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are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO. COA06-77
NORTH CAROLINA
COURT OF APPEALS
Filed: 2
January 2007
ROBBIE
A. CASH,
Employee,
Plaintiff-Appellee,
v. North
Carolina Industrial Commission
I.C.
File No. 183155
LINCARE
HOLDINGS,
Employer,
TRAVELERS
INSURANCE COMPANY,
Carrier,
Defendants-Appellants.
Appeal by
Defendants from opinion and award entered 8 September 2005 by the North
Carolina Industrial Commission. Heard
in the Court of Appeals 21 September 2006.
Michael E.
Mauney; and Rigsbee & Cotter, P.A., by William J. Cotter, for
Plaintiff-Appellee.
Hedrick Eatman
Gardner & Kincheloe, L.L.P., by Sharon E. Dent, for Defendants-Appellants.
McGEE, Judge.
Defendants
appeal from an opinion and award of the North Carolina Industrial Commission
(the Commission) filed 8 September 2005, affirming a Deputy Commissioner’s
decision awarding Plaintiff medical treatment pursuant to N.C. Gen. Stat.
§97-25. Plaintiff also filed a motion
to dismiss this appeal as interlocutory.
I. Facts
Robbie A. Cash
(Plaintiff) was injured in a motor vehicle collision on 8 October 2001, while
Plaintiff was employed as a respiratory therapist for Defendant Lincare
Holdings, Inc. (Lincare). Plaintiff was
taken to the emergency room at Duke University Medical Center and was admitted
for three days. The emergency room
report stated that Plaintiff “complained of pain to the belly and to the neck
and back.” Plaintiff also had
difficulty urinating. Lincare admitted
compensability by filing a Form 60 on 11 February 2002 and began paying
Plaintiff’s medical expenses and weekly wage compensation.
After the 8
October 2001 accident, Plaintiff sought follow-up care with Dr. Robert Wilson
(Dr. Wilson) and Dr. Thomas Dimmig (Dr. Dimmig), with Triangle Orthopaedics,
for his spine and neck injuries, and with Dr. Robert Andrews (Dr. Andrews) for
his urination dysfunction. After
medication failed to correct Plaintiff’s urination problem, Dr. Andrews opined
that Plaintiff’s “voiding problems [were] secondary to his primary spine injury
and treatment of the primary spine injury should not be delayed.” Plaintiff
returned for a follow-up appointment on 20 March 2002 and Dr. Andrews
reiterated that “ultimate improvement will require identification and treatment
of his underlying spinal pathology.” After Plaintiff’s initial appointment with
Dr. Dimmig, Lincare arranged for Plaintiff to be treated by Dr. Scott Sanitate
(Dr. Sanitate) of the Carolina Back Institute.
Plaintiff saw
Dr. Sanitate on 13 December 2001 and reported numbness in his upper and lower
extremities, incontinence, difficulty swallowing, and cervical and lumbar
pain. Plaintiff reported he felt most
of his discomfort on his left side.
Plaintiff saw Dr. Sanitate again on 17 January 2002. Despite Plaintiff’s reluctance, Dr. Sanitate
released Plaintiff to return to work, with no lifting greater than twenty-five
pounds. Plaintiff moved for a Change of
Treating Physician to return to the care of Triangle Orthopaedics, which was
granted by the Industrial Commission.
Dr. Dimmig
assumed Plaintiff’s care once again, and performed lumbar decompression and
fusion surgery on Plaintiff’s back on 26 March 2002. As a result of the surgery, Plaintiff reported improvement in his
back pain and in his ability to urinate, though he continued to complain of
significant pain in his neck, left shoulder, and in his left knee.
After the 8
October 2001 accident, Plaintiff also developed difficulty swallowing
liquids. The physician treating
Plaintiff for this problem referred Plaintiff to a neurologist, and Plaintiff
began seeing Dr. Jeffrey Siegel (Dr. Siegel).
Plaintiff reported daily headaches, muscle spasms, and continued swallowing
problems. Plaintiff continued seeing
both Dr. Dimmig and Dr. Siegel.
Dr. Dimmig
performed an additional surgery on Plaintiff’s neck on 16 July 2002. After the surgery, Plaintiff developed
numbness around his neck, hands, and right leg, and weakness in his left
arm. He continued to experience
difficulty swallowing. Plaintiff
returned for a follow-up visit with Dr. Dimmig and complained of increased
right leg pain. Dr. Dimmig ordered an
MRI. Plaintiff’s MRI was “satisfactory”
and on 20 December 2002, Dr. Dimmig concluded that “other interventional
treatment [was not] necessary.” On 17
January 2003, Dr. Dimmig stated that Plaintiff “[was] reaching maximum medical
improvement” and Dr. Dimmig would consider discharging Plaintiff with permanent
restrictions when Plaintiff returned for his next follow-up in approximately
one month. After ordering a functional
capacity evaluation, Dr. Dimmig concluded that Plaintiff required
sedentary-type work and was unable to work a four-hour or eight-hour day. At Plaintiff’s 11 April 2003 visit, Dr.
Dimmig found Plaintiff to be at maximum medical improvement, concluded that
Plaintiff could work a four-hour to eight-hour work day in a sedentary-type
job, and discharged Plaintiff.
Plaintiff
continued seeing Dr. Siegel for neurological care, and in a follow-up note
dated 6 March 2003, Dr. Siegel indicated that Plaintiff was upset at being
“abruptly released” from care by Dr. Dimmig.
Dr. Siegel suggested that Plaintiff seek additional orthopedic care with
another orthopedic surgeon. Dr. Siegel
noted on 11 April 2003 that Plaintiff would be at maximum medical improvement
neurologically “very shortly” but that
Plaintiff “was not yet there.” After
reviewing the results of Plaintiff’s functional capacity evaluation, Dr. Siegel
felt that Plaintiff was totally disabled and unable to work even four hours at
a time. Dr. Siegel noted on 9 May 2003
that Plaintiff thought he needed a second opinion for ongoing left knee and
left arm pain since he had been discharged from Dr. Dimmig’s care, and Dr.
Siegel agreed. Dr. Siegel concluded
that Plaintiff was at maximum medical improvement with the exception of
Plaintiff’s orthopedic problems.
Plaintiff filed
a motion to compel Lincare’s insurance carrier, Travelers Insurance Company
(Travelers), to authorize the medical treatment recommended by Dr. Siegel on 2
June 2003. Plaintiff saw Dr. Siegel again on 23 June 2003 and 25 July 2003, and
complained of being “jerked . . . around” by Travelers. Dr. Siegel recommended, inter alia,
psychological or psychiatric care for Plaintiff for increased depression and
anxiety, follow-up orthopedic care, and follow-up neurological care, which
Travelers refused to authorize. By
letter, Travelers instructed Dr. Siegel to restrict his care to treatment of
Plaintiff’s swallowing dysfunction and headaches, and not to treat any
psychiatric conditions or back problems.
While Plaintiff
was waiting for the Commission to rule on his motion to compel, Plaintiff’s
five-year old son was involved in a bicycle accident. Plaintiff felt that as a result of his ongoing injuries, he was
unable to assist his son and decided to “take [his] health into his own
hands.” Plaintiff sought treatment from
Dr. Paul Suh (Dr. Suh), an orthopedic surgeon at the North Carolina Spine Center,
on 15 July 2003. Dr. Suh referred
Plaintiff to Dr. Andrew Jones (Dr. Jones) for Plaintiff’s shoulder and knee
problems. Dr. Suh treated Plaintiff for
continued low back pain and started Plaintiff on physical therapy.
In an
administrative order dated 21 July 2003, the Commission granted Plaintiff’s
motion to compel, and ordered Travelers to authorize and pay for Plaintiff’s
treatment as recommended by Dr. Siegel.
Neither Lincare nor Travelers appealed this order. Under Dr. Suh’s care, Plaintiff underwent a
lumbar myelogram and CT scan on 12 September 2003, which revealed mild
degenerative disc disease. Dr. Suh also
stated that Plaintiff might benefit from removal of a “pedicle screw” to
alleviate thigh pain. Dr. Jones gave
Plaintiff a corticosteroid injection in his left shoulder and recommended knee
surgery be performed by Dr. Clifford Wheeless (Dr. Wheeless). Dr. Wheeless operated on Plaintiff’s left
knee on 1 October 2003, and found several knee injuries, including a meniscus
tear.
Plaintiff filed a motion to compel
payment for the treatment provided by Drs. Jones, Suh, and Wheeless on 4
September 2003. In an administrative
order dated 22 September 2003, the Commission denied Plaintiff’s motion, but “noted
that [D]efendants shall continue compliance with the medical order entered July
21, 2003.” Dr. Siegel wrote prescriptions for Plaintiff to receive treatment by
Drs. Jones, Suh, and Wheeless on 24 September 2003.
Travelers
ultimately approved Plaintiff to obtain a psychological evaluation as recommended
by Dr. Siegel, and Plaintiff saw Dr. Robert Arne Newman (Dr. Newman). Dr. Newman stated that Plaintiff suffered
from conversion disorder, which leaves affected individuals “vulnerable to
developing physical symptoms in response to stress” and “an unrealistic
interpretation of physical signs or symptoms[.]”
Plaintiff filed
a motion to reconsider, which the Commission denied. Plaintiff appealed the administrative decision and a hearing on
the appeal was held on 9 February 2004.
In an opinion and award dated 30 November 2004, the Deputy Commissioner
concluded that the treatment rendered by Drs. Jones, Suh, and Wheeless from 15
July 2003 to 24 September 2003 was emergency treatment reasonably necessary to
give relief and effect a cure pursuant to N.C. Gen. Stat. §97-25. The Deputy Commissioner also concluded that
the treatment provided subsequent to 24 September 2003 was reasonably necessary
to effect a cure or give relief for injuries proximately caused by the 8
October 2001 accident. Therefore,
Defendants were ordered to pay for the referenced treatment. Defendants appealed to the Commission, which
affirmed the opinion and award with minor modifications. The Commission also authorized Drs. Jones,
Suh, and Wheeless as Plaintiff’s treating physicians. Defendants appeal.
II. Plaintiff’s
Motion to Dismiss as Interlocutory
N.C. Gen. Stat.
§97-86 (2005) governs an appeal from an opinion and award of the Commission,
and provides that any party to the dispute may “appeal from the decision of
[the] Commission to the Court of Appeals for errors of law under the same terms
and conditions as govern appeals from the superior court to the Court of
Appeals in ordinary civil actions.”
“Parties have a right to appeal any final judgment of a superior
court. Thus, an appeal of right arises
only from a final order or decision of the Industrial Commission.” Ratchford v. C.C. Mangum, Inc., 150
N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002) (citation omitted). Therefore, “[a] decision of the Industrial
Commission is interlocutory if it determines one but not all of the issues in a
workers’ compensation case. A decision
that on its face contemplates further proceedings or . . . does not fully
dispose of the pending stage of the litigation is interlocutory.” Perry v. North Carolina Dept. of Correction,
__ N.C. App. __, __, 625 S.E.2d 790, 794 (2006) (internal citations and
quotation marks omitted). Even where a
decision is interlocutory, however, immediate review of the issue is proper
where the interlocutory decision affects a substantial right. Id.
To qualify, the right affected must be substantial, and “the deprivation
of that substantial right must potentially work injury if not corrected before
appeal from a final judgment.” Id.
In his motion
to dismiss, Plaintiff argues that the appeal in the present case is
interlocutory because “other hearings or appeals for the same or similar
medical payment issues are possible in the future[.]” Thus, hearing the appeal will lead to the “yo-yo procedure” which
“works to defeat the very purpose of the Workers’ Compensation Act.” Hardin v. Venture Construction Co.,
107 N.C. App. 758, 761, 421 S.E.2d 601, 602-03 (1992). We disagree.
The opinion and
award which is the subject of this appeal was filed following a full evidentiary
hearing before a Deputy Commissioner, and was subsequently reviewed by the
Commission. The award does not
contemplate further proceedings, nor does it remand the matter to the Deputy
Commissioner. Rather, the order
resolves all issues surrounding the disputed medical treatment.
N.C. Gen. Stat.
§97-25 (2005) mandates that “[m]edical compensation shall be provided by the
employer.” The Workers’ Compensation
Act defines this term to include “medical, surgical, hospital, nursing, and
rehabilitative services, and medicines, sick travel, and other treatment . . .
as may reasonably be required to effect a cure or give relief[.]” N.C. Gen. Stat. §97-2(19) (2005). Our Supreme Court has noted that
the legislature
always has provided for, and continues to provide for, two distinct components
of an award under the Workers’ Compensation Act: (1) payment for the cost of
medical care, now denominated “medical compensation,” which consists of payment
of the employee’s medical expenses incurred as a result of a job-related
injury; and (2) general “compensation” for financial loss other than medical
expenses, which includes payment to compensate for an employee’s lost earning
capacity and payment of funeral expenses.
Hyler v. GTE
Products Co.,
333 N.C. 258, 267, 425 S.E.2d 698, 704 (1993).
Thus, the Commission’s determination that an employer must pay an
injured employee medical compensation pursuant to N.C.G.S. §97-25 is a separate
determination from whether an employer owes compensation as a result of an
employee’s disability. Neither
determination is a necessary prerequisite for the other. Therefore, the fact that the order
Defendants appealed contains no determination of any wage compensation owed to
Plaintiff does not render this appeal interlocutory.
We find further
support for this conclusion in prior cases arising from disputes over payment
of medical expenses under N.C.G.S. §97-25.
We are mindful that the language of N.C.G.S. §97-25 has been amended
since these cases were decided, but note that the amendments do not affect
whether an appeal from an opinion and award under this section is
interlocutory. In Bass v.
Mecklenburg County, 258 N.C. 226, 235, 128 S.E.2d 570, 576 (1962), our
Supreme Court stated
[i]t is our
opinion, and we so hold, that when the Commission approves claimant’s such
bills, defendant shall then have a right on appeal to challenge the action of
the Commission in respect to the bills approved by it, in whole or in part, if
it deems it advisable to do so.
Further, in Errante
v. Cumberland County Solid Waste Management, 106 N.C. App. 114, 121-22, 415
S.E.2d 583, 588 (1992), this Court said
we note that in
the case of a controversy arising between plaintiff and defendant relative to
the continuance of medical treatment, the Industrial Commission is vested with
the authority to order such further treatments as may in its discretion be
necessary, N.C.G.S. §97-25 (1991), and if the Commission approves a medical
bill that in defendant’s opinion is not compensable, then defendant at that
time shall have a right and opportunity on appeal to challenge the Commission’s
decision.
Thus, we deny
Plaintiff’s motion to dismiss this appeal as interlocutory and review the
merits of Defendants’ appeal.
III.
Defendants’ Substantive Appeal
Our review in a
workers’ compensation case is limited to a determination of (1) whether the
Commission’s findings of fact are supported by any competent evidence in the
record; and (2) whether the Commission’s findings justify its conclusions of
law. Deese v. Champion Int’l Corp.,
352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000).
Where the Commission’s findings are supported by competent evidence,
those findings are conclusive even if there is evidence to support a contrary
finding. Jones v. Candler Mobile
Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995). We first note that although Defendants
assign error to several of the Commission’s findings of fact, Defendants do not
support these assignments of error with arguments in their brief. We deem these assignments of error
abandoned. N.C.R. App. P. 28(b)(6)
(“Assignments of error not set out in the appellant’s brief . . . will be taken
as abandoned.”). As a result, the
Commission’s findings of fact are binding on this Court. Wooten v. Newcon Transp., Inc., __
N.C. App. __, __, 632 S.E.2d 525, 528 (2006).
Our review is limited to whether the Commission’s findings of fact
justify the following conclusions of law:
1. The treatment received by [P]laintiff
at North Carolina Spine Center prior to the Industrial Commission order of July
21, 2003, was reasonably necessary under the circumstances and constitutes an
emergency as defined by N.C. Gen. Stat. §97-25.
2. The Industrial Commission Order of July
21, 2003, provided that [D]efendants shall authorize and pay for [P]laintiff’s
treatment as recommended by Dr. Siegel.
On September 24, 2003, Dr. Siegel recommended treatment for [P]laintiff
with Dr. Jones, Dr. Suh, and Dr. Wheeless.
On or after September 24, 2003, [D]efendants had not provided any other
orthopedic treatment or options to Plaintiff.
Pursuant to Industrial Commission order July 21, 2003, treatment
subsequent to September 24, 2003 provided by Dr. Jones, Dr. Suh, and Dr.
Wheeless, as recommended by Dr. Siegel, should be paid for by [D]efendants.
3. The treatment provided to [P]laintiff, at North Carolina Spine Center from Dr. Jones and Dr. Suh, and the treatment provided by Dr. Wheeless for [P]laintiff’s left knee was necessary to effect a cure and give relief. N.C. Gen. Stat. §97-25.
We find the
Commission’s conclusions of law to be supported by its findings of fact, and
therefore affirm the Commission’s opinion and award.
Defendants
challenge the Commission’s conclusion that “the treatment received by Plaintiff
at the North Carolina Spine Center
prior to the Industrial Commission order of July 21, 2003, was
reasonably necessary under the circumstances and constituted an emergency as
defined by N.C. Gen. Stat. §97-25.”
Pursuant to
N.C. Gen. Stat. §97-25 (2005),
If in an
emergency on account of the employer’s failure to provide the medical or other
care as herein specified a physician other than provided by the employers is
called to treat the injured employee the reasonable cost of such service shall
be paid by the employer, if so ordered by the Industrial Commission.
Our courts have
concluded an employee is justified “in seeking another physician in an
emergency where the employer’s failure to provide medical services amounts
merely to an inability to provide those services.” Schofield v. Tea Co.,
299 N.C. 582, 588, 264 S.E.2d 56, 61 (1980) (emphasis omitted). Further, “an injured employee has the right
to procure, even in the absence of an emergency, a physician of his own
choosing, subject to the approval of the Commission.” Id. at 591, 264 S.E.2d at 64.
At the time
that Plaintiff sought treatment at the North Carolina Spine Center, he had been
discharged from Dr. Dimmig’s care. Yet,
Dr. Siegel recommended additional orthopedic evaluation, and Plaintiff still
reported pain. When Defendants refused
the care recommended by Dr. Siegel, Plaintiff moved the Commission for an order
compelling Defendants to provide further care.
Thus, Plaintiff sought authorization from the Commission prior to
obtaining care on his own. Plaintiff
did not seek care on his own until 15 July 2003, more than three months after
being discharged by Dr. Dimmig, and after receiving no further orthopedic
treatment, despite continued pain.
Further, the Commission’s findings as to the nature of the emergency
were sufficient. The duration of the
emergency is clear (the treatment provided by Drs. Jones, Suh, and Wheeless
from 15 July 2003 to 24 September 2003) and the Commission concluded the care
was “reasonably necessary under the circumstances.” See Schofield, 299 N.C. at 594, 264 S.E.2d at 64.
Defendants next
challenge the Commission’s conclusion that Defendants must pay for the medical
treatment provided by Drs. Jones, Suh, and Wheeless subsequent to 24 September
2003 pursuant to the 21 July 2003 order.
The Commission’s 21 July 2003 order mandated that Defendants authorize
and pay for the treatment recommended by Dr. Siegel. Dr. Siegel referred Plaintiff to Drs. Jones, Suh, and Wheeless on
24 September 2003. Pursuant to the 21
July 2003 order, Defendants were responsible for this treatment.
Finally,
Defendants argue that the Commission erred when it concluded that the treatment
provided by Drs. Jones, Suh, and Wheeless was necessary to effect a cure and
give relief. Defendants argue this
additional treatment provided by Drs. Jones, Suh, and Wheeless was not related
to the compensable injury, and therefore Defendants were not responsible for
this treatment. We disagree.
Medical
treatment awarded pursuant to N.C. Gen. Stat. §97-25 must be “directly related
to the original compensable injury.” Pittman
v. Thomas & Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286, disc.
review denied, 343 N.C. 513, 472 S.E.2d 18 (1996). “If additional medical treatment is
required, there arises a rebuttable presumption that the treatment is directly
related to the original compensable injury and the employer has the burden of
producing evidence showing the treatment is not directly related to the
compensable injury.” Reinninger v.
Prestige Fabricators, Inc., 136 N.C. App. 255, 259, 523 S.E.2d 720, 723
(1999). Defendants argue that the
testimony of Dr. Dimmig that Plaintiff had reached maximum medical orthopedic
improvement, and Dr. Newman’s diagnosis of conversion disorder show the
treatment was not related to the compensable injury. Plaintiff points us to the opinion of Dr. Siegel, who traced
Plaintiff’s orthopedic problems to the 8 October 2001 accident. Defendants ask us to resolve a credibility
issue, which is not our role. Anderson
v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)
(“The Commission is the sole judge of the credibility of the witnesses and the
weight to be given their testimony.”).
Affirmed.
Judges WYNN and
McCULLOUGH concur.