Workers’ Compensation – Evidence – Expert Testimony – Knee Injury – Back Pain & Psychological Issues

Listen to this article

Haithcox v. Flynt Amtex, Inc. (Lawyers Weekly No. 12-16-0837, 25 pp.) (John C. Martin, Ch.J.) Appealed from the Industrial Commission. N.C. App. Unpub.

Holding: Where a forensic psychiatrist testified that interviewing third parties was a common practice in her field, the Industrial Commission could consider her testimony under N.C. R. Evid. 703.

We affirm the Industrial Commission’s award of benefits only for plaintiff’s knee injury.

Even though Dr. Cohen was a spine specialist, he was competent to testify about plaintiff’s knee injury, among other issues.

Plaintiff has not shown that the Commission failed to consider evidence that she reported a back injury to Dr. Bhotika. The Commission’s opinion and award “AFFIRMS with some modifications the Opinion and Award of the Deputy Commissioner.” Thus, the Commission’s opinion is not an order meant to stand on its own. The deputy commissioner’s opinion and award found that plaintiff testified she reported a back injury to Dr. Bhotika the day of injury, that Dr. Bhotika denied that plaintiff had reported a back injury, and that the deputy commissioner found Dr. Bhotika’s testimony on this point more credible. The Commission further found, “Plaintiff did not report an injury to her back to Dr. Bhotika, and her testimony to the contrary is not accepted as credible.” There is no merit to plaintiff’s assertion that the Commission was required to make a finding regarding statements she appears to contend discredit Dr. Bhotika’s testimony elicited during cross-examination of Dr. Bhotika.

Finally, plaintiff asserts that her “chronic pain is caused by her compensable knee condition” and therefore suggests that treatment for her chronic pain is compensable. However, the Commission found, “Dr. Cohen found no objective physiologic explanation for plaintiff’s complaints of pain, which he felt were exaggerated during the exam and indicated symptom magnification”; “Dr. Cohen released plaintiff to return to work full duty without restrictions on September 11, 2009”; Dr. Artigues was unable to rule out malingering and ultimately concluded that plaintiff had feigned a pain disorder”; “plaintiff’s complaints of severe left knee pain after [Oct. 7, 2008] were intentionally feigned by plaintiff and are not accepted as credible. The competent, credible medical evidence establishes that plaintiff’s ongoing complaints of left knee pain are not causally related to the injury of June 6, 2008”; and “plaintiff does not suffer from complex regional pain syndrome as a result of the June 6, 2008 accident.” These findings amply support the Commission’s conclusion that “defendants have proven that as of September 11, 2009, plaintiff was no longer disabled due to the June 6, 2008 accident and compensable knee injury….” Plaintiff’s only argument on this point asks this court to reassess the Commission’s credibility determinations, which we are not permitted to do.

Affirmed.