Appeal by employer from an Opinion and Award filed 7 February
2005 by the Full Commission. Heard in the Court of Appeals 8
The Sumwalt Law Firm, by Mark T. Sumwalt and Vernon Sumwalt,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by H. Bernard
Tisdale, III, for defendant-employer-appellant.
Mastercraft Fabrics, L.L.C. (defendant) appeals from an
Opinion and Award filed 7 February 2005 awarding Marvin Silvers
(plaintiff) temporary partial disability from 11 December 2001
through 31 December 2001; temporary partial disability from 8
January 2002 through 31 December 2002; temporary partial disability
for the period of 1 January 2003 through 18 February 2003; total
disability compensation for 5 January 2002 though 7 January 2002
and 19 February 2003 through the present and continuing untilfurther order of the Commission; all medical expenses as a result
of plaintiff's 11 December 2001 injury by accident; and attorney's
Plaintiff, age forty-four, worked for defendant for eight
years before his injury occurred. On 11 December 2001, plaintiff
injured his left knee when he stepped off a loom. Defendants
admitted the compensability of plaintiff's injury as well as their
liability for the injury by filing a Form 60 under N.C. Gen. Stat.
§ 97-18(b). On 13 December 2001, plaintiff was referred to Dr.
John Davis, an orthopedic surgeon. Dr. Davis performed
arthroscopic surgery on plaintiff on 4 January 2002. Defendant's
employment supervisor and human resources manager, Becky Stevens,
attended plaintiff's appointments and examinations with Dr. Davis
and discussed plaintiff's return to work without plaintiff's
Between 11 December 2001 and 4 January 2002, Dr. Davis imposed
work restrictions of light duty on plaintiff. The light duty
restrictions were not defined, however, and it was left up to
defendant to interpret and implement them. Plaintiff's work during
this time involved special accommodations that were not a part of
his ordinary work routine. He usually worked in the office doing
odd jobs when he was able to work.
On 4 January 2002, Dr. Davis performed a medial retinacular
repair on plaintiff's left knee. Even on the day of his surgery,
plaintiff was required to perform work for defendant under his
light duty restrictions for two hours before the surgery sodefendant would not have to report a lost-time accident. On 8
January 2002, plaintiff returned to work with defendant for as long
as he could tolerate the post-surgical pain in his left knee. Dr.
Davis encouraged plaintiff to continue working full-time because
Dr. Davis wanted to avoid having to write plaintiff out of work,
even though plaintiff had to leave work early or miss work entirely
because of left knee pain. When plaintiff missed work, defendant
marked plaintiff's attendance record as if plaintiff had called in
sick for that particular day.
Despite plaintiff's ongoing knee pain, Dr. Davis told
plaintiff he had no other medical treatment to offer. Plaintiff
was transferred to Dr. Jay Jansen, who performed a second surgery
on his left knee on 28 August 2002. Upon arthroscopic examination,
Dr. Jansen found cartilage wear (chondromalacia) on the back of
plaintiff's kneecap as well as on the medial femoral condyle, which
is the weight-bearing part of the knee. Dr. Davis' first surgery
did not address the weight-bearing part of the knee. Plaintiff
continued to work with defendant through 28 August 2002, the date
of the second surgery. The second surgery helped the pain,
swelling, and popping in plaintiff's left knee to some degree,
however plaintiff continued to have the same problems post-surgery.
On 4 September 2002, plaintiff returned to work with defendant
on a graduated return-to-work schedule. On 9 December 2002, Dr.
Jansen released plaintiff to return to work without any work
restrictions from his August 2002 surgery. Dr. Jansen did so even
though he had not reviewed a functional capacity evaluation, andeven though plaintiff's knee problems had persisted after two
surgeries. Defendants paid temporary partial disability to
plaintiff during this period; however they discontinued payments of
temporary partial disability benefits on 16 November 2002, under
the assumption that plaintiff had no work restrictions. On 18
February 2003, defendant terminated plaintiff for excessive
absences from work. Since 18 February 2003, plaintiff has
attempted to find other employment, including conducting a job
search through the Employment Security Commission after filing for
unemployment. Many of the employers with whom plaintiff applied
for employment were not hiring. In addition, defendant considered
the possibility of jobs at two of its other plants for plaintiff,
but these jobs were either three hours from plaintiff's residence
or different from the job plaintiff had always performed.
Defendant presented no evidence as to the functional requirements
of these jobs, their physical demands, and they never offered these
jobs to plaintiff.
On 19 August 2003, plaintiff underwent an independent medical
evaluation with Dr. Jerry Barron of Perry & Barron Orthopedics in
Charlotte, North Carolina. Dr. Barron is a board certified
orthopedic surgeon in Charlotte specializing in the treatment of
knees and shoulders. In addition to the diagnoses provided by Dr.
Davis and Dr. Jansen, Dr. Barron opined that plaintiff's
intraoperative photographs from the second surgery, which Dr.
Jansen had performed on 28 August 2002, indicated at least a
partial tear to his anterior cruciate ligament (ACL) with avulsionof the ligament from the femoral condyle. The symptoms from ACL
tears resemble and often mimic symptoms from plaintiff's other
diagnoses. Dr. Barron recommended surgery to evaluate and repair
the ACL tear, but he also stated a functional capacity evaluation
(FCE) would help to determine plaintiff's work activities if he
should decide not to have surgery.
On 26 September 2003, plaintiff underwent the FCE, which
indicated he could not climb ladders or stairs, crawl, or kneel.
The FCE also indicated plaintiff could walk only minimally, and
that he must alternate periods of sitting and standing as needed.
In accordance with the FCE results, Dr. Barron assigned permanent
restrictions to plaintiff as follows: (1) lifting no more than 20
pounds occasionally from the waist up and no lifting from the waist
down; (2) no climbing ladders, kneeling, or squatting; and (3)
climbing stairs no more than occasionally. Dr. Barron also stated
these restrictions related back to 28 August 2002, when plaintiff
had his second surgery. On 10 June 2004, the Deputy Commission
issued an Opinion and Award, awarding plaintiff disability
benefits. On 7 February 2005, the Full Commission affirmed the
Deputy Commission's Opinion and Award, with some modifications, and
awarded plaintiff: temporary partial disability from 11 December
2001 through 31 December 2001; temporary partial disability at a
rate of $117.22 per week from 8 January 2002 through 31 December
2002 (a lump sum of $6,095.44); temporary partial disability at a
rate of $3.31 per week for the period of 1 January 2003 through 18
February 2003 (a lump sum of $23.17); total disability compensationat a rate of $360.47 per week from 5 January 2002 though 7 January
2002 and 19 February 2003 through the present and continuing until
further order of the Commission; all medical expenses as a result
of plaintiff's 11 December 2001 injury by accident; and attorney's
fees. From this Opinion and Award, defendant appeals.
On appeal, defendant argues the Commission erred by: (I)
concluding plaintiff has been totally disabled since 19 February
2003 and continuing; (II) concluding plaintiff was temporarily and
partially disabled between 1 January 2003 and 18 February 2003;
(III) discounting Dr. Davis' testimony; (IV) concluding plaintiff
was entitled to ongoing compensation for his ACL tear.
This Court's review of a workers' compensation appeal is
the questions of law (1) whether there was
competent evidence before the Commission to
support its findings of fact and (2) whether
such findings justify the legal conclusions
and decision of the Commission. . . . This
Court may, however, remand a case to the
Commission for further findings of fact, where
[the Court] determine[s] that the findings are
insufficient to permit a full and fair
adjudication of all matters in controversy.
Smith v. American & Efird Mills
, 51 N.C. App. 480, 486, 277 S.E.2d
83, 87 (1981); see also
N.C. Gen. Stat. § 97-86 (2005). In
addition, [t]he Industrial Commission possesses the powers of a
and in exercising those powers, exercises discretion.
Porter v. Fieldcrest Cannon
, 133 N.C. App. 23, 26, 514 S.E.2d
517, 520 (1999). An abuse of discretion results only where a
decision is manifestly unsupported by reason or is so arbitrarythat it could not have been the result of a reasoned decision.
Bryson v. Phil Cline Trucking
, 150 N.C. App. 653, 656, 564 S.E.2d
585, 587 (2002) (citations omitted) (internal quotation marks
Defendant first argues the Commission erred in determining
plaintiff was totally disabled since 19 February 2003 and
continuing to the present time. We disagree.
Disability under the Workers' Compensation Act means
incapacity because of injury to earn the wages which the employee
was receiving at the time of injury in the same or any other
employment. N.C. Gen. Stat. § 97-2(9). Plaintiff has the burden
of proving disability and can meet this burden in one of four ways:
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work in
any employment; . . .(2) the production of
evidence that he is capable of some work, but
that he has, after a reasonable effort on his
part, been unsuccessful in his effort to
obtain employment; . . .(3) the production of
evidence that he is capable of some work but
that it would be futile because of preexisting
conditions, i.e., age, inexperience, lack of
education, to seek other employment; . . . or
(4) the production of evidence that he has
obtained other employment at a wage less than
that earned prior to the injury.
Russell v. Lowes Prod. Distr.
, 108 N.C. App. 762, 765, 425 S.E.2d
454, 457 (1993).
In the instant case, the Commission made the following
findings of fact:
18. On February 18, 2003, plaintiff was
terminated by [defendant], with thestated reason being excessive absences.
[Defendant] had an attendance policy
under which it could terminate any
employee who missed more than ninety-six
(96) hours in a given year. Plaintiff's
attendance log indicates that he missed
the following dates after calling in
sick; May 25, 2002; May 26, 2002;
September 30, 2002; October 1, 2002;
November 11, 2002; February 10, 2003;
February 12, 2003; February 13, 2003; and
February 18, 2003. These dates account
for the majority of the ninety-six (96)
hours plaintiff could miss before
[defendant] could terminate his
19. The credible evidence of record supports
the finding that many of plaintiff's
absences that lead (sic.) to his
termination were directly related to his
admittedly compensable injury by
accident. Accordingly, although
[defendant's] policy was a general one,
defendant failed to prove that
plaintiff's termination was for
misconduct or fault for which a non-
disabled employee would also have been
terminated. Therefore, plaintiff's
termination did not constitute a
constructive refusal of suitable
Plaintiff has had medical limitations that prevented him from
performing work since 19 February 2003.
A functional capacity
evaluation (FCE) confirmed plaintiff had permanent restrictions
from his knee injury, but that he was capable of working within
those restrictions. Dr. Barron testified that these restrictions
related back to at least 28 August 2002, well before the onset of
plaintiff's total disability on 19 February 2003. The Commission
gave greater weight to the testimony of Dr. Barron than to the
testimony of the other doctors who treated plaintiff, including Dr.
Jansen who failed to diagnose the partial ACL tear from plaintiff'sinjury, even though the ACL tear appeared on the intraoperative
photographs from 28 August 2002. It was Dr. Barron who correctly
diagnosed plaintiff with an ACL tear, referred him out for an FCE,
and assigned permanent work restrictions based on the objective
results of the FCE. Dr. Jansen, on the other hand, did not have
the benefit of the FCE results, but later endorsed them as an
appropriate measure of plaintiff's restrictions. This Court cannot
reconsider the credibility and evidentiary weight that the
Commission gave to Dr. Barron's opinions in light of the competent
evidence that supports the Commission's findings. See Jenkins v.
Easco Aluminum Corp.
, 165 N.C. App. 86, 96, 598 S.E.2d 252, 258
(2004) ([T]his Court does not have the authority to weigh the
evidence and decide an issue on the basis of its weight.).
Plaintiff has therefore shown he was capable of some work under
the second prong of Russell
as of 19 February 2003. See, Hooker v.
Stokes-Reynolds Hosp./N.C. Baptist Hosp., Inc.
, 161 N.C. App. 111,
117, 587 S.E.2d 440, 445 (2003); Zimmerman v. Eagle Elec. Mfg.
N.C. App. 748, 752, 556 S.E.2d 678, 680 (2001). This competent
evidence supports these findings, which in turn support the
Commission's conclusion that plaintiff has been disabled since 19
February 2003. Lanning v. Fieldcrest Cannon, Inc.
, 352 N.C. 98,
108, 530 S.E.2d 54, 61 (2000). The Commission further concluded:
4. Based upon the credible evidence of
record, defendant failed to prove that
plaintiff's termination was for
misconduct or fault for which a non-
disabled employee would also have been
terminated. . . . Accordingly,
plaintiff's termination did notconstitute a constructive refusal of
Plaintiff complied with the job search requirements in his
claim for unemployment compensation and thus, made a reasonable
effort to become employed under the second prong of Russell
Plaintiff's efforts included applying for at least fifty-two other
jobs beginning the week of 23 February 2003 through the Employment
Security Commission, which requires at least two in-person
contacts with different employers on different days each week.
, 161 N.C. App. at 117, 587 S.E.2d at 445 (citing North
Carolina Employment Security Commission Regulation § 10.25).
Plaintiff's compliance with this obligation constituted reasonable
efforts as required to prove disability under Russell
. See id
Competent evidence supports the Commission's determination that
plaintiff has been disabled since 19 February 2003. See id
Defendant suggests that a sluggish economy, and not plaintiff's
injury, is the real reason plaintiff cannot work. Construing the
second prong under Russell
, this Court has previously remarked in
Fletcher v. Dana Corporation
that whether the nonavailability of
jobs due to economic conditions is a factor to be considered or
ignored in determining the after-injury wages an employee is 'able
to earn,' is not immediately apparent from a literal reading of the
statute itself. Fletcher v. Dana Corp.
, 119 N.C. App. 491,
496-497, 459 S.E.2d 31, 35 (1995). Therefore, we reject
defendant's argument. This assignment of error is overruled.
Defendants next argue the Commission erred in finding and
concluding plaintiff was temporarily and partially disabled between
1 January 2003 and 18 February 2003. We disagree.
N.C. Gen. Stat. § 97-30 provides an allowance for where the
incapacity for work resulting from [an] injury is partial[.] Shaw
v. United Parcel Serv.
, 116 N.C. App. 598, 600, 449 S.E.2d 50, 52
, 342 N.C. 189, 463 S.E.2d 78 (1995). The
compensation is to be computed upon the basis of the difference in
the average weekly earnings before the injury and the average
weekly wages he is able to earn thereafter. Gupton v. Builders
, 320 N.C. 38, 42-43, 357 S.E.2d 674, 678 (1987).
Defendant complains the Commission should not have awarded a
total of $23.17 in temporary partial disability between 1 January
2003 and 18 February 2003.
(See footnote 1)
Defendants assert plaintiff was
capable of working at full duty and without restriction during
this period. However, the standard of review allows the Commission
to give greater weight to Dr. Barron's opinion such that plaintiff
had permanent work restrictions starting in August 2002, as
demonstrated by the FCE. Plaintiff's temporary partial disability
resulted from the work restrictions caused by his compensable knee
injury. He is entitled to $23.17 in temporary partial disability
between 1 January 2003 and 18 February 2003. This assignment of
error is overruled.
Defendant next argues the Commission erred by discounting the
testimony of Dr. Davis. Specifically defendant argues the opinion
testimony based on
conversations between Dr. Davis and defendant's
representatives should not have been stricken, contending there was
no confidential physician-patient relationship between Dr. Davis
and plaintiff, and further contending there was no ex parte
communication. We disagree.
Our standard of review is whether the Commission abused its
discretion. Adams v. AVX Corp.
, 349 N.C. 676, 509 S.E.2d 411
In reviewing th[ese] issue[s] for an abuse of the
Commission's discretion, we note that this Court does not have the
right to weigh the evidence and decide the issue on the basis of
its weight. . . . Rather, we can only determine whether the record
contains sufficient evidence to support the Commission's findings.
Lakey v. U.S. Airways, Inc.
, 155 N.C. App. 169, 175, 573 S.E.2d
703, 707-708 (2002) (internal citations omitted). Consequently, on
appeal, so long as there is any competent evidence to support the
facts found by the Commission, they are binding on appeal[.]
, 349 N.C.
681, 509 S.E.2d at 414
The Commission made the following finding of fact:
27. Ms. Becky Stevens is [defendant's]
employment supervisor and human resources
manager. Ms. Stevens is not a
rehabilitation nurse case manager. The
credible evidence of record supports a
finding that Ms. Stevens attended many of
plaintiff's appointments with Dr. Davis,
including being present for actual
physical examinations. Ms. Stevens was
present in this manner without having
obtained plaintiff's consent.
Additionally, Ms. Stevens discussedplaintiff's return to work with Dr. Davis
outside of plaintiff's presence. These
communications by Ms. Stevens with Dr.
Davis were non-consensual ex parte
communications. Given these factors, Dr.
Davis' testimony should be stricken from
The Commission concluded:
1. Ms. Steven's non-consensual ex parte
communications with Dr. [Davis] regarding
plaintiff's injury and return to work
warrants the striking of Dr. Davis'
deposition testimony from the record.
Salaam v. N.C. Dept. Of Transportation
122 N.C. App. 83, 468 S.E.2d 536, disc.
review improvidently allowed
, 345 N.C.
494, 450 S.E.2d 51 (1997).
The competent evidence of record shows that Becky Stevens testified
she attended plaintiff's examinations with Dr. Davis without
plaintiff's consent. The record evidence further shows that Dawn
Steadman, the claims adjuster for defendant-carrier, also testified
she spoke to Dr. Davis without plaintiff's consent.
Some of Ms. Steadman's testimony is as follows:
Q. And the-the interrogatories say that
Dawn Steadman spoke with Dr. Davis' office in
August, 2002 regarding whether plaintiff was
restricted from driving . . . , [A]re you
aware of that?
Q. Okay. You didn't have my consent to do
that, nor [plaintiff's] consent, did you?
A. That's correct.
Q. Okay. But you called the doctor's office
up and talked to them about a substantive
A. I did not speak to Dr. Davis. I spoke
with a member of his staff.
Q. Okay. But you talked to Dr. Davis' office
about a substantive matter in this claim?
[Defendant' s counsel]: Objection. Asked and
THE COURT: I believe she has answered that
Dr. Davis also testified about communicating with defendant's
representatives outside of plaintiff's presence, which
conversations resulted in Dr. Davis ordering plaintiff to work
light duty, which in turn allowed defendant to require plaintiff
to appear at least two hours a day, including the day of his knee
surgery, so that defendant would not have to report a lost-time
accident. Competent evidence therefore supports the Commission's
findings that defendant's representatives had ex parte
communication with Dr. Davis' office regarding plaintiff's medical
limitations and return-to-work issues. While a conversation
outside the plaintiff's presence, standing alone, does not require
disregarding that physician's opinion, the weight given to his
testimony is for the Industrial Commission to decide. Burchette
v. East Coast Millwork Distrib.
, 149 N.C. App. 802, 810, 562 S.E.2d
459, 464 (2002). Admission of testimony given after this type of
contact is reversible error in spite of any opportunities
the plaintiff's attorney had to cure the resulting prejudice.
Evans v. Young-Hinkle Corp.
, 123 N.C. App. 693, 696, 474 S.E.2d
152, 154 (1996). This is because the gravaman of the issue [of
allowing ex parte
contacts] is not whether evidence of plaintiff's
medical condition is subject to discovery, but by what methods theevidence may be discovered[.] Crist v. Moffatt
, 326 N.C. 326,
336, 389 S.E.2d 41, 47 (1990). Such contact can place a doctor in
an untenable position, one which supports the possibility of
undue influence upon the doctor. Therefore, [a]s long as there
[is] any competent evidence to support the possibility of undue
influence upon [the treating physician], the Commission's findings
on this basis are conclusive on appeal. Jenkins v. Public Serv.
, 134 N.C. App. 405, 417, 518 S.E.2d 6, 13 (1999) (J. Wynn,
dissenting), rev'd based on dissent
, 351 N.C. 341, 524 S.E.2d 805
(2000). The Commission's exclusion of the testimony of Dr. Davis
was supported by the evidence.
Defendant argues there was never any confidential physician-
patient relationship between Dr. Davis and plaintiff because
plaintiff never asserted the physician-patient privilege.
Defendant further argues that because plaintiff could have done so
but failed to object to the presence of a third party during his
medical treatment, he in essence waived any physician-patient
privilege. However, our Supreme Court has observed that
[q]uestions relating to the [physician-patient] privilege have
been discussed and decided often by this Court. . . . In all of our
decisions except Yow v. Pittman
[241 N.C. 69, 84 S.E.2d 297
(1954)], the questions presented related to rulings made during the
progress of the trial by the presiding superior court judge.
Lockwood v. McCaskill
, 261 N.C. 754, 757, 136 S.E.2d 67, 69 (1964).
Thus, it appears a patient may expressly or impliedly waive his
physician-patient privilege during discovery and at trial, Adamsv. Lovette
, 105 N.C. App. 23, 28-29, 411 S.E.2d 620, 624 (1992),
but not before litigation commences, as defendant is trying to
assert here. The statutory physician-patient privilege is 
distinct from the rule prohibiting unauthorized ex parte
in several respects. Crist
, 326 N.C. at 332-34, 389 S.E.2d at
45-46. In express language, the North Carolina Workers'
Compensation Act acknowledges the difference and interdependence
between the two prohibitions. See
N.C. Gen. Stat. § 97-25.6
(Notwithstanding 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 . . .the Commission
shall protect the employee's right to a confidential
physician-patient relationship while facilitating the release of
information necessary to the administration of the employee's
claim.). Defendant admitted they did not obtain plaintiff's
consent. Thus, defendant has violated the physician-patient
privilege of N.C. Gen. Stat. § 8-53. Notwithstanding defendant's
inaccurate assertions that plaintiff was required to object to
defendant's presence at medical visits, because most of the
communications at issue here between defendant and Dr. Davis' were
, plaintiff was unable to make a contemporaneous objection
since he did not know the communications had taken place until
after they had occurred. See, e.g., Terry v. PPG Indus., Inc.
N.C. App. 512, 515, 577 S.E.2d 326, 330 (2003) (ex parte
communications between employer's manager of safety and plant
protection and employee's treating physician were excluded fromtestimony); Porter
, 133 N.C. App. at 30, 514 S.E.2d at 523 (holding
Commission must exclude portions of deposition testimony tainted by
communication between treating physician and defense
counsel); Salaam v. North Carolina Dept. of Transp.
, 122 N.C. App.
83, 87, 468 S.E.2d 536, 538 (1996) (Commission erred by admitting
the treating physician's deposition testimony in light of
physician's non-consensual ex parte
contact with defendant).
Because competent evidence supports the Commission's findings
of fact that defendant's non-consensual, ex parte
required Dr. Davis's testimony to be stricken from the record, the
Commission did not err in striking the testimony. See Mayfield v.
, ___ N.C. App. ___, 621 S.E.2d 243 (2005)
(upholding the exclusion of non-consensual, ex parte
between employer and employee's treating physicians as to
employee's ability to work). This assignment of error is
Defendant argues the Commission erred in finding and
concluding plaintiff is entitled to ongoing medical compensation
for his Anterior Cruciate Ligament (ACL) tear. We disagree.
Defendant challenges the Commission's finding that plaintiff's
partially torn ACL in his left knee was the direct and natural
result of and causally related to his December 11, 2001, injury by
accident. The determination of the proximate cause of claimant's
injuries is a question for the finder of fact. Rorie v. Holly
Farms Poultry Co.
, 306 N.C. 706, 712, 295 S.E.2d 458, 462 (1982). If [t]here is competent evidence in the record to support these
findings and [this Court] is bound by them. Fuller v. Motel 6
136 N.C. App. 727, 734, 526 S.E.2d 480, 484 (2000).
Defendant first asserts that plaintiff failed to prove a
causal link between his employment and ACL tear because Dr. Barron
did not testify about this link. However, defendant accepted
plaintiff's left knee injury as being compensable. See
Stat. §§ 97-18(b), 97-82(b). In an action for additional
compensation for medical treatment, the medical treatment sought
must be 'directly related to the original compensable
injury' . . . . If additional medical treatment is required, there
arises a rebuttable presumption that the treatment is directly
related to the original compensable injury and the employer has the
burden of producing evidence showing the treatment is not directly
related to the compensable injury. Reinninger v. Prestige
, 136 N.C. App. 255, 259, 523 S.E.2d 720, 723
(1999). This is the Parsons
presumption. Parsons v. The Pantry
, 126 N.C. App. 540, 541-42, 485 S.E.2d 867, 869 (1997).
With respect to defendant's burden of proof under the Parsons
presumption in the present case, the Commission gave more weight to
Dr. Barron's testimony than to the remaining medical evidence.
Consequently, in order to prevail defendant must show there is no
competent evidence from Dr. Barron that links plaintiff's ACL tear
to his compensable left knee injury.
On 19 August 2003, Dr. Barron examined plaintiff specifically
regarding the work-related injury to his left knee. After orderinga functional capacity evaluation that indicated significant work
restrictions, Dr. Barron concluded [b]ased upon [plaintiff's]
history of injury, surgical treatment, FCE and today's exam, it is
my opinion that [plaintiff] has a 15% permanent partial disability
of his knee. This does take into account the fact that he has a
partial ACL tear. Dr. Barron's written opinion is clear:
plaintiff's ACL tear was a part of his compensable injury and
contributed to the disability related to that injury. See
Childress v. Fluor Daniel, Inc.
, 162 N.C. App. 524, 526, 590 S.E.2d
893, 896 (2004) (plaintiff entitled to every reasonable inference
from evidence). Dr. Barron testified from his physical examination
of plaintiff that his knee had some laxity but an endpoint which
would suggest that the ACL was not completely torn and that there
had been some type of injury to the ACL . . . not completely
disrupting the ACL but partially destructing the ACL. Dr.
Barron's deposition testimony confirmed that neither the first nor
second surgeries involved repairing plaintiff's ACL. In fact, Dr.
Barron testified plaintiff's compensable knee injury was the most
likely cause of the ACL tear:
My impression was that he, from the record and
the history exam, was that he had most likely
an acute patella dislocation that required
open surgery followed by arthroscopic surgery,
that he had the chondromalacia findings that
were noted and that he had a partial ACL tear.
From this medical testimony, the Commission found:
25. Based upon the credible evidence of
record, plaintiff's partially torn ACL in
his left was the direct and natural
result of and causally related to his
December 11, 2001 injury by accident.This injury was not addressed in his
prior two surgical procedures. As of the
date of the hearing, plaintiff continued
to experience problems with his knee,
particularly with going up and down steps
and with sitting for prolonged periods.
Given these factors, Dr. Barron's
opinions regarding plaintiff's partially
torn ACL are given more weight than the
opinions of Dr. Davis and Dr. Jansen.
Competent evidence supports the Commission's findings. See Adams
349 N.C. at 676, 509 S.E.2d at 411.
Finally, defendant asserts that Dr. Davis was in a much
better position to testify concerning [plaintiff's] knee.
However, the findings of the Commission are conclusive on appeal
when such competent evidence exists, even if there is plenary
evidence for such contrary findings. Jarrett v. McCreary Modern,
, 167 N.C. App. 234, 238, 605 S.E.2d 197, 200 (2004). The
Commission's finding is supported [by competent evidence], and
. . . we should affirm the opinion and award. Alexander v.
Wal-Mart Stores, Inc.
, 166 N.C. App. 563, 573-74, 603 S.E.2d 552,
558 (J. Hudson, dissenting), rev'd based on dissent
, 359 N.C. 403,
610 S.E.2d 374 (2005). This assignment of error is overruled.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).