Allen v. Roberts Elec. Contr.

• Decision Date: 17 April 2001
• Docket Number: No. COA00-354.,COA00-354.
• Court: North Carolina Court of Appeals
• Parties: William C. ALLEN, Employee, Plaintiff, v. ROBERTS ELECTRICAL CONTRACTORS, Employer, Transportation Insurance Co., Carrier, Defendants.

546 S.E.2d 133

143 NC App. 55

William C. ALLEN, Employee, Plaintiff, v. ROBERTS ELECTRICAL CONTRACTORS, Employer, Transportation Insurance Co., Carrier, Defendants.

No. COA00-354.

Court of Appeals of North Carolina.

April 17, 2001.

Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A., by Vickie L. Burge, Fayetteville, for plaintiff-appellant.

Young Moore and Henderson P.A., by Jeffrey T. Linder, Raleigh, for defendant-appellees.

HUNTER, Judge.

William C. Allen ("plaintiff") appeals from an opinion and award of the North Carolina Industrial Commission ("Commission"). In its opinion and award, the Commission ordered Roberts Electrical Contractors ("defendant-employer") and Transportation Insurance Company (collectively "defendants") to pay plaintiff temporary total disability compensation for three weeks, permanent partial disability compensation for nine weeks—but not additional compensation for a continuing disability as contended by plaintiff, and to provide only conservative medical treatment that is limited to the use of non-addictive pain medications. The opinion and award also denied plaintiff's request for approval of a change in his treating physician and his motion for taking of additional evidence. On appeal, plaintiff assigns error to (1) the Commission's findings of fact, conclusions of law, and award, (2) the Commission's alleged disregard of the testimony of three of his witnesses, and (3) the Commission's alleged failure to exercise discretion, or alleged manifest abuse of discretion, in denying his motion for taking of additional evidence. After a careful review of the record and briefs, the opinion and award of the Commission is affirmed.

On 19 May 1994, plaintiff was employed by defendant-employer as an electrician. On that date, plaintiff, in the course of his employment, was walking backwards directing a backhoe driver when he stepped into a ditch, fell, and injured his back and arm. Subsequently, the parties entered into a Form 21 agreement for disability compensation, which was approved on 29 August 1994.

Plaintiff was seen by Dr. Bruce P. Jaufmann who diagnosed plaintiff as having sustained a thoracolumbar strain. On 9 September 1994, Dr. Jaufmann released plaintiff to return to light duty work for up to six weeks and full duty work after six weeks. Plaintiff sought a second medical opinion regarding his injury, and upon the advice of counsel, he visited Dr. Glenn A. McCain. Dr. McCain diagnosed plaintiff as having sustained chronic pain syndrome, and he recommended plaintiff "be afforded the opportunity of enrollment in a rehabilitation program aimed at restoring his function...."

Defendant-employer offered plaintiff a light duty position to begin on 7 October 1994, but plaintiff never returned to work. A Form 24 informal hearing was held, and plaintiff's benefits were terminated as of 7 October 1994. Plaintiff requested a hearing, which was held on 20 April 1995 before Deputy Commissioner Douglas E. Berger. On 29 September 1995, Deputy Commissioner Berger filed his opinion and award affirming the Form 24 application to stop temporary total disability payments to plaintiff and concluding that plaintiff's refusal to accept light duty work was not justified. In his decision, Deputy Commissioner Berger found that plaintiff had sustained chronic pain syndrome, and he ordered plaintiff to participate in an inpatient chronic pain management program selected and paid for by defendants. Plaintiff did not appeal this first opinion and award.

Initially, defendants provided plaintiff the opportunity to participate in an outpatient pain management program at Cape Fear Valley Medical Center in Fayetteville, North Carolina. However, plaintiff refused to participate in this program because it did not involve inpatient treatment as ordered by Deputy Commissioner Berger. After a conference call with Deputy Commissioner Berger, the parties agreed to send plaintiff to the Spine Center at Bowman Gray Baptist Hospital in Winston Salem, North Carolina. At the Spine Center, plaintiff attended a three-week functional restoration program from 8 July to 26 July 1996. Upon completion of the program, Dr. Walter Davis diagnosed plaintiff as having a partial permanent impairment rating of three percent (3%) for thoracolumbar strain, and he released plaintiff to return to work in a medium physical demand classification with a lifting restriction.

Upon discharge, plaintiff went to a job site of defendant-employer unannounced and asked a person, whom he believed to be the foreman, if defendant-employer was hiring. The person responded no, and plaintiff departed without identifying himself. In an eight-day span from 13 August to 20 August 1996, plaintiff also applied for work with about a dozen businesses of varying types, but he did not obtain employment.

On plaintiff's attorney's request, plaintiff was re-examined by Dr. McCain on or about 19 August 1996. At that time, Dr. McCain changed his initial diagnosis of plaintiff, and he diagnosed plaintiff as having fibromyalgia and concluded that plaintiff was unable to return to work in any occupation. In a letter to plaintiff's attorney, Dr. McCain contradicted his earlier diagnosis and recommendation, and reported that he "would not have recommended a Functional Restoration Program for [plaintiff] since there is no available medical evidence that this kind of an approach really works for fibromyalgia." Later in 1996, plaintiff relocated to the state of Maryland.

Plaintiff requested a second hearing with the Commission seeking additional benefits and approval of a change in treating physician to Dr. McCain. A second hearing before Deputy Commissioner Berger was held on 18 November 1997. Deputy Commissioner Berger ordered plaintiff to undergo an independent medical examination by Dr. Scott S. Sanitate. During his medical examination, Dr. Sanitate performed a series of tests on plaintiff. From the tests, Dr. Sanitate concluded that plaintiff did not suffer from fibromyalgia and plaintiff's reports of pain were not a reliable source for determining the extent of his injury.

On 30 September 1998, Deputy Commissioner Berger filed his second opinion and award in this matter. In this decision, he found that plaintiff did not have fibromyalgia and plaintiff was intentionally exaggerating the extent of his pain. Moreover, Deputy Commissioner Berger gave greater weight to the opinions of Dr. Sanitate than to those of Dr. McCain. Additionally, Deputy Commissioner Berger concluded that plaintiff failed to meet his burden of proof showing that he had been disabled for any time period following his termination of benefits on 7 October 1994, except for the three-week period in 1996 that he was at the Spine Center. Consequently, Deputy Commissioner Berger denied plaintiff's request that Dr. McCain be approved as his treating physician, and he ordered defendants to pay plaintiff temporary disability compensation at a rate of $240.00 for the three-week period that he was at the Spine Center, permanent partial disability compensation at a rate of $240.00 for nine weeks for the permanent partial disability to his back, and for conservative treatment that is limited to the use of non-addictive pain medications.

Plaintiff appealed Deputy Commissioner Berger's second opinion and award to the Full Commission. On or about 12 March 1999, plaintiff also filed a motion for taking of additional evidence seeking the admission of medical records and diagnosis from plaintiff's Maryland physician. The Full Commission reviewed the matter and filed its opinion and award, with detailed findings and conclusions, on 24 January 2000. In its decision, the Full Commission affirmed the second opinion and award of Deputy Commissioner Berger and denied plaintiff's motion for taking of additional evidence. Significantly in its opinion and award, the Commission concluded:

Plaintiff did not appeal Deputy Commissioner Berger's Opinion and Award, filed 29 September 1995, affirming the Form 24 Application to Terminate or Suspend Payment of Compensation decision, which was filed 23 November 1994. Plaintiff has the burden of proving that he has been disabled for any time period following this termination of benefits on 7 October 1994. Plaintiff has failed to show by the greater weight of the evidence that he was disabled during the time period beginning 7 October 1994 to the date of the hearing before the Deputy Commissioner, with the exception of the time period that plaintiff was in the program at the Bowman Gray Baptist Hospital Spine Center....

Plaintiff now appeals to this Court.

First, plaintiff assigns error to the Commission's findings of fact, conclusions of law, and award. After a careful review of the record, we find that competent evidence supports the Commission's findings, and the Commission's findings support its conclusions and award. Therefore, we reject this assignment of error.

"The standard of review for an appeal from an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its conclusions of law." Goff v. Foster Forbes Glass Div., 140 N.C.App. 130, 132-33, 535 S.E.2d 602, 604 (2000). Furthermore, "[t]he facts found by the Commission are conclusive upon appeal to this Court when they are supported by competent evidence, even when there is evidence to support contrary findings." Pittman v. International Paper Co., 132 N.C.App. 151, 156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C. 310, 534 S.E.2d 596, aff'd, 351 N.C. 42, 519 S.E.2d 524 (1999). In other words, "`[t]he findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.'" 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) (...