Hedrick v. Southland Corp. , 41 N.C. App. 431 ( 1979 )

VAUGHN, Judge.

Defendants first contend that the Commission erred in allowing into the record the plaintiff’s social security file containing medical reports of various doctors and in using these reports to establish plaintiff’s disability under G.S. 97-38. The Deputy Commissioner made the following findings of fact, based on these records, which were adopted by the Full Commission.

“8. On June 25, 1973, Dr. Robert A. Huffaker, a psychiatrist with offices in Durham, North Carolina, reported his findings concerning a psychiatric evaluation of the plaintiff widow. At that time she gave a history that she began to have incapacitating symptoms approximately four years prior to said examination, including increased back pain, a presumptive diagnosis of rheumatoid arthritis, a possible diagnosis of gout, possibly a diagnosis of kidney disease, et cetera. She translated her pain into difficulties on her job which required lifting and bending and, therefore, she stopped working. She indicated that the pain in her back and legs had increased over the past four years, that her weight had increased 50 to 75 pounds over that period and she had become more aware of an underlying sense of depression; that during said period she felt essentially unable to do anything constructive for herself or her working situation, felt totally at a loss in regard to her personal worthwhileness, in regard to her home situation and family, and. in regard to her work situation. She stated at that time: ‘I feel I have been a total wreck, mentally and physically.’

“Dr. Huffaker surmised that changes in plaintiff widow’s home environment probably played a significant role in contributing to her ‘apparently exaggerated feelings of illness’; at that time the two children were going away from home, the daughter having married and the son being away in college. Plaintiff expressed a strong feeling that she had worked all her life and deserved to be taken care of and helped. She expressed a feeling of being used and not being loved for herself; and even indicated that she was adopted as a child because her family wanted someone to use to do the chores. Dr. Huffaker expressed the opinion that plaintiff, throughout her life, had been plagued by anxieties and insecurities.

“In summary, Dr. Huffaker stated that plaintiff had stopped functioning as a productive and self-sufficient individual in recent years; that plaintiff was preoccupied with somatic problems and denied psychological difficulties; that her then present pattern of dependency and somatic preoccupation appeared fixed; that it was doubtful that said condition can be reversed at that time without a major change in her life circumstances; that the prognosis for self-sufficiency appeared highly guarded and uncertain; that plaintiff should receive psychotherapy (although she appeared highly resistant to psychiatric treatment) and drug therapy for depression and tension. Dr. Huffaker diagnosed plaintiff’s condition as 1) passive-dependent personality disorder, severe, probable; 2) involutional depressive reaction, masked, with preoccupation with somatic symptoms, moderate, possible.

“9. On October 10, 1972, plaintiff widow was examined by Dr. W. Raney Stanford of Durham, North Carolina. At that time her history included the following; she complained of pain in the lumbo-sacral spine and in her left ankle existing for two years and progressively getting worse; she complained of incapacitating pain and multiple other problems and indicated that her husband did most of the housework. Dr. Stanford diagnosed plaintiffs condition as: 1) hypertrophic arthritis: disc disease of spine. Involvement of left ankle and both elbows. Very crippling arthritis. 2) Conjunctivitis. Obesity. Some acid indigestion. 3) Neurosis with anxiety state.

“An x-ray done on May 11, 1971 by Dr. Donald M. Mon-son showed, inter alia: advanced degenerative disc disease at L5-S1, with virtually complete loss of the intervertebral disc substance; so-called reverse spondylolisthesis of L5 posteriorly on SI incident to the degeneration; moderately advanced degenerative joint disease involving the lower lumbar apophyseal joints; mild left lumbar rotoscoliosis; early degenerative changes about both sacroiliac joints apparently without change since 1966 studies. Degenerative changes in the lumbar spine had progressed considerably in that interim, however.

“An x-ray done on May 14, 1971 by Dr. John F. Sherill, Jr. showed diffuse narrowing of the C5-C6 and C6-C7 in-terspaces with a moderate hypertrophic spurring about the anterior aspects of the vertebral bodies, minimal posterior spurring, the changes being those of degenerative disc disease.

“Plaintiff was examined by Dr. Eulyss R. Troxler, an orthopedist practicing in Greensboro, on April 17, 1973, who reported x-ray findings of mild scoliosis to the left, some hypertrophic changes in the lumbosacral area, minimal lip-ping of the upper fifth lumbar vertebra and slight narrowing of the lumbosacral joint; no definite spondylolisthesis and a small spur on the weight bearing portion of the left heel. Dr. Troxler was of the opinion that plaintiff could perform light work on an eight-hour basis, being able to sit without difficulty, walk and lift up to 20 to 25 pounds and could carry, push or lift the average load of an adult woman. He also expressed the opinion that plaintiff could have difficulty climbing stairs.”

Generally, these reports would be hearsay and not admissible. Nevertheless, medical records are allowed into evidence as an exception to the hearsay rule if they are made in the regular course of business, made contemporaneously with the events by one authorized to make them, and are identified and authenticated. Sims v. Insurance Co., 257 N.C. 32, 125 S.E. 2d 326 (1962). The problem arises, however, when medical records contain diagnostic opinions of physicians who are not available for cross-examination. When such diagnoses are ordinary findings based on objective data, the tendency is to allow the opinion into evidence. On the other hand, if the diagnosis is purely speculative, the courts will exclude such evidence. C. McCormick, Handbook of the Law of Evidence § 313 (2d Ed. 1972). Between these two extremes, however, lie opinions based on subjective data or involving problems of interpretation such as psychiatric diagnoses; the courts will usually allow these opinions into evidence. McCormick, supra. In Thomas v. Hogan, 308 F. 2d 355 (4th Cir. 1962), the Fourth Circuit ruled that the trial court committed prejudicial error in excluding a medical record showing the results of a blood test. The Court stated that routine diagnoses and tests made in the regular course of business should be allowed into evidence. The Court observed that

“There is good reason to treat a hospital record entry as trustworthy. Human life will often depend on the accuracy of the entry, and it is reasonable to presume that a hospital is staffed with personnel who competently perform their day-today tasks. To this extent at least, hospital records are deserving of a presumption of accuracy even more than other types of business records.” Thomas v. Hogan, supra, at 361.

A contrary position was taken in New York Life Insurance Co. v. Taylor, 147 F. 2d 297 (D.C. Cir. 1944), where the Court refused to allow into evidence medical records containing a psychiatric diagnosis. The records were introduced to prove the suicidal intent of the decedent. The Court felt that a psychiatric diagnosis involved conjecture and opinion and should, therefore, be subjected to cross-examination.

The introduction of medical records in federal courts is now governed by Rule 803(6) of the Federal Rules of Evidence. This rule provides for the business records exception to the hearsay rule to apply to any “memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses ... if kept in the course of a regularly conducted business activity.” The notes of the Advisory Committee indicate that Rule 803(6) conforms to the holding in Thomas v. Hogan, supra, by specifically allowing records containing opinions and diagnoses into evidence.

In the present case, we conclude that no prejudicial error occurred by reason of the introduction of the medical records. They presented plaintiff’s medical background and corroborated her testimony and the testimony of her children. There was also ample evidence, aside from the medical records, upon which the Commission could have based its findings of disability.

Defendants next contend that the evidence was insufficient to support the findings of fact, that the findings of fact were improper because they merely summarized the evidence, and that the conclusions of law were not supported by findings of fact based on competent evidence. On appeal, this Court is limited to the questions of whether the findings of fact are supported by competent evidence and whether the conclusions of law are justified by these findings. Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 235 S.E. 2d 856 (1977). The Commission must make specific findings with respect to crucial facts upon which the right to compensation depends. Gaines v. Swain & Son, Inc., supra; Smith v. Construction Co., 27 N.C. App. 286, 218 S.E. 2d 717 (1975). Defendants contend that the Commission’s recitation of the medical records and the testimony of plaintiff, her children and Dr. Davidson were insufficient findings of fact. Defendants rely on Gaines v. Swain & Son, Inc., supra, wherein this Court held that since the crucial findings made by the Commission were merely recitations of the evidence, they were not sufficiently positive and specific to enable the Court to judge the propriety of the order. In Gaines, there is no indication that the Commission ever specifically found that the injury was caused by a work-related accident. In the present case, however, the Commission specifically found that “[pjlaintiff widow was unable to support herself by reason of physical and mental disability as of the date of the deceased employee’s death, her conditions including degenerative disc disease, severe passive-dependent personality disorder and alcoholism.” This finding is sufficiently positive and specific to enable this Court to review the order. Furthermore, the evidence supports this finding. Plaintiff and her two children were competent to testify about her health and her ability to work. Carter v. Bradford, 257 N.C. 481, 126 S.E. 2d 158 (1962); Kenney v. Kenney, 15 N.C. App. 665, 190 S.E. 2d 650 (1972); 1 Stansbury, N.C. Evidence 2d § 129 (Brandis rev. 1973). In addition to the testimony showing that plaintiff was a chronic alcoholic, there was also evidence showing that she suffered from various other medical problems. This evidence was sufficient to support the finding that she was disabled.

Finally defendants contend that the Commission erred in awarding plaintiff lifetime compensation. The Commission determined that the plaintiff was entitled to compensation for life or until she remarries. This award follows the wording of G.S. 97-38 which does not on its face require a finding of permanent disability. The question of whether the award may be modified upon a showing of a change in plaintiffs condition is not presented by this appeal.

Upon review of the Commission’s order, we hold that the findings of fact are supported by competent evidence and that the conclusions of law are supported by the findings of fact.

Affirmed.

Judges ERWIN and MARTIN (Harry C.) concur.