Willard v. VP Builders, Inc.

NO. COA13-413

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

MARK WILLARD,

Deceased-Employee,

Plaintiff,

v. North Carolina

Industrial Commission

I.C. No. 99027

VP BUILDERS INC.,

Employer,

Self-Insured,

and

SEDGWICK CMS,

Third-Party Administrator,

Defendants.

Appeal by defendants from opinion and award entered 18

December 2012 and order entered 29 January 2013 by the North

Carolina Industrial Commission. Heard in the Court of Appeals

12 September 2013.

Oxner Thomas + Permar, by Kristin P. Henriksen, for

plaintiff-appellee.

Teague Campbell Dennis & Gorham, L.L.P., by George H.

Pender, Megan B. Baldwin, and Brian M. Love, for

defendants-appellants.

DAVIS, Judge.

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VP Builders, Inc. and its third-party administrator

Sedgwick CMS (collectively “Defendants”) appeal from the opinion

and award of the North Carolina Industrial Commission awarding

death benefits to Connie Willard (“Ms. Willard”), the widow of

Mark Willard (“Plaintiff”), and the Commission’s subsequent

order denying Defendants’ motion for reconsideration. After

careful review, we affirm.

Factual Background

On 24 September 2008, Plaintiff suffered an admittedly

compensable injury to his left hand. Plaintiff was examined by

Dr. Andrew Koman (“Dr. Koman”) and diagnosed with post-trauma

complex regional pain syndrome and a crush injury involving the

left thumb. Dr. Koman performed surgery on Plaintiff’s left

hand on 2 June 2009. Dr. Koman’s physician’s assistant, Randy

Parks (“Mr. Parks”), prescribed Vicodin to Plaintiff from 6 May

2009 to 20 July 2009 in order to manage his pain symptoms.

On 5 August 2009, Mr. Parks, pursuant to Dr. Koman’s

directive, prescribed methadone to Plaintiff. The prescription

instructed Plaintiff to take ten milligrams, three times per day

as needed to manage his pain. Plaintiff’s medical records

indicate that Dr. Koman intended “to transition [Plaintiff] from

Vicodin to Methadone as part of the treatment plan to control

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[Plaintiff’s] pain.” Plaintiff’s medical treatment by Dr. Koman

and Mr. Parks was authorized through his workers’ compensation

coverage and paid for by Defendants. Plaintiff was also

receiving weekly disability compensation from Defendants as a

result of his compensable injury.

On the morning of 6 August 2009, Ms. Willard drove

Plaintiff to Dr. Koman’s office and then to the Rite Aid

Pharmacy to pick up and fill his methadone prescription.

Plaintiff received 90 ten-milligram tablets of methadone from

the pharmacist. Plaintiff took one of the pills during the car

ride home from the pharmacy. Ms. Willard returned home with

Plaintiff and then departed alone to visit her mother between

12:00 p.m. and 1:00 p.m.

While she was away, Ms. Willard spoke to Plaintiff twice on

the telephone. When she called him at 1:15 p.m., Plaintiff

“sounded fine.” When Ms. Willard called the second time at

approximately 3:00 p.m., he told her that he was doing some

research on the computer regarding possible trips to take with

their granddaughter. During this telephone conversation,

Plaintiff stated that he had taken a second ten-milligram tablet

of methadone. Ms. Willard stated that he was speaking at a

lower volume and speed than usual.

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At 3:30 p.m., Plaintiff received a phone call from his

brother. Plaintiff’s brother told Ms. Willard that Plaintiff’s

speech was very slow and that when he asked Plaintiff if he was

okay, Plaintiff responded, “I don’t know. . . . My throat feels

funny.”

Ms. Willard called Plaintiff at 4:00 p.m. to inform him

that she was on her way home, and Plaintiff did not answer the

telephone. As she approached their house, Ms. Willard saw

Plaintiff through the window “slumped over the kitchen table.”

When she reached him, he was unresponsive. Emergency personnel

arrived and confirmed that Plaintiff was dead.

On 27 July 2010, Ms. Willard filed a Form 18 seeking death

benefits pursuant to N.C. Gen. Stat. § 97-38. In response,

Defendants filed a Form 61, denying the claim on the basis that

(1) Plaintiff’s death “[was] not related to the compensable left

thumb injury”; and (2) N.C. Gen. Stat. § 97-12 — which provides

that compensation shall not be paid if the employee’s injury or

death was proximately caused by “[h]is being under the influence

of any controlled substance listed in the North Carolina

Controlled Substances Act, G.S. 90-86, et. seq., where such

controlled substance was not prescribed by a practitioner” —

barred any recovery of workers’ compensation benefits.

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The matter came on for hearing before Deputy Commissioner

Phillip A. Holmes (“Deputy Commissioner Holmes”) on 18 November

2011. Before the hearing commenced, the parties came to an

agreement regarding the scheduling of certain medical

depositions. The parties agreed that Dr. Andrew Mason (“Dr.

Mason”), a toxicologist serving as an expert witness for

Plaintiff, would be deposed after the parties conducted “some of

the key depositions in this case, particularly the medical

examiner’s office witnesses,” consisting of Dr. Deborah Radisch

(“Dr. Radisch”), the Chief Medical Examiner of the North

Carolina Office of the Chief Medical Examiner (“OCME”), and Dr.

Ruth Winecker (“Dr. Winecker”), the Chief Toxicologist of the

OCME. Pursuant to the agreement, if Dr. Mason’s testimony

“attack[ed] the toxicology report,” then Defendants would have

the opportunity to redepose Drs. Radisch and Winecker and, if

necessary, designate and introduce testimony from a rebuttal

toxicologist. This agreement was entered into to address

Defendants’ earlier contention that Dr. Mason’s testimony should

be excluded because Plaintiff had failed to promptly and fully

disclose the substance of his opinions in various discovery

responses.

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Following the hearing, the parties took several medical

depositions, including those of Drs. Radisch and Winecker

(Defendants’ witnesses) followed by the deposition of

Plaintiff’s expert witness, Dr. Mason. On 13 March 2012,

Defendants filed a motion to extend the record, seeking to

introduce into evidence rebuttal testimony from Dr. Winecker,

Dr. Radisch, and Dr. Brian McMillen (“Dr. McMillen”) — a

toxicologist who was designated to serve as Defendants’ rebuttal

expert witness. Defendants’ motion alleged that (1) Dr. Mason

had offered deposition testimony that was “substantially

different than what was represented in plaintiff’s discovery

responses”; and (2) because Dr. Mason’s opinions were in

conflict with those testified to by the OCME, Defendants were

entitled to offer rebuttal testimony pursuant to the parties’

pre-hearing agreement. Deputy Commissioner Holmes denied the

motion that same day.

On 14 March 2012, Defendants filed a motion requesting the

opportunity to make an offer of proof. Specifically, Defendants

— incorporating by reference their 13 March 2012 motion to

extend the record — sought to present the rebuttal deposition

testimony of Drs. Winecker, Radisch, and McMillen as an offer of

proof to preserve their challenge to Deputy Commissioner Holmes’

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ruling for purposes of appellate review. Deputy Commissioner

Holmes denied this motion on 15 March 2012. He subsequently

entered an opinion and award on 26 April 2012 (1) concluding

that Defendants had failed to prove their affirmative defense

under N.C. Gen. Stat. § 97-12 because the evidence did not

establish that Plaintiff took the methadone in a manner contrary

to the prescribed use; and (2) awarding Ms. Willard death

benefits for a minimum total of 400 weeks and ordering

Defendants to reimburse her for funeral expenses and to pay the

costs of this action, including expert witness fees.

Defendants appealed to the Full Commission and filed a

motion to reopen the record to include rebuttal testimony from

Drs. Winecker, Radisch, and McMillen. Defendants requested, in

the alternative, that they be permitted to submit this

deposition testimony as an offer of proof. The Full Commission

concluded that Defendants “ha[d] not shown good grounds to

receive further evidence” and issued an opinion and award on 18

December 2012 affirming, with some minor modifications, the

opinion and award of Deputy Commissioner Holmes.

Defendants filed a motion for reconsideration on 18 January

2013, requesting that the Commission grant their earlier motion

to reopen the record or, alternatively, allow them to make an

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offer of proof. Defendants further asked the Commission to

reconsider its opinion and award once the requested depositions

had occurred, “taking into account this additional medical and

toxicological evidence.” On 29 January 2013, the Commission

entered an order denying Defendants’ motion for reconsideration,

motion to reopen the record, and request for leave to make an

offer of proof. Defendants appealed to this Court.

On 5 December 2013, this Court entered an order remanding

this matter to the Commission for the sole purpose of allowing

Defendants to make an offer of proof consisting of the

anticipated rebuttal testimony of Drs. Winecker, Radisch, and

McMillen. Defendants’ appeal was held in abeyance pending this

Court’s receipt of the offer of proof. Defendants submitted

their offer of proof to this Court on 17 February 2014.

Analysis

I. Offer of Proof

Defendants first contend that the Full Commission erred in

failing to allow them the opportunity to make an offer of proof.

We agree.

The offer-of-proof requirement is imposed

for the benefit of two different audiences.

First, when the proponent makes the offer of

proof, the trial [tribunal] may reconsider

and change the ruling. . . . Second, the

offer is also essential if there is an

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appeal. If there were no offer of proof,

the appellate court would have a difficult

time evaluating the propriety and effect of

the trial [tribunal’s] ruling. With an

offer of proof in the trial record, the

appellate court can make much more

intelligent decisions as to whether there

was error . . . [and] whether the error was

prejudicial . . . .

Robert P. Mosteller et. al., North Carolina Evidentiary

Foundations § 3-6, at 3-15 (2d. ed. 2006). An offer of proof is

generally essential to appellate review of a lower court’s

decision to exclude evidence because “[a]bsent an adequate offer

of proof, we can only speculate as to what a witness’s testimony

might have been.” State v. Jacobs, 363 N.C. 815, 818, 689

S.E.2d 859, 861-62 (2010). As we recently explained,

in order for a party to preserve for

appellate review the exclusion of evidence,

the significance of the excluded evidence

must be made to appear in the record and a

specific offer of proof is required unless

the significance of the evidence is obvious

from the record. The essential content or

substance of the witness’ testimony must be

shown before we can ascertain whether

prejudicial error occurred.

State v. Walston, ___ N.C. App. ___, ___, 747 S.E.2d 720, 723-24

(2013) (internal citations, quotation marks, and alterations

omitted), disc. review denied, ___ N.C. ___, 753 S.E.2d 667

(2014).

As set out above, Defendants sought to introduce rebuttal

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deposition testimony from Drs. Winecker, Radisch, and McMillen

and requested that Deputy Commissioner Holmes allow the rebuttal

testimony to be included in the record. When Defendants’ motion

was denied, they sought leave to make an offer of proof with

regard to this rebuttal testimony. This motion was also denied.

After Deputy Commissioner Holmes entered his opinion and

award, Defendants appealed to the Full Commission and sought to

reopen the record to include the rebuttal testimony. Defendants

again requested, in the alternative, the opportunity to make an

offer of proof regarding the rebuttal testimony. The Commission

concluded that Defendants “ha[d] not shown good grounds to

receive further evidence” and proceeded to enter its opinion and

award without allowing Defendants to make an offer of proof.

Defendants then filed a motion for reconsideration, arguing

that they had been prejudiced by Plaintiff’s failure to fully

disclose Dr. Mason’s opinions in his discovery responses and by

the Commission’s denial of their request to reopen the record to

receive the testimony of Dr. McMillen and the rebuttal testimony

of Drs. Winecker and Radisch. Defendants asserted that the

anticipated testimony from Dr. McMillen would “substantially

contradict Dr. Mason’s opinions” and that “his opinions could

change the outcome in this case.” Once again, Defendants sought

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leave to make an offer of proof to fully preserve this issue for

appellate review. However, Defendants’ motion was denied.

Because the Workers’ Compensation Act requires that

processes, procedures, and discovery under the Act “be as

summary and simple as reasonably may be,” N.C. Gen. Stat. § 97-

80(a) (2013), we have held that the rules of procedure and

evidence that govern in our general courts of justice generally

do not apply to the Industrial Commission’s administrative fact-

finding function. Handy v. PPG Indus., 154 N.C. App. 311, 316,

571 S.E.2d 853, 857 (2002). However, “this Court has

consistently held that the Commission must conform to court

procedure and evidentiary rules where required to preserve

justice and due process.” Id. at 317, 571 S.E.2d at 857.

In Allen v. K-Mart, 137 N.C. App. 298, 528 S.E.2d 60

(2000), we concluded that despite the general principle that

workers’ compensation proceedings are not subject to the rules

of procedure and evidence that govern our general courts, “[t]he

opportunity to be heard and the right to cross-examine another

party’s witnesses are tantamount to due process and basic to our

justice system” and must be observed by the Industrial

Commission in such proceedings. Id. at 303-04, 528 S.E.2d at

64.

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We believe that — like the right to cross-examine the

opposing party’s witnesses — the right to make a record

sufficient for appellate review through an offer of proof is

also necessary “to preserve justice and due process.” See

Handy, 154 N.C. App. at 317, 571 S.E.2d at 857; see also State

v. Brown, 116 N.C. App. 445, 447, 448 S.E.2d 131, 132 (1994)

(“It is fundamental that trial counsel be allowed to make a

trial record sufficient for appellate review [by submitting an

offer of proof.]”).

We fail to see why the same notions of fundamental fairness

requiring the general courts of justice to accept offers of

proof should not likewise apply in workers’ compensation

proceedings.1 Accordingly, while we reiterate that the rules of

procedure and evidence governing proceedings in our general

courts of justice do not generally apply in hearings before the

Industrial Commission, we hold that, upon request, the

1

Indeed, this Court has indicated that in administrative

hearings — where, as with hearings before the Industrial

Commission, evidentiary procedures “are not so formal as

litigation conducted in superior courts” — administrative law

judges should permit a party to make an offer of proof to

demonstrate the substance of the excluded evidence where its

significance is not readily apparent. Eury v. N.C. Employment

Sec. Comm’n, 115 N.C. App. 590, 602-03, 446 S.E.2d 383, 390-91,

appeal dismissed and disc. review denied, 338 N.C. 309, 451

S.E.2d 635 (1994).

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Commission must afford a party in a workers’ compensation

proceeding the opportunity to make an offer of proof regarding

the substance of evidence that has been excluded unless the

substance of the evidence and its significance are readily

apparent.2

II. Denial of Motion to Reopen Record and Motion for

Reconsideration

We now turn our attention to the question of whether the

Commission committed reversible error in denying Defendants’

motions to (1) reopen the record to receive the rebuttal

testimony of Drs. Winecker, Radisch, and McMillen; and (2)

reconsider its opinion and award in light of this rebuttal

testimony.

Motions to receive additional evidence and motions for

reconsideration are both reviewed by this Court for abuse of

discretion. Beard v. WakeMed, ___ N.C. App. ___, ___, 753

S.E.2d 708, 712 (2014); see Moore v. Davis Auto Serv., 118 N.C.

App. 624, 629, 456 S.E.2d 847, 851 (1995) (“The Commission’s

power to receive additional evidence is a plenary power to be

exercised in the sound discretion of the Commission . . . . and

2

We note that offers of proof can take different forms with

varying degrees of formality. See Kenneth S. Broun, 1 Brandis &

Broun on North Carolina Evidence § 18, at 76-80 (7th ed. 2011)

(explaining various methods of making offer of proof).

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the Commission’s determination in that regard will not be

reviewed on appeal absent a showing of manifest abuse of

discretion.” (citation and quotation marks omitted)).

The test for abuse of discretion is whether

a decision is manifestly unsupported by

reason, or so arbitrary that it could not

have been the result of a reasoned decision.

Because the reviewing court does not in the

first instance make the judgment, the

purpose of the reviewing court is not to

substitute its judgment in place of the

decision maker. Rather, the reviewing court

sits only to insure that the decision could,

in light of the factual context in which it

is made, be the product of reason.

Beard, ___ N.C. App. at ___, 753 S.E.2d at 712-13 (citation

omitted).

“In determining whether to accept new evidence, the

Commission must consider the relative prejudices to the parties,

the reasons for not producing the evidence at the first hearing,

the nature of the testimony, and its probable effect upon the

conclusion reached.” Andrews v. Fulcher Tire Sales and Serv.,

120 N.C. App. 602, 606, 463 S.E.2d 425, 428 (1995) (citation and

quotation marks omitted). However, when deciding whether to

receive additional evidence, the Commission is not required to

make specific findings of fact regarding its decision. Keel v.

H & V, Inc., 107 N.C. App. 536, 542, 421 S.E.2d 362, 366-67

(1992).

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After carefully reviewing the excluded rebuttal testimony

of Drs. Winecker, Radisch, and McMillen that we received in

response to our 5 December 2013 order, we conclude that the

Commission did not abuse its discretion in denying Defendants’

motion to reopen the record and reconsider its opinion and

award. Defendants’ offer of proof revealed that Dr. McMillen —

Defendants’ rebuttal toxicologist — would have testified that

(1) making a dosage determination of methadone from tissue

samples is scientifically reliable; and (2) he could opine with

a reasonable degree of medical certainty that Plaintiff had

consumed four to eight 10-milligram tablets of methadone based

on the concentration levels found during the autopsy.

However, with regard to the rebuttal testimony of Drs.

Winecker and Radisch, Defendants’ offer of proof reveals that

they would merely have reaffirmed their opinions that neither

could state to a reasonable degree of medical certainty that

Plaintiff consumed more than two ten-milligram tablets of

methadone (the prescribed dosage). Moreover, Dr. Winecker would

have critiqued the methodology that Dr. McMillen — Defendants’

rebuttal toxicologist — utilized to arrive at his dosage

determination range of four to eight tablets on the ground that

Dr. McMillen used standard median textbook values derived from

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controlled clinical studies, which, in her opinion, were not

appropriate in the present case given that Plaintiff’s body was

embalmed and then autopsied six months after his death.

Defendants contend that because of the pre-hearing

agreement between the parties, Defendants were entitled to offer

this rebuttal testimony and that, as a result, the Commission

erred by denying their motion to reopen the record, consider the

rebuttal testimony, and reconsider its opinion and award. As

explained above, Defendants and Plaintiff entered into a pre-

hearing agreement regarding the order in which medical

depositions were to be scheduled and under what circumstances

Defendants would be allowed to offer rebuttal testimony.

Specifically, the parties agreed that if Dr. Mason attacked the

toxicology report issued by the OCME, then Defendants could

offer rebuttal testimony from Drs. Winecker and Radisch, and, if

necessary, designate and offer testimony from a rebuttal

toxicologist.

However, because Dr. Mason’s testimony did not attack the

toxicology report itself, the pre-hearing agreement was not

triggered. In his deposition, Dr. Mason did not dispute the

calculations of the methadone concentration levels found in

Plaintiff’s tissue samples. Nor did he contradict or criticize

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any other information contained within the toxicology report

prepared by the OCME. Instead, Dr. Mason offered his opinion as

to what information could be extrapolated from tissue

concentration data contained in the report. Specifically, he

opined that methadone dosage could not be accurately determined

from tissue samples because methadone is highly variable. This

opinion did not attack the toxicology report itself, and as

such, the Commission’s denial of the motion to reopen the record

and motion for reconsideration was not inconsistent with the

parties’ pre-hearing agreement.

Moreover, given that the overwhelming weight of the

evidence — both in the record and in Defendants’ offer of proof

— indicates that methadone is highly variable and that tissue

concentrations do not provide scientifically reliable

determinations of methadone dosage, we cannot conclude that

Defendants were prejudiced by the Commission’s denial of their

motions to reopen the record and to reconsider its opinion and

award. This Court has repeatedly held that we will not find an

abuse of discretion in the denial of a motion to consider

additional evidence where the party has failed to show that it

was actually prejudiced by the denial. See Andrews, 120 N.C.

App. at 606, 463 S.E.2d at 428 (holding that defendants were not

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prejudiced by denial of their motion to consider new evidence in

workers’ compensation proceeding because such evidence would

“probably not affect the outcome” of the hearing, and,

therefore, Commission did not abuse its discretion); Moore, 118

N.C. App. at 629, 456 S.E.2d at 851 (ruling that because

additional evidence defendants sought to introduce in workers’

compensation proceeding was cumulative, defendants were not

prejudiced by denial of motion and failed to show manifest abuse

of discretion). Here, we believe that Defendants have failed to

show actual prejudice because their offer of proof demonstrates

that had Defendants been allowed to submit rebuttal toxicology

testimony from Dr. McMillen, their two primary witnesses — Drs.

Winecker and Radisch — would have nevertheless reaffirmed their

opinions that tissue concentrations do not provide

scientifically reliable determinations of methadone dosage and

that, as such, they could not state with a reasonable degree of

medical certainty that Plaintiff consumed methadone in a manner

contrary to his prescription.

Finally, Defendants contend that the Commission’s rulings

prevented them from effectively and meaningfully cross-examining

Dr. Mason. In making this argument, Defendants primarily rely

on this Court’s decision in Allen.

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In Allen, the plaintiff sustained an injury while moving a

box of stationary and placing it in a shopping cart. Allen, 137

N.C. App. at 298-99, 528 S.E.2d at 61. The plaintiff’s treating

physician diagnosed her with a cervical and lumbar muscle strain

and noted that she had also been suffering from panic attacks

and depression for some time. Id. at 300, 528 S.E.2d at 62. As

treatment of the plaintiff continued, the physician eventually

diagnosed the plaintiff with fibromyalgia as well. Id. The

doctor testified that her diagnosis of fibromyalgia was “sort of

by exclusion because all of the other tests . . . looked pretty

normal.” Id. The plaintiff did not seek out a specialist

familiar with fibromyalgia prior to her hearing before the

deputy commissioner, and on 22 July 1997, the deputy

commissioner entered an opinion and award determining that she

was no longer disabled and awarding her medical expenses

incurred as a result of the muscle strain but not for the

treatment of fibromyalgia. Id.

The plaintiff appealed to the Full Commission and filed a

motion “for independent psychiatric and fibromyalgia specialist

examinations.” Id. at 301, 528 S.E.2d at 62. The Commission

granted the motion, and over the defendants’ numerous

objections, the Commission allowed the plaintiff to submit

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reports from a psychiatrist and a general practitioner who had

experience in treating and diagnosing fibromyalgia. Id. at 301,

528 S.E.2d at 63. The Commission relied on these reports in

entering its opinion and award in which it concluded that the

plaintiff’s panic attacks, depression, and fibromyalgia “were

caused or significantly aggravated by her injury by accident.”

Id. at 302, 528 S.E.2d at 63. This Court reversed, concluding

that the Commission erred “by allowing significant new evidence

to be admitted but denying [the] defendants the opportunity to

depose or cross-examine the physicians, or [failing to require

the] plaintiff to be examined by experts chosen by [the]

defendants.” Id. at 304, 528 S.E.2d at 64.

In so holding, we noted that (1) the defendants filed five

separate objections to the admission of this evidence to which

the Commission failed to respond; and (2) “[t]he evidence

offered by [the psychiatrist and the practitioner experienced in

diagnosing fibromyalgia] was completely different from any other

evidence admitted up to then.” Id. We thus concluded that

“where the Commission allows a party to introduce new evidence

which becomes the basis for its opinion and award, it must allow

the other party to rebut or discredit that evidence.” Id. at

304, 528 S.E.2d at 64-65.

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Here, conversely, Defendants were able to extensively

cross-examine Dr. Mason. Indeed, we note that Defendants were

able to specifically question him concerning both (1) his

opinion that methadone dosage could not be accurately determined

using tissue concentrations; and (2) Dr. McMillen’s opinion that

Plaintiff’s recorded levels of methadone could not have been

reached by ingesting only two ten-milligram tablets of

methadone. As such, Allen is distinguishable from the present

case, and Defendants’ argument on this issue is overruled.

Conclusion

For the reasons stated above, we affirm the Commission’s 18

December 2012 opinion and award and its 29 January 2013 order

denying Defendants’ motion for reconsideration.

AFFIRMED.

Judges HUNTER, JR. and ERVIN concur.