                                NO. COA13-1102

                   NORTH CAROLINA COURT OF APPEALS

                         Filed:    15 April 2014


DAVITA BISHOP,
     Employee, Plaintiff,

    v.                                  North Carolina Industrial
                                        Commission
                                        I.C. No. 884899
INGLES MARKETS, INC.,
     Employer, SELF-INSURED,
     Defendant.


    Appeal by defendant-employer from Opinion and Award entered

12 July 2013 by the North Carolina Industrial Commission.            Heard

in the Court of Appeals 17 March 2014.


    Law Office of Gary A. Dodd, by Gary A. Dodd, for plaintiff-
    appellee.

    Northup, McConnell & Sizemore PLLC, by Steven W. Sizemore,
    for defendant-appellant.


    MARTIN, Chief Judge.


    Defendant-employer    Ingles     Markets,    Inc.   appeals   from    an

Opinion and Award of the Full Commission of the North Carolina

Industrial Commission awarding workers’ compensation benefits,

attorney’s fees, and costs to plaintiff-employee Davita Bishop.

For the reasons stated herein, we affirm.

    On   30   January   2008,    plaintiff   slipped    and   fell   on   a
                                             -2-
recently waxed floor while working in the Ingles deli.                            After

reporting      the    fall      to   the     store   manager,      plaintiff      sought

medical treatment at OneBeacon Healthcare.                        She explained that

she    fell    and    hit     her    head,    and    that   she    was   experiencing

dizziness as well as pain to her head, lower back, and hip.

Plaintiff was diagnosed as having a lower back sprain and a mild

concussion.       She was also given a note excusing her from work

until 5 February 2008.

       However,      plaintiff’s      condition      did    not    improve,    and   she

went    to    Sisters      of   Mercy      Urgent    Care   on    9   February    2008,

complaining of pain in her left hip and lower back.                           Plaintiff

was given a note excusing her from work until 13 February 2008.

Plaintiff returned to Sisters of Mercy Urgent Care three times

in    February,      and    results     of   an    MRI   scan    revealed    “a   slight

anterolisthesis at L4-5, degenerative disc disease, spondylosis,

facet arthrosis and annular bulging at L4-5 and L5-S1.”

       After   the     MRI,     it   was     recommended    that      plaintiff    begin

physical therapy and that she return to work with the following

restrictions:         working for no more than four hours a day; no

lifting of anything over ten pounds; and no standing, walking,

or sitting for more than twenty minutes at a time.                          On 11 March

2008, plaintiff returned to work pursuant to these restrictions.
                                               -3-
       Plaintiff was referred to Dr. Richard Broadhurst and saw

him on 29 May 2008 for an evaluation and treatment.                                 On 14 July

2008, plaintiff saw Dr. Broadhurst again because she felt she

was    being    asked       to    perform     tasks        at   work   that    she    was   not

physically capable of performing.                      In response, Dr. Broadhurst

issued several work restrictions including, “lifting [no] more

than ten pounds, no ladder climbing, no repetitive bending or

twisting or forward reaching and to stand and walk to control

the pain.”       On 28 August 2008, Dr. Broadhurst again issued work

restrictions      for       plaintiff.          Also       in   August    2008,      plaintiff

began taking classes, on days she did not have to work, in a

Masters of Divinity program at Gardner-Webb University.

       On 26 September 2008, plaintiff returned to OneBeacon and

complained of “blackout spells,” stating that she had fainted at

work      the         day         before.                  Plaintiff         underwent       an

electroencephalogram              (“EEG”)      which        suggested        that    plaintiff

might    have    partial          epilepsy.           As    a   result,       plaintiff     was

referred to Dr. Duff Rardin, who diagnosed plaintiff as possibly

having    epilepsy.              On   5    November    2008,      a    coworker      witnessed

plaintiff      have     a    blackout        spell.          Following       this    incident,

plaintiff underwent an MRI that showed an abnormal signal.

       While    plaintiff’s               seizure     condition        was    ongoing,      Dr.
                                         -4-
Broadhurst, on 15 December 2008, determined that plaintiff had

reached      maximum    medical     improvement      and   assigned      plaintiff

permanent work restrictions.             On 30 December 2008, however, Dr.

Broadhurst asked Dr. Rardin if plaintiff’s 30 January 2008 fall

caused plaintiff’s seizures.              Dr. Rardin responded that he did

not think that the fall caused plaintiff’s seizures.

    Plaintiff continued to suffer from seizures, so Dr. Rardin

completed     the   medical      section     of   plaintiff’s    Family    Medical

Leave   (“FMAL”)       application,      noting   that   plaintiff      should    not

work due to her seizure activity.                 Dr. Rardin also recommended

that plaintiff stop taking classes at Gardner-Webb due to her

seizures.      Plaintiff stopped working on 15 July 2009 when her

FMAL application was approved.

    On 29 July 2009, plaintiff was admitted to Mission Hospital

for epilepsy monitoring, and the staff was able to observe one

of plaintiff’s seizures.              It was determined that plaintiff’s

seizures were nonepileptic.              Plaintiff, nonetheless, continued

to have seizures.          Dr. Rardin testified that stressors in a

person’s life can cause nonepileptic seizures, but he did not

state   an    opinion    about     whether     plaintiff   suffered     from     such

stressors.       Also,     while    at    Mission    Hospital,    Dr.    C.    Britt

Peterson, a psychiatrist, saw plaintiff and diagnosed her with
                                           -5-
“a major depressive disorder or a possible adjustment disorder

with depressed mood and possible conversion disorder.”

    Eventually, Dr. Rardin recommended that plaintiff see Karen

Katz a licensed clinical social worker with a master’s degree in

social work and psychology from Syracuse University.                           During the

first   meeting,    Ms.    Katz     took     plaintiff’s         family    history     and

conducted a clinical assessment.                   Ms. Katz        used anxiety and

depression screening tools to diagnose plaintiff with an anxiety

disorder and chronic depression that Ms. Katz believed began

early in plaintiff’s life.             Ms. Katz opined that plaintiff’s 30

January    2008    fall    exacerbated           her    preexisting        anxiety     and

depression.

    The forgoing evidence was presented to the Full Commission

at a hearing on 15 November 2011.                  After the hearing, the Full

Commission    issued      an   order    on    5    January       2012    reopening     the

record for receipt of “additional evidence to consist of an

orthopedic    evaluation        and    a     neuropsychological            evaluation.”

Pursuant     to   this     order,      Dr.       Stephen       David      conducted    an

orthopedic    evaluation       of     plaintiff,         and     Dr.    John    Barkenbus

conducted a neuropsychological evaluation of plaintiff.                               Both

doctors    also    reviewed     plaintiff’s            medical    records       and   were

deposed.
                                             -6-
       Dr. Barkenbus, a neuropsychiatry expert, testified that the

medical      records     he    reviewed   did       not    indicate    that       plaintiff

suffered from seizures prior to her fall.                          He also testified

that    plaintiff’s       anxiety      and     depression        contributed        to   her

seizure disorder, but that her fall was the initiating event

that caused her resulting medical and psychological conditions.

Dr.    David,    an    expert     in    orthopedic        surgery,     testified         that

plaintiff’s          current      medical       problems         prevent      her        from

consistently sustaining gainful employment.

       Based     on    this      evidence,         the    Full    Commission       awarded

plaintiff       weekly    compensation,         medical         compensation       for    her

seizures,      and    attorney’s       fees.        Commissioner      Nance       dissented

from the Full Commission’s Opinion and Award because she did not

find Ms. Katz’s testimony credible.                  Defendant appeals.

                              _________________________

       On appeal defendant argues that the Full Commission erred

in     (1)   finding      that     plaintiff’s           fall    caused     her     seizure

disorder,       (2)    reopening        the    record       to     obtain      additional

evidence, and (3)             awarding plaintiff disability compensation.

We disagree.

       The North Carolina Supreme Court has clearly stated that

“appellate courts reviewing Commission decisions are limited to
                                      -7-
reviewing      whether      any    competent      evidence       supports       the

Commission’s findings of fact and whether the findings of fact

support the Commission’s conclusions of law.”                 Deese v. Champion

Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000).

However, “[t]he Commission’s conclusions of law are reviewed de

novo.”      McRae    v.   Toastmaster,   Inc.,    358    N.C.   488,    496,    597

S.E.2d 695, 701 (2004).

      “Unchallenged findings of fact are presumed to be supported

by competent evidence and are binding on appeal.”                      Allred v.

Exceptional Landscapes, Inc., __, N.C. App. __, __, 743 S.E.2d

48, 51 (2013).       However, when we review the challenged findings

of fact, we do not reweigh the evidence because the Commission

is the fact finder.        Smith v. First Choice Servs., 158 N.C. App.

244, 248, 580 S.E.2d 743, 747, disc. rev. denied, 357 N.C. 461,

586   S.E.2d    99    (2003).       Instead,     we   limit     our    review    to

determining “whether the record contains any evidence tending to

support the finding[s].”          Adams v. AVX Corp., 349 N.C. 676, 681,

509 S.E.2d 411, 414 (1998), reh’g denied, 350 N.C. 108, 532

S.E.2d 522 (1999).        As a result, “‘[t]he findings of fact of the

Industrial Commission are conclusive on appeal when supported by

competent evidence, even though there [may] be evidence that

would support findings to the contrary.’”               Id. (quoting Jones v.
                                              -8-
Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)).

Also,    we     view   the     evidence       in    the     record   in     a   light   most

favorable to the plaintiff, and the “plaintiff is entitled to

the benefit of every reasonable inference to be drawn from the

evidence.”       Id.

      First, defendant argues that the Full Commission erred in

determining        that        plaintiff’s          work-related           injury     caused

plaintiff’s seizures.              In making this argument, defendant relies

on Hawkins v. General Electric Co., 199 N.C. App. 245, 249, 683

S.E.2d    385,     389    (2009),       for     the       proposition      that     when   “a

particular type of injury involves complicated medical questions

far   removed      from      the     ordinary       experience       and    knowledge      of

laymen, only an expert can give competent opinion evidence as to

the     cause    of    the     injury.”             Thus,      throughout       defendant’s

argument, it challenges several findings of fact, which we will

address later, on the basis that the Full Commission could not

find these facts based on Ms. Katz’s testimony because she is

not an expert.

      The     proposition       that    only       an   expert     can     give   competent

opinion     evidence      as    to    causation         when   a   complicated      medical

question is involved has its basis in Click v. Pilot Freight

Carriers, Inc., 300 N.C. 164, 167, 256 S.E.2d 389, 391 (1980).
                                        -9-
In Click, the North Carolina Supreme Court stated:

             For an injury to be compensable under the
             terms of the Workmen’s Compensation Act, it
             must be proximately caused by an accident
             arising out of and suffered in the course of
             employment.      There   must   be  competent
             evidence to support the inference that the
             accident in question resulted in the injury
             complained of, i.e., some evidence that the
             accident at least might have or could have
             produced   the   particular   disability   in
             question.   The quantum and quality of the
             evidence required to establish prima facie
             the causal relationship will of course vary
             with the complexity of the injury itself.
             There will be many instances in which the
             facts in evidence are such that any layman
             of average intelligence and experience would
             know what caused the injuries complained of.
             On the other hand, where the exact nature
             and probable genesis of a particular type of
             injury    involves     complicated    medical
             questions far removed from the ordinary
             experience and knowledge of laymen, only an
             expert can give competent opinion evidence
             as to the cause of the injury.

    Id.      (emphasis     added)       (citations     omitted)      (internal

quotation marks omitted).

    From      this   paragraph     it    is   clear   that   the    Court   was

concerned about the quality of the evidence relied upon by the

Industrial    Commission    when    considering       complicated    causation

issues.      Therefore, the Commission may make findings of fact

based on the testimony of a person that is not an expert, but

must rely on competent expert testimony to infer that there is
                                        -10-
causation when a complicated medical question is involved.

       We will now address each of defendant’s challenges to the

Full   Commission’s       findings      of    fact,    as    well     as    defendant’s

contention that there is no causal connection between the work-

related injury and plaintiff’s seizures.

       First,    defendant     challenges          finding    of     fact    36,      which

states:

              On September 18, 2009, Dr. Rardin referred
              Plaintiff to Karen Katz, a licensed clinical
              social worker, for psychological assistance
              regarding Plaintiff’s non-epileptic seizure
              disorder. Ms. Katz has a Masters degree in
              psychology and is providing psychotherapy to
              Plaintiff.     Ms. Katz is qualified and
              competent to state her opinions as to
              Plaintiff’s psychological condition.

Defendant asserts that the Full Commission erred in finding that

Ms.    Katz     could     state      her       opinions       as     to     plaintiff’s

psychological condition because Ms. Katz is not qualified to

make   a    diagnosis     or   offer    opinions      as     to     causation.         This

argument fails.

       As   stated     earlier,   the      Commission        must    rely        on   expert

testimony       when    determining          the    issue     of      causation         when

complicated medical questions are involved.                       See id.    Finding of

fact 36 has nothing to do with causation; it simply recites Ms.

Katz’s      educational    training,         the   fact     that    she     is    treating
                                   -11-
plaintiff with respect to her psychological condition, which is

within Ms. Katz’s training, and that she could properly offer

her opinion as to plaintiff’s psychological condition.

    Next,     defendant   challenges      finding   of    fact    37,    which

states:

            Ms. Katz does not administer psychological
            “testing” but does perform “screening” for
            conditions such as anxiety.    In Plaintiff’s
            case she performed such screening and has
            assessed Plaintiff with generalized anxiety
            disorder,    and   dysthymia,     a   chronic
            depression which began early in her life.
            She also assessed that Plaintiff suffers
            from   an   adjustment    disorder.      This
            assessment by Ms. Katz is consistent with
            that of Dr. Peterson, the psychiatrist.

Defendant challenges this finding of fact on the basis that the

Commission   bolstered    Ms.   Katz’s    assessment     by   saying    it   was

supported by Dr. Peterson.      Again, this argument fails.

    As stated earlier, when we review a record in a workers’

compensation case, we limit our review to whether the record

contains any evidence that tends to support the Commission’s

findings.    See Adams, 349 N.C. at 681, 509 S.E.2d at 414.                   In

this case, Ms. Katz assessed that plaintiff was depressed.                   Also

in evidence is a discharge summary from Mission Hospital that

states that Dr. Peterson diagnosed plaintiff with a depressive

disorder.    This evidence supports the Commission’s finding that
                                      -12-
the   “assessment   by   Ms.   Katz   is     consistent    with    that   of   Dr.

Peterson.”

      Defendant also questions finding of fact 38, which states:

           It is Ms. Katz’ opinion that Plaintiff’s
           fall exacerbated her pre-existing depression
           and anxiety.    During her treatment with Ms.
           Katz, Plaintiff has made slow, but steady
           progress.    Ms. Katz opined that Plaintiff
           needs ongoing treatment with medications and
           psychotherapy     and   that   Plaintiff   is
           currently unable to work “full time.”

Defendant contends that the Full Commission could not find that

in “Ms. Katz’ opinion . . . Plaintiff’s fall exacerbated her

pre-existing depression and anxiety.”            As discussed earlier, the

Full Commission     was permitted to          find facts relating to Ms.

Katz’s testimony as long as the Full Commission did not rely on

Ms. Katz’s testimony when inferring causation.                    To the extent

that the Full Commission relied upon Ms. Katz’s testimony to

infer causation, the Full Commission erred.               However, in finding

of fact 45 the Full Commission stated that it was giving great

weight to Dr. Barkenbus’s testimony when inferring causation,

and Dr. Barkenbus testified that he thought plaintiff’s fall was

the    initiating    event     that     caused      several       medical      and

psychological issues.

      Finally, defendant challenges findings of fact 44 and 45.

Finding of fact 44 states:
                                         -13-
            Based upon a preponderance of the evidence,
            the   Full  Commission  finds   that   as   a
            consequence   of   her  January    30,   2008
            accident,     Plaintiff    experienced     an
            exacerbation of her underlying psychological
            condition,    including   her    pre-existing
            anxiety and depression.

Finding of fact 45 states:

            Based upon a preponderance of the evidence
            of record, including the opinion of Dr.
            Barkenbus, which the Full Commission gives
            great weight, the Full Commission finds that
            Plaintiff’s    pre-existing    anxiety   and
            depression which were exacerbated by her
            compensable   injury,  contributed   to  her
            seizure disorder.

Defendant    maintains   that      the      Full   Commission       could    not    have

found a preexisting psychological condition because no expert

diagnosed    plaintiff   with      a     psychological          condition,    and    no

medical     expert   testified         as    to    the     exacerbation       of    any

preexisting condition.

      This argument challenges findings of fact, as well as the

Full Commission’s inference of causation.                       First, we only need

to   find   some   evidence   in    the      record      that    supports    the   Full

Commission’s findings of fact.              See Adams, 349 N.C. at 681, 509

S.E.2d at 414.       Dr. Barkenbus, who was tendered as a medical

expert, stated that in his report he was concerned with “some

level of panic anxiety prior to [plaintiff’s] fall, [and that]

[t]here was more ongoing depression in the aftermath of her
                                              -14-
fall.”        Thus, there is evidence in the record to support the

finding that plaintiff suffered from anxiety before her fall.

      Second, Dr. Barkenbus testified that he thought the fall

was     the    initiating        event    that       caused    several        medical   and

psychological issues that affected plaintiff’s ability to work.

The Full Commission stated in finding of fact 45 that it was

giving great weight to Dr. Barkenbus’s testimony.                               Therefore,

there is expert medical testimony in the record that the Full

Commission       relied     on     in    determining          the    causal     connection

between       plaintiff’s    fall       and    her   current        medical    conditions.

See Click, 300 N.C. at 167, 256 S.E.2d at 391.                         As a result, the

Full Commission properly addressed the issue of causation.

      Next, we address the Full Commission’s order reopening the

record.        When a party appeals a deputy commissioner’s opinion

and award to the Full Commission, it may “if good ground be

shown     therefor,       reconsider          the     evidence,        receive     further

evidence, rehear the parties or their representatives, and, if

proper, amend the award.”                N.C. Gen. Stat. § 97-85(a) (2013).

As a result, this statute confers plenary powers to the Full

Commission to receive additional evidence, rehear the parties,

amend the award, and reconsider the evidence.                           Lynch v. M. B.

Kahn Constr. Co., 41 N.C. App. 127, 130, 254 S.E.2d 236, 238,
                                            -15-
disc.     rev.      denied,      298     N.C.       298,    259     S.E.2d        914       (1979).

Therefore, the Full Commission’s determination relating to one

of its plenary powers “will not be reviewed on appeal absent a

showing    of       manifest     abuse    of    discretion,”              id.   at      131,       254

S.E.2d    at     238,      and   an    abuse        of     discretion       occurs          when    a

determination “is so arbitrary that it could not have been the

result of a reasoned decision.”                       Porter v. Fieldcrest Cannon,

Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517, 520 (1999).

      Defendant           does   not     argue       that     the        Full     Commission’s

decision       to    reopen      the   record        was     an    unreasoned           decision.

Instead, defendant seems to argue that the Full Commission’s

decision    was       unfair     because       it    gave    the     plaintiff          a    second

opportunity to prove her case.                      Such an argument fails to show

that the Full Commission abused its discretion, and we will not

review its determination to reopen the record.

      Finally, defendant argues that the Full Commission should

not      have        awarded      plaintiff           temporary           total         indemnity

compensation and medical compensation because plaintiff failed

to provide evidence that satisfies the test in Russell v. Lowes

Product Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993).                                         We

disagree.

      Under         the    Workers’      Compensation             Act,    an    employee           is
                                    -16-
disabled when their earning capacity has been impaired.            Peoples

v. Cone Mills Corp., 316 N.C. 426, 434, 342 S.E.2d 798, 804

(1986), appeal after remand, 86 N.C. App. 227, 356 S.E.2d 801

(1987).   Thus, the employee must show that “he is unable to earn

the same wage he had earned before the injury, either in the

same employment or in other employment.”          Russell, 108 N.C. App.

at 765, 425 S.E.2d at 457.

      The employee may meet this burden in one of four ways:

          (1) the production of medical evidence that
          he   is   physically   or   mentally,   as   a
          consequence of the work related injury,
          incapable of work in any employment; (2) the
          production of evidence that he is capable of
          some work, but that he has, after a
          reasonable   effort   on    his   part,   been
          unsuccessful   in   his   effort   to   obtain
          employment; (3) the production of evidence
          that he is capable of some work but that it
          would be futile because of preexisting
          conditions, i.e., age, inexperience, lack of
          education, to seek other employment; or (4)
          the production of evidence that he has
          obtained other employment at a wage less
          than that earned prior to the injury.

Id.

      In this case, the Full Commission concluded that plaintiff

had satisfied the Russell test under either part one or part

three.    The   Full   Commission    made   the   following   unchallenged

finding of fact:

          [I]t would have been futile for Plaintiff to
                                         -17-
              look for suitable employment due to her
              limited and past relevant vocational history
              of working primarily as a deli cook which
              required prolonged standing and lifting up
              to 50 pounds, her limited vocation skills
              associated mainly with the type of work she
              is currently unable to perform . . . her
              current seizure disorder, in combination
              with her work related, severe permanent
              restrictions assigned by Dr. Broadhurst of
              no lifting more than ten pounds, sitting or
              resting up to ten minutes each hour, no
              ladder climbing, minimal stair climbing and
              no repetitious twisting or forward trunk
              reaching, and her other physical limitations
              due to severe pain, needing a cane to
              ambulate, her need for multiple medications
              and her non-work related medical conditions,
              including   a   stroke  and   heart   attack
              following her injury.

       This    finding      of   fact     supports    the      Full    Commission’s

conclusion      that   it    would    have    been   futile    for    plaintiff    to

search for employment.           See Barrett v. All Payment Servs., Inc.,

201 N.C. App. 522, 527, 686 S.E.2d 920, 924 (2009) (holding that

the    plaintiff    had     satisfied     part   three    of   the    Russell    test

because the Commission found “it would be futile for [employee]

to    seek    employment,     given     his   advanced    age,   his    prior    work

history, his pre-existing conditions, his severely debilitating

back condition due [to] his current work related [sic] injury as

well as non-work related [sic] causes and his work related [sic]

physical      restrictions”      (alterations        in   original)),     writ     of

supersedeas and disc. rev. denied, 363 N.C. 853, 693 S.E.2d 915
                              -18-
(2010).

    In conclusion, for the reasons stated above, we affirm the

Opinion and Award of the Full Commission.

    Affirmed.

    Judges McGEE and CALABRIA concur.
