An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-481
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


TIFFANY WILLIAMS, Individually and
as Guardian Ad Litem for ONESTY
BENNETT, Minor, Plaintiff,


      v.                                      North Carolina Industrial
                                              Commission
                                              I.C. No. TA-22046
WILSON COUNTY BOARD OF EDUCATION,
     Defendant.


      Appeal    by   plaintiff     from   decision     and   order    entered     11

March 2013 by the North Carolina Industrial Commission.                       Heard

in the Court of Appeals 26 September 2013.


      Attorney General Roy Cooper, by Associate Attorney General
      Christopher R. McLennan, for Wilson County Board of
      Education.

      Tanner and Romary, P.A., by Jeremy Tanner, for plaintiff-
      appellant.


      BRYANT, Judge.


      Where there is competent evidence on the record to support

the Full Commission’s findings of fact and those findings in

turn support the Commission’s conclusions of law, we affirm the

Decision and Order of the Full Commission.
                                        -2-
       On 13 October 2010, Tiffany Williams, serving as guardian

ad litem for her daughter, plaintiff Onesty Bennett, a minor,

filed suit against the Wilson County Board of Education in the

North Carolina Industrial Commission under our Tort Claims Act.

Evidence presented before Deputy Commissioner J. Brad Donovan on

25 April 2012 tended to show that on 4 May 2010, then twelve-

year-old plaintiff was a passenger in a Wilson County school bus

when the bus turned a corner, ran off the road, and traveled

through a ditch.        Plaintiff was jostled, and her head struck the

bus window.      Plaintiff testified that by the time she got to

school,   her    head    hurt.    She     informed   her    teachers     of   her

headache but did not see a school nurse.                  “I couldn't really

keep my head up so I just laid down.”             Plaintiff testified that

at home that evening, she went to sleep earlier than usual, and

when she awoke, her head still hurt.             Two to three days later,

plaintiff told her mother that she was still having headaches.

Williams, testified that she called plaintiff’s pediatrician,

Dr. Debra Tetreault, but the first available appointment was not

until 20 May 2010 – sixteen days after the accident.                   Williams

then    took    plaintiff    to   see     Dr.   Melissa    Roccos   at    Elite

Chiropractic.
                                      -3-
    Dr. Roccos testified before Deputy Commissioner Donovan as

an expert in the field of chiropractic medicine.                  Dr. Roccos

examined plaintiff on 14 May 2010.              After an interview during

which    she    took   plaintiff’s   history,   Dr.   Roccos    performed   an

examination and took x-rays of plaintiff’s neck.

    Dr. Rocco testified using notes from her examination of

plaintiff       and    concluded   that   plaintiff    was    “neurologically

sound”      but        gave   “musculoskeletal        signs     and   closed

musculoskeletal injury.”

               A. . . . When [plaintiff] came in to the
               office, she showed indications of muscular
               spasm in several areas. The muscle spasms
               that she had at the front of the neck,
               characteristically, because these muscles
               attach from the outside of the neck up to
               the front bones in the collar bone, as they
               spasm, they shorten. And as they shorten,
               they tend to increase the patient's forward
               head carriage. That forward head carriage
               will change or increase the curve of the
               spine. And that's what we - we noticed on
               her x-ray. The other thing that [plaintiff]
               had was spasm underneath the rim of the
               skull   in   these  little  muscles   called
               suboccipitals. And when the muscles in the
               suboccipital area spasm, again, because of
               their attachment points from the skull to
               the spine, oftentimes they will cause the
               skull to drop, which is, again, something
               that we noticed on x-ray of [plaintiff]. She
               also had muscle spasms in through the upper
               muscle - we have big muscles in our back
               that attach all the way up into our skull,
               like the trapezius muscle or the Levator
               spaculae. And these are big muscles that go
                     -4-
from one area of the body to the other. So
oftentimes when people hear the word back,
they think back down here. But in truth, the
back   is   all  of   the  back  body.   And
[plaintiff]   had indications of muscular
spasm in the muscles from the upper mid-back
into the base of the neck.

Q. Would all those findings be consistent
with someone who had a sudden jerk of their
head or either hit their head on a window?

A. Yes.

. . .

Q. And do you     remember    what   your   final
diagnosis was?

A. It was a strain--- Well, she had some
indications of mild concussive symptoms with
the   fatigue,   the  lethargy,  the   focus
difficulties, and the headaches. And it was
a strain of her neck, a strain of her back
and muscular spasm.

. . .

Q. All right, and based on your education,
training, experience, and the history that
[plaintiff] gave you, and the history that
her mom gave you, do you have an opinion to
a   reasonable    degree   of    chiropractic
certainty as to whether it was more likely
than not that the injuries you described
were caused by the
bus - school bus accident on May 4th, 2010?

A. Yes.

Q. What is that opinion?

A.   I   believe   it   was    the    cause   of
[plaintiff’s] injuries.
                                             -5-


              . . .

              Q. And based on your education, training and
              experience, do you have an opinion as to
              whether your treatment of       [plaintiff’s]
              injuries were reasonable and necessary?

              A. Yes, they were.

When asked why her notes reflect that plaintiff struck the right

side of her face while plaintiff testified that she struck the

left side of her face, Dr. Roccos stated that she could not

attest   to    why    there     was     a    discrepancy       but   mentioned       that

“[p]atients      have     a     lot     of     difficulty      remembering       things

immediately.”

      Despite receiving chiropractic treatment from Dr. Roccos,

Williams took plaintiff to her pediatrician, Dr. Tetreault, for

an examination on 20 May 2010.

      Dr.     Tetreault       was     deposed       on   1   March   2012,    and     the

transcript     from     her    deposition          submitted   as    evidence    during

Deputy Commissioner Donovan’s proceedings.                       Dr. Tetreault was

proffered without objection to testify as an expert witness in

pediatric medicine.           Dr. Tetreault testified that she examined

plaintiff on 20 May 2010.                    During the examination plaintiff

related that she had hit her head when her school bus ran off

the   road    and     afterward       she    had     headaches.       Based     on    the
                                   -6-
interview,   Dr.    Tetreault’s    impression   was   that    plaintiff’s

headaches began “fairly soon or immediately” after the school

bus accident.       Plaintiff did not complain of other symptoms.

Dr. Tetreault did not observe any objective signs of physical

injury to plaintiff, such as bruising or lacerations.              During

the interview, Dr. Tetreault also noted plaintiff’s statement

that she had prescription lenses but did not wear them.

         Q.        And   what   happens   with   a   person
                   requiring     prescriptive    corrective
                   lenses does not regularly wear them?

         A.        They get headaches.

         Q.        And does the degree to which a person’s
                   vision is impaired impact the severity
                   of these symptoms?

         A.        Yes, it can.

         . . .

         Q.        Okay. And how impaired is [plaintiff’s]
                   vision without her glasses?

         A.        When we asked her to do a standard eye
                   chart reading, she could not read any
                   of the letters on the chart without her
                   glasses.

    During her deposition, Dr. Tetreault was presented with Dr.

Rocco’s observations of plaintiff recorded over the course of

three visits that occurred prior to plaintiff’s              20 May 2010

examination by Dr. Tetreault.        When asked if she would agree
                                        -7-
with    the    chiropractor’s       opinion    that    muscle      spasms,    trigger

points, and other observations noted in the record resulted from

the bus accident, Dr. Tetreault testified she could not speak to

that since she did not see plaintiff right after her accident.

“When I saw her, she did not have any of those tenderness or any

problems.”

       In the deputy commissioner’s Decision and Order entered 17

August 2012, the deputy commissioner concluded that the school

bus    driver’s      negligent     operation   of     the   school     bus    was   the

proximate cause of plaintiff’s injuries and that the medical

treatment plaintiff received as a result of those injuries was

reasonable         and   necessary.     The    Wilson       County    School    Board

appealed to the Full Commission (the Commission).

       On     11   March   2013,    after   review     of    the     record    of   the

proceedings         before    the     deputy    commissioner,          the     deputy

commissioner’s decision and order, as well as the briefs and

arguments of the parties, the Commission filed its Decision and

Order reversing that of the deputy commissioner.                     The Commission

made the following finding of fact:

               23. Based upon a preponderance of the
               evidence of record, the Full Commission
               affords greater weight to the opinions of
               Dr. Tetreault than to those of Dr. Roccos as
               Dr. Tetreault had been Minor Plaintiff
               Bennett’s treating physician since 2007 and
                                   -8-
            specifically treats children in her day to
            day practice of medicine as a pediatrician.
            Further, the Full Commission affords greater
            weight to the opinions of Dr. Tetreault due
            to the inconsistencies noted in the records
            of Dr. Roccos and the testimony of both
            Plaintiff   Williams  and   Minor  Plaintiff
            Bennett.

The   Commission     further   found     that   plaintiff    displayed   no

evidence of injury on 20 May 2010 and had full range of motion

in her neck.       The Commission found Dr. Roccos’ treatment of

plaintiff   was    neither   reasonable   nor   necessary.     Plaintiff’s

claim for damages was therefore denied.         Plaintiff appeals.

                       ______________________________

      On appeal, plaintiff raises the following issues: whether

the Commission erred (I) by determining that medical records

from Elite Chiropractic were unreliable; (II) by giving greater

weight to the testimony of Dr. Tetreault; (III) when determining

that plaintiff failed to present sufficient evidence of injury

causation; (IV) when determining that plaintiff was not entitled

to recover damages; (V) when failing to affirm the award of

attorney fees and costs to plaintiff’s counsel; and (VI) when it

failed to make findings for additional attorney fees.

                                 I, II, & III
                                       -9-
       Plaintiff argues that the Commission erred in determining

that    the     medical     records    from        Elite    Chiropractic         were

unreliable.       Specifically, plaintiff asserts the following:

              [I]n order to give greater weight to the
              testimony of Dr. Tetreault, [the Commission]
              has to first lay the foundation that Dr.
              Roccos’ opinions and records cannot be
              relied upon and must simply be ignored
              because it is clear from the evidence as
              outlined in Deputy Commissioner Donovan’s
              opinion that Dr. Tetreault deferred to Dr.
              Roccos to give an opinion about causation
              and what needed to be done to treat Bennett
              for her injuries.

We disagree.

       Pursuant    to   Article   31   of    Chapter       143   of   our    General

Statutes, “Tort Claims Against State Departments and Agencies,”

when an appeal is taken from the Deputy Commissioner,

              [s]uch appeal, when so taken, shall be heard
              by the Industrial Commission, sitting as a
              full Commission, on the basis of the record
              in the matter and upon oral argument of the
              parties, and said full Commission may amend,
              set aside, or strike out the decision of the
              hearing commissioner and may issue its own
              findings of fact and conclusions of law.

N.C. Gen. Stat. § 143-292 (2013).                  “[T]he Commission is the

ultimate      fact-finder    on   appeal     and     is    authorized       to   make

findings and conclusions contrary to those made by the deputy

commissioner.”       Hummel v. Univ. of N.C., 156 N.C. App. 108, 114,

576 S.E.2d 124, 128 (2003) (citation and quotations omitted).
                                      -10-
“The Industrial Commission's findings of fact are binding on

appeal if supported by competent evidence even though there is

also evidence which would support a contrary finding.”                 Hoover

v. Charlotte-Mecklenburg Bd. of Educ., 87 N.C. App. 417, 419,

361 S.E.2d 93, 94 (1987) (citation omitted).

                   In   reviewing   a   decision  of   the
              Industrial Commission in a case arising
              under the Tort Claims Act, we are limited to
              addressing (1) whether the Commission's
              findings of fact are supported by any
              competent evidence, and (2) whether the
              findings of fact support the Commission's
              conclusions of law and decision.

Davidson v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544,

552,   543    S.E.2d   920,   925    (2001)   (citations   omitted).      “On

appeal, this Court does not have the right to weigh the evidence

and decide the issue on the basis of its weight. The Court's

duty   goes    no   further   than   to   determine   whether   the    record

contains any evidence tending to support the finding.”                Coulter

v. Catawba County Bd. of Educ., 189 N.C. App. 183, 185, 657

S.E.2d 428, 430 (2008) (citation omitted).

       Plaintiff argues that the Commission improperly gave more

weight to Dr. Tetreault’s testimony due to a discrepancy between

plaintiff’s testimony and Dr. Roccos’ records as to which side

of plaintiff’s head she hit on the school bus window.            While the

Commission does state that inconsistencies between the records
                                          -11-
of    Dr.     Roccos    and     plaintiff’s      testimony       was    a       ground    for

affording greater weight to the opinion of Dr. Tetreault, this

was not the sole basis.             In its finding of fact, the Commission

set out that it afforded more weight to the opinion of Dr.

Tetreault over that of Dr. Roccos because “Dr. Tetreault has

been Minor Plaintiff Bennett’s treating physician since 2007 and

specifically        treats    children    in     her    day     to   day     practice      of

medicine       as   a    pediatrician.”           Plaintiff          argues      that     the

Commission erred in “afford[ing] greater weight to the opinions

of    Dr.   Tetreault”;       however,     the    determination            of    weight   or

credibility of the evidence is squarely within the function of

the    Commission       as    fact-finder      and     beyond    the       scope    of    our

review.       See Hummel, 156 N.C. App. at 114, 576 S.E.2d at 128;

see also Coulter, 189 N.C. App. at 185, 657 S.E.2d at 430.

       Plaintiff does not contest any specific finding of fact and

does    not    argue     that     the   Commission’s      findings          of    fact    are

unsupported.            Indeed,    in   plaintiff’s       brief       to    this     Court,

plaintiff acknowledges Dr. Tetreault’s testimony in support of

the Commission’s finding and subsequent conclusion that the 4

May 2010 bus accident was not the cause of plaintiff’s injuries.

Plaintiff summarizes Dr. Tetreault’s testimony as stating “no
                                    -12-
injury [was] noted on [plaintiff] etc [sic] and her failure to

wear her glasses being a cause of her headaches . . . .”

    The evidence presented to the Commission provides support

for the Commission’s findings of fact that “as of the May 20,

2010 visit with Dr. Tetreault, Minor Plaintiff Bennett displayed

no evidence of any injury, [and] had full range of motion in her

neck” and that “Plaintiff failed to present sufficient evidence

to find that Minor Plaintiff Bennett’s injuries were as a result

of the May 4, 2010 accident or that medical treatment . . . was

causally related to this accident.”           Therefore, the Commission’s

findings of fact are binding on appeal. See id.            Further, these

findings     of    fact   support   the    Commission’s   conclusion   that

“[p]laintiff has failed to prove that [the] negligent operation

of the bus was the proximate cause of Minor Plaintiff Bennett’s

injuries.”        Accordingly, plaintiff’s arguments, challenging the

Commission’s findings on the cause of plaintiff’s injuries based

on the weight given medical testimony presented, are overruled.

    Based on this holding, we need not reach the remaining

issues presented in plaintiff’s brief for preservation purposes

regarding plaintiff’s claims, damages, and attorney fees.

    Affirmed.

    Judges HUNTER, Robert C., and STEELMAN concur.
                         -13-
Report per Rule 30(e).
