Bishop v. Ingles Markets, Inc.

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.

_________________________

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.
 -8-
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).
 -9-
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
 -14-
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
 -17-
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
 -18-
(2010).

In conclusion, for the reasons stated above, we affirm the

Opinion and Award of the Full Commission.

Affirmed.

Judges McGEE and CALABRIA concur.