Brinn v. Weyerhaeuser Co.

• Decision Date: 04 January 2011
• Docket Number: No. 821807,NO. COA09-1671,COA09-1671,821807
• Court: North Carolina Court of Appeals
• Parties: BURL E. BRINN, JR., Employee, Plaintiff, v. WEYERHAEUSER COMPANY, Employer, (Self-Insured), Defendant,

BURL E. BRINN, JR., Employee, Plaintiff,

v.WEYERHAEUSER COMPANY, Employer, (Self-Insured), Defendant,

NO. COA09-1671

No. 821807

NORTH CAROLINA COURT OF APPEALS

Filed: January 4, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Appeal by plaintiff from order of the Full Commission of the North Carolina Industrial Commission entered 22 June 2009 by Commissioner Laura Kranifeld Mavretic. Heard in the Court of Appeals 10 June 2010.

Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff-appellant.

Teague Campbell Dennis & Gorham, L.L.P., by J. Matthew Little, for defendant-appellee.

JACKSON, Judge.

Burl E. Brinn, Jr. ("plaintiff") appeals the 22 June 2009 order from the Full Commission of the North Carolina Industrial Commission ("Commission") order stating that, were it not divested of jurisdiction pending plaintiff's prior appeal to this Court, itwould be inclined to deny plaintiff's motion for relief from judgment. For the reasons stated herein, we affirm.

On 11 March 1998, plaintiff, who was working for Weyerhaeuser Company ("defendant"), suffered a compensable back injury. Over the next six years, numerous physicians and other healthcare providers saw plaintiff for his injuries. At some point, defendant became concerned that plaintiff was not cooperating with attempts to rehabilitate him. Plaintiff and defendant entered into a consent order on 15 November 2002. The consent order required, inter alia, that plaintiff cooperate with vocational rehabilitation efforts and follow the work restrictions recommended by one of the physicians whom plaintiff had seen previously. On or about 17 March 2004, a deputy commissioner ordered plaintiff to undergo a functional capacity evaluation ("FCE") and to discontinue vocational rehabilitation; defendant was to continue to pay disability benefits.

On 22 April 2004, plaintiff attempted to complete an FCE. He completed tasks one through nine without experiencing any major problems. However, at the completion of a sitting tolerance exam that lasted five minutes, plaintiff began to complain of severe pain and lightheadedness. After receiving a glass of water, plaintiff began to cry uncontrollably. Plaintiff then went to Pitt County Memorial Hospital via ambulance. Once he arrived in the emergency room, plaintiff created a scene by banging on doors, yelling, screaming, and lying on the floor. When hospital staff administered an IV that contained saline solution, plaintiffstated, "I can feel that morphine[;] my whole body is feeling better."

On 26 February 2008, a deputy commissioner issued an opinion and award finding in favor of plaintiff. Defendant then filed a notice of appeal to the Commission on or about 4 March 2008. On 18 November 2008, the Commission reversed the deputy commissioner on the merits of the case and suspended plaintiff's disability benefits. Plaintiff appealed the Commission's opinion and award to this Court.

While that case was pending, Dr. Moira Artigues conducted an interview and psychiatric evaluation of plaintiff on 25 February 2009. Dr. Artigues assessed plaintiff with several disorders, the most relevant of which is conversion disorder. According to Dr. Artigues, "[t]he symptoms [experienced by a person with conversion disorder] are not intentionally produced or feigned. The symptoms are not fully explained by a neurological or other general medical condition, by the direct effects of a substance, or as a culturally sanctioned behavior or experience." In Dr. Artigues's opinion, plaintiff "expresses his psychological distress through physical manifestations, which may be more culturally acceptable to him. However, this 'conversion' occurs on an unconscious level."

Plaintiff also attempted another FCE on 6 March 2009. When he arrived for the FCE, plaintiff reported that he was nervous. During pre-test monitoring, plaintiff's heart rate and blood pressure remained elevated for sixty minutes. Plaintiff's heart rate and blood pressure "exceed[ed] guidelines for safeadministration of the... FCE." Therefore, the FCE was not administered. The FCE therapist commented that he would need clearance from plaintiff's treating physician prior to another FCE "with clear direction as to the acceptable level of [blood pressure] and [heart rate]." The therapist further recommended that plaintiff use an anti-anxiety medication prior to attempting an FCE again.

On or about 28 April 2009, plaintiff filed a motion for relief from judgment based upon the "new evidence" of the 25 February 2009 psychiatric evaluation and the FCE that was attempted on 6 March 2009. According to plaintiff, "[t]he newly discovered evidence, which was obtained pursuant to the Commission's Order of November 18, 2008, clearly demonstrates that the [p]laintiff was not a malingerer or willfully failing to comply with any order." On 22 June 2009, the Commission indicated that, were it not divested of jurisdiction based upon plaintiff's prior appeal to this Court, it would deny plaintiff's motion for relief. In support of its conclusion, the Commission found that

[t]he grounds for plaintiff's motion are records from an FCE and psychiatric examination of plaintiff, both of which were done in 2009 after issuance of the Full Commission Opinion and Award. These records do not constitute newly discovered evidence pursuant to N.C. Gen. Stat. §1A-1, Rule 60(b)(2). Additionally, plaintiff fails to submit sufficient reasons to justify relief from operation of the decision pursuant to N.C. Gen. Stat. §1A-1, Rule 60(b)(6).

Plaintiff appeals.¹

Plaintiff first argues that the Commission erred in denying his motion for relief because it improperly disregarded new evidence. We disagree.

Our review of a decision of the Commission normally is limited to "(1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings of fact justify its legal conclusions." Moore v. Davis Auto Service, 118 N.C. App. 624, 627, 456 S.E.2d 847, 850 (1995) (citing Watkins v. City of Asheville, 99 N.C. App. 302, 303, 392 S.E.2d 754, 756, disc. rev. denied, 327 N.C. 488, 397 S.E.2d 238 (1990)). However, when we review the Commission's decision — which is analogous to a trial court's decision pursuant to North Carolina General Statutes, section 1A-1, Rule 60(b) — we employ an abuse of discretion analysis. See Hogan v. Cone Mills Corp., 94 N.C. App. 640, 647, 381 S.E.2d 151, 154 (1989) (applying an abuse of discretion standard to a review of the Industrial Commission's determination, which is analogous to a trial court's Rule 60(b) determination), rev'd on other grounds, 326 N.C. 476, 390 S.E.2d 136 (1990).

North Carolina General Statutes, section 1A-1, Rule 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

....

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

....

(6) Any other reason justifying relief from the operation of the judgment.

... This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court....

N.C. Gen. Stat. § 1A-1, Rule 60(b) (2007).

The party requesting relief from judgment bears the burden to rebut the presumption that the initial order was correct. Brown v. Sheets, 197 N.C. 268, 273, 148 S.E. 233, 236 (1929) (quoting Johnson v. R.R., 163 N.C. 431, 453, 79 S.E. 690, 699 (1913)). That party must show:

"(1) [t]hat the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material and relevant; (4) that due diligence has been used and the means employed, or that there has been no laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail[.]"

Id. at 273-74, 148 S.E. at 236 (quoting Johnson v. R.R., 163 N.C. 431, 453, 79 S.E. 690, 699 (1913)).

Evidence is considered to be newly discovered only if it is "'such that it could not have been obtained in time for the original proceeding through the exercise of due diligence.'" Parks v. Green, 153 N.C. App. 405, 412, 571 S.E.2d 14, 19 (2002) (quoting Waldrop v. Young, 104 N.C. App. 2 94, 2 97, 408 S.E.2d 883, 884 (1991)). In addition, it "must have been in existence at the time of the trial." Id. (citing Grupen v. Furniture Industries, 28 N.C. App. 119, 121, 220 S.E.2d 201, 202 (1975), disc. rev. denied, 289 N.C. 297, 222 S.E.2d 696 (1976)). "'This limitation on newly discovered evidence has been justified on the firm policy ground that, if the situation were otherwise, litigation would never come to an end.'" Id. (quoting Cole v. Cole, 90 N.C. App. 724, 728, 370 S.E.2d 272, 274, disc. rev. denied, 323 N.C. 475, 373 S.E.2d 862 (1988)).

We have held that an additional medical evaluation does not constitute newly discovered evidence in a workers' compensation case. See, e.g., Grupen v. Furniture Industries, 28 N.C. App. 119, 121, 220 S.E.2d 201, 202 (1975) (A doctor evaluated plaintiff almost two years after the workers' compensation hearing and submitted an affidavit containing his opinion that plaintiff's compensable injury was permanent. We held that this evaluation did not constitute newly discovered evidence based upon several prior cases that came to similar conclusions.), disc. rev. denied, 289 N.C. 297, 222 S.E.2d 696 (1976...