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Mitchem v. Sims

Filed: January 19, 1982.

JOHN HENRY MITCHEM
v.
LINDA HICKS SIMS AND ARTHUR THOMAS SIMS



Appeal by defendants from Lamm, Judge. Judgment entered 2 February 1981 in Superior Court, Rutherford County. Heard in the Court of Appeals 5 January 1982.

Vaughn, Judge.

Vaughn

Defendants' assignments of error arise from testimony by Dr. James L. Byers, a chiropractor who treated plaintiff for pain he was experiencing after a motor vehicle collision with defendant

Linda Sims. Defendants contend that the court erred in allowing Dr. Byers to testify as to his opinion of plaintiff's alleged disability and its causation. Defendants further argue that Dr. Byers' testimony was insufficient evidence of permanent injury to warrant the admission into evidence of mortuary tables and the court's instruction on damages for permanent injury. We find no merit in defendants' contentions.

Defendants first except to the court permitting the following testimony:

"Q. Based upon your examination and treatment, what disability, if any, would you say John Mitchem will suffer from the injuries he related to you?

A. In my opinion he will have twenty to twenty-five percent disability in his shoulder and neck region."

Defendants object to the form of the question, arguing it is not stated in terms of reasonable chiropractic certainty. They also argue that no evidence of disability had been presented which could serve as a foundation for the question.

Chiropractors are recognized as experts in their field and, when properly qualified, allowed to testify as to diagnosis, prognosis, and disability. G.S. 90-157.2; Currence v. Hardin, 36 N.C. App. 130, 243 S.E.2d 172, aff'd., 296 N.C. 95, 249 S.E.2d 387 (1978). See also Annot., 52 A.L.R. 2d 1384 (1957). Both parties to the present action stipulated that Dr. Byers was an expert in the field of chiropractic medicine. The court, therefore, properly permitted plaintiff's question concerning Dr. Byers' opinion of disability. The traditional form of such a question is phrased in terms of an "opinion satisfactory to yourself based upon reasonable medical certainty." We conclude that the present question asking for a chiropractor's expert opinion based upon his personal examination and treatment necessarily called for an opinion based upon reasonable medical certainty. Defendant's argument raises only semantic technicalities.

Furthermore, plaintiff had laid a proper foundation prior to asking the question. Plaintiff testified that he continues to have headaches and ringing in his ears. He has trouble sleeping and must take medication. Plaintiff testified he did not have these health problems prior to the accident. Dr. Byers testified that he

examined plaintiff a month after the accident. He took x-rays showing misalignment of plaintiff's spine along his neck, rib cage section, and lower back. After one and a half months of treatment, the pain in plaintiff's lower back had subsided. At the end of 53 treatments, however, plaintiff still had limited motion and experienced pain in his shoulder and neck region. ...


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