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authoritative.
NO. COA05-477
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
MARTHA FALLS CLARK,
Plaintiff-Employee,
v. North
Carolina Industrial Commission
I.C.
File No. 333197
THE
SANGER CLINIC, P.A.,
Defendant-Employer,
and
ITT HARTFORD INSURANCE
COMPANY, INC.,
Defendant-Carrier.
Appeal by plaintiff from an Opinion and Award filed 18 October
2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 November 2005.
Seth
M. Bernanke for plaintiff-appellant.
Morris
York Williams Surles & Barringer, LLP, by Susan H. Briggs and Keith B.
Nichols, for defendant-appellees.
BRYANT, Judge.
Martha Falls Clark (plaintiff) appeals from an Opinion and
Award of the North Carolina Industrial Commission (Full Commission) ordering
her former employer, the Sanger Clinic, and its insurance carrier, ITT Hartford
Insurance Company, (defendants) to continue paying plaintiff permanent total
disability benefits, provide all medical treatment arising from her compensable
injury by accident, provide modifications to plaintiff’s house or assist
plaintiff in seeking alternative housing, and awarding interest on unpaid
medical compensation.
Facts and Procedural History
Plaintiff was injured on 16 April 1993 while pushing a cart
transporting 600 to 800 pounds of equipment into an elevator. The wheel of the
cart became wedged in the threshold of the elevator, and in her attempt to
dislodge the wheel, plaintiff suffered an admittedly compensable injury to her
back. On 4 October 1999, the Full
Commission awarded plaintiff temporary total disability and permanent total
disability benefits, and, in part, ordered defendants to provide all medical
treatment arising from her injury by accident, including subsequent falls
resulting from her back injury causing dental problems and a knee injury.
This matter was initiated on 8 February 2001 when plaintiff
filed a Form 33 Request that Claim be Assigned for Hearing, claiming defendants
had failed to pay plaintiff benefits and had not modified plaintiff’s home as
previously ordered by the Industrial Commission. The claim came before Deputy Commissioner Amy L. Pfeiffer on 18
October 2001. Deputy Commissioner
Pfeiffer filed her Opinion and Award on 14 October 2002. Plaintiff and defendants filed a Notice of
Appeal to the Full Commission on 22 October 2002. The claim was heard by the Full Commission on 2 May 2003 and a
companion case was subsequently heard by the same panel of the Full Commission
on 2 March 2004. On 18 October 2004,
the Full Commission filed its Opinion and Award in this matter. Plaintiff appeals.
_________________________
Plaintiff argues the Full Commission erred: (I) by holding plaintiff’s arthritic
conditions in her knees are not compensable; (II) by holding plaintiff’s dental
problems caused by “dry mouth” syndrome are not compensable; (III) by failing
to specify treatment for plaintiff’s esophageal reflux, constipation and nausea
were compensable; and (IV) by failing to award plaintiff attorney’s fees. For the following reasons, we disagree and
affirm the Opinion and Award of the Full Commission.
Standard of Review
Review by this Court of a decision by the North Carolina
Industrial Commission is limited to the determination of “whether any competent
evidence supports the Commission’s findings of fact and whether [those]
findings . . . support the Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352
N.C. 109, 116, 530 S.E.2d 549, 553 (2000).
The Commission’s findings of fact are conclusive on appeal even where
there is contrary evidence, and such findings may only be set aside where there
is a “complete lack of competent evidence to support them.” Johnson v. Herbie’s Place, 157 N.C. App.
168, 171, 579 S.E.2d 110, 113 (2003) (citation omitted); see also Adams v.
AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Our review “goes no further than to
determine whether the record contains any evidence tending to support the
finding.” Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965). However, the Commission’s conclusions of law
are reviewed de novo. McRae
v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
I
Plaintiff first argues the Full Commission erred in holding
plaintiff’s arthritic conditions in her knees are not compensable. The Full Commission found that although
meniscal tears in plaintiff’s knees were related to falls, and therefore
compensable, treatment for plaintiff’s degenerative arthritis was not
compensable.
Plaintiff argues that, as the prior Opinion and Award
includes “problems caused by falls” as compensable conditions, it is not
plaintiff’s burden to continually prove that treatment for these problems is
compensable; instead, it is defendants’ burden to prove that the need for
treatment they dispute is not related. See
Parsons v. Pantry. Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997). However, in Parsons, the plaintiff
was suffering from the exact same complaint (headaches) for which she was
initially awarded medical expenses and future medical treatment. Id. at 542, 485 S.E.2d at 869. This Court held that requiring the plaintiff
to prove a causal relationship between her accident and her current headaches
in order to get further medical treatment ignored the prior award. Id.
“To require plaintiff to re-prove causation each time she seeks
treatment for the very injury that the Commission has previously
determined to be the result of a compensable accident is unjust and violates
our duty to interpret the Act in favor of injured employees.” Id. (Emphasis added). In the instant case, plaintiff is suffering
from degenerative arthritis, while at the time of the initial award plaintiff
suffered a compensable knee injury caused by falls related to her compensable
injury by accident. Thus, plaintiff’s
reliance on Parsons is misplaced.
Plaintiff also contends that even if the burden were
correctly placed, if a compensable injury “materially aggravates or
accelerates” the need for treatment, that need is also compensable. Little v. Anson County Sch. Food Ser.,
295 N.C. 527, 532, 246 S.E.2d 743, 746 (1978). Plaintiff relies on testimony by Dr. James Yates, Jr., who first
saw plaintiff on 22 October 1998, to support this argument.
Q: Do you have
an opinion within a reasonable medical probability as to whether her history of
falls and landing on the knee or twisting when she fell would have materially
aggravated, would or could have materially aggravated pre-existing arthritis of
the knee?
A: Yes, sir. I
absolutely believe that certainly is, is the case.
However,
plaintiff does not establish, and we are unable to find any indication in the
record before us, that she actually had a preexisting arthritic condition in
her knees prior to her 16 April 1993 compensable injury by accident.
There is ample, competent evidence of Record to support the
Full Commission’s findings of fact.
When asked whether there was a connection between torn or malpositioned
menisci and/or loose bodies in the knee and degeneration of the knee, Dr. Yates
answered “I don’t know. . . I don’t think its well-accepted in the orthopaedic
community, specifically those of us who primarily do knee surgery that a
long-standing mensical tear can cause arthritis of the knee . . . .” Dr. Yates further testified that it was not
uncommon for a woman of 50 years old to have severe arthritis in both knees,
“particularly in a big person, and she is a very large lady” and that there was
“no question at all that obesity is a risk factor for development of
osteoarthritis.” While there is
evidence of record to support a finding that plaintiff’s falls could have aggravated
her degenerative knee condition, there is also testimony of record that
plaintiff’s pre-existing obesity could have aggravated the degenerative changes
in her knees:
Q. And you
indicated, I believe, that she had fairly extensive degenerative changes in her
knee?
A. She really
does.
Q. And would
excessive weight aggravate that condition?
A. Obesity?
Q. Obesity.
A. Yes.
Q. And she was
obese when you first saw her. Is that right?
A. Yes.
The Full Commission is the ultimate finder of fact in a
workers’ compensation case. Adams,
349 N.C. at 681, 509 S.E.2d at 413.
“The Commission may weigh the evidence and believe all, none, or some of
the evidence.” Hawley v. Wayne Dale
Const., 146 N.C. App. 423, 428, 552 S.E.2d 269, 272 (2001). The Full Commission “may accept or reject
the testimony of a witness, either in whole or in part, depending solely upon
whether it believes or disbelieves the same.”
Anderson v. Northwestern Motor Co., 233 N.C. 372, 376, 64 S.E.2d
265, 268 (1951). Finding of Fact Number
18 is supported by competent evidence and in turn supports the Full
Commission’s conclusion that plaintiff’s degenerative arthritic condition and
treatment related thereto is not compensable.
This assignment of error is overruled.
II
Plaintiff similarly argues the Full Commission erred in holding
plaintiff’s dental problems caused by “dry mouth” syndrome are not
compensable. The Full Commission found
as fact:
Plaintiff also
saw thereafter Dr. Jakubek on many other occasions for treatment of “extensive
cavities” and to do other restorative treatment. These extensive problems could
have been caused initially by poor hygiene, by plaintiff being in a six-week
coma following her unrelated gastric bypass surgery, by dry mouth that was
possibly caused by medications taken by plaintiff for medical conditions, some
of which were and some were not related to the fall, or even from stones in the
salivary glands. Therefore, due to the tenuous nature of any causal
relationship between plaintiff’s compensable injury by accident and the need
for restorative treatment, the Full Commission hereby finds that Dr. Jakubek’s
restorative treatment, if not directly related to a fall by plaintiff, was
unrelated to plaintiff’s compensable back injury and is not compensable.
The
Full Commission then concluded as a matter of law that defendants were not
required to pay for restorative treatment unrelated to falls by plaintiff.
Again, there is competent evidence of Record supporting the
Full Commission’s findings. Dr. Joseph
T. Jakubek, a general dentist, testified regarding the cause of plaintiff’s
extensive dental problems. Dr. Jakubek
testified that plaintiff’s dental condition could have been caused by poor
hygiene, xerostomia (“dry mouth” syndrome) possibly brought on by plaintiff’s
medications, stones in her salivary glands, or the six weeks that plaintiff was
in a coma following her unrelated gastric bypass procedure in 1998. Dr. John Wilson, III, also testified that
“dry mouth” syndrome was a potential side effect of several of plaintiff’s
medications. However, there is no
testimony as to what actually caused plaintiff’s dental condition. While Dr. Wilson may have testified with
certainty that many of plaintiff’s medications have “dry mouth” syndrome as a
side effect, there is no testimony that plaintiff’s dental condition was caused
by “dry mouth” syndrome.
“To show that the prior compensable injury caused the
subsequent injury, the evidence must be such as to take the case out of the
realm of conjecture and remote possibility, that is, there must be sufficient competent
evidence tending to show a proximate causal relation.” Cooper v. Cooper Enters., Inc., 168
N.C. App. 562, 564, 608 S.E.2d 104, 106 (2005) (internal quotations
omitted). Based upon the testimony of
record, the Full Commission properly concluded that the causal relationship
between plaintiff’s compensable injuries and the need for restorative dental
treatment was tenuous. Finding of Fact
Number 21 is supported by competent evidence and in turn supports the Full
Commission’s conclusion that plaintiff’s restorative dental treatment is not
compensable. This assignment of error
is overruled.
III
Plaintiff also argues the Full Commission erred by failing
to specify treatment for plaintiff’s esophageal reflux, constipation and nausea
as compensable. “When [a] matter is
‘appealed’ to the full Commission . . ., it is the duty and responsibility of
the full Commission to decide all of the matters in controversy between the
parties.” Vieregge v. N.C. State
Univ., 105 N.C. App. 633, 638, 414 S.E.2d 771, 774 (1992). The only testimony before the Full
Commission regarding plaintiff’s esophageal reflux, constipation and nausea
came from Dr. Wilson. The Full
Commission made the following findings of fact regarding Dr. Wilson’s treatment
of plaintiff:
14. Upon
her temporary move to South Carolina in 1998, plaintiff presented to Dr.
Wilson, an internist, for medical management for chronic low back pain and
complications from recent surgery. Plaintiff presented to the physician while
she was recovering from the unrelated gastric bypass surgery, and she was noted
to be severely deconditioned. Because physical therapy had been suggested upon
her hospital discharge, Dr. Wilson sent plaintiff to physical therapy. This
therapy was due mostly to plaintiff’s severe deconditioning and complications
stemming from the gastric bypass surgery, and only in very small part to her
back. In fact, Dr. Wilson’s first medical note only references plaintiff’s
deconditioning due to surgery as the reason for physical therapy. This initial
course of physical therapy ordered by Dr. Wilson was unrelated to plaintiff’s
compensable back or knee conditions and is not compensable.
15. Dr.
Wilson, over the course of his treatment of plaintiff, treated plaintiff for
many unrelated medical conditions. These conditions include but are not limited
to restrictive lung disease, osteopenia, a hernia, and various illnesses such
as upper respiratory infections. None of the treatment for these conditions or
illnesses was related to plaintiff’s compensable conditions. However, any
treatment by Dr. Wilson that actually was related to her compensable back and
knee conditions, including but not limited to prescriptions for diet pills, was
reasonably necessary to effect a cure or give relief, and defendants are
therefore obligated to provide this treatment. It was reasonable for plaintiff
to seek treatment by Dr. Wilson to manage her medical care during the period of
time that she resided in South Carolina, and to the extent that treatment by
Dr. Wilson related to the conditions found compensable by the Full Commission,
defendants are responsible for payment of this treatment.
As in Issue II, supra, there is no testimony as to
what actually caused plaintiff’s esophageal reflux, constipation and
nausea. While Dr. Wilson may have
testified that many of plaintiff’s medications have esophageal reflux,
constipation and nausea as side effects, there is no testimony that these
conditions were causally related to plaintiff’s compensable injuries. Furthermore, Dr. Wilson testified that
plaintiff had “ample reason to have nausea, having had . . . the gastric
surgery, the complications from that, and sometimes pain medication.” Pursuant to the Full Commission’s award, if
plaintiff can establish that her esophageal reflux, constipation, or nausea,
are related to her compensable injuries, defendants would be obligated to
provide the treatment for those ailments.
This assignment of error is overruled.
IV
Plaintiff lastly argues the Full Commission erred by failing
to award plaintiff attorney’s fees pursuant to Section 97-88.1 of the North
Carolina General Statutes. Under
Section 97-88.1 the Industrial Commission may assess “the whole cost of the
proceedings including reasonable [attorney’s fees]” if the Commission determines
“any hearing has been brought, prosecuted or defended without reasonable
ground.” N.C. Gen. Stat. _ 97-88.1
(2003); see also, Hieb v. Howell’s Child Care Ctr., Inc., 123 N.C. App.
61, 69, 472 S.E.2d 208, 213 (1996) (where the Full Commission properly awarded
attorney’s fees upon finding defendants in violation of Industrial Commission
rules by terminating compensation without the Commission’s approval, and by
refusing to resume immediate payments following the Deputy Commissioner’s
order). “The decision of whether to
make such an award, and the amount of the award, is in the discretion of the
Commission, and its award or denial of an award will not be disturbed absent an
abuse of discretion.” Troutman v. White & Simpson, Inc., 121 N.C.
App. 48, 54-55, 464 S.E.2d 481, 486 (1995).
“An abuse of discretion results only where a decision is manifestly
unsupported by reason or . . . so arbitrary that it could not have been the
result of a reasoned decision.” Goforth
v. K-Mart Corp., 167 N.C. App. 618, 624, 605 S.E.2d 709, 713 (2004)
(internal quotations omitted).
In the instant case, the Full Commission concluded that
“neither party is entitled to attorney’s fees pursuant to N.C. Gen. Stat.
§§97-88 or 88.1.” However, the Full
Commission reiterated the award of plaintiff’s permanent total disability
compensation benefits subject to the attorney’s fees approved in the initial
Opinion and Award. Plaintiff argues the
Full Commission’s finding that “defendants’ defense of the issues addressed
herein was reasonable” is a legal judgment and thus cannot support the Full
Commission’s conclusion that she is not entitled to attorney’s fees. The Full Commission did make the following
findings of fact, which are not assigned as error by plaintiff and are
therefore binding upon this Court:
4. The
Full Commission ordered defendants to modify plaintiff’s house according to a
June 1997 plan devised by a rehabilitation technology consultant. However, as
of the date of the filing of the first Opinion and Award by the Full Commission
in February 1999, plaintiff was living out of the state. In addition, plaintiff
had her house on the market for about a year in approximately 1999 through
2000. Plaintiff did not return to her house until early 2001, and at that time
she did not contact defendants about beginning the modifications. Furthermore,
she was only back at her house for approximately one month before she filed the
Form 33 in the matter. For these reasons, the Full Commission finds it was not
unreasonable for defendants to have failed to follow through on the Full
Commission’s order to modify plaintiff’s house at that time.
. . .
22. Plaintiff
was seen at Miller Orthopaedic Clinic on several occasions in July and August
1997. These appointments were with Dr. Meade for treatment of knee pain
following a fall or falls. Plaintiff, through counsel, now argues that
defendants failed to pay for these medical expenses, although as of the date of
the deposition in this matter, defendants had not been billed by Miller
Orthopaedic Clinic for this treatment. . . .
23. Plaintiff
was also seen at Miller Orthopaedic Clinic twice in November 1999, and once in
2000. . . . However, it was not unreasonable for defendants not to have paid
for these evaluations and treatment, as plaintiff specifically informed the
medical care provider in question that the treatment was not related to
workers’ compensation. In fact, the medical notes from these visits report a
diagnosis of “displaced degenerative lateral meniscal tear right knee,” thereby
corroborating the nonwork-related status of these visits. In addition, as of
the date of the deposition of the representative from Miller Orthopaedic Clinic
on January 23, 2002, this medical care provider had not billed
defendant-carrier for any of these services. It was not until September 7, 2000
that plaintiff asked defendants for reimbursement for this medical
compensation. This treatment was for plaintiff’s degenerative condition and is
therefore not compensable.
Given the facts and circumstances of the instant case, we
are unpersuaded that defendants’ defense of plaintiff’s claims was necessarily
unreasonable. Further, we discern no abuse of discretion in the Full
Commission’s decision not to award attorney’s fees to either party. This assignment of error is overruled.
Affirmed.
Judges CALABRIA and JACKSON concur.