Plаintiff Kenzie Salaam (Salaam) appeals from Opinion and Award entered by the North Carolina Industrial Commission (Commission) denying Salaam’s claim for additional compensation based on an alleged change of condition.
On 30 June 1988 Salaam, while employed with defendant North Carolina Department of Transportation (NCDOT), suffered an injury *85 to his back arising out of, and in the course of, his employment. On 24 August 1988 the Commission approved I.C. Form 21, Agreement for Compensation for Disability, submitted by NCDOT and Salaam.
On 30 January 1989 Salaam underwent surgery on his back. After surgery Dr. William L. Pritchard, Salaam’s surgeon, rated Salaam with a ten percent permanent partial disability of the back. On 25 July 1989 the Commission approved I.C. Fоrm 26, Supplemental Memorandum of Agreement as to Payment of Compensation, submitted by the parties. Under the terms of I.C. Form 26, Salaam received thirty weeks of ten percent permanent partial disability compensation pursuant to N.C. Gen. Stat. § 97-31.
Salaam subsequently requested a hearing for additional benefits under N.C. Gen. Stat. § 97-47. In the course of the attendant discovery process, the parties deposed Dr. Pritchard. Prior to the deposition, NCDOT’s counsel engaged in an ex parte conversation with Dr. Pritchard. At the depositiоn, Salaam’s counsel objected to the entire proceeding based on, among other things, the alleged inappropriate nature of the ex parte conversation.
On 15 December 1993 Dеputy Commissioner Scott M. Taylor, after considering all the evidence, including Dr. Pritchard’s deposition testimony, concluded Salaam had not sustained a change of condition. Salaam appealed to the Full Commission which also admitted Dr. Pritchard’s deposition testimony. On 3 November 1994 the Full Commission filed an Opinion and Award finding “[o]n September 19, 1991 plаintiff returned to Dr. Pritchard complaining of pain. Plaintiff’s physical condition, however, has not significantly changed since plaintiff agreed to accept ten percent permanent partial disability compensation as a result of his compensable injury on June 30, 1988.” The Commission therefore concluded Salaam, since recеiving a permanent partial disability rating of ten percent, “has not undergone a change of condition, and is not, therefore, entitled to additional compensаtion under N.C.G.S. § 97-47.”
On appeal Salaam contends the Commission erred by: (1) approving I.C. Form 26 in light of the standard enunciated by the Supreme Court in
Vernon v. Steven L. Mabe Builders,
I.
We first consider Salaam’s allegation the Cоmmission should not have approved I.C. Form 26 because it was fundamentally unfair.
Our Supreme Court recently held the Commission, prior to approving any I.C. Form 26, must exercise its judicial authority by determining “the fairness of the agreement.”
Vernon,
The Supreme Court, relying on the attending physician’s assertion plaintiff would be unable to work in the future, noted “plaintiff may have been entitled to permanent total disability benefits under section 97-29, as well as permanent partial disability benefits based on the fifteen percent rating under sectiоn 97-31.”
Id.
The Court also found the approving authority assumed, rather than determined, that plaintiff understood his right to elect the most beneficial method of compensation undеr the Workers’ Compensation Act.
Id.
at 434,
In contrast, although the present record establishes Salaam was assigned a ten percent permanent partial disability of his back, we find no evidence in the medical records submitted to the Commission with I.C. Form 26 which supports awarding permanent total disability benefits under section 97-29. See N.C. Gen. Stat. § 97-29 (1991). In fact, Dr. Pritchard, in his letter assigning Salaam a ten pеrcent permanent impairment, “encouraged [Salaam] ... to seek some gainful employment within his capabilities.” (emphasis added). Therefore, the present case is distinguishable from Vernon because Salaam, unlike the plaintiff in Vernon, was not entitled to benefits under section 97-29. Accordingly, we conclude the Commission appropriately exercised its judicial authority by approving I.C. Form 26 submitted by NCDOT and Salaam.
*87
Finally, we note the Commission may set aside a previously approved I.C. Form 26 if plaintiff can establish “that there has been error due to fraud, misrepresentation, undue influence or mutual mistake . . . .” N.C. Gen. Stat. § 97-17 (1991). We believe, after careful review of the present record, that Salaam cannot establish the existenсe of any of these factors.
See Brookover v. Borden, Inc.,
II.
We next consider Salaam’s contention the Commission erred by overruling his objection to the ex parte communication between Dr. Pritchard and NCDOT.
N.C. Gen. Stat. § 97-27(b) (1991) provides, in pertinent part: “No fact communicated to or otherwise learned by any physician . . . who may have . . . examined the employee, or . . . been present at any examination, shall be рrivileged, either in hearings provided for by this Article or any action at law.” Id. This proviso is considered an exception to the statutory physician-patient privilege сreated by N.C. Gen. Stat. § 8-53/Leonard T. Jernigan, Jr., North Carolina Workers’ Compensation § 17-6 (2d Ed. 1995).
Nevertheless, “[t]he statutory physician-patient privilege is distinct from the rule prohibiting unauthorized
ex parte
contacts” and, therefore, information actually discoverable because the statutory privilege is inapplicable may be improperly acquired if done so through
ex parte
communications.
Crist v. Moffat,
In Crist, a mediсal malpractice case, the Court held “defense counsel may not interview plaintiff’s nonparty treating physician privately without plaintiff’s express consent” bеcause “considerations of patient privacy, the confidential relationship between doctor and patient, the adequacy of formal discovery dеvices, and the untenable position in which ex parte contacts place the nonparty treating physician supersede defendant’s interest in a less expensive and more convenient method of discovery.” Id. In so holding, the Court assumed the statutory physician-patient privilege was waived by plaintiff. *88 Therefore, the Crist rule precludes non-consensual ex parte communications during adversarial proceedings.
Although we recognize “the Commission is not required tо strictly apply the rules of evidence applicable to a court of law,”
Tucker v. City of Clinton,
Finally, we also note NCDOT, in its brief, argues Salaam suffered no prejudice by admitting Dr. Pritchard’s deposition over his objection because “Salaam was allоwed to question the physician about the [ex parte] communication and show any possible taint or bias.” Although the opportunity to cure any prejudice resulting from ex parte communications prior to deposition is theoretically available in every adversarial proceeding, we note the Crist Court appears to have established a prophylactic protection against non-consensual ex parte communications. See Id. Therefore, we must reject this contention.
Accordingly, we reverse the Opinion and Award filed 3 November 1994 and remand this case to the Commission with directions to strike the deposition testimony of Dr. Pritchard and reconsider Salaam’s request for additional benefits under N.C. Gen. Stat. § 97-47.
Reversed and remanded.