{ "id": 11915554, "name": "KENZIE SALAAM, Plaintiff-Appellant v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant-Appellee", "name_abbreviation": "Salaam v. North Carolina Department of Transportation", "decision_date": "1996-03-19", "docket_number": "No. COA95-425", "first_page": "83", "last_page": "88", "citations": [ { "type": "official", "cite": "122 N.C. App. 83" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "50 ALR4th 714", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "15 ALR4th 294", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "32 ALR3d 922", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "23 ALR3d 1108", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "463 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 776", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918140 ], "year": 1995, "pin_cites": [ { "page": "780" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0776-01" ] }, { "cite": "389 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1990, "pin_cites": [ { "page": "45" }, { "page": "47" }, { "page": "47" } ], "opinion_index": 0 }, { "cite": "326 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308491 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "332-333" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0326-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-27", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "400 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545596, 2540340, 2540374, 2537916, 2545535 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0270-02", "/nc/328/0270-01", "/nc/328/0270-05", "/nc/328/0270-04", "/nc/328/0270-03" ] }, { "cite": "398 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "605-606" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527620 ], "year": 1990, "pin_cites": [ { "page": "755-756" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0754-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "444 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "196" }, { "page": "195" }, { "page": "195-196" }, { "page": "196" } ], "opinion_index": 0 }, { "cite": "336 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535811 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0425-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-47", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 616, "char_count": 11942, "ocr_confidence": 0.75, "pagerank": { "raw": 5.612530894955309e-07, "percentile": 0.948159139779964 }, "sha256": "d4b691f6630384a5c46f2b93e8ba458d4b2e90fe713a31372c292f7a232eb713", "simhash": "1:3c106bdebc1be6e8", "word_count": 1795 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN, John C., concur." ], "parties": [ "KENZIE SALAAM, Plaintiff-Appellant v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant-Appellee" ], "opinions": [ { "text": "MARTIN, Mark D., Judge.\nPlaintiff Kenzie Salaam (Salaam) appeals from Opinion and Award entered by the North Carolina Industrial Commission (Commission) denying Salaam\u2019s claim for additional compensation based on an alleged change of condition.\nOn 30 June 1988 Salaam, while employed with defendant North Carolina Department of Transportation (NCDOT), suffered an injury to his back arising out of, and in the course of, his employment. On 24 August 1988 the Commission approved I.C. Form 21, Agreement for Compensation for Disability, submitted by NCDOT and Salaam.\nOn 30 January 1989 Salaam underwent surgery on his back. After surgery Dr. William L. Pritchard, Salaam\u2019s surgeon, rated Salaam with a ten percent permanent partial disability of the back. On 25 July 1989 the Commission approved I.C. Form 26, Supplemental Memorandum of Agreement as to Payment of Compensation, submitted by the parties. Under the terms of I.C. Form 26, Salaam received thirty weeks of ten percent permanent partial disability compensation pursuant to N.C. Gen. Stat. \u00a7 97-31.\nSalaam subsequently requested a hearing for additional benefits under N.C. Gen. Stat. \u00a7 97-47. In the course of the attendant discovery process, the parties deposed Dr. Pritchard. Prior to the deposition, NCDOT\u2019s counsel engaged in an ex parte conversation with Dr. Pritchard. At the deposition, Salaam\u2019s counsel objected to the entire proceeding based on, among other things, the alleged inappropriate nature of the ex parte conversation.\nOn 15 December 1993 Deputy Commissioner Scott M. Taylor, after considering all the evidence, including Dr. Pritchard\u2019s deposition testimony, concluded Salaam had not sustained a change of condition. Salaam appealed to the Full Commission which also admitted Dr. Pritchard\u2019s deposition testimony. On 3 November 1994 the Full Commission filed an Opinion and Award finding \u201c[o]n September 19, 1991 plaintiff returned to Dr. Pritchard complaining of pain. Plaintiff\u2019s physical condition, however, has not significantly changed since plaintiff agreed to accept ten percent permanent partial disability compensation as a result of his compensable injury on June 30, 1988.\u201d The Commission therefore concluded Salaam, since receiving a permanent partial disability rating of ten percent, \u201chas not undergone a change of condition, and is not, therefore, entitled to additional compensation under N.C.G.S. \u00a7 97-47.\u201d\nOn appeal Salaam contends the Commission erred by: (1) approving I.C. Form 26 in light of the standard enunciated by the Supreme Court in Vernon v. Steven L. Mabe Builders, 336 N.C. 425, 444 S.E.2d 191 (1994); (2) overruling Salaam\u2019s objection to the ex parte communication between Dr. Pritchard and NCDOT; (3) concluding Salaam has not sustained a change of condition; (4) finding NCDOT established, assuming arguendo I.C. Form 26 is set aside, that Salaam is employable; (5) failing to set forth sufficient findings of fact to allow this Court to determine the rights of the parties; and (6) finding there was \u201cno good ground to reconsider\u201d the previous Order and Award.\nI.\nWe first consider Salaam\u2019s allegation the Commission should not have approved I.C. Form 26 because it was fundamentally unfair.\nOur Supreme Court recently held the Commission, prior to approving any I.C. Form 26, must exercise its judicial authority by determining \u201cthe fairness of the agreement.\u201d Vernon, 336 N.C. at 434, 444 S.E.2d at 196. In Vernon, the parties submitted, and the Commission subsequently approved, I.C. Form 26, under which plaintiff received compensation for his injury pursuant to section 97-31. The medical report attached to I.C. Form 26 assigned plaintiff a fifteen percent permanent partial disability of the back, but also stated plaintiff would probably not be able to return to work. Id. at 434, 444 S.E.2d at 195.\nThe Supreme Court, relying on the attending physician\u2019s assertion plaintiff would be unable to work in the future, noted \u201cplaintiff may have been entitled to permanent total disability benefits under section 97-29, as well as permanent partial disability benefits based on the fifteen percent rating under section 97-31.\u201d Id. The Court also found the approving authority assumed, rather than determined, that plaintiff understood his right to elect the most beneficial method of compensation under the Workers\u2019 Compensation Act. Id. at 434, 444 S.E.2d at 195-196. The Court therefore concluded the Commission failed to \u201cact in a judicial capacity [by determining] the fairness of the agreement.\u201d Id. at 434, 444 S.E.2d at 196.\nIn contrast, although the present record establishes Salaam was assigned a ten percent permanent partial disability of his back, we find no evidence in the medical records submitted to the Commission with I.C. Form 26 which supports awarding permanent total disability benefits under section 97-29. See N.C. Gen. Stat. \u00a7 97-29 (1991). In fact, Dr. Pritchard, in his letter assigning Salaam a ten percent permanent impairment, \u201cencouraged [Salaam] ... to seek some gainful employment within his capabilities.\u201d (emphasis added). Therefore, the present case is distinguishable from Vernon because Salaam, unlike the plaintiff in Vernon, was not entitled to benefits under section 97-29. Accordingly, we conclude the Commission appropriately exercised its judicial authority by approving I.C. Form 26 submitted by NCDOT and Salaam.\nFinally, we note the Commission may set aside a previously approved I.C. Form 26 if plaintiff can establish \u201cthat there has been error due to fraud, misrepresentation, undue influence or mutual mistake . . . .\u201d N.C. Gen. Stat. \u00a7 97-17 (1991). We believe, after careful review of the present record, that Salaam cannot establish the existence of any of these factors. See Brookover v. Borden, Inc., 100 N.C. App. 754, 755-756, 398 S.E.2d 604, 605-606 (1990), disc. review denied, 328 N.C. 270, 400 S.E.2d 450 (1991). Accordingly, this assignment of error must fail..\nII.\nWe next consider Salaam\u2019s contention the Commission erred by overruling his objection to the ex parte communication between Dr. Pritchard and NCDOT.\nN.C. Gen. Stat. \u00a7 97-27(b) (1991) provides, in pertinent part: \u201cNo fact communicated to or otherwise learned by any physician . . . who may have . . . examined the employee, or . . . been present at any examination, shall be privileged, either in hearings provided for by this Article or any action at law.\u201d Id. This proviso is considered an exception to the statutory physician-patient privilege created by N.C. Gen. Stat. \u00a7 8-53/Leonard T. Jernigan, Jr., North Carolina Workers\u2019 Compensation \u00a7 17-6 (2d Ed. 1995).\nNevertheless, \u201c[t]he statutory physician-patient privilege is distinct from the rule prohibiting unauthorized ex parte contacts\u201d and, therefore, information actually discoverable because the statutory privilege is inapplicable may be improperly acquired if done so through ex parte communications. Crist v. Moffat, 326 N.C. 326, 332-333, 389 S.E.2d 41, 45 (1990). Clearly, \u201cthe gravamen of [allowing ex parte contacts] is not whether evidence of plaintiff\u2019s medical condition is subject to discovery, but by what methods the evidence may be discovered.\u201d Id. at 336, 389 S.E.2d at 47.\nIn Crist, a medical malpractice case, the Court held \u201cdefense counsel may not interview plaintiff\u2019s nonparty treating physician privately without plaintiff\u2019s express consent\u201d because \u201cconsiderations of patient privacy, the confidential relationship between doctor and patient, the adequacy of formal discovery devices, and the untenable position in which ex parte contacts place the nonparty treating physician supersede defendant\u2019s interest in a less expensive and more convenient method of discovery.\u201d Id. In so holding, the Court assumed the statutory physician-patient privilege was waived by plaintiff. Therefore, the Crist rule precludes non-consensual ex parte communications during adversarial proceedings.\nAlthough we recognize \u201cthe Commission is not required to strictly apply the rules of evidence applicable to a court of law,\u201d Tucker v. City of Clinton, 120 N.C. App. 776, 780, 463 S.E.2d 806, 810 (1995), we likewise note the rationale of the Crist Court did not turn on the existence or nonexistence of an evidentiary privilege. Moreover, after careful review of the bases for the Crist holding \u2014 patient privacy, the confidential relationship between doctor and patient, and the adequacy of formal discovery devices \u2014 we cannot discern why these policy considerations would not be equally applicable to adversarial proceedings before the Commission. Therefore, notwithstanding the relaxed evidentiary rules applicable to the Commission, Id., and the fact defendant\u2019s arguments would carry great force were we writing on a clean slate, we nonetheless are bound by Crist. Consequently, we must conclude the Commission erred by admitting Dr. Pritchard\u2019s deposition testimony in light of the non-consensual ex parte contact between NCDOT and Dr. Pritchard. See Crist, 326 N.C. at 336, 389 S.E.2d at 47.\nFinally, we also note NCDOT, in its brief, argues Salaam suffered no prejudice by admitting Dr. Pritchard\u2019s deposition over his objection because \u201cSalaam was allowed to question the physician about the [ex parte] communication and show any possible taint or bias.\u201d Although the opportunity to cure any prejudice resulting from ex parte communications prior to deposition is theoretically available in every adversarial proceeding, we note the Crist Court appears to have established a prophylactic protection against non-consensual ex parte communications. See Id. Therefore, we must reject this contention.\nAccordingly, we reverse the Opinion and Award filed 3 November 1994 and remand this case to the Commission with directions to strike the deposition testimony of Dr. Pritchard and reconsider Salaam\u2019s request for additional benefits under N.C. Gen. Stat. \u00a7 97-47.\nReversed and remanded.\nJudges EAGLES and MARTIN, John C., concur.", "type": "majority", "author": "MARTIN, Mark D., Judge." } ], "attorneys": [ "Donaldson & Horsley, P.A., by Kathleen G. Sumner, for plaintiff-appellant.", "Attorney General Michael F Easley, by Special Deputy Attorney General Elisha H. Bunting, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "KENZIE SALAAM, Plaintiff-Appellant v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendant-Appellee\nNo. COA95-425\n(Filed 19 March 1996)\n1. Workers\u2019 Compensation \u00a7 339 (NCI4th)\u2014 permanent partial disability \u2014 I.C. Form 26 not fundamentally unfair\nThere was no merit to plaintiff\u2019s contention that the Industrial Commission should not have approved I.C. Form 26 giving plaintiff 30 weeks of 10% permanent partial disability compensation pursuant to N.C.G.S. \u00a7 97-31 because it was fundamentally unfair, since the record established that plaintiff was assigned a ten percent permanent partial disability of his back, but there was no evidence in the medical records submitted to the Commission with I.C. Form 26 which supported awarding permanent total disability benefits under N.C.G.S. 97-29.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 381, 382.\nBack injury or condition as constituting total or permanent disability within insurance coverage. 23 ALR3d 1108.\nWhat constitutes permanent or total disability within coverage of insurance policy issued to physical laborer or workman. 32 ALR3d 922.\nExcessiveness or adequacy of damages awarded for injuries to back, neck, or spine. 15 ALR4th 294.\n2. Workers\u2019 Compensation \u00a7 372 (NCI4th)\u2014 nonconsensual ex parte contact with employee\u2019s treating physician \u2014 deposition inadmissible\nThe Industrial Commission erred by admitting the deposition of plaintiffs treating physician in light of the nonconsensual ex parte contact between defendant\u2019s counsel and the physician.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 602.\nDiscovery right to ex parte interview with injured party\u2019s treating physician. 50 ALR4th 714.\nAppeal by plaintiff from Opinion and Award of the North Carolina Industrial Commission filed 3 November 1994. Heard in the Court of Appeals 25 January 1996.\nDonaldson & Horsley, P.A., by Kathleen G. Sumner, for plaintiff-appellant.\nAttorney General Michael F Easley, by Special Deputy Attorney General Elisha H. Bunting, Jr., for defendant-appellee." }, "file_name": "0083-01", "first_page_order": 119, "last_page_order": 124 }