The opinion
NO. COA13-1102
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
DAVITA BISHOP,
Employee, Plaintiff,
v. North Carolina Industrial
Commission
I.C. No. 884899
INGLES MARKETS, INC.,
Employer, SELF-INSURED,
Defendant.
Appeal by defendant-employer from Opinion and Award entered
12 July 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 17 March 2014.
Law Office of Gary A. Dodd, by Gary A. Dodd, for plaintiff-
appellee.
Northup, McConnell & Sizemore PLLC, by Steven W. Sizemore,
for defendant-appellant.
MARTIN, Chief Judge.
Defendant-employer Ingles Markets, Inc. appeals from an
Opinion and Award of the Full Commission of the North Carolina
Industrial Commission awarding workers’ compensation benefits,
attorney’s fees, and costs to plaintiff-employee Davita Bishop.
For the reasons stated herein, we affirm.
On 30 January 2008, plaintiff slipped and fell on a
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recently waxed floor while working in the Ingles deli. After
reporting the fall to the store manager, plaintiff sought
medical treatment at OneBeacon Healthcare. She explained that
she fell and hit her head, and that she was experiencing
dizziness as well as pain to her head, lower back, and hip.
Plaintiff was diagnosed as having a lower back sprain and a mild
concussion. She was also given a note excusing her from work
until 5 February 2008.
However, plaintiff’s condition did not improve, and she
went to Sisters of Mercy Urgent Care on 9 February 2008,
complaining of pain in her left hip and lower back. Plaintiff
was given a note excusing her from work until 13 February 2008.
Plaintiff returned to Sisters of Mercy Urgent Care three times
in February, and results of an MRI scan revealed “a slight
anterolisthesis at L4-5, degenerative disc disease, spondylosis,
facet arthrosis and annular bulging at L4-5 and L5-S1.”
After the MRI, it was recommended that plaintiff begin
physical therapy and that she return to work with the following
restrictions: working for no more than four hours a day; no
lifting of anything over ten pounds; and no standing, walking,
or sitting for more than twenty minutes at a time. On 11 March
2008, plaintiff returned to work pursuant to these restrictions.
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Plaintiff was referred to Dr. Richard Broadhurst and saw
him on 29 May 2008 for an evaluation and treatment. On 14 July
2008, plaintiff saw Dr. Broadhurst again because she felt she
was being asked to perform tasks at work that she was not
physically capable of performing. In response, Dr. Broadhurst
issued several work restrictions including, “lifting [no] more
than ten pounds, no ladder climbing, no repetitive bending or
twisting or forward reaching and to stand and walk to control
the pain.” On 28 August 2008, Dr. Broadhurst again issued work
restrictions for plaintiff. Also in August 2008, plaintiff
began taking classes, on days she did not have to work, in a
Masters of Divinity program at Gardner-Webb University.
On 26 September 2008, plaintiff returned to OneBeacon and
complained of “blackout spells,” stating that she had fainted at
work the day before. Plaintiff underwent an
electroencephalogram (“EEG”) which suggested that plaintiff
might have partial epilepsy. As a result, plaintiff was
referred to Dr. Duff Rardin, who diagnosed plaintiff as possibly
having epilepsy. On 5 November 2008, a coworker witnessed
plaintiff have a blackout spell. Following this incident,
plaintiff underwent an MRI that showed an abnormal signal.
While plaintiff’s seizure condition was ongoing, Dr.
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Broadhurst, on 15 December 2008, determined that plaintiff had
reached maximum medical improvement and assigned plaintiff
permanent work restrictions. On 30 December 2008, however, Dr.
Broadhurst asked Dr. Rardin if plaintiff’s 30 January 2008 fall
caused plaintiff’s seizures. Dr. Rardin responded that he did
not think that the fall caused plaintiff’s seizures.
Plaintiff continued to suffer from seizures, so Dr. Rardin
completed the medical section of plaintiff’s Family Medical
Leave (“FMAL”) application, noting that plaintiff should not
work due to her seizure activity. Dr. Rardin also recommended
that plaintiff stop taking classes at Gardner-Webb due to her
seizures. Plaintiff stopped working on 15 July 2009 when her
FMAL application was approved.
On 29 July 2009, plaintiff was admitted to Mission Hospital
for epilepsy monitoring, and the staff was able to observe one
of plaintiff’s seizures. It was determined that plaintiff’s
seizures were nonepileptic. Plaintiff, nonetheless, continued
to have seizures. Dr. Rardin testified that stressors in a
person’s life can cause nonepileptic seizures, but he did not
state an opinion about whether plaintiff suffered from such
stressors. Also, while at Mission Hospital, Dr. C. Britt
Peterson, a psychiatrist, saw plaintiff and diagnosed her with
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“a major depressive disorder or a possible adjustment disorder
with depressed mood and possible conversion disorder.”
Eventually, Dr. Rardin recommended that plaintiff see Karen
Katz a licensed clinical social worker with a master’s degree in
social work and psychology from Syracuse University. During the
first meeting, Ms. Katz took plaintiff’s family history and
conducted a clinical assessment. Ms. Katz used anxiety and
depression screening tools to diagnose plaintiff with an anxiety
disorder and chronic depression that Ms. Katz believed began
early in plaintiff’s life. Ms. Katz opined that plaintiff’s 30
January 2008 fall exacerbated her preexisting anxiety and
depression.
The forgoing evidence was presented to the Full Commission
at a hearing on 15 November 2011. After the hearing, the Full
Commission issued an order on 5 January 2012 reopening the
record for receipt of “additional evidence to consist of an
orthopedic evaluation and a neuropsychological evaluation.”
Pursuant to this order, Dr. Stephen David conducted an
orthopedic evaluation of plaintiff, and Dr. John Barkenbus
conducted a neuropsychological evaluation of plaintiff. Both
doctors also reviewed plaintiff’s medical records and were
deposed.
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Dr. Barkenbus, a neuropsychiatry expert, testified that the
medical records he reviewed did not indicate that plaintiff
suffered from seizures prior to her fall. He also testified
that plaintiff’s anxiety and depression contributed to her
seizure disorder, but that her fall was the initiating event
that caused her resulting medical and psychological conditions.
Dr. David, an expert in orthopedic surgery, testified that
plaintiff’s current medical problems prevent her from
consistently sustaining gainful employment.
Based on this evidence, the Full Commission awarded
plaintiff weekly compensation, medical compensation for her
seizures, and attorney’s fees. Commissioner Nance dissented
from the Full Commission’s Opinion and Award because she did not
find Ms. Katz’s testimony credible. Defendant appeals.
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On appeal defendant argues that the Full Commission erred
in (1) finding that plaintiff’s fall caused her seizure
disorder, (2) reopening the record to obtain additional
evidence, and (3) awarding plaintiff disability compensation.
We disagree.
The North Carolina Supreme Court has clearly stated that
“appellate courts reviewing Commission decisions are limited to
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reviewing whether any competent evidence supports the
Commission’s findings of fact and 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).
However, “[t]he Commission’s conclusions of law are reviewed de
novo.” McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597
S.E.2d 695, 701 (2004).
“Unchallenged findings of fact are presumed to be supported
by competent evidence and are binding on appeal.” Allred v.
Exceptional Landscapes, Inc., __, N.C. App. __, __, 743 S.E.2d
48, 51 (2013). However, when we review the challenged findings
of fact, we do not reweigh the evidence because the Commission
is the fact finder. Smith v. First Choice Servs., 158 N.C. App.
244, 248, 580 S.E.2d 743, 747, disc. rev. denied, 357 N.C. 461,
586 S.E.2d 99 (2003). Instead, we limit our review to
determining “whether the record contains any evidence tending to
support the finding[s].” Adams v. AVX Corp., 349 N.C. 676, 681,
509 S.E.2d 411, 414 (1998), reh’g denied, 350 N.C. 108, 532
S.E.2d 522 (1999). As a result, “‘[t]he findings of fact of the
Industrial Commission are conclusive on appeal when supported by
competent evidence, even though there [may] be evidence that
would support findings to the contrary.’” Id. (quoting Jones v.
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Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)).
Also, we view the evidence in the record in a light most
favorable to the plaintiff, and the “plaintiff is entitled to
the benefit of every reasonable inference to be drawn from the
evidence.” Id.
First, defendant argues that the Full Commission erred in
determining that plaintiff’s work-related injury caused
plaintiff’s seizures. In making this argument, defendant relies
on Hawkins v. General Electric Co., 199 N.C. App. 245, 249, 683
S.E.2d 385, 389 (2009), for the proposition that when “a
particular type of injury involves complicated medical questions
far removed from the ordinary experience and knowledge of
laymen, only an expert can give competent opinion evidence as to
the cause of the injury.” Thus, throughout defendant’s
argument, it challenges several findings of fact, which we will
address later, on the basis that the Full Commission could not
find these facts based on Ms. Katz’s testimony because she is
not an expert.
The proposition that only an expert can give competent
opinion evidence as to causation when a complicated medical
question is involved has its basis in Click v. Pilot Freight
Carriers, Inc., 300 N.C. 164, 167, 256 S.E.2d 389, 391 (1980).
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In Click, the North Carolina Supreme Court stated:
For an injury to be compensable under the
terms of the Workmen’s Compensation Act, it
must be proximately caused by an accident
arising out of and suffered in the course of
employment. There must be competent
evidence to support the inference that the
accident in question resulted in the injury
complained of, i.e., some evidence that the
accident at least might have or could have
produced the particular disability in
question. The quantum and quality of the
evidence required to establish prima facie
the causal relationship will of course vary
with the complexity of the injury itself.
There will be many instances in which the
facts in evidence are such that any layman
of average intelligence and experience would
know what caused the injuries complained of.
On the other hand, where the exact nature
and probable genesis of a particular type of
injury involves complicated medical
questions far removed from the ordinary
experience and knowledge of laymen, only an
expert can give competent opinion evidence
as to the cause of the injury.
Id. (emphasis added) (citations omitted) (internal
quotation marks omitted).
From this paragraph it is clear that the Court was
concerned about the quality of the evidence relied upon by the
Industrial Commission when considering complicated causation
issues. Therefore, the Commission may make findings of fact
based on the testimony of a person that is not an expert, but
must rely on competent expert testimony to infer that there is
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causation when a complicated medical question is involved.
We will now address each of defendant’s challenges to the
Full Commission’s findings of fact, as well as defendant’s
contention that there is no causal connection between the work-
related injury and plaintiff’s seizures.
First, defendant challenges finding of fact 36, which
states:
On September 18, 2009, Dr. Rardin referred
Plaintiff to Karen Katz, a licensed clinical
social worker, for psychological assistance
regarding Plaintiff’s non-epileptic seizure
disorder. Ms. Katz has a Masters degree in
psychology and is providing psychotherapy to
Plaintiff. Ms. Katz is qualified and
competent to state her opinions as to
Plaintiff’s psychological condition.
Defendant asserts that the Full Commission erred in finding that
Ms. Katz could state her opinions as to plaintiff’s
psychological condition because Ms. Katz is not qualified to
make a diagnosis or offer opinions as to causation. This
argument fails.
As stated earlier, the Commission must rely on expert
testimony when determining the issue of causation when
complicated medical questions are involved. See id. Finding of
fact 36 has nothing to do with causation; it simply recites Ms.
Katz’s educational training, the fact that she is treating
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plaintiff with respect to her psychological condition, which is
within Ms. Katz’s training, and that she could properly offer
her opinion as to plaintiff’s psychological condition.
Next, defendant challenges finding of fact 37, which
states:
Ms. Katz does not administer psychological
“testing” but does perform “screening” for
conditions such as anxiety. In Plaintiff’s
case she performed such screening and has
assessed Plaintiff with generalized anxiety
disorder, and dysthymia, a chronic
depression which began early in her life.
She also assessed that Plaintiff suffers
from an adjustment disorder. This
assessment by Ms. Katz is consistent with
that of Dr. Peterson, the psychiatrist.
Defendant challenges this finding of fact on the basis that the
Commission bolstered Ms. Katz’s assessment by saying it was
supported by Dr. Peterson. Again, this argument fails.
As stated earlier, when we review a record in a workers’
compensation case, we limit our review to whether the record
contains any evidence that tends to support the Commission’s
findings. See Adams, 349 N.C. at 681, 509 S.E.2d at 414. In
this case, Ms. Katz assessed that plaintiff was depressed. Also
in evidence is a discharge summary from Mission Hospital that
states that Dr. Peterson diagnosed plaintiff with a depressive
disorder. This evidence supports the Commission’s finding that
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the “assessment by Ms. Katz is consistent with that of Dr.
Peterson.”
Defendant also questions finding of fact 38, which states:
It is Ms. Katz’ opinion that Plaintiff’s
fall exacerbated her pre-existing depression
and anxiety. During her treatment with Ms.
Katz, Plaintiff has made slow, but steady
progress. Ms. Katz opined that Plaintiff
needs ongoing treatment with medications and
psychotherapy and that Plaintiff is
currently unable to work “full time.”
Defendant contends that the Full Commission could not find that
in “Ms. Katz’ opinion . . . Plaintiff’s fall exacerbated her
pre-existing depression and anxiety.” As discussed earlier, the
Full Commission was permitted to find facts relating to Ms.
Katz’s testimony as long as the Full Commission did not rely on
Ms. Katz’s testimony when inferring causation. To the extent
that the Full Commission relied upon Ms. Katz’s testimony to
infer causation, the Full Commission erred. However, in finding
of fact 45 the Full Commission stated that it was giving great
weight to Dr. Barkenbus’s testimony when inferring causation,
and Dr. Barkenbus testified that he thought plaintiff’s fall was
the initiating event that caused several medical and
psychological issues.
Finally, defendant challenges findings of fact 44 and 45.
Finding of fact 44 states:
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Based upon a preponderance of the evidence,
the Full Commission finds that as a
consequence of her January 30, 2008
accident, Plaintiff experienced an
exacerbation of her underlying psychological
condition, including her pre-existing
anxiety and depression.
Finding of fact 45 states:
Based upon a preponderance of the evidence
of record, including the opinion of Dr.
Barkenbus, which the Full Commission gives
great weight, the Full Commission finds that
Plaintiff’s pre-existing anxiety and
depression which were exacerbated by her
compensable injury, contributed to her
seizure disorder.
Defendant maintains that the Full Commission could not have
found a preexisting psychological condition because no expert
diagnosed plaintiff with a psychological condition, and no
medical expert testified as to the exacerbation of any
preexisting condition.
This argument challenges findings of fact, as well as the
Full Commission’s inference of causation. First, we only need
to find some evidence in the record that supports the Full
Commission’s findings of fact. See Adams, 349 N.C. at 681, 509
S.E.2d at 414. Dr. Barkenbus, who was tendered as a medical
expert, stated that in his report he was concerned with “some
level of panic anxiety prior to [plaintiff’s] fall, [and that]
[t]here was more ongoing depression in the aftermath of her
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fall.” Thus, there is evidence in the record to support the
finding that plaintiff suffered from anxiety before her fall.
Second, Dr. Barkenbus testified that he thought the fall
was the initiating event that caused several medical and
psychological issues that affected plaintiff’s ability to work.
The Full Commission stated in finding of fact 45 that it was
giving great weight to Dr. Barkenbus’s testimony. Therefore,
there is expert medical testimony in the record that the Full
Commission relied on in determining the causal connection
between plaintiff’s fall and her current medical conditions.
See Click, 300 N.C. at 167, 256 S.E.2d at 391. As a result, the
Full Commission properly addressed the issue of causation.
Next, we address the Full Commission’s order reopening the
record. When a party appeals a deputy commissioner’s opinion
and award to the Full Commission, it may “if good ground be
shown therefor, reconsider the evidence, receive further
evidence, rehear the parties or their representatives, and, if
proper, amend the award.” N.C. Gen. Stat. § 97-85(a) (2013).
As a result, this statute confers plenary powers to the Full
Commission to receive additional evidence, rehear the parties,
amend the award, and reconsider the evidence. Lynch v. M. B.
Kahn Constr. Co., 41 N.C. App. 127, 130, 254 S.E.2d 236, 238,
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disc. rev. denied, 298 N.C. 298, 259 S.E.2d 914 (1979).
Therefore, the Full Commission’s determination relating to one
of its plenary powers “will not be reviewed on appeal absent a
showing of manifest abuse of discretion,” id. at 131, 254
S.E.2d at 238, and an abuse of discretion occurs when a
determination “is so arbitrary that it could not have been the
result of a reasoned decision.” Porter v. Fieldcrest Cannon,
Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517, 520 (1999).
Defendant does not argue that the Full Commission’s
decision to reopen the record was an unreasoned decision.
Instead, defendant seems to argue that the Full Commission’s
decision was unfair because it gave the plaintiff a second
opportunity to prove her case. Such an argument fails to show
that the Full Commission abused its discretion, and we will not
review its determination to reopen the record.
Finally, defendant argues that the Full Commission should
not have awarded plaintiff temporary total indemnity
compensation and medical compensation because plaintiff failed
to provide evidence that satisfies the test in Russell v. Lowes
Product Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993). We
disagree.
Under the Workers’ Compensation Act, an employee is
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disabled when their earning capacity has been impaired. Peoples
v. Cone Mills Corp., 316 N.C. 426, 434, 342 S.E.2d 798, 804
(1986), appeal after remand, 86 N.C. App. 227, 356 S.E.2d 801
(1987). Thus, the employee must show that “he is unable to earn
the same wage he had earned before the injury, either in the
same employment or in other employment.” Russell, 108 N.C. App.
at 765, 425 S.E.2d at 457.
The employee may 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.
Id.
In this case, the Full Commission concluded that plaintiff
had satisfied the Russell test under either part one or part
three. The Full Commission made the following unchallenged
finding of fact:
[I]t would have been futile for Plaintiff to
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look for suitable employment due to her
limited and past relevant vocational history
of working primarily as a deli cook which
required prolonged standing and lifting up
to 50 pounds, her limited vocation skills
associated mainly with the type of work she
is currently unable to perform . . . her
current seizure disorder, in combination
with her work related, severe permanent
restrictions assigned by Dr. Broadhurst of
no lifting more than ten pounds, sitting or
resting up to ten minutes each hour, no
ladder climbing, minimal stair climbing and
no repetitious twisting or forward trunk
reaching, and her other physical limitations
due to severe pain, needing a cane to
ambulate, her need for multiple medications
and her non-work related medical conditions,
including a stroke and heart attack
following her injury.
This finding of fact supports the Full Commission’s
conclusion that it would have been futile for plaintiff to
search for employment. See Barrett v. All Payment Servs., Inc.,
201 N.C. App. 522, 527, 686 S.E.2d 920, 924 (2009) (holding that
the plaintiff had satisfied part three of the Russell test
because the Commission found “it would be futile for [employee]
to seek employment, given his advanced age, his prior work
history, his pre-existing conditions, his severely debilitating
back condition due [to] his current work related [sic] injury as
well as non-work related [sic] causes and his work related [sic]
physical restrictions” (alterations in original)), writ of
supersedeas and disc. rev. denied, 363 N.C. 853, 693 S.E.2d 915
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(2010).
In conclusion, for the reasons stated above, we affirm the
Opinion and Award of the Full Commission.
Affirmed.
Judges McGEE and CALABRIA concur.