Toler v. Black and Decker

• Decision Date: 07 September 1999
• Docket Number: No. COA98-1037.,COA98-1037.
• Citation: 134 NC App. 695,518 S.E.2d 547
• Court: North Carolina Court of Appeals
• Parties: Sharon TOLER, Employee, Plaintiff, v. BLACK AND DECKER, Employer, Cigna Insurance Company, Insurer, Defendants.

518 S.E.2d 547

134 NC App. 695

Sharon TOLER, Employee, Plaintiff, v. BLACK AND DECKER, Employer, Cigna Insurance Company, Insurer, Defendants.

No. COA98-1037.

Court of Appeals of North Carolina.

September 7, 1999.

Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A., by Vickie L. Burge, Fayetteville, for plaintiff-appellee.

Teague, Campbell, Dennis & Gorham, L.L.P., by Karen K. Prather, Raleigh, for defendant-appellants.

LEWIS, Judge.

Plaintiff claims to have injured her neck on her job for defendant-employer on or about 16 August 1993, but did not report any neck injury to her supervisor or the plant nurse until 1 September 1993 at the earliest. There were no witnesses to the alleged injury. Plaintiff stated in a recorded interview that she did not start noticing problems until "just a few days later" than 16 August, when, in her words, "I had woke up and my neck [was] hurting like it was stiff like I had [a] cold in my neck." Plaintiff continued working and made no mention of any neck problems to her doctor until 8 September 1993, according to the medical records of Dr. Robert Fletcher. Dr. Fletcher referred plaintiff to Dr. Inad Atassi, a neurosurgeon. After an MRI, Dr. Atassi found a mild central disc protrusion and recommended a conservative treatment.

Plaintiff's family physician, Dr. John Blue, examined plaintiff and could make "very little objective findings" to support plaintiff's subjective complaints of neck pain; an MRI showed no disc herniation. Upon Dr. Blue's referral, Dr. Michael C. Pare examined plaintiff in November 1994 and found that "[t]he pain in her neck ha[d] pretty much disappeared." When plaintiff visited Dr. Emory Sadler for psychological evaluation on 6 February 1995, she was "not sure of the cause of her pain and ... listed weak muscles as her best guess as to what is wrong." On that same date, she indicated in an interview with Dr. Jessie Leak that she "realize[d] that her current state of mind is impacting her pain complaint" and "denie[d] any type of trauma or accident related to this" pain in an interview with a physical therapist.

It was not until 21 April 1995, over twenty months after purportedly sustaining this injury to her neck, that plaintiff filed a Form 18 in the Industrial Commission to officially give notice of the accident to her employer. Deputy Commissioner George T. Glenn II received plaintiff's testimony and other evidence on 28 March 1996 and filed an opinion and award on 18 June 1997. In that opinion and award, the deputy commissioner concluded that "[p]laintiff did not sustain an injury by accident or specific traumatic incident arising out and in the course and scope of her employment with defendant-employer on August 16, 1993" and that "[p]laintiff has failed to prove by the greater weight of the evidence that she is entitled to recover any further workers' compensation benefits in this matter." Plaintiff's claim was denied, and she appealed to the full Commission.

The full Commission made in part the following findings of fact:

4. .... The initial Form 19 completed by defendants indicated that plaintiff complained only about her right hand and arm. When plaintiff received a copy of the Form 19, she had the nurse correct the omission by completing another Form 19 regarding plaintiff's neck pain.

5. Defendants initially sent plaintiff to see Dr. Robert Fletcher for her [unrelated] hand and arm pain. Plaintiff also informed Dr. Fletcher of her neck pain during her first visit on 1 September 1993, but he did not note the neck pain until her next visit on 8 September 1993.

....

17. The Full Commission accepts the testimony of plaintiff regarding the circumstances of her work related injury and continued pain as credible.

The full Commission, with one commissioner dissenting, then reversed the deputy commissioner and concluded that plaintiff was entitled to compensation for both her neck injury and the "aggravation and exacerbation of plaintiff's [post-traumatic stress disorder] and depression, which was a natural and unavoidable consequence of her compensable injury...." Commissioner Sellers dissented from the full Commission's opinion and award, stating in part,

The undersigned is unable to find plaintiff's testimony credible regarding the occurrence of a compensable work-related neck injury. There are too many inconsistencies between plaintiff's testimony, her prior recorded statements and medical records. The medical evidence shows that plaintiff's neck pain had no sudden onset, there was no objective physical evidence for the pain, and plaintiff delayed reporting neck problems and had no witnesses to the alleged injury.

Defendants appeal.

Defendants' first argument on appeal is that the full Commission, reviewing only a cold record, failed to demonstrate "that it gave due consideration to the general rule that the hearing officer is the better judge of plaintiff's credibility in this case." We agree entirely with defendants and with Commissioner Sellers' dissent on this point, but are unable to reverse the full Commission here under Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), reh'g denied, 350 N.C. 108, ___ S.E.2d ___ (1999). This Court, in recent years, has encouraged the full Commission to follow the common-sense approach that prevails throughout the law and acknowledge when reversing the deputy commissioner's credibility findings that, as between a hearing officer who can observe the demeanor of witnesses and a reviewing board that has only paper in front of it, the hearing officer is in the better position to determine whether live testimony is credible. See generally 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), and its progeny.

As noted in the citation above, our Supreme Court previously denied discretionary review to the plaintiff in Sanders. Nevertheless, that Court has since overruled this approach to credibility in workers compensation actions, stating,

Whether the full Commission conducts a hearing or reviews a cold record, N.C.G.S. § 97-85 places the ultimate fact-finding function with the Commission—not the hearing officer. It is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. Consequently, in reversing the deputy commissioner's credibility findings, the full Commission is not required to demonstrate, as Sanders states, "that sufficient consideration was paid to the fact that credibility may be best judged by a first-hand observer of the witness when that observation was the only one." Sanders, 124 N.C.App. at 641, 478 S.E.2d at 226. To the extent that Sanders is inconsistent with this opinion, it is overruled.

Adams, 349 N.C. at 681, 509 S.E.2d at 413-14. It could be argued that these references to "the Commission" and its role in credibility determinations are vague, since technically the hearing officer is a member of the Commission, though not the full Commission. This would seem a question best resolved in the statute by the Legislature. Until then, defendants in the action currently before us acknowledged in a letter to this Court that Adams, filed after their brief was submitted, is adverse to their position; we are bound by Adams.

Plaintiff was fortunate to have two members of the full Commission lend receptive eyes to her plight in their reading of the material before them. By piecing together enough printed testimony to yield a result favorable to plaintiff and in spite of the deputy commissioner's implicit determinations of plaintiff's lack of credibility, the full Commission deemed plaintiff's uncorroborated version of the events credible. Had Sanders not been overruled, defendants' first argument would be a solid one. In light of the current state of the law, we hold that it must fail.

Defendants' second argument pertains to the full Commission's conclusion that the aggravation and exacerbation of plaintiff's post-traumatic stress disorder ("PTSD") and depression is compensable. Defendants claim this conclusion was reached in...