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Willard v. VP Builders, Inc.

Court of Appeals of North Carolina

May 6, 2014

MARK WILLARD, Deceased-Employee, Plaintiff,
VP BUILDERS INC., Employer, Self-Insured, and SEDGWICK CMS, Third-Party Administrator, Defendants

Heard in the Court of Appeals: September 12, 2013.

Counsel Amended May 15, 2014.

North Carolina Industrial Commission. I.C. No. 99027.

Oxner Thomas & Permar PLLC, Charlotte, NC, by Ms. Kristin P. Henriksen, Primary Attorney, Attorney at Law, for Plaintiff-Appellee - Willard, Mark.

Teague, Campbell, Dennis & Gorham, L.L.P., Raleigh, NC, by Mr. George H. Pender, Ms. Megan B. Baldwin, and Mr. Brian M. Love, Primary Attorneys, Attorneys at Law, for Appellant - VP Builders, Inc., et al.

DAVIS, Judge. Judges HUNTER, JR. and ERVIN concur.


Page 683

DAVIS, Judge.

Appeal by defendants from opinion and award entered 18 December 2012 and order entered 29 January 2013 by the North Carolina Industrial Commission.

VP Builders, Inc. and its third-party administrator Sedgwick CMS (collectively " Defendants" ) appeal from the opinion and award of the North Carolina Industrial Commission awarding death benefits to Connie Willard (" Ms. Willard" ), the widow of Mark Willard (" Plaintiff" ), and the Commission's subsequent order denying Defendants' motion for reconsideration. After careful review, we affirm.

Factual Background

On 24 September 2008, Plaintiff suffered an admittedly compensable injury to his left hand. Plaintiff was examined by Dr. Andrew Koman (" Dr. Koman" ) and diagnosed with

Page 684

post-trauma complex regional pain syndrome and a crush injury involving the left thumb. Dr. Koman performed surgery on Plaintiff's left hand on 2 June 2009. Dr. Koman's physician's assistant, Randy Parks (" Mr. Parks" ), prescribed Vicodin to Plaintiff from 6 May 2009 to 20 July 2009 in order to manage his pain symptoms.

On 5 August 2009, Mr. Parks, pursuant to Dr. Koman's directive, prescribed methadone to Plaintiff. The prescription instructed Plaintiff to take ten milligrams, three times per day as needed to manage his pain. Plaintiff's medical records indicate that Dr. Koman intended " to transition [Plaintiff] from Vicodin to Methadone as part of the treatment plan to control [Plaintiff's] pain." Plaintiff's medical treatment by Dr. Koman and Mr. Parks was authorized through his workers' compensation coverage and paid for by Defendants. Plaintiff was also receiving weekly disability compensation from Defendants as a result of his compensable injury.

On the morning of 6 August 2009, Ms. Willard drove Plaintiff to Dr. Koman's office and then to the Rite Aid Pharmacy to pick up and fill his methadone prescription. Plaintiff received 90 ten-milligram tablets of methadone from the pharmacist. Plaintiff took one of the pills during the car ride home from the pharmacy. Ms. Willard returned home with Plaintiff and then departed alone to visit her mother between 12:00 p.m. and 1:00 p.m.

While she was away, Ms. Willard spoke to Plaintiff twice on the telephone. When she called him at 1:15 p.m., Plaintiff " sounded fine." When Ms. Willard called the second time at approximately 3:00 p.m., he told her that he was doing some research on the computer regarding possible trips to take with their granddaughter. During this telephone conversation, Plaintiff stated that he had taken a second ten-milligram tablet of methadone. Ms. Willard stated that he was speaking at a lower volume and speed than usual.

At 3:30 p.m., Plaintiff received a phone call from his brother. Plaintiff's brother told Ms. Willard that Plaintiff's speech was very slow and that when he asked Plaintiff if he was okay, Plaintiff responded, " I don't know. . . . My throat feels funny."

Ms. Willard called Plaintiff at 4:00 p.m. to inform him that she was on her way home, and Plaintiff did not answer the telephone. As she approached their house, Ms. Willard saw Plaintiff through the window " slumped over the kitchen table." When she reached him, he was unresponsive. Emergency personnel arrived and confirmed that Plaintiff was dead.

On 27 July 2010, Ms. Willard filed a Form 18 seeking death benefits pursuant to N.C. Gen. Stat. § 97-38. In response, Defendants filed a Form 61, denying the claim on the basis that (1) Plaintiff's death " [was] not related to the compensable left thumb injury" ; and (2) N.C. Gen. Stat. § 97-12 -- which provides that compensation shall not be paid if the employee's injury or death was proximately caused by " [h]is being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. 90-86, et. seq., where such controlled substance was not prescribed by a practitioner" -- barred any recovery of workers' compensation benefits.

The matter came on for hearing before Deputy Commissioner Phillip A. Holmes (" Deputy Commissioner Holmes" ) on 18 November 2011. Before the hearing commenced, the parties came to an agreement regarding the scheduling of certain medical depositions. The parties agreed that Dr. Andrew Mason (" Dr. Mason" ), a toxicologist serving as an expert witness for Plaintiff, would be deposed after the parties conducted " some of the key depositions in this case, particularly the medical examiner's office witnesses," consisting of Dr. Deborah Radisch (" Dr. Radisch" ), the Chief Medical Examiner of the North Carolina Office of the Chief Medical Examiner (" OCME" ), and Dr. Ruth Winecker (" Dr. Winecker" ), the Chief Toxicologist of the OCME. Pursuant to the agreement, if Dr. Mason's testimony " attack[ed] the toxicology report," then Defendants would have the opportunity to redepose Drs. ...

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