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Mayfield v. Hannifin11/15/2005
Defendant Parker Hannifin appeals from the Industrial Commission's opinion and award granting total disability benefits to plaintiff Willie Mayfield. Defendant argues on appeal that the Full Commission improperly excluded certain evidence from one of plaintiff's treating physicians after defendant, withoutplaintiff's consent, sent the physician a facsimile that was copied to plaintiff's counsel. Because we hold that the facsimile violated the principles set out in Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990) and Salaam v. N.C. Dep't of Transp., 122 N.C. App. 83, 468 S.E.2d 536 (1996), disc. review improvidently allowed, 345 N.C. 494, 480 S.E.2d 51 (1997), we affirm the Full Commission's exclusion of that evidence. We further hold that, although the Commission's decision is supported by competent evidence, we must remand for further proceedings because of an inconsistency between the findings of fact and conclusions of law.
Facts and Procedural History
Beginning in 1998, plaintiff worked for defendant as a hose fabricator, a position requiring him to cut and assemble hydraulic hoses. On 11 January 2001, while lifting a hydraulic hose onto a table, plaintiff felt a snapping in his lower back and began experiencing pain in that area. A few days later, he developed numbness in his left leg and left foot. On 19 February 2001, defendant filed a Form 19 that described the incident as involving a lower back injury. On the same date, plaintiff ceased working, and defendant began paying plaintiff temporary total disability benefits.
To address plaintiff's symptoms, defendant referred him to Dr. Chris Guest, a general practitioner. Dr. Guest diagnosed plaintiff with central canal stenosis with a resultant nerve root encroachment. When conservative treatment failed, Dr. Guest referred plaintiff to Dr. Randy O. Kritzer, a neurosurgeon. Atplaintiff's first appointment with Dr. Kritzer, on 13 March 2001, plaintiff reported that his back pain had resolved, but that he was continuing to experience numbness in his left leg. Dr. Kritzer diagnosed plaintiff with chronic degenerative spine conditions coupled with spondylosis. Plaintiff received two epidural shots, but then declined further conservative treatment. Because Dr. Kritzer did not believe surgery would be effective, he released plaintiff from his care on 8 May 2001.
Following a recommendation from his rehabilitation nurse, plaintiff requested that Dr. Donald Hertweck, of Triad Internal Medicine Associates, P.A., be designated as his primary treating physician. Defendant agreed, and plaintiff went to his first appointment with Dr. Hertweck on 28 June 2001. He reported continuing pain, heaviness, and numbness in his left foot, although he had no back pain. Dr. Hertweck examined plaintiff and noted that his "symptoms do not correlate with the history of a back injury. . . . At this time, I cannot correlate his sensation of heaviness and weakness to obvious medical reason. It may still be related to his back."
On 9 July 2001, plaintiff was referred to Dr. Albert K. Bartko III of the Southeastern Orthopaedic Specialist Sports Medicine Center. Dr. Bartko is board certified in physical medicine and rehabilitation. At plaintiff's initial examination with Dr. Bartko, plaintiff reported resolution of his lower back pain, but described pain on the front of his left thigh, knee, and calf. At the time of plaintiff's initial visit, Dr. Bartko indicated in hismedical note that it was unusual for plaintiff's leg and foot pain to persist when his lower back pain had resolved. He expressed concern to plaintiff that the leg pain might have a different cause, such as a mini-stroke or diabetes. Dr. Bartko limited plain
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