Alawar v Courtyard Marriott North, et al
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-248 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 SAMI ALAWAR, Employee, Plaintiff, v. N.C. Industrial Commission I.C. No. 494525 COURTYARD MARRIOTT NORTH, Employer, SELF-INSURED (MARRIOTT CLAIMS SERVICES, Servicing Agent), Defendant. Appeal December by 2010 Defendant by the from North Opinion Carolina and Award Industrial entered 20 Commission. Heard in the Court of Appeals 31 August 2011. Scudder & Hedrick, PLLC, by John A. Hedrick and April D. Seguin, for Plaintiff-Appellee. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Susan J. Vanderweert and M. Duane Jones, for Defendant-Appellants. BEASLEY, Judge. Courtyard Marriott (Defendants) appeal from North and Marriott Claims Services an Opinion and Award issued by the North Carolina Industrial Commission (the Commission) ordering Defendants to pay indemnity benefits, medical expenses, and -2litigation and attorney s fees to Sami Alawar (Plaintiff). For the reasons stated below, we affirm in part and reverse in part. On 6 May 2003, Plaintiff suffered a back injury in the course of his duties while employed by Defendants. Neither party disputes the compensability of this original injury. On 24 May 2004, Plaintiff went to work as a maintenance helper at the Raleigh Residence Inn. On 6 October 2004, Plaintiff sought treatment for back pain at WakeMed Emergency Services. In an Opinion and Award filed 28 September 2006, Deputy Commissioner Philip A. Baddour, III found that the continued back pain that Plaintiff suffered was related to his 2003 injury, and therefore Defendants were liable for his medical expenses. Dr. William F. Lestini began treating Plaintiff on 19 November 2004, and was authorized by Deputy Commissioner Baddour to be Plaintiff s treating physician. On 19 March 2009, Special Deputy Commissioner Christopher B. Rawls ordered that Plaintiff be allowed to see a physician on whom both Plaintiff and Defendants could agree. May 2009, Plaintiff began seeing Dr. Shehzad Choudry. new In On 16 September, Dr. Choudry referred Plaintiff to a spine surgeon for an evaluation. Defendants refused to authorize this evaluation. On 2009, 21 October Special Deputy Commissioner Jennifer S. -3Boyer ordered Defendants orthopedic surgeon. to authorize the evaluation by an On 6 November 2009, Deputy Commissioner Theresa B. Stephenson also ordered that Plaintiff s motion for a surgical evaluation be granted. filed a Motion for On 12 November 2009, Defendants Reconsideration in response to Deputy Commissioner Stephenson s order, and that motion was denied on 13 November 2009 by Deputy Commissioner Stephenson. On 10 December 2009, Plaintiff had his surgical evaluation with Dr. Leonard D. Nelson, Jr. Defendants employed an investigator to observe Plaintiff for several hours on 10 December, 11 December, 18 December, 21 December, 29 December, and 31 December 2009, as well as on 1 January and 2 January 2010. In addition to preparing a report of Plaintiff s activities, the investigator provided Defendants with surveillance videos. On 11 June 2010, Deputy Commissioner Robert Wayne Rideout, Jr. issued an Opinion and Award, which resolved the following issues: (1) whether Plaintiff is entitled to any medical or indemnity benefits beyond what had already been paid and (2) whether Defendants had reasonable grounds to contest Plaintiff s entitlement Commissioner to back Rideout surgery found or indemnity that benefits. Plaintiff s current Deputy back -4problems were related to his 2003 injury, and ordered Defendants to pay all medical expenses incurred for the treatment of that injury, including Defendants were the also surgery ordered recommended to pay compensation from 21 October 2009, by Dr. Plaintiff s Nelson. disability when he was excused from work, until such time that he was able to return. Defendants filed a notice of appeal on 17 June 2010, and Plaintiff filed one on 21 June 2010. Defendants also filed an application for review of the case by the Full Commission on 13 August 2010. The case was heard before the Full Commission on 5 November 2010. The Commission issued an Opinion and Award on 20 December 2010 finding that Plaintiff s current need for medical treatment is related to his 2003 injury, and awarding Plaintiff attorney s fees pursuant to N.C. Gen. Stat. § 97-88.1 on grounds that Defendants defense of the claim was unreasonable. I. We review Industrial an Opinion Commission by and Award determining of the North whether there Carolina is any competent evidence in the record to support the Commission s findings of fact and whether Commission s conclusions of law. these findings support the Lineback v. Wake County Board of Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 -5(1997) (citing Sidney v. Raleigh Paving & Patching, 109 N.C. App. 254, 426 S.E.2d 424 (1993)). [o]n appeal from the It is well settled that Industrial Commission, this court is unable to weigh evidence, and if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal. Johnson v. Herbie s Place, 157 N.C. App. 168, 175, 579 S.E.2d 110, 115 (2003) (quoting Johnson v. Southern Tire Sales & Service, 152 N.C. App. 323, 327, 567 S.E.2d 773, 776 (2002)). II. The Commission found that Plaintiff s current back condition is a result of the compensable back injury that he suffered while working for Defendants in 2003. In support of this finding, Plaintiff emphasizes the testimony of Drs. Choudry and Nelson. opinion to During his deposition, Dr. Choudry expressed his a reasonable degree of medical certainty that Plaintiff s current need for surgery is related to his 2003 injury. Dr. Nelson also opined that Plaintiff s current condition is a natural consequence of his original injury. Defendant argues that both doctors also gave conflicting testimony during their depositions that cast doubt on the causal connection between Plaintiff s 2003 injury and his current -6condition. the This Court has acknowledged that [t]he fact that treating physician in [a] case could not state with reasonable medical certainty that plaintiff's accident caused his disability, is not dispositive -- the degree of the doctor's certainty goes to the weight of his testimony. Adams v. Metals USA, 168 N.C. App. 469, 483, 608 S.E.2d 357, 365 (2005) (citing Martin v. Martin Brothers Grading, 158 N.C. App. 503, 507-08, 581 S.E.2d 85, 88 (2003)). The fact that the doctors gave conflicting testimony that lessened their certainty concerning the cause of Plaintiff s current condition goes to the weight of their testimony, but it does not preclude consideration of the testimony altogether. Defendants also point to our Supreme Court s holding in Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (2000), for the proposition that when a case turns on the cause of a medical condition, a finding of causation based on the maxim of post hoc, ergo propter hoc assumes a false connection between causation and temporal sequence and is not competent evidence of causation. Id. at 232, 538 S.E.2d at 916. Defendants reliance is misplaced. In Young, the expert medical witness piece testified that the only of information that related the plaintiff s fibromyalgia to her accident was the -7fact that she did not have the condition before the accident but developed it after. Id. In the case sub judice, Dr. Choudry responded to defense counsel s question as to whether there was some degree of speculation in his conclusion that Plaintiff s current back problems are related to his 2003 injury by stating that because this is a workmen s [sic] comp case and he came to me because of an injury in 2003, I draw the causation line. At no point did Dr. Choudry state that he based his entire opinion as to the cause of temporal speculation. render evidence Plaintiff s current condition on this Moreover, conflicting evidence does not incompetent, party s conflicting testimony. even when the evidence is one See Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980) (rejecting the defendant s argument that the plaintiff s testimony before the Commission contradicted his earlier statements and thus could not reasonably support a finding of injury by accident). This argument is overruled. III. Defendants next contend that the Commission erred by affirming Deputy Commissioner Rideout s denial of Defendants Motion to Add an Additional Party. Defendants assert that Plaintiff suffered a back injury while working at the Residence -8Inn that is the true cause of his current discomfort. Thus, they sought to add the Residence Inn as an additional party. The Commission found that Plaintiff never sustained injury while employed by the Residence Inn. evidence in the record to support this a back There is ample finding, including Plaintiff s own testimony, and the testimony of Matthew Paul Smith, the General Manager of the Residence Inn. Defendants argue that there were also statements made by Plaintiff to his doctors that suggest Plaintiff did injure himself while working at the Residence Inn. It is important to note that [i]t is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. Deese v. Champion Int l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000). The Commission found the testimony of Plaintiff and Mr. Smith at the hearing to be worth more weight. It is not for this Court to re-evaluate the credibility of testimony. Consequently, this argument is overruled. IV. Defendants awarding also ongoing allege disability that the benefits Commission to erred Plaintiff. in The Commission found that as a result of his 2003 injury, Plaintiff has been unable to earn wages from any employer since 21 October -92009. This finding was based on the fact that Dr. Choudry excused Plaintiff from all work beginning on that date. finding was further supported by Dr. Choudry again The excusing Plaintiff from all work on 20 November 2009, and Dr. Nelson doing the same after evaluating condition on 10 December 2009. Plaintiff s Defendants lumbar spine argue that these notes are not competent evidence for the Commission to rely on because in his deposition Dr. Choudry stated that he concluded that Plaintiff complained should he felt throughout the day. testimony of Dr. be pain excused when from putting work after weight on Plaintiff his leg Defendants also point to the deposition Lestini, who opined that it seemed that Plaintiff could perform some work-related duties after watching Defendants surveillance videos. purview of this Again, it is not within the Court to re-weigh evidence presented to the Commission, or to second guess the credibility of testimony. The presence of conflicting testimony supporting testimony incompetent. does not render the As such, we find there was sufficient evidence for the Commission to rely on in reaching this conclusion, and this argument is overruled. V. -10Finally, Defendants allege that the Commission erred when concluding that their defense of this claim was unreasonable, and awarding Compensation Plaintiff Act, attorney s which states fees that under [i]f the the Workers Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess . . . reasonable fees for defendant's attorney or plaintiff's attorney upon the party who has brought or defended them. Gen. Stat. § 97-88.1 (2009). under N.C.G.S. against a party § 97-88.1 to prosecuting N.C. The Commission is authorized assess or attorney s defending a fees hearing . . . without reasonable grounds[,] and that decision is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 70-71, 526 S.E.2d 671, 677 (2000) (quoting Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 54-55, 464 S.E.2d 481, 486 (1995)). An abuse of discretion will be found only where the Commission s decision is manifestly unsupported by reason or [is] so arbitrary that it could not have been the result of a reasoned decision. Long v. Harris, 137 N.C. App. 461, 465, 528 S.E.2d 633, 635 (2000) (internal quotation marks omitted). -11The medical Commission evidence to found Defendants contradict offered Plaintiff s no claim competent that his current injury was related to his 2003 injury, and that as a result of this injury Plaintiff has been restricted from all work since 21 October 2009. conclude that Defendants This finding led the Commission to defense of Plaintiff s claim was unreasonable, and therefore Plaintiff is entitled to payment of his litigation costs and attorney s fees. We disagree. As detailed in Sections II and III, supra, the evidence in this case is conflicting. Although we affirm the Commission s other findings because there is competent evidence to support them, we also recognize that there is some competent evidence to support Defendants claims. We cannot agree Plaintiff s claim was unreasonable. that their defense of Accordingly, we reverse the Commission s award of litigation costs and attorneys fees to Plaintiff. Affirmed in part; Reversed in part. Judges STEPHENS and ERVIN concur. Report per Rule 30(e).
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