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are subject to modification and technical correction prior to official
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authoritative.
NO. COA05-34
NORTH CAROLINA COURT OF APPEALS
Filed: 17 January 2006
ANITA THOMPSON,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 125834
FEDERAL EXPRESS GROUND,
Employer,
CRAWFORD & COMPANY,
Carrier,
Defendants.
Appeal by plaintiff from opinion and award entered 1
September 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 December
2005.
Browne,
Flebotte, Wilson, Horn & Webb, PLLC, by Martin J. Horn, for
plaintiff-appellant.
McAngus
Goudelock & Courie, PLLC, by Louis A. Waple and Joseph N. Hamrick, for
defendants-appellees.
STEELMAN, Judge.
Plaintiff, Anita Thompson, appeals an opinion and award
concluding that defendant-carrier, Crawford and Company, was not required to
pay for certain medical treatments plaintiff obtained from an unauthorized
physician. For the reasons discussed
herein, we affirm the determination of the Industrial Commission.
At the time of plaintiff’s hearing before the Industrial
Commission, she was fifty-eight years old.
She had a BA in business administration and an MA in education. Plaintiff was hired by defendant-employer,
Federal Express Ground, as a manager in training. Upon successful completion of her training, plaintiff would have
been a terminal manager. Shortly after
she was hired, plaintiff suffered a compensable injury by accident on 16
December 2000 while removing luggage from her car. At the time of her injury, plaintiff’s average weekly wage was
$1,076.00. This entitled her to
compensation at the rate of $558.00, which she continues to receive for
temporary total disability.
Following the plaintiff’s injury, she initially went to
Hillandale Medical Center for treatment, but was later referred to Triangle
Orthopedic Associates and saw Dr. Raphael Orenstein, who became her treating
physician. Dr. Orenstein’s notes
reflect plaintiff complained of pain in her neck and lower back. He recommended conservative treatment,
including therapy, medication, and chiropractic care. Plaintiff was permitted to return to work with modified duty
restrictions. She was not to lift
anything greater than ten pounds or do any repetitive bending or twisting. Upon her return to Dr. Orenstein, plaintiff
reported her pain was worse and involved her entire body. Plaintiff also reported pain when driving
and requested a restriction of no driving.
Dr. Orenstein continued plaintiff on modified work restrictions. Despite an MRI scan, the doctor was unable
to determine the source of plaintiff’s pain.
When plaintiff did not respond to the treatment, Dr. Orenstein
recommended she attend an interdisciplinary pain program geared toward changing
a patient’s attitude toward pain. In
response to this recommendation, plaintiff underwent a psychological evaluation
by Dr. Scott Sanitate on 11 April 2001.
Dr. Sanitate found no physical cause for plaintiff’s pain and determined
her symptoms were not consistent with the described injury. He opined that plaintiff’s pain was
psychological. He concluded plaintiff
had reached maximum medical improvement, was able to return to work, and her
condition did not warrant an impairment rating. The only treatment Dr. Sanitate recommended was a limited course
of chiropractic treatment. Based on Dr.
Sanitate’s report, defendants did not authorize plaintiff to participate in the
interdisciplinary pain program.
At this time, plaintiff requested a referral for a second
opinion with an osteopath. Dr.
Orenstein felt this was unnecessary. He
felt that since plaintiff had not experienced any relief from chiropractic
treatment, it was unlikely she would experience any additional relief from an
osteopath. Despite Dr. Orenstein’s
refusal to refer plaintiff, she found an osteopath via the Internet, and
commencing 24 April 2001, received treatment from Dr. Thomas Motyka, an
osteopathic consultant at UNC hospitals.
Although Dr. Orenstein disagreed with Dr. Motyka’s diagnosis of
fibromyalgia, he later stated that in his opinion Dr. Motyka’s treatment from
24 April 2001 through 26 June 2001 was not necessarily inconsistent with the
type of chiropractic treatment he recommended and was reasonable and
necessary. However, as of 26 June 2001,
Dr. Orenstein did not recommended any further chiropractic or osteopathic
treatment. Although plaintiff received
treatment from Dr. Motyka starting 24 April 2001, she did not request approval
from the Industrial Commission until she filed a motion on 15 May 2002.
Defendants refused to pay for Dr. Motyka’s treatment. Plaintiff filed a Form 33 asserting she was
not receiving disability benefits. The
Full Commission (Commission) filed an Opinion and Award on 1 September 2004
awarding plaintiff temporary total disability at the weekly rate of $588.00 and
instructing defendants to pay for all medical expenses plaintiff had incurred
or would incur as a result of her compensable injury, including expenses
associated with Dr. Motyka’s treatment for the limited period from 24 April
2001 through 26 June 2001. The
Commission further ordered that neither Dr. Motyka nor Dr. Orenstein were
approved as plaintiff’s treating physicians.
Finally, the Commission determined that defendants’ defense against
plaintiff’s medical claims was reasonable and not based on stubborn, unfounded
litigiousness. As a result, it held
plaintiff was not entitled to attorney’s fees pursuant to N.C. Gen. Stat.
§97-88.1. Plaintiff appeals.
Our review of an award by the Industrial Commission is
limited to: (1) whether there was competent evidence before the Commission to
support its findings; and (2) whether such findings support its legal
conclusions. Lewis v. Orkland Corp.,
147 N.C. App. 742, 744, 556 S.E.2d 685, 687 (2001). Findings of fact from an opinion and award of the Commission, if
supported, are deemed conclusive, even if there is evidence that would support
findings to the contrary. Id. On appeal, this Court does not have the
authority to weigh the evidence or make determinations of credibility, rather
our duty goes no further than to determine whether the record contains any
evidence tending to support the Commission’s findings. Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998) (citations omitted).
In plaintiff’s first argument, she contends the Commission
erred in concluding that defendants were not responsible for expenses incurred
for her treatment by Dr. Motyka because defendant-carrier had no right to
direct any medical care she obtained before the date it accepted the claim
pursuant to N.C. Gen. Stat. §97-25, nor was she required to seek approval from
the Commission to change Dr. Motyka as her treating physician. We disagree.
Generally, an employer has the right to direct the medical
treatment for a compensable work injury. Kanipe v. Lane Upholstery, 141 N.C. App. 620, 623-24, 540
S.E.2d 785, 788 (2000). Even so, an
employer’s right to direct medical treatment, which necessarily includes the
right to select the treating physician, only arises once the employer accepts
the claim as compensable. Id. at
624, 540 S.E.2d at 788. Although
defendant-carrier paid plaintiff’s medical bills, this did not constitute an
acceptance of liability. Biddix v.
Rex Mills, 237 N.C. 660, 664, 75 S.E.2d 777, 780-81 (1953). Since defendants did nothing to accept the
claim, other than to pay plaintiff’s bills, the date liability is deemed to
have been accepted is 8 August 2001, the date defendants filed the Form
60. The Commission ordered defendants
to pay plaintiff’s medical bills, including those to Dr. Motyka from 24 April
2001 through 26 June 2001. Thus, the
only medical expenses that are at issue are those arising from Dr. Motyka’s
care from 27 June 2001 until 8 August 2001, when defendants officially admitted
liability by filing a Form 60. After
that date, defendants would be entitled to direct plaintiff’s medical
treatment.
Defendants would ordinarily be required to pay for the
treatment plaintiff received from Dr. Motyka during this period. However, N.C.
Gen. Stat. §97-25 imposes upon an employee who chooses his or her own physician
the requirement that they obtain the approval of the Commission within a
reasonable time after associating with the physician. This statute provides that “an injured employee may select a
physician of his own choosing to attend, prescribe and assume the care and
charge of his case, subject to the approval of the Industrial Commission.” N.C. Gen. Stat. §97-25 (2005) (emphasis
added). This approval is required for
each physician an employee chooses.
Lucas v. Thomas Built Buses, Inc., 88 N.C. App. 587, 590, 364 S.E.2d
147, 150 (1988). “Moreover, the
claimant must obtain the Industrial Commission approval for the selected
physician within a reasonable time after procuring the services of the
physician.” Forrest v. Pitt County
Bd. of Education, 100 N.C. App. 119, 126, 394 S.E.2d 659, 663 (1990). It is for the Commission to determine
whether approval was sought within a reasonable time after treatments with the
physician began and to make the appropriate findings in support of its
determination. Scurlock v. Durham
County Gen. Hosp., 136 N.C. App. 144, 152, 523 S.E.2d 439, 444 (1999). Absent the Commission’s approval, the
employer is not required to pay for those medical services. See Forrest, 100 N.C. App. at
126, 394 S.E.2d at 663.
In the instant case, the Commission specifically found:
11. Though [plaintiff] received unauthorized treatment from Dr. Motyka beginning on April 24, 2001, plaintiff did not request Industrial Commission approval of the treatment until a Motion was filed May 15, 2002, almost one year later. Plaintiff, who was represented by counsel, had ample opportunity to request approval earlier as numerous forms and Motions were filed during this time and the circumstances involved did not constitute [an] emergency situation, especially in light of the treatment being provided.
The
Commission went on to find that plaintiff’s motion to approve Dr. Motyka was
“not timely filed.” Plaintiff did not
assign as error these findings in the record on appeal. As a result, these
findings are presumed to be supported by competent evidence and are binding on
appeal. Konrady v. U.S. Airways,
Inc., 165 N.C. App. 620, 628, 599 S.E.2d 593, 598 (2004). Since plaintiff failed to obtain the
Commission’s approval of Dr. Motyka within a reasonable time, defendants were
not required to pay for her treatments with Dr. Motyka from 27 June 2001 until
8 August 2001.
In the alternative, plaintiff argues that pursuant to Rule
407(4) of the Workers’ Compensation Rules of the North Carolina Industrial
Commission, the Commission should have required defendants to pay all of her
medical expenses associated with Dr. Motyka’s treatment because Dr. Orenstein,
her authorized treating physician, referred her to Dr. Motyka.
Rule 407(4) provides:
The responsible
employer or carrier/administrator shall pay the statements of medical
compensation provides to whom the employee has been referred by the
authorized treating physician, unless said physician has been requested to
obtain authorization for referrals or tests; . . .
Workers’
Compensation Rules of the North Carolina Industrial Commission, Rule 407(4)
(2005) (emphasis added). The Commission
found that “[plaintiff] located an osteopath via the Internet and on April 24,
2001 received treatment on her own from Dr. Thomas Motyka, an
osteopathic consultant at UNC Hospitals . . . .” (emphasis added). Dr.
Orenstein did not refer plaintiff to Dr. Motyka; he retroactively sanctioned
the treatment provided from 24 April through 26 June 2001. However, he did not recommend further
treatment after that time. For this
reason, the expenses for medical treatment provided by Dr. Motyka after 26 June
2001 are not subject to Rule 407(4).
This argument is without merit.
In plaintiff’s second argument, she contends the trial court erred in declining to award attorney’s fees as a sanction against defendants for unreasonable defense of her claim. We disagree.
Pursuant to N.C. Gen. Stat. §97-88.1, the Commission may
award attorney’s fees if it determines that a hearing has been unreasonably
brought or defended. The decision
whether to award or deny attorney’s fees rests within the sound discretion of
the Commission and will not be overturned absent a showing that the decision
was manifestly unsupported by reason. Bryson
v. Phil Cline Trucking, 150 N.C. App. 653, 656, 564 S.E.2d 585, 587
(2002). Our review of the record fails
to disclose an abuse of discretion by the Commission. This argument is without merit.
The remainder of plaintiff’s assignments of error are either
not argued in her brief or no authority is cited in support thereof. As such, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
AFFIRMED.
Judges WYNN and LEWIS concur.