{ "id": 9079204, "name": "TONJA RUSSELL, Employee, Plaintiff v. LABORATORY CORPORATION OF AMERICA, Employer and CONTINENTAL CASUALTY COMPANY, Carrier, Defendants", "name_abbreviation": "Russell v. Laboratory Corp. of America", "decision_date": "2002-06-18", "docket_number": "No. COA01-1044", "first_page": "63", "last_page": "71", "citations": [ { "type": "official", "cite": "151 N.C. App. 63" } ], "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": "553 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11361641 ], "year": 2001, "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0600-01" ] }, { "cite": "563 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220080, 220180, 220038, 220136 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0490-02", "/nc/355/0490-01", "/nc/355/0490-04", "/nc/355/0490-03" ] }, { "cite": "558 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "215" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365265 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/148/0248-01" ] }, { "cite": "486 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712005 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/126/0547-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "year": 2001, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "552" }, { "page": "(c)" }, { "page": "255" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "101 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "44" }, { "page": "43", "parenthetical": "emphasis omitted" } ], "opinion_index": 0 }, { "cite": "247 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626948 ], "year": 1957, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0332-01" ] }, { "cite": "345 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "317 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778695 ], "year": 1986, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0206-01" ] }, { "cite": "514 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "520" }, { "page": "520" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11215486 ], "year": 1999, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0023-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "year": 2001, "pin_cites": [ { "page": "(24)" }, { "page": "(21)" }, { "page": "(24)" }, { "page": "(24)" }, { "page": "(24)" }, { "parenthetical": "citations omitted" }, { "page": "(24)" }, { "page": "(21)" }, { "page": "(21)" }, { "page": "(21)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 767, "char_count": 20254, "ocr_confidence": 0.724, "pagerank": { "raw": 2.5916105598991863e-07, "percentile": 0.8183295628432391 }, "sha256": "4c19743e9d39b40e7eccce4679d3cc8568bbeb3c234e191fa2f1852a50725b39", "simhash": "1:e8404f42283a5e32", "word_count": 3224 }, "last_updated": "2023-07-14T16:47:19.620477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and THOMAS concur." ], "parties": [ "TONJA RUSSELL, Employee, Plaintiff v. LABORATORY CORPORATION OF AMERICA, Employer and CONTINENTAL CASUALTY COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nTonja Russell (\u201cplaintiff\u2019) appeals an opinion and award of the North Carolina Industrial Commission awarding her medical expenses and temporary total disability compensation but denying compensation for permanent partial impairment and disfigurement. We affirm.\nOn 29 May 1996, plaintiff was employed by defendant Laboratory Corporation of America, which was insured by Continental Casualty Company (collectively \u201cdefendants\u201d). On that date, plaintiff fell when her foot became entangled in a stool at her workstation, causing her to strike her head on a counter top. Plaintiff was examined that day by emergency room doctor Charles Stewart, who conducted various tests on plaintiff. X-rays of plaintiff\u2019s cervical, lumbosacral spine and nasal passages showed no fractures, and an MRI, CT scan, and EEG of plaintiff\u2019s head revealed normal brain function. Dr. Stewart determined that plaintiff had suffered a concussion and scheduled her for a follow-up visit. Plaintiffs fall also caused a tooth abscess and several chipped teeth, which teeth were restored with composite resin, and a root canal was performed.\nPlaintiff returned to Dr. Stewart on 3 June 1996. Plaintiff exhibited minor symptoms of concussion but had normal mental status, and Dr. Stewart did not anticipate further visits unless plaintiff continued to experience symptoms. On 4 October 1996, plaintiff returned to Dr. Stewart complaining of headaches and fainting spells. Dr. Stewart ordered an MRI be performed, the result of which was normal. Dr. Stewart continued to treat plaintiff for headaches throughout 1996, 1997 and part of 1998.\nPlaintiff resigned from her employment with defendants on 26 August 1997. Plaintiff held various other jobs following her resignation, and at the time of the hearing was taking college classes to become a physician\u2019s assistant. In 1998, plaintiff relocated to Florida where she sought treatment from Dr. Beena Stanley, a neurologist, and Dr. Rama Nathan, an ear, nose, and throat specialist.\nIn 1999, plaintiff underwent an independent medical examination by Dr. William Greenberg which confirmed that her MRI results were normal and that she exhibited normal mental status and speech function. Dr. Greenberg noted that plaintiff was very physically active, and that she played on a semi-professional softball team. Dr. Greenberg opined that plaintiff had reached maximum medical improvement, but that she would need to visit a physician approximately four times a year until her headaches were under control.\nThe Commission found as fact that plaintiffs headaches and tooth injuries were caused by her fall on 29 May 1996. Accordingly, it ordered defendants to pay all reasonable necessary medical expenses incurred by plaintiff for the treatment of her injuries. In addition, defendants were ordered to pay plaintiff temporary total disability for various periods of work which plaintiff missed as a result of her injuries. However, the Commission declined to award plaintiff for permanent partial impairment resulting from damage to an internal organ under N.C. Gen. Stat. \u00a7 97-31(24) (2001), and for serious facial or head disfigurement resulting from the damage to her teeth under N.C. Gen. Stat. \u00a7 97-31(21). Plaintiff appeals.\n\u201cThe standard of appellate review of an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its legal conclusions.\u201d Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 25, 514 S.E.2d 517, 520 (1999). The Commission\u2019s findings are conclusive on appeal if there is any competent evidence to support them; however, its conclusions of law are reviewable de novo. Id. at 26, 514 S.E.2d at 520.\nPlaintiff first argues that the Commission erred in sustaining defendants\u2019 objection to the introduction of the medical records of Drs. Stanley and Nathan which plaintiff offered into evidence during the deposition of Dr. Stewart. On 3 September 1999, prior to Dr. Stewart\u2019s deposition, defendants informed plaintiff by letter that they would not stipulate to the introduction of the medical records of Drs. Stanley and Nathan. Defendants informed plaintiff that they would agree to depose those doctors, which would have allowed for plaintiff to introduce the medical records, but plaintiff did not initiate those depositions. The Commission determined that it was plaintiff\u2019s burden to have scheduled the depositions of Drs. Stanley and Nathan if she had wanted to introduce their medical records.\nThe Commission upheld defendants\u2019 objection to the records\u2019 introduction, which objection came after Dr. Stewart\u2019s deposition. In so ruling, the Commission noted that Dr. Stewart was not authorized to authenticate the records because he did not review or rely upon them in forming his opinions or testimony, and did not refer plaintiff to either Dr. Stanley or Dr. Nathan. There is evidence to support the Commission\u2019s ruling, as Dr. Stewart\u2019s deposition reveals that he did not refer plaintiff to either doctor, and that he only reviewed the medical records upon receiving them from plaintiff\u2019s attorney approximately one week prior to his deposition, and therefore did not rely upon them in diagnosing plaintiff. This argument is overruled.\nPlaintiff next argues that the Commission erred in concluding that the evidence failed to show that she sustained a compensable injury to her brain. The Commission made conclusions of law that as a result of her fall, plaintiff developed migraine headaches which caused her to be unable to work for particular periods of time, for which periods defendants were required to compensate plaintiff for temporary total disability. However, the Commission concluded that there was no evidence that plaintiff had sustained a brain injury that would entitle her to permanent partial impairment compensation for damage to an internal organ under N.C. Gen. Stat. \u00a7 97-31(24).\nUnder N.C. Gen. Stat. \u00a7 97-31(24), \u201c[i]n case of the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under any other subdivision of this section, the Industrial Commission may award proper and equitable compensation.\u201d Id. \u201cBy employing the word \u2018may\u2019 in N.C.G.S. \u00a7 97-31(24) the legislature intended to give the Industrial Commission discretion whether to award compensation under that section.\u201d Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986). Thus, the Commission has discretion as to whether an award under N.C. Gen. Stat. \u00a7 97-31(24) is warranted, and its decision will not be overturned on appeal unless it \u201c \u2018is manifestly unsupported by reason,\u2019 \u201d or \u201c \u2018so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Id. (citations omitted).\nHere, the Commission made relevant findings of fact that on the date of the accident, 29 May 1996, x-rays, a CT head scan, and brain MRI and EEG tests were performed and all results indicated plaintiff had normal brain function; that an additional MRI was performed in October 1996 which indicated plaintiff had normal brain function; and that in June 1999 plaintiff underwent an independent medical examination wherein the results of her latest MRI were confirmed to be normal, her mental testing status and speech function were both normal, and the doctor observed that plaintiff was very physically active and had reached maximum medical improvement. The Commission found, in sum, that \u201c[a]ll physical examinations and testing, such as the MRI\u2019s of the brain, show no physical damage to the brain.\u201d The Commission also made findings of fact pertaining to plaintiff\u2019s physically active lifestyle, her enrollment in college, and her articulate and alert demeanor at the hearing.\nPlaintiff does not dispute that these findings were supported by the evidence, and that none of her medical tests, including her MRI\u2019s, x-rays, EEG, and CT scan, revealed anything but normal brain function. In light of these findings, we cannot conclude that the decision to deny compensation for a permanent brain injury under N.C. Gen. Stat. \u00a7 97-31(24) was wholly arbitrary or manifestly unsupported by reason, though there may have been evidence to the contrary.\nPlaintiff further argues that the Commission erred in concluding that she was not entitled to compensation for the \u201cdisfigurement\u201d to her teeth because the damage did not require any extractions or crowns. The Commission found as fact that plaintiff\u2019s fall caused her to chip her teeth and created one tooth abscess. Plaintiffs dentist restored the chipped teeth with composite resin and performed a root canal. The Commission made a conclusion of law that as a result of her compensable injury, plaintiff sustained damage to her teeth which required dental treatment and repair, for which treatment defendant was responsible. However, the Commission also concluded that plaintiff\u2019s dental work did not require any extractions or crowns, and that she was not entitled to compensation for \u201cdisfigurement\u201d under N.C. Gen. Stat. \u00a7 97-31(21).\nUnder N.C. Gen. Stat. \u00a7 97-31(21), \u201c[i]n case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed twenty thousand dollars ($20,000).\u201d Id. Plaintiff does not dispute that she was not required to undergo extractions or have crowns placed on her teeth, but argues that the injury to her teeth already, or will in the future, constitute \u201cserious facial or head disfigurement.\u201d\nThe issue of whether an employee has suffered \u201cserious facial or head disfigurement\u201d is a question of fact to be resolved by the Commission. Davis v. Construction Co., 247 N.C. 332, 337, 101 S.E.2d 40, 44 (1957). In Davis, our Supreme Court expounded on the concept of serious disfigurement:\nUnder our decisions, there is a serious disfigurement in law only when there is a serious disfigurement in fact. A serious disfigurement in fact is a disfigurement that mars and hence adversely affects the appearance of the injured employee to such extent that it may be reasonably presumed to lessen his opportunities for remunerative employment and so reduce his future earning power. True, no present loss of wages need be established; but to be serious, the disfigurement must be of such nature that it may be fairly presumed that the injured employee has suffered a diminution of his future earning power.\nId. at 336, 101 S.E.2d at 43 (emphasis omitted).\nIn this case, plaintiff did not lose any teeth and it does not appear from the record that she presented any evidence tending to show that the injury to her teeth was of such a marring nature that she would suffer diminution in her future earning capacity. Moreover, as noted in the section of the Commission\u2019s Ratings Guide pertaining to disfigurement of teeth, compensation for disfigurement is paid where teeth have been extracted due to accidental injury, and where teeth are crowned, fifty percent of the value of the tooth will be awarded. However, the Ratings Guide provides that \u201c[i]f the tooth is merely chipped and a cap-type repair is done, then, of course, no compensation would be paid for disfigurement.\u201d We agree with the Commission that the injury to plaintiff\u2019s teeth did not rise to the level of a serious disfigurement warranting compensation under N.C. Gen. Stat. \u00a7 97-31(21). This argument is overruled.\nFinally, plaintiff argues that the Commission erred in limiting plaintiff\u2019s attorney\u2019s fees to twenty-five percent of the net compensation awarded plaintiff. Plaintiff states in her brief that her attorney submitted to the deputy commissioner a copy of an agreement between the attorney and plaintiff establishing counsel would be entitled to a thirty-three and one-third percent contingent fee. Both the deputy commissioner and the Full Commission ordered that plaintiff\u2019s counsel would receive twenty-five percent of the net compensation awarded plaintiff, and that this percentage was a reasonable attorney\u2019s fee.\nPlaintiff argues that the Commission\u2019s failure to cite reasons why it did not approve a fee of thirty-three and one third percent was erroneous, and requires that we direct the Commission to order that this amount be provided to plaintiff\u2019s counsel. In support of this argument, plaintiff cites N.C. Gen. Stat. \u00a7 97-90(c) (2001) which provides:\n(c) If an attorney has an agreement for fee or compensation under this Article, he shall file a copy or memorandum thereof with the hearing officer or Commission prior to the conclusion of the hearing. If the agreement is not considered unreasonable, the hearing officer or Commission shall approve it at the time of rendering decision. If the agreement is found to be unreasonable by the hearing officer or Commission, the reasons therefor shall be given and what is considered to be reasonable fee allowed.\nN.C. Gen. Stat. \u00a7 97-90(c). However, the statute further provides:\nIf within five days after receipt of notice of such fee allowance, the attorney shall file notice of appeal to the full Commission, the full Commission shall hear the matter and determine whether or not the attorney\u2019s agreement as to a fee or the fee allowed is unreasonable. If the full Commission is of the opinion that such agreement or fee allowance is unreasonable and so finds, then the attorney may, by filing written notice of appeal within 10 days after receipt of such action by the full Commission, appeal to the senior resident judge of the superior court in the county in which the cause of action arose or in which the claimant resides; and upon such appeal said judge shall consider the matter and determine in his discretion the reasonableness of said agreement or fix the fee and direct an order to the Commission following his determination therein.\nN.C. Gen. Stat. \u00a7 97-90(c).\nIn Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478 (1997), we held that the plaintiffs failure to comply with the appeal procedures set forth in N.C. Gen. Stat. \u00a7 97-90(c) required dismissal of his argument that the Commission failed to properly address the issue of fees as required by N.C. Gen. Stat. \u00a7 97-90. Id. at 552, 486 S.E.2d at 480. We rejected the plaintiffs argument that because the Commission failed to address the issue of fees, he was not required to comply with the statutory appeal procedures. Id. We noted:\nHad [plaintiff] or his attorney brought the matter to the superior court in the manner set out in G.S. \u00a7 97-90, the Commission would thereby have been compelled to explain its failure to award counsel fees. Perhaps, as plaintiff claims, the Commission neglected to do so because of mere oversight. Whatever the explanation for the Commission\u2019s omission, however, neither plaintiff nor his attorney complied with G.S. \u00a7 97-90.\nId.\nSimilarly, in Davis v. Trus Joist MacMillan, 148 N.C. App. 248, 558 S.E.2d 210, disc. review denied, 355 N.C. 490, 563 S.E.2d 564 (2002), we recently observed that N.C. Gen. Stat. \u00a7 97-90(c) requires that after the Full Commission renders a decision, the matter \u201cmust\u201d be appealed to the senior resident judge of the superior court in the county in which the cause of action arose or in which the plaintiff resides. Id. at 255, 558 S.E.2d at 215. Thus, where the plaintiff failed to appeal the dispute over attorney\u2019s fees according to the procedures set out in section 97-90(c), we determined that \u201cwe are without jurisdiction to hear the issue and must dismiss the appeal.\u201d Id.\nIn the present case, assuming that plaintiff\u2019s attorney duly provided a copy of the agreement to the hearing officer or Commission prior to the conclusion of the hearing, the record fails to establish that plaintiff followed the procedures outlined in the statute for appealing the Commission\u2019s failure to approve the agreement. The record contains no indication that plaintiff appealed this matter to the senior resident judge of the superior court in the county in which the cause of action arose or in which plaintiff resides. Accordingly, we do not have jurisdiction over this issue.\nFor the reasons stated herein, the opinion and award of the Full Commission is affirmed.\nAffirmed.\nJudges WYNN and THOMAS concur.\n. The Commission determined that defendants had not waived their objection by failing to object during Dr. Stewart\u2019s deposition because the deposition stipulations\u2019 boilerplate language provided that objections would be preserved except those pertaining to the form of a question.\n. The record on appeal fails to contain plaintiffs fee agreement, nor any indication (other than plaintiffs assertion) that it was duly filed prior to the conclusion of the hearing in accordance with N.C. Gen. Stat. \u00a7 97-90(e). \u201cAppellate review is based \u2018solely upon the record on appeal,\u2019 N.C.R. App. R 9(a); it is the duty of the appellants to see that the record is complete.\u201d Collins v. Talley, 146 N.C. App. 600, 603, 553 S.E.2d 101, 102 (2001).", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Charles N. Stedman for plaintiff-appellant.", "Smith Helms Mulliss & Moore, L.L.P., by Jeri L. Whitfield and Shannon J. Adcock, for defendant-appellees." ], "corrections": "", "head_matter": "TONJA RUSSELL, Employee, Plaintiff v. LABORATORY CORPORATION OF AMERICA, Employer and CONTINENTAL CASUALTY COMPANY, Carrier, Defendants\nNo. COA01-1044\n(Filed 18 June 2002)\n1. Workers\u2019 Compensation\u2014 introduction of medical records \u2014 doctors not deposed\nThe Industrial Commission did not err in a workers\u2019 compensation action by sustaining defendant\u2019s objections to the introduction of medical records from doctors plaintiff saw after she moved to Florida where plaintiff offered the records during the deposition of the doctor who first saw plaintiff in the emergency room. Defendants had informed plaintiff that they would not stipulate to the introduction of the records, but would agree to depose the Florida doctors. The Commission determined that it was plaintiff\u2019s burden to schedule depositions of the doctors if she wanted to introduce their medical records, and noted that the emergency room doctor was not authorized to authenticate the records because he did not review or rely upon them in forming his opinions or testimony, and that he did not refer plaintiff to either doctor. There is evidence to support the Commission\u2019s ruling.\n2. Workers\u2019 Compensation\u2014 compensable brain injury \u2014 evidence not sufficient\nThe Industrial Commission did not err in a workers\u2019 compensation action by concluding that the evidence did not show a compensable brain injury where the Commission found that all of the physical examinations and testing showed no physical damage to the brain and made further findings pertaining to plaintiff\u2019s physically active lifestyle, her enrollment in college, and her articulate, alert demeanor at the hearing. It cannot be concluded that the decision to deny compensation was wholly arbitrary or manifestly unsupported by reason, although there may have been evidence to the contrary.\n3. Workers\u2019 Compensation\u2014 disfigurement of teeth \u2014 evidence not sufficient\nThe Industrial Commission did not err in a workers\u2019 compensation action by concluding that plaintiff was not entitled to compensation for disfigurement to her teeth where the teeth were restored with composite resin and a root canal and the Commission held defendant responsible for that treatment. Plaintiff did not need extractions or crowns and it does not appear from the record that plaintiff presented evidence that the injury was so marring that she would suffer diminution of her future earning capacity. The injury did not rise to the level of a serious disfigurement warranting compensation under N.C.G.S. \u00a7 97-31(21).\n4. Workers\u2019 Compensation\u2014 attorney fees \u2014 limited\u2014appeal procedure not followed\nThe Court of Appeals did not have jurisdiction in a workers' compensation action to consider whether the Industrial Commission erred by limiting plaintiffs attorney fees where plaintiff did not follow statutory procedures for appealing the Commission\u2019s failure to approve plaintiffs fee agreement.\nAppeal by plaintiff from an opinion and award entered 21 May 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 15 May 2002.\nCharles N. Stedman for plaintiff-appellant.\nSmith Helms Mulliss & Moore, L.L.P., by Jeri L. Whitfield and Shannon J. Adcock, for defendant-appellees." }, "file_name": "0063-01", "first_page_order": 93, "last_page_order": 101 }