Moody v. Mecklenburg County

I respectfully dissent from the majority's finding that plaintiff has sustained a psychological injury as a result of the work related motor vehicle collision based on the testimony of Patricia Gross, Ph.D.

First of all, Dr. Gualtieri not only had the benefit of all of the medical records and information available to Patricia Gross, Ph.D. but he also reviewed the pre-injury psychiatric information of the plaintiff. There is no evidence that Patricia Gross, Ph.D. observed something in her examinations of plaintiff that was not available to Dr. Gualtieri. Importantly, there is significant pre-injury medical information that was available to Dr. Gualtieri that was not known to Patricia Gross, Ph.D. which effects the conclusions that each of them reached and the competency of their opinions. In particular, Patricia Gross, Ph.D. didnot review any of plaintiff's psychiatric records prior to the August 1994 accident. [Depo, Patricia Gross, Ph.D., p. 14]. In contrast, Dr. Gualtieri was aware of plaintiff's pre-injury psychiatric treatment and explained that this information has a direct bearing on whether the neuropsychological tests subsequently performed on plaintiff indicate that plaintiff sustained a brain injury as suspected by Patricia Gross, Ph.D. [Depo, Thomas Gualtieri, M.D., p. 25]

Patricia Gross, Ph.D. did not examine plaintiff until more than four years after the accident. [Depo, Patricia Gross, Ph.D. (December 20, 2000), p. 12] She relied upon plaintiff's inaccurate history of his post-accident condition in formulating her opinion. Although she opined that plaintiff sustained a brain injury based on reports to her, from plaintiff, that plaintiff had sustained a loss of consciousness from the accident, Patricia Gross, Ph.D. conceded that her opinion was dependent on the truthfulness of plaintiff in reporting his history. [Depo, Patricia Gross, Ph.D. (December 20, 2000), p. 15] Patricia Gross, Ph.D. testified that she has some indications that plaintiff was "less than forthright" in reporting his history. [Depo, Patricia Gross, Ph.D. (December 20, 2000), p. 12] Significantly, plaintiff reported a loss of consciousness, which is not supported by his post-accident medical record, and plaintiff denied use of illegal, street drugs, which is also contradicted by his medical records.

Dr. Gualtieri explained that plaintiff's medical records revealed two pre-existing problems which are significant to understanding the issue of causation: first, plaintiff has a history of severe depression; and second, he had a problem with chronic abuse of drugs and alcohol. Ultimately, Dr. Gualtieri finds that there is no competent medical evidence that plaintiff sustained a concussion or other brain injury from the August 1994 accident, and that there is no competent medical evidence to relate plaintiff's psychiatric condition to the August 1994 accident.

Dr. Gualtieri explained that the opinion of Patricia Gross, Ph.D. is not complete because she was under the mistaken belief that pre-accident plaintiff was an out-going, family-oriented, dedicated employee, with an occasional temper outburst about once a year. Significantly missing from the history provided to Patricia Gross, Ph.D. was that plaintiff had a long-standing problem with alcohol and drugs and the fact that plaintiff self-inflicted a gunshot wound after an argument with his wife. The opinion of Patricia Gross, Ph.D. was contaminated by her misunderstanding of the events; she believed the accident was more severe, that plaintiff's symptoms started after the accident, and was not aware of plaintiff's prior medical history and his on-going drug and alcohol abuse. [Depo, Thomas Gualtieri, M.D., p. 35] Therefore, the opinion of Dr. Gualtieri, who is a medical doctor with a specialization in psychiatry, should be given greater weight than a psychologist in the area of diagnosis and causation.

There is no competent evidence, as demonstrated by the records of Dr. Lombardi and the testimony of Dr. Gualtieri, that the accident caused or contributed to plaintiff's pre-existing psychiatric condition or that the accident resulted in continued, or permanent disability, beyond that necessary for the compensable injury to his right arm and left leg.

Thus, I dissent from the majority's findings of facts and conclusions of law that suggest that plaintiff sustained a psychiatric injury from the compensable accident.

S/_______________ DIANNE C. SELLERS COMMISSIONER

2. On 15 August 1994, decedent was injured in an automobile accident arising out of and in the course of his employment.

3. Decedent sustained a concussion in the accident. A concussion can occur by the shaking of the brain without a direct impact to the head.

4. Decedent was examined in the emergency room on 15 August 1994, by Dr. Joann Epizzino on 16 August 1994, and by Dr. Thomas Butler, an orthopedist, on 17 August 1994. Decedent gave inconsistent accounts about his possible loss of consciousness after the 15 August 1994 accident. Confusion is a common symptom in cases of concussion.

5. Dr. Kenneth T. Ashkin of Mecklenburg Nuerological Associates treated decedent from 29 September 1994 through 3 August 1995 for decedent's headaches, neck pain, and back pain following the automobile accident. Dr. Ashkin diagnosed occipital neuralgia and lumbar radiculopathy.

6. From 13 July 1994 through 25 October 1994, decedent was treated by Dr. V. Alan Lombardi, a psychiatrist, for major depression with mixed substance dependence. In December 1994, Dr. Lombardi admitted decedent to Charter Pines Hospital for major depression with substance dependence.

7. From June 1995 through August 1995 decedent's depression was treated with medication by decedent's family doctor.

8. Dr. Edward C. Holscher, a psychiatrist, began treating decedent on 10 June 1996. Dr. Holscher diagnosed major depression and increased decedent's medication significantly. Dr. Holscher testified that decedent could not have returned to work to his previous job when Dr. Holscher first examined decedent.

9. On 9 July 1998 Dr. Paul Blanchard referred decedent to Dr. Scott Geyer, a psychiatrist, for psychotherapy regarding decedent's "explosive anxiety disorder."

10. Dr. Patricia Gross, a neuropsychologist, tested decedent on 23 and 24 December 1998 upon referral from Dr. Blanchard.

11. Dr. Gross testified that the concussion decedent received in the 15 August 1994 accident caused a brain injury mild frontal lobe syndrome or post-concussive syndrome. Decedent thereafter developed rapid mood changes, described as moderate lability, due to this brain injury.

12. Dr. Gross testified that decedent's brain injury prevented him from returning to his previous employment as well as any work requiring judgment, work requiring response to complex instructions, or work requiring interaction with co-workers.

13. Decedent's mental problems and drug dependency problems prior to the 15 August 1994 accident were not disabling.

14. The Commission accepts the diagnoses and causation analysis of Dr. Gross and rejects those of Dr. Gualtieri. Unlike Dr. Gualtieri, Dr. Gross personally evaluated decedent.

On 15 August 1994, decedent suffered a compensable injury by accident when decedent was involved in a motor vehicle accident while working.

Decedent also received treatment to his left leg as a result of the 15 August 1994 accident. On 19 September 1994, Dr. Thomas Buter performed arthroscopic surgery to decedent's knee and found a tear of the medial meniscus and traumatic arthritis. On 22 May 1995, Dr. Robert B. McBride performed a high tibial ostectomy on decedent's left leg. Dr. McBride evaluated decedent to have a 15% rating to his left leg as a result of conditions caused by the 15 August 1994 accident.

Decedent also received treatment to his right shoulder as a result of the 15 August 1994 accident. Dr. Buter and McBride treated decedent conservatively for impingement syndrome. Then on 20 January 1996, Dr. McBride performed surgery, debriding multiple tears and performing a right subacromial decompression. Dr. McBride evaluated decedent to have an 8% rating to his right arm as a result of conditions caused by the 15 August 1994 accident.

18. The accident of 15 August 1994 caused decedent to suffer a brain injury, which, in turn, caused anxiety disorders and depression that prevented decedent from working beginning immediately after the 15 August 1994 accident and continuing.

19. From August 15, 1994 through April 13, 1996, defendant paid temporary total disability benefits at a compensation rate of $341.62, when the actual compensation rate should have been $345.85. There has been $363.78 in underpayment in temporary total disability benefits.

2. As a result of the injury by accident of 15 August 1994, decedent developed physical injuries, anxiety disorders, and depression. Defendant is responsible for such reasonable and necessary medical treatment, psychological treatment, and counseling rendered to decedent as a result, as the treatment and counseling tended to effect a cure, give relief, or lessened the period of disability. This includes, but is not limited to, the treatment provided by Drs. Eppizzino, Butler, Ashkin, Lombardi, Holscher, Blanchard, Gross, Buter, McBride, the treatment provided by decedent's family doctor, and the treatment decedent received at Charter Pines Hospital. N.C.G.S. §§ 97-2(19), 97-25.

3. Due to the psychological conditions suffered by decedent following the 15 August 1994 injury by accident, decedent was unable earn wages in any employment from 15 August 1994 and continuing until his death. N.C.G.S. § 97-29; Jordan v. Central Piedmont Community College,124 N.C. App. 112, 476 S.E.2d 410 (1996), discret. rev. denied,345 N.C. 753, 485 S.E.2d 53 (1997).

4. Decedent is entitled to $363.78 in compensation for an underpayment. From August 15, 1994 through April 13, 1996, defendant paid temporary total disability benefits at a compensation rate of $341.62, when the actual compensation rate should have been $345.85.

5. Decedent received a 15% permanent partial disability to his left leg as a result of conditions caused by the 15 August 1994 compensable injury by accident.

6. Decedent received an 8% permanent partial disability to his right arm as a result of conditions caused by the 15 August 1994 accident.

2. Defendant shall pay plaintiff at a rate of $345.85 per week from 15 August 1994 and continuing until the date of decedent's death. Because this amount has accrued, it shall be paid in a lump sum.

3. Defendant shall pay plaintiff a lump sum of $363.78 in compensation for a $4.23 weekly underpayment that took place during the period from August 15, 1994 through April 13, 1996.

4. Defendant shall pay plaintiff at a rate of $345.85 per week for 30 weeks as permanent partial disability for the 15% permanent partial disability to decedent's left leg. Because this amount has accrued, it shall be paid in a lump sum.

5. Defendant shall pay plaintiff at a rate of $345.85 per week for 19 and 1/7 weeks as permanent partial disability for the 8% permanent partial disability to decedent's right arm. Because this amount has accrued, it shall be paid in a lump sum.

6. A reasonable attorney's fee in the amount of 25% of the lump sums due decedent in paragraphs 2, 3, 4, and 5 of this AWARD is approved for plaintiff's counsel.

7. Defendant shall pay the costs of this action.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/____________________ THOMAS JEFFERSON BOLCH COMMISSIONER

DISSENTING IN PART:

S/_______________ DIANNE C. SELLERS COMMISSIONER