{ "id": 6776688, "name": "TRACY BEARD, Employee, Plaintiff v. WAKEMED, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Administrator), Defendants", "name_abbreviation": "Beard v. WakeMed", "decision_date": "2014-02-04", "docket_number": "No. COA13-723", "first_page": "187", "last_page": "194", "citations": [ { "type": "official", "cite": "232 N.C. App. 187" } ], "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": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "opinion_index": -1, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "737 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "opinion_index": 0 }, { "cite": "366 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4355073, 4353441, 4357066, 4347435, 4360076, 4347948, 4352335, 4349241 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/nc/366/0437-02", "/nc/366/0437-07", "/nc/366/0437-04", "/nc/366/0437-08", "/nc/366/0437-03", "/nc/366/0437-01", "/nc/366/0437-05", "/nc/366/0437-06" ] }, { "cite": "727 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "728", "parenthetical": "citation, quotation marks, and ellipses omitted" } ], "opinion_index": 0 }, { "cite": "178 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "277 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568002, 8567909, 8567941, 8567974, 8567861, 8568023 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/277/0726-05", "/nc/277/0726-02", "/nc/277/0726-03", "/nc/277/0726-04", "/nc/277/0726-01", "/nc/277/0726-06" ] }, { "cite": "177 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "777", "parenthetical": "\"Ordinarily, a motion for further hearing on the grounds of introducing additional or newly discovered evidence rests in the sound discretion of the Industrial Commission.\"" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551013 ], "year": 1970, "pin_cites": [ { "page": "87", "parenthetical": "\"Ordinarily, a motion for further hearing on the grounds of introducing additional or newly discovered evidence rests in the sound discretion of the Industrial Commission.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0084-01" ] }, { "cite": "574 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511616, 1511406, 1511344, 1511509, 1511447 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0611-04", "/nc/356/0611-05", "/nc/356/0611-01", "/nc/356/0611-02", "/nc/356/0611-03" ] }, { "cite": "560 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9126427 ], "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0180-01" ] }, { "cite": "571 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "19" }, { "parenthetical": "citation and quotation marks omitted" }, { "page": "19" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250117 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "412" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0405-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "741 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "pin_cites": [ { "page": "406", "parenthetical": "\"Especially when treating pain patients, a physician's diagnosis often depends on the patient's subjective complaints, and this does not render the physician's opinion incompetent as a matter of law.\" (citation, quotation marks, and brackets omitted)" } ], "opinion_index": 0 }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "weight": 2, "pin_cites": [ { "page": "765-66", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] } ], "analysis": { "cardinality": 710, "char_count": 17147, "ocr_confidence": 0.713, "pagerank": { "raw": 4.456583025697791e-08, "percentile": 0.27942787398029767 }, "sha256": "102101a08b900688b690a8894df74fd437f9f5fd9416406e746e826a0486a1c3", "simhash": "1:a2c27f0a20d2215d", "word_count": 2677 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BRYANT concur." ], "parties": [ "TRACY BEARD, Employee, Plaintiff v. WAKEMED, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Administrator), Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nDefendants appeal opinion and award awarding workers\u2019 compensation benefits to plaintiff and order denying their motion for reconsideration. For the following reasons, we affirm.\nI. Background\nOn or about 25 April 2011, defendant entered a Form 19, \u201cEMPLOYER\u2019S REPORT OF EMPLOYEE\u2019S INJURY OR OCCUPATIONAL DISEASE TO THE INDUSTRIAL COMMISSION\u201d (\u201creport\u201d). The report stated that plaintiff, a staff nurse, \u201cwas pulling a patient in their bed and felt lower back pain.\u201d On or about 2 May 2011, plaintiff\u2019s workers\u2019 compensation claim was denied for the following reasons:\n- Your injury was not the result of an accident\n- Your injury was not the result of a specific traumatic incident\n- Your injury did not arise out of and in the course and scope of your employment\n- Credibility based on inconsistent inaccurate and/or contradictory information\n- and any other defenses that become known to the employer/carrier\nOn 12 May 2011, plaintiff requested that her claim be assigned for a hearing. On or about 27 May 2011, defendants responded to plaintiff\u2019s request for a hearing stating \u201cthat the plaintiff did not sustain an injury by accident arising out of and in the course of her employment and is therefore entitled to no workers\u2019 compensation benefits.\u201d On or about 13 December 2011, the parties entered into a \u201cPRE-TRIAL AGREEMENT\u201d wherein they all stipulated that plaintiff was an employee of defendant WakeMed and that-she sustained an injury on 12 April 2011. On 23 May 2012, Deputy Commissioner Victoria M. Homick of the Industrial Commission entered an opinion and award ordering defendants to \u201cpay temporary total disability compensation],]\u201d \u201call past and future medical expenses incurred or to be incurred as a result of plaintiffs compensa-ble injury[,]\u201d \u201creasonable attorney\u2019s fee[,]\u201d and \u201ccosts.\u201d On 29 May 2012, defendants appealed the Deputy Commissioner\u2019s opinion and award. On 1 February 2013, the Full Commission of the Industrial Commission entered an opinion and award again ordering defendant\u2019s to \u201cpay temporary total disability compensation!,]\u201d \u201call past and future medical expenses incurred or to be incurred as a result of Plaintiffs compen-sable injury[,]\u201d \u201creasonable attorney\u2019s fee[,]\u201d and \u201ccosts.\u201d\nOn 28 February 2013, defendants filed a \u201cMOTION FOR RECONSIDERATION\u201d On 7 March 2013, plaintiff objected to defendants\u2019 motion for reconsideration because, inter alia, it was not timely filed. On 7 March 2013, defendants contended that their motion should be heard because it was timely filed. On 8 April 2013, the Full Commission entered an order denying defendants\u2019 motion to reconsider. Defendants appealed both the opinion and award of the Full Commission and the order denying their motion to reconsider.\nII. Findings of Fact and Conclusions of Law\nDefendants challenge various findings of fact as unsupported by the competent evidence and several conclusions of law as unsupported by the findings of fact.\nThe standard of review in workers\u2019 compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court. Under the Workers\u2019 Compensation Act, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Therefore, on appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law. This court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\nRichardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citations, quotation marks, and brackets omitted).\nA. Compensable Injury\nDefendants contend that fifteen findings of fact \u201care not supported by the evidence of record\u201d and three conclusions of law \u201care not supported by findings of fact or the applicable law\u201d regarding \u201cwhether plaintiff sustained a compensable injury by accident to her back in the form of a specific traumatic incident, arising out of and in the course of her employment with WakeMed that aggravated her pre-existing low back condition[.]\u201d (Original in all caps.) (Quotation marks omitted.) While a cursory glance of defendant\u2019s brief makes it appear that defendants are appropriately challenging the evidence, findings of fact, and conclusions of law, a thorough reading reveals that defendants are actually asking this Court to reweigh the evidence before the Commission in favor of defendants. This we cannot do, as \u201cthis [Cjourt\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Id. (emphasis added). The fact that the evidence may support a different finding of fact is irrelevant if there is \u201cany evidence tending to support\u201d the findings of fact actually made by the Commission. Id.\nDefendants also argue that \u201cthe only evidence that plaintiff did sustain such an injury is plaintiff\u2019s own testimony\u201d and \u201cplaintiff was not honestf;]\u201d however, the evidence contains statements by medical professionals regarding the fact that plaintiff sustained a compensable injury. Furthermore, plaintiff\u2019s own testimony is evidence which the Commission may weigh for credibility and if it determines the evidence is credible it may base findings of fact regarding plaintiff\u2019s compensable injury upon such evidence; defendant has failed to cite any legal authority stating otherwise.\nDefendants further contend that \u201cthe Commission erroneously ignored all the evidence regarding plaintiff\u2019s failure to disclose her back history to WakeMed and her medical providers and made no findings of fact regarding this evidence or the evidence that plaintiff was reprimanded for failing to assist a co-worker on a problematic procedure!)]\u201d Yet the fact that the Commission may not have made a finding of fact regarding every piece of evidence presented does not mean that the Commission \u201cignored\u201d that evidence, but only that it did not determine that a finding of fact regarding such evidence was necessary to support its determination. Quoting and citing appropriate law regarding the Commission\u2019s duty to make all the material findings of fact necessary to support the conclusions of law is not actually an argument to this Court as to why specific findings of fact are necessary in this case. Defendants have failed to demonstrate that the Commission ignored any material evidence upon which a finding must be made.\nDefendants also challenge the \u201cmedical evidence\u201d before the Commission because \u201cthere is no medical evidence that plaintiff sustained an injury at the time she alleges\u201d as the deposed doctors were basing their opinions \u201con plaintiff\u2019s subjective history[.]\u201d Defendants have pointed to no legal authority that doctors may not rely on \u201cplaintiff\u2019s subjective history\u201d both in diagnosing and treating her; indeed, defendants seem to imply that all \u201csubjective history\u201d should be disregarded. But a doctor\u2019s medical determination is not rendered incompetent because it is based upon a patient\u2019s subjective reports of her history and symptoms as a part of a medical evaluation. See Yingling v. Bank of America,_N.C. App._,_, 741 S.E.2d 395, 406 (2013) (\u201cEspecially when treating pain patients, a physician\u2019s diagnosis often depends on the patient\u2019s subjective complaints, and this does not render the physician\u2019s opinion incompetent as a matter of law.\u201d (citation, quotation marks, and brackets omitted)). Defendants have made no legal arguments showing that the doctors\u2019 depositions should not be included as competent evidence before the Commission simply because the doctors relied in part upon plaintiffs subjective history in both diagnosing and treating plaintiff, and we can think of none. As such, the Commission was allowed to weigh the evidence, including the depositions, as it saw fit and make the appropriate and essential findings of fact based upon them. See id. Based on the foregoing reasons, the arguments regarding the findings of fact and conclusions of law are overruled. We will not reweigh the evidence before the Commission, so there is no valid legal argument for this Court to consider from defendants regarding any of the challenged findings of fact or conclusions of law as to plaintiff\u2019s compensable injury.\nB. Disability\nDefendants also contend that five findings of fact \u201care not supported by the competent evidence of record\u201d and three conclusions of law \u201care not supported by the findings of fact or applicable law. Defendants\u2019 challenge to the five findings of fact and three conclusions of law center around one issue: defendants argue that the Commission erred in concluding that \u201cplaintiff met her burden of proof pursuant to the second prong of Russell v. Lowes Product Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993)[.]\u201d\nRussell provides,\nThe burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden in one of four ways [including] ... (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment].]\nRussell v. Lowes Product Distribution, 108 N.C. App. 762, 765-66, 425 S.E.2d 454, 457 (1993) (citation omitted).\nDefendants direct our attention to statements Dr. Daniel Albright made during his deposition which could be construed as evidence that plaintiff should not be under work restrictions. But Dr. Alright did place a 20 pound lifting restriction on plaintiff, at the very least to relieve her of the anxiety she had about returning to work because of the \u201cexacerbation of her previous low back condition\u201d caused by her \u201con-the-job injury[.]\u201d Thus, the Commission had to weigh and consider Dr. Albright\u2019s statements along with the other evidence and based upon this could properly find that\nDr. Albright diagnosed Plaintiff with a low back strain and recommended physical therapy and work conditioning. Dr. Albright released Plaintiff to return to work with restrictions of no lifting over twenty pounds. ... Dr. Albright opined, to a reasonable degree of medical certainty, that the April 12, 2011 work incident exacerbated a pre-existing low back condition.\nFurthermore, plaintiffs husband testified that it had been \u201cvery difficult for her\u201d to find work due to her back pain, and plaintiff spent \u201cfour or five hours a day looking\u201d for jobs and sending resumes to prospective employers. Plaintiff also testified that she had attempted to return to work taking a part-time position and eventually moving to a full-time position which she had held until a week or two before her hearing before the Industrial Commission but ultimately voluntarily left because she \u201chad a lot of back pain\u201d and \u201cwould come at the end of the day and it was hard for [her] to move.\u201d We believe that the evidence and the Commission\u2019s findings of fact regarding the evidence support the conclusion that \u201cPlaintiff has proven disability under the second prong of Russell, through evidence that she made reasonable efforts to find work but has been unsuccessful in obtaining employment.\u201d Accordingly, this argument is overruled.\nIII. Motion for Reconsideration\nDefendants also contend the Commission erred in denying their motion to reconsider which they argue \u201ccontained] a Motion to Consider and Admit . . . Newly Discovered Evidence[.]\u201d Defendants\u2019 motion is entitled \u201cDEFENDANTS\u2019 MOTION FOR RECONSIDERATION OF FULL COMMISSION\u2019S OPINION AND AWARD\u201d and includes 30 numbered paragraphs. Defendants contend that two of these paragraphs contain their motion to consider and admit newly discovered evidence. The alleged \u201cnewly discovered evidence\u201d is information that plaintiff obtained another job after the hearing before the Commission; this is not \u201cnewly discovered evidence\u201d since this evidence did not exist at the time of the hearing. See Parks v. Green, 153 N.C. App. 405, 412, 571 S.E.2d 14, 19 (2002). \u201cThe newly discovered evidence must have been in existence at the time of the trial. This limitation on newly discovered evidence has been justified on the firm policy ground that, if the situation were otherwise, litigation would never come to an end.\u201d Id. (citation and quotation marks omitted).\nDefendants\u2019 brief addresses only the denial of the motion to consider and admit newly discovered evidence and does not present any argument regarding the denial of the motion to the extent that it might be considered as a motion for reconsideration. In any event, both motions are reviewed for abuse of discretion. See generally Cummins v. BCCI Const. Enters., 149 N.C. App. 180, 185, 560 S.E.2d 369, 373 (\u201cthe Commission did not manifestly abuse its discretion by denying defendants\u2019 Motion for Reconsideration\u201d), disc. review denied, 356 N.C. 611, 574 S.E.2d 678 (2002); Owens v. Mineral Co., 10 N.C. App. 84, 87, 177 S.E.2d 775, 777 (1970) (\u201cOrdinarily, a motion for further hearing on the grounds of introducing additional or newly discovered evidence rests in the sound discretion of the Industrial Commission.\u201d); cert. denied, 277 N.C. 726, 178 S.E.2d 831 (1971).\nThe test for abuse of discretion is whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision. Because the reviewing court does not in the first instance make the judgment, the purpose of the reviewing court is not to substitute its judgment in place of the decision maker. Rather, the reviewing court sits only to insure that the decision could, in light of the factual context in which it is made, be the product of reason.\nBurnham v. McGee Bros. Co., Inc.,_N.C. App._,_, 727 S.E.2d 724, 728 (2012) (citation, quotation marks, and ellipses omitted), disc, review dismissed and cert. denied, 366 N.C. 437, 737 S.E.2d 106 (2013).\nAs the \u201cnewly discovered evidence\u201d which the defendants asked the Commission to consider is not actually \u201cnewly discovered evidence,\u201d see Parks, 153 N.C. App. at 412, 571 S.E.2d at 19, the Commission did not abuse its discretion in denying the motion. Defendants further contend that the Commission erred in failing to address their motion to consider and admit newly discovered evidence; however, even according to defendants, this \u201cmotion\u201d was two paragraphs as part of a larger motion to reconsider. It is obvious that the Commission denied defendants\u2019 entire motion. The Commission is not required to file a separate order or even add a separate sentence specifically denying this additional \u201cmotion\u201d embedded within the motion to reconsider, since the order denying the motion to reconsider is clearly a denial of all arguments made within that motion. This argument is overruled.\nIV. Conclusion\nFor the foregoing reasons, we affirm.\nAFFIRMED.\nJudges McGEE and BRYANT concur.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "O\u2019Malley Tunstall, PLLC, by Joseph P. Tunstall, III, for plaintiff-appellee.", "Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, for defendants-appellants." ], "corrections": "", "head_matter": "TRACY BEARD, Employee, Plaintiff v. WAKEMED, Employer, SELF-INSURED (KEY RISK MANAGEMENT SERVICES, Administrator), Defendants\nNo. COA13-723\nFiled 4 February 2014\n1. Workers\u2019 Compensation \u2014 opinion and award \u2014 compensable injury \u2014 findings of fact \u2014 conclusions of law \u2014 evidence not reweighed\nDefendants\u2019 argument in a worker\u2019s compensation case that the Industrial Commission\u2019s opinion and award awarding workers\u2019 compensation benefits to plaintiff contained fifteen findings of fact not supported by the evidence and three conclusions of law not supported by the findings of fact was overruled. Defendants were asking the Court of Appeals to reweigh the evidence before the Industrial Commission in favor of defendants. As the Court will not reweigh the evidence before the Commission, there was no valid legal argument for the Court to consider.\n2. Workers\u2019 Compensation \u2014 disability\u2014burden of proof met\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff met her burden of proof to show disability pursuant to the second prong of Russell v. Lowes Product Distrib., 108 N.C. App. 762. The evidence and the findings of fact supported this conclusion.\n3. Workers\u2019 Compensation \u2014 denial of motion \u2014 newly discovered evidence \u2014 reconsideration\u2014no abuse of discretion\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by denying defendants\u2019 motion to reconsider and admit newly discovered evidence. Evidence that plaintiff obtained a job after the hearing was not \u201cnewly discovered evidence\u201d because it was not in existence at the time of the hearing. Furthermore, defendants\u2019 brief did not present any argument regarding the denial of the motion to the extent that it might have been considered as a motion for reconsideration.\nAppeal by defendants from Opinion and Award entered 1 February 2013 and order entered 8 April 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 November 2013.\nO\u2019Malley Tunstall, PLLC, by Joseph P. Tunstall, III, for plaintiff-appellee.\nCranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, for defendants-appellants." }, "file_name": "0187-01", "first_page_order": 197, "last_page_order": 204 }