Grobluskey v. Crossmark Holdings, Inc.

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The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before the Deputy Commissioner and the briefs and arguments of the parties. The appealing party has shown good grounds to reconsider the evidence and upon reconsideration, the Full Commission reverses the Opinion and Award of the Deputy Commissioner and enters the following Opinion and Award.

2. It is stipulated that the Plaintiff sustained a compensable injury to his back/neck/shoulder on November 26, 2007. It is further stipulated that Plaintiff claims his bipolar disorder was exacerbated by the accident and physical injuries sustained on November 26, 2007, which Defendants denied via Forms 61 dated August 18, 2008 and September 3, 2008.

3. An employment relationship existed between Employee-Plaintiff and Employer-Defendant on November 26, 2007.

4. Liberty Mutual was the carrier of compensation benefits for Employer-Defendant on November 26, 2007, the alleged date of injury.

5. Employee-Plaintiff's average weekly wage is $508.40, with a compensation rate of $338.95.

6. Employee-Plaintiff has been treated by the following medical providers:

a) Vance County EMS

b) Maria Parham Hospital

c) Blue Ridge Family

d) Select Physical Therapy

e) Dr. Amy Mulkey

f) Dr. Patricia Nasland

g) Concentra Medical Center — Dr. Sanchez

h) Dr. Kapil Rawal

i) Dr. William Lestini

j) Job Ready Services

k) Piedmont Spine Specialists

2. In late 2002, Plaintiff was diagnosed with bipolar disorder. Plaintiff actively treated with Dr. Maged Hanna Saad, a board certified psychiatrist, for his bipolar disorder from November of 2002 until February of 2004. Plaintiff also actively treated with Dr. Amy Mulkey, a licensed psychologist, from November of 2003 until February of 2005.

3. After February of 2005 and prior to the compensable accident of November 26, 2007, Plaintiff was able to manage his disorder on his own and was able to wean off all of his psychiatric medication prior to the accident which is the subject of this claim. Plaintiff testified that his bipolar disorder was well managed and under control without medication.

4. On November 26, 2007, Plaintiff was involved in a motor vehicle accident while in the course and scope of his employment with Employer-Defendant. *Page 4

5. Following the accident, Plaintiff complained of pain in his neck, pain in his lower back, headaches, dizziness, and confusion. He received treatment for these symptoms and was still treating with Dr. William F. Lestini of Triangle Spine and Back Care Center as of the hearing before the Deputy Commissioner. Plaintiff's counsel stipulated at the hearing before the Deputy Commissioner that the back injury had been accepted by Defendants and all requested treatment provided. Plaintiff's counsel further stipulated that the back is not germane to the issue before the Deputy Commissioner.

6. The Full Commission finds that Dr. Lestini's medical records reflect that Plaintiff was taken out of work on January 14, 2008 due to his compensable injury by accident on November 26, 2007.

7. At the hearing before the Deputy Commissioner, Plaintiff testified that he initially believed the injuries caused by the November 26, 2007 compensable accident were limited to his back and neck, but as he began to focus on the other stressors associated with the accident, he began to experience an aggravation of his otherwise dormant bipolar disorder.

8. Plaintiff further testified at the hearing before the Deputy Commissioner that after the November 26, 2007 compensable accident, he began to exhibit the signs and symptoms of bipolar disorder. Plaintiff testified that he "was becoming less productive, and it was getting worse and worse. I knew that my moods on the workplace, the way I was behaving, the warning signs — it was like extreme déjà-vu." The signs and symptoms progressed and became more severe as time passed. Plaintiff described the change in his life as "like a ball of twine, and it was starting to unravel again, and I couldn't rewrap."

9. On January 17, 2008, Plaintiff returned to Dr. Mulkey with complaints of being anxious, being in a lot of pain, and dizzy. Plaintiff indicated that he practiced self-relaxation and *Page 5 other coping strategies, but his anxiety continued. Dr. Mulkey determined that there had been a decline in Plaintiff's condition and that he was no longer engaging in any enjoyable activities, but was spending "almost all of his time just coping with his pain and his anxiety." Dr. Mulkey recommended that Plaintiff receive ongoing therapy and to get back on his psychotropic medications.

10. On May 24, 2008, Dr. Mulkey prepared the following excerpt of a letter "to whom it may concern":

[Plaintiff] returned to therapy in January of 2008 following a serious car accident. He reported that he was having difficulty coping with a chronic pain conditions following the accident and was also experiencing a return of some depression and anxiety, such as tearfulness and hypervigilance. He also notes that he is now having increased manic symptoms, such as an extreme difficulty sleeping. With this return of his bipolar symptoms, it is recommended that [Plaintiff] immediately resume regular visits to a psychiatrist and to outpatient psychotherapy to help him re-stabilize. Without psychiatric and psychological support, it is likely that he'll eventually need to be hospitalized for his bipolar disorder.

11. Plaintiff has been unable to pay for the sessions with Dr. Mulkey and has been unable to return for treatment since the January 17, 2008 office visit. Treatment of Plaintiff's aggravated bipolar disorder was denied by the Defendants.

12. Dr. Saad opined at her deposition that any stress can lead to problems with a bipolar disorder. Assuming that Plaintiff had been managing his bipolar disorder with psychotherapy techniques, that Plaintiff had been maintaining a home and job in the public sector, and given the facts and circumstances of Plaintiff's November 26, 2007 motor vehicle accident, Dr. Saad opined that it would be more likely than not that the motor vehicle accident aggravated Plaintiff's bipolar disorder.

13. Dr. Mulkey opined at her deposition that the motor vehicle accident was reflected *Page 6 in the fact that Plaintiff was not coping well following the accident. Dr. Mulkey further opined that Plaintiff was functioning well before the November 26, 2007 motor vehicle accident; that stress and negative events in his life would exacerbate the symptoms of his bipolar disorder; and the pain that he experienced due to his injuries following the accident can aggravate a psychiatric condition.

14. Dr. Mulkey responded to the question of whether Plaintiff "will ever get over his bipolar condition completely" by stating the following:

[A]t times [Plaintiff] can function fairly well. He usually has difficulty always keeping his mood stable and his schedule stable, but sometimes he functions certainly better than others. I think given his reaction to things that I had seen during therapy, he has difficulty coping with stress and negative events in his life, and it does seem to exacerbate his symptoms. He's very — — his moods are reactive to what's going on in his life. In my opinion, I would certainly think that the accident had something to do with the fact that he was not coping very well when I saw him following the accident. That would make sense to me, because again, during all that intervening time, he had not been hospitalized. He had not sought treatment, and according to him, he had been off his medications. That would suggest to me that he was functioning fairly well.

15. Dr. Mulkey opined to a reasonable degree of psychological certainty that the November 26, 2007 accident aggravated his preexisting bipolar disorder.

16. Plaintiff, Plaintiff's ex-wife Charlotte Avery, and Plaintiff's daughter Leah Halley, all testified as to the worsening of Plaintiff's bipolar disorder and the symptoms since the compensable accident of November 26, 2007.

17. Plaintiff has been out of work since January 14, 2008.

18. In the opinions of Dr. Saad and Dr. Mulkey, an automobile accident is the type of stressor that can aggravate a person's bipolar disorder.

19. Dr. Saad and Dr. Mulkey both opined to a reasonable degree of medical certainty, *Page 7 that in this case the compensable accident of November 26, 2007 more likely than not caused a material aggravation of Plaintiff's bipolar disorder.

20. The Full Commission finds that Plaintiff sustained an admittedly compensable injury to his back and neck as a result of a specific traumatic incident in a motor vehicle accident arising out of and in the course of his employment with Employer-Defendant on November 26, 2007.

21. Based upon the preponderance of the evidence of the record and the credible medical evidence of record, the Full Commission finds that the material aggravation or acceleration of Plaintiff's bipolar disorder has required medical treatment, and continues to require medical treatment.

22. Based upon the preponderance of the evidence of the record and the credible medical evidence of record, the Full Commission finds that there was no competent evidence showing that Plaintiff's bipolar disorder was materially aggravated or accelerated by any stressor other than the compensable accident of November 26, 2007 in which Plaintiff sustained an injury to his back and neck.

23. Based upon the preponderance of the evidence of the record and the credible medical evidence of record, the Full Commission finds Plaintiff's bipolar disorder was materially aggravated or accelerated by the compensable motor vehicle accident of November 26, 2007.

24. Based upon the preponderance of the evidence of the record and the credible medical evidence of record, the Full Commission finds that Plaintiff has been disabled since January 14, 2008.

2. In workers' compensation cases, plaintiff has the burden of proving every element of compensability. As part of this burden, plaintiff must present convincing evidence establishing these elements, including, in this case, expert medical testimony.Holly v. ACTS, Inc.,357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003); Harvey v. RaleighPolice Department, 96 N.C. App. 28, 35, 384. S.E.2d 549, 553, disc. rev. denied,325 N.C. 706, 388 S.E.2d 454 (1989).

3. The medical experts in the case testified in substance that in their opinions, given to a reasonable degree of medical certainty, the compensable accident of November 26, 2007 aggravated Plaintiff's bipolar disorder. The experts' testimony rises above mere speculation or conjecture, and is competent to support a finding of causation. Young v. Hickory Bus. Furniture,353 N.C. 227, 233, 538 S.E.2d 912, 916 (2000).

4. North Carolina courts have held that an injury is compensable if it is caused by an accident that arises out of employment, materially accelerates or aggravates a pre-existing condition, and proximately contributes to disability. N.C. Gen. Stat. § 9 7-2(6); Brown v. Family Dollar Distrib.Ctr., 129 N.C. App. 361, 364, 499 S.E.2d 197, 199 (1998).

5. On November 26, 2007, Plaintiff sustained a compensable injury to his back and neck as a result of a specific traumatic incident in a motor vehicle accident that arose out of and in the course of his employment with Defendant-Employer during a judicially cognizable time period. N.C. Gen. Stat. § 97-2(6); Fish v. Steelcase,Inc., 116 N.C. App. 703, 707, 449 S.E.2d 233, 237 (1994),cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995). This compensable accident *Page 9 materially accelerated or aggravated a preexisting bipolar disorder. N.C. Gen. Stat. § 97-2(6); Brown v. Family Dollar Distrib.Ctr., 129 N.C. App. 361, 364, 499 S.E.2d 197, 199 (1998).

6. If an employee receives an injury which is compensable, and the injury causes the worker to become so emotionally disturbed that they are unable to work, that person is entitled to compensation. Fayne v. Fieldcrest Mills, Inc.,54 N.C.App. 144, 282 S.E.2d 539 (1981).

7. Plaintiff is entitled to receive temporary total disability benefits in the amount of $338.95 for his compensable injury by accident which materially aggravated or accelerated his preexisting bipolar disorder beginning January 14, 2008 and continuing until further Order of the Industrial Commission. N.C. Gen. Stat. § 97-29.

8. The aggravation of Plaintiff's bipolar disorder as set forth in this case is compensable under the North Carolina Worker's Compensation Act and he is entitled to medical treatment for his bipolar disorder which is reasonably necessary to effect a cure, to give relief, and/or to lessen his period of disability and Defendants are obligated to pay for the medical treatment recommended by Dr. Saad and Dr. Mulkey. N.C. Gen. Stat. § 97-25.

2. Subject to a reasonable attorney's fee approved herein, Defendants shall pay Plaintiff temporary total disability benefits at his weekly compensation rate of $338.95 from *Page 10 January 14, 2008 and until further Order of the Industrial Commission.

3. That Defendants shall provide medical treatment for Plaintiff's bipolar condition that will effect a cure, to give relief, and/or to lessen his period of disability and Defendants shall pay for the medical treatment recommended by Dr. Saad and Dr. Mulkey.

4. That Defendants shall pay a reasonable attorney's fee to Plaintiff's counsel equal to twenty-five percent (25%) of the compensation awarded to the Plaintiff herein. Fees that have accrued shall be paid directly to the Plaintiff's counsel in a lump sum; thereafter, Defendants shall pay directly to the Plaintiff's counsel every fourth check of compensation due the Plaintiff.

5. Defendants shall pay the costs of this action.

This the ___ day of November 2011.

S/___________________ PAMELA T. YOUNG CHAIR

CONCURRING:

S/___________________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/___________________ LINDA CHEATHAM COMMISSIONER

I must respectfully dissent from the majority's decision that Plaintiff's bipolar disorder is compensable as I do not believe that Plaintiff has met his burden of proving that his condition was exacerbated by his accident of November 26, 2007.

Our Supreme Court has held that to qualify as "competent evidence" of a causal relationship between a work-related accident and a disabling injury, the expert's testimony "must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation." Holley v. ACTS, Inc.,357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003) (quotingGilmore v. Hoke Cty. Bd. Pf Educ.,222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)). Furthermore, our appellate courts have held that expert opinion "based merely upon speculation and conjecture" does not constitute competent evidence of causation in cases involving complex medical issues.Faison v. Allen Canning Co.,163 N.C. App. 755, 758, 594 S.E.2d 446, 449 (2004) citingHolley, 357 N.C. at 232, 581 S.E.2d at 753.

In concluding that Plaintiff has met his burden with respect to causation, the Full Commission relies upon the testimony of Drs. Mulkey and Saad. Dr. Mulkey, a licensed psychologist, treated Plaintiff in February of 2005 and did not see Plaintiff again until January of 2008. Her opinion relative to causation is speculative, at best, and is based upon a fact pattern disputed by Plaintiff's own testimony.

Dr. Mulkey's causation opinion may be found on pages 428 through 430 of her April 9, 2009, *Page 12 deposition:

Q. When you saw Paul in January of `08, did he give you any kind of history about what he felt caused this decline in his psychiatric condition?

A. Yes, he said that he had been — he stopped medication and had been doing very well from 2003 — from 2005, I'm sorry, from the time when I stopped seeing him until the time of the accident, and he felt that his — that the — his pain and his bipolar symptoms had returned since the accident.

Q. Okay, In your opinion given to a reasonable degree of psychological certainty, did the car accident of November of 2007 aggravate or activate Paul's preexisting psychiatric condition, assuming what the history he gave you was true?

A. Assuming? Because I hadn't seen him for the years prior to the accident. But assuming that what he told me was true, that he had been doing very well up until the accident and that after the accident he wasn't doing well, given all of that, then yeah, I would I would be led to assume that the accident had been involved in exacerbating his symptoms, but I don't have any personal knowledge of that."

The assumption upon which Dr. Mulkey's opinion is based, namely that what Plaintiff told her about his condition prior to and following the accident was true, is called into question by Plaintiff's own testimony. Specifically, Plaintiff testified that he began working in early 2007, after a three year break in his employment. When asked, "Did you develop or did you become aware of any mental or emotional problems that also prevented you from working for that [sic] three years you were out of work?" Plaintiff responded, "Yes." When asked what had kept him from working Plaintiff responded, "Bipolar." Thus, by Plaintiff's own admission, during a significant period of time between when he last treated with Dr. Mulkey and the time of his accident in November of 2007, he was unable to work due to his bipolar condition. Accordingly, I do not believe that, by any measure, Plaintiff could be said to be doing "very well" during that period, which is the assumption upon which Dr. Mulkey based her causation *Page 13 opinion.

Dr. Mulkey's note relative to Plaintiff's visit in February of 2005 also calls into question Plaintiff's representation to Dr. Mulkey that he was doing very well from the time she stopped seeing him in February 2005 up until the accident. The note states in pertinent part, "Client reports that his schedule is still not stable and he is not getting sufficient sleep due to fishing trips. He notes that he is sad about his situation and feels stuck."

Dr. Saad is a psychiatrist, who treated Plaintiff beginning in November of 2002. His causation opinion, like that of Dr. Mulkey, is based upon an assumption that Plaintiff was doing well in the three years prior to early 2007. He also went on to explain, however, that bipolar is episodic over the course of a person's life and that a person may say that he is feeling well, which may indicate the person is in the manic phase of the condition. Dr. Saad opined, "You know, when he says he's doing fine, that's how he was feeling, not necessarily how he was. Sometimes in your manic phase you feel good, but you're manic. You're not aware of it. And a lot of people stop medication for this simple reason, that they're feeling good, they're hyper, they're feeling good. . . . So, again, his feeling is not his being. He would say he was feeling well. I have my doubts."

In addition to citing the testimony of Drs. Mulkey and Saad, the majority also cites Plaintiff's ability to manage his disorder on his own and wean himself off his psychiatric medications in support of their conclusion that Plaintiff met his burden of proving causation. Dr. Saad testified, many people with bipolar disorder stop taking their medications on their own because they are in a manic phase and are feeling good. Accordingly, I do not agree that Plaintiff's unilateral decision to direct his own treatment following February of 2005 is competent evidence that he was doing well from that time up until the accident on November 26, 2007. *Page 14

In conclusion, I believe that the expert medical testimony upon which the majority relies fails to establish competent evidence of causation. As such, Plaintiff's claim should be denied. For the foregoing reasons, I must respectively dissent from the Full Commission's decision in this matter.

This the ___ day of November, 2011.

S/___________________ LINDA CHEATHAM COMMISSIONER