1. Workers' Compensation--timeliness--claim for further compensation
An Industrial Commission order that workers' compensation be resumed retroactively
was remanded for further findings where defendants contended that plaintiff's application for
further compensation was barred by the two-year-statute of limitations for change-of-condition
cases under N.C.G.S. § 97-47, but plaintiff also alleged that she was in compliance with all
rehabilitative services and this was a case still pending under N.C.G.S. § 97-25 rather than a
change-of-condition case. An employee's refusal to cooperate only bars her from receiving
compensation until her refusal ceases.
2. Workers' Compensation--close of case--unilateral Form 28B
The unilateral filing of a Form 28B did not foreclose an employee's right to further
compensation where the compensation had only been temporarily suspended. The filing of a
Form 28B with the Industrial Commission, combined with forwarding that form to the
employee, will preclude further recovery by the employee after two years only if the original
claim was closed to begin with.
3. Workers' Compensation--treatment--refusal to cooperate--reinstatement of
compensation--findings
A workers' compensation case was remanded to the Industrial Commission for further
findings where plaintiff was attempting to have her compensation reinstated and should have
been required to show that she was now willing to cooperate with medical treatment and
rehabilitative services, but the Commission instead concluded that defendants' own
noncompliance estopped them from claiming that the refusal continued, in effect placing the
burden on defendants. A prior order and award which applied to both parties does not change
the standard that plaintiff must meet the threshold burden of showing that she is now willing to
cooperate, and an order for plaintiff to cooperate has no bearing on whether she is now
cooperating.
4. Workers' Compensation--treatment--selection of physician--findings
A workers' compensation action was remanded for further findings on the issue of
whether a particular doctor was now the treating physician where the Industrial Commission
made no findings as to whether plaintiff sought authorization for her own physician within a
reasonable time. The mere fact that plaintiff was seeing this doctor at the time of the prior
opinion does not mean that she was authorized to do so.
Robin E. Hudson for plaintiff-appellee.
Young Moore and Henderson P.A., by Joe E. Austin, Jr. and Dawn
M. Dillon, for defendant-appellants.
LEWIS, Judge.
This appeal stems from a compensable work-related injury that
occurred over nine years ago. Although this case is mired in
procedural and factual complexities, a recitation of its convoluted
history is nonetheless necessary in order to fully understand the
issues and arguments raised on appeal.
Plaintiff worked for defendant Durham County General Hospital
as a licensed practical nurse. While attempting to lift a patient,
plaintiff strained her lower back on 7 August 1990. Dr. Robert
Lincoln, plaintiff's treating physician, concluded that her injury
was such that she could not return to the same employment, but was
still employable in sedentary labor. She and her employer
subsequently entered into a Form 21 agreement, under which
defendants would pay her $332.94 per week for "necessary weeks,"
beginning 8 August 1990. A supplemental agreement was thereafter
filed with the Industrial Commission, listing plaintiff as
temporarily totally disabled.
On 1 July 1991, defendants filed an application with the
Industrial Commission seeking to stop payment of compensation.
Defendants alleged plaintiff was not complying with prescribed
medical treatment and vocational rehabilitation. On 16 February
1993, Deputy Commissioner Tamara R. Nance authorized the
discontinuation of payments to plaintiff because she was being
uncooperative with the rehabilitative efforts offered by her
employer. Among other things, the deputy commissioner found thatplaintiff was resistant to physical therapy, refused to participate
in certain aspects of an eight-week spine rehabilitation program,
used her cane in a way inconsistent with her claimed injuries,
exaggerated her pain, and demonstrated no desire to ever return to
work. The deputy commissioner also found that, despite her being
capable of some employment, plaintiff refused to apply for jobs and
intentionally presented herself poorly at any job interviews
arranged for her. On appeal, the Full Commission specifically
incorporated many of the findings and conclusions made by the
deputy commissioner. Due to plaintiff's lack of cooperation, the
Full Commission, in its 12 April 1994 opinion and award, ordered
the discontinuation of compensation retroactively to 25 June 1991,
the date at which plaintiff's noncompliance began. The Commission
then gave defendants a credit for eighty-seven weeks of
compensation it had already paid to plaintiff. Curiously, the Full
Commission's opinion also included the following order:
Defendants shall provide and plaintiff shall
cooperate with, vocational rehabilitative
services, and any continued medical treatment
or physical therapy recommended by plaintiff's
doctors.
Plaintiff's subsequent appeal to this Court was dismissed because
she neglected to timely file the proposed record on appeal with the
Industrial Commission.
In the meantime, plaintiff stopped seeing Dr. Lincoln for her
back pain. Instead, over defendants' objection, plaintiff began
seeing Dr. Dianne Scott at Duke University Medical Center. Dr.
Scott diagnosed plaintiff with degenerative arthritis and concluded
plaintiff was in fact not employable. Following this newdiagnosis, plaintiff sought to have her compensation reinstated.
On 15 August 1994, she also petitioned the Commission to authorize
Dr. Scott as her new treating physician. Defendants asked
plaintiff to see Dr. Lincoln again for a second opinion. Plaintiff
refused to do so, and Dr. Lincoln stated that he no longer wished
to treat her due to her prior uncooperative demeanor. Defendants
then asked plaintiff to visit Dr. Lee Whitehurst for a second
opinion, but she again expressed reluctance and never saw Dr.
Whitehurst.
Unable to reach a resolution, plaintiff thereafter filed a
Form 33 request for hearing with the Industrial Commission on 23
February 1995, alleging she had a change of condition and was
currently complying with all vocational and rehabilitative efforts
being offered. In an opinion and award filed 3 April 1997, Deputy
Commissioner Pamela T. Young denied her application as being time-
barred because her change-of-condition petition was filed more than
two years after her last compensation check was received. The
deputy commissioner also denied plaintiff's request to have Dr.
Scott authorized as her treating physician. In doing so, the
deputy commissioner again noted plaintiff's uncooperative demeanor,
finding that she had failed to apply for suitable work and hadrefused to see the physicians provided by defendants. The deputy
commissioner also noted plaintiff's continued exaggeration of her
back pain, pointing out that plaintiff had been observed at Lowe's
a few weeks before her hearing walking with a faster gait than in
the past and without any noticeable limp, using her cane only to
point to objects and not for any ambulatory assistance.
On appeal, the Full Commission reversed. The Commission first
concluded this was not a change-of-condition case and thus the two-
year statute of limitations did not apply. The Commission then
concluded that, because defendants did not provide plaintiff with
the treatment recommended by Dr. Scott and others at Duke
University, the defendants were not in compliance with its earlier
12 April 1994 award, which ordered them to provide plaintiff with
continued medical treatment and rehabilitative services. Based
upon the defendants' own non-compliance, the Full Commissionconcluded defendants were estopped from alleging plaintiff's
continued non-compliance. Accordingly, it ordered the resumption
of compensation retroactively to 12 April 1994, the date of its
prior opinion. Finally, the Full Commission approved plaintiff's
request to authorize Dr. Scott as her treating physician. From
this 24 June 1998 opinion and award, defendants now appeal.
[1]At the outset, we must determine whether plaintiff's 23
February 1995 claim for further compensation was time-barred.
Final awards of benefits are reviewable based upon an employee's
change of condition, but only if the application for further
compensation is filed within two years from the issuance of the
last compensation check. N.C. Gen. Stat. § 97-47 (1991).
Defendants argue that, because plaintiff's last compensation check
was issued on 16 February 1993 and her change-of-condition
application was not filed until 23 February 1995, her claim for
further compensation is time-barred. We conclude that this is not
a change-of-condition case under section 97-47, but a case still
pending under section 97-25. Accordingly, the two year statute of
limitations does not apply.
Significantly, this entire litigation ensued from defendants'
application to suspend compensation benefits. Such suspension of
payments is permitted under section 97-25 upon the "refusal of the
employee to accept any medical, hospital, surgical or other
treatment or rehabilitative procedure." N.C. Gen. Stat. § 97-25
(Supp. 1998). However, an employee's refusal to cooperate only
bars her from receiving compensation until her refusal ceases. Sanhueza v. Liberty Steel Erectors, 122 N.C. App. 603, 608, 471
S.E.2d 92, 95 (1996), disc. review denied, 345 N.C. 347, 483 S.E.2d
177 (1997). An employee is entitled to resumption of her benefits
"upon a proper showing by [the employee] that [s]he is willing to
cooperate with defendants' rehabilitative efforts." Id. Although
plaintiff here alleged a change of condition in her Form 33 request
for hearing, she also alleged that she was currently in compliance
with all rehabilitative services. It is this latter allegation
that permitted her to seek the resumption of benefits here.
Accordingly, the Full Commission correctly concluded that this was
not a change-of-condition case.
[2]Defendants nonetheless argue that their filing of a Form
28B with the Industrial Commission, which purported to close the
case, effectively made this a change-of-condition case and required
plaintiff to apply for further compensation within two years.
Following the first deputy commissioner's award suspending
compensation to plaintiff, defendants filed a Form 28B with the
Commission to report the compensation they had paid plaintiff to
date. Form 28B includes the following notation and question:
NOTICE TO EMPLOYEES: If the answer to Item No.
16 [sic, should be 17] below is "Yes," this is
to notify you that upon receipt of this form
your compensation stops. If you claim further
compensation, you must notify the Commission
in writing within two (2) years from the date
of receipt of your last compensation check.
17. Does This Report Close the Case,
including final compensation payment? ________
(YES OR NO)
Apparently under the belief that the deputy commissioner's awardhad permanently suspended payments to plaintiff, defendants
answered this question in the affirmative and then filed the
completed form with the Industrial Commission. A copy was sent to
plaintiff for her signature. Plaintiff did not sign the form, but
returned it to defendants with a letter stating the form was
"premature." Defendants rely on Chisholm v. Diamond Condominium
Constr. Co., 83 N.C. App. 14, 348 S.E.2d 596 (1986), disc. review
denied, 319 N.C. 103, 353 S.E.2d 106 (1987), to suggest that, due
to Form 28B's explicit notice provision, the case was conclusively
resolved when they answered question seventeen in the affirmative,
filed the form with the Commission, and received no claim for
further compensation from plaintiff until more than two years
later. Defendants' reliance on Chisholm, however, is misguided.
In Chisholm, the employer and employee entered into a Form 21
agreement for compensation for "necessary weeks." Id. at 15, 348
S.E.2d at 597. Significantly, the "necessary weeks" period ended,
the employee received a final compensation check for the necessary
weeks, and the employee thereafter returned to work for a new
employer. Id. at 15, 348 S.E.2d at 598. The employer thereafter
filed a Form 28B with the Industrial Commission and sent a copy of
that form to the employee, who did not sign the form. Id. The
employee later petitioned for further compensation, but did not
allege any change of condition. Id. In concluding that the
employee could not pursue her claim for further compensation, this
Court remarked:
[T]he execution and filing of I.C. Form 28B in
fact closed plaintiff's case and terminatedhis claim for injuries arising out of the 10
July 1974 accident. Plaintiff's signature was
not a necessary element for the proper
execution of the form. It is sufficient that
the insurer gave plaintiff notice of the
closing and of his right to claim further
benefits after the closing by forwarding a
copy of Form 28B.
Id. at 17, 348 S.E.2d at 599 (citation omitted).
Defendants have taken this language in Chisholm out of
context. The filing of a Form 28B with the Industrial Commission,
combined with the forwarding of that form to the employee, will
preclude further recovery by the employee after two years -- but
only if the original claim was closed to begin with. In Chisholm,
the original claim was closed; the "necessary weeks" period had
expired and the employee had returned to work. By filing Form 28B,
the employer in Chisholm was simply notifying the employee that her
claim was closed and that she therefore only had a limited right to
further compensation. Here, on the other hand, the defendants
unilaterally tried to close the case by filing a Form 28B, even
though plaintiff's compensation had only been temporarily
suspended. Such unilateral efforts by the employer or its
insurance carrier have no effect in foreclosing an employee's right
to further compensation. Beard v. Blumenthal Jewish Home, 87 N.C.
App. 58, 63, 359 S.E.2d 261, 264 (1987), disc. review denied, 321
N.C. 471, 364 S.E.2d 918 (1988). Plaintiff's claim was never
closed, but was still pending upon a showing that she would comply
with medical and rehabilitative treatment. Accordingly,
defendants' argument is without merit.
[3]Having concluded that plaintiff's 23 February 1995 claimwas not time-barred, we now proceed to the substantive merits of
the Full Commission's opinion and award resuming plaintiff's
compensation. In doing so, we begin with a recitation of our
standard of review. In an appeal from the Industrial Commission,
our review is limited to two questions: (1) whether the findings of
fact are supported by the evidence; and (2) whether the conclusions
of law are supported by those findings. Barham v. Food World, 300
N.C. 329, 331, 266 S.E.2d 676, 678 (1980). With respect to the
first inquiry, the Commission's findings of fact are conclusive on
appeal so long as they are supported by any competent evidence,
even if evidence exists that would support contrary findings.
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413, reh'g
denied, 350 N.C. 108, ___ S.E.2d ___ (1998). Furthermore, the
ultimate fact-finding body is the Full Commission, not the original
deputy commissioner: "It is the [Full] Commission that ultimately
determines credibility, whether from a cold record or from live
testimony." Id. Thus, the fact that two separate deputy
commissioners and a previous panel of the Full Commission had found
plaintiff to be generally uncooperative (both before and after 12
April 1994) is of no consequence to this appeal so long as there is
some evidence in the record to support this panel of the Full
Commission's own findings and so long as those findings support its
ultimate award.
Here, the Full Commission's findings and conclusions do not
support its 24 June 1998 opinion and award. Accordingly, we
reverse and remand. As noted previously, through her 23 February1995 petition to the Commission that is the subject of this appeal,
plaintiff was attempting to have her compensation reinstated. To
do so, however, plaintiff was required to show that she was now
willing to cooperate with her employer's offers of medical
treatment and rehabilitative services. Sanhueza, 122 N.C. App. at
608, 471 S.E.2d at 95. However, the Full Commission never made any
finding that plaintiff was at any point willing to cooperate.
Instead, the Commission concluded that defendants' own non-
compliance "estopped [them] from claiming that plaintiff's refusal
continued." In effect, the Commission placed the burden on the
defendants to show they were in compliance with the original 12
April 1994 opinion and award, rather than with the plaintiff, as
Sanhueza requires. The original 12 April 1994 opinion and award
did order defendants to provide, and plaintiff to cooperate with,
vocational rehabilitative services and continued medical services.
But the fact that this order applied to both parties does not
change the relevant legal standard, namely, that plaintiff must
meet the threshold burden of demonstrating she is now willing to
cooperate before she is entitled to have her payments resumed.
Thus, the Full Commission's previous order for defendants to
provide medical and rehabilitative treatment was conditioned upon
plaintiff first showing she was now willing to cooperate.
We note that the Full Commission did make the following
finding relevant to plaintiff's cooperation: "Plaintiff's refusal
to cooperate with vocational rehabilitation efforts ended April 12,
1994 when she was ordered by the Industrial Commission tocooperate." This finding is simply not borne out by the evidence.
A mere order by the Industrial Commission for the plaintiff to
cooperate has no bearing on whether she is in fact now willing to
do so. Plaintiff cannot simply rely on the order; she must
affirmatively establish her present willingness to cooperate in
order for compensation to be resumed. Because the Full Commission
focused only on defendants' non-compliance and made no finding as
to plaintiff's own compliance, or lack thereof, we must remand this
case for further findings by the Industrial Commission.
[4]In light of the need to remand this case for a
determination as to whether plaintiff is presently willing to
cooperate with medical and rehabilitative treatment, it becomes
necessary to address defendants' other argument on appeal regarding
who is authorized to give plaintiff treatment in the first place.
In its 24 June 1998 opinion and award, the Full Commission approved
plaintiff's request to have Dr. Scott authorized as her treating
physician. Again, we hold that the Commission made insufficient
findings to support this award.
Generally speaking, "'an employer has the right, in the first
instance, to select the physician, surgeon or hospital to treat and
care for an injured employee.'" Schofield v. Tea Co., 299 N.C.
582, 586, 264 S.E.2d 56, 60 (1980) (quoting W. Schneider, 10
Workmen's Compensation Text § 2005 (3d ed. 1953)). Pursuant to
this right, the employer here authorized plaintiff to see Dr.
Lincoln. After Dr. Lincoln and plaintiff refused to continue their
physician-patient relationship, the employer subsequentlyauthorized plaintiff to visit Dr. Whitehurst. Plaintiff, however,
had begun seeing Dr. Scott in the meantime, despite her employer's
repeated objections. An injured employee does have the right to
procure her own physician, but only upon the Commission's approval.
Id. at 591, 264 S.E.2d at 62. Such a request for authorization
must be made within a reasonable time after associating that
physician. Id. at 593, 264 S.E.2d at 63. Here, plaintiff began
seeing Dr. Scott in June of 1991, but made no specific request for
authorization with the Commission until 15 August 1994, more than
three years after her visits began. Though we profess doubts as to
how a three-year delay could be reasonable, ultimately this is not
for us to determine. Rather, the Industrial Commission must make
specific findings as to whether approval was sought within a
reasonable time after her treatments with Dr. Scott began. Id. at
594, 264 S.E.2d at 64. The Full Commission made no such findings
here, requiring a remand for that determination.
Plaintiff relies on the fact that she was seeing Dr. Scott at
the time of the first hearing before the Full Commission, coupled
with the fact that the Commission's opinion and award at that time
specifically noted plaintiff had seen Dr. Scott, to suggest that
treatment with Dr. Scott was somehow “authorized” by the Commission
in its 12 April 1994 opinion. However, the mere fact that
plaintiff was seeing Dr. Scott at the time of the prior opinion
does not mean that she was authorized by the Commission to do so.
Accordingly, the Full Commission's conclusion in its 24 June 1998
opinion that Dr. Scott had been "authorized" by the original FullCommission award is unfounded. The question of Dr. Scott's
authorization was not even raised until plaintiff petitioned for
authorization on 15 August 1994, months after the earlier Full
Commission award.
In conclusion, we remand this case to the Full Commission for
specific findings regarding whether plaintiff is presently willing
to cooperate and, if so, when such willingness began. Such
willingness must be measured only in terms of plaintiff's
willingness to cooperate with her authorized physicians.
Accordingly, we also remand on the issue of whether Dr. Scott was
in fact an authorized physician. On remand, the Full Commission
must determine whether plaintiff's request for authorization was
made within a reasonable time after she began seeing Dr. Scott. If
not timely made, plaintiff's request for authorization necessarily
must be denied.
Reversed and remanded.
Judges JOHN and McGEE concur.
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