Haithcox v. Flynt Amtex, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: MARTIN
• Citation: Haithcox v. Flynt Amtex, Inc., 729 S.E.2d 732 (N.C. App. 2012)
• Decision Date: 07 August 2012
• Docket Number: No. COA11–1568.,COA11–1568.
• Parties: Julia Ann HAITHCOX, Employee, Plaintiff, v. FLYNT AMTEX, INC., Employer, Penn National Insurance Company, Carrier, Defendants.

729 S.E.2d 732

Julia Ann HAITHCOX, Employee, Plaintiff,

v.FLYNT AMTEX, INC., Employer, Penn National Insurance Company, Carrier, Defendants.

No. COA11–1568.

Court of Appeals of North Carolina.

Aug. 7, 2012.

Appeal by plaintiff from opinion and award entered 4 August 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 21 May 2012.

Pamela W. Foster, for plaintiff-appellant.

Cranfill Sumner & Hartzog LLP, by J. Gregory Newton and Ashley Baker White, for defendants-appellees.

MARTIN, Chief Judge.

On 6 June 2008, employee-plaintiff Julia Haithcox sustained an admittedly compensable left knee injury at work. Plaintiff slipped on a spot of oil on the floor and fell, twisting her left knee and hitting her upper back on a machine. At the time of her injury, plaintiff had been employed as a knitter at Flynt Amtex, Inc. (Flynt) for about eight months, although she had previously performed temporary work for Flynt.

The day of plaintiff's injury, Flynt completed a Form 19, Employer's Report of Employee's Injury, reporting that plaintiff suffered a “StrainLeft [sic] knee.” Flynt paid compensation to plaintiff without contesting the claim within the statutory period provided under N.C.G.S. § 97–18(d).

Later, plaintiff filed a Form 18, Notice of Accident to Employer and Claim of Employee, dated 25 June 2009, reporting she had “slipped on a puddle of oil and fell, injuring her left knee, back and neck.” (Emphasis added.) Thereafter, on 23 November 2009, Flynt and Penn National Insurance Company (defendants) submitted a Form 24, Application to Terminate or Suspend Payment of Compensation. Plaintiff submitted a response dated 21 December 2009, and a deputy commissioner filed an order on 19 January 2010 disapproving defendants' Form 24 application.

Subsequently, defendants filed a Form 33, Request that Claim be Assigned for Hearing. After a hearing, Deputy Commissioner J. Brad Donovan filed an opinion and award on 28 January 2011 awarding plaintiff temporary total disability compensation for the period from 1 July 2008 through 7 October 2008 and ordering defendants to pay past and future medical expenses regarding plaintiff's compensable left knee injury.

Plaintiff appealed to the Full Commission. In August 2011, the Full Commission adopted, in large part, the opinion and award of the Deputy Commissioner but also ordered defendants to pay temporary total disability compensation to plaintiff through 11 September 2009.

The following chronology of plaintiff's medical history following the compensable injury is from the unchallenged findings in the Commission's opinion and award. Following her 6 June 2008 injury, plaintiff worked the remainder of her shift. She did not list a back injury on the accident report. Plaintiff was evaluated by Dr. Seema Bhotika after work that day. Dr. Bhotika testified that plaintiff reported only a left knee injury.

On 1 July 2008, plaintiff was evaluated by Dr. Edouard Armour, an orthopedic surgeon. Dr. Armour diagnosed left knee internal derangement and ordered an MRI. The results of the MRI were normal. Dr. Armour recommended arthroscopic surgery based on plaintiff's complaints of knee pain and wrote plaintiff out of work. On 7 August 2008, plaintiff received a second opinion from Dr. Stephen Lucey regarding surgery. Dr. Lucey also diagnosed left knee internal derangement and concurred in Dr. Armour's recommendation for a diagnostic arthroscopy.

On 3 September 2008, Dr. Lucey performed left knee arthroscopic surgery on plaintiff. During the surgery, the only pathologic finding in the knee was a large plica. “Plica is a normal shelf of tissue in the lining of a knee joint that can become enlarged and painful following trauma.” Dr. Lucey removed the plica and noted there was no arthritis or other abnormality in the knee.

By 7 October 2008, Dr. Lucey was of the opinion that plaintiff might be malingering because he was “very confident” her knee had complete structural integrity. By March 2009, Dr. Lucey was diagnosing “recalcitrant pain of unknown etiology.” Dr. Lucey referred plaintiff for an evaluation of her back to determine if it was the source of her ongoing knee complaints.

Meanwhile, on 20 November 2008, plaintiff was seen by Dr. Mark Phillips, an expert in pain management. Dr. Phillips testified that although plaintiff reported chronic knee pain, she did not exhibit any swelling, erythema, instability, or significant tenderness upon examination. He testified that plaintiff did not report thoracic back pain to him or to his assistant until 5 June 2009. Dr. Phillips conducted MRI scans of plaintiff's lumbar, thoracic, and cervical spine. The lumbar results showed only minimal arthritis consistent with what would be expected of someone of plaintiff's age. The thoracic MRI was negative, and the cervical MRI showed “disc protrusions and spondylosis at C5–6 and C6–7.” Dr. Phillips discharged plaintiff from his care on 19 June 2009 and recommended that she stay out of work and continue pain management treatment.

On 11 September 2009, plaintiff was seen by Dr. Max Cohen, an orthopedic surgeon specializing in treatment of the spine. Dr. Cohen found no objective physiologic explanation for plaintiff's complaints of pain. He felt her complaints were exaggerated and indicated symptom magnification. Dr. Cohen ordered a Functional Capacity Evaluation. The results of the evaluation were invalid in twelve out of twelve categories tested. On 11 September 2009, Dr. Cohen released plaintiff to return to work full duty without restrictions and assigned a five percent permanent partial disability rating to her left leg.

On 22 January 2010, plaintiff saw Dr. Gary Poehling, who based his diagnosis of complex regional pain syndrome solely on plaintiff's subjective complaints. He testified that he would not give her any work restrictions but did say he did not think plaintiff could return to work because of her psychological problems.

On 4 April 2010, plaintiff saw Dr. Charles Burnett, a clinical psychologist with expertise in functional gastrointestinal disorders. Dr. Burnett diagnosed plaintiff with major depression and a personality disorder. He determined that the 6 June 2008 injury did not aggravate or exacerbate this disorder but that it did significantly contribute to the development of plaintiff's major depression. Dr. Burnett testified that based on plaintiff's subjective complaints, he did not think she could return to work. He noted that an individual with plaintiff's psychological symptoms is more likely to intentionally feign physical symptoms and that plaintiff had engaged in behavior consistent with malingering.

On 4 May 2010, pain management expert Dr. Hans Hansen examined plaintiff, who had been referred to him by Dr. Cohen, for regional pain syndrome. The results of his examination indicated exaggerated pain behaviors, and the results of the bone scan he ordered came back normal, ruling out complex regional pain syndrome.

On 19 May 2010, forensic psychologist Edward Landis evaluated plaintiff. He diagnosed plaintiff with personality disorders and an adjustment disorder and testified that he did not think they were causally related to the 6 June 2008 injury.

On 28 May 2010, forensic psychiatrist Dr. Moira Artigues evaluated plaintiff. Dr. Artigues diagnosed plaintiff with a severe personality disorder and testified that plaintiff could not be diagnosed with major depressive disorder because it could not be diagnosed in the context of plaintiff's ongoing substance abuse, but that plaintiff did not meet the criteria for major depression. Dr. Artigues said malingering was a possibility and concluded that plaintiff had “feigned a pain disorder to meet some dependency needs which are characteristic of her lifelong personality disorder” and that this disorder was neither caused, aggravated nor accelerated by the 6 June 2008 injury.

Plaintiff appeals the Commission's opinion and award. Additional findings and conclusions will be discussed where they are relevant to the issues plaintiff brings forward on appeal.

_________________________

This Court reviews an opinion and award of the Industrial Commission to determine: “(1) whether there is any competent evidence in the record to support the Commission's findings of fact; and (2) whether those findings of fact support the Commission's conclusions of law.” Hardin v. Motor Panels, Inc., 136 N.C.App. 351, 353, 524 S.E.2d 368, 371,disc. review denied,351 N.C. 473, 543 S.E.2d 488 (2000). The Commission's findings of fact are binding on appeal if they are supported by any competent evidence. Matthews v. Petroleum Tank Serv., Inc., 108 N.C.App. 259, 264, 423 S.E.2d 532, 535 (1992). These findings remain binding even if there is competent evidence that supports a contrary determination. Id. “The Commission is the sole judge of the credibility of witnesses and the weight to be given their testimony, and its determination of these issues is conclusive on appeal.” Id. “The Commission may accept or reject the testimony of a witness solely on the basis of whether it believes the witness or not.” Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). “Even contradictions in the testimony go to its weight, which is for the fact-finder to resolve.” Ballenger v. ITT Grinnell Indus. Piping, Inc., 83 N.C App. 55, 57, 348 S.E.2d 814, 815 (1986), modified and aff'd by320 N.C. 155, 357 S.E.2d 683 (1987).

I.

In the first issue presented in her appeal, plaintiff makes four arguments essentially contending the Commission erred by relying on incompetent testimony and by failing to consider competent, corroborative evidence. We disagree.

A.

Plaintiff first asserts Dr. Artigues' testimony was an incompetent basis for the Commission's findings because it was based on communications with third persons, including plaintiff's friends and family, who were not present to be cross-examined; was biased against claimants in...