Haponski v. Constructor's Inc., 8610IC1124

• Decision Date: 15 September 1987
• Docket Number: No. 8610IC1124,8610IC1124
• Citation: 87 N.C.App. 95,360 S.E.2d 109
• Parties: Edward L. HAPONSKI, Employee, Plaintiff, v. CONSTRUCTOR'S INC., Employer, v. IOWA NATIONAL MUTUAL INS. CO., Carrier, Defendants.
• Court: North Carolina Court of Appeals

Page 109

360 S.E.2d 109

87 N.C.App. 95

Edward L. HAPONSKI, Employee, Plaintiff, v. CONSTRUCTOR'S INC., Employer, v. IOWA NATIONAL MUTUAL INS. CO., Carrier, Defendants.

No. 8610IC1124.

Court of Appeals of North Carolina.

Sept. 15, 1987.

Russ, Worth & Cheatwood by Walker Y. Worth, Jr., Fayetteville, for defendants-appellants.

Smith, Patterson, Follin, Curtis, James & Harkavy by Henry N. Patterson Jr., and Jonathan R. Harkavy, Raleigh, for plaintiff-appellee.

GREENE, Judge.

Our review of the Commission's award is limited to determining whether any competent evidence supported the Commission's findings and whether such findings are legally sufficient to support the Commission's conclusions of law. McLean v. Roadway Express, Inc., 307 N.C. 99, 102, 296 S.E.2d 456, 459 (1982). The instant case specifically presents the following issues for review: (I) whether any competent evidence supported the Commission's findings (A) where expert testimony on the cause of plaintiff's depression and reduced work capacity was elicited in response to allegedly improper hypothetical questions, and (B) where such testimony was allegedly too uncertain or speculative to support the Commission's findings; and (II) whether the Commission's findings support its conclusion that, under Section 97-47, plaintiff underwent a significant change of condition which was caused by his October 1980 injury.

Strictly speaking, the rules of evidence applicable in our general courts do not govern the Commission's own administrative fact-finding. Compare N.C.G.S. Sec. 8C-1, Rule 1101 (1986) (rules of evidence apply to all proceedings in "courts of this state") with N.C.G.S. Sec. 97-80(a) (1985) (Commission processes and procedures shall be "as summary and simple as reasonably may be"); see also Tindall v. American Furniture Co., 216 N.C. 306, 310, 4 S.E.2d 894, 896 (1939) (findings not overturned simply because some evidence offends courtroom rules of evidence); Maley v. Thomasville Furniture Co., 214 N.C. 589, 594, 200 S.E. 438, 441 (1938) (Commission need not conform to court procedure unless required by statute or to preserve justice and due process). However, in determining on review whether any "competent" evidence supports the Commission's findings, we must by definition apply those courtroom evidentiary rules and principles which embody the legal concept of "competence." See, e.g., Thompson v. Lenoir Transfer Co., 72 N.C.App. 348, 350, 324 S.E.2d 619, 620-21 (1985) (citing N.C.G.S. Sec. 8C-1, Rules 703 and 705 as basis for concluding expert opinion based on prior testimony was admissible and competent in Commission case); but cf. 3 A. Larson, Workmen's Compensation Law Secs. 79.23-24 (1983) (criticizing this "legal residuum" standard of review).

I

In determining whether any competent evidence supports the Commission's findings, we note the following disputed findings:

4. On 6 April 1983, plaintiff did seek psychiatric help. At this time, plaintiff had depression secondary to pain. He experienced problems sleeping, cried for no reason, and lost weight. In addition, he had a low libido, a poor memory, and very little energy.

5. From 6 April 1983 until 16 July 1984 when plaintiff returned to work, plaintiff was unable to work. This was due to psychiatric problems which worsened after the previous hearings in this matter, and these problems constituted a change in condition.

We also note that the Commission's "Conclusion of Law" Number "1" states plaintiff's psychiatric problems "were caused by his 20 October 1980 injury by accident...." As determining the cause of plaintiff's psychiatric problems is a mixed question of law and fact, the Commission's designations of "findings" and "conclusions" are not binding on this court. See Brown v. Charlotte-Mecklenburg Board of Education, 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967). Therefore, we will here examine the competency of any causation evidence and later analyze whether that evidence is legally sufficient to conclude plaintiff's October 1980 injury caused his depression.

Our review of evidence supporting these findings reveals that plaintiff's psychiatrist, Dr. Maltbie, testified he first saw plaintiff on 6 April 1983 and diagnosed certain symptoms of depression. Plaintiff's counsel then asked Dr. Maltbie several long hypothetical questions about the cause and progress of plaintiff's depression and its effect on his earning capacity. In the course of these questions, counsel asked Dr. Maltbie to assume, among other things, that "following January 12, 1983 [the date plaintiff's original claim was heard] ..., [plaintiff] bec[a]me more depressed, as he has testified ..." [emphasis added]. Counsel also asked Dr. Maltbie to assume the findings of a "New Orthopedic Note" drafted in December 1982 by Dr. Harrelson, an attending orthopedic surgeon, in which Dr. Harrelson noted plaintiff's "chronic pain."

Counsel then asked Dr. Maltbie whether "there was a substantial deterioration in [the] psychological or emotional component of [plaintiff's] October 20, 1980 injury, from January 13 [sic], 1983 through the date you first saw him on April 6, 1983." Dr. Maltbie responded:

Yeah, based on these facts, I would say that he did certainly get depressed. He was depressed when I saw him. If he was not before, then he must have gotten depressed since that time [i.e., since the 12 January 1983 hearing on plaintiff's original back injury].

Based on the same hypothetical assumptions, counsel then asked Dr. Maltbie the following questions:

Q. Did the deterioration in the nature of the severity of the depression substantially reduce further whatever capacity that [plaintiff] had in January 1983 to work and earn wages?

* * *

A. Yes, sir.

* * *

Q. Do you have an opinion as to whether or not the depressive condition you have diagnosed, beginning at least in April 1983, was caused by the physical injury on ... October 20, 1980 and the pain and impairment that the Industrial Commission ... found ... resulted from that injury?

A. I do believe the depression is secondary to the pain which is secondary to the injury.

A

As Dr. Maltbie had no direct personal knowledge of plaintiff's condition prior to the 6 April 1983 visit, defendants first argue the question whether plaintiff's psychological condition deteriorated after January 1983 assumed plaintiff became more depressed after January 1983. Defendants assert the question therefore sought to establish a critical fact not in evidence and improperly assumed its own conclusion. Cf. Goble v. Helms, 64 N.C.App. 439, 444, 307 S.E.2d 807, 811, disc. rev. denied, 310 N.C. 625, 315 S.E.2d 690 (1984) (hypothetical question should not assume facts sought to be established).

Although hypothetical questions are no longer required to elicit expert opinion under Rule 705, such questions are nevertheless permitted. An interrogator may form his hypothetical question on any theory which can be deduced from the evidence and may select as a predicate such facts as the evidence reasonably tends to prove. Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 243, 311 S.E.2d 559, 570 (1984). Whether the expert's opinion is elicited by hypothetical or direct questioning, the opinion need not be based solely on the expert's personal knowledge. See Booker v. Duke Medical Center, 297 N.C. 458, 478-79, 256 S.E.2d 189, 202 (1979) (in response to hypothetical question, doctor could base opinion on plaintiff's prior testimony and medical history obtained from plaintiff or from other treating physician); Thompson, 72 N.C.App. at 350, 324 S.E.2d at 621 (expert's personal knowledge of plaintiff's state of mind deemed irrelevant under Rules 703 and 705 since basis for opinion available in record or upon demand).

Prior to these hypothetical questions, Dr. Maltbie had recounted how plaintiff described his post-January 1983 physical symptoms during plaintiff's initial interview in April 1983. Furthermore, plaintiff had himself previously testified without objection that he became "more depressed" between "the last hearing on January 12, 1983," and the time plaintiff was "first seen" on 6 April 1983. As defendants have not challenged the competency of plaintiff's testimony, plaintiff's testimony must be deemed competent. See McHargue v. Burlington Indus., 78 N.C.App. 324, 332 n. 1, 337 S.E.2d 584, 588 n. 1 (1985). Under Booker, plaintiff's statements made to Dr. Maltbie for treatment and his own prior testimony reasonably tended to prove the fact of plaintiff's depression after 12 January 1983. Therefore, counsel's hypothetical question could assume that fact for the purpose of eliciting Dr. Maltbie's opinion. See Ballenger v. ITT Grinnell Indus. Piping, Inc., 80 N.C.App. 393, 399-400, 342 S.E.2d 582, 587, aff'd in part and rev'd in part on rehearing, 83 N.C.App. 55, 348 S.E.2d 814, modified and aff'd, 320 N.C. 155, 357 S.E.2d 683 (1987) (Court of Appeals discusses requirements for hypothetical assumptions after new evidence code).

We recognize the question whether plaintiff's "psychological or emotional component" deteriorated after January, 1983, directed Dr. Maltbie to assume, among other things, plaintiff's testimony that he became "more depressed" after January 1983. Dr. Maltbie answered, "Based on these facts, I would say [plaintiff] did certainly get depressed." The question does not illogically assume its answer: Dr. Maltbie's medical opinion of plaintiff's alleged psychological or emotional deterioration after January 1983 was simply based in part on plaintiff's own testimony as well as plaintiff's direct complaints during the April 1983 interview. Dr. Maltbie's opinion was not identical to plaintiff's testimony, but was instead partially based upon it.

Defendants' objection to Dr. Maltbie's assuming the findings of Dr. Harrelson's note is similarly premised on the erroneous notion Dr. Maltbie's opinion could only be based on personal knowledge. As the result of his...