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NO. COA02-470
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2003
PHIL
S. TAYLOR,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 742438
BRIDGESTONE/FIRESTONE,
INC.,
Employer,
GALLAGHER
BASSETT SERVICES, INC.,
Carrier,
Defendants.
Appeal by plaintiff from opinion and award filed 18 January 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 11 February 2003.
Edwards
& Ricci, P.A., by Brian M. Ricci, for plaintiff appellant.
Cranfill,
Sumner & Hartzog, L.L.P., by David A. Rhoades and Jaye E. Bingham, for
defendant appellee.
BRYANT,
Judge.
Phil
S. Taylor (plaintiff) appeals from an opinion and award of the Full Commission
of the North Carolina Industrial Commission (the Commission) filed 18 January
2002 in favor of Bridgestone/Firestone, Inc. (Bridgestone) and Gallagher
Bassett Services, Inc. (collectively, defendants).
The
Commission made the following findings of fact, to which plaintiff assigns no
error:[Note 1]
1. . . .
[P]laintiff . . . [has] been employed as a first-stage tire builder
for[Bridgestone] . . . . While working for [Bridgestone], on or about [1 March
1997], plaintiff sustained a compensable injury by accident, namely a right
rotator cuff tear, arising out of and in the course of his employment.
. . . .
4. On [3
September 1997] and [13 October 1997], plaintiff was examined by Tally E.
Lassiter, Jr., M.D. [(Dr. Lassiter)], an orthopaedist, who recommended surgery
to repair plaintiff’s right torn rotator cuff. Consequently, plaintiff’s
rotator cuff was surgically repaired on [4 November 1997]. Thereafter,
plaintiff underwent physical therapy during his recuperation and returned to
work on or about [20 March 1998]. On [4 May 1998], Dr. Lassiter gave plaintiff
indefinite light-duty restrictions of no carrying or lifting greater than
twenty to forty (20-40) pounds and no activities above shoulder level.
5. Thereafter,
plaintiff did not return to Dr. Lassiter until [14 June 1999], which was over a
year from his last visit. Plaintiff complained of right shoulder pain. Dr.
Lassiter indicated that plaintiff had nearly full range of motion of both
shoulders, good strength and no instability. . . . Dr. Lassiter diagnosed right
shoulder strain, recommended physical therapy, prescribed Celebrex and
continued plaintiff’s light-duty restrictions.
6. On [6
October 2000], four months after the [deposition] of Dr. Lassiter [in this
matter], plaintiff returned to Dr. Lassiter with continued complaints for which
Dr. Lassiter prescribed Vioxx, continued light-duty restrictions and requested
that plaintiff return for follow up in six weeks.
7. On [17
March 1998], the parties entered into a partial settlement agreement whereby
defendants accepted compensability of plaintiff’s claim as of 20 March 1998. .
. .
8. An I.C.
Form 18M was forwarded to the Commission on behalf of plaintiff on [7December
1999], which was filed within the two year time period as specified in N.C.
Gen. Stat. [§] 97-25.1(i). By way of correspondence dated [23 December 1999,]
defendants denied plaintiff’s request for future medical treatment.
9. Plaintiff
continues to have right shoulder pain and difficulty related to his injury of
[1 March 1997], his age and current job duties. Plaintiff testified that his
right shoulder bothers him every day and that he has learned to live with pain
in order to continue to meet the duties of his employment. Between plaintiff’s
return to work in March 1998 and Dr. Lassiter’s deposition on [20 September
2000], a period of two and one-half years, plaintiff only sought treatment with
Dr. Lassiter on two occasions, [4 May 1998] and [14 June 1999].
The Commission also found as fact, to
which plaintiff did assign error:
10. The
Form 18M filed by plaintiff includes Dr. Lassiter’s statement that there is a
substantial risk that plaintiff will require additional medical care resulting
from his compensable injury. However, the greater weight of the evidence,
including Dr. Lassiter’s deposition testimony, indicates that there is not [] a
substantial risk that plaintiff will require future medical treatment as a
result of his injury. Although Dr. Lassiter testified that plaintiff’s age and
job duties could cause plaintiff to have additional shoulder problems requiring
additional treatment, Dr. Lassiter did not have an adequate understanding of
plaintiff’s job duties. Furthermore, the greater weight of the evidence
indicates that the likelihood of the risk of future medical treatment falls
short of the standard that the risk be substantial and related to the injury
itself and not additional difficulties arising from age or activities. . . .
Based
on these findings, the Commission concluded: “Plaintiff has failed to prove by
the greater weight of the evidence that there is a substantial risk for the
necessity of future medical treatment as a result of his compensable injury by
accident.”
The
evidence before the Commission came from the deposition testimony of plaintiff,
Bishop Tucker (Tucker), a Bridgestone safety engineer, and Dr. Lassiter,
plaintiff’s treating physician. Tucker testified that the job duties of a
first-stage tire builder, like plaintiff, required cutting rubber with a heated
knife on a tire assembly machine located about waist high and then placing the
cut rubber tire “carcasses,” which weighed ten to fifteen pounds each, on three
different racks located at shoulder, waist, and floor level. In an eight-hour
shift, plaintiff produced between 175 to 200 tires.
Dr.
Lassiter testified, based on his understanding of plaintiff’s job duties, that
in his opinion plaintiff had a “substantial risk” of needing future medical
treatment. Moreover, plaintiff’s original injury made it more likely that
plaintiff would need future medical treatment. On cross-examination, Dr.
Lassiter stated his understanding of plaintiff’s job was that it involved
bringing tires up and down from more or less ground level, or knee level, to
shoulder level. He was not aware that the knife used to cut the rubber was
heated, which makes cutting less stressful, and that if the weight of the tires
plaintiff was lifting was within the prescribed weight restrictions, it would
probably not cause undue harm. Dr. Lassiter was also confronted with other
facts from Tucker’s account of plaintiff’s job description. Even after being
confronted with the facts of plaintiff’s job description, Dr. Lassiter
maintained that plaintiff’s risk of future medical treatment was “substantial
to [physical therapy], inflammatories, injections it may be a risk, but not to
surgery.” Dr. Lassiter further testified that the cause of this risk was
plaintiff’s age and job duties, opining that, if plaintiff had a sedentary job
involving mostly desk work, he would not have a substantial chance of needing
future medical treatment. Dr. Lassiter also thought that, having had surgery,
“[i]f defendant had another job where he was lifting a moderate amount of
weight repetitively at his age,” he would have a substantial risk of needing
future medical treatment. On re-direct examination, Dr. Lassiter was asked
“because [plaintiff] had surgery and is doing the job that he’s doing now, that
gives him the substantial risk of needing additional treatment?” Dr. Lassiter
responded, “I would have to fall back and say he has a moderate risk of having
to have more treatment and problems with that shoulder . . . . There’s not much
way around it, unless you make him completely sedentary, in my opinion.”
________________________________
The dispositive issue is whether the Commission improperly combined the inquiries into whether plaintiff had a substantial risk of future medical treatment and whether that risk was directly related to his original compensable injury.
Plaintiff’s sole argument on appeal is the Commission’s finding of fact that the greater weight of the evidence “indicates that there is not [] a substantial risk that plaintiff will require future medical treatment as a result of his injury” is not supported by competent evidence, and, in turn, does not support the Commission’s conclusion of law. Appellate review of the Commission’s decisions is generally limited to whether “competent evidence supports the findings of fact and whether the findings support the Commission’s legal conclusions.” Parsons v. Pantry, Inc., 126 N.C. App. 540, 541, 485 S.E.2d 867, 868 (1997). Where, however, the Commission’s findings are based on “‘an erroneous view of the law or a misapplication of law, they are not conclusive on appeal.’“ Id. (quoting Simon v. Triangle Materials, Inc., 106 N.C. App. 39, 41, 415 S.E.2d 105, 106 (1992)).
“Subsequent to the establishment of a compensable injury under the North Carolina Workers’ Compensation Act, an employee may seek compensation under N.C. Gen. Stat. §97-25 for additional medical treatment when such treatment ‘lessens the period of disability, effects a cure or gives relief.’“ Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259, 523 S.E.2d 720, 723 (1999) (quoting Parsons, 126 N.C. App. at 541-42, 485 S.E.2d at 869). In deciding whether to enter an award allowing a plaintiff’s claim to remain open for future medical treatment, the Commission must determine whether there is a substantial risk of the necessity of future medical compensation. See N.C.G.S. §97-25.1 (2001). “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, 136 N.C. App. at 259, 523 S.E.2d at 723; see Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 184, 565 S.E.2d 209, 217-18 (2002); Parsons, 126 N.C. App. at 542-43, 485 S.E.2d at 869. Therefore, construing section 97-25.1 together with Reinninger and Parsons, once it is determined that the plaintiff has shown there is a substantial risk of the necessity of future medical treatment, “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, 136 N.C. App. at 259, 253 S.E.2d at 723. This presumption, sometimes called the Parsons presumption, helps to ensure that an employee is not required to reprove causation each time he seeks treatment for an injury already determined to be compensable. See Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869.
In ruling on a Form 18M seeking to keep open the possibility of future medical compensation under section 97-25.1, the Commission must therefore make a two-part inquiry: (1) whether the plaintiff can show he is at “substantial risk” of needing future medical treatment and (2) whether the defendants can prove any anticipated future medical treatment will not be reasonably related to the original compensable injury. The shifting burdens of proof make it essential for the Commission to delineate that it is giving the plaintiff the benefit of the rebuttable presumption on the issue of whether the treatment is directly related to the original injury. See Reinninger, 136 N.C. App. at 260, 253 S.E.2d at 724 (case remanded where Commission’s findings indicated a failure to give plaintiff the benefit of the presumption that medical treatment now sought was causally related to the compensable injury and better practice was for Commission to clearly delineate the presumption in its findings).
In this case, the findings of fact do not delineate between the two separate inquiries, and the Commission appears to have placed the burden of proof for both inquiries on plaintiff.[Note 2] The Commission found “the greater weight of the evidence . . . indicates that there is not a substantial risk that plaintiff will require future medical treatment as a result of his injury” and “the greater weight of the evidence indicates that the likelihood of the risk of future medical treatment falls short of the standard that the risk be substantial and related to the injury itself and not additional difficulties arising from age or activities.”[Note 3] The Commission then concluded “[p]laintiff failed to prove . . . that there is a substantial risk for the necessity of future medical treatment as a result of his compensable injury by accident.”
As the Commission combined the inquiries, we are unable to discern whether the Commission based its conclusion of law on a finding that: (1) there was no substantial risk of plaintiff needing future medical treatment or (2) any future treatment was the result of plaintiff’s age and job duties and could not be related to the original injury.[Note 4] As a result, the Commission’s conclusion appears to improperly place the burden of proof on plaintiff to show that future medical treatment is related to the original injury. See id. As noted in Reinninger, “[t]he better practice in these section 97-25 hearings is for the Commission to clearly delineate in its opinion and award that it is giving [p]laintiff the benefit of the Parsons presumption.” Id. Therefore, we vacate the opinion and award of the Commission and remand this case for rehearing and findings of fact as to whether: (1) there is a substantial risk of the necessity of future medical treatment and, if necessary, (2) defendants can overcome the presumption that any such future medical treatment is related to the original compensable injury.
Vacated and remanded.
Judge ELMORE concurs.
Judge HUNTER dissent.
NO. COA02-470
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2003
PHIL
S. TAYLOR,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 742438
BRIDGESTONE/FIRESTONE,
INC.,
Employer,
GALLAGHER
BASSETT SERVICES, INC.,
Carrier,
Defendants.
HUNTER,
Judge, dissenting.
I
respectfully dissent from the majority opinion which vacated and remanded the
Commission’s opinion and award based on the majority’s conclusion that the
Commission may have improperly placed the burden of proof on plaintiff to prove
that future medical treatment was related to the original injury.
In
deciding whether to order a defendant to pay for future necessary medical
compensation, the Commission must first determine whether there is a
substantial risk of the necessity of future medical compensation. N.C. Gen.
Stat. §97-25.1 (2001). If the Commission concludes that the plaintiff has shown
such substantial risk of the necessity of future medical compensation, then a rebuttable
presumption arises “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) (citing Pittman v. Thomas & Howard, 122 N.C. App.
124, 130, 468 S.E.2d 283, 286 (1996)). It is acknowledged that it is the better
practice for the Commission to specifically delineate between these two stages
of the inquiry in its findings and conclusions, clearly showing that it has
given the plaintiff the benefit of the presumption in the second stage. See
Reinninger, 136 N.C. App. at 260, 523 S.E.2d at 724. However, if the
Commission concludes that the plaintiff has failed to satisfy his initial
burden of proving that there is a substantial risk of future medical treatment,
then it is unnecessary for the Commission to even reach the second stage of the
inquiry. In this case, while some of the language used by the Commission in its
findings and conclusions may have blurred the lines between the two stages of
the inquiry, it is clear that the Commission found that plaintiff failed to
meet his initial burden, thus negating the need to even address the second
stage providing plaintiff with the benefit of the presumption. This is evident
by the following language included in the Commission’s finding of fact number
ten:
[T]he
greater weight of the evidence, including Dr. Lassiter’s deposition testimony,
indicates that there is not at [sic] a substantial risk that plaintiff will
require future medical treatment . . . . Furthermore, the greater weight of the
evidence indicates that the likelihood of the risk of future medical treatment
falls short of the standard that the risk be substantial . . . .
I
now turn to the determination of whether the Commission erred in concluding
that plaintiff “failed to prove by the greater weight of the evidence that
there is a substantial risk for the necessity of future medical treatment as a
result of his compensable injury by accident.” The Commission found the
following:
The
Form 18M filed by plaintiff includes Dr. Lassiter’s statement that there is a
substantial risk that plaintiff will require additional medical care resulting
from his compensable injury. However, the greater weight of the evidence,
including Dr. Lassiter’s deposition testimony, indicates that there is not at
[sic] a substantial risk that plaintiff will require future medical treatment
as a result of his injury. Although Dr. Lassiter testified that plaintiff’s age
and job duties could cause plaintiff to have additional shoulder problems
requiring additional treatment, Dr. Lassiter did not have an accurate
understanding of plaintiff’s job duties. Furthermore, the greater weight of the
evidence indicates that the likelihood of the risk of future medical treatment
falls short of the standard that the risk be substantial and related to the
injury itself and not additional difficulties arising from age or activities.
These difficulties are properly handled through claims for a change of
condition or a new condition.
The proper standard of review for this
finding of fact and the resulting conclusion of law is whether (1) there is
some competent evidence that supports the finding of fact; and (2) whether the
finding of fact supports the resulting conclusion of law. Parsons v.
Pantry, Inc., 126 N.C. App. 540, 541, 485 S.E.2d 867, 868 (1997).
Furthermore, if there is competent evidence that supports the Commission’s
findings, the existence of contrary evidence does not render those findings
inconclusive. Jones v. Candler Mobile Village, 118 N.C. App. 719, 721,
457 S.E.2d 315, 317 (1995).
In
the case at bar, the Commission acknowledged Dr. Lassiter’s initial opinion
that there was a substantial risk that plaintiff will require additional
medical care resulting from his compensable injury. However, the Commission
further found that this opinion was based on an erroneous view of plaintiff’s
job duties. After plaintiff’s actual job requirements were made clear to Dr.
Lassiter (i.e., being made aware that the knife used to cut the tires is heated
thus greatly reducing the force required to cut them; and that plaintiff only
had to lift tires from waist level, not from ground level), the doctor opined
that he “would have to fall back and say [plaintiff] has a moderate risk
of having to have more treatment and problems with that shoulder, despite the
restrictions.” (Emphasis added.)
Therefore,
I believe there is competent evidence in the record to support the Commission’s
finding that plaintiff failed to meet his initial burden of proving that there
was a substantial risk of future medical treatment. I acknowledge that there is
also competent evidence in the record to support a finding to the contrary.
However, this Court is bound to give deference to the findings of the
Commission, as “the Commission, and not [the appellate] Court, is ‘the sole
judge of the credibility of witnesses’ and the weight given to their testimony.”
Pittman v. Thomas & Howard, 122 N.C. App. at 129, 468 S.E.2d at 286
(quoting Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765,
425 S.E.2d 454, 457 (1993)). In addition to concluding that the Commission’s
finding is supported by competent evidence, we further conclude that this
finding supports the Commission’s conclusion that “[p]laintiff has failed to
prove by the greater weight of the evidence that there is a substantial risk
for the necessity of future medical treatment as a result of his compensable
injury by accident.”
Based
on the foregoing analysis, I would affirm the Commission’s opinion and award.
NOTES
1. Accordingly, these findings are deemed supported by competent evidence and are binding on appeal. See Watson v. Employment Sec. Comm’n, 111 N.C. App. 410, 412, 432 S.E.2d 399, 400 (1993).
2. The dissent concedes “some of the language used by the Commission in its findings and conclusions may have blurred the lines between the two stages of inquiry.” The dissent also excludes from its excerpt of the Commission’s finding those portions in which the Commission combines the separate inquiries without acknowledging the requisite shifting in the burden of proof.
3. The Commission’s finding that Dr. Lassiter did not have an accurate understanding of plaintiff’s job is immaterial as Dr. Lassiter maintained plaintiff was at substantial risk of needing future medical treatment even after being confronted with the facts from Tucker’s description of the job, opining only that if plaintiff was sedentary that it would reduce his risk of needing treatment.
4. The
evidence before the Commission does not clarify the findings as there is
evidence on both the issues of whether plaintiff was at substantial risk of
needing future medical treatment and whether that risk was directly related to
the original injury.