Calloway v. Memorial Mission Hosp.

• Decision Date: 18 April 2000
• Docket Number: No. COA99-402.,COA99-402.
• Citation: 137 NC App. 480,528 S.E.2d 397
• Court: North Carolina Court of Appeals
• Parties: Alma Jean CALLOWAY, Employee, Plaintiff, v. MEMORIAL MISSION HOSPITAL, Employer, Specialty Insurance Services, Inc., Servicing Agent, Defendants.

528 S.E.2d 397

137 NC App. 480

Alma Jean CALLOWAY, Employee, Plaintiff, v. MEMORIAL MISSION HOSPITAL, Employer, Specialty Insurance Services, Inc., Servicing Agent, Defendants.

No. COA99-402.

Court of Appeals of North Carolina.

April 18, 2000.

Ganly Ramer Finger Strom & Fuleihan, by Thomas F. Ramer, Asheville, for plaintiff-appellee.

Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Allan R. Tarleton, Asheville, for defendant-appellants.

LEWIS, Judge.

This case falls within a growing number of cases on appeal in which the Full Commission has reversed or disregarded the Deputy Commissioner's findings and substituted its own judgment as to an employee's credibility. See, e.g., Scurlock v. Durham County Gen. Hosp., ___ N.C.App. ____, 523 S.E.2d 439 (1999)

; Toler v. Black & Decker, 134 N.C.App. 695, 518 S.E.2d 547 (1999); Sanders v. Broyhill Furniture Industries, 124 N.C.App. 637, 478 S.E.2d 223 (1996),

disc. review denied, 346 N.C. 180, 486 S.E.2d 208 (1997). Nonetheless, since our Supreme Court, in Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), interpreted N.C. Gen. Stat. § 97-85 such that the Full Commission need not give any deference, indeed consideration, to the Deputy Commissioner's credibility findings, the subject has been sharpened.

Our federal courts have long recognized the need to accord significant weight to any determinations administrative hearing officers make that are based solely on witness demeanor and credibility. See, e.g., Ryan v. Commodity Futures Trading Comm'n, 145 F.3d 910, 918 (7th Cir.1998)

("The Commission must attribute significant weight to an ALJ's findings based on a witness's demeanor because it does not have the opportunity to observe a testifying witness."); NLRB v. Stor-Rite Metal Prods., Inc., 856 F.2d 957, 964 (7th Cir.1988) ("Because only the ALJ can view the demeanor of the witnesses, any of the ALJ's findings that turn on express or implied credibility determinations take on particular significance on review."); Kopack v. NLRB, 668 F.2d 946, 953 (7th Cir.1982) ("One must attribute significant weight to an ALJ's findings based on demeanor because neither the Board nor the reviewing court has the opportunity similarly to observe the testifying witnesses."); Penasquitos Village, Inc., 565 F.2d 1074, 1078-79 (9th Cir.1977) ("Weight is given the administrative law judge's determinations of credibility for the obvious reason that he or she `sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records.'") (citation omitted).

In the workers' compensation setting, at least twelve states have now borrowed from the federal system and judicially established a requirement that places greater weight on any hearing officer's findings that hinge on credibility. 8 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, § 80.12(c)(1),(c)(2),(d) (1999 & Supp.1998). Another six states have, at least to some degree, done so statutorily. Id. § 80.12(c)(3), (5)-(9). Nonetheless, we are bound by decisions of our Supreme Court. Until either that body or the General Assembly acts, we must therefore consider the present appeal in light of Adams.

This case contains a complex and confusing web of facts involving interrelated claims of physical injuries, psychiatric problems, and alleged inappropriate employer actions. In order to untangle this web, the following rather lengthy recitation of facts is necessary.

Plaintiff worked in the materials management department of defendant Memorial Mission Hospital ("the Hospital"). Her job duties involved delivering various medical supplies to different departments throughout the Hospital. On 6 August 1996, while unloading a box of dialysis bags, plaintiff twisted her back. She subsequently checked herself in to the emergency room, complaining of pain in her upper back. At this time, she was not experiencing any pain in her lower back. The emergency room diagnosed her as having acute back pain and restricted her to light duty work. Plaintiff did not report to work the following two days and did not return to work until August 9. Upon her return, she continued to experience pain in her upper back, and she began to feel pain in her lower back as well. She went to the emergency room again, whereupon she was referred to an orthopaedist. Eventually, plaintiff came to see Dr. Eric Rhoton, a neurosurgeon. Due to plaintiff's continuing complaints of upper and lower back pain, Dr. Rhoton recommended that plaintiff undergo a lumbar MRI.

Prior to her work accident, plaintiff had been placed on probation by her employer due to excessive absenteeism and tardiness. Following her accident, plaintiff did not report to work on either August 26 or 27. These absences were unexcused. She did not show up for work again on September 3, 4, 5, or 6. Learning that she might be in trouble for not reporting to work, plaintiff visited Dr. Rhoton's office on September 6 and was given a note excusing her from work from September 4 through September 13 while Dr. Rhoton awaited authorization from defendants for the lumbar MRI he was recommending. The out-of-work note was not signed by Dr. Rhoton himself; instead his signature was just stamped on it by his office staff. In fact, plaintiff did not even see Dr. Rhoton that day.

On 10 September 1996, defendants informed Dr. Rhoton that they were denying authorization for the MRI. Defendants felt the MRI was unrelated to her work accident, given that plaintiff's initial complaints were only to her upper back and the MRI was for her lower back. Defendants, however, did not seek any clarification from Dr. Rhoton as to whether the MRI was in fact related to her injury before they denied authorization for it.

Even though plaintiff received the out-of-work note on September 6, she did not fax it to her employer (or otherwise contact her employer) until September 10, the same day defendants denied authorization for her MRI. Two days later, on September 12, the Hospital terminated plaintiff's employment. After specifically finding plaintiff to be not credible, the deputy commissioner concluded that her termination was due to continued absenteeism, in violation of her probationary status. The Full Commission disagreed, gave plaintiff the benefit of the doubt, and found her termination to be wrongful in that it was due to her work-related injury.

Following her injury and subsequent termination, plaintiff became quite depressed. Due to this acute depression and related suicidal ideations, plaintiff was admitted to Charter Hospital ("Charter") for psychiatric treatment. Prior to her work accident, plaintiff had a history of psychiatric problems, including anxiety attacks and depression. The Full Commission concluded that plaintiff's back injury and defendants' poor handling of her claim, especially their denial of authorization for her MRI, exacerbated these psychiatric problems that necessitated her treatment at Charter.

Plaintiff was discharged from Charter on 22 November 1996. With respect to her psychiatric problems, plaintiff has been able to work since that time but will require ongoing medical treatment. With respect to her physical injury in her back, Dr. Freeman Broadwell concluded that, as of 16 January 1997, plaintiff had attained maximum medical improvement. He then assigned her a three percent (3%) permanent partial disability rating. Despite her being able to work, however, plaintiff has refused to look for employment since her discharge from Charter.

Based upon these facts, the Full Commission awarded plaintiff temporary total disability compensation for the period from 13 September 1996 until 22 November 1996. The Commission then awarded her permanent partial disability for a period of nine weeks. Finally, the Commission ordered defendants to pay all of plaintiff's medical expenses, including the lumbar MRI and the cost of hospitalization at Charter, as well as any future psychiatric expenses plaintiff may incur as a result of her ongoing treatment. From this opinion and award, defendants appeal.

As alluded to earlier, our standard of review in workers' compensation cases is quite narrow. Specifically, we are limited to the consideration of two questions: (1) whether the Full Commission's findings of fact are supported by competent evidence; and (2) whether its conclusions of law are supported by those findings. Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). Under the first inquiry, the findings of fact are conclusive on appeal so long as they are supported by any competent evidence, even if other evidence would support contrary findings. Adams, 349 N.C. at 681, 509 S.E.2d at 414. Furthermore, any findings with respect to witness credibility are ultimately in the hands of the Full Commission, even though that body does not observe the witnesses or their demeanor, unless it orders a new hearing with witnesses; it did not here. Id. at 681, 509 S.E.2d at 413. Because our review of the record reveals some evidence to support the Full Commission's findings and conclusions, we must affirm its opinion and award.

At the outset, defendants argue that...