the original compensable injury, and that
plaintiff failed to carry her burden to show that a change of
condition had occurred. The Commission found that plaintiff was
diagnosed with a somatoform pain disorder and that her chronic pain
was psychologically based. The Commission also found that Dr.
Blau, one of plaintiff's treating physicians, was unable to state
whether plaintiff's injury or somatoform disorder originated first,
and that Dr. Rollins, a psychiatrist who examined plaintiff, was
unable to provide an opinion as to whether the somatoform disorder
was related to plaintiff's compensable injury, and further opined
that plaintiff's psychological problems were very long standing,
going back to childhood. The Commission found that Dr. Siegel, the
independent medical examiner, opined that plaintiff's compensable
injury did not cause chronic pain syndrome, that plaintiff was not
credible, and that there was no pathological basis for plaintiff's
pain. Finally, the Commission found that Dr. Hernandez, a treating
psychologist, opined that plaintiff's psychological conditions were
caused by plaintiff's compensable injury, but gave little weight to
that testimony, as Dr. Hernandez's opinion was based solely on thefact that plaintiff had not had the disabling psychological
condition prior to September 1997. We note that “[t]he Commission
is the sole judge of the credibility of a witness and the weight to
be given to his testimony.”
Jones, 118 N.C. App. at 722, 457
S.E.2d at 318. Our review of the record reveals that these
findings are supported by competent evidence. As these findings of
fact support the Commission's conclusion of law that plaintiff
failed to prove causation in order to establish a change of
condition, we find this assignment of error to be without merit.
V.
Plaintiff next contends the Industrial Commission erred as a
matter of law in disregarding competent evidence. We disagree.
As discussed
supra, the Commission's “'findings of fact are
conclusive on appeal if there is any competent evidence to support
them, even if there is conflicting evidence' . . . [which] '“might
support a contrary finding.”'”
Brown, 129 N.C. App. at 363, 499
S.E.2d at 198 (citations omitted). “In making its findings of fact
. . . it is the duty of the Commission to consider, weigh, and
evaluate all of the competent evidence before it.”
Ward v. Beaunit
Corp., 56 N.C. App. 128, 134, 287 S.E.2d 464, 467 (1982). “In
making its findings of fact, the Commission may not ignore,
discount, disregard or fail to properly weigh and evaluate any of
the competent evidence before it.”
Id.
Here, plaintiff contends the Commission failed to consider all
competent evidence presented by plaintiff as to causation and
disability, in particular the testimony of Drs. Craig, Blau,Hernandez, and Rollins. A review of the record indicates that the
Commission made specific findings as to the evidence given by Drs.
Craig, Blau, Hernandez and Rollins, all of the expert witnesses,
and does not indicate that the Commission failed to properly weigh
and evaluate the evidence before it. Further, competent evidence
supports the findings made by the Commission as to the testimony of
these doctors. Although the Commission gave little weight to Dr.
Hernandez's opinions, the Commission specifically noted that such
opinion was disregarded because it was based on the assumption that
a temporal connection was sufficient to establish medical
causation. “'“'[T]he Commission is the sole judge of the
credibility of the witnesses and the weight to be given their
testimony.'” “Thus, the Commission may assign more weight and
credibility to certain testimony than other.”'”
Renfro v.
Richardson Sports Ltd., ___ N.C. App. ___, ___, 616 S.E.2d 317, 329
(2005) (citation omitted).
As the record indicates the Commission properly considered,
weighed, and evaluated all of the competent evidence before it, we
find no merit to plaintiff's argument that the Commission failed to
consider all evidence as to causation.
VI.
Plaintiff finally contends the Industrial Commission erred in
finding the defense of the claim was reasonable. We disagree.
“If the Industrial Commission shall determine that any hearing
has been brought, prosecuted, or defended without reasonable
ground, it may assess the whole cost of the proceedings includingreasonable fees for defendant's attorney or plaintiff's attorney
upon the party who has brought or defended them.” N.C. Gen. Stat.
§ 97-88.1 (2003). “The decision of whether to take such action is
consigned to the discretion of the Commission, and will be left
undisturbed absent an abuse of discretion.”
Singletary v. North
Carolina Baptist Hosp., ___ N.C. App. ___, ___, 619 S.E.2d 888, 892
(2005).
Here, under the facts and circumstances of the case, we find
plaintiff's arguments unpersuasive that defendants' defense of the
claim was unreasonable. Although the Full Commission determined on
review that the issue of plaintiff's claim for a change of
condition for a psychological condition was not barred by
res
judicata, defendants' arguments and evidence regarding plaintiff's
claim were reasonable and successful and we find no evidence of
abuse of discretion by the Commission.
As the findings of fact and conclusions of law support the
order of the Commission denying plaintiff's claim, and as we find
no abuse of discretion on the part of the Commission, we affirm the
order for the foregoing reasons.
Affirmed.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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