Farlow v. North Carolina State Bd. of Chiropractic Examiners

• Decision Date: 06 August 1985
• Docket Number: No. 8410SC986,8410SC986
• Citation: 76 N.C.App. 202,332 S.E.2d 696
• Parties: David O. FARLOW, D.C. v. NORTH CAROLINA STATE BOARD OF CHIROPRACTIC EXAMINERS.
• Court: North Carolina Court of Appeals

Page 696

332 S.E.2d 696

76 N.C.App. 202

David O. FARLOW, D.C. v. NORTH CAROLINA STATE BOARD OF CHIROPRACTIC EXAMINERS.

No. 8410SC986.

Court of Appeals of North Carolina.

Aug. 6, 1985.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith and Davison M. Douglas, Greensboro, for petitioner appellant.

Harrington & Stultz by J. Hoyte Stultz, Jr., Eden, for respondent appellee.

WEBB, Judge.

In his first assignment of error the appellant argues that certain findings of fact were not supported by substantial competent evidence in view of the entire record. The Board found as a fact that the appellant requested insurance information prior to seeing Ms. Byerly and her two children. The appellant contends this finding of fact is not supported by the evidence. Ms. Byerly testified that before Dr. Farlow treated her he asked about her insurance. When she told him she had Blue Cross and Blue Shield and gave him the name of the insurance company of the driver of the vehicle that struck her:

He said--all right. Say my bill is--say you've got $1,000.00 on your medical--on my car insurance. He says, "So there's $1,000.00 you can get," plus if I turn in a thousand dollar bill--all right--the other insurance company is going to pay a thousand. If Blue Cross and Blue Shield pays 80 percent--all right--that's $2,800.00. You make eighteen; I make a thousand.

We believe this evidence supports this finding of fact. Although it is true the Board said the appellant requested insurance information prior to seeing Ms. Byerly we believe it is clear that it intended that he requested the information prior to treating her. The appellant was not prejudiced because the Board used the word "seeing."

The Board made a finding of fact that appellant told Ms. Byerly that she could collect $1,800.00 and he would receive $1,000.00. The appellant contends the evidence on this point was in conflict and the testimony of Ms. Byerly was not credible. The credibility of Ms. Byerly was for the Board. The fact that there was a conflict in the evidence on this point does not mean Ms. Byerly's testimony does not support this finding of fact.

The Board found as a fact that Dr. Farlow set up a plan of treatment for the three patients extending over a period of six weeks, twice a day for two days, once a day for twenty-six days and every other day for twelve days. The appellant contends this finding is inaccurate, incomplete and misleading. He argues that he testified that the treatment plan was only a tentative one. Ms. Byerly testified that was the treatment plan given to her by Dr. Farlow and the Board accepted her testimony as was its prerogative.

The Board found as a fact that the appellant told Ms. Byerly that the schedule would make the injuries "look worse" and that by the end of the following month the insurance company would be "pushing for a settlement." The appellant denied this testimony and he contends that Ms. Byerly's testimony was unbelievable. As we have said, the credibility of Ms. Byerly was for the Board to determine.

The Board found as a fact that the appellant did not ascertain where the passengers were situated in the vehicle that was involved in the collision. He contends this finding was erroneous and is in conflict with two exhibits he introduced. These two exhibits were accidental injury report forms dated 17 March 1982 and showed where the two passengers were sitting in the vehicle. Ms. Byerly testified that the appellant did not ascertain where the passengers were located in the vehicle at the time of the accident. The Board no more had to accept the exhibits as credible than it did the testimony of appellant.

The Board found as a fact that the appellant's diagnosis of all three patients was exactly the same for each patient. The appellant contends this is error because the record shows the diagnosis for each patient was different. The appellant is correct in this argument. We do not believe this was prejudicial error, however. There were other facts found based on competent evidence which would support the conclusion of the Board. The evidence shows the diagnosis of all three patients was very similar.

The Board found as a fact that the appellant's written diagnosis includes chest pain and lower back pain, which symptoms the patients never reported but which the appellant said would appear in several days. Ms. Byerly testified to this which would support this finding of fact.

The Board found as a fact that at the time appellant's treatment plan was formulated there had been no positive x-ray. The appellant contends that this finding is misleading because the treatment plan was tentative. As we have said the Board did not accept the appellant's testimony that the plan was tentative.

The Board found as a fact that at the time Dr. Farlow formulated his plan of treatment, he had no positive findings either from examinations nor patients complaints upon which to have a long range treatment plan. Ms. Byerly testified that on her first visit the appellant gave her a schedule for a treatment plan for her and the three children. Each of them was x-rayed but according to her testimony he told her the plan was formulated to make her injuries and the injuries of the children "look worse" rather than for medical reasons. We believe this testimony supports the finding of fact.

The Board found that the patients' complaints and findings upon examination support a diagnosis of simple or moderate muscle strain which would be self-limiting requiring minimal therapeutic utilization. Ms. Byerly testified the accident occurred on Wednesday and she went to the appellant on that day. She and her children returned on Thursday and she saw a medical doctor on Friday. The medical doctor put her in the hospital for one night. The difficulties she and the children had with their necks and back were gone by Saturday. This testimony supports this finding of fact.

The Board concluded that there was no medical justification for appellant's treatment of his three patients, and that his treatment constituted overutilization and planned gross overutilization of chiropractic services. The appellant contends that he was the only medical expert who testified. He argues that there was no evidence to support this conclusion. He relies on Warren v. Canal Industries, 61 N.C.App. 211, 300 S.E.2d 557 (1983); Nelson v. Patrick, 58 N.C.App. 546, 293 S.E.2d 829 (1982); Powell v. Shull, 58 N.C.App. 68, 293 S.E.2d 259 disc. rev. denied, 306 N.C. 743, 295 S.E.2d 479 (1982); Ballance v. Wentz, 22 N.C.App. 363, 206 S.E.2d 734, aff'd, 286 N.C. 294, 210 S.E.2d 390 (1974) for the proposition that expert testimony is required to prove a departure from applicable standards of care in actions against health care providers. The cases cited by the appellant are civil actions tried before a jury. Expert testimony is required in order for laymen to reach a verdict. In this case the fact finders are experts. They can form opinions based on the evidence. The evidence and the facts found support the conclusion they reached.

The appellant's first assignment of error is overruled.

The appellant next contends that it was error for the Superior Court to affirm the order of the Board because the Board's decision was not timely made. The applicable regulation, 21 N.C.A.C. § 10.0707(a), contains a provision that a decision of the Board "must be rendered within 90 days after the hearing." The Board's decision was issued 127 days after the hearing. The appellant argues that the decision of the Board is null and void. He relies on Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974); Snow v. Board of Architecture, 273 N.C. 559, 160 S.E.2d 719 (1968); In re Trulove, 54 N.C.App. 218, 282 S.E.2d 544 (1981), disc. rev. denied, 304 N.C. 727, 288 S.E.2d 808 (1982), and Parrish v. Real Estate Licensing Board, 41 N.C.App. 102, 254 S.E.2d 268 (1979). None of the cases involve an administrative board's failure to follow its own rules. Trulove and Parrish are cases in which an administrative board did not comply with a statute. In Snow our Supreme Court said that an administrative board "loses its authority to render a decision at the expiration of 90 days from the date of hearing and an order entered thereafter is a nullity." This statement was based on G.S. 150-20 which has since been repealed. Refining Co. deals with a municipal ordinance. In that case our Supreme Court quoted from 2 Am.Jur.2d Administrative Law § 350 (1962) which says:

Procedural rules are binding upon the agency which enacts them as well as upon the public of the agency, and the agency does not, as a general rule, have the discretion to waive, suspend, or disregard in a particular case a validly adopted rule so long as such rule remains in force.

The parties have not cited in their briefs and we have not found a North Carolina case which deals with the power of an administrative agency not to follow its own rules. There have been cases in the federal courts dealing with this question. See American Farm Lines v. Black Ball Freight, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); and United States v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). We believe the rule from these cases is that a party has the right to require an administrative agency to follow its own rules if its failure to do so would result in a substantial chance that there would be a different result from what the result would be if the rule were followed. This insures that those who appear before a board will be treated equally. We believe this rationale is sound.

In this case the result was not changed because the Board did not follow its own rule. We do not believe it was prejudicial error for the Board not to do so. The appellant's second assignment of...