{
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  "name": "RICKY B. HANDY, Employee, Plaintiff v. PPG INDUSTRIES, Employer, Self-Insured and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants",
  "name_abbreviation": "Handy v. PPG Industries",
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  "docket_number": "No. COA01-1447",
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    "judges": [
      "Chief Judge EAGLES and Judge MARTIN concur."
    ],
    "parties": [
      "RICKY B. HANDY, Employee, Plaintiff v. PPG INDUSTRIES, Employer, Self-Insured and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants"
    ],
    "opinions": [
      {
        "text": "THOMAS, Judge.\nDefendants, PPG Industries and Key Risk Management Services, appeal from an opinion and award of the North Carolina Industrial Commission in favor of plaintiff, Ricky B. Handy.\nThey contend the Commission erred in determining the Deputy Commissioner did not violate their due process or equal protection rights by (1) changing plaintiffs theory of recovery ex mero motu from injury by accident to occupational disease; (2) ordering ex mero motu that a physician not present at the hearing be asked questions; (3) formulating questions and an essential factual hypothetical to be submitted to the physician; and (4) in sum, assisting plaintiff with his claim.\nThe Commission, based in part on the deposition testimony of the physician ordered to testify by the Deputy Commissioner, allowed plaintiffs claim and ordered defendants to pay all resulting medical expenses. Based on the reasons herein, we affirm the opinion and award of the Commission.\nAt the outset, we note plaintiff appeared pro se before the Deputy Commissioner and the Full Commission, and did not file a brief on appeal.\nThe facts are as follows: Plaintiff began working for defendant-employer PPG in April 1994. During most of his employment, plaintiff was a twist machine operator (TMO) in the manufacturing of yarn.\nHis job consisted of three primary tasks. First, he was required to doff his machine, which involved removing up to eighty bobbins weighing between two and thirty-five pounds from the frame of the machine and placing them on a pin truck. Doffing was not required on most days, however.\nPlaintiffs second task was cleaning the machine. Approximately twelve times per shift, he used long brushes to clean the inside of the frame of the machine, and used steel wool and chemical towels to clean the other parts.\nPlaintiffs third and perhaps most important task was called the wrap-in procedure. His twist machine contained large spools of fiberglass thread, referred to as packages, which were located at two different levels, six-and-a-half and seven feet off the ground. There were forty spools on each level. A certain length of thread was required to hang from a package to allow plaintiff to thread the machine and attach the thread to a bobbin. The machine was supposed to automatically release the appropriate amount of thread, but, in July 1997, it began to malfunction. As a result, plaintiff often had to reach up and turn each package six or seven times, overcoming the resistance in the packages in order to release the thread. Plaintiff is five feet six- and-a-half inches in height, which meant he often had to stand on his toes and reach over his head to turn the packages.\nOnce the machine was fully threaded, plaintiff would then monitor it to make sure the spindles were running. He would also sweep the area around the machine.\nAdditionally, the evidence indicates plaintiff was a regular weightlifter from 1991 until early 1998, but, thereafter, he lifted weights at a reduced level and stopped doing certain exercises.\nIn November 1997, plaintiff began experiencing pain in his left shoulder when he reached to turn the packages. He also experienced the pain at night while not at work. Occasionally he awakened with numbness in his left arm. He finally saw a physician\u2019s assistant about his shoulder pain in late January 1998. The physician\u2019s assistant noted that plaintiff complained of increased pain when lifting weights and experienced improvement when he avoided lifting them. Plaintiff was advised to take anti-inflammatory medication and stop weightlifting.\nOn 10 February 1998, plaintiff saw Dr. Richard Worf, his family doctor, and reported continuing shoulder pain.\nOn 25 February 1998, as he was turning one of the packages at work, plaintiff experienced a sharp pain in his left shoulder. He was treated by the company nurse with heat and ice. On 5 March 1998, plaintiff saw Dr. Chris Christakos and reported shoulder problems associated with overhead activity at work as well as weightlifting. Christakos diagnosed plaintiff as suffering from left shoulder impingement syndrome and prescribed medication and rest. Nevertheless, plaintiff\u2019s symptoms persisted with only slight improvement.\nOn 24 March 1998, Christakos gave plaintiff a steroid injection in his left shoulder and referred him to physical therapy. Plaintiff continued to see Christakos over the next six months. Despite shoulder pain, plaintiff remained at PPG in a light duty position.\nChristakos eventually referred plaintiff to Dr. Gregory Holthusen, an orthopaedic surgeon, who examined him on 28 October 1998. Holthusen was advised that plaintiff had suffered shoulder pain for over a year. Plaintiff also reported his shoulder had been treated with a cortisone injection and physical therapy but the pain persisted. He described his overhead lifting at work and weightlifting. Holthusen diagnosed plaintiff as suffering from \u201crotator cuff tendinitis secondary to subacromial impingement.\u201d Plaintiff was treated with an injection to the subacromial space and his work restrictions were continued for two weeks.\nOn 3 February 1999, plaintiff again saw Holthusen and reported increased symptoms associated with repeated overhead reaching. Plaintiff was advised not to perform activities above shoulder level.\nDespite plaintiffs shoulder problems, he neither missed time at work nor sustained a reduction in wages.\nOn 11 August 1998, plaintiff filed a Form 33 request for hearing in which he contended he suffered a left shoulder injury on 25 February 1998. Defendants responded by denying plaintiff suffered an injury by accident or an occupational disease.\nPlaintiffs claim was heard by Deputy Commissioner Morgan Chapman on 10 February 1999. Plaintiff appeared pro se and testified on his own behalf. He failed to present any additional witnesses and failed to present any medical testimony on the issue of causation. Diane Swicegood, plant nurse at PPG, testified for defendants, who were represented by counsel. Plaintiffs answers to interrogatories, his employee health record, and an employee incident report were admitted into evidence.\nFollowing the hearing, the Deputy Commissioner held the record open on her own motion for the receipt of medical records. She explained she would treat the claim as one for an occupational disease and would permit the parties to submit written questions to be mailed to Dr. Holthusen. The parties\u2019 written questions would be added to questions she herself intended to prepare.\nDefendants requested that Holthusen\u2019s testimony be taken by deposition. The Deputy Commissioner granted defendants\u2019 request. She ordered her factual hypothetical and follow-up questions be submitted first and only then would defendants be allowed to cross-examine Holthusen.\nIn compliance with the Deputy Commissioner\u2019s order, Holthusen\u2019s deposition was taken on 1 December 1999. Although he received notice, plaintiff did not appear at the deposition or submit questions. Defense counsel began the deposition by reading the Deputy Commissioner\u2019s factual hypothetical and asking the Deputy Commissioner\u2019s prepared questions. Defense counsel entered an objection on the record. In response to the Deputy Commissioner\u2019s hypothetical and follow-up questions, Holthusen testified that plaintiff\u2019s job duties (1) placed him at risk of developing shoulder tendinitis and (2) contributed to his development of tendinitis. Defense counsel then proceeded with a lengthy cross-examination of Holthusen covering approximately thirty-one pages of transcript.\nOn 11 June 2000, the Deputy Commissioner entered an opinion and award. She found plaintiff had not suffered an injury by accident and concluded his shoulder tendinitis was an occupational disease. She ordered defendants to pay all resulting medical expenses, past and future. Defendants appealed to the Full Commission. The Full Commission affirmed and defendants now appeal to this Court.\nThe basis of defendants\u2019 appeal is their contention that the Full Commission erred in determining the Deputy Commissioner had not become an advocate for plaintiff, thus abandoning her role as an impartial fact finder and decision maker.\nThe courts of this State have long held that the rules of procedure and evidence applicable in our general courts do not govern the Industrial Commission\u2019s administrative fact-finding function. See Maley v. Furniture Co., 214 N.C. 589, 200 S.E. 438 (1939); Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 535 S.E.2d 602 (2000); Allen v. K-Mart, 137 N.C. App. 298, 528 S.E.2d 60 (2000); Haponski v. Constructor\u2019s Inc., 87 N.C. App. 95, 360 S.E.2d 109 (1987). In fact, the Workers\u2019 Compensation Act (Act) mandates that the processes, procedures, and discovery under the Act \u201cshall be as summary and simple as reasonably may be.\u201d N.C. Gen. Stat. \u00a7 97-80(a) (2001). The Commission is empowered to make rules for carrying out the provisions of the Act consistent with this stated purpose. Id. Members of the Commission, as well as deputy commissioners, are empowered to take evidence and enter orders, opinions, and awards. N.C. Gen. Stat. \u00a7 97-79(b) (2001).\nIn interpreting an earlier version of the Act in Maley, our Supreme Court stated:\nThe Industrial Commission is an administrative board, with gwasi-judicial functions. The manner in which it transacts its business is a proper subject of statutory regulation and need not necessarily conform to court procedure except where the statute so requires, or where, in harmony with the statute, or where it fails to speak, the Court of last resort, in order to preserve the essentials of justice and the principles of due process of law, shall consider rules similar to those observed in strictly judicial investigations in courts of law to be indispensable or proper.\nMaley, 214 N.C at 594, 200 S.E. at 441 (emphasis in original). In accord with the Supreme Court\u2019s view in Maley, this Court has consistently held that the Commission must conform to court procedure and evidentiary rules where required to preserve justice and due process. See Goff, 140 N.C. App. at 134-35, 535 S.E.2d at 605-06 (holding the Commission erred by allowing the plaintiff to admit a new doctor\u2019s report without allowing the opposing parties an opportunity to cross-examine the doctor); Allen, 137 N.C. App. at 304, 528 S.E.2d at 64-65 (holding the Commission erred by allowing significant new evidence from physicians to be admitted while denying the defendants the opportunity to depose or cross-examine the physicians or requiring the plaintiff to be examined by experts chosen by the defendants); Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 21, 510 S.E.2d 388, 395 (1999) (holding the Commission erred by not allowing the defendant to present evidence in a hearing in which the defendant had the burden of proof).\n\u201cWhenever a governmental tribunal. . . considers a case in which it may deprive a person of life, liberty or property, it is fundamental to the concept of due process that the deliberative body give that person\u2019s case fair and open-minded consideration.\u201d Crump v. Bd. of Education, 326 N.C. 603, 613, 392 S.E.2d 579, 584 (1990). Essential to due process is a fair trial in a fair tribunal with an unbiased, impartial decision maker. Id. at 613-15, 392 S.E.2d at 584-85. To make out a due process claim based on this theory, the complaining party must show the decision maker possesses a disqualifying personal bias. Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 354, 342 S.E.2d 914, 924 (1986). \u201cBias has been defined as \u2018a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction[.]\u2019 \u201d Crump, 326 N.C. at 615, 392 S.E.2d at 585 (quoting Black\u2019s Law Dictionary 147 (5th ed. 1979)).\nDefendants first contend the Deputy Commissioner violated their due process rights by changing plaintiff\u2019s theory of recovery. However, there is nothing in the record on appeal to indicate plaintiff elected at any time to proceed solely on the theory of injury by accident to the exclusion of an occupational disease theory. Further, defendants have failed to identify any statute or Industrial Commission rule requiring a workers\u2019 compensation claimant to choose between injury by accident and occupational disease as a basis for recovery. N.C. Gen. Stat. \u00a7 97-52 (2001) states that an injury resulting from an occupational disease \u201cshall be treated as the happening of an injury by accident within the meaning of the North Carolina Workers\u2019 Compensation Act.\u201d We conclude plaintiff was not required to make an election and thus the Deputy Commissioner\u2019s decision to treat his claim as one based on an occupational disease did not violate defendants\u2019 due process rights.\nWe likewise disagree with defendants\u2019 next contention that their due process rights were violated by the Deputy Commissioner\u2019s decision to order the testimony of Holthusen. The Commission, as well as deputy commissioners, are statutorily empowered to order testimony be taken by deposition. N.C.G.S. \u00a7 97-80(d); N.C.G.S. \u00a7 97-79(b) (granting deputy commissioners the same powers as members of the Commission under N.C.G.S. \u00a7 97-80). Further, Industrial Commission Rule 612 allows a commissioner or deputy commissioner to order the deposition of a witness following a hearing when additional testimony from the witness is necessary to the disposition of the case. 4 NCAC 10A.0612(a) (2001). The courts of this State are also permitted to call witnesses to testify, with or without a request from a party. N.C.R. Evid. 614(a) (2001). Here, the Deputy Commissioner originally intended for written questions to be submitted to Holthusen. It was defendants who then requested a deposition. The subsequent ordering of Holthusen\u2019s deposition did not indicate a disqualifying personal bias on her part or deprive defendants of an impartial decision maker in violation of due process.\nDefendants argue the Deputy Commissioner continued her role as advocate for plaintiff in violation of their due process rights by preparing the factual hypothetical and follow-up questions for Holthusen. They claim those questions went beyond clarifying Holthusen\u2019s testimony and instead sought to elicit new testimony necessary to satisfy plaintiff\u2019s burden of proof.\nN.C.R. Evid. 614(b) (2001) specifically allows the trial court to \u201cinterrogate witnesses, whether called by itself or by a party.\u201d Such interrogation, in the exercise of the trial court\u2019s duty to supervise and control the course of a trial, has consistently been allowed for the purpose of clarifying contradictory or confusing testimony. See State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986); State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986); State v. Hill, 105 N.C. App. 489, 494, 414 S.E.2d 73, 77 (1992); State v. Chandler, 100 N.C. App. 706, 710, 398 S.E.2d 337, 339 (1990). In interrogating a witness, the court may not intimate an opinion as to the witness\u2019s credibility, State v. Long, 113 N.C. App. 765, 771, 440 S.E.2d 576, 579 (1994), or express an opinion as to whether any essential fact has been proved. State v. Lowe, 60 N.C. App. 549, 552, 299 S.E.2d 466, 468 (1983). However, a trial court may ask questions that elicit testimony which proves an element of the case so long as the court does not comment on the strength of the evidence or the credibility of the witness. State v. Smarr, 146 N.C. App. 44, 52-53, 551 S.E.2d 881, 886 (2001), disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002); Lowe, 60 N.C. App. at 552, 299 S.E.2d at 468. The submission of the questions \u201cmust be conducted with care and in a manner which avoids prejudice to either party.\u201d Chandler, 100 N.C. App. at 710, 398 S.E.2d at 339 (citing State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968)).\nHere, plaintiff appeared pro se before the Deputy Commissioner, while defendants were represented by counsel. At the conclusion of the hearing, the Deputy Commissioner developed a factual hypothetical and four questions to be read to plaintiff\u2019s physician. Defendants were again represented by counsel at the deposition. Defense counsel read the prepared hypothetical and four questions to plaintiff\u2019s physician.\nFollowing the physician\u2019s answers, defendants proceeded with their cross-examination. The Deputy Commissioner, who was not present at the deposition, did not comment on the strength of the evidence or the credibility of the witness. The fact that Holthusen\u2019s answers were dispositive of an essential issue does not constitute error. See Smarr, 146 N.C. App. at 52-53, 551 S.E.2d at 886. The questions presented by the Deputy Commissioner were neutral, which, depending upon the answer, could benefit either plaintiff or defendants. See Lowe, 60 N.C. App. at 552, 299 S.E.2d at 468 (finding no error in trial court\u2019s questions to a witness; the witness\u2019s responses were the only evidence as to the value of a television set in a felony larceny case).\n\u201cThis Court will not interfere with the trial court\u2019s exercise of its duty to control the conduct and course of the trial absent a showing of manifest abuse.\u201d Long, 113 N.C. App. at 771, 440 S.E.2d at 580. Defendants advance no plausible argument why the Commission, and in turn deputy commissioners, should not hold the same power to interrogate witnesses when performing their administrative fact-finding function. The Deputy Commissioner\u2019s questions to Holthusen do not indicate a disqualifying personal bias on her part. Thus, there was no violation of defendants\u2019 due process right to a fair trial and impartial decision maker. The Deputy Commissioner did not abuse her discretion in submitting the hypothetical and follow-up questions to Holthusen.\nDefendants next contend \u201cthe Deputy Commissioner\u2019s actions violated the statutory prohibition against the Industrial Commissioner representing a claimant in a compensation hearing.\u201d Again, we disagree.\nN.C. Gen. Stat. \u00a7 97-79(f) (2001) states:\nThe Commission shall create an ombudsman program to assist unrepresented claimants, employers, and other parties, to enable them to protect their rights under this Article. In addition to other duties assigned by the Commission, the ombudsman shall meet with, or otherwise provide information to, injured employees, investigate complaints, and communicate with employers\u2019 insurance carriers and physicians at the request of the claimant. Assistance provided under this subsection shall not include representing the claimant in a compensation hearing.\nHere, the record does not indicate that a N.C.G.S. \u00a7 97-79(f) ombudsman was involved in assisting plaintiff. Since the Deputy Commissioner acted within her discretion in preparing and submitting the questions to plaintiff\u2019s physician, these actions do not amount to \u201crepresenting the claimant in a compensation hearing.\u201d Id.\nDefendants\u2019 final contention is that the Deputy Commissioner\u2019s actions violated their equal protection rights under the North Carolina Constitution and the United States Constitution. They claim she violated the statutory prohibition against the Commission representing a claimant and that no rational basis exists for her actions. We disagree.\nThe questions submitted by the Deputy Commissioner did not convey or express an opinion with respect to an essential element of plaintiff\u2019s claim or the credibility of Holthusen as a witness. The questions did not indicate a disqualifying personal bias or predisposition on the part of the Deputy Commissioner. As noted, the questions were neutral and could have benefitted either party. Accordingly, the actions of the Deputy Commissioner did not violate N.C.G.S. \u00a7 97-79(f) and did not constitute representing plaintiff at the hearing. She acted within her discretion in preparing and submitting the questions to Holthusen. Defendants\u2019 equal protection rights were thus not violated.\nWe find no constitutional or statutory infirmity in the actions taken by the Deputy Commissioner in the instant case. However, it is important to stress that the Commission or a deputy commissioner, as well as a trial court, should be resolutely careful in calling and interrogating witnesses. Not only should there be no prejudice to a party, but there also should be no reasonable perception of prejudice. Neutrality and the appearance of neutrality are equally critical in maintaining the integrity of our judicial and quasi-judicial processes.\nFor the reasons stated herein, we affirm the opinion and award of the Industrial Commission.\nAffirmed.\nChief Judge EAGLES and Judge MARTIN concur.",
        "type": "majority",
        "author": "THOMAS, Judge."
      }
    ],
    "attorneys": [
      "No brief for pro se plaintiff-appellee.",
      "Womble Carlyle Sandridge & Rice, PLLC, by Phillip Mohr, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "RICKY B. HANDY, Employee, Plaintiff v. PPG INDUSTRIES, Employer, Self-Insured and KEY RISK MANAGEMENT SERVICES, Servicing Agent, Defendants\nNo. COA01-1447\n(Filed 3 December 2002)\n1. Workers\u2019 Compensation\u2014 basis for recovery \u2014 injury by accident \u2014 occupational disease \u2014 election of theory not required\nThe Industrial Commission did not err in a workers\u2019 compensation case by determining a deputy commissioner did not violate defendants\u2019 due process or equal protection rights by allegedly becoming an advocate for plaintiff and abandoning her role as an impartial factfinder and decisionmaker when she changed plaintiff employee\u2019s theory of recovery ex mero motu from injury by accident to occupational disease, because: (1) there is nothing in the record on appeal to indicate plaintiff elected at any time to proceed solely on the theory of injury by accident to the exclusion of an occupational disease theory; (2) defendants failed to identify any statute or Industrial Commission rule requiring a workers\u2019 compensation claimant to choose between injury by accident and occupational disease as a basis for recovery; and (3) plaintiff was not required to make an election of theories.\n2. Workers\u2019 Compensation\u2014 deputy commissioner ordering deposition of witness \u2014 due process\nThe Industrial Commission did not err in a workers\u2019 compensation case by determining the deputy commissioner did not violate defendants\u2019 due process or equal protection rights by ordering ex mero motu that plaintiff\u2019s physician who was not present at the hearing be asked questions, because: (1) the deputy commissioner originally intended for written questions to be submitted to the doctor and it was defendants who then requested a deposition; and (2) the subsequent ordering of the doctor\u2019s deposition did not indicate a disqualifying personal bias on her part or deprive defendants of an impartial decisionmaker in violation of due process.\n3. Workers\u2019 Compensation\u2014 deputy commissioner\u2019s formulation of questions and hypothetical \u2014 due process\nThe Industrial Commission did not err in a workers\u2019 compensation case by determining the deputy commissioner did not violate defendants\u2019 due process rights by formulating questions and an essential factual hypothetical to be submitted to plaintiff\u2019s physician at a deposition, because: (1) the deputy commissioner, who was not present at the deposition, did not comment on the strength of the evidence or the credibility of the witness; (2) the fact that the physician\u2019s answers were dispositive of an essential issue does not constitute error; and (3) the questions presented by the deputy commissioner were neutral which could benefit either plaintiff or defendants depending upon the answer.\n4. Workers\u2019 Compensation\u2014 deputy commissioner\u2019s formulation of questions and hypothetical \u2014 equal protection\nThe Industrial Commission did not err in a workers\u2019 compensation case by determining the deputy commissioner did not violate defendants\u2019 equal protection rights by allegedly assisting plaintiff employee with his claim in a compensation hearing in violation of N.C.G.S. \u00a7 97-79(f) based on the deputy commissioner\u2019s action in preparing and submitting questions to plaintiff\u2019s physician, because: (1) the questions did not convey or express an opinion with respect to an essential element of plaintiff\u2019s claim or the credibility of plaintiff\u2019s doctor as a witness; and (2) the questions did not indicate a disqualifying personal bias or predisposition on the part of the deputy commissioner when the questions were neutral and could have benefitted either party.\nAppeal by defendants from opinion and award entered 26 June 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 September 2002.\nNo brief for pro se plaintiff-appellee.\nWomble Carlyle Sandridge & Rice, PLLC, by Phillip Mohr, for defendant-appellants."
  },
  "file_name": "0311-01",
  "first_page_order": 339,
  "last_page_order": 349
}
