Young v. Hickory Business Furniture

• Decision Date: 21 March 2000
• Docket Number: No. COA99-524.,COA99-524.
• Parties: Judy Carolyn YOUNG, Employee, Plaintiff, v. HICKORY BUSINESS FURNITURE, Employer, Self-Insured (Alexsis, Inc. Servicing Agent), Defendants.
• Court: North Carolina Court of Appeals

527 S.E.2d 344

137 NC App. 51

Judy Carolyn YOUNG, Employee, Plaintiff, v. HICKORY BUSINESS FURNITURE, Employer, Self-Insured (Alexsis, Inc. Servicing Agent), Defendants.

No. COA99-524.

Court of Appeals of North Carolina.

March 21, 2000.

Randy D. Duncan, Hickory, for plaintiff-appellee.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by J.A. Gardner, III, Charlotte, for defendants-appellants. TIMMONS-GOODSON, Judge.

Hickory Business Furniture ("defendant-employer") and its insurance servicing agent, Alexsis, Inc., (collectively, "defendants") appeal from an opinion and award of the North Carolina Industrial Commission ("the Commission") finding and concluding that Judy Carolyn Young ("plaintiff") experienced a substantial change of condition within the meaning of section 97-47 of the North Carolina General Statutes. Having carefully examined defendants' assignments of error, we affirm the Commission's opinion and award.

Plaintiff strained her back on 3 March 1992 while picking up a piece of furniture. At the time of the admittedly compensable injury, plaintiff was forty-eight years old and had been employed with defendant-employer for six years. Dr. Robert Hart, a family practitioner who served as defendant-employer's physician, initially treated plaintiff's injury and recommended physical therapy for her complaints of mid-back pain. Plaintiff's symptoms persisted, however, so Dr. Hart referred her to Dr. H. Grey Winfield, III, an orthopedist. Dr. Winfield's examination found plaintiff to have full range of motion in the lower extremity, to be a bit histrionic in her heel-toe walk, and to exhibit some symptom magnification. Dr. Winfield continued to treat plaintiff through 21 May 1992, after which plaintiff did not return for a follow-up assessment.

On her own, plaintiff sought treatment from Bruce Hilton, D.C., a chiropractor, on 9 November 1992, and on 20 July 1993, he rated her as retaining a 5% permanent partial impairment to her back. At the time of the rating, plaintiff continued to experience pain in her back and right hip and tingling in her right leg. The pain never ceased following plaintiff's initial treatment by the various doctors and, instead, increased gradually over time. Plaintiff, therefore, returned to Dr. Hilton for chiropractic treatment of a "popping" right hip on 20 August 1994. Dr. Hilton testified that plaintiff's condition appeared to be the same as when she originally sought his treatment, but the condition had substantially worsened. On 19 October 1994, when plaintiff could no longer physically perform her job, Karen Hightower, plaintiff's supervisor, terminated plaintiff's employment.

On 19 June 1995, plaintiff began treatment with Dr. Dennis Payne, a rheumatologist with expertise concerning fibromyalgia, a chronic muscular pain syndrome that is associated with a non-restorative sleep pattern. Dr. Payne diagnosed plaintiff as having reactive fibromyalgia resulting from her 3 March 1992 compensable injury.

Plaintiff returned to Dr. Winfield on 2 August 1995 complaining of neck and bilateral arm pain. She also complained of swelling in the hands and back pain that radiated from the neck through the lumbar area and into both legs. Dr. Winfield examined plaintiff and found her to be neurologically intact with a full range of motion for the hips, knees and ankles. Dr. Winfield conducted a series of diagnostic tests, the results of which were normal, and determined that plaintiff's condition was much worse than when he last saw her on 21 May 1992. He concluded, however, that the present symptoms were not causally related to the prior compensable injury.

Plaintiff filed a Form 33, Request for Hearing, on 10 January 1995, alleging a substantial change of condition. The case came on for hearing before Deputy Commissioner Lorrie L. Dollar, who entered an opinion and award on 18 October 1996 finding and concluding that plaintiff had sustained a substantial change of condition within the meaning of section 97-47 of the General Statutes. Defendants appealed to the Full Commission, and on 7 April 1997, the matter was heard by a panel of the Full Commission consisting of Commissioners Thomas J. Bolch, Coy M. Vance, and Dianne C. Sellers. On 2 June 1997, Commissioner Bolch, with Commissioner Vance concurring, filed an opinion and award affirming the deputy commissioner's decision. Commissioner Sellers dissented, however, finding that plaintiff had failed to meet her burden of proving a substantial change of condition.

Defendants appealed to this Court, and in an opinion filed 21 April 1998, we vacated the opinion and award of the Full Commission and remanded the case for more definite factual findings. On remand, the case was considered by a panel comprised of Commissioners Bolch, Sellers, and Christopher Scott (Commissioner Vance had retired). Commissioner Bolch, with Commissioner Scott concurring, entered an opinion and award on 28 January 1998 finding and concluding that plaintiff had undergone a substantial change of condition. Commissioner Sellers again dissented on the same grounds. Defendants now appeal.

On appeal from an opinion and award of the Industrial Commission, the reviewing court's task is to determine (1) whether there is any competent evidence of record to support the Commission's factual findings and (2) whether those findings, in turn, provide support for the Commission's conclusions of law. Porter v. Fieldcrest Cannon, Inc., 133 N.C.App. 23, 25, 514 S.E.2d 517, 520 (1999). To that end, the findings by the Commission are binding on the reviewing court if the record contains any competent evidence in their support. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh'g denied, 350 N.C. 108, ___ S.E.2d ___ (1999). This is true, even when the record offers evidence that would support findings to the contrary. Id. The Commission's legal conclusions, however, are subject to this Court's de novo review. Lewis v. Craven Regional Medical Center, 122 N.C.App. 143, 149, 468 S.E.2d 269, 274 (1996)

With these principles in mind, we proceed to our discussion of defendants' arguments. Defendants first contend that the Commission disregarded competent evidence and thereby committed reversible error. In essence, defendants assert that the Commission was required to give some weight to the evidence elicited by the cross-examination of Dr. Payne regarding the etiology of fibromyalgia. Defendants also contend that the Commission failed to give proper weight to the opinion testimony of Dr. Winfield. We must disagree.

As defendants point out, "the Commission may not `wholly disregard or ignore competent evidence' and must consider and evaluate all the evidence" presented by the parties. Jarvis v. Food Lion, Inc., 134 N.C.App. 363, 366-67, 517 S.E.2d 388, 391 (1999)(quoting Pittman v. International Paper Co., 132 N.C.App. 151, 156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C. 310, ___ S.E.2d ___ (1999)). This notwithstanding, the Commission is the sole judge of the credibility of the witnesses and the weight be accorded their testimony. Bailey v. Sears Roebuck & Co., 131 N.C.App. 649, 653, 508 S.E.2d 831, 834 (1998). Furthermore, the Commission "may reject a witness' testimony entirely if warranted by disbelief of that witness." Pittman, 132 N.C.App. at 156, 510 S.E.2d at 709.

It is apparent from the Commission's findings of fact that it, indeed, considered the opinion testimony of Dr. Winfield as well as the evidence brought out during the cross-examination of Dr. Payne. In Finding of Fact # 5, the Commission notes that Dr. Winfield was of the opinion that plaintiff's current complaints were "not causally related to the prior compensable injury." The Commission states, however, that it "[gave] no weight to this opinion inasmuch as Dr. Winfield has no expertise concerning fibromyalgia." Regarding Dr. Payne's testimony on cross-examination, the Commission states the following in Finding of Fact # 18:

Defendants' counsel's cross-examination of Dr. Payne did not result in a change of his opinion that plaintiff had disabling fibromyalgia caused or aggravated by her March 3, 1992, injury by accident. Nothing elicited by such cross examination causes the Full Commission to modify its finding of facts.

Since the Commission was well within its authority to reject what it deemed to be unreliable evidence, defendants' argument is without merit.

Defendants next argue that the Commission erred in finding and concluding that plaintiff's fibromyalgia was causally related to her 3 March 1992 injury. Defendants' chief contention is that because the etiology of fibromyalgia cannot be scientifically or objectively determined, Dr. Payne's opinion as to the cause of plaintiff's condition is no more than speculation and conjecture. Again, we disagree. The Industrial Commission is vested with full authority to find the essential facts in a workers' compensation case, Bailey, 131 N.C.App. at 653,508 S.E.2d at 834, and it is the responsibility of the Commission, not the reviewing court, to weigh the evidence of causation and to assess its credibility, id. at 653, 508 S.E.2d at 835. Therefore, this Court can do no more than examine the record to determine whether any competent evidence exists to support the Commission's findings as to causation, and we are not at liberty "to weigh the evidence and then decide the issue on the basis of its weight." Porter, 133 N.C.App. at 26,514 S.E.2d at 520. "[W]hen conflicting evidence is presented, `the Commission's finding of causal connection between the accident and the disability is conclusive.'" Bailey, 131 N.C.App. at 655,508 S.E.2d at 835 (quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 275 (1965)).

Defendants maintain that Dr. Payne's testimony regarding the cause of plaintiff's condition should have been excluded as unreliable. Defendants take the position that the lack of definitive scientific...