Pittman v. International Paper Co.

510 S.E.2d 705, 132 N.C. App. 151, 1999 N.C. App. LEXIS 92
CourtCourt of Appeals of North Carolina
DecidedFebruary 2, 1999
DocketCOA98-341
StatusPublished
Cited by49 cases

This text of 510 S.E.2d 705 (Pittman v. International Paper Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pittman v. International Paper Co., 510 S.E.2d 705, 132 N.C. App. 151, 1999 N.C. App. LEXIS 92 (N.C. Ct. App. 1999).

Opinions

HORTON, Judge.

Plaintiff alleged that a job-related injury occurred in March of 1993 and he filed a workers’ compensation claim. This claim was denied by both the Deputy Commissioner and the Full Industrial Commission (Commission). Plaintiff then received medical treatment after the alleged March 1993 injury from Dr. James Markworth (Dr. Markworth), who performed surgery on plaintiff. Plaintiff experienced some relief but also continued to suffer from pain in his lower back and occasionally in his left leg.

On 27 July 1993, Dr. Markworth released plaintiff to return to work on 16 August 1993, with no specific instructions to refrain from any particular type of work. He did instruct plaintiff to be careful with body mechanics and lifting. Plaintiff went back to the workplace and reported to the company nurse, Hazel Harris (Ms. Harris). Ms. Harris arranged for plaintiff to be examined by a physician, Dr. John Cromer, Jr. (Dr. Cromer). Dr. Cromer examined plaintiff and recommended a functional capacity evalúation (FCE). Ms. Harris testified that she spoke with defendant-employer’s workers’ compensation supervisors who stated that plaintiff was not to return to work until he passed the FCE. On 18 August 1993, plaintiff performed the FCE where he was required to lift weights, among other things.

On 23 August 1993, plaintiff returned to work without restrictions, but several days later he complained to Ms. Harris about soreness in his lower back. This increased in severity and he saw Dr. Cromer who put plaintiff on light duty work. Plaintiff also saw Dr. Markworth who prescribed medication and continued plaintiff on light duty work. On 25 August 1993, plaintiff filed a workers’ compensation claim alleging an injury from the FCE and defendants denied compensation.

In his first deposition in April of 1996, Dr. Markworth stated that it was his opinion that the activities at the FCE did not significantly [153]*153contribute to plaintiffs back problems. In late May of 1996, however, Dr. Markworth wrote plaintiffs attorney and stated that in speaking with plaintiff after the deposition, he gathered new information about plaintiffs symptoms and wished to change his conclusions based on this new information. The time for taking of depositions had expired on 2 June 1996. Plaintiffs counsel received the letter on 12 June 1996 and made a motion for additional time to take another deposition of Dr. Markworth. The Deputy Commissioner denied the motion. In order to make an offer of proof for the Commission and preserve an objection to the denial of the motion, plaintiffs attorney then questioned Dr. Markworth under oath in the presence of a court reporter on 23 July 1996. The court reporter then prepared a transcript of the proceeding. Defendants were neither notified of this proceeding nor represented at it.

The Commission subsequently allowed plaintiff to re-depose Dr. Markworth over the dissent of one Commissioner, who noted that:

Plaintiff had more than ample opportunity, over seven months, to prepare the information he wanted to present to Dr. Markworth....
By allowing repeated depositions of doctors based upon the rephrasing of long known information, the majority [of the Full Commission] is needlessly prolonging litigation and encouraging attorneys to not be fully prepared for depositions.

Dr. Markworth then stated in his second deposition that the FCE did contribute to plaintiffs lower back problems. The Full Commission, again with one Commissioner dissenting, awarded plaintiff workers’ compensation benefits.

On appeal defendants contend that: (I) the Commission erred in finding that the FCE arose' out of or was in the course of plaintiff’s employment; (II) the sworn statement taken from Dr. Markworth after his first deposition was an improper ex parte communication; (III) the Commission substituted its judgment for that of the Deputy Commissioner without an explanation for the substitution; and (IV) the Commission failed to consider Dr. Markworth’s testimony from his first deposition on 24 April 1996.

I

In order to receive compensation under the North Carolina Workers’ Compensation Act, an injury must arise out of and occur in [154]*154the course of the employee’s employment. N.C. Gen. Stat. § 97-2(6) (Cum. Supp. 1997). “The term ‘arising out of’ refers to the origin of the injury or the causal connection of the injury to the employment, while the term ‘in the course of’ refers to the time, place and circumstances under which the injury occurred.” Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 142, 343 S.E.2d 551, 552, disc. review denied, 318 N.C. 417, 349 S.E.2d 600 (1986).

This Court has held that an injury is compensable under workers’ compensation if it is “ ‘ “fairly traceable to the employment. . .” or if “any reasonable relationship to employment exists.” ’ ” White v. Battleground Veterinary Hosp., 62 N.C. App. 720, 723, 303 S.E.2d 547, 549 (citations omitted), disc. review denied, 309 N.C. 325, 307 S.E.2d 170 (1983). “Whether an injury arises out of and in the course of a claimant’s employment is a mixed question of fact and law,” and this Court’s review is limited to whether the findings and conclusions of the Commission are supported by any competent evidence. Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 481 (1997).

Defendants argue that the FCE exam did not arise out of and during the course of plaintiff’s employment because defendants did not order it and it was conducted upon the recommendation of Dr. Cromer, an independent physician who is not an employee of defendants. We disagree. In this case, there is ample evidence in the record to support the Commission’s findings that “defendant-employer required plaintiff to undergo the functional capacity evaluation as an incident to his continuing employment. . . .”

There is evidence in the record which shows that plaintiff was not to be allowed to work until the FCE was completed. Indeed, Ms. Harris’s notes state that the FCE would be conducted and agreed to by Dr. Markworth and Dr. Cromer before plaintiff would return to work. There was also evidence in the form of the testimony of Leneve Duncan, the therapist who conducted the FCE, that Ms. Harris asked her to perform the FCE “to see if [plaintiff] could return to work.” When there “is an element of actual compulsion emanating from the employer, the work connection is beyond question.” 2 Arthur Larson, Larson’s Workers’ Compensation Law § 27.32 (1997). In this case, there is competent evidence that plaintiff was required to perform the FCE before he returned to work and therefore any injury which resulted from it arose out of and during the course of employment.

[155]*155II

Defendants next argue that the Commission erred in considering the second deposition testimony of Dr. Markworth because improper ex parte communications had occurred in obtaining the sworn statement which provided the basis for the second deposition. Specifically, defendants claim that Dr.

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Bluebook (online)
510 S.E.2d 705, 132 N.C. App. 151, 1999 N.C. App. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittman-v-international-paper-co-ncctapp-1999.