Hawkins v. Pitt County Memorial Hospital

I respectfully dissent from the majority on several major issues and would vote to reverse the Deputy Commissioner's Opinion and Award in this matter. However, the undersigned would affirm the Deputy's ruling that, as a matter of law, the holding ofSalaam v. Dept. of Transportation, Salaam, 122 N.C. App. 83,468 S.E.2d 536 (1996), disc. review improvidently allowed, 345 N.C. 494,480 S.E.2d 51 (1997) does not apply to consensual ex parte communication between plaintiff's counsel and her non-party treating physicians. Thus, Drs. Finestone's and Nunn's depositions should not be excluded on this basis. The Supreme Court held in Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541 (1964), that it is within the fact finder's discretion to admit expert medical testimony whenever "it reasonably appears to him that the expert witness is addressing himself according toscientific knowledge and experience ." (Emphasis added). While the depositions of Drs. Finestone and Nunn should be admissible as probative and meeting the Lockwood standard, issues of competency do remain that go to the weight afforded the depositions. See Am.Jur. 2d 29 Evidence § 305 at 319.

Dr. Finestone, a psychiatrist, testifies "in a legal sense" and draws a legal conclusion that plaintiff's work injury caused her fibromyalgia. Finestone Depo. at 28, 78-79 (hereafter F. Depo at ___). Under Lockwood and Rule 702 of the N.C. Rules of Evidence, an expert's opinion is limited to those matters for which he is qualified "by knowledge, skill, experience, training, or education." Dr. Finestone is not a lawyer or trained in forensic medicine. Thus, he is not competent to testify to a legal conclusion and the undersigned gives no weight to his testimony regarding the causation of plaintiff's fibromyalgia. Dr. Nunn lacks board certification in any medical discipline, although he calls himself an "osteopathic psychiatrist." Nunn Depo. at 7, 11 (hereafter N. Depo. at ___). Throughout his testimony, Dr. Nunn exhibits a lack of knowledge about fibromyalgia in general and plaintiff's specific treatment from other treating physicians. See, e.g., N. Depo. at 15, 26, 52, 76-77. For these reasons, the undersigned accords little weight to his testimony regarding a causal link between plaintiff's fibromyalgia and her work-related injury.

Dr. Swinker is board certified in both family medicine and occupational medicine. Swinker Depo. at 6-8 (hereafter S. Depo. at ___). Dr. Gwinn is board certified in Physical and Rehabilitation Medicine. Gwinn Depo. at 6 (hereafter G. Depo. at ___). Dr. Rollins is a forensic psychiatrist who is board certified in ten areas of specialty, including psychiatry, forensic psychiatry, pain medicine and disability evaluation. Rollins Depo. at 7-8, 14-16 (hereafter R. Depo. at ___). Dr. Gwinn diagnosed plaintiff's low back pain as due to pre-existing lumbar degenerative disc disease. G. Depo. at 14, 17.

Dr. Swinker testified that plaintiff's "findings would come and go, move from place to place not a fixed pattern of deficits like you would see with an anatomic lesion" and that plaintiff's responses on physical examination exhibited a "conscious" effort to produce an abnormal result. S. Depo at 20-21, 24, 28. In light of her physical assessments, Dr. Swinker found that plaintiff had a psychological need to have pain. S. Depo. at 91. Even Dr. Finestone conceded that plaintiff's examination "shows an additional problem besides fibromyalgia (F. Depo. at 41) that "was most likely psychologically generated." F. Depo. at 108-109. Dr. Rollins also testified that plaintiff's pain was a symptom of unresolved psychological conflicts. R. Depo. at 57, 104. Dr. Rollins administered a psychological test, the MMPI-2, which revealed that plaintiff had "a great deal of psychological symptoms" of "fairly long standing." Id. at 35. Plaintiff reported childhood physical and sexual abuse by her father to Dr. Rollins that was "extremely traumatic to her .And she had conflicting unresolved feelings about it ." R. Depo. at 26. Plaintiff denied any prior psychiatric history (Tr. at 9), but on cross-examination, she admitted being seen at an area mental health center. Tr. at 91. The records reflect that plaintiff presented "depressed' and "despondent" over having "run away from home at age 15" and having been "forced" into "prostitution. Gwinn D. Ex. 4; Rollins D. Ex. 4.

For the reasons set forth herein, the undersigned gives greater weight to the opinions of Drs. Swinker and Rollins that plaintiff's pain disorder resulted from preexisting psychological causes and that plaintiff's psychological pain disorder was not caused, aggravated or accelerated by the work injury. R. Depo. at 58, 70, 96, 105; S. Depo. at 55-56, 105-106, 108-109. Dr. Rollins did state, however, that the May 30, 1995, work injury may have `triggered or precipitated" or "allowed the emergence of preexisting psychological problems." R. Depo. at 73. North Carolina law is settled, however, that a "triggering" event for an underlying psychiatric condition, without more, does not establish causation. Brewington v. Rigsbee Auto Parts, 69 N.C. App. 168,316 S.E.2d 336 (1984). For the reasons set forth supra, the undersigned finds that plaintiff's work injury of May 30, 1995, did not cause her fibromyalgia or pain disorder.

On September 5, 1995, the I.C. approved a Form 21 Agreement for "necessary weeks" for temporary total disability. On November 27, 1995, the IC approved a Form 26 Agreement designating payment of temporary partial disability. Drs. Swinker and Gwinn released plaintiff to light duty work in August 1995. S. Depo. at 39, G. Depo. at 27. Defendant-employer supplied plaintiff with light duty work within her restrictions commencing August 23, 1995. She worked off and on for about a month then failed to return to work. Plaintiff reached maximum medical improvement on October 20, 1995, with no permanent impairment. G. Depo. at 30. In a memo dated December 13, 1995, from Pat Dalton of Pitt County Hospital to Aegis, it states that "As of this date she has failed to return to work because she has requested a Family Medical Leave (granted) for an unrelated medical condition."

Once an award is made payable during disability by the IC, there is a presumption that the disability lasts until the employee returns to work. Watkins v. Central Motors Lines,279 N.C. 132, 181 S.E.2d 588 (1971). This presumption may be rebutted, however. Stone V. G.G. Builders, 346 N.C. 154,484 S.E.2d 365 (1997); see also IC Rule 404(1). Defendant-employer has rebutted this presumption of continuing disability by a showing that work suitable to plaintiff's medical condition was available for her and was offered to her since August 23, 1995. This work was approved by both Drs. Gwinn and Swinker. Therefore, the Deputy's Opinion and Award granting plaintiff permanent total disability benefits should be reversed.

The third issue on which the undersigned dissents is the majority's reformation of the Form 26 Settlement Agreement. In Finding of Fact No. 18, the majority modifies the Form 26 Agreement by changing an essential term of the contract from temporary partial disability to temporary total disability. The majority, without explanation, states that "the Commission does not have [to] make a finding regarding fraud, misrepresentation, undue influence, mutual mistake or that the Form 26 was improvidently approved" or that "plaintiff does not have to produce evidence of a change of condition in order to have the award modified." In Conclusion of Law No. 3, the majority finds that N.C. Gen. Stat. § 97-17 confers this jurisdiction on the Commission.

N.C. Gen. Stat. § 97-17, however, only allows for aset-aside of a settlement agreement based on fraud, misrepresentation, undue influence, or mutual mistake. There are no findings to this effect here, nor is there any evidence to support such a finding. Case law has carved out another niche under which a contracted settlement agreement may be set aside — if the Commission improvidently approved an agreement. See VernonV. Steven L. Mabe Builders, 110 N.C. App. 552, 430 S.E.2d 676 (1993). That is, if it did not act in a judicial capacity assuring that the Agreement was fair and not contrary to the intent of the Workers' Compensation Act, the agreement may be set aside. In Vernon, however, the plaintiff was illiterate, had a permanent partial disability, was unlikely to return to work and was unrepresented by counsel. Such is not the case here. In this matter, plaintiff has attended college, was a certified nursing assistant, was released to work with no permanent impairment and had counsel throughout the case. The Vernon analysis would fail under these facts. N.C. Gen. Stat. § 97-47 allows the Commission to review and change an award based on a plaintiff's change of condition. The majority has made no finding of a change of condition in plaintiff nor is there any evidence to do so under the facts presented here.

N.C. Gen. Stat. § 97-17 is silent on whether the Commission may modify an award under this section without first setting it aside. Case law, however, is unequivocal that an approved compensation agreement is binding on the parties unless and until set aside by the Commission. Pruitt v. Knight Publishing, Co.,289 N.C. 254, 221 S.E.2d 355 (1976) (emphasis added).

Under the common law of contracts, a court may not make a new contract, rewrite a contract for the parties, or interpret the agreement as meaning something other than what the parties intended. Am. Jur. 2d, 17A Contracts § 340, 347-349 (1991). A court is not at liberty to either disregard words used by the parties in a contract or to insert words that the parties have not used. Id. at § 341 at 349-350. Absent statutory provision or case law to the contrary, a court may not modify a contract unless it is necessary to avoid a manifest injustice. Since the majority has made no finding of fraud, misrepresentation, undue influence or mutual mistake under N.C. Gen. Stat. § 97-17, no finding of a change of condition, and no finding of an improvidently approved settlement agreement, it is unclear as to the majority's legal grounds for reformation of the contract.

The contract as reformed by the majority has changed an essential term of the Form 26 Settlement Agreement. Defendant did not agree to this change. The reformed contract, therefore, lacks an essential element of contract formation — mutuality. "It is fundamental that a party cannot be held to have contracted if there was no assent .There must be mutual assent or a meeting of the minds on all essential elements or terms" Am. Jur. 2d, 17A Contracts § 26, 53-56 (1991). The majority incorrectly reforms the contract in such a way that defendant is bound to pay plaintiff compensation not only for that to which it agreed, but for that to which it clearly did not agree.

It has long been decided in the common law of contracts that lack of agreement on terms essential to the contract is a valid defense to contract formation. "There must be neither doubt nor difference between the parties. They must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode agreed upon by which they can be settled, there is no agreement" (emphasis added). Croom v. Lumber Co., 182 N.C. 217,220; 108 S.E. 735, 737 (1921). The Form 26 Settlement Agreement, as reformed by the majority, is not a valid contract for the reasons set forth herein.

This ___ day of June 1998.

S/ ________________________ DIANNE C. SELLERS COMMISSIONER

The Full Commission has reviewed the prior Opinion and Award based on the record of the proceedings before Deputy Commissioner W. Bain Jones, Jr. and the briefs and oral arguments on appeal. Based on its assignments of error, defendant has not shown good ground to receive further evidence or to amend the holding of the prior Opinion and Award. However, pursuant to it s authority under G.S. § 97-85, the Full Commission has reconsidered the evidence and has modified the prior Opinion and Award to award plaintiff continuing temporary total disability.

2. An employer-employee relationship existed between plaintiff and defendant-employer on 30 May 1995.

3. Defendant-employer was a duly-qualified self-insurer at the time of the injury.

4. Plaintiff's average weekly wage is $313.91 yielding a compensation rate of $209.28 per week.

5. Defendant accepted liability for the 30 May 1995 injury, and the parties entered into an Industrial Commission Form 21 Agreement approved by the Commission on 5 September 1995. Pursuant to the terms of that agreement, plaintiff was paid a temporary total disability compensation at a weekly rate of $209.28 from 31 May 1995, the first date that she missed from work following the injury, to 15 August 1995, the date on which she returned to work in a light-duty job in the defendant/employer's limited-duty program.

6. The parties entered into a Form 26 Agreement, which was approved by the Commission on 27 November 1995, pursuant to which plaintiff has been paid temporary partial disability benefits at various weekly rates from 15 August 1995 to the present.

7. The following medical and employment records have been stipulated into evidence: (a) 179 pages of records from Pitt County Memorial Hospital; (b) 34 pages of records from East Carolina Family Practice; (c) 29 pages of records from Pitt county Mental Health; (d) 21 pages of records from ProActive Therapy, Inc.; (e) 10 pages of records from Triangle Spine and Back Care Center; (f) 2 pages of records from Greenville MRI, Ltd.; (g) 3 pages of records from East Carolina Neurology; (h) records from East Carolina Neurosurgical Associates Incorporated Records, and; (i) twenty-four pages of records from Dr. Robert L. Rollins.

8. The issues to be determined are: (i) whether plaintiff's current condition is compensable under the Workers' Compensation Act; and (ii) if so, to what benefits is plaintiff entitled?

2. On 20 July 1987, plaintiff began working for Pitt County Memorial Hospital as an Advanced Nursing Assistant and worked in the Rehabilitation Center providing general patient care.

3. On 30 May 1995, plaintiff sustained an admittedly compensable specific traumatic incident while attempting to assist a patient. As the result of this incident, plaintiff felt a pulling sensation in her lower back accompanied by the immediate onset of pain radiating down into her upper thighs.

4. Defendant admitted the compensability of plaintiff's specific traumatic incident through an Industrial Commission Form 21 Agreement for Compensation, which was approved by the Commission on 5 September 1995. Pursuant to this Form 21, plaintiff was paid temporary total disability compensation from 31 May 1995 to 15 August 1995.

5. Following the incident on 30 May 1995, plaintiff reported to defendant's Employee Health Service and was examined by Dr. Marion Swinker. Dr. Swinker diagnosed plaintiff as having sustained a lumbar sprain and released her to return to work with a twenty pound lifting restriction. Due to the fact that defendant did not have any suitable positions available at that time, plaintiff was unable to return to work for three days.

6. On 2 June 1995, Dr. Swinker revised plaintiff's restrictions to allow her to lift up to fifty pounds. Plaintiff returned to work with this restriction on 3 June 1995 and worked for three days before taking a previously planned vacation. During her vacation, plaintiff rested and attempted to recover from her injury. Following her vacation, plaintiff returned to work on 13 June 1995 and was able to work for two days before increased back pain and left leg numbness forced her to stop.

7. On 16 June 1995, plaintiff returned to Dr. Swinker who ordered an MRI. The MRI revealed mild disc bulging with some desiccation at the L4-L5 level. Dr. Swinker referred plaintiff for evaluation for placement in defendant's limited duty program and reduced her lifting restriction to twenty pounds. As of that date, defendant did not have any positions suitable for this restriction and plaintiff has not since returned to her job as a nursing assistant.

8. Plaintiff was evaluated for the limited duty program on 30 June 1995, but was not recommended for placement at that time due to her continued complaints of pain.

9. Plaintiff was examined by Dr. Michael Gwinn on 8 August 1995. At that time, Dr. Gwinn opined that plaintiff suffered from depression that may preclude her returning to work.

10. On 15 August 1995, plaintiff returned to work in defendant's Pastoral Services department for two hours a day where she essentially folded letters, stuffed envelopes, did some filing and delivered documents to other parts of the hospital. Plaintiff worked six days in this position, but was unable to continue due to constant pain and her depression.

11. Following her attempt to return to work, plaintiff was examined by Dr. Paige Fisher at the East Carolina Family Practice Center. Dr. Fisher diagnosed plaintiff with depression and noted plaintiff's frustration with her ongoing back pain.

12. On 28 August 1995, plaintiff was referred by Dr. Fisher and Dr. Bremer of the Family Practice Center, to the Pitt County Mental Health Center where she was diagnosed with mood disorder due to chronic pain and associated back injury with major depressive-like features, generalized anxiety disorder and panic disorder.

13. Plaintiff again attempted to return to work on 19 September 1995. On that date she worked for two hours but has been unable to return to work for defendant in any capacity since that date.

14. Plaintiff was last examined by Dr. Swinker on 11 October 1995, who opined that plaintiff's inability to return to work was due to her emotional condition.

15. On 18 December 1995, plaintiff was examined by Dr. Douglas Finestone who diagnosed her has suffering from fibromyalgia. Dr. Finestone found plaintiff to have a chronic pain disorder with both emotional and physical factors, along with depressive features and anxiety symptoms. Dr. Finestone began treatments for plaintiff's fibromyalgia. Since 20 June 1996, plaintiff has been treated for her fibromyalgia by Dr. Michael Nunn.

16. Plaintiff was examined in August 1996 by a psychologist, Dr. Bob Rollins, who noted that Ms. Hawkins' was suffering from pain disorder associated with psychological factors and major depressive disorder. He later confirmed the diagnosis of fibromyalgia and testified that her condition was the culmination of a chain of events that began with her back injury on 30 May 1995.

17. Plaintiff's current condition of fibromyalgia and depression manifested following and as a result of her injury by accident on 30 May 1995 and are not attributable to an independent intervening cause.

18. An Industrial Commission Form 26 Agreement for Compensation was entered into by the parties and approved by the Commission on 27 November 1995. Pursuant to this Form 26, plaintiff has been paid temporary partial disability at various weekly rates from 15 August 1995 through the present. Because the Form 26 in question awarded temporary partial disability benefits, the Commission may modify that award. To do so, the Commission does not have make a finding regarding fraud, misrepresentation, undue influence, mutual mistake or that the Form 26 was improvidently approved without a proper investigation by the Commission. Furthermore, plaintiff does not have to produce evidence of a change of condition in order to have the award modified from temporary partial to temporary total disability compensation.

19. As the result of her 30 May 1995 injury by accident and related depression and fibromyalgia, plaintiff has been unable to earn wages in her former 1995 through the present and continuing.

20. In this matter, defendant contends that the testimony of Dr. Finestone and Dr. Nunn should be stricken because of ex parte communications between Dr. Finestone and counsel for plaintiff. However, these communications were consensual and not prohibited by the holding in Salaam v. Department of Transportation,122 N.C. App. 83, 468 S.E.2d 536 (1996), disc. review improvidentlyallowed, 345 N.C. 494, 480 S.E.2d 51 (1997). Nor were these communications in any way otherwise improper. Therefore, the Deputy Commissioner's ruling on this issue to deny defendant's was proper.

2. As the direct and natural result of plaintiff's injury by accident on 30 May 1995, plaintiff developed her current conditions of depression and fibromyalgia. Id.

3. The Commission has jurisdiction to modify an award of temporary partial disability compensation paid pursuant to a Form 26 and is not required to make findings regarding fraud, misrepresentation, undue influence, mutual mistake or that the agreement was improvidently approved without a proper investigation by the Commission. G.S. § 97-17.

4. Defendant's motion to strike the deposition of Dr. Finestone and Dr. Nunn was properly denied as the communications between these physicians and counsel for plaintiff were consensual and not otherwise improper. Salaam v. Department ofTransportation, 122 N.C. App. 83, 468 S.E.2d 536 (1996), disc.review improvidently allowed, 345 N.C. 494, 480 S.E.2d 51 (1997).

5. As the result of her injury by accident on 30 May 1995 and her causally related depression and fibromyalgia conditions, plaintiff is entitled to be paid by defendant temporary total disability compensation a the rate $209.28 per week for the period of 15 August 1995 through the present and continuing until such time as she returns to work or until further order of the Commission. G.S. § 97-29.

6. Defendant is entitled to a credit on a week by week basis for the temporary partial disability compensation it has paid to plaintiff since 15 August 1995. G.S. § 97-42.

7. As the result of her injury by accident the on 30 May 1995 and her causally related depression and fibromyalgia conditions, plaintiff is entitled to have defendant pay for all medical expenses incurred. G.S. § 97-25.

2. Defendant is entitled to a credit on a week by week basis for the temporary partial disability compensation it has paid to plaintiff since 15 August 1995.

3. Defendant shall pay for all medical expenses incurred as the result of plaintiff's 30 May 1995 injury by accident and her causally related depression and fibromyalgia conditions.

4. A reasonable attorney's fee in the amount of twenty-five percent (25%) of the compensation awarded to plaintiff herein is approved for counsel for plaintiff. From the amounts having accrued, this fee shall be deducted and paid directly to counsel for plaintiff with counsel for plaintiff receiving every fourth check thereafter.

5. Defendant shall bear the costs of this action.

S/ ________________________ CHRISTOPHER L. SCOTT COMMISSIONER

CONCURRING:

S/ ______________________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/ ______________________ DIANNE C. SELLERS COMMISSIONER