1. Workers' Compensation--employer's right to control medical treatment--once
accept employee's claim as compensable
The full Industrial Commission did not err in a workers' compensation case by its
conclusion that defendant employer had the right to control plaintiff employee's medical
treatment because an employer's right to direct medical treatment, including the right to select
the treating physician, attaches once the employer accepts the claim as compensable under
N.C.G.S. § 97-25.
2. Workers' Compensation--employer's right to control medical treatment--acceptance
of liability through methods other than filing Form 60 or Form 21
The full Industrial Commission did not err by concluding that defendant employer
accepted plaintiff employee's claim as compensable prior to plaintiff's carpal tunnel surgeries,
entitling defendant to direct plaintiff's medical treatment, because: (1) defendant could have
accepted liability for medical expenses through methods other than the filing of a Form 60 or
Form 21 since plaintiff was not yet disabled under the Workers' Compensation Act; (2)
defendant verbally notified plaintiff prior to surgeries that it was accepting plaintiff's claim; (3)
defendant thereafter also sent plaintiff's counsel written notification of its acceptance; and (4)
plaintiff even understood acceptance had occurred when she admitted that going into surgery, she
knew her medical expenses would not be covered by workers' compensation.
3. Workers' Compensation--employer's right to direct medical treatment--exceptions
to rule not met
Although there are exceptions to the employer's general right to direct medical treatment
including when the employer has failed to direct medical treatment in a prompt and adequate
manner, in the case of an emergency, and if plaintiff's selection of physicians is approved by the
Industrial Commission, plaintiff employee did not fall under these three exceptions and did not
have the right to select the surgeon to perform plaintiff's carpal tunnel surgeries, because: (1)
defendant acted promptly and adequately; (2) plaintiff has nowhere maintained that her surgeries
were an emergency, and the fact that she canceled her initial scheduled surgery and waited nearly
a month to have surgery with another doctor lends no support to such a contention; and (3) the
full Commission denied authorization of plaintiff's choice of doctors when it concluded that
plaintiff did not have good cause to refuse treatment by the authorized doctor.
4. Workers' Compensation--disability compensation--failure to make specific findings
The full Industrial Commission erred in a workers' compensation case by denying
plaintiff employee's claim for disability compensation, because the Commission failed to make
any specific findings to allow the Court of Appeals to determine whether the Commission denied
disability compensation on a lawful or unlawful basis.
Patterson, Harkavy & Lawrence, L.L.P., by Henry N. Patterson,
Jr. and Martha A. Geer, for plaintiff-appellant.
Robinson & Lawing, L.L.P., by Jolinda J. Babcock, for
defendant-appellees.
LEWIS, Judge.
Plaintiff has been employed as a sewer for defendant Lane
Upholstery ("Lane") since 1969. Over a period of several years,
plaintiff began experiencing numbness in her hands. However, she
never reported any of these problems to either her employer or her
regular physician. Finally, in the Spring of 1997, the pain
intensified, and she reported the pain and numbness to her
gynecologist, Dr. Paul Caporossi. Dr. Caporossi referred her to
Dr. John L. de Perczel, a general orthopedic surgeon.
Prior to seeing Dr. de Perczel, plaintiff informed various
supervisors at work about her symptoms and her upcoming appointment
with Dr. de Perczel. No one objected to her seeing Dr. de Perczel.
Anne Story, Lane's Director of Human Resources, however, did inform
plaintiff that, if her condition was work-related, she would need
to seek treatment from a physician approved by Lane.
On 6 May 1997, plaintiff presented herself to Dr. de Perczel.
Dr. de Perczel diagnosed her as having bilateral carpal tunnel
syndrome, caused by her work. Upon learning of this diagnosis,
Lane arranged for plaintiff to see its physician, Dr. Robert Hart
of the Hart Industrial Clinic. Dr. Hart eventually concurred in
Dr. de Perczel's diagnosis. He assigned plaintiff to light duty
work pending further evaluation. On 3 June 1997, Dr. Eric Hart,also of the Hart Industrial Clinic, referred plaintiff to Dr. Carl
Michael Nicks for a surgical evaluation of her condition. Dr.
Nicks recommended that plaintiff undergo carpal tunnel release
surgery. Dr. Nicks scheduled this surgery for 12 June 1997.
Two days before the scheduled surgery, plaintiff unilaterally
canceled her appointment with Dr. Nicks. She informed her employer
that she wished to have Dr. de Perczel perform the surgery instead.
She stated that she had no specific objection to Dr. Nicks; she
just felt more comfortable with Dr. de Perczel. Ms. Story
explained to plaintiff that Lane would not pay for the surgery
because only Dr. Nicks had been authorized to perform the surgery
-- Dr. de Perczel was not one of its authorized physicians.
On 1 July 1997, Lane's claims adjuster wrote a letter to
plaintiff's counsel, advising plaintiff that Lane had accepted her
claim as compensable. The letter again informed plaintiff that
Lane had only authorized the carpal tunnel release surgery with Dr.
Nicks and thus would not voluntarily pay for her surgery with Dr.
de Perczel. A copy of this letter was forwarded to the Industrial
Commission.
Notwithstanding her employer's refusal to pay for the surgery,
plaintiff presented herself to Dr. de Perczel on 7 July 1997. Two
days later, on July 9, Dr. de Perczel performed a right carpal
tunnel release, and a few weeks later, he followed up by performing
a carpal tunnel release on the left hand. Following the first
surgery, Dr. de Perczel ordered plaintiff to cease work. She has
not returned to work since then.
In addition to refusing to pay for her surgery with Dr. dePerczel, Lane has also refused to provide plaintiff with
any
disability compensation. This apparently stems from conflicting
treatment plans. Dr. Nicks testified that, had he performed the
carpal tunnel surgeries, he would have assigned plaintiff to light
duty work, but would not have removed her from work for more than
seven days. Thus, under his plan, plaintiff would not have been
entitled to any disability compensation, only reimbursement for the
costs of her medical treatment. See N.C. Gen. Stat. § 97-28 (1999)
("No compensation . . . shall be allowed for the first seven
calendar days of disability resulting from an injury, except
[medical expenses]."). Dr. de Perczel, however, opined that
plaintiff was unable to perform any work whatsoever and thus
removed plaintiff from work indefinitely. Under his plan,
therefore, plaintiff would be entitled to some disability
compensation.
Plaintiff filed a Form 33 Request for Hearing with the
Industrial Commission, seeking the authorization of Dr. de Perczel,
reimbursement of the medical expenses associated with the carpal
tunnel surgeries, and disability compensation. The deputy
commissioner concluded Lane never had the authority to control
plaintiff's medical treatment because it had never officially
accepted liability. As such, the deputy commissioner awarded
plaintiff past and future medical expenses, as well as temporary
total disability benefits in the amount of $252.15 per week from
the period of 9 July 1997 forward.
The Full Commission reversed. It concluded that Lane had
indeed accepted liability and thus had the right to controlplaintiff's medical treatment. It further denied plaintiff's
request to have Dr. de Perczel authorized as her treating
physician. Accordingly, the Full Commission denied her claims for
medical expenses and disability compensation. Plaintiff now
appeals to this Court.
[1]Plaintiff first contests Lane's right to select her
treating physician for purposes of her carpal tunnel release
surgeries. In particular, plaintiff argues that Lane had no right
of control prior to the surgeries because it never formally
accepted liability until it filed a Form 60 after the surgeries.
We reject this argument.
Generally speaking, the employer has the right to direct the
medical treatment for a compensable injury. Schofield v. Tea Co.,
299 N.C. 582, 586, 264 S.E.2d 56, 60 (1980). This includes the
right to select the treating physician. Id. However, neither our
courts nor our legislature has ever explicitly articulated at what
point this right of the employer attaches. The Commission treated
the employer's acceptance of liability as the triggering point. We
agree with this proposition and therefore hold that an employer's
right to direct medical treatment (including the right to select
the treating physician) attaches once the employer accepts the
claim as compensable.
As soon as the employee claims he or she is entitled to
compensation, the employer has the right to require the employee to
submit to an examination with one of its authorized physicians.
N.C. Gen. Stat. § 97-27(a) (1999). One of the implicit purposes of
this requirement is to enable the employer to ascertain whether theinjury is work-related or not and thus whether the claim is indeed
compensable. At this point, however, the statute only confers upon
the employer the right to require its employee to submit to an
examination. We do not believe this limited right can be equated
with a right to direct medical treatment in general. Were that the
case, an employer could ostensibly force its employee to undergo
treatment with one of its physicians and then still turn around and
deny liability. We do not believe our Legislature intended such a
result by enacting section 97-27.
Instead, we conclude the right to direct medical treatment is
triggered only when the employer has accepted the claim as
compensable. N.C. Gen. Stat. § 97-25 confers upon the employer the
duty to provide all medical compensation. This medical
compensation includes the providing of medical supplies, services,
and treatment. N.C. Gen. Stat. § 97-2(19). But until the employer
accepts the obligations of its duty, i.e., paying for medical
treatment, it should not enjoy the benefits of its right, i.e.,
directing how that treatment is to be carried out.
[2]Having concluded that Lane's right to direct medical
treatment and thereby select plaintiff's carpal tunnel surgeon
attached upon acceptance of liability, we must next address when
that acceptance occurred here. Plaintiff claims Lane's acceptance
did not occur until it filed a Form 60 with the Industrial
Commission -- after her carpal tunnel surgeries had been performed.
Lane counters that acceptance occurred prior to the surgeries, when
it notified plaintiff both orally and in writing that it was
treating her claim as compensable. The Commission ultimatelyagreed with Lane, as do we.
Our statutes nowhere set forth exclusive methods of accepting
liability. The employer's filing of a Form 21 agreement (if
approved by the Commission) has repeatedly been held to constitute
an acceptance of liability. See, e.g., Kisiah v. W.R. Kisiah
Plumbing, 124 N.C. App. 72, 77, 476 S.E.2d 434, 436 (1996), disc.
review denied, 345 N.C. 343, 483 S.E.2d 169 (1997). Similarly,
directly paying the employee, coupled with the filing of a Form 60,
is also sufficient to accept liability. N.C. Gen. Stat. § 97-
18(b); Calhoun v. Wayne Dennis Heating & Air Cond., 129 N.C. App.
794, 798, 501 S.E.2d 346, 349 (1998), disc. review denied, 350 N.C.
92, 532 S.E.2d 524 (1999). But these forms are premised upon there
being a disability. Here, as of the time of the surgeries, this
was a "medical only" claim. Plaintiff was only seeking medical
expenses associated with her surgeries; she was not yet seeking
disability compensation. In particular, plaintiff had not yet
missed any days of work and, although she was assigned to light
duty work, she was still earning the same wages as she was before.
Therefore, plaintiff was not yet "disabled" under our Workers'
Compensation Act. See generally N.C. Gen. Stat. § 97-2(9)
(defining disability as the incapacity to earn the same wages).
And because she was not yet "disabled," Lane was not required to
file a Form 60 or Form 21. As such, Lane could have accepted
liability for medical expenses through methods other than the
filing of these forms.
Lane did so here. Prior to the surgeries, Lane verballynotified plaintiff it was accepting her claim. Lane therea
fter
also sent plaintiff's counsel written notification of its
acceptance. Plaintiff even understood that acceptance had
occurred, as she admitted that, going into surgery, she knew her
medical expenses would not be covered by workers' compensation. On
these facts, we conclude that Lane acted sufficiently to accept
liability prior to the carpal tunnel surgeries. Cf. Craver v.
Dixie Furniture Co., 115 N.C. App. 570, 579-80, 447 S.E.2d 789, 795
(1994) (holding that employer's verbal acceptance of liability was
sufficient to estop it from later denying liability before the
Commission); Parker v. Thompson-Arthur Paving Co., 100 N.C. App.
367, 371, 396 S.E.2d 626, 629 (1990) (same). Accordingly, Lane had
the right at that time to direct plaintiff's medical treatment,
including selecting her surgeon.
[3]Although Lane had the right to select the surgeon to
perform the carpal tunnel surgeries, this right is not unlimited.
There are a few recognized exceptions to the employer's general
right to direct medical treatment. First, an employee may procure
his own physician when the employer has failed to direct medical
treatment in a prompt and adequate manner. Schofield, 299 N.C. at
587, 264 S.E.2d at 60. Here, there is no question that Lane acted
promptly and adequately. As soon as plaintiff informed Lane of Dr.
de Perczel's carpal tunnel diagnosis, Lane directed plaintiff to
the Hart Industrial Clinic for further examinations and treatment.
And it continued to do so right up until plaintiff's surgeries.
Second, an employee may procure treatment on his or her own in thecase of an emergency. N.C. Gen. Stat. § 97-25. Plaintiff has
nowhere maintained that her carpal tunnel surgeries were an
emergency. Moreover, the fact that she canceled her 12 June 1997
scheduled surgery with Dr. Nicks and waited nearly a month to have
the surgery with Dr. de Perczel lends no support to such a
contention.
Third, even in the absence of an emergency or the employer's
failure to direct timely and adequate treatment, an employee still
may select his or her own physician if such selection is approved
by the Commission. Id.; Schofield, 299 N.C. at 591, 264 S.E.2d at
62. The employee's request for approval may even be filed after
the treatment has been procured, just as long as the request is
filed within a reasonable time thereafter. Schofield, 299 N.C. at
592-93, 264 S.E.2d at 63. Doing so, however, involves some element
of risk for the employee. Approval of an employee-selected
physician is left to the sound discretion of the Commission.
Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 207,
472 S.E.2d 382, 387, cert. denied, 344 N.C. 629, 477 S.E.2d 39
(1996).
Here, the Full Commission denied authorization of Dr. de
Perczel based upon two grounds. First, it concluded that
plaintiff's request for authorization was not filed within a
reasonable time because her request came after her surgeries with
Dr. de Perczel. As just stated, this reasoning is flawed; the
request for approval need not be filed before treatment is actually
administered. Were this the only ground upon which the Commissiondenied authorization, we would be constrained to hold that the
Commission abused its discretion. However, the Commission also
denied authorization on the ground that plaintiff did not have good
cause to refuse treatment by Dr. Nicks. We find no abuse of
discretion as to this ground. The evidence reflects Dr. Nicks was
both well-qualified and competent to perform the carpal tunnel
release surgeries. In fact, plaintiff never questioned his
abilities. Her only explanation for wanting Dr. de Perczel was she
"didn't like Dr. Nicks's attitude and the way he did not explain
stuff to [her]." (Tr. at 38). Given that this was her only
reason, we cannot say the Commission abused its discretion in
refusing to authorize treatment with Dr. de Perczel. Accordingly,
we conclude the Commission properly denied plaintiff's claims for
medical expenses associated with her carpal tunnel surgeries.
[4]Plaintiff also contests the Commission's denial of her
claim for disability compensation. Specifically, she contends the
Commission made insufficient findings to support its denial of her
claim. We agree and therefore vacate and remand that portion of
the opinion and award denying plaintiff's disability compensation
claim.
In denying her claim, the Commission summarily concluded, "Any
inability by plaintiff to earn wages subsequent to 9 July 1997 [the
date of her first carpal tunnel surgery with Dr. de Perczel] was
not related to her occupational disease and she is, therefore, not
entitled to any disability compensation after that date." The
Commission, however, never made any findings explaining its basis
for denying disability compensation. Perhaps the Commission basedits denial on plaintiff's refusal to undergo medical treatment with
Dr. Nicks. If so, this is not a valid reason for denial. Although
medical expenses are not covered when an employee refuses to see an
authorized physician, disability compensation may not be cut off
unless the Commission has first ordered the employee to undergo
treatment with that physician. N.C. Gen. Stat. § 97-25; Deskins v.
Ithaca Industries, Inc., 131 N.C. App. 826, 832, 509 S.E.2d 232,
236 (1998). No such prior order by the Commission existed here.
Alternatively, the Commission might have based its denial of
disability compensation on Dr. Nicks' treatment plan, in which he
determined that plaintiff would not have missed more than a week of
work due to her injury. If that were the case, this basis would be
lawful. See N.C. Gen. Stat. § 97-28 ("No compensation . . . shall
be allowed for the first seven calendar days of disability
resulting from an injury, except [medical expenses]."). But
because the Commission never made any specific findings, we simply
do not know whether it denied disability compensation on a lawful
or unlawful basis. We therefore remand to the Commission to
reconsider plaintiff's claim for disability compensation and to
make explicit findings with respect to this claim.
Affirmed in part, vacated in part and remanded.
Judges WYNN and HUNTER concur.
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