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Mayfield v. Hannifin11/15/2005
means as the communication is provided to the provider.
Id. (emphasis added). This statute became effective on 29 September 2005 "and appl to claims pending and filed on or after that date." Id. sec. 10.
This amendment provides further support for our conclusion that defendant's facsimile was impermissible. The General Assembly has determined that it is necessary to limit the type of questions that may be asked and to ensure that the questions are neutrally drafted. Significantly, defendant's facsimile in this case would not have been allowed under this statute. Nor does the facsimile fall within any permissible form of discovery. While the questions asked are analogous to interrogatories, there is no discovery provision that authorizes posing interrogatories to a non-party. See Workers' Comp. R. of N.C. Indus. Comm'n 605, 2005 Ann. R. (N.C.) 935 ("Interrogatories may, without leave of the Industrial Commission, be served upon any party after the filing of a Form 18, Form 18B, or Form 33, or after approval of Form 21.").
Defendant was required to take Dr. Bartko's deposition in order to obtain the information that it sought by its facsimile. If defendant wished to ensure that Dr. Bartko, in the course of his examination of plaintiff, considered certain topics, it was free to work informally with plaintiff's counsel to agree upon a list of issues to submit to the doctor. As the Supreme Court stated in Crist, " e do not intend by this holding to discourage consensual informal discovery." 326 N.C. at 336, 389 S.E.2d at 47.
Defendant argues alternatively that Crist and Salaam do not apply because, due to the time elapsed since Dr. Bartko last saw plaintiff, Dr. Bartko was no longer plaintiff's treating physician. This argument cannot be reconciled with defendant's own brief in which it contends that the Commission exceeded its authority in removing Dr. Bartko as the treating physician based on the facsimile communication. That argument presumes Dr. Bartko was plaintiff's treating physician. Further, we can perceive no factual or legal basis for concluding that Dr. Bartko was transformed from a treating physician into a doctor simply performing an independent medical examination.
Defendant next argues that even if the facsimile was improper, the Commission erred in determining that it improperly tainted Dr. Bartko's opinions. Since that assessment involves a factualquestion, the issue for this Court is whether any evidence exists to support the Commission's finding of taint. Our review of that facsimile indicates that it was not neutrally phrased, but rather was couched in an advocate's language, designed to affect the answer. Defendants, however, point to the fact that Dr. Bartko had already expressed his opinion a year earlier that plaintiff's left leg symptoms were not causally related to the 11 January 2001 injury . The facsimile communication, however, focused on different issues: whether and to what extent plaintiff's back injury contributed to an inability to work. While Dr. Bartko's September 2001 opinion may be read as suggesting that his back injury and left leg condition were combining to result in total disability, Dr. Bartko's August 2002 opinion stated that plaintiff's inability to work was solely related to his non-work-related problems. The Full Commission could reasonably find that this aspect of Dr. Bartko's opinion was tainted.
In sum, because we agree with the Commission that defendant's counsel's facsimile to Dr. Bartko was improper under Crist and its progeny, we hold that the Full Commission did not err in excluding from evidence all opinions rendered by Dr. Bartko after 1 August 2002. Therefore, we overrule defendant's ass
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