Pittman v. International Paper Co.

Judge Greene

concurring.

I fully concur with the majority opinion, but write separately to clarify the Commission’s duty to make findings.

The Commission must make “definitive findings to determine the critical issues raised by the evidence,” Harrell v. Stevens & Co., 45 N.C. App. 197, 205 , 262 S.E.2d 830, 835 , disc. review denied, 300 N.C. 196 , 269 S.E.2d 623 (1980), and in so doing, must indicate in its findings that it has “considered] and evaluate[d]” the evidence with respect to the critical issues raised in the case, Lineback v. Wake County Board of Commissioners, 126 N.C. App. 678, 680-81 , 486 S.E.2d 252, 254 (1997) (remanding where the Commission had made “no definitive findings to indicate that it [had] considered or weighed [a particular expert’s] testimony”). “It is not, however, necessary that the . . . Commission make exhaustive findings as to each statement made by any given witness or make findings rejecting specific evidence that may be contrary to the evidence accepted by the . . . Commission.” Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 139 , 502 S.E.2d 58, 62 (1998) (noting that “negative” findings are not required).

In this case, the Commission indicates that it “reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Lawrence Shuping which also include the additional depositions taken of Drs. Markworth and Grubbs.” In addi *158 tion, various findings throughout the Opinion and Award of the Commission indicate consideration of Dr. Markworth’s opinion. It was not necessary for the Commission to make “negative” findings concerning Dr. Markworth’s first deposition. By accepting the testimony in Dr. Markworth’s second deposition as true, the Commission adequately demonstrates that it does not accept the contrary testimony given by Dr. Markworth in his first deposition.

Judge Lewis dissenting.

I respectfully dissent from the majority opinion because I am disturbed by the Full Commission’s handling of the depositions of Dr. Markworth. My two concerns are: first, with plaintiff’s 1 August 1996 “Proffer of Evidence” and the “Testimony Under Oath of Dr. James W. Markworth” from 23 July 1996 that it contained; and second, with the Full Commission’s decision to permit the taking of an additional deposition from Dr. Markworth after a legitimate one had been taken and the time allotted for this method of discovery had expired.

The majority addresses defendants’ concerns over improper ex parte communications by distinguishing this case from Salaam, noting that the communication here was between the patient and his doctor. I agree that this Court should not attempt to prevent a patient from discussing his ongoing treatment with his doctor, and I would not disapprove if that were the only communication at issue. However, when the doctor wants to reduce these communications to statements used for testimony in court by presenting them to an attorney in a deposition format, Rule 605(d) of the Workers’ Compensation Rules of the North Carolina Industrial Commission and Rule 30(b)(1) of the North Carolina Rules of Civil Procedure require that notice be given to the opposing party. No such notice was given here, and that made the “Examination Under Oath” an improper ex parte communication.

Plaintiff may have called the 23 July proceeding a mere “Examination Under Oath,” using a phrase that appears nowhere in the text of North Carolina’s Rules of Civil Procedure, Rules of Evidence, or Workers’ Compensation Act, but it had every substantive appearance of being a deposition. Dr. Markworth answered questions posed by plaintiff’s attorney out of court, and the session was taken down and transcribed by a court reporter who notarized the document. The lack of notice to or presence of the opposing party prevented this from being a deposition in form as well as substance. The *159 one-sided nature of the proceeding, which involved only plaintiffs attorney and doctor and of which the opposing party had no notice, made it an improper ex parte communication.

The majority, citing G.S. § 97-85 and Keel, states that this testimony could be taken in the Full Commission’s discretion, and that the decision to do so will not be reversed on appeal absent a showing of manifest abuse of discretion by the Commission. The facts of this case present just such an abuse of discretion. While the decision to allow the taking of testimony may have otherwise been within the Commission’s discretion, the manner in which the testimony used to support plaintiff’s motion was actually taken violated the plain language of the Commission’s own Rule 605(d) requiring notice to the opposing party. The inherent contradiction in such a decision is nothing short of a manifest abuse of discretion.

Commissioner Sellers, in her dissent to the Full Commission’s 19 May 1997 order permitting the taking of another deposition from Dr. Markworth, stated that in addition to the procedural problems noted above, “[p]laintiff had more than ample opportunity, over seven months, to prepare the information he wanted to present to Dr. Markworth,” whom he then sought to re-depose. This was not newly discovered evidence, but a witness’s desire to make a complete change in testimony after the time for depositions to be taken had expired. As Commissioner Sellers stated, “[b]y allowing repeated depositions of doctors based upon the rephrasing of long known information, the majority [of the Full Commission] is needlessly prolonging litigation and encouraging attorneys to not be fully prepared for depositions.” Like Commissioner Sellers, I would not treat a clear deadline in such a flexible manner, as it gives the appearance of exceptional efforts to reverse a result.

Defendants filed an exception to the 19 May order and, in the record on appeal, assigned error on this point. It was, however, not argued in defendants’ brief and could technically be deemed abandoned under Rule 28(b)(5) of the Rules of Appellate Procedure. In light of the egregious nature of the Industrial Commission’s decisions regarding Dr. Markworth’s repeated depositions, I would utilize Rule 2 of the Rules of Appellate Procedure “[t]o prevent manifest injustice to” defendants and consider this claim. Because I remain concerned by the use of what amounted to an improper deposition to continue the chance to take yet another deposition after the time for doing so had expired, and because I do not wish our holding in this case to encourage similar limitless elasticity in the future, I would vacate the *160 decision of the Full Commission and remand the case for an analysis of only that evidence which met the deadlines clearly in place.