An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-481

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

TIFFANY WILLIAMS, Individually and 

as Guardian Ad Litem for ONESTY 

BENNETT, Minor, Plaintiff,

v. North Carolina Industrial 

Commission

I.C. No. TA-22046

WILSON COUNTY BOARD OF EDUCATION,

Defendant.

Appeal by plaintiff from decision and order entered 11 

March 2013 by the North Carolina Industrial Commission. Heard 

in the Court of Appeals 26 September 2013.

Attorney General Roy Cooper, by Associate Attorney General 

Christopher R. McLennan, for Wilson County Board of 

Education.

Tanner and Romary, P.A., by Jeremy Tanner, for plaintiffappellant.

BRYANT, Judge.

Where there is competent evidence on the record to support 

the Full Commission’s findings of fact and those findings in 

turn support the Commission’s conclusions of law, we affirm the 

Decision and Order of the Full Commission.
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On 13 October 2010, Tiffany Williams, serving as guardian 

ad litem for her daughter, plaintiff Onesty Bennett, a minor, 

filed suit against the Wilson County Board of Education in the 

North Carolina Industrial Commission under our Tort Claims Act. 

Evidence presented before Deputy Commissioner J. Brad Donovan on 

25 April 2012 tended to show that on 4 May 2010, then twelveyear-old plaintiff was a passenger in a Wilson County school bus

when the bus turned a corner, ran off the road, and traveled

through a ditch. Plaintiff was jostled, and her head struck the 

bus window. Plaintiff testified that by the time she got to 

school, her head hurt. She informed her teachers of her 

headache but did not see a school nurse. “I couldn't really 

keep my head up so I just laid down.” Plaintiff testified that 

at home that evening, she went to sleep earlier than usual, and 

when she awoke, her head still hurt. Two to three days later, 

plaintiff told her mother that she was still having headaches. 

Williams, testified that she called plaintiff’s pediatrician, 

Dr. Debra Tetreault, but the first available appointment was not 

until 20 May 2010 – sixteen days after the accident. Williams 

then took plaintiff to see Dr. Melissa Roccos at Elite 

Chiropractic.
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Dr. Roccos testified before Deputy Commissioner Donovan as 

an expert in the field of chiropractic medicine. Dr. Roccos

examined plaintiff on 14 May 2010. After an interview during 

which she took plaintiff’s history, Dr. Roccos performed an 

examination and took x-rays of plaintiff’s neck.

Dr. Rocco testified using notes from her examination of 

plaintiff and concluded that plaintiff was “neurologically

sound” but gave “musculoskeletal signs and closed 

musculoskeletal injury.”

A. . . . When [plaintiff] came in to the 

office, she showed indications of muscular 

spasm in several areas. The muscle spasms 

that she had at the front of the neck, 

characteristically, because these muscles 

attach from the outside of the neck up to 

the front bones in the collar bone, as they 

spasm, they shorten. And as they shorten, 

they tend to increase the patient's forward 

head carriage. That forward head carriage 

will change or increase the curve of the 

spine. And that's what we - we noticed on 

her x-ray. The other thing that [plaintiff]

had was spasm underneath the rim of the 

skull in these little muscles called 

suboccipitals. And when the muscles in the 

suboccipital area spasm, again, because of 

their attachment points from the skull to 

the spine, oftentimes they will cause the

skull to drop, which is, again, something 

that we noticed on x-ray of [plaintiff]. She 

also had muscle spasms in through the upper 

muscle - we have big muscles in our back 

that attach all the way up into our skull, 

like the trapezius muscle or the Levator 

spaculae. And these are big muscles that go 
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from one area of the body to the other. So 

oftentimes when people hear the word back, 

they think back down here. But in truth, the 

back is all of the back body. And 

[plaintiff] had indications of muscular 

spasm in the muscles from the upper mid-back 

into the base of the neck.

Q. Would all those findings be consistent 

with someone who had a sudden jerk of their 

head or either hit their head on a window?

A. Yes.

. . .

Q. And do you remember what your final 

diagnosis was?

A. It was a strain--- Well, she had some 

indications of mild concussive symptoms with 

the fatigue, the lethargy, the focus 

difficulties, and the headaches. And it was 

a strain of her neck, a strain of her back 

and muscular spasm.

. . .

Q. All right, and based on your education, 

training, experience, and the history that 

[plaintiff] gave you, and the history that 

her mom gave you, do you have an opinion to 

a reasonable degree of chiropractic

certainty as to whether it was more likely 

than not that the injuries you described 

were caused by the

bus - school bus accident on May 4th, 2010?

A. Yes.

Q. What is that opinion?

A. I believe it was the cause of 

[plaintiff’s] injuries.
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. . .

Q. And based on your education, training and 

experience, do you have an opinion as to 

whether your treatment of [plaintiff’s]

injuries were reasonable and necessary?

A. Yes, they were.

When asked why her notes reflect that plaintiff struck the right 

side of her face while plaintiff testified that she struck the

left side of her face, Dr. Roccos stated that she could not 

attest to why there was a discrepancy but mentioned that 

“[p]atients have a lot of difficulty remembering things 

immediately.”

Despite receiving chiropractic treatment from Dr. Roccos, 

Williams took plaintiff to her pediatrician, Dr. Tetreault, for 

an examination on 20 May 2010.

Dr. Tetreault was deposed on 1 March 2012, and the 

transcript from her deposition submitted as evidence during 

Deputy Commissioner Donovan’s proceedings. Dr. Tetreault was 

proffered without objection to testify as an expert witness in 

pediatric medicine. Dr. Tetreault testified that she examined 

plaintiff on 20 May 2010. During the examination plaintiff 

related that she had hit her head when her school bus ran off 

the road and afterward she had headaches. Based on the
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interview, Dr. Tetreault’s impression was that plaintiff’s 

headaches began “fairly soon or immediately” after the school 

bus accident. Plaintiff did not complain of other symptoms. 

Dr. Tetreault did not observe any objective signs of physical 

injury to plaintiff, such as bruising or lacerations. During 

the interview, Dr. Tetreault also noted plaintiff’s statement 

that she had prescription lenses but did not wear them.

Q. And what happens with a person

requiring prescriptive corrective 

lenses does not regularly wear them?

A. They get headaches.

Q. And does the degree to which a person’s 

vision is impaired impact the severity 

of these symptoms?

A. Yes, it can.

. . . 

Q. Okay. And how impaired is [plaintiff’s] 

vision without her glasses?

A. When we asked her to do a standard eye 

chart reading, she could not read any 

of the letters on the chart without her 

glasses.

During her deposition, Dr. Tetreault was presented with Dr. 

Rocco’s observations of plaintiff recorded over the course of 

three visits that occurred prior to plaintiff’s 20 May 2010 

examination by Dr. Tetreault. When asked if she would agree 
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with the chiropractor’s opinion that muscle spasms, trigger 

points, and other observations noted in the record resulted from 

the bus accident, Dr. Tetreault testified she could not speak to 

that since she did not see plaintiff right after her accident. 

“When I saw her, she did not have any of those tenderness or any 

problems.”

In the deputy commissioner’s Decision and Order entered 17 

August 2012, the deputy commissioner concluded that the school 

bus driver’s negligent operation of the school bus was the 

proximate cause of plaintiff’s injuries and that the medical 

treatment plaintiff received as a result of those injuries was 

reasonable and necessary. The Wilson County School Board 

appealed to the Full Commission (the Commission).

On 11 March 2013, after review of the record of the 

proceedings before the deputy commissioner, the deputy 

commissioner’s decision and order, as well as the briefs and 

arguments of the parties, the Commission filed its Decision and 

Order reversing that of the deputy commissioner. The Commission 

made the following finding of fact:

23. Based upon a preponderance of the 

evidence of record, the Full Commission 

affords greater weight to the opinions of 

Dr. Tetreault than to those of Dr. Roccos as 

Dr. Tetreault had been Minor Plaintiff 

Bennett’s treating physician since 2007 and 
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specifically treats children in her day to 

day practice of medicine as a pediatrician. 

Further, the Full Commission affords greater 

weight to the opinions of Dr. Tetreault due 

to the inconsistencies noted in the records 

of Dr. Roccos and the testimony of both 

Plaintiff Williams and Minor Plaintiff 

Bennett.

The Commission further found that plaintiff displayed no 

evidence of injury on 20 May 2010 and had full range of motion 

in her neck. The Commission found Dr. Roccos’ treatment of 

plaintiff was neither reasonable nor necessary. Plaintiff’s 

claim for damages was therefore denied. Plaintiff appeals.

______________________________

On appeal, plaintiff raises the following issues: whether 

the Commission erred (I) by determining that medical records

from Elite Chiropractic were unreliable; (II) by giving greater 

weight to the testimony of Dr. Tetreault; (III) when determining 

that plaintiff failed to present sufficient evidence of injury 

causation; (IV) when determining that plaintiff was not entitled 

to recover damages; (V) when failing to affirm the award of 

attorney fees and costs to plaintiff’s counsel; and (VI) when it 

failed to make findings for additional attorney fees.

I, II, & III
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Plaintiff argues that the Commission erred in determining 

that the medical records from Elite Chiropractic were 

unreliable. Specifically, plaintiff asserts the following: 

[I]n order to give greater weight to the 

testimony of Dr. Tetreault, [the Commission] 

has to first lay the foundation that Dr. 

Roccos’ opinions and records cannot be 

relied upon and must simply be ignored 

because it is clear from the evidence as 

outlined in Deputy Commissioner Donovan’s 

opinion that Dr. Tetreault deferred to Dr. 

Roccos to give an opinion about causation 

and what needed to be done to treat Bennett 

for her injuries.

We disagree.

Pursuant to Article 31 of Chapter 143 of our General 

Statutes, “Tort Claims Against State Departments and Agencies,”

when an appeal is taken from the Deputy Commissioner,

[s]uch appeal, when so taken, shall be heard 

by the Industrial Commission, sitting as a 

full Commission, on the basis of the record 

in the matter and upon oral argument of the 

parties, and said full Commission may amend, 

set aside, or strike out the decision of the 

hearing commissioner and may issue its own 

findings of fact and conclusions of law.

N.C. Gen. Stat. § 143-292 (2013). “[T]he Commission is the 

ultimate fact-finder on appeal and is authorized to make 

findings and conclusions contrary to those made by the deputy 

commissioner.” Hummel v. Univ. of N.C., 156 N.C. App. 108, 114, 

576 S.E.2d 124, 128 (2003) (citation and quotations omitted). 
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“The Industrial Commission's findings of fact are binding on 

appeal if supported by competent evidence even though there is 

also evidence which would support a contrary finding.” Hoover 

v. Charlotte-Mecklenburg Bd. of Educ., 87 N.C. App. 417, 419, 

361 S.E.2d 93, 94 (1987) (citation omitted).

In reviewing a decision of the 

Industrial Commission in a case arising 

under the Tort Claims Act, we are limited to 

addressing (1) whether the Commission's 

findings of fact are supported by any 

competent evidence, and (2) whether the 

findings of fact support the Commission's 

conclusions of law and decision.

Davidson v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544, 

552, 543 S.E.2d 920, 925 (2001) (citations omitted). “On 

appeal, this Court does not have the right to weigh the evidence 

and decide the issue on the basis of its weight. The Court's 

duty goes no further than to determine whether the record 

contains any evidence tending to support the finding.” Coulter 

v. Catawba County Bd. of Educ., 189 N.C. App. 183, 185, 657 

S.E.2d 428, 430 (2008) (citation omitted).

Plaintiff argues that the Commission improperly gave more 

weight to Dr. Tetreault’s testimony due to a discrepancy between 

plaintiff’s testimony and Dr. Roccos’ records as to which side 

of plaintiff’s head she hit on the school bus window. While the 

Commission does state that inconsistencies between the records 
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of Dr. Roccos and plaintiff’s testimony was a ground for 

affording greater weight to the opinion of Dr. Tetreault, this 

was not the sole basis. In its finding of fact, the Commission 

set out that it afforded more weight to the opinion of Dr. 

Tetreault over that of Dr. Roccos because “Dr. Tetreault has 

been Minor Plaintiff Bennett’s treating physician since 2007 and 

specifically treats children in her day to day practice of 

medicine as a pediatrician.” Plaintiff argues that the 

Commission erred in “afford[ing] greater weight to the opinions 

of Dr. Tetreault”; however, the determination of weight or 

credibility of the evidence is squarely within the function of 

the Commission as fact-finder and beyond the scope of our 

review. See Hummel, 156 N.C. App. at 114, 576 S.E.2d at 128; 

see also Coulter, 189 N.C. App. at 185, 657 S.E.2d at 430.

Plaintiff does not contest any specific finding of fact and

does not argue that the Commission’s findings of fact are 

unsupported. Indeed, in plaintiff’s brief to this Court, 

plaintiff acknowledges Dr. Tetreault’s testimony in support of 

the Commission’s finding and subsequent conclusion that the 4 

May 2010 bus accident was not the cause of plaintiff’s injuries. 

Plaintiff summarizes Dr. Tetreault’s testimony as stating “no 
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injury [was] noted on [plaintiff] etc [sic] and her failure to 

wear her glasses being a cause of her headaches . . . .”

The evidence presented to the Commission provides support

for the Commission’s findings of fact that “as of the May 20, 

2010 visit with Dr. Tetreault, Minor Plaintiff Bennett displayed 

no evidence of any injury, [and] had full range of motion in her 

neck” and that “Plaintiff failed to present sufficient evidence 

to find that Minor Plaintiff Bennett’s injuries were as a result 

of the May 4, 2010 accident or that medical treatment . . . was 

causally related to this accident.” Therefore, the Commission’s 

findings of fact are binding on appeal. See id. Further, these 

findings of fact support the Commission’s conclusion that 

“[p]laintiff has failed to prove that [the] negligent operation 

of the bus was the proximate cause of Minor Plaintiff Bennett’s 

injuries.” Accordingly, plaintiff’s arguments, challenging the 

Commission’s findings on the cause of plaintiff’s injuries based 

on the weight given medical testimony presented, are overruled.

Based on this holding, we need not reach the remaining 

issues presented in plaintiff’s brief for preservation purposes 

regarding plaintiff’s claims, damages, and attorney fees.

Affirmed.

Judges HUNTER, Robert C., and STEELMAN concur.
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Report per Rule 30(e).