An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 18 April 2006
VIVIAN S. KNIGHT,
ABBOTT LABORATORIES, I.C. File No. 431374
SELF-INSURED (KEMPER RISK
MANAGEMENT SERVICES, Servicing
Appeal by plaintiff from an opinion and award filed 4 April
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 9 March 2006.
Law Offices of George W. Lennon, by George W. Lennon, for
Brooks, Stevens & Pope, P.A., by Michael C. Sigmon and
Kimberley A. D'Arudda, for defendant appellants-appellees.
Plaintiff appeals from an opinion and award of the North
Carolina Industrial Commission (the Commission) denying workers'
compensation benefits to plaintiff Vivian Knight (Ms. Knight)
based on the finding that plaintiff did not develop an occupational
disease which was due to causes and conditions characteristic of
and peculiar to her employment with defendant Abbott Laboratories(Abbott) and which excluded all ordinary diseases of life to
which the general public was equally exposed. We affirm in part and
remand in part.
On 25 March 1994, Ms. Knight was employed by Abbott and was
working as a production operator. On this day, Ms. Knight and her
supervisor, Mr. Fuller, engaged in a confrontation regarding a
request for vacation by Ms. Knight. A similar vacation request had
been granted to an employee with less seniority. When Ms. Knight
learned of Mr. Fuller's decision, she confronted Mr. Fuller for an
explanation. Mr. Fuller became upset, rose from his desk, and
began to scream and wave his hands at Ms. Knight. Following the
confrontation, Ms. Knight became emotional and upset. Shortly
after the confrontation, Mr. Fuller approached Ms. Knight at her
work station which resulted in Ms. Knight breaking out in hives.
Ms. Knight went from work to her family doctor who prescribed
medication, referred her to a psychiatrist, and a psychologist.
Subsequently, Ms. Knight required further psychiatric treatment and
has been unable to perform her job.
On 28 July 1998, Deputy Commissioner Mary Moore Hoag entered
an opinion and award concluding that plaintiff had proven by a
preponderance of the evidence that she suffered a psychological
injury by accident when faced with an unexpected and sudden
confrontation with her supervisor and therefore awarded her
permanent total disability compensation. On 13 January 2000, the
Full Commission entered an opinion and award reversing the DeputyCommissioner's decision and denying Ms. Knight's claim. On appeal
to this Court, it was determined that the Commission's findings of
fact were inconsistent, contradictory, failed to support its
conclusions of law, and was therefore vacated and remanded for
redetermination. Thereafter, the Full Commission entered another
opinion and award on 12 July 2002, again concluding that Ms. Knight
did not sustain an injury by accident and therefore she was not
entitled to workers' compensation benefits. Ms. Knight again
appealed to this Court. This Court affirmed the conclusion of the
Commission that Ms. Knight had not suffered an injury by accident
and the finding of the Commission that the greater weight of the
evidence showed that the confrontation did not cause Ms. Knight's
psychological problems. However, this Court further found that the
Commission failed to address Ms. Knight's claim for occupational
disease and therefore remanded the case for consideration of
plaintiff's occupational disease claim. On 4 April 2005, the
Commission entered the opinion and award at issue in the instant
case, finding and concluding that Ms. Knight did not develop an
occupational disease due to causes and conditions characteristic of
and peculiar to her employment which excluded all ordinary diseases
of life to which the general public was not equally exposed and
that she was not entitled to workers' compensation benefits.
Ms. Knight and Abbott now appeal.
We first address Ms. Knight's contention on appeal that the
Commission erred in accepting the testimony of Dr. Gualtieri. We
overrule this assignment of error.
Once a panel of this Court has rendered a decision on an
issue, subsequent panels are bound by that precedent unless it has
been overturned by a higher court. Heatherly v. Industrial Health
Council, 130 N.C. App. 616, 621, 504 S.E.2d 102, 106 (1998); cf. In
the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989) (holding that [w]here a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court).
In this instant case, the appeal before this Court is the
third appeal that Ms. Knight has brought before us. In a previous
appeal, Ms. Knight cited an argument unvarying in substance as
error on appeal and an opinion was rendered by a panel of this
Court holding that the Commission did not err in finding that the
testimony and opinions of Dr. Gualtieri carried greater weight than
the testimony of Ms. Knight's experts where he had performed
psychological testing and the others had not. The gravamen of Ms.
Knight's argument is a desire for this Court to judge the
credibility of Dr. Gualtieri's testimony and determine the
appropriate weight to be given; however, the law does not permit
this. See Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411,413 (1998), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999)
('The Commission is the sole judge of the credibility of the
witnesses and the weight to be given their testimony.'). Id.
(citation omitted). Therefore, this assignment of error is
Next, we address Ms. Knight's contention that the Commission
erred in failing to consider Dr. Lee's medical records. This
contention has no merit.
In support of her argument on appeal, Ms. Knight notes in her
brief that this error is evidenced by the omission of allusion to
Dr. Lee's opinion on causation in the Commission's final award and
opinion. However, '[t]he Commission chooses what findings to make
based on its consideration of the evidence[, and this] court is not
at liberty to supplement the Commission's findings[.]' Pitillo v.
N.C. Dep't of Envtl. Health & Natural Res., 151 N.C. App. 641, 644,
566 S.E.2d 807, 810 (2002) (citation omitted). Moreover, the
Commission made a finding of fact stating Dr. Lee's diagnosis of
Ms. Knight and a further finding denoting that the Commission found
by the greater weight of the competent, credible evidence that the
events of 25 March 1994 did not cause or aggravate Ms. Knight's
psychological problems. Therefore, this assignment of error is
Ms. Knight also contends on appeal that the Commission erred
in applying the standards enumerated in Judge Martin's opinion inWoody v. Thomasville Upholstery, Inc., 146 N.C. App. 187, 552
S.E.2d 202 (Martin, Judge, dissenting), disc. review denied, 354
N.C. 371, 557 S.E.2d 538 (2001), rev'd per curiam for the reasons
stated in the dissent, 355 N.C. 483, 562 S.E.2d 422 (2002), instead
of Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365
(1983). We disagree.
First and foremost it must be noted that the decisions in
Woody and Rutledge are not inconsistent. On the contrary, the
dissent of Judge Martin in Woody, which was adopted by the North
Carolina Supreme Court on further appeal, agrees with the law
applied pursuant to Rutledge, but did not agree with the majority's
application of the law to the facts. Where an employee claims an
occupational disease of work-related depression, the standards set
forth in Rutledge apply; however, a factual analysis must be done
on a case-by-case basis in order to determine whether such
depression or mental illness falls within the legal definition of
such. Smith-Price v. Charter Pines Behavioral Ctr., 160 N.C. App.
161, 584 S.E.2d 881 (2003).
In order to prove that an employee has an occupational
disease, the employee has the burden of proving three elements:
(1) the disease must be characteristic of and peculiar to the
claimant's particular trade, occupation or employment; (2) the
disease must not be an ordinary disease of life to which the public
is equally exposed outside of the employment; and (3) there must be
proof of causation between the disease and the employment. Id. at
166, 584 S.E.2d at 885. Our Supreme Court explained in Rutledge: To satisfy the first and second elements it is
not necessary that the disease originate
exclusively from or be unique to the
particular trade or occupation in question.
. . . Only such ordinary diseases of life to
which the general public is exposed equally
with workers in the particular trade or
occupation are excluded.
Rutledge, 308 N.C. at 93, 301 S.E.2d at 365.
However, our Supreme Court further stated in Woody that where
the findings indicate merely that an employee suffers from
depression and fibromyalgia after being placed in the unfortunate
position of working for an abusive supervisor, that this is not a
condition 'characteristic of and peculiar to' one's particular
employment; but rather an ordinary disease, to which the general
public is equally exposed outside the workplace in everyday life.
Woody, 146 N.C. App. at 202, 552 S.E.2d at 211. It was further
noted that these conditions can occur with any employee in any
industry or profession, or in fact, in similar abusive
relationships outside the workplace. Id. Where the facts in the
instant case fall squarely within the reasoning of the dissent in
Woody, adopted by our Supreme Court, it cannot be said that it was
error for the Commission to apply that law to this case. Therefore,
this assignment of error is overruled.
Lastly, Ms. Knight contends that the Commission erred in
failing to address the issues of aggravation or last injurious
exposure. We disagree. Where an employee claims to have suffered from an occupational
disease which entitles them to compensation, the employee has the
burden of proof. However, 'if the occupational exposure in
question is such that it augments the disease process to any
degree, however slight, the employer is liable.' Keel v. H & V,
Inc., 107 N.C. App. 536, 539, 421 S.E.2d 362, 365 (1992) (citation
omitted). In the instant case, Ms. Knight contends that the
Commission failed to address the issue of aggravation; however, a
review of the Commission's opinion and award clearly shows in
finding of fact 26 that the events of 25 March 1994 were found not
to have caused or aggravated Ms. Knight's psychological problems.
Further, N.C. Gen. Stat. § 97-57 (2005) provides that an
employer is liable [i]n any case where compensation is payable for
an occupational disease where the employee was last injuriously
exposed to the hazards of such disease in their employment. Id.
(emphasis added). The language of the statute contemplates proof
of a compensable occupational disease before the issue of last
injurious exposure is ever reached. To recover under this statute,
the plaintiff must show: (1) that he has a compensable occupational
disease and (2) that he was 'last injuriously exposed to the
hazards of such disease' in defendant-employer's employment.
Vaughn v. Insulating Servs., 165 N.C. App. 469, 472-73, 598 S.E.2d
629, 631, disc. review denied, 359 N.C. 75, 605 S.E.2d 150 (2004)
(citation omitted). Where the Commission found and concluded that
Ms. Knight did not develop an occupational disease which was due
to causes and conditions characteristic of and peculiar to heremployment with defendant and which excluded all ordinary diseases
of life to which the general public was equally exposed she failed
to meet her burden in proving a claim for last injurious exposure.
Therefore, the corresponding assignments of error are overruled.
Abbott contends on appeal that the Commission erred in failing
to address and award attorneys' fees and further moves this Court
to assess sanctions. We agree in part.
'[W]hen [a] matter is appealed to the full Commission
. . . , it is the duty and responsibility of the full Commission to
decide all of the matters in controversy between the parties.'
Cialino v. Wal-Mart Stores,
156 N.C. App. 463, 474, 577 S.E.2d 345,
353 (2003) (citation omitted). It is evident from the record on
appeal that Abbott presented its argument to the Full Commission
through Defendant's Brief to the Full Commission on Remand that
Ms. Knight's pursuit of the claim was extremely unreasonable and
frivolous, and merits the imposition of substantial sanctions.
North Carolina's General Statutes provide, [i]f 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 including reasonable fees for
defendant's attorney or plaintiff's attorney . . . . N.C. Gen.
Stat. § 97-88.1 (2005).
Abbott urges this Court to decide the issue of its entitlement
to attorney's fees in this appeal; however, we decline to do so.
Instead, we believe the Commission is better suited to determinewhether Ms. Knight had a reasonable basis to pursue her claim.
Therefore, we remand this issue for determination by the Full
Accordingly, for the aforementioned reasons, we affirm the
opinion and award of the Commission, and remand for a determination
by the Commission as to whether the further pursuit of claims by
Ms. Knight was frivolous and unreasonable entitling Abbott to
Affirmed in part; remanded to determine attorney's fees.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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