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Cummins v. BCCI Construction Enterprises3/5/2002
PUBLISHED
Appeal by defendants from Opinion and Award entered 16 June 2000 and Order entered 4 August 2000 by the Full Commission in the North Carolina Industrial Commission. Heard in the Court of Appeals 19 September 2001.
Plaintiff William Cummins injured his back in August 1995 while setting steel columns for his employer, BCCI Construction. Plaintiff sought treatment and later attempted to return to work on a trial basis. He was unable to do so because of pain. In November 1995, plaintiff hurt his back again while raking leaves. A CT and myelogram revealed a herniated disk. Plaintiff underwent surgery performed by Dr. Samuel Chewning of the Miller Orthopaedic Clinic in January 1996, but continued to have recurrent hip and leg pain. Dr. Chewning released plaintiff to work with restrictions not to lift anything over twenty pounds. Plaintiff continued to experience pain, and sought treatment from several other doctors, including Dr. Brigham of the Miller Orthopaedic Clinic whom he first saw on 13 March 1997. On 15 April 1997, plaintiff allowed Dr. Brigham to perform the same type of surgical procedure-- decompression and microdisectomy--as was performed in January 1996. Thereafter, Dr. Brigham diagnosed plaintiff with a recurrent herniated disk.
Plaintiff requested a hearing before the Industrial Commission after his claim for work-related back injury was denied. A hearing was held on 9 January 1997. At the request of both parties the deputy commissioner extended the time for completing medical depositions and for submission of medical records. The deputy commissioner granted another extension of time at defendants' request. Defendants thereafter deposed Dr. Chewning. When the deputy commissioner ordered that the record be closed on 24 March 1997, plaintiff moved for reconsideration. The motion included a request that two of the previously stipulated exhibits (Exhibits 4 and 5) regarding treatment records of Doctors Brigham and Metcalf be supplemented with more current records, or, in the alternative, that the two physicians be deposed. Defendants opposed the admission of the records on the ground that the records covered treatment provided after the hearing and opposed the taking of depositions on the ground that they were not timely. The deputy commissioner denied plaintiff's motion for reconsideration. The deputy commissioner filed an Opinion and Award on 31 December 1997, granting plaintiff: 1) temporary total disability compensation at $360 per week beginning 22 August 1995 to 10 November 1995; 2) medical expenses; 3) attorney fees at twenty-five percent of compensation due plaintiff; and 4) an expert witness fee in the amount of $215.00 to Dr. Chewning.
Plaintiff appealed to the Full Commission [Commission], requesting a review of, inter alia, the deputy commissioner's denial of his motion for reconsideration (to submit the updated medical records evidence). On 16 June 2000, the Commission filed an Opinion and Award. The Order of the Full Commission reversed the deputy commissioner's exclusion of the exhibits, and found that plaintiff was entitled to ongoing total disability compensation from the time of the injury in August 1995 to the time when plaintiff returned to work. Defendants filed a Motion for Reconsideration and to Reopen the Record with the Commission on 19 July 2000. The Commission filed an Order on 4 August 2000 denying in part and granting in part defendants' motion for reconsideration. Defendants filed Notice of Appeal from the Commission's 16 June 2000 Opinion and Award and its 4 August 2000 Order. ____________________
Defendants present four arguments stating the Commission erred in: 1) considering plaintiff's "Proposed Exhibit
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