An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-943
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IRENE SMITH,
Employee,
Plaintiff,
v. From the North Carolina
Industrial Commission
IC No. X20253
AMERICAN NATIONAL NSURANCE
COMPANY, Employer,
and
LIBERTY MUTUAL, Carrier,
Defendants.
Appeal by Plaintiff from Opinion and Award entered 25 April
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 8 January 2014.
Doran, Shelby, Pethel and Hudson, P.A. by Kathryn C.
Setzer, for plaintiff-appellant.
Cranfill Sumner & Hartzog LLP by Matthew B. Covington and
Sara B. Warf, for defendant-appellees.
STEELMAN, Judge.
The Industrial Commission did not err in finding that
plaintiff’s complaints of pain to her left side were not
causally connected to her compensable injury. The Industrial
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Commission did not err when it denied plaintiff’s request for
attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.1. The
Commission did not err or abuse its discretion when it granted
American National’s Motion to Compel discovery for a potential
Medicare Set-Aside.
I. Factual and Procedural History
From 13 December 2004 to 4 July 2011, American National
Insurance Company (American National) employed Irene Smith
(plaintiff) as an insurance agent. On 2 January 2009, plaintiff
went to the home of a client to pick up an insurance premium.
When plaintiff arrived, she parked her car in the driveway of
the home. As plaintiff exited her vehicle and proceeded up the
driveway, she stepped off the driveway onto uneven ground.
Plaintiff lost her balance and fell, twisting her right ankle
and leg. Plaintiff reported the fall to her manager, Tim Cooper,
on 6 January 2009.
On 24 February 2009, plaintiff went to High Point Regional
Medical Center, where she received medical treatment for her 2
January 2009 injury. The hospital examined plaintiff’s right
hip, right foot, and lumbar spine. Plaintiff was then treated by
Dr. James Kramer starting 3 March 2009 for low back, right hip,
and right foot pain. Dr. Kramer determined that plaintiff had
degenerative disc disease at L5-S1, with mechanical low back
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pain, right hip greater trochanteric bursitis, and right foot
plantar fasciitis. On 29 May 2009, for the first time, plaintiff
complained to Dr. Kramer of pain on her left side, from her left
buttock to her left foot.
More than a year later, on 20 August 2010, plaintiff
returned to Dr. Kramer for back pain and left hip pain that
radiated down to her left knee. Dr. Kramer prescribed anti-
inflammatory medication, pain medication, physical therapy, and
a RS-4i stimulator for pain management. Dr. Kramer also
administered a steroid injection into plaintiff’s hip. Plaintiff
then participated in physical therapy. On 9 September 2010
plaintiff returned to Dr. Kramer, complaining of back pain with
no radiation to either side of her body. Dr. Kramer was paid by
the worker’s compensation carrier for American National for all
of the treatments that he provided to Plaintiff.
Following the 9 September 2010 visit with Dr. Kramer, the
carrier for American National decided that plaintiff’s current
complaints were distinct from her complaints arising out of the
2 January 2009 accident and denied payment for further medical
treatment. On 13 September 2010, plaintiff saw Physician
Assistant Donald Bulla. Mr. Bulla noted complaints of low back
pain by the plaintiff, which had occurred without any known
injury. Mr. Bulla thought plaintiff was unable to perform her
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job as an insurance agent because of her pain and wrote a note
that she should be out of work beginning 21 December 2010.
Over the course of the next year, plaintiff consulted with
Dr. Richard Avioli, an orthopedic surgeon, and consulted with
and received treatment from Dr. Victoria Neave, a neurosurgeon.
These consultations and treatments all concerned plaintiff’s
lower back and occasionally her left side.
On 31 January 2011, following the initial claim submission
to the Industrial Commission, plaintiff filed a Form 33 Request
for Hearing. On 3 February 2011, American National filed a Form
61 with the Industrial Commission denying plaintiff’s claim.
Before review by the full Commission, American National sought
information from plaintiff concerning a potential Medicare Set-
Aside. When plaintiff refused to provide this information,
American National filed a Motion to Compel discovery, which was
granted by the Commission. American National terminated
plaintiff’s employment on 4 July 2011 because plaintiff could no
longer perform her job duties as an insurance agent and had not
worked for American National since 21 December 2010. In an
Opinion filed 25 April 2013, the Commission denied plaintiff’s
claim for temporary total disability and medical compensation
for treatment after 3 March 2009. The Commission also denied
plaintiff’s request for attorney’s fees.
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Plaintiff appeals.
II. Commission’s Findings of Fact
In her first argument, plaintiff contends that the
Commission erred in failing to find that her injuries were
causally related to the accident that she sustained on 2 January
2009. We disagree.
A. Standard of Review
“The standard of appellate review of an opinion and award
of the Industrial Commission in a workers’ compensation case is
whether there is any competent evidence in the record to support
the Commission’s findings of fact and whether these findings
support the Commission’s conclusions of law.” Lineback v. Wake
County Bd. of Comm’rs, 126 N.C. App. 678, 680, 486 S.E.2d 252,
254 (1997). The Industrial Commission’s findings of fact “are
conclusive on appeal when supported by competent evidence . . .
even [if] there is evidence to support a contrary finding.”
Johnson v. Herbie’s Place, 157 N.C. App. 168, 171, 579 S.E.2d
110, 113 (2003) (citing Morrison v. Burlington Industries, 304
N.C. 1, 6, 282 S.E.2d 458, 463 (1981)). The Industrial
Commission’s findings of fact “may be set aside on appeal [only]
when there is a complete lack of competent evidence to support
them[.]” Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538
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S.E.2d 912, 914 (2000) (citing Saunders v. Edenton OB/GYN Ctr.,
352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000)).
B. Analysis
On appeal, plaintiff’s main challenge is to finding of fact
23, which states:
23. Plaintiff sustained injury to her right hip,
right leg, and low back. However, based upon a
preponderance of the competent, credible evidence of
record, the Full Commission finds that these injuries
resolved prior to Plaintiff’s 29 May 2009 office visit
with Dr. Kramer, such that any treatment she received
after that date for her low back, left hip and left
leg is found to be not causally related to the 2
January 2009 injury by accident.
Plaintiff contends that this finding is not supported by
competent evidence and that the Industrial Commission erred by
failing to include certain facts in its findings, which in turn
influenced its finding on causation.
Plaintiff’s brief contains a list of arguments discussing
evidence before the Commission and finding of fact 23. Twelve of
the sixteen items on plaintiff’s list concern the Commission’s
failure to include certain facts or address certain issues.
However, “[t]he Commission is not required . . . to find facts
as to all credible evidence . . . Instead, the Commission must
find those facts which are necessary to support its conclusions
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of law.” London v. Snak Time Catering, Inc., 136 N.C. App. 473,
476, 525 S.E.2d 203, 205 (2000). This argument is without merit.
Plaintiff further contends that the evidence in the record
does not support the Commission’s findings of fact. Plaintiff
first argues that finding of fact 5 was “gross error.” This
finding discusses to plaintiff’s emergency room visit on 24
February 2009. Plaintiff asserts that the Commission erred by
failing to mention that plaintiff also complained of “back pain”
at this visit. However, as stated previously, the Commission is
not required to find facts as to all credible evidence, merely
those facts which support its conclusions of law. Id. The
Commission’s failure to mention plaintiff’s complaint of back
pain does not suggest that the Commission failed to consider
this evidence and does not constitute gross error.
Plaintiff next argues that there was evidence in the record
to support a finding contrary to the Commission’s finding of
fact 7, which states:
Plaintiff returned to Dr. James S. Kramer on May 29,
2009 complaining of low back pain and symptoms that
were radiating down the left leg, from the left
buttock, through the hip, hamstring, and into the calf
and foot. Dr. Kramer’s assessment at the visit was low
back pain with underlying degenerative disc disease at
L5-S1, and lumbar radiculopathy. The right-sided
complaints which Plaintiff had expressed on March 3,
2009, had resolved by the May 29, 2009 office visit.
Dr. Kramer ordered an MRI, which showed stenosis and
degenerative changes in the thoracic and lumbar spine.
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Finding of fact 7 differentiates between the sides of the
body where plaintiff was complaining of pain and Dr. Kramer’s
assessment. It “is for the Commission to determine the
credibility of witnesses, the weight to be given the evidence,
and the inferences to be drawn from it.” Rackley v. Coastal
Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002)
(citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411
(1998)). The Commission weighed the evidence accordingly and
made its finding of fact. We hold that there was evidence in the
record to support the Commission’s finding of fact 7, and
because “[t]his ‘court’s duty goes no further than to determine
whether the record contains any evidence tending to support the
finding’” it is binding on this court. Richardson v. Maxim
Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584
(2008) (citation omitted) (quoting Anderson v. Lincoln Constr.
Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).
Plaintiff next challenges finding of fact 17, which states
that the history of immediate pain that the plaintiff reported
on 20 January 2011, that of left buttock/sacroiliac joint and
left lower extremity pain, was inconsistent with that of what
she reported on 24 February 2009 and 3 March 2009. Plaintiff
contends that these left side complaints are “not inconsistent
with” her prior right side injuries. However, it is for the
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Commission to determine “the weight to be given the evidence,
and the inferences to be drawn from it.” Rackley, 153 N.C. App.
at 472, 570 S.E.2d at 124. This argument is without merit.
Plaintiff next contends that finding of fact 19 is not
supported by evidence in the record because Dr. Rowan’s opinion
was pure conjecture. Finding of fact 19 discussed Dr. Rowan’s
opinion regarding a causal link between plaintiff’s 2 January
2009 injury and the pain she experienced after 3 March 2009.
Plaintiff contends that because Dr. Rowan did not review all of
plaintiff’s medical records prior to forming his opinion, his
opinion is pure conjecture. Plaintiff does not cite any
authority for this proposition. Nothing within Rule 702 of the
North Carolina Rules of Evidence prevents a witness from being
tendered as an expert and rendering an opinion if that witness
has not reviewed every possible piece of data. Rule 702
specifically requires that the testimony be based “upon
sufficient facts or data.” N.C. Gen. Stat. § 8C-1, Rule
702(a)(1) (2007). We hold that Dr. Rowan’s testimony was based
upon sufficient data.
Further, plaintiff had the opportunity to cross-examine Dr.
Rowan concerning his opinion during his deposition. Once
tendered as an expert witness, it “is for the Commission to
determine the credibility of witnesses, the weight to be given
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the evidence, and the inferences to be drawn from it. As long as
the Commission’s findings are supported by competent evidence of
record, they will not be overturned on appeal.” Rackley at 472,
570 S.E.2d at 124.
The Commission found that, in her handwritten statement
recorded shortly after her injury, plaintiff did not complain of
pain to her left hip, left leg, or left foot. When plaintiff
received medical treatment from Dr. Kramer on 3 March 2009, she
did not complain of pain in her left hip, left leg, or left
foot. (R. p. 83). The Commission found that when plaintiff
returned to Dr. Kramer a year later, her complaints were limited
to her left side. (R. p. 84). The Commission also found that
when Dr. Kramer wrote a letter to American National on 16
September 2010, he did not address the question of medical
causation of her left-sided complaints, when her complaints
following the injury were limited to her right side. (R. p. 84).
The Commission then found that when plaintiff saw Dr. Avioli,
plaintiff’s complaints were limited to her left side. (R. p.
85). Dr. Kramer testified that it would be difficult to
determine whether plaintiff’s 2010 and 2011 complaints were a
continuation of the 2 January 2009 injury. (R. p. 88). These
findings of fact are not contested on appeal, and support the
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Commission’s finding of fact 23. We hold that finding of Fact 23
was supported by competent evidence, and is binding on appeal.
The fact that the Industrial Commission made, or failed to
make, findings that plaintiff contends are required in its
Opinion and Award does not necessarily render the Award invalid.
“The Commission is not required . . . to find facts as to all
credible evidence . . . Instead, the Commission must find those
facts which are necessary to support its conclusions of law.”
Snak Time Catering, 136 N.C. App. at 476, 525 S.E.2d at 205.
This argument is without merit.
III. Denial of Plaintiff’s Attorneys Fees
In plaintiff’s second argument, she contends that the
Industrial Commission erroneously denied her motion for
attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.1 or for
sanctions against American National. We disagree.
A. Analysis
Pursuant to N.C. Gen. Stat. § 97-88.1, “[i]f the Industrial
Commission shall determine that any hearing has been brought,
prosecuted, or defended without reasonable ground, it may assess
the whole cost of the proceedings including reasonable fees for
defendant's attorney or plaintiff’s attorney upon the party who
has brought or defended them.” N.C. Gen. Stat. § 97-88.1. “The
decision whether to award or deny attorney’s fees rests within
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the sound discretion of the Commission and will not be
overturned absent a showing that the decision was manifestly
unsupported by reason.” Thompson v. Fed. Express Ground, 175
N.C. App. 564, 570, 623 S.E.2d 811, 815 (2006) (citing Bryson v.
Phil Cline Trucking, 150 N.C. App. 653, 656, 564 S.E.2d 585, 587
(2002)). The Commission found that plaintiff had failed to
establish a causal link between her compensable injury of 2
January 2009 and her complaints after 3 March 2009. The
Commission then held, based on the lack of causation, that
American National did not defend this claim “without reasonable
ground.” N.C. Gen. Stat. § 97-88.1.
The Commission did not abuse its discretion by denying
plaintiff attorney’s fees. This argument is without merit.
IV. Motion to Compel
In her third argument, plaintiff contends that the
Industrial Commission erroneously granted American National’s
Motion to Compel discovery. We disagree.
A. Standard of Review
“Whether or not the party's motion to compel discovery
should be granted or denied is within the trial court's sound
discretion and will not be reversed absent an abuse of
discretion.” Wagoner v. Elkin City Schools’ Bd. Of Education,
113 N.C. App. 579, 585, 440 S.E.2d 119, 123 (1994) (citing In re
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Estate of Tucci, 104 N.C. App. 142, 152, 408 S.E.2d 859, 865-66
(1991)). Rule 605(3) of the North Carolina Industrial Commission
states that “[a]dditional methods of discovery as provided by
the North Carolina Rules of Civil Procedure may be used only
upon motion and approval of the Industrial Commission or by
agreement of the parties.” Workers’ Comp. R. of N.C. Indus.
Comm’n Rule 605(3) (2013). N.C. Gen. Stat. § 1A-1, Rule 37(a)(2)
provides that “the discovering party may move for an order
compelling an answer . . . in accordance with the request.” N.C.
Gen. Stat. § 1A-1, Rule 37(a)(2).
B. Analysis
American National sought discovery from plaintiff in order
to prepare for a potential Medicare Set-Aside. Plaintiff argues
that the Medicare Set-Aside was outside the scope of the
Industrial Commission’s authority, and that the discovery sought
by American National should have been denied.
N.C. Gen. Stat. § 97-91 states “[a]ll questions arising
under this Article if not settled by agreements of the parties
interested therein, with the approval of the Commission, shall
be determined by the Commission, except as otherwise herein
provided.” N.C. Gen. Stat. § 97-91. Plaintiff asserts that this
language prohibits the Industrial Commission from compelling the
production of documents that are related to possible future
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Medicare-covered expenses. In Pearson v. C.P. Buckner Steel
Erection Co., 348 N.C. 239, 498 S.E.818 (1998), the North
Carolina Supreme Court addressed the issue of the Commission’s
authority over issues involving Medicare and Medicaid:
We hold that the Commission’s 19 December 1995 order
directing defendants to pay intervenor and plaintiff’s
other health-care providers the difference between the
amount reimbursed to Medicaid and the amount allowable
under the Act was a proper exercise of its authority.
We further hold that the Commission correctly applied
the workers’ compensation law of this State and that
such law is not preempted by federal Medicaid law.
Pearson, 348 N.C. at 246-7, 498 S.E.at 823 (internal citations
omitted) (emphasis added). We hold that the Commission neither
acted outside of its scope of authority, nor abused its
discretion.
V. Conclusion
The Industrial Commission did not err in finding that there
was not a causal link between plaintiff’s compensable accident
of 2 January 2009 and her medical treatment after 3 March 2009.
The Commission did not err in denying plaintiff’s request for
attorney’s fees. The Commission did not act outside the scope of
its authority or abuse its discretion when it granted American
National’s Motion to Compel discovery.
AFFIRMED.
Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).