An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-943
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


IRENE SMITH,
          Employee,
          Plaintiff,

      v.                                      From the North Carolina
                                              Industrial Commission
                                              IC No. X20253
AMERICAN NATIONAL NSURANCE
COMPANY, Employer,

and

LIBERTY MUTUAL, Carrier,

             Defendants.


      Appeal by Plaintiff from Opinion and Award entered 25 April

2013 by the North Carolina Industrial Commission. Heard in the

Court of Appeals 8 January 2014.

      Doran, Shelby, Pethel and Hudson,                   P.A.    by        Kathryn    C.
      Setzer, for plaintiff-appellant.

      Cranfill Sumner & Hartzog LLP by Matthew B. Covington and
      Sara B. Warf, for defendant-appellees.


      STEELMAN, Judge.

      The   Industrial      Commission      did   not    err     in    finding        that

plaintiff’s     complaints      of   pain    to   her     left    side       were     not

causally    connected     to   her   compensable        injury.       The    Industrial
                                          -2-
Commission did not err when it denied plaintiff’s request for

attorney’s   fees     pursuant      to    N.C.    Gen.     Stat.   §   97-88.1.    The

Commission did not err or abuse its discretion when it granted

American National’s Motion to Compel discovery for a potential

Medicare Set-Aside.

                    I. Factual and Procedural History

    From 13 December 2004 to 4 July 2011, American National

Insurance    Company    (American          National)       employed    Irene     Smith

(plaintiff) as an insurance agent. On 2 January 2009, plaintiff

went to the home of a client to pick up an insurance premium.

When plaintiff arrived, she parked her car in the driveway of

the home. As plaintiff exited her vehicle and proceeded up the

driveway,    she    stepped    off       the    driveway    onto   uneven      ground.

Plaintiff lost her balance and fell, twisting her right ankle

and leg. Plaintiff reported the fall to her manager, Tim Cooper,

on 6 January 2009.

    On 24 February 2009, plaintiff went to High Point Regional

Medical Center, where she received medical treatment for her 2

January   2009     injury.    The    hospital      examined    plaintiff’s       right

hip, right foot, and lumbar spine. Plaintiff was then treated by

Dr. James Kramer starting 3 March 2009 for low back, right hip,

and right foot pain. Dr. Kramer determined that plaintiff had

degenerative disc disease at L5-S1, with mechanical low back
                                        -3-
pain, right hip greater trochanteric bursitis, and right foot

plantar fasciitis. On 29 May 2009, for the first time, plaintiff

complained to Dr. Kramer of pain on her left side, from her left

buttock to her left foot.

       More   than   a    year    later,     on     20    August       2010,   plaintiff

returned to Dr. Kramer for back pain and left hip pain that

radiated down to her             left knee.       Dr. Kramer prescribed             anti-

inflammatory medication, pain medication, physical therapy, and

a   RS-4i     stimulator       for   pain     management.          Dr.     Kramer   also

administered a steroid injection into plaintiff’s hip. Plaintiff

then   participated       in   physical      therapy.       On     9    September    2010

plaintiff returned to Dr. Kramer, complaining of back pain with

no radiation to either side of her body. Dr. Kramer was paid by

the worker’s compensation carrier for American National for all

of the treatments that he provided to Plaintiff.

       Following the 9 September 2010 visit with Dr. Kramer, the

carrier for American National decided that plaintiff’s current

complaints were distinct from her complaints arising out of the

2 January 2009 accident and denied payment for further medical

treatment.     On    13    September        2010,        plaintiff       saw   Physician

Assistant Donald Bulla. Mr. Bulla noted complaints of low back

pain by the plaintiff, which had occurred without any known

injury. Mr. Bulla thought plaintiff was unable to perform her
                                          -4-
job as an insurance agent because of her pain and wrote a note

that she should be out of work beginning 21 December 2010.

      Over the course of the next year, plaintiff consulted with

Dr. Richard Avioli, an orthopedic surgeon, and consulted with

and received treatment from Dr. Victoria Neave, a neurosurgeon.

These    consultations        and    treatments       all   concerned    plaintiff’s

lower back and occasionally her left side.

      On 31 January 2011, following the initial claim submission

to the Industrial Commission, plaintiff filed a Form 33 Request

for Hearing. On 3 February 2011, American National filed a Form

61   with    the    Industrial      Commission        denying   plaintiff’s     claim.

Before review by the full Commission, American National sought

information from plaintiff concerning a potential Medicare Set-

Aside.      When    plaintiff       refused    to     provide   this    information,

American National filed a Motion to Compel discovery, which was

granted      by     the   Commission.          American      National     terminated

plaintiff’s employment on 4 July 2011 because plaintiff could no

longer perform her job duties as an insurance agent and had not

worked      for    American   National        since    21   December    2010.   In   an

Opinion filed 25 April 2013, the Commission denied plaintiff’s

claim for temporary total disability and medical compensation

for treatment after 3 March 2009. The Commission also denied

plaintiff’s request for attorney’s fees.
                                        -5-
       Plaintiff appeals.

                    II. Commission’s Findings of Fact

       In    her   first      argument,      plaintiff       contends     that   the

Commission     erred     in   failing   to    find    that    her    injuries    were

causally related to the accident that she sustained on 2 January

2009. We disagree.

                              A. Standard of Review

       “The standard of appellate review of an opinion and award

of the Industrial Commission in a workers’ compensation case is

whether there is any competent evidence in the record to support

the Commission’s findings of fact and whether these findings

support the Commission’s conclusions of law.” Lineback v. Wake

County Bd. of Comm’rs, 126 N.C. App. 678, 680, 486 S.E.2d 252,

254 (1997). The Industrial Commission’s findings of fact “are

conclusive on appeal when supported by competent evidence . . .

even [if] there is evidence to support a contrary finding.”

Johnson v. Herbie’s Place, 157 N.C. App. 168, 171, 579 S.E.2d

110, 113 (2003) (citing Morrison v. Burlington Industries, 304

N.C.    1,   6,    282     S.E.2d   458,      463    (1981)).       The   Industrial

Commission’s findings of fact “may be set aside on appeal [only]

when there is a complete lack of competent evidence to support

them[.]” Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538
                                   -6-
S.E.2d 912, 914 (2000) (citing Saunders v. Edenton OB/GYN Ctr.,

352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000)).



                              B. Analysis

    On appeal, plaintiff’s main challenge is to finding of fact

23, which states:

    23. Plaintiff sustained injury to her right hip,
    right leg, and low back. However, based upon a
    preponderance of the competent, credible evidence of
    record, the Full Commission finds that these injuries
    resolved prior to Plaintiff’s 29 May 2009 office visit
    with Dr. Kramer, such that any treatment she received
    after that date for her low back, left hip and left
    leg is found to be not causally related to the 2
    January 2009 injury by accident.

    Plaintiff contends that this finding is not supported by

competent evidence and that the Industrial Commission erred by

failing to include certain facts in its findings, which in turn

influenced its finding on causation.

    Plaintiff’s brief contains a list of arguments discussing

evidence before the Commission and finding of fact 23. Twelve of

the sixteen items on plaintiff’s list concern the Commission’s

failure   to   include   certain   facts   or   address   certain   issues.

However, “[t]he Commission is not required . . . to find facts

as to all credible evidence . . . Instead, the Commission must

find those facts which are necessary to support its conclusions
                                    -7-
of law.” London v. Snak Time Catering, Inc., 136 N.C. App. 473,

476, 525 S.E.2d 203, 205 (2000). This argument is without merit.

    Plaintiff further contends that the evidence in the record

does not support the Commission’s findings of fact. Plaintiff

first argues that finding of fact 5 was “gross error.” This

finding   discusses     to   plaintiff’s    emergency    room    visit   on   24

February 2009. Plaintiff asserts that the Commission erred by

failing to mention that plaintiff also complained of “back pain”

at this visit. However, as stated previously, the Commission is

not required to find facts as to all credible evidence, merely

those   facts   which    support   its     conclusions   of     law.   Id.    The

Commission’s failure to mention plaintiff’s complaint of back

pain does not suggest that the Commission failed to consider

this evidence and does not constitute gross error.

    Plaintiff next argues that there was evidence in the record

to support a finding contrary to the Commission’s finding of

fact 7, which states:

    Plaintiff returned to Dr. James S. Kramer on May 29,
    2009 complaining of low back pain and symptoms that
    were radiating down the left leg, from the left
    buttock, through the hip, hamstring, and into the calf
    and foot. Dr. Kramer’s assessment at the visit was low
    back pain with underlying degenerative disc disease at
    L5-S1, and lumbar radiculopathy. The right-sided
    complaints which Plaintiff had expressed on March 3,
    2009, had resolved by the May 29, 2009 office visit.
    Dr. Kramer ordered an MRI, which showed stenosis and
    degenerative changes in the thoracic and lumbar spine.
                                                -8-
    Finding of fact 7 differentiates between the sides of the

body where plaintiff was complaining of pain and Dr. Kramer’s

assessment.         It    “is        for     the     Commission     to        determine     the

credibility of witnesses, the weight to be given the evidence,

and the inferences to be drawn from it.” Rackley v. Coastal

Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002)

(citing    Adams         v.    AVX    Corp.,       349   N.C.     676,   509     S.E.2d     411

(1998)).    The      Commission            weighed    the   evidence     accordingly         and

made its finding of fact. We hold that there was evidence in the

record    to   support          the     Commission’s        finding      of    fact    7,   and

because “[t]his ‘court’s duty goes no further than to determine

whether the record contains any evidence tending to support the

finding’”      it    is       binding      on   this     court.    Richardson         v.   Maxim

Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584

(2008) (citation omitted) (quoting Anderson v. Lincoln Constr.

Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).

    Plaintiff next challenges finding of fact 17, which states

that the history of immediate pain that the plaintiff reported

on 20 January 2011, that of left buttock/sacroiliac joint and

left lower extremity pain, was inconsistent with that of what

she reported on 24 February 2009 and 3 March 2009. Plaintiff

contends that these left side complaints are “not inconsistent

with” her prior right side injuries. However, it is for the
                                          -9-
Commission to determine “the weight to be given the evidence,

and the inferences to be drawn from it.” Rackley, 153 N.C. App.

at 472, 570 S.E.2d at 124. This argument is without merit.

      Plaintiff next contends that                finding of fact 19              is not

supported by evidence in the record because Dr. Rowan’s opinion

was pure conjecture. Finding of fact 19 discussed Dr. Rowan’s

opinion regarding a causal link between plaintiff’s 2 January

2009 injury and the pain she experienced after 3 March 2009.

Plaintiff contends that because Dr. Rowan did not review all of

plaintiff’s medical records prior to forming his opinion, his

opinion       is    pure   conjecture.      Plaintiff      does       not    cite     any

authority for this proposition. Nothing within Rule 702 of the

North Carolina Rules of Evidence prevents a witness from being

tendered as an expert and rendering an opinion if that witness

has     not   reviewed      every    possible      piece    of     data.     Rule     702

specifically         requires     that    the     testimony      be       based     “upon

sufficient         facts   or    data.”   N.C.     Gen.    Stat.      §     8C-1,    Rule

702(a)(1) (2007). We hold that Dr. Rowan’s testimony was based

upon sufficient data.

      Further, plaintiff had the opportunity to cross-examine Dr.

Rowan     concerning       his    opinion       during    his    deposition.         Once

tendered as an expert witness, it “is for the Commission to

determine the credibility of witnesses, the weight to be given
                                          -10-
the evidence, and the inferences to be drawn from it. As long as

the Commission’s findings are supported by competent evidence of

record, they will not be overturned on appeal.” Rackley at 472,

570 S.E.2d at 124.

       The    Commission      found     that,    in    her    handwritten       statement

recorded shortly after her injury, plaintiff did not complain of

pain to her left hip, left leg, or left foot. When plaintiff

received medical treatment from Dr. Kramer on 3 March 2009, she

did not complain of pain in her left hip, left leg, or left

foot.   (R.    p.   83).      The   Commission        found    that     when    plaintiff

returned to Dr. Kramer a year later, her complaints were limited

to her left side. (R. p. 84). The Commission also found that

when    Dr.   Kramer      wrote     a   letter   to     American      National       on   16

September      2010,    he    did   not   address       the    question        of   medical

causation      of   her      left-sided    complaints,        when      her    complaints

following the injury were limited to her right side. (R. p. 84).

The Commission then found that when plaintiff saw Dr. Avioli,

plaintiff’s complaints were limited to her left side. (R. p.

85).    Dr.    Kramer      testified      that    it     would     be    difficult        to

determine whether plaintiff’s 2010 and 2011 complaints were a

continuation of the 2 January 2009 injury. (R. p. 88). These

findings of fact are not contested on appeal, and support the
                                   -11-
Commission’s finding of fact 23. We hold that finding of Fact 23

was supported by competent evidence, and is binding on appeal.

    The fact that the Industrial Commission made, or failed to

make,   findings   that   plaintiff   contends   are    required   in   its

Opinion and Award does not necessarily render the Award invalid.

“The Commission is not required . . . to find facts as to all

credible evidence . . . Instead, the Commission must find those

facts which are necessary to support its conclusions of law.”

Snak Time Catering, 136 N.C. App. at 476, 525 S.E.2d at 205.

This argument is without merit.

             III. Denial of Plaintiff’s Attorneys Fees

    In    plaintiff’s     second   argument,   she    contends   that   the

Industrial   Commission      erroneously     denied    her   motion     for

attorney’s fees pursuant to N.C. Gen. Stat. § 97-88.1 or for

sanctions against American National. We disagree.

                               A. Analysis

    Pursuant to N.C. Gen. Stat. § 97-88.1, “[i]f the Industrial

Commission shall determine that any hearing has been brought,

prosecuted, or defended without reasonable ground, it may assess

the whole cost of the proceedings including reasonable fees for

defendant's attorney or plaintiff’s attorney upon the party who

has brought or defended them.” N.C. Gen. Stat. § 97-88.1. “The

decision whether to award or deny attorney’s fees rests within
                                              -12-
the   sound    discretion              of   the       Commission          and    will      not    be

overturned absent a showing that the decision was manifestly

unsupported by reason.” Thompson v. Fed. Express Ground, 175

N.C. App. 564, 570, 623 S.E.2d 811, 815 (2006) (citing Bryson v.

Phil Cline Trucking, 150 N.C. App. 653, 656, 564 S.E.2d 585, 587

(2002)).    The     Commission          found         that    plaintiff         had   failed      to

establish a        causal link between                 her compensable injury of                    2

January     2009     and    her        complaints            after    3     March     2009.      The

Commission    then       held,     based         on    the     lack    of    causation,          that

American National did not defend this claim “without reasonable

ground.” N.C. Gen. Stat. § 97-88.1.

      The   Commission           did    not      abuse       its   discretion         by   denying

plaintiff attorney’s fees. This argument is without merit.

                                  IV. Motion to Compel

      In    her     third        argument,            plaintiff       contends          that      the

Industrial    Commission           erroneously           granted      American        National’s

Motion to Compel discovery. We disagree.

                                 A. Standard of Review

      “Whether      or     not    the       party's      motion       to    compel      discovery

should be granted or denied is within the trial court's sound

discretion     and       will      not      be     reversed          absent      an     abuse     of

discretion.” Wagoner v. Elkin City Schools’ Bd. Of Education,

113 N.C. App. 579, 585, 440 S.E.2d 119, 123 (1994) (citing In re
                                        -13-
Estate of Tucci, 104 N.C. App. 142, 152, 408 S.E.2d 859, 865-66

(1991)). Rule 605(3) of the North Carolina Industrial Commission

states that “[a]dditional methods of discovery as provided by

the North Carolina Rules of Civil Procedure may be used only

upon motion and approval of the Industrial Commission or by

agreement of the parties.”          Workers’       Comp. R. of N.C. Indus.

Comm’n Rule 605(3) (2013). N.C. Gen. Stat. § 1A-1, Rule 37(a)(2)

provides     that   “the   discovering     party    may    move    for    an     order

compelling an answer . . . in accordance with the request.” N.C.

Gen. Stat. § 1A-1, Rule 37(a)(2).

                                  B. Analysis

       American National sought discovery from plaintiff in order

to prepare for a potential Medicare Set-Aside. Plaintiff argues

that   the    Medicare     Set-Aside     was   outside     the    scope     of     the

Industrial Commission’s authority, and that the discovery sought

by American National should have been denied.

       N.C. Gen. Stat. § 97-91 states “[a]ll questions arising

under this Article if not settled by agreements of the parties

interested therein, with the approval of the Commission, shall

be   determined     by   the   Commission,     except     as    otherwise      herein

provided.” N.C. Gen. Stat. § 97-91. Plaintiff asserts that this

language prohibits the Industrial Commission from compelling the

production    of    documents    that    are   related     to    possible      future
                                       -14-
Medicare-covered    expenses.     In     Pearson   v.   C.P.   Buckner     Steel

Erection   Co.,   348   N.C.    239,    498   S.E.818   (1998),    the     North

Carolina Supreme Court addressed the issue of the Commission’s

authority over issues involving Medicare and Medicaid:

    We hold that the Commission’s 19 December 1995 order
    directing defendants to pay intervenor and plaintiff’s
    other health-care providers the difference between the
    amount reimbursed to Medicaid and the amount allowable
    under the Act was a proper exercise of its authority.
    We further hold that the Commission correctly applied
    the workers’ compensation law of this State and that
    such law is not preempted by federal Medicaid law.

Pearson, 348 N.C. at 246-7, 498 S.E.at 823 (internal citations

omitted) (emphasis added). We hold that the Commission neither

acted   outside    of   its    scope     of   authority,   nor    abused     its

discretion.

                               V. Conclusion

    The Industrial Commission did not err in finding that there

was not a causal link between plaintiff’s compensable accident

of 2 January 2009 and her medical treatment after 3 March 2009.

The Commission did not err in denying plaintiff’s request for

attorney’s fees. The Commission did not act outside the scope of

its authority or abuse its discretion when it granted American

National’s Motion to Compel discovery.

    AFFIRMED.

    Judges STEPHENS and DAVIS concur.

    Report per Rule 30(e).
