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NO. COA06-1232
NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
MIKE DICAMILLO,
Employee
Plaintiff,
v. North Carolina Industrial Commission
I.C.
File No. 299307
ARVIN MERITOR, INC.,
Employer,
SELF-INSURED (FRANK GATES CO.,
Third-Party Adminstrator),
Defendant.
Appeal by defendant from opinion and award entered 27 June
2006 by Chairman Commissioner Buck Lattimore for the North Carolina Industrial
Commission. Heard in the Court of
Appeals 8 May 2007.
Frederick
R. Stann, for plaintiff-appellee.
Ogletree,
Deakins, Nash, Smoak & Stewart, P.C., by Brian M. Freedman, for
defendant-appellant.
TYSON, Judge.
Arvin Meritor, Inc. (“defendant”) appeals from an opinion
and award of the Full Commission of the North Carolina Industrial Commission
(“the Commission”) in favor of Michael Dicamillo (“plaintiff”). We affirm.
I.
Background
Plaintiff was employed with defendant as a forklift
operator. On 21 February 2002,
plaintiff suffered a compensable injury when a metal rack he was lifting fell,
came through the forklift’s protective metal framework, and cut his scalp. Plaintiff was taken to Park Ridge Hospital
and treated by Dr. Richard S. Broadhurst (“Dr. Broadhurst”). Dr. Broadhurst examined plaintiff and found
him to have a scalp laceration.
Plaintiff returned to light duty work following the injury. He complained to Dr. Broadhurst of headaches
on 25 February and again on 28 February 2002.
Dr. Broadhurst concluded plaintiff had suffered a scalp laceration and
concussion. On 5 March 2002, plaintiff
returned to Dr. Broadhurst, reported feelings of anxiety while at work, and
continued to complain of headaches. On
8 March 2002, plaintiff underwent a CT scan of the head, the results of which
were normal.
On 22 March 2002, plaintiff presented to Dr. Daniel Garber
(“Dr. Garber”), a neurologist, on referral from Dr. Broadhurst for evaluation
of headaches and neck pain. Dr. Garber
concluded plaintiff suffered from a combination of cervicogenic headaches and
occipital neuralgia. Dr. Garber noted
it could take from six months to one year for plaintiff’s symptoms to
resolve. Plaintiff did not return to
Dr. Garber.
Dr. Broadhurst also referred plaintiff to Dr. Terrence
Fitzgerald (“Dr. Fitzgerald”), a clinical psychologist, who treated him from
March until May 2002. Dr. Fitzgerald
diagnosed plaintiff with “somatoform pain disorder associated with chronic
headache pain and somatization.” Dr.
Fitzgerald testified that he did not diagnose plaintiff with post-traumatic
stress disorder (“PTSD”) because plaintiff did not display the hallmarks of
PTSD. Dr. Fitzgerald testified that
plaintiff’s “anxiety was grounded to fear of getting back up on his vehicle at
work, and that apparently had generalized to fear of driving, which was the
main focus of what [he] was trying to work with him on.”
Plaintiff’s final visit with Dr. Fitzgerald occurred on 21
May 2002. Plaintiff cancelled his 30
May 2002 appointment with Dr. Fitzgerald and failed to show for his 17 June
2002 appointment. On 17 June 2002, Dr.
Fitzgerald discharged plaintiff at maximum psychologic improvement.
Dr. Broadhurst referred plaintiff to another neurologist,
Dr. Sachin Shenoy (“Dr. Shenoy”), who treated plaintiff on 7 August 2002.
Dr. Shenoy concluded plaintiff was suffering from post-traumatic
headaches and post-traumatic neck pain.
She noted plaintiff also displayed post-traumatic cognitive changes,
including daytime somnolence. Plaintiff
returned to Dr. Shenoy on 29 August 2002 and complained of swelling in his left
foot. Dr. Shenoy wrote that the
swelling was of unknown etiology, but may result from medications. Plaintiff failed to return to Dr. Shenoy
after this date.
On 2 October 2002, plaintiff returned to Dr. Broadhurst and
complained of lower back pain. Dr.
Broadhurst diagnosed the lower back pain was not causally related to
plaintiff’s occupational head injury.
Plaintiff complained his left leg was painful and swollen and that he
continued to suffer intense headaches.
Dr. Broadhurst noted plaintiff had been out of work since 20 September
2002 due to the recommendations of his primary care provider, Todd Stone, PA
(“Mr. Stone”). At hearing, plaintiff
testified that he was taken out of work by Mr. Stone due to swelling in his
legs. Plaintiff has failed to return to
work since September 2002.
Plaintiff presented to Dr. Stephen David (“Dr. David”), an
orthopedic surgeon, on 8 November 2002 for an evaluation of injuries to his
head and neck. Dr. David noted
plaintiff weighed 420 pounds and reported prior lumbar spine problems. Dr. David concluded plaintiff had
post-concussion syndrome and that his neck, arm, and back symptoms were related
to his work injury. Plaintiff was last
seen by Dr. David in June 2004.
Dr. David testified that plaintiff’s arm, neck, and back
problems were caused, aggravated, or accelerated by his 21 February 2002 work
related injury. Dr. David assessed
plaintiff as having a five percent permanent partial impairment rating to the
cervical spine and a two percent permanent partial impairment rating to the
lumbar spine. Plaintiff was last seen
by Dr. David in June 2004.
Plaintiff was seen by Dr. Laura Fleck (“Dr. Fleck”), a
neurologist, on 12 May 2003 on referral from Dr. David. Following her initial evaluation, Dr. Fleck
opined that plaintiff had cervical radiculalgia, a pinched nerve in the neck,
and lumbosacral radiculalgia, a pinched nerve in the lower back. She concluded these conditions were
secondary to degenerative disc disease, which preceded the work-related
injury. Following her initial
evaluation, Dr. Fleck released plaintiff to a sedentary activity level.
On 10 September 2003, Dr. Fleck referred plaintiff for a
work hardening program. On 24 November
2003, Dr. Fleck wrote that plaintiff had completed the work hardening program
and underwent a functional capacity evaluation (“FCE”). She wrote that the FCE was invalid because
plaintiff was unable to put forth significant effort due to his asserted
pain. Dr. Fleck reviewed notes from
plaintiff’s last week of the work hardening program, which showed him to be
functioning at a “high-light to low-medium” capacity. She released him to a “high-light to low-medium level” work
according to the United States Department of Labor Guidelines.
Dr. Fleck recommended that plaintiff return to work on a
progressive schedule of initially working four hours per day, then six hours
per day, then up to eight hours per day with lifting restrictions of
thirty-five pounds. Plaintiff was last
treated by Dr. Fleck on 29 December 2003.
On that date, plaintiff presented her with a note from Dr. Donald
Hazlett (“Dr. Hazlett”), a psychiatrist, who stated plaintiff was unable to
work, even on a limited basis, at his previous place of employment because of
PTSD and major depression. Dr. Fleck
opined that plaintiff was at maximum medical improvement and assessed him with
a two percent permanent impairment rating to the neck and a two percent
permanent impairment rating to the lumbar spine.
Plaintiff began treatment with Dr. Hazlett on 23 May 2002
without authorization from defendants.
Dr. Hazlett diagnosed plaintiff with PTSD and testified this diagnosis
was based upon: (1) plaintiff’s
flashbacks of the occupational accident; (2) the fact that he was “emotionally
reliving” that experience; (3) his preoccupation with the accident; (4)
irritability; (4) inability to concentrate; and (5) his difficulty sleeping. Dr. Hazlett testified plaintiff’s
occupational accident precipitated plaintiff’s PTSD and worsened his
depression. Dr. Hazlett continued to
treat plaintiff as of 14 October 2004 when his deposition was obtained.
Defendant accepted plaintiff’s head laceration injury as
compensable via a Form 60. On 30
September 2002, plaintiff filed a Motion Regarding Medical Treatment with the
Commission in which he alleged that he had undergone treatment with Drs.
Broadhurst and Fitzgerald and his condition was not improving. Plaintiff prayed the Commission to order
defendant to authorize and pay for a second opinion and treatment by another
physician and psychologist. By order
filed 7 January 2003, the Commission denied plaintiff’s motion. Plaintiff filed a Form 33, Request for
Hearing, on 14 November 2002.
This case was heard before Deputy Commissioner Ronnie E.
Rowell on 10 May 2005. After the
hearing, the parties obtained depositions from Dr. Hazlett, Dr. Fleck, Dr.
Fitzgerald, Dr. David, and Mr. Stone.
Deputy Commissioner Rowell concluded that plaintiff had suffered a
compensable injury by accident on 21 February 2002, which resulted in head,
neck, lower back, and psychiatric problems and he remained disabled as a result
of his injury by accident. Deputy
Commissioner Rowell ordered defendant to pay plaintiff temporary total
disability benefits at the weekly rate of $566.11 beginning 20 September 2002
and continuing until plaintiff returned to work or until the Commission ordered
further. Deputy Commissioner Rowell
concluded that Dr. Hazlett was an authorized treating physician and ordered
defendant to pay for the medical treatment necessitated by plaintiff’s work
accident on 21 February 2002, including treatment from Dr. Hazlett and
treatment related to plaintiff’s lower back.
The Full Commission affirmed Deputy Commissioner Rowell’s opinion and
award by order filed 27 June 2006.
Defendant appeals.
II.
Issues
Defendant argues the Commission erred by: (1) finding as fact and concluding as a
matter of law that plaintiff met his burden of proving disability and awarding
him ongoing temporary total disability benefits; (2) finding as fact and
concluding as a matter of law that plaintiff’s lower back condition was
causally related to his 21 February 2002 work related accident; (3) finding as
fact and concluding as a matter of law that plaintiff had requested the
Commission to approve his medical treatment with Dr. Hazlett within a
reasonable time and designating Dr. Hazlett as an authorized treating
physician; and (4) failing to consider all of the evidence from plaintiff’s
numerous medical providers before making its findings of fact.
III.
Standard of Review
Our review of workers’ compensation cases “is limited to a
determination of (1) whether the findings of fact are supported by competent
evidence, and (2) whether the conclusions of law are supported by the
findings.” Barham v. Food World,
300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980) (citing Byers v. Highway
Commission, 275 N.C. 229, 166 S.E.2d 649 (1969)). This Court neither re-weighs evidence nor assesses credibility of
witnesses. Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).
“[I]f there is competent evidence to support the findings, they are
conclusive on appeal even though there is plenary evidence to support contrary
findings.” Oliver v. Lane, 143
N.C. App. 167, 170, 544 S.E.2d 606, 608 (2001) (citation omitted). “The Commission may weigh the evidence and
believe all, none or some of the evidence.”
Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 428, 552 S.E.2d
269, 272, disc. rev. denied, 355 N.C. 211, 558 S.E.2d 868 (2001).
IV.
Disability
Defendant argues the trial court erred in finding as fact
and concluding as a matter of law that plaintiff met his burden of proving
disability and awarding him ongoing temporary total disability benefits. We disagree.
“In workers’ compensation cases, a claimant ordinarily has
the burden of proving both the existence of his disability and its degree.” Hilliard v. Apex Cabinet Co., 305 N.C.
593, 595, 290 S.E.2d 682, 683 (1982) (citing Hall v. Chevrolet Co., 263
N.C. 569, 575, 139 S.E.2d 857, 861 (1965)).
A plaintiff must show that he was incapable after his injury of earning
the same wages he had earned before his injury in the same or any other
employment and that the incapacity to earn pre-injury wages was caused by
the work-related injury. Id.
(citing Watkins v. Motor Lines, 279 N.C. 132, 181 S.E.2d 588
(1971)). A plaintiff may meet this
burden in one of four ways:
(1) the
production of medical evidence that he is physically or mentally, as a
consequence of the work related injury, incapable of work in any employment;
(2) the production of evidence that he is capable of some work, but that he
has, after a reasonable effort on his part, been unsuccessful in his effort to
obtain employment; (3) the production of evidence that he is capable of some
work but that it would be futile because of preexisting conditions, i.e., age,
inexperience, lack of education, to seek other employment; or (4) the
production of evidence that he has obtained other employment at a wage less
than that earned prior to the injury.
Russell
v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993) (internal citations omitted).
The Commission made only one finding of fact to support its
conclusion that plaintiff is disabled.
That finding of fact states:
12. Based
upon a review of the evidence in its entirety, it is determined that plaintiff
has not unjustifiably refused any job offer by defendant. Plaintiff remains under current treatment
for his psychiatric condition, and has not been released to return to work from
a psychiatric standpoint.
During
deposition, Dr. Hazlett testified as follows regarding plaintiff’s ability to
work and causation:
Q: Okay. And Doctor, do you have an opinion,
satisfactory to yourself and to a reasonable degree of psychiatric certainty,
that [plaintiff] is able to perform his past work that he was doing there at
Arvin Meritor?
A: He wouldn’t be able
to do that, absolutely not.
Q: And can you tell us
why that is?
A: I think, although I
am not the person who is the expert on this particular part of it, his medical
condition, but I also think his psychiatric status will not allow him to ever
do that again. It will just not happen.
Q: I asked you about
his past work there, at Arvin Meritor.
But at the present time, do you have an opinion, satisfactory to
yourself and to a reasonable degree of psychiatric certainty, that [plaintiff]
is, at this time, capable of doing any job in the nearby economy that exists in
substantial numbers, on a sustained basis, due to is problem?
A: Not at this point,
no.
Q: And could you just
give us a brief summary as to why you feel that way?
A: I think because he
still does not have normal sleeping and eating patterns, his emotions are not
anywhere nearly under control like they should be. His depression tends to rest
very close to the surface a lot. And
because he is feeling so hopeless and helpless about everything, and also
because of his medical issues that seem to be progressing and accumulating also
has that same kind of hopelessness about that, that puts him in the position of
not really being able to do that. Those
are the reasons.
. . . .
Q: [D]o you have an
opinion, satisfactory to yourself and to a reasonable degree of psychiatric
certainty, that the problems that [plaintiff] is having at this time, that you
have already given to us, was caused, aggravated, accelerated or made worse by
his work-related accident of 2-21-2002?
. . . .
A: Yes, I do.
Q: And what is that
opinion?
A: That this is
absolutely true, that it was made worse – it was actually precipitated – the
PTSD was precipitated by that accident, clearly, and his depression was
absolutely made worse by that particular accident.
Dr.
Hazlett testified on cross-examination:
Q: Would you encourage
[plaintiff] to try light-duty work or medium work, per Dr. Flek [sic] in her
Functional Capacity Evaluation?
A: I don’t know –
Q: If it was not in an
environment where it was extremely industrial?
A: He might try
something like that, but it would have to fit with something that he has in the
way of skills, and it would have to be able to be done with adequate treatment
of his symptomatology of his PTSD.
The Commission determines the weight and credibility to be
afforded to the evidence. Adams,
349 N.C. at 681, 509 S.E.2d at 414. The
Commission’s “findings of fact may be set aside on appeal only when there is a
complete lack of competent evidence to support them.” Click v. Pilot Freight Carriers, 300 N.C. 164, 166, 265
S.E.2d 389, 390 (1980). Even though
there may be substantial evidence to the contrary, competent medical evidence
was presented through the testimony of Dr. Hazlett that plaintiff was incapable
of working due to his psychiatric condition that was caused or aggravated by
his work-related injury. Russell,
108 N.C. App. at 765, 425 S.E.2d at 457.
This assignment of error is overruled.
V.
Medical Causation
Defendant argues the trial court erred in finding as fact
and concluding as a matter of law that plaintiff’s lower back condition was
causally related to his 21 February 2002 compensable injury. We disagree.
The Commission found as fact:
7. Dr. Stephen David,
plaintiff’s orthopedic surgeon, and Dr. Laura Fleck, plaintiff’s neurologist,
disagree on whether a causal relationship exists between plaintiff’s low back
condition and his February 21, 2002 work accident.
8. Based upon a review of the record evidence, along with medical evidence in its entirety, it is determined that greater weight be given to the opinion of Dr. David, which is that plaintiff’s low back problems were caused by, or aggravated/accelerated by his work-related accident of February 21, 2002.
Dr. David first saw plaintiff on 8 November 2002. Plaintiff’s chief complaint at that time was
neck pain. Plaintiff returned to Dr.
David on 20 December 2002 and complained of axial back pain as well as
continued neck pain. On 18 February 2003,
plaintiff returned to Dr. David and complained chiefly of low back pain. Plaintiff underwent a lumber MRI on 13 March
2003. Dr. David testified that the
study revealed spondylolisthesis, degenerative disc disease, and borderline
spinal stenosis. A second lumbar MRI
was performed in May 2004, which showed severe spinal stenosis and a small disc
protrusion at the L3-4 level and moderate spinal stenosis at the L4-5
level. Plaintiff was last seen by Dr.
David in June 2004. At deposition, Dr.
David testified that plaintiff’s “neck, arm and back problems” were caused,
aggravated, or accelerated by his 21 February 2002 work-related accident.
As noted, the Commission adjudicates the weight and
credibility of the evidence presented.
Even though competent evidence exists to support a contrary finding,
plaintiff presented competent medical evidence through the testimony of Dr.
David that his back condition was caused, aggravated, or accelerated by the 21
February 2002 injury. Id. This assignment of error is overruled.
Defendants argue the Commission erred in approving Dr.
Hazlett as an authorized treating physician and asserts plaintiff failed to
follow the statutory guidelines for obtaining authorization for Dr. Hazlett’s
services.
The Commission found as fact:
9. Plaintiff sought out
medical treatment on his own with Dr. Donald A. Hazlett, a psychiatrist. Plaintiff sought out this treatment due to
his dissatisfaction with the other doctors he had been sent to by defendant
regarding his psychiatric medical care.
10. Plaintiff has been under Dr. Hazlett’s care since May 23, 2002, and currently continues his treatment under Dr. Hazlett. Plaintiff had requested that the Commission approve his treatment with Dr. Hazlett within a reasonable time after he began his treatment with Dr. Hazlett. Plaintiff requested payment for this treatment by motion made September 30, 2002.
N.C. Gen. Stat. §97-25 (2005) provides:
Medical
compensation shall be provided by the employer. . . . The Commission may at any
time upon the request of an employee order a change of treatment and designate
other treatment suggested by the injured employee subject to the approval of
the Commission, and in such case the expense thereof shall be borne by the
employer upon the same terms and conditions as hereinbefore provided in this
section for medical and surgical treatment and attendance.
In Schofield v. Great Atl. & Pac. Tea Co., our
Supreme Court stated the language of the statute “clearly authorizes a change
of treatment upon the request of an employee, and presumably a change of treatment
would encompass a change of physician.”
299 N.C. 582, 590, 264 S.E.2d 56, 62 (1980). An injured employee must obtain approval of the Commission within
a reasonable time after he has selected a physician of his own choosing to
assume treatment. Id. at 593,
264 S.E.2d at 63. Defendant asserts
plaintiff had been treating with Dr. Hazlett for four months prior to seeking
the authorization and argues plaintiff did not seek authorization from the
Commission of Dr. Hazlett as a treating physician within a reasonable time.
“The Commission has discretion to approve an injured
employee’s request for approval of a physician. This Court will disturb the Commission’s determination on this
issue only upon a finding of manifest abuse of discretion.” Lakey v. US Airways, Inc., 155 N.C.
App. 169, 174, 573 S.E.2d 703, 707 (2002).
Defendant has failed to show the Commission abused its discretion in
finding a four month delay before plaintiff sought authorization of Dr. Hazlett
as a treating physician was reasonable.
This assignment of error is overruled.
VII.
Consideration of All Evidence
Defendant argues the Commission erred in failing to consider
all of the evidence from plaintiff’s numerous medical providers before making
its findings of fact. Defendant asserts
the Commission failed to make findings of fact concerning the opinions of Drs.
Broadhurst, Garber, Fitzgerald, Johnson, Rhodes, Dray, and Mr. Stone. We disagree.
“We have repeatedly held ‘it is reversible error for the
Commission to fail to consider the testimony or records of a treating
physician.’” Gutierrez v. GDX Auto.,
169 N.C. App. 173, 176, 609 S.E.2d 445, 448 (2005) (quoting Whitfield v. Lab
Corp. of America, 158 N.C. App. 341, 348, 581 S.E.2d 778, 784 (2003)), disc.
rev. denied, 359 N.C. 851, 619 S.E.2d 408 (2005). The Commission’s opinion and award contains specific findings
regarding evidence presented from the aforementioned physicians who treated
plaintiff for conditions related to his 21 February 2002 occupational
injury. However, the Commission found
as fact:
8. Based
upon a review of the record evidence, along with medical evidence in its
entirety, it is determined that greater weight be given to the opinion of
Dr. David, which is that plaintiff’s low back problems were caused by, or aggravated/accelerated
by his work-related accident of February 21, 2002.
. . . .
12. Based
upon a review of the evidence in its entirety, it is determined that
plaintiff has not unjustifiably refused any job offer by defendant. Plaintiff remains under current treatment
for his psychiatric condition, and has not been released to return to work from
a psychiatric standpoint.
(Emphasis
supplied). The Commission’s findings
show it considered all evidence, medical or otherwise, before it rendered its
decision. This assignment of error is
overruled.
VIII.
Conclusion
Competent medical evidence was presented through the
testimony of Dr. Hazlett to support the Commission’s finding and conclusion
that plaintiff was psychiatrically disabled.
Competent medical evidence was also presented through the testimony of
Dr. David that plaintiff’s back condition was caused, aggravated, or
accelerated by the 21 February 2002 work related injury.
Defendant has failed to show the Commission abused its
discretion in finding a four month delay before plaintiff sought the Commission
to authorize Dr. Hazlett as a treating physician was unreasonable. The Commission’s opinion and award shows it
considered all of the competent evidence before it rendered its decision. The opinion and award is affirmed.
Affirmed.
Judges WYNN and CALABRIA concur.