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.