Appeal by plaintiff and defendants from Opinion and Award
entered 19 December 2000 by the North Carolina Industrial
Commission and appeal by plaintiff from Opinion and Award entered
19 February 2001 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 14 February 2002.
Bollinger & Piemonte, PLLC, by George C. Piemonte, for
plaintiff-appellee/cross-appellant.
Morris York Williams Surles & Barringer, LLP, by John F.
Morris and Keith B. Nichols, for defendant-appellants/cross-
appellees.
CAMPBELL, Judge.
Tanner Masonry (Employer) and USF&G Insurance (collectively,
Defendants) appeal from a 19 December 2000 opinion and award of the
North Carolina Industrial Commission (the Commission).
Specifically, Defendants contend the Commission erred in concludingthat Daniel Pomeroy (Plaintiff) is “entitled to reasonably
necessary medical treatment related to his compensable injury by
accident for so long as such treatment tends to effect a cure,
provide relief or lessen the period of disability.” Plaintiff
likewise appeals from the Commission's 19 December 2000 opinion and
award, contending the Commission erred in finding and concluding
that “Plaintiff's current lack of employment or inability to work,
if any, is not causally related to his injury of June 14, 1994 and
plaintiff has not undergone a substantial change of condition
related to his injury by accident.” Plaintiff also appeals from a
19 February 2001 opinion and award in which the Commission
concluded that it did not have jurisdiction to rule on Plaintiff's
motion for reconsideration.
On 14 June 1994, Plaintiff, while working as a mason foreman
for Employer, was injured when he fell six to eight feet from a
scaffold and landed on a bolt, which penetrated his lower back.
Plaintiff was taken to Lake Norman Regional Medical Center, where
Dr. Marcus Wever, a board-certified general surgeon, performed
surgery on Plaintiff's back, during which the puncture wound to
Plaintiff's back was fully explored, irrigated, cleaned of debris
and closed. Following surgery, Plaintiff remained in the hospital
for a few days. On 15 June 1994, Dr. William A. Kutner, an
orthopaedic surgeon, examined Plaintiff and found no obvious
fractures associated with Plaintiff's injuries. Plaintiff was
discharged from the hospital on 18 June 1994. Following his discharge from the hospital, Plaintiff was
examined by Dr. Wever in the outpatient clinic on several
occasions. On 17 August 1994, after Plaintiff's final follow-up
appointment, Dr. Wever released him to return to work the following
week with no restrictions or permanent partial impairment
indicated. Dr. Wever opined that Plaintiff had reached maximum
medical improvement consistent with his injury and indicated that
Plaintiff would “be seen in follow-up on an as-needed basis.”
Following his injury, Plaintiff also received physical therapy for
his back. On 26 August 1994, Plaintiff's physical therapist
instructed him to return to work the following Monday (29 August
1994) with no restrictions or permanent partial impairment
indicated.
On 27 June 1994, Plaintiff and Defendants entered into an
Industrial Commission Form 21 Agreement for Compensation for
Disability (Form 21 Agreement) stating that Plaintiff “sustained an
injury by accident arising out of and in the course of [his]
employment [with Employer]” on 14 June 1994, and that the accident
resulted in a “back injury.” The Form 21 Agreement was approved by
the Commission on 5 August 1994. Under the terms of the Form 21
Agreement, Defendants paid Plaintiff compensation at the rate of
$346.68 per week for temporary total disability from 14 June 1994
to 28 August 1994. Defendants also paid for Plaintiff's medical
treatment in the total amount of $9,055.10.
On 29 August 1994, Plaintiff returned to work for Employer at
full duty without restrictions. Plaintiff's return to work wasnoted on an Industrial Commission Form 28B executed and filed by
Defendants on 29 August 1994. The Form 28B also noted that
Plaintiff's final compensation check was forwarded to him on 29
August 1994. The Form 28B did not indicate the weekly wage at
which Plaintiff had returned to work. By its terms, this Form 28B
did not purport to close Plaintiff's case, for it appears that
additional medical expenses were yet to be paid by Defendants.
On 24 October 1994, Defendants filed a second Form 28B
notifying Plaintiff that his case was closed and that he had two
years from the date of receipt of his final compensation check in
which to notify the Commission, in writing, that he claimed further
benefits. See N.C. Gen. Stat. § 97-47 (2001). This second Form
28B also did not indicate the weekly wage at which Plaintiff had
returned to work.
In December 1994, Plaintiff stopped working for Employer and
moved to New York. Plaintiff returned to work in New York two or
three weeks later as a mason for H & R Masonry, where he worked for
approximately one year. While working for H & R Masonry, Plaintiff
earned lower wages than he had earned while working for Employer.
Plaintiff attributed his lower wages to the economic recession
affecting New York at the time. According to Plaintiff's
testimony, he stopped working for H & R Masonry because he could
not perform as expected due to continuing problems with his back.
Plaintiff was also employed in New York by Yancey Conant
Masonry (Yancey), where he worked as a mason for four or five
months. While working for Yancey, Plaintiff earned wages equal tothose he had earned while working for Employer prior to moving to
New York. Plaintiff stopped working for Yancey in December of
1995. According to Plaintiff, he had to stop working for Yancey
due to back problems. Plaintiff was unemployed from December 1995
until this case was heard by the Deputy Commissioner on 28 January
1998.
On 10 January 1996, Plaintiff was examined in New York by Dr.
Jalal Sadrieh, an orthopaedic surgeon. Dr. Sadrieh ordered an x-
ray of Plaintiff's lumbar spine, which showed no evidence of
foreign material and that Plaintiff's bony structures and disc
spaces were normal. Dr. Sadrieh was given an oral history of
Plaintiff's back problems, but did not review any records from
Plaintiff's treatment for his compensable back injury in North
Carolina. Dr. Sadrieh diagnosed Plaintiff with “acute and subacute
low back sprain with sciatica and possible disc herniation.” Dr.
Sadrieh referred Plaintiff to physical therapy and recommended that
he undergo an MRI. On 19 February 1996, Plaintiff returned to Dr.
Sadrieh. Plaintiff had not been to physical therapy, nor had
plaintiff undergone an MRI, because Defendants had refused to
authorize insurance coverage for such medical treatment. Plaintiff
was last examined by Dr. Sadrieh on 19 February 1996.
On 21 February 1996, Plaintiff was examined by Dr. Vincent
Sportelli, a chiropractor. Plaintiff remained under the care of
Dr. Sportelli until 4 October 1996. During this time, Plaintiff
was seen by Dr. Sportelli on a total of forty-two occasions. In
his deposition testimony, Dr. Sportelli opined that Plaintiff hada sixty-five percent (65%) permanent partial disability to the
pelvic girdle causally related to the injury suffered by Plaintiff
on 14 June 1994. However, the record shows that Dr. Sportelli's
opinion was based solely on the history provided by Plaintiff and
the Plaintiff's condition at the time Dr. Sportelli examined him.
Dr. Sportelli had no access to the records from Plaintiff's 14 June
1994 back injury and subsequent treatment in North Carolina. As a
result, Dr. Sportelli was under the impression that Plaintiff's
earlier back injury was caused by a fifteen to twenty foot fall,
while the records from North Carolina make it clear that Plaintiff
only fell six to eight feet. Defendants refused to authorize
insurance coverage for Plaintiff's treatment by Dr. Sportelli.
On 22 February 1996, Plaintiff filed an Industrial Commission
Form 18 Notice of Accident to Employer alleging injury to his back
resulting from the 14 June 1994 accident. Plaintiff did not
specifically allege a change in condition or specifically state a
claim for additional medical compensation under N.C. Gen. Stat. §
97-25. Nevertheless, we hold that Plaintiff's act of filing the
Form 18 was sufficient to give the Commission the requisite written
notice of Plaintiff's claims for further compensation due to change
in condition under N.C.G.S. § 97-47 and additional medical
compensation under N.C.G.S. § 97-25. See Apple v. Guilford County,
321 N.C. 98, 101, 361 S.E.2d 588, 591 (1987); Chisholm v. Diamond
Condominium Constr. Co., 83 N.C. App. 14, 17, 348 S.E.2d 596, 599
(1986). On 1 April 1996, Defendants filed an Industrial Commission
Form 61 denying Plaintiff's claim for additional benefits on the
grounds that his current condition was not the result of the 14
June 1994 compensable back injury. On 26 November 1996, Plaintiff
requested a hearing on his claim for additional disability
compensation and further medical treatment.
Plaintiff's claim was heard before Deputy Commissioner Haigh
on 28 January 1998. Following Deputy Commissioner Haigh's
departure from the Commission, Plaintiff's claim was transferred to
Deputy Commissioner Taylor for decision. On 4 February 2000,
Deputy Commissioner Taylor entered an opinion and award denying
Plaintiff's claim. Deputy Commissioner Taylor found as fact and
concluded as a matter of law that “Plaintiff's current condition is
not causally related to his June 14, 1994 accident.” Plaintiff
appealed to the Full Commission.
On 19 December 2000, the Full Commission entered an opinion
and award finding as fact that “[p]laintiff's current lack of
employment or inability to work, if any, is not causally related to
his June 14, 1994 accident.”
The Full Commission also entered the following pertinent
conclusions of law:
4. Plaintiff's current lack of employment or
in ability [sic] to work, if any, is not
causally related to his injury of June 14,
1994 and plaintiff has not undergone a
substantial change of condition related to his
injury by accident.
5. However, since plaintiff was injured prior
to July 5, 1994, plaintiff's claim for
additional medical compensation is not barredby N.C.G.S. § 97-47 or because defendants
rebutted the presumption of disability.
Plaintiff is therefore entitled to reasonably
necessary medical treatment related to his
compensable injury by accident for so long as
such treatment tends to effect a cure, provide
relief or lessen the period of disability.
Based on its findings of fact and conclusions of law, the Full
Commission denied Plaintiff's claim for additional disability
compensation under N.C.G.S. § 97-47. However, the Commission
ordered that “Defendants shall pay for plaintiff's reasonably
necessary medical treatment related to his compensable injury by
accident for so long as such treatment tends to effect a cure,
provide relief or lessen the period of disability.” The
Commission's opinion and award did not order Defendants to pay for
any specific medical treatment that Plaintiff had received.
On 9 January 2001, Plaintiff filed a motion for
reconsideration with the Commission requesting an order directing
Defendants to pay for the medical treatment provided to Plaintiff
in New York by Dr. Sadrieh and Dr. Sportelli. Plaintiff also
requested an award of attorney's fees pursuant to N.C. Gen. Stat.
§ 97-88.1. On 26 January 2001, Defendants filed notice of appeal
from the Commission's 19 December 2000 opinion and award. On 19
February 2001, the Commission entered an opinion and award
concluding that it no longer had jurisdiction to rule on
Plaintiff's motion for reconsideration due to Defendants having
already filed notice of appeal in this Court. On 21 February 2001,
Plaintiff filed notice of appeal from both the 19 December 2000
opinion and award and the 19 February 2001 opinion and award. The standard of review of appellate courts on appeal from an
opinion and award of the Industrial Commission is limited to
determining whether there is any competent evidence to support the
Commission's findings of fact and whether such findings of fact
support the Commission's conclusions of law. McLean v. Roadway
Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982); Bailey v.
Sears Roebuck & Co., 131 N.C. App. 649, 652, 508 S.E.2d 831, 834
(1998). On appeal, this Court does not weigh the evidence and
decide the issue on the basis of its weight; rather our duty goes
no further than to determine whether the record contains any
evidence tending to support the Commission's findings of fact, even
when there is evidence to support a contrary finding of fact.
Timmons v. N.C. Dep't of Transp., 351 N.C. 177, 181, 522 S.E.2d 62,
64 (1999) (citing Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d
411, 414 (1998)). “Furthermore, the Commission is the sole judge
of the credibility of the witnesses as well as how much weight
their testimony should be given.” Bailey, 131 N.C. App. at 653,
508 S.E.2d at 834. Additionally, although the Commission “is not
required . . . to find facts as to all credible evidence . . . the
Commission must find those facts which are necessary to support its
conclusions of law,” Peagler v. Tyson Foods, Inc., 138 N.C. App.
593, 602, 532 S.E.2d 207, 213 (2000), and the Commission must “make
specific findings with respect to crucial facts upon which the
question of plaintiff's right to compensation depends.” Gaines v.
Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859
(1977).
Additional Compensation Under N.C.G.S. § 97-47
We first address Plaintiff's assignments of error to the
Commission's denial of his claim for additional compensation on the
grounds of a change in condition under N.C.G.S. § 97-47.
Plaintiff first contends that the Commission erred in finding
that he had returned to work at his pre-injury wages and concluding
that the From 21 presumption of disability had been rebutted by
Defendants. We disagree.
Plaintiff sustained an injury by accident arising out of and
in the course of his employment with Employer on 14 June 1994.
Defendants admitted liability and entered into a Form 21 Agreement
with Plaintiff for compensation, under which Plaintiff received
$346.68 per week until 29 August 1994, when he returned to work.
The Form 21 Agreement was approved by the Commission and became an
award of the Commission enforceable, if necessary, by court decree.
Chisholm, 83 N.C. App. at 17, 348 S.E.2d at 598 (citing
Biddix v.
Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777 (1953)). Upon
approval by the Commission, the Form 21 Agreement raised the
presumption that Plaintiff was disabled under the Worker's
Compensation Act.
Watkins v. Motor Lines, 279 N.C. 132, 138, 181
S.E.2d 588, 592 (1971)
. The Form 21 presumption of disability ends
when the employee regains his or her pre-injury capacity to earn
wages.
Kisiah v W.R. Kisiah Plumbing, 124 N.C. App. 72, 81, 476
S.E.2d 434, 439 (1996).
Here, Plaintiff returned to work for Employer at full duty
without restrictions on 29 August 1994. There is no indication inthe record that Plaintiff returned to work at wages less than those
he was receiving prior to his compensable back injury. On 29
August 1994, Plaintiff's final weekly compensation payment was
forwarded to him for the period during which he was disabled. On
24 October 1994, Employer filed a Form 28B with the Commission
informing Plaintiff that his case was closed as of 29 August 1994.
The Form 28B does not indicate the weekly wage at which Plaintiff
returned to work, but the record does not show that Plaintiff
objected to the Form 28B or otherwise asserted that he had returned
to work at wages less than those he was receiving prior to the 14
June 1994 accident. The filing of the Form 28B presumptively ended
Plaintiff's claim for disability benefits as of 29 August 1994.
See Watkins, 279 N.C.
at 137, 181 S.E.2d at 592
. The evidence of
record supports the Commission's finding that Plaintiff had
returned to work at his pre-injury wages and the conclusion that
Plaintiff had regained his pre-injury earning capacity. Thus, the
Commission did not err in concluding that Plaintiff's Form 21
presumption of disability had been effectively rebutted by
Defendants
.
Once an award of the Commission becomes final, the Commission
may, “upon its own motion or upon application of any party in
interest on the grounds of a change in condition,” review such
award and “on such review may make an award ending, diminishing, or
increasing the compensation previously awarded.” N.C.G.S. § 97-47.
Our case law defines a “change in condition” under N.C.G.S. § 97-47
as a condition occurring after a final award of compensation thatis “different from those existent when the award was made[,]”
Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 247, 354
S.E.2d 477, 480 (1987), and results in a substantial change in the
physical capacity to earn wages.
Bailey, 131 N.C. App. at 654, 508
S.E.2d at 835 (citing
Pratt v. Central Upholstery Co., Inc., 252
N.C. 716, 722, 115 S.E.2d 27, 33-34 (1960)). This “change in
condition” can consist of either
[1] a change in the claimant's physical
condition that impacts his earning capacity,
[2] a change in the claimant's earning
capacity even though claimant's physical
condition remains unchanged, or [3] a change
in the degree of disability even though
claimant's physical condition remains
unchanged.
Blair v. American Television & Communications Corp., 124 N.C. App.
420,
423, 477 S.E.2d 190, 192 (1996) (internal citations omitted).
In all instances, the party seeking modification of an award due to
a “change in condition” has the burden to prove that the new
condition is directly related to the original compensable injury
that is the basis of the award the party seeks to modify.
Id.
In this case, Plaintiff claims that his physical condition has
deteriorated since he returned to work on 29 August 1994 to the
point that he is physically incapable of earning any wages. In
support of his claim, Plaintiff testified that he continued to
suffer from back pain after his return to work for Employer, that
the condition of his back progressively worsened during his two
stints of employment in New York, and that his back eventually
deteriorated to the point that he was unable to work. Plaintiff
also offered the testimony of Dr. Sadrieh and Dr. Sportelli. Dr.Sadrieh examined Plaintiff approximately nineteen months after his
14 June 1994 compensable back injury. Based on the oral history
given by Plaintiff, and the fact that Plaintiff denied having
suffered any other injuries to his back, Dr. Sadrieh opined that
the 14 June 1994 compensable injury was the cause of Plaintiff's
condition at the time Dr. Sadrieh examined him in early 1996.
Dr. Sportelli did not examine Plaintiff for the first time
until approximately 20 months after the 14 June 1994 injury. Dr.
Sportelli's diagnosis was also based solely on the oral history
provided by Plaintiff and Plaintiff's condition at the time. Dr.
Sportelli opined that Plaintiff's condition was directly and
causally related to his compensable injury on 14 June 1994. Dr.
Sportelli further opined that Plaintiff had a sixty-five percent
(65%) permanent partial disability to his pelvic girdle.
Despite the testimony of Plaintiff, Dr. Sadrieh and Dr.
Sportelli, the Commission found that “[p]laintiff's current lack of
employment or inability to work, if any, is not causally related to
his June 14, 1994 accident.” Plaintiff assigned error to this
finding of fact. The question for this Court is whether the record
contains
any competent evidence to support this finding of fact,
even if there is evidence to support a contrary finding of fact.
See Timmons, 351 N.C. at 181, 522 S.E.2d at 64.
Based on competent evidence in the record, the Commission
found as fact (in Findings Nos. 10, 11 and 12) that Plaintiff
returned to work for Employer at full duty without restrictions on
29 August 1994 and remained there for approximately three months,that Plaintiff worked for H&R Masonry in New York for approximately
one year, and that Plaintiff also was employed by Yancey for four
or five months in 1995. The record further shows that Plaintiff
received more than $200.00 per week in unemployment benefits for
three or four months after he left his job in New York with Yancey
in December 1995. Plaintiff testified that he was obligated to look
for work while he was receiving unemployment benefits, but that he
did not do so because the condition of his back would not allow him
to find a job in his field. However, in order to receive
unemployment benefits under New York law, Plaintiff was required to
certify that he was physically able to work.
(See footnote 1)
Thus, there is
competent evidence to support the following finding of fact entered
by the Commission:
17. Plaintiff received weekly unemployment
benefits, in the amount of $200.00 per week,
for approximately three to four months. To
apply for unemployment benefits, plaintiff
certified that he did not have any medical
condition that would hinder his return to
work, and that he was actively seeking
employment.
Further, the Commission's Findings Nos. 10, 11 and 12 indicate that
prior to drawing unemployment benefits, Plaintiff was in fact
physically able to work and was actually working. These findings
of fact and the evidence on which they are based provide competent
evidence to support the Commission's finding that Plaintiff's lack
of employment or inability to work was not causally related to the
14 June 1994 accident. While the testimony of Plaintiff, coupled
with that of Dr. Sadrieh and Dr. Sportelli, may have been competent
evidence to support a finding that Plaintiff's inability to work at
the time of the hearing was causally related to the 14 June 1994
compensable injury, the Commission made a contrary finding. It is
the duty of the Commission, not this Court, to weigh the evidence
and to assess its credibility, and when conflicting evidence is
presented, the Commission's finding of causal connection between
the accident and the disability is conclusive.
Bailey, 131 N.C.
App. at 655, 508 S.E.2d at 835 (citing
Anderson v. Lincoln
Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 275 (1965)).
There is competent evidence to support the Commission's findings
and conclusions to the effect that Plaintiff failed to establish
that his lack of employment was causally related to his 14 June
1994 accident and that he had undergone a “change in condition”
related to the 14 June 1994 accident. Therefore, we affirm the
Commission's denial of Plaintiff's claim for additional
compensation under N.C.G.S. § 97-47.
Compensation for Medical Treatment Under N.C.G.S. § 97-25
Defendants contend that the Commission erred in ordering them
to pay for “[P]laintiff's reasonably necessary medical treatment
related to his compensable injury by accident for so long as such
treatment tends to effect a cure, provide relief or lessen the
period of disability[,]” under N.C.G.S. § 97-25.
(See footnote 2)
Subsequent to the establishment of a compensable injury under
the Workers' Compensation Act, an employee may seek compensation
under N.C.G.S. § 97-25 for additional medical treatment when such
treatment lessens the period of disability, effects a cure, or
gives relief.
Hyler v. GTE Products Co., 333 N.C. 258, 261, 425
S.E.2d 698, 700 (1993) (citing
Little v. Penn Ventilator Co., 317
N.C. 206, 211, 345 S.E.2d 204, 208 (1986));
see also N.C. Gen.
Stat. § 97-2(19) (2001). An injured employee has the right to
select, even in the absence of an emergency, a physician of his own
choosing to provide the medical treatment covered by N.C.G.S. § 97-
25, subject to the approval of the Commission.
Schofield v. Tea
Co., 299 N.C. 582, 590-91, 264 S.E.2d 56, 62 (1980). In order to
be compensable under N.C.G.S. § 97-25, “the medical treatmentsought must be 'directly related to the original compensable
injury.'”
Reinninger v. Prestige Fabricators, Inc., 136 N.C. App.
255, 259, 523 S.E.2d 720, 723 (1999) (quoting
Pittman v. Thomas &
Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286 (1996)). When
additional medical treatment is required, there is a rebuttable
presumption that it 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.
Id. In order to receive compensation for additional
medical treatment under N.C.G.S. § 97-25, an injured employee is
not required to make any showing of a change in his condition or in
available medical treatments.
Hyler, 333 N.C. at 267, 425 S.E.2d
at 704. However, an injured employee is required to seek and
obtain approval of the Commission within a reasonable time after he
has selected a physician and/or medical treatment of his own
choosing.
Schofield, 299 N.C. at 593, 264 S.E.2d at 63.
Here, the Commission concluded that Plaintiff was entitled to
“reasonably necessary medical treatment related to his compensable
injury by accident for so long as such treatment tends to effect a
cure, provide relief or lessen the period of disability.” However,
the Commission did not order Defendants to pay for any specific
medical treatment received by Plaintiff. As a result, Plaintiff
filed a motion for reconsideration with the Commission requesting
that it amend its opinion and award and order Defendants to pay forthe medical treatment rendered by Dr. Sadrieh and Dr. Sportelli.
(See footnote 3)
Before the Commission could rule on Plaintiff's motion for
reconsideration, Defendants filed notice of appeal from the
Commission's 19 December 2000 opinion and award. Thereafter, the
Commission entered an opinion and award concluding that it lacked
jurisdiction to rule on Plaintiff's motion for reconsideration due
to Defendants' appeal to this Court. Plaintiff contends that the
Commission erred in concluding that it lacked jurisdiction to rule
on Plaintiff's motion for reconsideration. We need not address
this issue in detail, for assuming,
arguendo, that the Commission
was correct in its determination that it lacked jurisdiction to
rule on Plaintiff's motion for reconsideration, we nonetheless are
constrained to remand the case to the Commission for further
findings on the issue of Plaintiff's entitlement to additional
medical compensation under N.C.G.S. § 97-25.
Under N.C.G.S. § 97-25, as it existed when Plaintiff suffered
his compensable injury by accident, an employee is entitled to
compensation for reasonably necessary medical treatment when such
treatment lessens the period of disability, effects a cure, or
gives relief.
Hyler, 333 N.C. at 261, 425 S.E.2d at 700. Thus,
the Commission's conclusion on this issue was a correct general
statement of the law on the subject. However, the Commission did
not fully apply the law to the facts before it and order Defendantsto pay for any specific medical treatment received by Plaintiff.
The Commission left unresolved Plaintiff's claim for payment of the
medical treatment provided by Dr. Sadrieh and Dr. Sportelli. As
earlier noted, “the Commission must find those facts which are
necessary to support its conclusions of law[,]”
Peagler, 138 N.C.
App. at 602, 532 S.E.2d at 213, and the Commission must “make
specific findings with respect to crucial facts upon which the
question of plaintiff's right to compensation depends.”
Gaines, 33
N.C. App. at 579, 235 S.E.2d at 859. Further, when the
Commission's findings of fact are insufficient to determine the
rights of the parties upon a claim for compensation, the proper
procedure on appeal is to remand the case to the Commission.
Mills
v. Fieldcrest Mills, 68 N.C. App. 151, 158, 314 S.E.2d 833, 838
(1984)
. It is not the duty of
this Court to make the findings of
fact necessary to support an award of compensation. Therefore, we
are constrained to remand for further findings.
On remand, the Commission must make findings based upon
competent evidence relative to whether the treatment provided and
prescribed by Dr. Sadrieh and Dr. Sportelli was required to effect
a cure or give relief from the 14 June 1994 compensable injury or
tended to lessen the period of disability caused by said
compensable injury.
See Schofield, 299 N.C. at 595, 264 S.E.2d at
65. The Commission must also make findings of fact relative to
whether the condition treated by Dr. Sadrieh and Dr. Sportelli was
directly related to the 14 June 1994 compensable injury.
See
Reinninger, 136 N.C. App. at 259, 523 S.E.2d at 723. In so doing,the Commission must give Plaintiff the benefit of the rebuttable
presumption that additional medical treatment is related to the
original compensable injury.
See id. In addition, the Commission
must make findings of fact relative to whether Plaintiff sought
approval of the Commission within a reasonable time after he
received the treatment from Dr. Sadrieh and Dr. Sportelli.
See
Schofield, 299 N.C. at 594, 264 S.E.2d at 64. In making these
required findings of fact, the Commission is to consider the record
evidence as well as any additional evidence the Commission finds it
necessary to take. Finally, on remand, the Commission is to rule
on Plaintiff's motion for attorney's fees pursuant to N.C.G.S. §
97-88.1.
For the reasons stated herein, the Commission's denial of
Plaintiff's claim for additional disability compensation under
N.C.G.S. § 97-47 is affirmed, and the case is remanded to the
Commission for further proceedings consistent with this opinion as
to Plaintiff's claim for additional medical compensation under
N.C.G.S. § 97-25 and Plaintiff's motion for attorney's fees under
N.C.G.S. § 97-88.1.
Affirmed in part and remanded in part.
Judges MARTIN and HUDSON concur.
Footnote: 1