{
  "id": 8526730,
  "name": "MARY THOMPSON, Widow and Guardian Ad Litem of TORI ANN THOMPSON and TRACY THOMPSON, Minor Children; A. W. HUFFMAN, JR., Administrator of the Estate of JOHN H. THOMPSON, Deceased, Employee, Plaintiffs v. LENOIR TRANSFER COMPANY, Employer, and AETNA INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Thompson v. Lenoir Transfer Co.",
  "decision_date": "1985-01-15",
  "docket_number": "No. 8410IC400",
  "first_page": "348",
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    "name": "North Carolina Court of Appeals"
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    {
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  "last_updated": "2023-07-14T20:36:04.939100+00:00",
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  "casebody": {
    "judges": [
      "Judges Arnold and Becton concur."
    ],
    "parties": [
      "MARY THOMPSON, Widow and Guardian Ad Litem of TORI ANN THOMPSON and TRACY THOMPSON, Minor Children; A. W. HUFFMAN, JR., Administrator of the Estate of JOHN H. THOMPSON, Deceased, Employee, Plaintiffs v. LENOIR TRANSFER COMPANY, Employer, and AETNA INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nJohn Thompson accidentally injured his leg in January 1976, while in the course of his employment. He died in December 1976 as a result of an overdose of pain medicine prescribed for his injuries. Plaintiffs initiated this proceeding seeking death benefits, both for Thompson\u2019s death and for his widow\u2019s disability at the time. In the initial hearing, plaintiffs attempted unsuccessfully to introduce lay testimony regarding Thompson\u2019s state of mind before his death; in addition, the Commission conditionally admitted, but did not finally rule on, causation testimony in the form of a hypothetical question to Dr. Brown, Thompson\u2019s physician. From an order denying all benefits, plaintiffs appealed. This court vacated the Commission\u2019s order as based on a misapprehension of law.\nUpon remand, plaintiffs introduced the transcript of the first hearing and presented some additional evidence. The hearing officer ruled that Dr. Brown\u2019s answer was admissible, denied defendants\u2019 motion to introduce new evidence from Dr. Brown, and entered an order allowing benefits. On appeal the Full Commission adopted the hearing officer\u2019s award.\nIn their principal assignments of error, defendants contend that the Commission erred in allowing plaintiff to \u201cintroduce into evidence\u201d the transcript of the first hearing and in denying their motion to further depose Dr. Brown.\nIn our previous opinion, Thompson v. Transfer Co., 48 N.C. App. 47, 268 S.E. 2d 534, disc. rev. denied, 301 N.C. 405, 273 S.E. 2d 450 (1980), the mandate of this court was as follows:\nThe opinion and award of the Commission is vacated and the cause is remanded to the Industrial Commission for a rehearing to: (1) determine the admissibility of Dr. Brown\u2019s answer to the hypothetical question propounded by counsel for plaintiff, and, if the answer is admissible, to properly consider such testimony; (2) to consider testimony of lay witnesses concerning decedent\u2019s pain and depression which tend to establish a direct causal relation between the accident and the suicide; and (3) to make appropriate additional findings of fact and awards as may be consistent with this opinion and the facts found upon remand.\nId.\nThis court, by ordering a ruling on an evidentiary matter unresolved at the first hearing, contemplated that the transcript would provide the basis for rehearing and did not order a de novo hearing, see Bailey v. Dept. of Mental Health, 2 N.C. App. 645, 163 S.E. 2d 652 (1968), and that the Commission would base its ultimate order on the record made including the evidence wrongfully excluded at the first hearing. The offer of the transcript \u201cinto evidence\u201d was an act without legal significance. Our courts have long recognized the need for Industrial Commission procedures to be adaptable to its mission and role, and that the Commission itself considers cases before it in the record made before Hearing Commissioners, without a de novo hearing. See, e.g., Maley v. Furniture Co., 214 N.C. 589, 200 S.E. 2d 438 (1939).\nDefendants contend that the admission of the transcript prej-udicially allowed the testimony of A1 Huffman and A. W. Huffman, Jr., who had not been cross-examined at the first hearing. Both witnesses testified at the second hearing, however, and were available for cross-examination on their prior testimony.\nDefendants claim especial prejudice from the testimony of Jerry Barlow, who provided the only evidence that Thompson actually told Dr. Brown of his state of mind which caused his suicide. Dr. Brown testified as an expert in giving his opinion regarding the causal contribution of Thompson\u2019s state of mind to his death, however. His personal knowledge of Thompson\u2019s statements was therefore irrelevant. An expert need not testify from personal knowledge, as long as the basis for his or her opinion is available in the record or available upon demand. See State v. Wade, 296 N.C. 454, 251 S.E. 2d 407 (1979); N.C. Gen. Stat. \u00a7 8-58.14 (1981); see also N.C. Gen. Stat. \u00a7 8C-1 Rules of Evidence 703, 705 (Cum. Supp. 1983). Barlow\u2019s testimony was simply repetitive of other testimony in the record on which Dr. Brown could have equally and properly based his opinion. No prejudice appears from any of this testimony.\nThe key controversy involved Dr. Brown\u2019s causation testimony: the Commission ruled that his answer to the hypothetical question was admissible, but denied defendants\u2019 motion to allow additional testimony. Defendants now claim that their right to cross-examine Dr. Brown was unfairly usurped. Defendants did in fact cross-examine Dr. Brown briefly, however. Nothing in the record suggests that they were forced to cut short their cross-examination. Moreover, the original ruling was that the evidence would be admitted (albeit conditionally). It is well established that a party may attack the probative value of opinion testimony without waiving the original objection thereto. State v. Wells, 52 N.C. App. 311, 278 S.E. 2d 527 (1981). Indeed, any other rule would be manifestly unfair. See 1 H. Brandis, N.C. Evidence \u00a7 30 (2d rev. ed. 1982). Defendants did not attempt to impeach Dr. Brown and have not justified their failure to do so. Nor have they suggested, assuming they intended to elicit some substantive testimony from Dr. Brown, what the import of that testimony might be. See State v. Satterfield, 300 N.C. 621, 268 S.E. 2d 510 (1980) (no offer of proof; exclusion unreviewable). Accordingly, we hold that defendants have had adequate opportunity to cross-examine Dr. Brown and have failed to show prejudicial error. Their assertion of a general right to further cross-examination, on this record, must fail.\nWe have examined defendants\u2019 remaining assignments of error, find them to be without merit and overrule them. The award of the Industrial Commission is untainted by prejudicial error, and is therefore\nAffirmed.\nJudges Arnold and Becton concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Wilson and Palmer, P.A., by Hugh M. Wilson, for plaintiffs.",
      "Harrell and Leake, by Larry Leake, for defendants."
    ],
    "corrections": "",
    "head_matter": "MARY THOMPSON, Widow and Guardian Ad Litem of TORI ANN THOMPSON and TRACY THOMPSON, Minor Children; A. W. HUFFMAN, JR., Administrator of the Estate of JOHN H. THOMPSON, Deceased, Employee, Plaintiffs v. LENOIR TRANSFER COMPANY, Employer, and AETNA INSURANCE COMPANY, Carrier, Defendants\nNo. 8410IC400\n(Filed 15 January 1985)\nMaster and Servant \u00a7 93.2\u2014 workers\u2019 compensation \u2014 Commission\u2019s consideration of transcript in earlier hearing \u2014 no error\nDefendants in a workers\u2019 compensation proceeding failed to show prejudicial error in the Commission\u2019s consideration of the transcript of an earlier hearing on plaintiffs claim, since the Court of Appeals, by ordering a ruling on an evidentiary matter unresolved at the first hearing, contemplated that the transcript would provide the basis for rehearing and did not order a de novo hearing; nor were defendants prejudiced by the Commission\u2019s ruling that an expert witness\u2019s answer to a hypothetical question was admissible but defendants could not offer additional testimony, since defendants had adequate opportunity to cross-examine and attempt to impeach the witness at the first hearing but failed to do so.\nAPPEAL by defendants from the order of the North Carolina Industrial Commission entered 18 August 1983. Heard in the Court of Appeals 4 December 1984.\nWilson and Palmer, P.A., by Hugh M. Wilson, for plaintiffs.\nHarrell and Leake, by Larry Leake, for defendants."
  },
  "file_name": "0348-01",
  "first_page_order": 374,
  "last_page_order": 377
}
