                               NO. COA13-413

                     NORTH CAROLINA COURT OF APPEALS

                           Filed:     6 May 2014


MARK WILLARD,
     Deceased-Employee,
     Plaintiff,

    v.                                     North Carolina
                                           Industrial Commission
                                           I.C. No. 99027
VP BUILDERS INC.,
     Employer,
     Self-Insured,

    and

SEDGWICK CMS,
     Third-Party Administrator,
     Defendants.


    Appeal   by   defendants   from    opinion   and   award   entered   18

December 2012 and order entered 29 January 2013 by the North

Carolina Industrial Commission.        Heard in the Court of Appeals

12 September 2013.


    Oxner Thomas + Permar,            by   Kristin   P.   Henriksen,     for
    plaintiff-appellee.

    Teague Campbell Dennis & Gorham,             L.L.P., by George H.
    Pender, Megan B. Baldwin, and                Brian M. Love,   for
    defendants-appellants.


    DAVIS, Judge.
                                           -2-
       VP   Builders,      Inc.      and      its     third-party      administrator

Sedgwick CMS (collectively “Defendants”) appeal from the opinion

and award of the North Carolina Industrial Commission awarding

death benefits to Connie Willard (“Ms. Willard”), the widow of

Mark    Willard       (“Plaintiff”),       and   the    Commission’s     subsequent

order   denying       Defendants’     motion     for    reconsideration.        After

careful review, we affirm.

                               Factual Background

       On   24    September    2008,       Plaintiff    suffered    an   admittedly

compensable injury to his left hand.                   Plaintiff was examined by

Dr. Andrew Koman (“Dr. Koman”) and diagnosed with post-trauma

complex regional pain syndrome and a crush injury involving the

left thumb.           Dr. Koman performed surgery on Plaintiff’s left

hand on 2 June 2009.           Dr. Koman’s physician’s assistant, Randy

Parks (“Mr. Parks”), prescribed Vicodin to Plaintiff from 6 May

2009 to 20 July 2009 in order to manage his pain symptoms.

       On   5    August   2009,      Mr.    Parks,     pursuant   to    Dr.   Koman’s

directive, prescribed methadone to Plaintiff.                     The prescription

instructed Plaintiff to take ten milligrams, three times per day

as   needed      to   manage   his    pain.         Plaintiff’s   medical     records

indicate that Dr. Koman intended “to transition [Plaintiff] from

Vicodin to Methadone as part of the treatment plan to control
                                           -3-
[Plaintiff’s] pain.”           Plaintiff’s medical treatment by Dr. Koman

and Mr. Parks was authorized through his workers’ compensation

coverage    and   paid    for       by    Defendants.           Plaintiff    was    also

receiving weekly disability compensation from Defendants as a

result of his compensable injury.

    On      the   morning      of    6    August        2009,    Ms.   Willard     drove

Plaintiff    to   Dr.    Koman’s         office    and    then    to   the   Rite   Aid

Pharmacy    to    pick    up     and     fill     his     methadone     prescription.

Plaintiff received 90 ten-milligram tablets of methadone from

the pharmacist.      Plaintiff took one of the pills during the car

ride home from the pharmacy.                 Ms. Willard returned home with

Plaintiff and then departed alone to visit her mother between

12:00 p.m. and 1:00 p.m.

    While she was away, Ms. Willard spoke to Plaintiff twice on

the telephone.       When she called him at 1:15 p.m., Plaintiff

“sounded fine.”          When Ms. Willard called the second time at

approximately 3:00 p.m., he told her that he was doing some

research on the computer regarding possible trips to take with

their    granddaughter.             During       this     telephone     conversation,

Plaintiff stated that he had taken a second ten-milligram tablet

of methadone.       Ms. Willard stated that he was speaking at a

lower volume and speed than usual.
                                      -4-
     At 3:30 p.m., Plaintiff received a phone call from his

brother.     Plaintiff’s brother told Ms. Willard that Plaintiff’s

speech was very slow and that when he asked Plaintiff if he was

okay, Plaintiff responded, “I don’t know. . . . My throat feels

funny.”

     Ms. Willard called Plaintiff at 4:00 p.m. to inform him

that she was on her way home, and Plaintiff did not answer the

telephone.     As   she    approached     their   house,       Ms.    Willard   saw

Plaintiff through the window “slumped over the kitchen table.”

When she reached him, he was unresponsive.                   Emergency personnel

arrived and confirmed that Plaintiff was dead.

     On 27 July 2010, Ms. Willard filed a Form 18 seeking death

benefits pursuant to N.C. Gen. Stat. § 97-38.                        In response,

Defendants filed a Form 61, denying the claim on the basis that

(1) Plaintiff’s death “[was] not related to the compensable left

thumb injury”; and (2) N.C. Gen. Stat. § 97-12 — which provides

that compensation shall not be paid if the employee’s injury or

death was proximately caused by “[h]is being under the influence

of   any   controlled     substance     listed    in    the      North   Carolina

Controlled    Substances    Act,   G.S.     90-86,     et.    seq.,    where    such

controlled substance was not prescribed by a practitioner” —

barred any recovery of workers’ compensation benefits.
                                            -5-
      The matter came on for hearing before Deputy Commissioner

Phillip A. Holmes (“Deputy Commissioner Holmes”) on 18 November

2011.       Before the hearing commenced, the parties came to an

agreement        regarding      the        scheduling          of   certain         medical

depositions.        The parties agreed that Dr. Andrew Mason (“Dr.

Mason”),     a     toxicologist          serving    as    an    expert      witness     for

Plaintiff, would be deposed after the parties conducted “some of

the   key    depositions       in    this       case,    particularly       the     medical

examiner’s office witnesses,” consisting of Dr. Deborah Radisch

(“Dr.   Radisch”),       the    Chief        Medical      Examiner     of     the     North

Carolina Office of the Chief Medical Examiner (“OCME”), and Dr.

Ruth Winecker        (“Dr. Winecker”), the Chief Toxicologist of the

OCME.       Pursuant    to    the    agreement,          if   Dr.   Mason’s       testimony

“attack[ed] the toxicology report,” then Defendants would have

the opportunity to redepose Drs. Radisch and Winecker and, if

necessary,       designate     and    introduce         testimony    from     a    rebuttal

toxicologist.          This    agreement         was     entered    into     to     address

Defendants’ earlier contention that Dr. Mason’s testimony should

be excluded because Plaintiff had failed to promptly and fully

disclose     the    substance       of    his    opinions      in   various       discovery

responses.
                                              -6-
      Following     the       hearing,       the    parties     took      several      medical

depositions,      including           those    of     Drs.     Radisch         and    Winecker

(Defendants’        witnesses)           followed        by        the     deposition            of

Plaintiff’s     expert        witness,        Dr.    Mason.         On    13    March    2012,

Defendants    filed       a     motion    to    extend       the    record,      seeking         to

introduce into evidence rebuttal testimony from Dr. Winecker,

Dr.   Radisch,      and       Dr.    Brian     McMillen       (“Dr.       McMillen”)         —    a

toxicologist who was designated to serve as Defendants’ rebuttal

expert witness.         Defendants’ motion alleged that (1) Dr. Mason

had   offered       deposition           testimony       that       was    “substantially

different    than      what     was    represented       in     plaintiff’s          discovery

responses”;      and      (2)       because    Dr.     Mason’s       opinions         were       in

conflict with those testified to by the OCME, Defendants were

entitled to offer rebuttal testimony pursuant to the parties’

pre-hearing agreement.                Deputy Commissioner Holmes denied the

motion that same day.

      On 14 March 2012, Defendants filed a motion requesting the

opportunity to make an offer of proof.                       Specifically, Defendants

—   incorporating       by      reference      their    13    March       2012       motion      to

extend the record — sought to present the rebuttal deposition

testimony of Drs. Winecker, Radisch, and McMillen as an offer of

proof to preserve their challenge to Deputy Commissioner Holmes’
                                                 -7-
ruling for purposes of appellate review.                                Deputy Commissioner

Holmes denied this motion on 15 March 2012.                                      He subsequently

entered an opinion and award on 26 April 2012 (1) concluding

that Defendants had failed to prove their affirmative defense

under    N.C.    Gen.       Stat.     §    97-12       because       the    evidence      did    not

establish that Plaintiff took the methadone in a manner contrary

to    the   prescribed        use;        and     (2)    awarding          Ms.    Willard    death

benefits     for       a    minimum        total        of     400     weeks       and    ordering

Defendants to reimburse her for funeral expenses and to pay the

costs of this action, including expert witness fees.

       Defendants          appealed       to     the    Full    Commission          and   filed    a

motion to reopen the record to include rebuttal testimony from

Drs. Winecker, Radisch, and McMillen.                           Defendants requested, in

the     alternative,         that         they     be     permitted          to     submit      this

deposition testimony as an offer of proof.                              The Full Commission

concluded       that       Defendants          “ha[d]     not    shown       good    grounds      to

receive further evidence” and issued an opinion and award on 18

December     2012      affirming,          with        some    minor       modifications,        the

opinion and award of Deputy Commissioner Holmes.

       Defendants filed a motion for reconsideration on 18 January

2013, requesting that the Commission grant their earlier motion

to reopen the record or, alternatively, allow them to make an
                                   -8-
offer of proof.       Defendants further asked          the Commission to

reconsider its opinion and award once the requested depositions

had occurred, “taking into account this additional medical and

toxicological evidence.”       On 29 January 2013, the Commission

entered an order denying Defendants’ motion for reconsideration,

motion to reopen the record, and request for leave to make an

offer of proof.     Defendants appealed to this Court.

    On 5 December 2013, this Court entered an order remanding

this matter to the Commission for the sole purpose of allowing

Defendants    to   make   an   offer     of   proof    consisting   of   the

anticipated rebuttal testimony of Drs. Winecker, Radisch, and

McMillen.    Defendants’ appeal was held in abeyance pending this

Court’s receipt of the offer of proof.                Defendants submitted

their offer of proof to this Court on 17 February 2014.

                                Analysis

I. Offer of Proof

    Defendants first contend that the Full Commission erred in

failing to allow them the opportunity to make an offer of proof.

We agree.

            The offer-of-proof requirement is imposed
            for the benefit of two different audiences.
            First, when the proponent makes the offer of
            proof, the trial [tribunal] may reconsider
            and change the ruling. . . . Second, the
            offer is also essential if there is an
                                        -9-
            appeal.   If there were no offer of proof,
            the appellate court would have a difficult
            time evaluating the propriety and effect of
            the trial [tribunal’s] ruling.     With an
            offer of proof in the trial record, the
            appellate   court   can   make  much   more
            intelligent decisions as to whether there
            was error . . . [and] whether the error was
            prejudicial . . . .

Robert    P.     Mosteller      et.    al.,   North     Carolina     Evidentiary

Foundations § 3-6, at 3-15 (2d. ed. 2006).               An offer of proof is

generally      essential   to    appellate    review     of    a   lower   court’s

decision to exclude evidence because “[a]bsent an adequate offer

of proof, we can only speculate as to what a witness’s testimony

might have been.”          State v. Jacobs, 363 N.C. 815, 818, 689

S.E.2d 859, 861-62 (2010).            As we recently explained,

            in order for a party to preserve for
            appellate review the exclusion of evidence,
            the significance of the excluded evidence
            must be made to appear in the record and a
            specific offer of proof is required unless
            the significance of the evidence is obvious
            from the record.    The essential content or
            substance of the witness’ testimony must be
            shown   before  we   can  ascertain  whether
            prejudicial error occurred.

State v. Walston, ___ N.C. App. ___, ___, 747 S.E.2d 720, 723-24

(2013)    (internal   citations,        quotation     marks,   and   alterations

omitted),      disc. review denied,        ___ N.C. ___, 753 S.E.2d 667

(2014).

    As set out above, Defendants sought to introduce rebuttal
                                  -10-
deposition testimony from Drs. Winecker, Radisch, and McMillen

and requested that Deputy Commissioner Holmes allow the rebuttal

testimony to be included in the record.          When Defendants’ motion

was denied, they sought leave to make an offer of proof with

regard to this rebuttal testimony.        This motion was also denied.

    After Deputy Commissioner Holmes entered his opinion and

award, Defendants appealed to the Full Commission and sought to

reopen the record to include the rebuttal testimony.            Defendants

again requested, in the alternative, the opportunity to make an

offer of proof regarding the rebuttal testimony.           The Commission

concluded   that   Defendants    “ha[d]    not   shown   good   grounds   to

receive further evidence” and proceeded to enter its opinion and

award without allowing Defendants to make an offer of proof.

    Defendants then filed a motion for reconsideration, arguing

that they had been prejudiced by Plaintiff’s failure to fully

disclose Dr. Mason’s opinions in his discovery responses and by

the Commission’s denial of their request to reopen the record to

receive the testimony of Dr. McMillen and the rebuttal testimony

of Drs. Winecker     and Radisch.         Defendants asserted that the

anticipated   testimony   from   Dr.   McMillen    would   “substantially

contradict Dr. Mason’s opinions” and that “his opinions could

change the outcome in this case.”         Once again, Defendants sought
                                          -11-
leave to make an offer of proof to fully preserve this issue for

appellate review.         However, Defendants’ motion was denied.

      Because      the     Workers’       Compensation        Act        requires       that

processes,       procedures,     and     discovery        under     the     Act    “be     as

summary and simple as reasonably may be,” N.C. Gen. Stat. § 97-

80(a)    (2013),    we    have   held     that    the   rules       of    procedure       and

evidence that govern in our general courts of justice generally

do not apply to the Industrial Commission’s administrative fact-

finding function.         Handy v. PPG Indus., 154 N.C. App. 311, 316,

571     S.E.2d    853,     857    (2002).          However,         “this      Court      has

consistently       held   that    the    Commission       must      conform       to   court

procedure    and     evidentiary        rules     where      required       to    preserve

justice and due process.”           Id. at 317, 571 S.E.2d at 857.

      In   Allen    v.    K-Mart,       137    N.C.   App.    298,       528     S.E.2d    60

(2000), we concluded that despite the general principle that

workers’ compensation proceedings are not subject to the rules

of procedure and evidence that govern our general courts, “[t]he

opportunity to be heard and the right to cross-examine another

party’s witnesses are tantamount to due process and basic to our

justice     system”       and    must     be     observed      by     the      Industrial

Commission in such proceedings.                  Id. at 303-04, 528 S.E.2d at

64.
                                          -12-
       We    believe    that   —   like       the    right    to    cross-examine        the

opposing      party’s      witnesses      —    the    right        to   make     a    record

sufficient for appellate review through an offer of proof is

also    necessary      “to   preserve     justice       and    due      process.”        See

Handy, 154 N.C. App. at 317, 571 S.E.2d at 857; see also State

v. Brown, 116 N.C. App. 445, 447, 448 S.E.2d 131, 132 (1994)

(“It is fundamental that trial counsel be allowed to make a

trial record sufficient for appellate review [by submitting an

offer of proof.]”).

       We fail to see why the same notions of fundamental fairness

requiring the general courts of justice to accept offers of

proof       should   not     likewise     apply       in     workers’         compensation

proceedings.1        Accordingly, while we reiterate that the rules of

procedure      and   evidence      governing        proceedings         in    our    general

courts of justice do not generally apply in hearings before the

Industrial       Commission,       we     hold       that,     upon          request,    the



1
   Indeed, this Court has indicated that in administrative
hearings — where, as with hearings before the Industrial
Commission, evidentiary procedures “are not so formal as
litigation conducted in superior courts” — administrative law
judges should permit a party to make an offer of proof to
demonstrate the substance of the excluded evidence where its
significance is not readily apparent.   Eury v. N.C. Employment
Sec. Comm’n, 115 N.C. App. 590, 602-03, 446 S.E.2d 383, 390-91,
appeal dismissed and disc. review denied, 338 N.C. 309, 451
S.E.2d 635 (1994).
                                           -13-
Commission     must      afford     a     party    in     a    workers’       compensation

proceeding the opportunity to make an offer of proof regarding

the substance of          evidence that has been excluded                       unless the

substance    of    the     evidence       and     its    significance         are    readily

apparent.2

II.   Denial of Motion              to      Reopen        Record       and     Motion      for
      Reconsideration

      We now turn our attention to the question of whether the

Commission     committed      reversible          error       in    denying    Defendants’

motions   to      (1)    reopen     the    record        to    receive       the    rebuttal

testimony    of    Drs.     Winecker,       Radisch,          and    McMillen;      and    (2)

reconsider     its      opinion    and     award    in     light      of     this   rebuttal

testimony.

      Motions     to     receive    additional          evidence       and    motions      for

reconsideration are both reviewed by this Court for abuse of

discretion.        Beard    v.     WakeMed,       ___    N.C.       App.   ___,     ___,   753

S.E.2d 708, 712 (2014); see Moore v. Davis Auto Serv., 118 N.C.

App. 624, 629, 456 S.E.2d 847, 851 (1995) (“The Commission’s

power to receive additional evidence is a plenary power to be

exercised in the sound discretion of the Commission . . . . and



2
  We note that offers of proof can take                            different forms with
varying degrees of formality. See Kenneth                          S. Broun, 1 Brandis &
Broun on North Carolina Evidence § 18, at                           76-80 (7th ed. 2011)
(explaining various methods of making offer                        of proof).
                                   -14-
the   Commission’s   determination      in   that     regard    will   not    be

reviewed    on   appeal   absent   a   showing   of    manifest     abuse     of

discretion.” (citation and quotation marks omitted)).

            The test for abuse of discretion is whether
            a decision is manifestly unsupported by
            reason, or so arbitrary that it could not
            have been the result of a reasoned decision.
            Because the reviewing court does not in the
            first   instance  make   the  judgment,  the
            purpose of the reviewing court is not to
            substitute its judgment in place of the
            decision maker. Rather, the reviewing court
            sits only to insure that the decision could,
            in light of the factual context in which it
            is made, be the product of reason.

Beard, ___ N.C. App. at ___, 753 S.E.2d at 712-13 (citation

omitted).

      “In   determining    whether     to    accept    new     evidence,     the

Commission must consider the relative prejudices to the parties,

the reasons for not producing the evidence at the first hearing,

the nature of the testimony, and its probable effect upon the

conclusion reached.”       Andrews v. Fulcher Tire Sales and Serv.,

120 N.C. App. 602, 606, 463 S.E.2d 425, 428 (1995) (citation and

quotation marks omitted).          However, when deciding whether to

receive additional evidence, the Commission is not required to

make specific findings of fact regarding its decision.                 Keel v.

H & V, Inc., 107 N.C. App. 536, 542, 421 S.E.2d 362, 366-67

(1992).
                                              -15-
      After carefully reviewing the excluded rebuttal testimony

of Drs. Winecker, Radisch, and McMillen                          that we received in

response to our 5 December 2013 order, we conclude that the

Commission did not abuse its discretion in denying Defendants’

motion   to    reopen      the   record        and     reconsider     its     opinion     and

award.     Defendants’ offer of proof revealed that Dr. McMillen —

Defendants’ rebuttal toxicologist — would have testified that

(1)   making    a    dosage      determination          of   methadone        from    tissue

samples is scientifically reliable; and (2) he could opine with

a   reasonable      degree    of       medical       certainty    that    Plaintiff       had

consumed four to eight 10-milligram tablets of methadone based

on the concentration levels found during the autopsy.

      However,      with     regard      to    the     rebuttal    testimony         of   Drs.

Winecker and Radisch, Defendants’ offer of proof reveals that

they would merely have reaffirmed their opinions that neither

could state to a reasonable degree of medical certainty that

Plaintiff      consumed      more       than     two     ten-milligram        tablets       of

methadone (the prescribed dosage).                     Moreover, Dr. Winecker would

have critiqued the methodology that Dr. McMillen — Defendants’

rebuttal      toxicologist         —    utilized       to    arrive      at   his     dosage

determination range of four to eight tablets on the ground that

Dr. McMillen used standard median textbook values derived from
                                          -16-
controlled clinical studies, which, in her opinion, were not

appropriate in the present case given that Plaintiff’s body was

embalmed and then autopsied six months after his death.

    Defendants         contend       that        because     of        the   pre-hearing

agreement between the parties, Defendants were entitled to offer

this rebuttal testimony and that, as a result, the Commission

erred by denying their motion to reopen the record, consider the

rebuttal testimony, and reconsider its opinion and award.                                  As

explained above, Defendants and Plaintiff entered into a pre-

hearing   agreement          regarding      the      order        in     which      medical

depositions were to be scheduled and under what circumstances

Defendants     would    be     allowed       to     offer     rebuttal           testimony.

Specifically, the parties agreed that if Dr. Mason attacked the

toxicology   report     issued       by    the    OCME,     then       Defendants     could

offer rebuttal testimony from Drs. Winecker and Radisch, and, if

necessary,     designate       and    offer        testimony       from      a     rebuttal

toxicologist.

    However, because Dr. Mason’s testimony did not attack the

toxicology   report      itself,      the    pre-hearing          agreement        was    not

triggered.     In his deposition, Dr. Mason did not dispute the

calculations    of     the    methadone      concentration             levels     found    in

Plaintiff’s tissue samples.               Nor did he contradict or criticize
                                         -17-
any   other   information    contained          within      the   toxicology      report

prepared by the OCME.       Instead, Dr. Mason offered his opinion as

to    what    information       could         be     extrapolated        from     tissue

concentration data contained in the report.                        Specifically, he

opined that methadone dosage could not be accurately determined

from tissue samples because methadone is highly variable.                            This

opinion did not attack the toxicology report itself, and as

such, the Commission’s denial of the motion to reopen the record

and motion for reconsideration was not inconsistent with the

parties’ pre-hearing agreement.

      Moreover,    given    that        the        overwhelming      weight     of   the

evidence — both in the record and in Defendants’ offer of proof

— indicates that methadone is highly variable and that tissue

concentrations      do      not         provide        scientifically           reliable

determinations     of    methadone       dosage,       we   cannot    conclude       that

Defendants were prejudiced by the Commission’s denial of their

motions to reopen the record and to reconsider its opinion and

award.    This Court has repeatedly held that we will not find an

abuse    of   discretion   in     the    denial       of    a   motion   to     consider

additional evidence where the party has failed to show that it

was actually prejudiced by the denial.                      See Andrews, 120 N.C.

App. at 606, 463 S.E.2d at 428 (holding that defendants were not
                                          -18-
prejudiced by denial of their motion to consider new evidence in

workers’    compensation       proceeding        because    such   evidence       would

“probably     not     affect      the    outcome”     of     the     hearing,     and,

therefore, Commission did not abuse its discretion); Moore, 118

N.C.   App.   at     629,   456    S.E.2d    at    851     (ruling    that   because

additional evidence defendants sought to introduce in workers’

compensation       proceeding     was     cumulative,      defendants      were    not

prejudiced by denial of motion and failed to show manifest abuse

of discretion).       Here, we believe that Defendants have failed to

show actual prejudice because their offer of proof demonstrates

that had Defendants been allowed to submit rebuttal toxicology

testimony from Dr. McMillen, their two primary witnesses — Drs.

Winecker and Radisch — would have nevertheless reaffirmed their

opinions      that      tissue          concentrations       do      not     provide

scientifically reliable determinations of methadone dosage and

that, as such, they could not state with a reasonable degree of

medical certainty that Plaintiff consumed methadone in a manner

contrary to his prescription.

       Finally, Defendants contend that the Commission’s rulings

prevented them from effectively and meaningfully cross-examining

Dr. Mason.     In making this argument, Defendants primarily rely

on this Court’s decision in Allen.
                                             -19-
      In Allen, the plaintiff sustained an injury while moving a

box of stationary and placing it in a shopping cart.                              Allen, 137

N.C. App. at 298-99, 528 S.E.2d at 61.                      The plaintiff’s treating

physician diagnosed her with a cervical and lumbar muscle strain

and noted that she had also been suffering from panic attacks

and depression for some time.                Id. at 300, 528 S.E.2d at 62.                    As

treatment of the plaintiff continued, the physician eventually

diagnosed the plaintiff with fibromyalgia as well.                                  Id.      The

doctor testified that her diagnosis of fibromyalgia was “sort of

by exclusion because all of the other tests . . . looked pretty

normal.”      Id.        The plaintiff did not seek out a specialist

familiar    with      fibromyalgia       prior       to    her    hearing      before        the

deputy     commissioner,         and     on     22        July        1997,   the       deputy

commissioner entered an opinion and award determining that she

was   no   longer        disabled      and     awarding         her     medical     expenses

incurred    as    a     result   of    the    muscle       strain       but   not      for   the

treatment of fibromyalgia.             Id.

      The plaintiff appealed to the Full Commission and filed a

motion “for independent psychiatric and fibromyalgia specialist

examinations.”          Id. at 301, 528 S.E.2d at 62.                     The Commission

granted     the       motion,     and        over     the        defendants’        numerous

objections,       the    Commission      allowed          the    plaintiff        to    submit
                                    -20-
reports from a psychiatrist and a general practitioner who had

experience in treating and diagnosing fibromyalgia.               Id. at 301,

528 S.E.2d at 63.        The Commission relied on these reports in

entering its opinion and award in which it concluded that the

plaintiff’s panic attacks, depression, and fibromyalgia “were

caused or significantly aggravated by her injury by accident.”

Id. at 302, 528 S.E.2d at 63.            This Court reversed, concluding

that the Commission erred “by allowing significant new evidence

to be admitted but denying [the] defendants the opportunity to

depose or cross-examine the physicians, or [failing to require

the]    plaintiff   to   be   examined     by    experts     chosen   by    [the]

defendants.”    Id. at 304, 528 S.E.2d at 64.

       In so holding, we noted that (1) the defendants filed five

separate objections to the admission of this evidence to which

the    Commission   failed    to   respond;      and   (2)   “[t]he   evidence

offered by [the psychiatrist and the practitioner experienced in

diagnosing fibromyalgia] was completely different from any other

evidence admitted up to then.”             Id.     We thus concluded that

“where the Commission allows a party to introduce new evidence

which becomes the basis for its opinion and award, it must allow

the other party to rebut or discredit that evidence.”                      Id. at

304, 528 S.E.2d at 64-65.
                                       -21-
       Here,     conversely,    Defendants       were   able   to   extensively

cross-examine Dr. Mason.          Indeed, we note that Defendants were

able   to   specifically       question    him    concerning     both   (1)   his

opinion that methadone dosage could not be accurately determined

using tissue concentrations; and (2) Dr. McMillen’s opinion that

Plaintiff’s recorded levels of methadone could not have been

reached     by     ingesting    only      two    ten-milligram      tablets   of

methadone.       As such, Allen is distinguishable from the present

case, and Defendants’ argument on this issue is overruled.

                                  Conclusion

       For the reasons stated above, we affirm the Commission’s 18

December 2012 opinion and award and its 29 January 2013 order

denying Defendants’ motion for reconsideration.

       AFFIRMED.

       Judges HUNTER, JR. and ERVIN concur.
