NO. COA13-413

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

MARK WILLARD,

Deceased-Employee,

 Plaintiff,

v. North Carolina

Industrial Commission

I.C. No. 99027

VP BUILDERS INC.,

Employer,

Self-Insured,

and

SEDGWICK CMS,

 Third-Party Administrator,

 Defendants.

Appeal by defendants from opinion and award entered 18 

December 2012 and order entered 29 January 2013 by the North 

Carolina Industrial Commission. Heard in the Court of Appeals 

12 September 2013.

Oxner Thomas + Permar, by Kristin P. Henriksen, for 

plaintiff-appellee.

Teague Campbell Dennis & Gorham, L.L.P., by George H. 

Pender, Megan B. Baldwin, and Brian M. Love, for 

defendants-appellants.

DAVIS, Judge.
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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 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 
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[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.
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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.
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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. Radisch and Winecker and, if 

necessary, designate and introduce testimony from a rebuttal 

toxicologist. This agreement was entered into to address 

Defendants’ earlier contention that Dr. Mason’s testimony should 

be excluded because Plaintiff had failed to promptly and fully 

disclose the substance of his opinions in various discovery 

responses.
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Following the hearing, the parties took several medical 

depositions, including those of Drs. Radisch and Winecker

(Defendants’ witnesses) followed by the deposition of

Plaintiff’s expert witness, Dr. Mason. On 13 March 2012, 

Defendants filed a motion to extend the record, seeking to 

introduce into evidence rebuttal testimony from Dr. Winecker, 

Dr. Radisch, and Dr. Brian McMillen (“Dr. McMillen”) — a 

toxicologist who was designated to serve as Defendants’ rebuttal 

expert witness. Defendants’ motion alleged that (1) Dr. Mason

had offered deposition testimony that was “substantially 

different than what was represented in plaintiff’s discovery 

responses”; and (2) because Dr. Mason’s opinions were in 

conflict with those testified to by the OCME, Defendants were 

entitled to offer rebuttal testimony pursuant to the parties’ 

pre-hearing agreement. Deputy Commissioner Holmes denied the 

motion that same day.

On 14 March 2012, Defendants filed a motion requesting the 

opportunity to make an offer of proof. Specifically, Defendants 

— incorporating by reference their 13 March 2012 motion to 

extend the record — sought to present the rebuttal deposition 

testimony of Drs. Winecker, Radisch, and McMillen as an offer of 

proof to preserve their challenge to Deputy Commissioner Holmes’ 
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ruling for purposes of appellate review. Deputy Commissioner 

Holmes denied this motion on 15 March 2012. He subsequently 

entered an opinion and award on 26 April 2012 (1) concluding 

that Defendants had failed to prove their affirmative defense 

under N.C. Gen. Stat. § 97-12 because the evidence did not 

establish that Plaintiff took the methadone in a manner contrary 

to the prescribed use; and (2) awarding Ms. Willard death 

benefits for a minimum total of 400 weeks and ordering 

Defendants to reimburse her for funeral expenses and to pay the 

costs of this action, including expert witness fees.

Defendants appealed to the Full Commission and filed a 

motion to reopen the record to include rebuttal testimony from 

Drs. Winecker, Radisch, and McMillen. Defendants requested, in 

the alternative, that they be permitted to submit this 

deposition testimony as an offer of proof. The Full Commission 

concluded that Defendants “ha[d] not shown good grounds to 

receive further evidence” and issued an opinion and award on 18 

December 2012 affirming, with some minor modifications, the 

opinion and award of Deputy Commissioner Holmes.

Defendants filed a motion for reconsideration on 18 January 

2013, requesting that the Commission grant their earlier motion 

to reopen the record or, alternatively, allow them to make an 
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offer of proof. Defendants further asked the Commission to 

reconsider its opinion and award once the requested depositions

had occurred, “taking into account this additional medical and 

toxicological evidence.” On 29 January 2013, the Commission 

entered an order denying Defendants’ motion for reconsideration,

motion to reopen the record, and request for leave to make an 

offer of proof. Defendants appealed to this Court.

On 5 December 2013, this Court entered an order remanding 

this matter to the Commission for the sole purpose of allowing 

Defendants to make an offer of proof consisting of the 

anticipated rebuttal testimony of Drs. Winecker, Radisch, and 

McMillen. Defendants’ appeal was held in abeyance pending this 

Court’s receipt of the offer of proof. Defendants submitted 

their offer of proof to this Court on 17 February 2014.

Analysis

I. Offer of Proof

Defendants first contend that the Full Commission erred in 

failing to allow them the opportunity to make an offer of proof. 

We agree.

The offer-of-proof requirement is imposed 

for the benefit of two different audiences. 

First, when the proponent makes the offer of 

proof, the trial [tribunal] may reconsider 

and change the ruling. . . . Second, the 

offer is also essential if there is an 
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appeal. If there were no offer of proof, 

the appellate court would have a difficult 

time evaluating the propriety and effect of 

the trial [tribunal’s] ruling. With an 

offer of proof in the trial record, the 

appellate court can make much more 

intelligent decisions as to whether there 

was error . . . [and] whether the error was 

prejudicial . . . .

Robert P. Mosteller et. al., North Carolina Evidentiary 

Foundations § 3-6, at 3-15 (2d. ed. 2006). An offer of proof is

generally essential to appellate review of a lower court’s 

decision to exclude evidence because “[a]bsent an adequate offer 

of proof, we can only speculate as to what a witness’s testimony 

might have been.” State v. Jacobs, 363 N.C. 815, 818, 689 

S.E.2d 859, 861-62 (2010). As we recently explained,

in order for a party to preserve for 

appellate review the exclusion of evidence, 

the significance of the excluded evidence 

must be made to appear in the record and a 

specific offer of proof is required unless 

the significance of the evidence is obvious 

from the record. The essential content or 

substance of the witness’ testimony must be 

shown before we can ascertain whether 

prejudicial error occurred.

State v. Walston, ___ N.C. App. ___, ___, 747 S.E.2d 720, 723-24 

(2013) (internal citations, quotation marks, and alterations 

omitted), disc. review denied, ___ N.C. ___, 753 S.E.2d 667 

(2014).

As set out above, Defendants sought to introduce rebuttal 
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deposition testimony from Drs. Winecker, Radisch, and McMillen

and requested that Deputy Commissioner Holmes allow the rebuttal 

testimony to be included in the record. When Defendants’ motion 

was denied, they sought leave to make an offer of proof with 

regard to this rebuttal testimony. This motion was also denied.

After Deputy Commissioner Holmes entered his opinion and 

award, Defendants appealed to the Full Commission and sought to 

reopen the record to include the rebuttal testimony. Defendants 

again requested, in the alternative, the opportunity to make an 

offer of proof regarding the rebuttal testimony. The Commission 

concluded that Defendants “ha[d] not shown good grounds to 

receive further evidence” and proceeded to enter its opinion and 

award without allowing Defendants to make an offer of proof.

Defendants then filed a motion for reconsideration, arguing 

that they had been prejudiced by Plaintiff’s failure to fully 

disclose Dr. Mason’s opinions in his discovery responses and by 

the Commission’s denial of their request to reopen the record to 

receive the testimony of Dr. McMillen and the rebuttal testimony 

of Drs. Winecker and Radisch. Defendants asserted that the 

anticipated testimony from Dr. McMillen would “substantially 

contradict Dr. Mason’s opinions” and that “his opinions could 

change the outcome in this case.” Once again, Defendants sought 
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leave to make an offer of proof to fully preserve this issue for 

appellate review. However, Defendants’ motion was denied.

Because the Workers’ Compensation Act requires that 

processes, procedures, and discovery under the Act “be as 

summary and simple as reasonably may be,” N.C. Gen. Stat. § 97-

80(a) (2013), we have held that the rules of procedure and 

evidence that govern in our general courts of justice generally 

do not apply to the Industrial Commission’s administrative factfinding function. Handy v. PPG Indus., 154 N.C. App. 311, 316, 

571 S.E.2d 853, 857 (2002). However, “this Court has 

consistently held that the Commission must conform to court 

procedure and evidentiary rules where required to preserve 

justice and due process.” Id. at 317, 571 S.E.2d at 857.

In Allen v. K-Mart, 137 N.C. App. 298, 528 S.E.2d 60 

(2000), we concluded that despite the general principle that 

workers’ compensation proceedings are not subject to the rules

of procedure and evidence that govern our general courts, “[t]he 

opportunity to be heard and the right to cross-examine another 

party’s witnesses are tantamount to due process and basic to our 

justice system” and must be observed by the Industrial 

Commission in such proceedings. Id. at 303-04, 528 S.E.2d at 

64.
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We believe that — like the right to cross-examine the 

opposing party’s witnesses — the right to make a record 

sufficient for appellate review through an offer of proof is

also necessary “to preserve justice and due process.” See 

Handy, 154 N.C. App. at 317, 571 S.E.2d at 857; see also State 

v. Brown, 116 N.C. App. 445, 447, 448 S.E.2d 131, 132 (1994)

(“It is fundamental that trial counsel be allowed to make a 

trial record sufficient for appellate review [by submitting an 

offer of proof.]”).

We fail to see why the same notions of fundamental fairness 

requiring the general courts of justice to accept offers of 

proof should not likewise apply in workers’ compensation 

proceedings.

1 Accordingly, while we reiterate that the rules of 

procedure and evidence governing proceedings in our general 

courts of justice do not generally apply in hearings before the 

Industrial Commission, we hold that, upon request, the

 

1 Indeed, this Court has indicated that in administrative 

hearings — where, as with hearings before the Industrial 

Commission, evidentiary procedures “are not so formal as 

litigation conducted in superior courts” — administrative law 

judges should permit a party to make an offer of proof to 

demonstrate the substance of the excluded evidence where its 

significance is not readily apparent. Eury v. N.C. Employment 

Sec. Comm’n, 115 N.C. App. 590, 602-03, 446 S.E.2d 383, 390-91, 

appeal dismissed and disc. review denied, 338 N.C. 309, 451 

S.E.2d 635 (1994).
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Commission must afford a party in a workers’ compensation 

proceeding the opportunity to make an offer of proof regarding 

the substance of evidence that has been excluded unless the 

substance of the evidence and its significance are readily 

apparent.

2

II. Denial of Motion to Reopen Record and Motion for 

Reconsideration

We now turn our attention to the question of whether the 

Commission committed reversible error in denying Defendants’ 

motions to (1) reopen the record to receive the rebuttal 

testimony of Drs. Winecker, Radisch, and McMillen; and (2) 

reconsider its opinion and award in light of this rebuttal 

testimony.

Motions to receive additional evidence and motions for 

reconsideration are both reviewed by this Court for abuse of 

discretion. Beard v. WakeMed, ___ N.C. App. ___, ___, 753 

S.E.2d 708, 712 (2014); see Moore v. Davis Auto Serv., 118 N.C. 

App. 624, 629, 456 S.E.2d 847, 851 (1995) (“The Commission’s 

power to receive additional evidence is a plenary power to be 

exercised in the sound discretion of the Commission . . . . and 

 

2 We note that offers of proof can take different forms with 

varying degrees of formality. See Kenneth S. Broun, 1 Brandis & 

Broun on North Carolina Evidence § 18, at 76-80 (7th ed. 2011) 

(explaining various methods of making offer of proof).
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the Commission’s determination in that regard will not be 

reviewed on appeal absent a showing of manifest abuse of 

discretion.” (citation and quotation marks omitted)).

The test for abuse of discretion is whether 

a decision is manifestly unsupported by

reason, or so arbitrary that it could not 

have been the result of a reasoned decision. 

Because the reviewing court does not in the 

first instance make the judgment, the 

purpose of the reviewing court is not to 

substitute its judgment in place of the 

decision maker. Rather, the reviewing court 

sits only to insure that the decision could, 

in light of the factual context in which it 

is made, be the product of reason.

Beard, ___ N.C. App. at ___, 753 S.E.2d at 712-13 (citation 

omitted).

“In determining whether to accept new evidence, the 

Commission must consider the relative prejudices to the parties, 

the reasons for not producing the evidence at the first hearing, 

the nature of the testimony, and its probable effect upon the 

conclusion reached.” Andrews v. Fulcher Tire Sales and Serv., 

120 N.C. App. 602, 606, 463 S.E.2d 425, 428 (1995) (citation and 

quotation marks omitted). However, when deciding whether to 

receive additional evidence, the Commission is not required to

make specific findings of fact regarding its decision. Keel v. 

H & V, Inc., 107 N.C. App. 536, 542, 421 S.E.2d 362, 366-67 

(1992).
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After carefully reviewing the excluded rebuttal testimony 

of Drs. Winecker, Radisch, and McMillen that we received in 

response to our 5 December 2013 order, we conclude that the 

Commission did not abuse its discretion in denying Defendants’ 

motion to reopen the record and reconsider its opinion and 

award. Defendants’ offer of proof revealed that Dr. McMillen —

Defendants’ rebuttal toxicologist — would have testified that 

(1) making a dosage determination of methadone from tissue 

samples is scientifically reliable; and (2) he could opine with 

a reasonable degree of medical certainty that Plaintiff had 

consumed four to eight 10-milligram tablets of methadone based 

on the concentration levels found during the autopsy.

However, with regard to the rebuttal testimony of Drs. 

Winecker and Radisch, Defendants’ offer of proof reveals that 

they would merely have reaffirmed their opinions that neither 

could state to a reasonable degree of medical certainty that 

Plaintiff consumed more than two ten-milligram tablets of 

methadone (the prescribed dosage). Moreover, Dr. Winecker would 

have critiqued the methodology that Dr. McMillen — Defendants’ 

rebuttal toxicologist — utilized to arrive at his dosage 

determination range of four to eight tablets on the ground that

Dr. McMillen used standard median textbook values derived from 
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controlled clinical studies, which, in her opinion, were not 

appropriate in the present case given that Plaintiff’s body was 

embalmed and then autopsied six months after his death.

Defendants contend that because of the pre-hearing 

agreement between the parties, Defendants were entitled to offer 

this rebuttal testimony and that, as a result, the Commission 

erred by denying their motion to reopen the record, consider the 

rebuttal testimony, and reconsider its opinion and award. As 

explained above, Defendants and Plaintiff entered into a prehearing agreement regarding the order in which medical 

depositions were to be scheduled and under what circumstances 

Defendants would be allowed to offer rebuttal testimony. 

Specifically, the parties agreed that if Dr. Mason attacked the 

toxicology report issued by the OCME, then Defendants could 

offer rebuttal testimony from Drs. Winecker and Radisch, and, if 

necessary, designate and offer testimony from a rebuttal 

toxicologist.

However, because Dr. Mason’s testimony did not attack the 

toxicology report itself, the pre-hearing agreement was not 

triggered. In his deposition, Dr. Mason did not dispute the

calculations of the methadone concentration levels found in 

Plaintiff’s tissue samples. Nor did he contradict or criticize 
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any other information contained within the toxicology report 

prepared by the OCME. Instead, Dr. Mason offered his opinion as 

to what information could be extrapolated from tissue 

concentration data contained in the report. Specifically, he 

opined that methadone dosage could not be accurately determined 

from tissue samples because methadone is highly variable. This 

opinion did not attack the toxicology report itself, and as 

such, the Commission’s denial of the motion to reopen the record 

and motion for reconsideration was not inconsistent with the 

parties’ pre-hearing agreement.

Moreover, given that the overwhelming weight of the 

evidence — both in the record and in Defendants’ offer of proof 

— indicates that methadone is highly variable and that tissue 

concentrations do not provide scientifically reliable 

determinations of methadone dosage, we cannot conclude that 

Defendants were prejudiced by the Commission’s denial of their

motions to reopen the record and to reconsider its opinion and 

award. This Court has repeatedly held that we will not find an 

abuse of discretion in the denial of a motion to consider 

additional evidence where the party has failed to show that it 

was actually prejudiced by the denial. See Andrews, 120 N.C. 

App. at 606, 463 S.E.2d at 428 (holding that defendants were not 
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prejudiced by denial of their motion to consider new evidence in 

workers’ compensation proceeding because such evidence would 

“probably not affect the outcome” of the hearing, and,

therefore, Commission did not abuse its discretion); Moore, 118 

N.C. App. at 629, 456 S.E.2d at 851 (ruling that because 

additional evidence defendants sought to introduce in workers’ 

compensation proceeding was cumulative, defendants were not 

prejudiced by denial of motion and failed to show manifest abuse 

of discretion). Here, we believe that Defendants have failed to 

show actual prejudice because their offer of proof demonstrates 

that had Defendants been allowed to submit rebuttal toxicology

testimony from Dr. McMillen, their two primary witnesses — Drs. 

Winecker and Radisch — would have nevertheless reaffirmed their 

opinions that tissue concentrations do not provide 

scientifically reliable determinations of methadone dosage and

that, as such, they could not state with a reasonable degree of 

medical certainty that Plaintiff consumed methadone in a manner

contrary to his prescription.

Finally, Defendants contend that the Commission’s rulings

prevented them from effectively and meaningfully cross-examining 

Dr. Mason. In making this argument, Defendants primarily rely 

on this Court’s decision in Allen.
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In Allen, the plaintiff sustained an injury while moving a 

box of stationary and placing it in a shopping cart. Allen, 137 

N.C. App. at 298-99, 528 S.E.2d at 61. The plaintiff’s treating

physician diagnosed her with a cervical and lumbar muscle strain 

and noted that she had also been suffering from panic attacks 

and depression for some time. Id. at 300, 528 S.E.2d at 62. As 

treatment of the plaintiff continued, the physician eventually 

diagnosed the plaintiff with fibromyalgia as well. Id. The 

doctor testified that her diagnosis of fibromyalgia was “sort of 

by exclusion because all of the other tests . . . looked pretty 

normal.” Id. The plaintiff did not seek out a specialist 

familiar with fibromyalgia prior to her hearing before the 

deputy commissioner, and on 22 July 1997, the deputy 

commissioner entered an opinion and award determining that she 

was no longer disabled and awarding her medical expenses 

incurred as a result of the muscle strain but not for the 

treatment of fibromyalgia. Id.

The plaintiff appealed to the Full Commission and filed a 

motion “for independent psychiatric and fibromyalgia specialist 

examinations.” Id. at 301, 528 S.E.2d at 62. The Commission 

granted the motion, and over the defendants’ numerous 

objections, the Commission allowed the plaintiff to submit
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reports from a psychiatrist and a general practitioner who had 

experience in treating and diagnosing fibromyalgia. Id. at 301, 

528 S.E.2d at 63. The Commission relied on these reports in 

entering its opinion and award in which it concluded that the 

plaintiff’s panic attacks, depression, and fibromyalgia “were 

caused or significantly aggravated by her injury by accident.” 

Id. at 302, 528 S.E.2d at 63. This Court reversed, concluding 

that the Commission erred “by allowing significant new evidence 

to be admitted but denying [the] defendants the opportunity to 

depose or cross-examine the physicians, or [failing to require 

the] plaintiff to be examined by experts chosen by [the] 

defendants.” Id. at 304, 528 S.E.2d at 64.

In so holding, we noted that (1) the defendants filed five 

separate objections to the admission of this evidence to which 

the Commission failed to respond; and (2) “[t]he evidence 

offered by [the psychiatrist and the practitioner experienced in 

diagnosing fibromyalgia] was completely different from any other 

evidence admitted up to then.” Id. We thus concluded that 

“where the Commission allows a party to introduce new evidence 

which becomes the basis for its opinion and award, it must allow 

the other party to rebut or discredit that evidence.” Id. at 

304, 528 S.E.2d at 64-65.
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Here, conversely, Defendants were able to extensively 

cross-examine Dr. Mason. Indeed, we note that Defendants were 

able to specifically question him concerning both (1) his 

opinion that methadone dosage could not be accurately determined 

using tissue concentrations; and (2) Dr. McMillen’s opinion that 

Plaintiff’s recorded levels of methadone could not have been 

reached by ingesting only two ten-milligram tablets of 

methadone. As such, Allen is distinguishable from the present 

case, and Defendants’ argument on this issue is overruled.

Conclusion

For the reasons stated above, we affirm the Commission’s 18 

December 2012 opinion and award and its 29 January 2013 order

denying Defendants’ motion for reconsideration.

AFFIRMED.

Judges HUNTER, JR. and ERVIN concur.