Bowman v. Scion
| Decision Date | 04 December 2012 |
| Docket Number | No. COA12–709.,COA12–709. |
| Parties | Clifton BOWMAN, Plaintiff v. Cox Toyota SCION, Employer, and Stonewood Insurance Co., Carrier, Defendants. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendants from Opinion and Award entered 15 March 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 8 October 2012.
The Deuterman Law Group, by Daniel L. Deuterman, Greensboro and Casey S. Francis, for Plaintiff-appellee.
Brooks, Stevens & Pope, P.A., Cary, by Bambee B. Blake and Ginny P. Lanier, for Defendant-appellants.
Defendants Cox Toyota Scion and Stonewood Insurance Company appeal from the Commission order awarding medical and disability benefits to Plaintiff Clifton Bowman. On appeal, Defendants contend that the Commission erred by declining to admit three surveillance videos marked for identification as Defendants' Exhibits 1, 2, and 3 on the grounds that (1) Plaintiff waived his right to seek Commission review of this issue by failing to object to the introduction of the videos at the hearing held before the Deputy Commissioner and (2) Defendants sufficiently authenticated the challenged exhibits. After careful consideration of Defendants' challenges to the Commission's order in light of the record and the applicable law, we conclude that the Plaintiff was not barred from challenging the admissibility of the videos before the Commission, that the Commission erred by refusing to consider the videos, and that this case should be remanded to the Commission for further proceedings, including the entry of an order that takes the information contained in these videos into account.
At the time of the hearing held before the Deputy Commissioner in this case, Plaintiff was forty-one years old and had completed the tenth grade. In 2005, Plaintiff began working for Defendant Cox Toyota as a repair technician. On 28 August 2010, Defendant Cox Toyota moved into a new car sales and repair facility which was equipped with a video surveillance system.
On 8 September 2010, Plaintiff arrived for work at 7:30 a.m. Plaintiff claims that, shortly after noon, he was been walking near the area where he kept his toolbox when he tripped over an air hose and drop cord left on the floor by Frank Apple, the man assigned to work in the adjoining repair bay. After tripping over the hose, Plaintiff fell to the concrete floor. As he landed, Plaintiff felt “something pop.” Upon attempting to rise, Plaintiff experienced a “stabbing pain” in his neck and lower back which radiated down his legs. A few minutes later, Plaintiff reported the accident to his immediate supervisor, Peggy Young, and told her that he had hurt his back when he tripped over a hose and fell to the floor.
Plaintiff continued to experience severe pain, and left work about forty-five minutes following his fall. Before leaving, Plaintiff showed his back to two co-workers, Daniel Carter and David Valencia, both of whom testified that Plaintiff claimed to have hurt his back after tripping over an air hose and both of whom observed that Plaintiff's back was red and swollen. According to Rusty Cox, Defendant Cox Toyota's vice-president, both Mr. Carter and Mr. Valencia were known to be honest individuals.
Plaintiff was initially seen by Physician Assistant Ronald Smith at Alamance Regional Medical Center, where he was admitted at 1:36 p.m. on 8 September 2010. While examiningPlaintiff, P.A. Smith noticed decreased flexion in Plaintiff's lower back and observable muscle spasms in his left paraspinals. P.A. Smith testified that a muscle spasm could not be faked and that, in his opinion, Plaintiff had been injured earlier that day.
On 9 September 2010, Plaintiff saw Dr. Kevin L. Krasinski of Burlington Orthopaedic and Hand Surgery. According to Dr. Krasinski's notes, which include the same account of the origin of Plaintiff's injury that Plaintiff had given to his co-workers, Plaintiff had “traumatic lumbar disk herniation with contusion of the right hip.” After ordering an MRI for the purpose of further assessing Plaintiff's back injury and reviewing the results of that study, Dr. Krasinski referred Plaintiff for pain management.
On 20 October 2010, Plaintiff began treating with Dr. Gregory H. Crisp, a board-certified pain management specialist. Dr. Crisp noted that Plaintiff had severe muscle spasms. According to Dr. Crisp, muscle spasms, which are involuntary, provide an objective indication of a patient's condition. Dr. Crisp referred Plaintiff for a surgical evaluation.
On 24 November 2011, Plaintiff was evaluated by Dr. James C. Califf, an expert in orthopedic medicine, who concluded that Plaintiff's pain was caused by an L4–L5 disc bulge and impingement. Based upon these findings and the fact that conservative care had proven ineffective, Dr. Califf recommended surgical intervention. On 2 December 2010, Plaintiff underwent a right L4–5 microdiskectomy and partial hemilaminotomy. After the surgical procedure, Plaintiff followed up with Dr. Califf on a regular basis. On 30 March 2011, Dr. Califf approved Plaintiff for sedentary duty.
According to Mr. Cox, the Cox Toyota video surveillance system had been in operation for a week as of 8 September 2010. During that time, Defendant Cox Toyota had not experienced any problems with the system. After learning that Plaintiff claimed to have suffered a work-related injury by accident on 8 September 2010, Mr. Cox reviewed the surveillance video for that morning and transferred its contents to several DVDs. In addition, Defendants offered the testimony of an expert in digital forensics, Giovanni Masucci, who stated that there was no evidence that the recordings had been tampered with or altered. Defendants acknowledged, however, that there appeared to be a three second gap in the recording which might have coincided with the time at which Plaintiff claimed to have fallen.
On 15 September 2010, Defendants filed a Form 19 in which they reported Plaintiff's alleged injury to the Commission. On 20 September 2010, Plaintiff filed a Form 18 in which he reported his accident and made a claim for workers' compensation benefits. On 30 September 2010, Defendants filed a Form 61 in which they denied Plaintiff's claim on the grounds that Plaintiff had not suffered an injury by accident. On 27 October 2010, Plaintiff filed a Form 33 requesting that his claim be set for hearing.
A hearing was held before Deputy Commissioner Phillip A. Holmes on 25 February 2011. On 12 August 2011, Deputy Commissioner Holmes issued an order denying Plaintiff's claim for workers' compensation benefits. Although Deputy Commissioner Holmes acknowledged that Plaintiff had “testified that he suffered an injury by accident,” he found that Plaintiff's “testimony can neither be accepted as credible or convincing” and also discounted the testimony of medical witnesses such as P.A. Smith, Dr. Crisp, and Dr. Krasinski on the grounds that the “medical providers gave expert medical opinions based on the facts as presented to them by” Plaintiff and “that the facts presented to medical providers by plaintiff were not credible.” Deputy Commissioner Holmes reached the conclusion that Plaintiff was not credible on the grounds that the “video obtained by the security system at Cox Toyota Scion on September 8, 2010 does not corroborate plaintiff's account of events.” Plaintiff noted an appeal from Deputy Commissioner Holmes' order to the Commission, which heard Plaintiff's case on 10 January 2012.
On 15 March 2012, the Commission entered an order in which it reversed Deputy Commissioner Holmes' decision and awarded medical and disability benefits to Plaintiff. In making this decision, the Commission determined that:
Plaintiff argued both in his Brief to the Full Commission, and at oral argument ... that Deputy Commissioner Holmes erred by admitting defendants' Exhibit # 1, a DVD ... into evidence. Defendants responded to plaintiff's argument in both their Full Commission Brief and at oral argument[.] The Full Commission concludes that the proper foundation and authentication required to admit defendants' Exhibits # 1, 2, and 3, [was] not properly laid and therefore it is ORDERED that defendants' Exhibits # 1, 2, and 3, DVDs ... are inadmissible and are removed from the record .... [and] that any and all testimony and evidence regarding the contents of defendants' Exhibits # 1, 2, and 3 ... is hereby stricken from the record.
Defendants noted an appeal to this Court from the Commission's order.
. Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) () (other citation omitted). “The 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) (citing Grantham v. R.G. Barry Corp., 127 N.C.App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. rev. denied,347 N.C. 671, 500 S.E.2d 86 (1998)).
As an initial matter, Defendants argue that, because he did not object to the admission of Defendants' Exhibit Nos. 1, 2 and 3 at the hearing conducted before Deputy Commissioner Holmes, ...
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