All opinions are subject to modification
and technical correction prior to official publication in the North Carolina
Reports and North Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NO. COA07-489
NORTH CAROLINA COURT OF APPEALS
Filed: 18 December
2007
KARYN WINDERS,
Employee,
Plaintiff-Appellee,
v. North
Carolina Industrial Commission
I.C.
File No. 846937
EDGECOMBE COUNTY HOME
HEALTH CARE,
Employer,
and
SEDGWICK CLAIMS MANAGEMENT
SERVICES,
Carrier,
Defendants-Appellants,
Appeal by defendants from opinion and award of the Full
Commission of the North Carolina Industrial Commission entered 5 February
2007 by Commissioner Bernadine S. Ballance.
Heard in the Court of Appeals 1 November 2007.
Edwards
and Ricci, P.A., by Roberta L. Edwards and Jonathan H. Winstead, for
plaintiff-appellee.
Teague,
Campbell, Dennis & Gorham, L.L.P., by Robert C. Kerner, Jr., for
defendants-appellants.
JACKSON, Judge.
Edgecombe County Home Health Care and Sedgwick Claims
Management Services (“defendants”) appeal the 5 February 2007 opinion and
award of the Full Commission of the North Carolina Industrial Commission in
favor of Karyn Winders (“plaintiff”).
For the reasons stated below, we reverse.
Plaintiff was working as a home health care nurse on 29 June
1998 when she injured her back attempting to catch her three hundred pound
patient who was falling off a bed. The
following day, plaintiff was treated by her family physician, Dr. Michael
Sunderman (“Dr. Sunderman”). He
recommended physical therapy. Plaintiff
called Dr. Sunderman on 15 July 1998 complaining of numbness and tingling in
both legs, and stated that physical therapy was not helping. He referred her to Dr. John Gorecki (“Dr.
Gorecki”) of Duke University Medical Center.
On 14 August 1998, plaintiff saw Dr. Gorecki for severe back
pain and numbness in her lower extremities.
On 7 October 1998, she underwent surgery that resulted in a two-level
fusion at L4-5 and L5-S1, with BAK cages and a bone graft. Plaintiff continued to experience severe
pain, ultimately having a spinal column stimulator installed in October
2000. Several surgeries followed the
implantation of the dorsal spinal column stimulator: (1) the pulse generator
was replaced on 27 August 2001; (2) the pulse generator and extension wire
were removed and a new radio frequency receiver with extension wires was
implanted on 5 February 2004; and (3) the stimulator was removed on
28 November 2005 and replaced with a rechargeable one.
By 12 January 1999, plaintiff was taking OxyCodone for her
pain. She reported better pain control
due to the medication. At her visit on
18 March 1999, Dr. Gorecki recommended pool therapy as part of an overall
physical therapy program and a gradual decrease of the previously prescribed
OxyCodone dosage.
Plaintiff was referred to the YMCA for pool therapy at a
30 March 1999 outpatient physical therapy evaluation at Nash General
Hospital. As of 2 August 1999,
plaintiff was enrolled in an aquatic exercise class at the YMCA. She attended sessions three days each week
for an hour per day. Dr. Gorecki
originally prescribed pool therapy for three months. Defendants stopped paying for the pool therapy after three
months, at which time plaintiff and her husband began paying for the classes.
On 7 October 1999, plaintiff again saw Dr. Gorecki and
complained of modest, dull, aching back pain which worsened with activity. He imposed physical restrictions such as no
lifting over ten pounds, and alternating between walking, sitting, and
standing. At her 8 February 2000
follow-up visit, plaintiff asked Dr. Gorecki about continuing aquatic
therapy. He told her that such therapy
was appropriate and that it “would always be useful for her.”
Plaintiff’s father built an in-ground, heated, enclosed pool[1]
at his home in October 2000 — about the time plaintiff’s spinal stimulator was
installed. Thereafter, plaintiff
traveled to her parents’ home three to five times per week to use the pool for
her therapy. She continued the same
exercise regimen she learned at the YMCA.
In June 2003, plaintiff and her husband purchased her
parents’ home. Since then, plaintiff
has tried to use the pool on a daily basis.
During the time she is in the pool, she is relatively pain-free. Her relief continues for about fifteen
minutes after she leaves the pool. Over
the next few hours, the pain gradually increases to its normal level. She gets more significant benefits from the
home pool as opposed to the YMCA aquatic therapy because the pool’s temperature
at the YMCA caused her to have back spasms. She maintains a warmer than normal
temperature in the home pool because she gets better pain relief when
exercising in warm water.
Throughout her treatment, plaintiff continued to see Dr.
Sunderman for medication management. On
26 October 2004, she asked Dr. Sunderman to prescribe home pool therapy,
including “cleaning, maintenance, and supplies.” Dr. Sunderman prescribed the therapy as requested because he
concurred with the request.
Plaintiff continued to experience back pain. On 12 August 2005, she was seen by a
physician’s assistant at Triangle Spine and Back Care Center. She stated that her pain had intensified
over the previous years and had not been relieved with the multiple treatments
she had tried. She did not want to try
any non-surgical treatments. She was
referred for a discogram to evaluate if surgery was an option.
A discogram was performed on 22 September 2005 and showed
that the BAK cages were in place and the fusion was solid. There was no anatomic reason to explain the
nature and extent of plaintiff’s pain.
Her muscle strength was normal.
These results were explained to plaintiff at a 13 October 2005 follow-up
visit with Dr. William F. Lestini (“Dr. Lestini”) of Triangle Spine and Back
Care Center.
Plaintiff filed a claim with the Industrial Commission on 27 October
2005, seeking reimbursement for heating her home pool, as well as authorization
for further examinations to determine if surgery was possible. A hearing was held on 3 January 2006 before
a Deputy Commissioner. The opinion and
award dated 17 May 2006 denied plaintiff’s claim for pool maintenance and
request for evaluation by one of two doctors.
Plaintiff appealed to the Full Commission.
The case was reviewed by the Full Commission on 16 November
2006. On 5 February 2007, the Full
Commission entered its opinion and award granting plaintiff pool therapy a
minimum of five times per week, including transportation, if necessary. Defendants were ordered to reimburse
plaintiff $6.85 for each day that plaintiff could not attend pool therapy away
from home in order to maintain her home pool.
Defendants appeal.
Defendants first argue that the Full Commission erred in
finding that plaintiff was entitled to pool therapy for a minimum of five days
per week. We agree.
“Appellate review of an award from the Industrial Commission
is generally limited to two issues: (1) whether the findings of fact are
supported by competent evidence, and (2) whether the conclusions of law are
justified by the findings of fact.”
Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005)
(citing Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d
374, 379 (1986)).
Although it is well-established that the Industrial
Commission is the sole judge of the credibility of the witnesses and the
evidentiary weight to be given their testimony, findings of fact by the
Commission may be set aside on appeal when there is a complete lack of
competent evidence to support them.
Young
v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000)
(internal citations omitted). The
Commission’s conclusions of law are reviewed de novo. Griggs v. Eastern Omni Constructors,
158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).
Defendants contend that there was no competent evidence
that pool therapy was warranted in that
plaintiff’s pain relief was too minimal to meet the statutory definition of
“medical compensation.”
We
disagree.
The North Carolina Workers’ Compensation Act requires
employers to provide medical compensation to workers “who suffer disability by
accident arising out of and in the course of their employment.” Henry v. Leather Co., 234 N.C. 126,
127, 66 S.E.2d 693, 694 (1951); see N.C. Gen. Stat. §97-25 (2005). “Medical compensation” is defined as
medical, . . .
and rehabilitative services, and medicines, sick travel, and other treatment,
including medical and surgical supplies, as may reasonably be required to
. . . give relief and for such additional time as, in the judgment of
the Commission, will tend to lessen the period of disability[.]
N.C.
Gen. Stat. §97-2(19) (2005).
The Industrial Commission found as fact that pool therapy is
a medical treatment or service “which is reasonably required to either provide
relief, effect a cure, and/or lessen Plaintiff’s disability[.]” This finding of fact is supported by the
deposition testimony of Drs. Sunderman and Lestini.
Dr. Sunderman testified that he sometimes prescribes such therapy when patients are significantly restricted in activity due to pain; it is a way to keep them moving. It keeps them flexible and toned. He testified that the therapy is intended to provide relief for plaintiff’s back pain symptoms, that it gives her some relief, and that it maintains her tone and hopefully keeps her more physically capable. Dr. Sunderman prescribed pool therapy, albeit at plaintiff’s request, because in her situation, it “ma[de] sense.” He stated that part of her ongoing prescription was continued pool therapy.
Dr. Lestini testified that he sometimes recommended pool
therapy for his patients as a way to get them mobilized. It is often used for people who are very
deconditioned and probably would not tolerate a land-based exercise
program. Although he had not reviewed
plaintiff’s pain management plan, he thought that if she was unable to tolerate
physical therapy, pool therapy would be a reasonable backup.
Further, “relief from pain is a legitimate aspect of the
‘relief’ anticipated by future medical treatment under N.C. Gen. Stat.
§97-25[.]” Simon v. Triangle
Materials, Inc., 106 N.C. App. 39, 44, 415 S.E.2d 105, 108, disc. rev.
denied, 332 N.C. 347, 421 S.E.2d 154 (1992). Plaintiff testified that she was relatively pain-free while in
the pool and remained so for a short period after getting out of the pool. She continued that her pain gradually
increased over a period of a few hours to its normal level. Dr. Sunderman testified that plaintiff
experienced brief but significant pain relief with pool therapy – that it was
one of the few things that provided a source of improvement and pain relief for
her. Dr. Sunderman further testified
that there were benefits to even brief periods of pain relief. He stated that for a patient who has chronic
pain, even brief periods of pain relief were psychologically beneficial.
Based upon the expert testimony and relevant case law, we
hold that there is competent evidence in the record to support the Industrial
Commission’s finding of fact that pool therapy is a compensable medical
treatment or service. This finding of
fact in turn supports the Full Commission’s conclusion that plaintiff is
entitled to pool therapy.
Defendants next contend that there is no competent evidence
from medical authorities supporting the award of “a minimum” of five days per
week of pool therapy. We agree.
The Full Commission concluded that defendants are obligated
to provide pool therapy for a minimum of five days per week. The following findings of fact relate to the
number of plaintiff’s pool therapy sessions, and state in pertinent part:
10. Over
a three-month period, Plaintiff attended sessions at the YMCA three days a week
for an hour per day.
. . . .
14. [O]n February 8, 2000, . . . Dr. Gorecki’s medical note indicates aquatic therapy is appropriate and “would always be useful for her.”
15. [Plaintiff]
testified she would travel to her parents’ home between three and five times a
week to use the pool.
. . . .
20. In June 2003, Plaintiff and her husband bought her parents’ home. Since that time she has tried to use the pool on a daily basis.
As to finding of fact number 14, there is no medical note
dated 8 February 2000 in the record before this Court to support it. Finding of fact number 15 is a recitation of
plaintiff’s testimony. “[R]ecitations
of the testimony of each witness do not constitute findings of
fact by the trial judge, because they do not reflect a conscious choice between
the conflicting versions of the incident in question which emerged from all the
evidence presented.” In re Green,
67 N.C. App. 501, 505 n. 1, 313 S.E.2d 193, 195 (1984) (emphasis in
original). Therefore, these two
findings of fact are not supported by competent evidence in the record and are
not binding upon this Court. This
leaves only two relevant findings of fact.
Both show the number of pool therapy sessions it was plaintiff’s habit
to engage in, but not the number of sessions a doctor ordered as reasonably
necessary to alleviate plaintiff’s pain.
The Full Commission made no findings of fact that a doctor
had prescribed a minimum of five pool therapy sessions per week. The record evidence does not support such a
finding of fact. Dr. Sunderman agreed
in his deposition that plaintiff continues to need pool therapy on a daily
basis, but his prescription, written at plaintiff’s request, did not specify a
number of therapy sessions per week.
Although the Full Commission’s findings of fact indicate that Dr.
Gorecki ordered pool therapy on 3 August 1999, the medical note for that date
in the record before this Court does not address pool therapy. After Dr. Gorecki allegedly prescribed pool
therapy in August 1999, plaintiff received such therapy only three times each
week. As the Commission’s findings of
fact are not supported by competent evidence that plaintiff required pool
therapy for a minimum of five days per week, they cannot support its conclusion
of law mandating that result.
Finally, defendants argue that the maintenance costs of a
home pool on days that plaintiff has “valid reasons” for not going to outside
pool therapy are not “medical compensation.”
We agree.
The Full Commission first concluded that plaintiff had
failed to prove by the greater weight of the evidence that she is entitled to
medical compensation for the gas, electricity, and supplies used to heat and
maintain her home pool. Several
findings of fact are relevant to this conclusion of law. Such findings include, in pertinent part:
9. As
of August 2, 1999, Plaintiff was enrolled in an aquatic exercise class at the
YMCA.
. . . .
11. Plaintiff testified that after the first three months of aqua therapy at the YMCA, Defendant-carrier stopped paying for the classes. Plaintiff and her husband then began to pay for the aqua therapy classes.
. . . .
13. Dr.
Gorecki’s notes do not indicate that Plaintiff should receive water therapy
from a pool heated to a certain temperature.
. . . .
17. [Plaintiff]
performs in [her home] pool the same regimen she learned during aqua therapy at
the YMCA.
. . . .
30. Although being able to perform pool therapy at home in a heated pool is beneficial to Plaintiff, there is insufficient evidence from which to find that pool or aqua therapy at the YMCA is not also beneficial.
Although there may be some evidence in the record to support
contrary findings of fact, “it has long been settled that in a Work[ers’]
Compensation case the findings of fact by the Industrial Commission . . . are
conclusive on appeal when supported by competent evidence, even though there is
evidence that would have supported findings to the contrary.” Hollman v. City of Raleigh, 273 N.C.
240, 245, 159 S.E.2d 874, 877 (1968).
Based upon the evidence before this Court, we hold that there is
sufficient competent evidence to support these findings of fact.
Here, after concluding that plaintiff had failed to prove
that she was entitled to medical compensation for pool maintenance and denying
plaintiff medical compensation for pool maintenance, the Full Commission made
an exception “for the limited purposes authorized herein.” The specific exception was that “Defendants
shall . . . reimburse Plaintiff at the rate of six dollars and eighty-five
cents per day for any day within the authorized weekly period that Plaintiff is
required to use her home pool for therapy for valid reasons given.”
The Full Commission found as fact:
28. A
twenty-five thousand BTU heater is hooked up to the [pool’s] filtration
system. Electricity to run the pump
costs about thirty-five dollars a month.
The pool also requires between nine hundred to a thousand gallons of gas
a year. The average annual cost of gas
for the pool is eighteen hundred twenty-five dollars. The maximum cost of chemicals is two hundred fifty dollars a
year. So the total cost of heating and
maintaining the pool is approximately two thousand five hundred dollars a year,
which amounts to approximately six dollars and eighty-five cents per day.
Although
this finding of fact is supported by competent evidence in the record, it
supports only partially the conclusion of law that “Defendants shall reimburse
Plaintiff at the rate of six dollars and eighty-five cents per day for any day
within the authorized weekly period that Plaintiff is required to use her at
home pool for valid reasons given.”
This conclusion of law is inconsistent with the conclusion of law that
plaintiff had failed to prove she is entitled to medical compensation for the
maintenance of her personal pool.
Further, the Full Commission failed to give any guidance as to what
“valid reasons” would support plaintiff’s use of her home pool instead of the
YMCA or similar facility.
Because we hold that the Full Commission erred in awarding
plaintiff a greater number of pool therapy sessions per week than that
supported by the evidence, and in awarding maintenance costs on days plaintiff
has “valid reasons” to use her home pool, we reverse.
Reversed.
Judges TYSON and STROUD concur.
[1]The pool varies from three to five and
one-half feet deep and is surrounded by several feet of concrete decking with
several chairs placed around it.