Workers’ Compensation – Evidence – Offer of Proof – First Impression – Toxicologist – Methadone Levels

Willard v. VP Builders Inc. (Lawyers Weekly No. 14-07-0419, 21 pp.) (Mark Davis, J.) Appealed from the Industrial Commission. N.C. App.

Holding: Although workers’ compensation proceedings are not generally subject to the rules of procedure and evidence that govern our general courts, the Industrial Commission must conform to court procedure and evidentiary rules where required to preserve justice and due process; the right to make a record sufficient for appellate review through an offer of proof is necessary to preserve justice and due process.

The Commission erred when it denied defendants the opportunity to make an offer of proof. However, the Commission did not abuse its discretion when it denied defendants’ motions to reopen the record and for reconsideration.

One of defendants’ witnesses 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’s decedent had taken more methadone than he had been prescribed. However, defendants’ other two witnesses would have said they could not state to a reasonable degree of medical certainty that plaintiff consumed more than the prescribed dosage. Moreover, one of the latter two witnesses would have critiqued the first witness’s methodology.

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.

Affirmed.