{
  "id": 8357935,
  "name": "EDWARD L. HAPONSKI, Employee, Plaintiff v. CONSTRUCTOR'S INC., Employer v. IOWA NATIONAL MUTUAL INS. CO., Carrier, Defendants",
  "name_abbreviation": "Haponski v. Constructor's Inc.",
  "decision_date": "1987-09-15",
  "docket_number": "No. 8610IC1124",
  "first_page": "95",
  "last_page": "105",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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  "casebody": {
    "judges": [
      "Judges Arnold and Martin concur."
    ],
    "parties": [
      "EDWARD L. HAPONSKI, Employee, Plaintiff v. CONSTRUCTOR\u2019S INC., Employer v. IOWA NATIONAL MUTUAL INS. CO., Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nOur review of the Commission\u2019s award is limited to determining whether any competent evidence supported the Commission\u2019s findings and whether such findings are legally sufficient to support the Commission\u2019s conclusions of law. McLean v. Roadway Express, Inc., 307 N.C. 99, 102, 296 S.E. 2d 456, 459 (1982). The instant case specifically presents the following issues for review: (I) whether any competent evidence supported the Commission\u2019s findings (A) where expert testimony on the cause of plaintiffs depression and reduced work capacity was elicited in response to allegedly improper hypothetical questions, and (B) where such testimony was allegedly too uncertain or speculative to support the Commission\u2019s findings; and (II) whether the Commission\u2019s findings support its conclusion that, under Section 97-47, plaintiff underwent a significant change of condition which was caused by his October 1980 injury.\nStrictly speaking, the rules of evidence applicable in our general courts do not govern the Commission\u2019s own administrative fact-finding. Compare N.C.G.S. Sec. 8C-1, Rule 1101 (1986) (rules of evidence apply to all proceedings in \u201ccourts of this state\u201d) with N.C.G.S. Sec. 97-80(a) (1985) (Commission processes and procedures shall be \u201cas summary and simple as reasonably may be\u201d); see also Tindall v. American Furniture Co., 216 N.C. 306, 310, 4 S.E. 2d 894, 896 (1939) (findings not overturned simply because some evidence offends courtroom rules of evidence); Maley v. Thomasville Furniture Co., 214 N.C. 589, 594, 200 S.E. 438, 441 (1938) (Commission need not conform to court procedure unless required by statute or to preserve justice and due process). However, in determining on review whether any \u201ccompetent\u201d evidence supports the Commission\u2019s findings, we must by definition apply those courtroom evidentiary rules and principles which embody the legal concept of \u201ccompetence.\u201d See, e.g., Thompson v. Lenoir Transfer Co., 72 N.C. App. 348, 350, 324 S.E. 2d 619, 620-21 (1985) (citing N.C.G.S. Sec. 8C-1, Rules 703 and 705 as basis for concluding expert opinion based on prior testimony was admissible and competent in Commission case); but cf. 3 A. Larson, Workmen\u2019s Compensation Law Secs. 79.23-24 (1983) (criticizing this \u201clegal residium\u201d standard of review).\nI\nIn determining whether any competent evidence supports the Commission\u2019s findings, we note the following disputed findings:\n4. On 6 April 1983, plaintiff did seek psychiatric help. At this time, plaintiff had depression secondary to pain. He experienced problems sleeping, cried for no reason, and lost weight. In addition, he had a low libido, a poor memory, and very little energy.\n5. From 6 April 1983 until 16 July 1984 when plaintiff returned to work, plaintiff was unable to work. This was due to psychiatric problems which worsened after the previous hearings in this matter, and these problems constituted a change in condition.\nWe also note that the Commission\u2019s \u201cConclusion of Law\u201d Number \u201c1\u201d states plaintiffs psychiatric problems \u201cwere caused by his 20 October 1980 injury by accident ...\u201d As determining the cause of plaintiffs psychiatric problems is a mixed question of law and fact, the Commission\u2019s designations of \u201cfindings\u201d and \u201cconclusions\u201d are not binding on this court. See Brown v. Charlotte-Mecklenburg Board of Education, 269 N.C. 667, 670, 153 S.E. 2d 335, 338 (1967). Therefore, we will here examine the competency of any causation evidence and later analyze whether that evidence is legally sufficient to conclude plaintiffs October 1980 injury caused his depression.\nOur review of evidence supporting these findings reveals that plaintiffs psychiatrist, Dr. Maltbie, testified he first saw plaintiff on 6 April 1983 and diagnosed certain symptoms of depression. Plaintiffs counsel then asked Dr. Maltbie several long hypothetical questions about the cause and progress of plaintiffs depression and its effect on his earning capacity. In the course of these questions, counsel asked Dr. Maltbie to assume, among other things, that \u201cfollowing January 12, 1983 [the date plaintiffs original claim was heard] . . ., [plaintiff] bec[a]me more depressed, as he has testified . . [emphasis added]. Counsel also asked Dr. Maltbie to assume the findings of a \u201cNew Orthopedic Note\u201d drafted in December 1982 by Dr. Harrelson, an attending orthopedic surgeon, in which Dr. Harrelson noted plaintiffs \u201cchronic pain.\u201d\nCounsel then asked Dr. Maltbie whether \u201cthere was a substantial deterioration in [the] psychological or emotional component of [plaintiffs] October 20, 1980 injury, from January 13 [sic], 1983 through the date you first saw him on April 6, 1983.\u201d Dr. Maltbie responded:\nYeah, based on these facts, I would say that he did certainly get depressed. He was depressed when I saw him. If he was not before, then he must have gotten depressed since that time [i.e., since the 12 January 1983 hearing on plaintiffs original back injury].\nBased on the same hypothetical assumptions, counsel then asked Dr. Maltbie the following questions:\nQ. Did the deterioration in the nature of the severity of the depression substantially reduce further whatever capacity that [plaintiff] had in January 1983 to work and earn wages?\nA. Yes, sir.\nQ. Do you have an opinion as to whether or not the depressive condition you have diagnosed, beginning at least in April 1983, was caused by the physical injury on . . . October 20, 1980 and the pain and impairment that the Industrial Commission . . . found . . . resulted from that injury?\nA. I do believe the depression is secondary to the pain which is secondary to the injury.\nA.\nAs Dr. Maltbie had no direct personal knowledge of plaintiffs condition prior to the 6 April 1983 visit, defendants\nAlthough hypothetical questions are no longer required to elicit expert opinion under Rule 705, such questions are nevertheless permitted. An interrogator may form his hypothetical question on any theory which can be deduced from the evidence and may select as a predicate such facts as the evidence reasonably tends to prove. Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 243, 311 S.E. 2d 559, 570 (1984). Whether the expert\u2019s opinion is elicited by hypothetical or direct questioning, the opinion need not be based solely on the expert\u2019s personal knowledge. See Booker v. Duke Medical Center, 297 N.C. 458, 478-79, 256 S.E. 2d 189, 202 (1979) (in response to hypothetical question, doctor could base opinion on plaintiff\u2019s prior testimony and medical history obtained from plaintiff or from other treating physician); Thompson, 72 N.C. App. at 350, 324 S.E. 2d at 621 (expert\u2019s personal knowledge of plaintiffs state of mind deemed irrelevant under Rules 703 and 705 since basis for opinion available in record or upon demand).\nPrior to these hypothetical questions, Dr. Maltbie had recounted how plaintiff described his post-January 1983 physical symptoms during plaintiffs initial interview in April 1983. Furthermore, plaintiff had himself previously testified without objection that he became \u201cmore depressed\u201d between \u201cthe last hearing on January 12, 1983,\u201d and the time plaintiff was \u201cfirst seen\u201d on 6 April 1983. As defendants have not challenged the competency of plaintiffs testimony, plaintiffs testimony must be deemed competent. See McHargue v. Burlington Indus., 78 N.C. App. 324, 332 n.1, 337 S.E. 2d 584, 588 n.1 (1985). Under Booker, plaintiffs statements made to Dr. Maltbie for treatment and his own prior testimony reasonably tended to prove the fact of plaintiffs depression after 12 January 1983. Therefore, counsel\u2019s hypothetical question could assume that fact for the purpose of eliciting Dr. Maltbie\u2019s opinion. See Ballenger v. ITT Grinnell Indus. Piping, Inc., 80 N.C. App. 393, 399-400, 342 S.E. 2d 582, 587, aff'd in part and rev\u2019d in part on rehearing, 83 N.C. App. 55, 348 S.E. 2d 814, modified and aff'd, 320 N.C. ---, 357 S.E. 2d 683 (1987) (Court of Appeals discusses requirements for hypothetical assumptions after new evidence code).\nWe recognize the question whether plaintiffs \u201cpsychological or emotional component\u201d deteriorated after January, 1983, directed Dr. Maltbie to assume, among other things, plaintiffs testimony that he became \u201cmore depressed\u201d after January 1983. Dr. Maltbie answered, \u201cBased on these facts, I would say [plaintiff] did certainly get depressed.\u201d The question does not \u00bflogically assume its answer: Dr. Maltbie\u2019s medical opinion of plaintiffs alleged psychological or emotional deterioration after January 1983 was simply based in part on plaintiffs own testimony as well as plaintiffs direct complaints during the April 1983 interview. Dr. Maltbie\u2019s opinion was not identical to plaintiffs testimony, but was instead partially based upon it.\nDefendants\u2019 objection to Dr. Maltbie\u2019s assuming the findings of Dr. Harrelson\u2019s note is similarly premised on the erroneous notion Dr. Maltbie\u2019s opinion could only be based on personal knowledge. As the result of his physical examination of plaintiff and plaintiffs own statements made for treatment, Dr. Harrelson observed in his December 1982 note that plaintiff had a \u201cchronic pain problem.\u201d Since the facts and data underlying Dr. Harrel-son\u2019s note are reasonably relied upon by physicians, counsel could assume the findings in the note regardless of the note\u2019s admissibility. N.C.G.S. Sec. 8C-1, Rule 703 (1983). The question did not ask Dr. Maltbie merely to assume the opinion of another doctor who had never treated plaintiffs condition. Cf. Donovan v. Hudspeth, 318 N.C. 1, 24, 347 S.E. 2d 797, 811 (1986) (excluding expert opinion based solely on opinion of another non-treating physician).\nDefendants also contend the question concerning plaintiffs reduced work capacity was improper because the question offered no assumption about plaintiffs work capacity in January 1983. However, Dr. Maltbie had already testified that his initial interview with plaintiff led him to believe that plaintiffs depressive symptoms interfered \u201cin a major way . . . with [plaintiffs] ability to function ... in any employment capacity.\u201d As plaintiffs initial complaints were statements made for the purpose of treating his depression, plaintiffs statements were a proper basis for Dr. Maltbie\u2019s opinion that plaintiffs depression reduced \u201cwhatever [work] capacity\u201d plaintiff had in January 1983. Dr. Maltbie could also answer the question based on plaintiffs prior testimony which itself tended to prove his capacity to work deteriorated after January 1983. Given this evidence of plaintiffs chronic pain, increasing depression and impaired work capacity after January 1983, Dr. Maltbie did not need personal knowledge of plaintiffs capacity to work as of January 1983 in order to state his medical opinion that the effects of plaintiffs depression reduced \u201cwhatever\u201d work capacity plaintiff possessed. In passing, we also reject defendant\u2019s contention that the hypothetical question posed to Dr. Maltbie improperly asked for a direct answer rather than an \u201copinion to a reasonable medical certainty.\u201d See Cherry v. Harrell, 84 N.C. App. 598, 604, 353 S.E. 2d 433, 437 (1987) (expert opinions no longer need be stated to a reasonable medical certainty).\nSince the evidence reasonably tended to prove the assumptions underlying counsel\u2019s disputed questions, we conclude Dr. Maltbie\u2019s answers to those questions were properly admitted and competent.\nB\nDefendants also note that, during his cross-examination, Dr. Maltbie related plaintiffs complaints of financial difficulties, domestic worries and medication problems. The doctor also testified that depression in general could be caused by stress, medication and heredity. During his direct examination, Dr. Maltbie testified: \u201cIt\u2019s hard for me to say at this point whether the stresses external to Mr. Haponski depress him and have a secondary rise in pain experience or vice versa. I really can\u2019t comment on that . . .\u201d (emphasis added). Defendants contend this testimony demonstrates the doctor\u2019s opinion was too speculative to be competent evidence of the relationship between plaintiffs pain and depression.\nHowever, defendants misconstrue Dr. Maltbie\u2019s statement that it was \u201chard\u201d for him to say whether \u201cthe stresses external to Mr. Haponski depress him and have a secondary rise in pain experience or vice versa!' (emphasis added). Dr. Maltbie\u2019s statement that it was \u201chard\u201d for him to speak on the issue does not demonstrate the doctor\u2019s positive opinion expressed elsewhere was based on sheer guesswork or speculation. Cf. Ballenger v. Burris Indus., 66 N.C. App. 556, 567, 311 S.E. 2d 881, 887, disc, rev. denied, 310 N.C. 743, 315 S.E. 2d 700 (1984) (\u201ceducated guess\u201d amounted to mere speculation and was thus incompetent). Furthermore, the question posed referred to the period from plaintiffs discharge from the Duke pain program in June 1983 until the day before Dr. Maltbie\u2019s testimony. The transcript reveals the doctor was merely refusing to speculate whether the financial and domestic stresses previously noted caused plaintiff to \u201cre-depress\u201d and experience a \u201crise in pain\u201d several months after the April 1983 interview. Cf. Buck v. Proctor, 52 N.C. App. 88, 95, 278 S.E. 2d 268, 273 (1981) (failure to choose single most probable cause was proper refusal to speculate). In addition, Dr. Maltbie\u2019s use of the phrase \u201cvice versa\u201d arguably refers only to his refusal to speculate whether plaintiffs pain and depression after April 1983 contributed to the stress of plaintiffs financial and domestic difficulties: the statement does not demonstrate Dr. Maltbie was confused whether plaintiffs depression was \u201csecondary\u201d to his chronic pain as of April 1983.\nDr. Maltbie\u2019s cross-examination did reveal factors other than plaintiffs pain to which his depression may arguably have been \u201csecondary.\u201d However, the existence of other possible causes of plaintiffs depression does not itself negate either the competency or probative value of Dr. Maltbie\u2019s explicit opinion that plaintiff\u2019s depression was secondary to his pain as of 6 April 1983. See Cherry, 84 N.C. App. at 605, 353 S.E. 2d at 437 (existence of other possible causes of plaintiffs ruptured disk could reduce weight of opinion but did not render opinion incompetent under Rules 702 and 705); Buck, 52 N.C. App. at 95-96, 278 S.E. 2d at 273 (expert opinion on cause of plaintiffs injury was deemed competent although expert conceded other causes were \u201cequally probable\u201d).\nHaving rejected defendants\u2019 challenges to Dr. Maltbie\u2019s testimony and having noted plaintiff\u2019s own relevant testimony, it is clear the Commission\u2019s findings were sufficiently supported by competent evidence: Commission Finding Number Four that plaintiff had \u201cdepression secondary to pain\u201d was supported by Dr. Maltbie\u2019s previously discussed testimony as well as by his specific statement that, as of 6 April 1983, defendant had chronic pain \u201cwith a major factor in his inability to function being a secondary depression.\u201d The testimonies of plaintiff and Dr. Maltbie also constituted competent evidence supporting Commission Finding Number Five that plaintiffs work capacity had been reduced by his psychiatric problems. As to the Commission\u2019s statement that plaintiffs \u201cpsychiatric problems were caused by his 20 October 1980 injury,\u201d we note defendants themselves offered no direct evidence contradicting the competent testimony of either plaintiff or Dr. Maltbie. As trier of fact, the Commission was entitled to accept Dr. Maltbie\u2019s opinion on causation and discount defendant\u2019s own speculative construction of that testimony. So long as there is \u201csome evidence\u201d supporting the Commission\u2019s finding on causation, this Court will not overturn that finding. See Buck, 52 N.C. App. at 96, 278 S.E. 2d at 273.\nWe therefore find ample competent evidence supporting the Commission\u2019s disputed findings. As defendants\u2019 other factual arguments only contend the Commission should have weighed the evidence differently, we find those arguments meritless.\nII\nIn relevant part, Section 97-47 provides that \u201con the grounds of a change in condition\u201d the Commission may review any award and end, diminish, or increase the compensation previously awarded. As our Supreme Court stated in McLean:\nChange of condition \u2018refers to conditions different from those existent when the award was made; and a continued incapacity of the same kind and character and for the same injury is not a change of condition . . . [T]he change must be actual, and not a mere change of opinion with respect to the preexisting condition.\u2019 [Citation omitted.] Change of condition is a substantial change, after a final award of compensation, of physical capacity to earn and, in some cases, of earnings.\n307 N.C. at 103-04, 296 S.E. 2d at 459 (quoting Pratt v. Central Upholstery Co., 252 N.C. 716, 722, 115 S.E. 2d 27, 33-34 (I960)). The remaining issue is whether Commission Findings Numbers Four and Five and its \u201cConclusion\u201d Number One legally justified its conclusion that plaintiffs October 1980 injury caused his depression and that this depression constituted a change of condition under Section 97-47.\nAs to the cause of plaintiffs depression, we find the Commission had ample precedent under these facts to conclude that plaintiffs 1980 injury caused his subsequent psychiatric problems. E.g., Fayne v. Fieldcrest Mills, Inc., 54 N.C. App. 144, 282 S.E. 2d 539, disc. rev. denied, 304 N.C. 725, 288 S.E. 2d 380 (1982); see also Petty v. Associated Transport, Inc., 276 N.C. 417, 430, 173 S.E. 2d 321, 331 (1970).\nAs to whether plaintiff\u2019s depression constituted a \u201cchange of condition\u201d under the statute, we have stated \u201cthat if an employee receives an injury which is compensable and the injury causes her to become so emotionally disturbed that she is unable to work, she is entitled to compensation for total incapacity under G.S. 97-29.\u201d Fayne, 54 N.C. App. at 146, 282 S.E. 2d at 540; see also Hubbard v. Burlington Indus., Inc., 76 N.C. App. 313, 317, 332 S.E. 2d 746, 748 (1985) (when Commission originally finds permanent partial disability, later Commission finding based on additional evidence of plaintiffs total disability will support conclusion condition has changed). Dr. Maltbie testified plaintiffs depression subsequent to January 1983 was caused by his compensated 1980 injury and that this depression adversely affected his capacity to work; we therefore hold under Petty and Fayne that plaintiff established a significant change of condition under Section 97-47. See Fayne, 54 N.C. App. at 146, 282 S.E. 2d at 540; cf. Burrow v. Hanes Hosiery, Inc., 66 N.C. App. 418, 422, 311 S.E. 2d 30, 33, aff\u2019d, 311 N.C. 297, 316 S.E. 2d 63 (1984) (where experts testified before and after original award that plaintiffs incapacity to earn was based on \u201cpain,\u201d finding that \u201cdepression\u201d increased after award did not support conclusion condition had changed).\nDefendants\u2019 remaining assignments of error concern the Commission\u2019s awarding plaintiff temporary disability compensation and medical expenses. These arguments restate challenges to the Commission\u2019s findings and conclusions which we have already rejected and are therefore meritless.\nAffirmed.\nJudges Arnold and Martin concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Smith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Henry N. Patterson Jr. and Jonathan R. Harkavy, for \u2022plaintiff-appellee.",
      "Russ, Worth & Cheatwood, by Walker Y. Worth, Jr., for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "EDWARD L. HAPONSKI, Employee, Plaintiff v. CONSTRUCTOR\u2019S INC., Employer v. IOWA NATIONAL MUTUAL INS. CO., Carrier, Defendants\nNo. 8610IC1124\n(Filed 15 September 1987)\n1. Master and Servant \u00a7 93.3\u2014 workers\u2019 compensation \u2014 expert opinion testimony \u2014 competency\nThere was no merit to defendant\u2019s contention in a workers\u2019 compensation proceeding that an expert\u2019s testimony as to the cause of plaintiffs depression was elicited in response to an allegedly improper hypothetical question, since the witness could properly base his opinion on plaintiffs statements made to him for treatment, on plaintiffs own prior testimony, and on another physician\u2019s notes made during treatment of plaintiff. Furthermore, the witness could properly testify that plaintiffs depression reduced \u201cwhatever [work] capacity\u201d plaintiff had at the time of an earlier hearing, and the witness did not need personal knowledge of plaintiffs capacity to work at the earlier time in order to state his opinion.\n2. Master and Servant \u00a7 93.3\u2014 workers\u2019 compensation \u2014expert opinion not speculative\nThere was no merit to defendant\u2019s contention in a workers\u2019 compensation proceeding that a medical expert\u2019s opinion was too speculative to be competent evidence of the relationship between plaintiffs pain and depression.\n3. Master and Servant \u00a7 77.1\u2014 workers\u2019 compensation \u2014 change of condition\nPlaintiff in a workers\u2019 compensation proceeding established a significant change of condition under N.C.G.S. \u00a7 97-47 where he offered competent testimony that his depression subsequent to a 1983 appeal of the case was caused by his compensated 1980 injury and that this depression adversely affected his capacity to work.\nAppeal by defendants from opinion and award of the North Carolina Industrial Commission filed 21 May 1986. Heard in the Court of Appeals 11 March 1987.\nPursuant to a hearing conducted on 12 January 1983, the North Carolina Industrial Commission (hereinafter, the \u201cCommission\u201d) awarded plaintiff compensation for certain back injuries he sustained in October 1980. In an earlier appeal of that award, Haponski v. Constructor\u2019s Inc., 71 N.C. App. 786, 323 S.E. 2d 46 (1984), this Court affirmed the Commission\u2019s January 1983 conclusion that the October 1980 injury left plaintiff with a 20% permanent partial disability of his back which reached maximum medical improvement on 17 August 1982.\nIn January 1984, plaintiff gave notice of an alleged \u201cchange of condition\u201d under N.C.G.S. Sec. 97-47 (1985). Based principally on the testimony of plaintiff and plaintiffs medical experts, the hearing commissioner found that, from 6 April 1983 until 16 July 1984, plaintiff could not work due to psychiatric problems caused by his October 1980 injury. The hearing commissioner therefore concluded that the emergence of defendant\u2019s psychiatric problems since the Commission\u2019s prior final award constituted a significant change of condition under Section 97-47. She awarded plaintiff additional compensation based on her determination that plaintiff had suffered a temporary total disability. The Full Commission affirmed the hearing commissioner\u2019s opinion and award in all respects. Defendants appeal.\nSmith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Henry N. Patterson Jr. and Jonathan R. Harkavy, for \u2022plaintiff-appellee.\nRuss, Worth & Cheatwood, by Walker Y. Worth, Jr., for defendant-appellants."
  },
  "file_name": "0095-01",
  "first_page_order": 123,
  "last_page_order": 133
}
