The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.
NO. COA13-481
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
TIFFANY WILLIAMS, Individually and
as Guardian Ad Litem for ONESTY
BENNETT, Minor, Plaintiff,
v. North Carolina Industrial
Commission
I.C. No. TA-22046
WILSON COUNTY BOARD OF EDUCATION,
Defendant.
Appeal by plaintiff from decision and order entered 11
March 2013 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 26 September 2013.
Attorney General Roy Cooper, by Associate Attorney General
Christopher R. McLennan, for Wilson County Board of
Education.
Tanner and Romary, P.A., by Jeremy Tanner, for plaintiff-
appellant.
BRYANT, Judge.
Where there is competent evidence on the record to support
the Full Commission’s findings of fact and those findings in
turn support the Commission’s conclusions of law, we affirm the
Decision and Order of the Full Commission.
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On 13 October 2010, Tiffany Williams, serving as guardian
ad litem for her daughter, plaintiff Onesty Bennett, a minor,
filed suit against the Wilson County Board of Education in the
North Carolina Industrial Commission under our Tort Claims Act.
Evidence presented before Deputy Commissioner J. Brad Donovan on
25 April 2012 tended to show that on 4 May 2010, then twelve-
year-old plaintiff was a passenger in a Wilson County school bus
when the bus turned a corner, ran off the road, and traveled
through a ditch. Plaintiff was jostled, and her head struck the
bus window. Plaintiff testified that by the time she got to
school, her head hurt. She informed her teachers of her
headache but did not see a school nurse. “I couldn't really
keep my head up so I just laid down.” Plaintiff testified that
at home that evening, she went to sleep earlier than usual, and
when she awoke, her head still hurt. Two to three days later,
plaintiff told her mother that she was still having headaches.
Williams, testified that she called plaintiff’s pediatrician,
Dr. Debra Tetreault, but the first available appointment was not
until 20 May 2010 – sixteen days after the accident. Williams
then took plaintiff to see Dr. Melissa Roccos at Elite
Chiropractic.
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Dr. Roccos testified before Deputy Commissioner Donovan as
an expert in the field of chiropractic medicine. Dr. Roccos
examined plaintiff on 14 May 2010. After an interview during
which she took plaintiff’s history, Dr. Roccos performed an
examination and took x-rays of plaintiff’s neck.
Dr. Rocco testified using notes from her examination of
plaintiff and concluded that plaintiff was “neurologically
sound” but gave “musculoskeletal signs and closed
musculoskeletal injury.”
A. . . . When [plaintiff] came in to the
office, she showed indications of muscular
spasm in several areas. The muscle spasms
that she had at the front of the neck,
characteristically, because these muscles
attach from the outside of the neck up to
the front bones in the collar bone, as they
spasm, they shorten. And as they shorten,
they tend to increase the patient's forward
head carriage. That forward head carriage
will change or increase the curve of the
spine. And that's what we - we noticed on
her x-ray. The other thing that [plaintiff]
had was spasm underneath the rim of the
skull in these little muscles called
suboccipitals. And when the muscles in the
suboccipital area spasm, again, because of
their attachment points from the skull to
the spine, oftentimes they will cause the
skull to drop, which is, again, something
that we noticed on x-ray of [plaintiff]. She
also had muscle spasms in through the upper
muscle - we have big muscles in our back
that attach all the way up into our skull,
like the trapezius muscle or the Levator
spaculae. And these are big muscles that go
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from one area of the body to the other. So
oftentimes when people hear the word back,
they think back down here. But in truth, the
back is all of the back body. And
[plaintiff] had indications of muscular
spasm in the muscles from the upper mid-back
into the base of the neck.
Q. Would all those findings be consistent
with someone who had a sudden jerk of their
head or either hit their head on a window?
A. Yes.
. . .
Q. And do you remember what your final
diagnosis was?
A. It was a strain--- Well, she had some
indications of mild concussive symptoms with
the fatigue, the lethargy, the focus
difficulties, and the headaches. And it was
a strain of her neck, a strain of her back
and muscular spasm.
. . .
Q. All right, and based on your education,
training, experience, and the history that
[plaintiff] gave you, and the history that
her mom gave you, do you have an opinion to
a reasonable degree of chiropractic
certainty as to whether it was more likely
than not that the injuries you described
were caused by the
bus - school bus accident on May 4th, 2010?
A. Yes.
Q. What is that opinion?
A. I believe it was the cause of
[plaintiff’s] injuries.
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. . .
Q. And based on your education, training and
experience, do you have an opinion as to
whether your treatment of [plaintiff’s]
injuries were reasonable and necessary?
A. Yes, they were.
When asked why her notes reflect that plaintiff struck the right
side of her face while plaintiff testified that she struck the
left side of her face, Dr. Roccos stated that she could not
attest to why there was a discrepancy but mentioned that
“[p]atients have a lot of difficulty remembering things
immediately.”
Despite receiving chiropractic treatment from Dr. Roccos,
Williams took plaintiff to her pediatrician, Dr. Tetreault, for
an examination on 20 May 2010.
Dr. Tetreault was deposed on 1 March 2012, and the
transcript from her deposition submitted as evidence during
Deputy Commissioner Donovan’s proceedings. Dr. Tetreault was
proffered without objection to testify as an expert witness in
pediatric medicine. Dr. Tetreault testified that she examined
plaintiff on 20 May 2010. During the examination plaintiff
related that she had hit her head when her school bus ran off
the road and afterward she had headaches. Based on the
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interview, Dr. Tetreault’s impression was that plaintiff’s
headaches began “fairly soon or immediately” after the school
bus accident. Plaintiff did not complain of other symptoms.
Dr. Tetreault did not observe any objective signs of physical
injury to plaintiff, such as bruising or lacerations. During
the interview, Dr. Tetreault also noted plaintiff’s statement
that she had prescription lenses but did not wear them.
Q. And what happens with a person
requiring prescriptive corrective
lenses does not regularly wear them?
A. They get headaches.
Q. And does the degree to which a person’s
vision is impaired impact the severity
of these symptoms?
A. Yes, it can.
. . .
Q. Okay. And how impaired is [plaintiff’s]
vision without her glasses?
A. When we asked her to do a standard eye
chart reading, she could not read any
of the letters on the chart without her
glasses.
During her deposition, Dr. Tetreault was presented with Dr.
Rocco’s observations of plaintiff recorded over the course of
three visits that occurred prior to plaintiff’s 20 May 2010
examination by Dr. Tetreault. When asked if she would agree
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with the chiropractor’s opinion that muscle spasms, trigger
points, and other observations noted in the record resulted from
the bus accident, Dr. Tetreault testified she could not speak to
that since she did not see plaintiff right after her accident.
“When I saw her, she did not have any of those tenderness or any
problems.”
In the deputy commissioner’s Decision and Order entered 17
August 2012, the deputy commissioner concluded that the school
bus driver’s negligent operation of the school bus was the
proximate cause of plaintiff’s injuries and that the medical
treatment plaintiff received as a result of those injuries was
reasonable and necessary. The Wilson County School Board
appealed to the Full Commission (the Commission).
On 11 March 2013, after review of the record of the
proceedings before the deputy commissioner, the deputy
commissioner’s decision and order, as well as the briefs and
arguments of the parties, the Commission filed its Decision and
Order reversing that of the deputy commissioner. The Commission
made the following finding of fact:
23. Based upon a preponderance of the
evidence of record, the Full Commission
affords greater weight to the opinions of
Dr. Tetreault than to those of Dr. Roccos as
Dr. Tetreault had been Minor Plaintiff
Bennett’s treating physician since 2007 and
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specifically treats children in her day to
day practice of medicine as a pediatrician.
Further, the Full Commission affords greater
weight to the opinions of Dr. Tetreault due
to the inconsistencies noted in the records
of Dr. Roccos and the testimony of both
Plaintiff Williams and Minor Plaintiff
Bennett.
The Commission further found that plaintiff displayed no
evidence of injury on 20 May 2010 and had full range of motion
in her neck. The Commission found Dr. Roccos’ treatment of
plaintiff was neither reasonable nor necessary. Plaintiff’s
claim for damages was therefore denied. Plaintiff appeals.
______________________________
On appeal, plaintiff raises the following issues: whether
the Commission erred (I) by determining that medical records
from Elite Chiropractic were unreliable; (II) by giving greater
weight to the testimony of Dr. Tetreault; (III) when determining
that plaintiff failed to present sufficient evidence of injury
causation; (IV) when determining that plaintiff was not entitled
to recover damages; (V) when failing to affirm the award of
attorney fees and costs to plaintiff’s counsel; and (VI) when it
failed to make findings for additional attorney fees.
I, II, & III
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Plaintiff argues that the Commission erred in determining
that the medical records from Elite Chiropractic were
unreliable. Specifically, plaintiff asserts the following:
[I]n order to give greater weight to the
testimony of Dr. Tetreault, [the Commission]
has to first lay the foundation that Dr.
Roccos’ opinions and records cannot be
relied upon and must simply be ignored
because it is clear from the evidence as
outlined in Deputy Commissioner Donovan’s
opinion that Dr. Tetreault deferred to Dr.
Roccos to give an opinion about causation
and what needed to be done to treat Bennett
for her injuries.
We disagree.
Pursuant to Article 31 of Chapter 143 of our General
Statutes, “Tort Claims Against State Departments and Agencies,”
when an appeal is taken from the Deputy Commissioner,
[s]uch appeal, when so taken, shall be heard
by the Industrial Commission, sitting as a
full Commission, on the basis of the record
in the matter and upon oral argument of the
parties, and said full Commission may amend,
set aside, or strike out the decision of the
hearing commissioner and may issue its own
findings of fact and conclusions of law.
N.C. Gen. Stat. § 143-292 (2013). “[T]he Commission is the
ultimate fact-finder on appeal and is authorized to make
findings and conclusions contrary to those made by the deputy
commissioner.” Hummel v. Univ. of N.C., 156 N.C. App. 108, 114,
576 S.E.2d 124, 128 (2003) (citation and quotations omitted).
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“The Industrial Commission's findings of fact are binding on
appeal if supported by competent evidence even though there is
also evidence which would support a contrary finding.” Hoover
v. Charlotte-Mecklenburg Bd. of Educ., 87 N.C. App. 417, 419,
361 S.E.2d 93, 94 (1987) (citation omitted).
In reviewing a decision of the
Industrial Commission in a case arising
under the Tort Claims Act, we are limited to
addressing (1) whether the Commission's
findings of fact are supported by any
competent evidence, and (2) whether the
findings of fact support the Commission's
conclusions of law and decision.
Davidson v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544,
552, 543 S.E.2d 920, 925 (2001) (citations omitted). “On
appeal, this Court does not have the right to weigh the evidence
and decide the issue on the basis of its weight. The Court's
duty goes no further than to determine whether the record
contains any evidence tending to support the finding.” Coulter
v. Catawba County Bd. of Educ., 189 N.C. App. 183, 185, 657
S.E.2d 428, 430 (2008) (citation omitted).
Plaintiff argues that the Commission improperly gave more
weight to Dr. Tetreault’s testimony due to a discrepancy between
plaintiff’s testimony and Dr. Roccos’ records as to which side
of plaintiff’s head she hit on the school bus window. While the
Commission does state that inconsistencies between the records
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of Dr. Roccos and plaintiff’s testimony was a ground for
affording greater weight to the opinion of Dr. Tetreault, this
was not the sole basis. In its finding of fact, the Commission
set out that it afforded more weight to the opinion of Dr.
Tetreault over that of Dr. Roccos because “Dr. Tetreault has
been Minor Plaintiff Bennett’s treating physician since 2007 and
specifically treats children in her day to day practice of
medicine as a pediatrician.” Plaintiff argues that the
Commission erred in “afford[ing] greater weight to the opinions
of Dr. Tetreault”; however, the determination of weight or
credibility of the evidence is squarely within the function of
the Commission as fact-finder and beyond the scope of our
review. See Hummel, 156 N.C. App. at 114, 576 S.E.2d at 128;
see also Coulter, 189 N.C. App. at 185, 657 S.E.2d at 430.
Plaintiff does not contest any specific finding of fact and
does not argue that the Commission’s findings of fact are
unsupported. Indeed, in plaintiff’s brief to this Court,
plaintiff acknowledges Dr. Tetreault’s testimony in support of
the Commission’s finding and subsequent conclusion that the 4
May 2010 bus accident was not the cause of plaintiff’s injuries.
Plaintiff summarizes Dr. Tetreault’s testimony as stating “no
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injury [was] noted on [plaintiff] etc [sic] and her failure to
wear her glasses being a cause of her headaches . . . .”
The evidence presented to the Commission provides support
for the Commission’s findings of fact that “as of the May 20,
2010 visit with Dr. Tetreault, Minor Plaintiff Bennett displayed
no evidence of any injury, [and] had full range of motion in her
neck” and that “Plaintiff failed to present sufficient evidence
to find that Minor Plaintiff Bennett’s injuries were as a result
of the May 4, 2010 accident or that medical treatment . . . was
causally related to this accident.” Therefore, the Commission’s
findings of fact are binding on appeal. See id. Further, these
findings of fact support the Commission’s conclusion that
“[p]laintiff has failed to prove that [the] negligent operation
of the bus was the proximate cause of Minor Plaintiff Bennett’s
injuries.” Accordingly, plaintiff’s arguments, challenging the
Commission’s findings on the cause of plaintiff’s injuries based
on the weight given medical testimony presented, are overruled.
Based on this holding, we need not reach the remaining
issues presented in plaintiff’s brief for preservation purposes
regarding plaintiff’s claims, damages, and attorney fees.
Affirmed.
Judges HUNTER, Robert C., and STEELMAN concur.
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Report per Rule 30(e).