Plaintiff's attorney moved by letter dated March 17, 1997 that Deputy Commissioner Lawrence Shuping reopen the record to allow the plaintiff to take the deposition of Dr. William S. Blau, one of the plaintiff's treating physicians, whose testimony both the plaintiff and defendant had indicated in their Pre-Trial Stipulations was to be sought, but because of a change in plaintiff's counsel had not been procured at the time the record was closed. Deputy Commissioner Shuping denied this request.
In spite of the denial, the deposition of Dr. Blau was taken as an offer of proof on May 30, 1997 by plaintiff's counsel over the objections of the defendant's counsel. Defendant's counsel was not present when plaintiff's counsel took Dr. Blau's deposition.
Plaintiff contends that this medical evidence is critical to a determination of this claim and that equity, as well as justice, requires the Industrial Commission to give due consideration to this additional evidence. Pursuant to N.C. Gen. Stat. § 97-85, the Commission may receive further evidence in its discretion if good ground be shown therefor. The Full Commission has determined that plaintiff has shown good ground for the reopening of the record for the purpose of taking the deposition of Dr. Blau after due notice to all parties and for the receipt of any additional rebuttal evidence which the defendant may wish to present. Accordingly, the Full Commission RESERVES the ruling of the Deputy Commissioner denying plaintiff's motion to take the deposition testimony of Dr. Blau.
ORDER IT IS HEREBY ORDERED that the record in this case is reopened for additional evidence to be presented by deposition testimony or stipulated documents on the sole issue of whether plaintiff was disabled or had wage-earning capacity after March 15, 1996. The parties shall have 90 days to submit said additional evidence and 15 days thereafter to submit written supplemental briefs or contentions. All supplemental evidence, briefs, contentions, and motions shall be submitted to Commissioner Ballance. The Full Commission retains jurisdiction of this case.
IT IS FURTHER ORDERED THAT Defendants shall continue to provide such medical treatment to plaintiff as is reasonably required to provide relief and lessen plaintiff's disability.
Entered this the 30th day of January, 1998.
S/ __________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/ __________________ THOMAS J. BOLCH COMMISSIONER
S/ __________________ MARY MOORE HOAG DEPUTY COMMISSIONER