A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
MARY TATE LEE,
Plaintiff-Employee,
v
.
From the North Carolina
Industrial Commission
BRIAN CENTER, File No. 202149
Defendant-Employer,
and
SELF-INSURED/KEY RISK
MANAGEMENT SERVICES,
Defendant-Servicing agent.
Waymon L. Morris, PA, by Waymon L. Morris, for plaintiff-
appellant.
Young, Moore and Henderson, PA, by J. D. Prather and Tina
Lloyd Hlabse, for defendant-appellee Brian Center.
BRYANT, Judge.
Plaintiff appeals from the Full Commission's Opinion and Award
allowing the defendant employer to suspend temporary disability
benefits until plaintiff complies with the Full Commission's Order
to attend a medical examination set up by her employer.
Plaintiff, a certified nursing assistant, suffered a
compensable back injury on 2 November 1991 while employed at the
Brian Center [defendant]. Plaintiff felt a "pop and a pulling
sensation" in her back when the patient she was assisting lost hisbalance. Plaintiff was diagnosed with a lumbosacral and right
sacroiliac sprain. Magnetic Resonance Imagery [MRI] later revealed
that plaintiff had a small herniated disc, and she underwent
surgery on 27 December 1991 to correct the problem. The Industrial
Commission approved a Form 21 Agreement for Compensation on 15 May
1992.
Plaintiff's symptoms persisted, and she was referred to Dr.
Todd Chapman for post-operative back pain. Dr. Chapman was
plaintiff's treating physician from June 1992 until he retired due
to medical reasons in December 1996. During that period, Dr.
Chapman performed several spinal operations on plaintiff at the
Miller Orthopaedic Clinic [Miller Clinic] in Charlotte. He allowed
plaintiff to return to light-duty work in July 1993. The first job
defendant offered to plaintiff involved some duties as a certified
nursing assistant, but plaintiff was unable to perform the job
because of pain. Defendant created a telephone receptionist
position for plaintiff, but the job exacerbated plaintiff's other
medical problems. When a conflict arose with the receptionist
position, defendant re-assigned plaintiff to a job in the laundry
folding clothes. The job was not approved by Dr. Chapman.
Plaintiff continued to experience pain and on 27 August 1993 she
had to leave work and go to the emergency room.
On 30 August 1993, plaintiff saw Dr. Chapman, who did not
return plaintiff to work. Dr. Chapman referred plaintiff back to
her family physician, Dr. Steven Crane, who examined plaintiff on
3 September 1993. Dr. Chapman recommended a Computed Tomography[CT] scan on 9 December 1996, but Key Risk, defendant's insurer,
declined to pay for the test because the adjustor for Key Risk
mistakenly claimed that plaintiff could only receive benefits for
her permanent disability rating. On 3 February 1997, Key Risk sent
a letter to the Miller Clinic denying a bill for treatment on 9
December 1996, the same date the CT scan was requested. It is
unclear whether the CT scan was ever performed.
The deputy commissioner issued an Opinion and Award on 10
April 1997 denying plaintiff benefits. On 21 January 1998, the
Full Commission rejected the deputy commissioner's findings and
awarded plaintiff temporary total disability compensation. The
Full Commission also ordered defendant to pay all plaintiff's
medical expenses incurred as a result of her injury.
On 11 March 1998, defendant scheduled a 23 March 1998
appointment for plaintiff with Dr. Mark Hartman, an orthopaedist,
also at the Miller Clinic. On 16 March 1998, plaintiff was
examined by Dr. David Mackel, an orthopaedic surgeon in her home
town of Hendersonville, at Dr. Crane's request. A week later,
plaintiff missed her appointment with Dr. Hartman. Plaintiff does
not drive and she thought defendant had arranged transportation to
Charlotte. Plaintiff acquired her X-rays in advance of her
appointment and stayed at home all day waiting for transportation.
On 23 May 1998, plaintiff filed a motion with the Industrial
Commission to change her treating physician to Dr. Mackel. A few
days later in an order filed 27 May 1998, the Executive Secretarydirected plaintiff to submit to an examination by Dr. Hartman. The
Order stated:
IT IS HEREBY ORDERED that plaintiff shall
submit to a medical evaluation at a reasonable
time and place when scheduled by the defendant
pursuant to N.C. Gen. Stat. § 97-27(a).
If plaintiff presents documentation or
reasonable grounds for her need for
transportation, the undersigned will consider
ordering that transportation to [sic] be
provided by the defendant due to the distance
involved. Otherwise, the parties may be able
to resolve the issue between themselves
through contact and discussion with each
other.
(Emphases added.).
A few days later, plaintiff requested that defendant pay for
Dr. Mackel's services. The parties attempted to mediate the issue,
but reached an impasse. The parties dispute that plaintiff was
told that transportation would not be provided for a second
appointment with Dr. Hartman that was scheduled by defendant.
Defendant scheduled a second appointment for 22 June 1998.
Plaintiff repeatedly attempted to contact defendant about her need
for transportation, but her medical case manager never returned her
calls. Plaintiff missed the 22 June 1998 appointment because she
did not have transportation.
On 2 July 1998, defendant filed a Form 24 application to
suspend or terminate payment of compensation until plaintiff
complied with the Executive Secretary's order to submit to an
examination by Dr. Hartman. Plaintiff requested a hearing. In
response to defendant's Form 24, plaintiff filed a statement
indicating that she notified defendants that she neededtransportation from her hometown of Hendersonville, North Carolina,
to Charlotte, where Dr. Hartman worked at the Miller Clinic.
Plaintiff also indicated in the statement that she waited for
transportation, but none arrived, and that she was willing to go to
Charlotte if defendant would provide transportation.
In its 22 June 1999 Opinion and Award, the deputy
commissioner, without determining that the time and place of the
appointment were reasonable, suspended plaintiff's right to
temporary total disability from 22 June 1998, the date she missed
the second appointment, until she complied with the Executive
Secretary's Order. Plaintiff appealed to the Full Commission.
According to the Full Commission, the issues for determination
were: 1) whether to terminate plaintiff's compensation for failure
to comply with an order by the Executive Secretary to submit to a
medical evaluation; and 2) whether plaintiff was authorized to
change her treating physician. The Full Commission in an Opinion
and Award filed 11 December 2000 concluded that: 1) defendant was
entitled to suspend plaintiff's benefits until she complied with
the order to submit to an independent medical examination; and 2)
plaintiff was not entitled to change her treating physician.
Accordingly, the Full Commission adopted and affirmed the holding
of the deputy commissioner. Plaintiff appealed.
Plaintiff raises three issues, arguing that the Full
Commission erred: 1) in interpreting and applying the provisions
of N.C.G.S. § 97-27 by requiring plaintiff to pay for travel to and
from doctors' appointments arranged by the employer; 2) in notapproving the physician of plaintiff's choice when the sole basis
of disapproval was that the employer objected to plaintiff's choice
of treating physicians; and 3) by ordering an independent medical
examination by a physician selected by the employer and suspending
her benefits in the absence of findings of fact that the time and
place of the appointment was reasonable.
We do, however, address the dispositive issue of whether the Full Commission's findings of fact regarding plaintiff's transportation problems and missed appointment were supported by competent evidence, and whether the Commission's conclusion of law that defendant was entitled to suspend plaintiff's benefits because she refused to submit to or somehow obstructed an examination was supported by the findings of fact. We hold that the Full Commission's findings of fact do not support its conclusions of law, and that the suspension of plaintiff's benefits was unjustified as a matter of law.
We first examine whether there is any competent evidence to support the Full Commission's findings of fact that plaintiff refused to attend an appointment with Dr. Hartman, and that the refusal was unjustified. The Full Commission made the following pertinent findings of fact:
5. Ms. Johnson [(plaintiff's medical case manager)] scheduled plaintiff to beevaluated by Dr. Hartman on March 23, 1998 at Miller Clinic in Charlotte. Plaintiff failed to attend this appointment, telling Ms. Johnson that she was unable to attend the appointment due to transportation problems.
. . . .
7. Defendant filed a motion with the
Commission seeking an order to compel
plaintiff's attendance at an evaluation by Dr.
Hartman . . . . By Order filed May 27, 1998,
the Commission directed the plaintiff to
attend a subsequent examination by Dr. Hartman
and directed the plaintiff to submit
information to the Commission regarding any
transportation difficulties . . . .
8. Plaintiff did not file any
information with the Commission pursuant to
the May 27, 1998 Order to indicate or explain
any transportation difficulties.
9. Ms. Johnson rescheduled plaintiff to
see Dr. Hartman on June 22, 1998.
Nevertheless, plaintiff again failed to attend
this appointment.
10. Plaintiff's refusal to attend the
medical examination of June 22, 1998, as
Ordered by the Commission was unjustified.
(Emphases added.). This led the Full Commission to conclude:
Defendant is entitled to suspend payment of
temporary disability benefits from June 22,
1998 until plaintiff complies with the
Commission's Order to attend an examination by
Dr. Hartman. If the employee refuses to
submit herself to or in any way obstructs an
examination requested by and provided by the
employer, her right to compensation and her
right to take or prosecute any proceeding
under this article shall be suspended until
such refusal or objection ceases, and no
compensation shall at any time be payable for
the period of obstruction, unless in the
opinion of the Industrial Commission, the
circumstances justify the refusal or
obstruction. In plaintiff's case, the
circumstances do not justify her obstruction
of defendant's efforts to obtain currentmedical information. Therefore, her benefits
are suspended until such time as she complies
with the outstanding Order of May 27, 1998.
(Emphasis added.).
Refusal to accept treatment under N.C.G.S. § 97-25 "connotes
a willful or intentional act." Johnson v. Jones Group, Inc., 123
N.C. App. 219, 222, 472 S.E.2d 587, 589 (1996). Upon careful
examination of the record, we conclude that there is no competent
evidence in support of the Full Commission's finding of fact that
plaintiff's "refusal to attend the medical examination of June 22,
1998, as Ordered by the Commission was unjustified."
First, the evidence of record before this Court does not show
that plaintiff refused to attend the 22 June medical examination.
Joanne Johnson, plaintiff's medical case manager, scheduled the
appointment after the Executive Secretary's order that plaintiff
submit to a medical examination. While it is true that plaintiff
missed this appointment due to transportation problems, the record
reveals that on 15 June 1998, plaintiff notified Key Risk that she
needed transportation to her appointment with Dr. Hartman in
Charlotte. Plaintiff also attempted to contact Johnson four times
about her need for transportation, but Johnson never returned her
calls. Plaintiff does not have a driver's license and does not own
a car. For almost five years, plaintiff traveled from her home in
Hendersonville to Charlotte for medical appointments, including
several surgeries. Plaintiff had previously relied on her husband
or other relatives to drive her to appointments. However,
plaintiff's husband could not take her to the appointments shemissed because of his full-time job and health problems. The
record contains no evidence contradicting plaintiff's testimony
that she attempted to communicate with Johnson and Lynn Key, a
senior claims representative, about her need for transportation.
Second, the record indicates that plaintiff has always been
willing to be examined by doctors of defendant's choosing, despite
her transportation difficulties. When defendant filed a Form 24
application to terminate plaintiff's benefits, plaintiff submitted
the following statement in response:
Because I live in Hendersonville, North
Carolina the Defendants and their agents had
been informed that I was and still am without
means of transportation to and from Charlotte,
North Carolina. The Defendants nevertheless
made an appointment with a doctor in
Charlotte. I waited for transportation
arrangements to and from Charlotte, but as far
as I know the Defendants have made no
arrangements. I was then, and still am, ready
and willing to go to Charlotte, but I am
unable to do so without help from the
Defendants.
Further, plaintiff testified that she was willing to go to
Charlotte for an appointment with a doctor of defendant's choosing
if transportation were provided. The record indicates that
defendant, through Lynn Key, was informed as early as 1997 that
transportation would be an issue. Further, plaintiff's deposition
testimony indicates that she was told by Ms. Dale Poplin of
Concentra Managed Care that transportation would be provided.
According to plaintiff, she never received notice from defendant
that transportation would not be provided, even though a letter
denying transportation was sent to her attorney. We see nothing in the record in support of the Full
Commission's finding that plaintiff refused to attend the medical
examination arranged by defendant and that the refusal was
unjustified. On the contrary, plaintiff made more than reasonable
efforts to comply.
We next examine whether the findings support the Full
Commission's legal conclusions. The Full Commission's conclusion
that defendant is entitled to suspend payment was based on its
finding that plaintiff refused to submit to an examination or
somehow obstructed the examination. As stated above, the record is
devoid of any competent evidence in support of this finding.
Rather, the Full Commission's finding in this regard was based on
the Executive Secretary stating in part that
If plaintiff presents
documentation or reasonable grounds
for her need for transportation, the
undersigned will consider ordering
that transportation to be provided
by the defendant due to the distance
involved. Otherwise, the parties
may be able to resolve the issue
between themselves through contact
and discussion with each other.
Plaintiff's failure to provide documentation regarding her
transportation problems under these circumstances hardly justifies
suspension or termination of her benefits. Here, it is undisputed
that plaintiff suffered a compensable injury. Defendant was
therefore required to provide medical compensation. The Full
Commission's finding that plaintiff refused to submit to treatment
was manifestly unsupported by competent evidence. Likewise, the
Full Commission's conclusion that defendant was entitled to suspendplaintiff's benefits was unsupported by the findings of fact.
Accordingly, we hold that the Full Commission erred in concluding
that defendant was entitled to suspend or terminate plaintiff's
benefits.
Plaintiff's assessment that the Full Commission's sole basis of disapproval of plaintiff's request to change treating physicians was that defendant objected to plaintiff's choice of treating physicians appears to be incorrect based on the record. Lynn Key testified that she did not object to Dr. Mackel as plaintiff's treating physician, so long as plaintiff was first evaluated by a doctor at the Miller Clinic. Therefore, it would appear that the Commission based its ruling that defendant was entitled to suspend plaintiff's benefits on plaintiff's failure to submit to the examination.
Although we disagree with plaintiff's assessment of the Full Commission's reasons for denying plaintiff's request to change treating physicians, we nevertheless find error with the Full Commission's findings of fact and conclusions of law regarding this issue. The Workers' Compensation Act provides that the employer must provide medical compensation to an employee who has suffereda compensable injury. N.C.G.S. § 97-25 (2001). "[A]s a general rule, an employer has the right to select a physician to care for an injured employee and an employee may not procure his own medical treatment at the employer's expense without the employer's knowledge and consent." Ruggery v. N.C. Dep't of Corrections, 135 N.C. App. 270, 275, 520 S.E.2d 77, 81 (1999) (citing Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 586-87, 264 S.E.2d 56, 60 (1980)). "[A]n employer's right to direct medical treatment (including the right to select the treating physician) attaches once the employer accepts the claim as compensable." Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d 785, 788 (2000), appeal after remand, ___ N.C. App. ___, 566 S.E.2d 167 (2002).
The employee, however, is not without some input as to her own treatment. N.C.G.S. § 97-25 also provides that "an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission." N.C.G.S. § 97-25; see Forrest v. Pitt County Bd. of Educ., 100 N.C. App. 119, 394 S.E.2d 659 (1990), aff'd, 328 N.C. 327, 401 S.E.2d 366 (1991). The employee may choose his own physician even in the absence of an emergency. Ruggery, 135 N.C. App. at 276, 520 S.E.2d at 82. If the employee so chooses, the Industrial Commission must approve the physician's services within a reasonable time after the employee selects the physician. Id. In the case sub judice, plaintiff filed a motion with the Industrial Commission on 25 May 1998 to change her treating physician to Dr. Mackel, an orthopaedic surgeon in Hendersonville, because Dr. Chapman retired. Plaintiff first saw Dr. Mackel on 16 March 1998, more than two months before filing her motion to change treating physicians. Rather than specifically ruling on plaintiff's motion, the Executive Secretary ruled on defendant's motion to compel plaintiff to comply with medical treatment and vocational rehabilitation, and directed plaintiff to submit to an examination by Dr. Hartman. Defendant was to schedule the appointment at a reasonable time and place.
As we stated earlier, if an employee chooses his own physician, the employee must seek the approval of the Industrial Commission within a reasonable time after selecting the physician. Ruggery, 135 N.C. App. at 276, 520 S.E.2d at 82. "Where an employee seeks retroactive authorization of a new treating physician, the Commission 'must make findings relative to whether such approval was sought . . . within a reasonable time.'" Jenkins v. Pub. Serv. Co. of N.C., 134 N.C. App. 405, 411, 518 S.E.2d 6, 10 (1999) (alteration in original) (quoting Schofield v. Great Atlantic & Pac. Tea Co., 299 N.C. 582, 594, 264 S.E.2d 56, 64 (1980)). In this case, the record does not indicate that the deputy commissioner ruled on plaintiff's motion to change treating physicians in the 22 June 1999 Opinion and Award or the 7 July 1999 Amended Opinion and Award. Further, the Full Commission's findings of fact in its 11 December 2000 Opinion and Award merely indicatethat the Executive Secretary ordered an examination by Dr. Hartman, "but did not rule on [plaintiff's] motion separately." Failing to rule on a motion effectively amounts to a denial of the motion. See State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250 (1980). The Executive Secretary, deputy commissioner and Full Commission failed to make findings of fact in support of the denial and timeliness of plaintiff's motion to change treating physician. Absent such findings of fact, we cannot determine whether the Full Commission appropriately exercised its discretion.
In Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 542 S.E.2d 668, review denied, ___ N.C. ___, 548 S.E.2d 524 (2001), a registered nurse suffered an admittedly compensable injury to her back while pushing a cart loaded with equipment. After her treating physician recommended a weight-loss program to take pressure off her back, she requested additional medical providers to treat complications from her stomach reduction surgery. The Full Commission denied her request without stating a reason. This Court reversed and remanded, stating that "[a]bsent findings of fact or some other clear indication of the basis upon which the Commission denied the request, we cannot determine whether the decision was an appropriate exercise of the Commission's discretion." Clark, 142 N.C. App. at 360, 542 S.E.2d at 675. Therefore, based on our holding in Clark, in the case sub judice we must reverse and remand to the Full Commission for a clear ruling on plaintiff's motion to change treating physicians, with findingsof fact as to the timeliness of plaintiff's request. See Jenkins, 134 N.C. App. at 411, 518 S.E.2d at 10.
In light of our rulings as to the first two arguments it is unnecessary to address plaintiff's third argument.
REVERSED AND REMANDED.
Judge HUNTER concurs.
Judge WALKER concurs in the result with a separate opinion.
Report per 30(e).
MARY TATE LEE,
Plaintiff-Employee
v
.
North Carolina
Industrial Commission
BRIAN CENTER, File No. 202149
Defendant-Employer
and
SELF-INSURED/KEY RISK
MANAGEMENT SERVICES,
Defendant-Servicing Agent
WALKER, Judge, concurring in the result.
The distinction between the provisions of N.C. Gen. Stat. §§
97-25 and 97-27 should be emphasized. Upon a proper finding, the
Commission could allow Dr. Mackel to be plaintiff's treating
physician under N.C. Gen. Stat. 95-25. However, the Commission,
upon proper finding, may require plaintiff to be examined by a
physician pursuant to defendant's request under N.C. Gen. Stat. §
97-27.
The Commission has created a mechanism for plaintiff to show
that she should be entitled to transportation costs provided by
defendant. The findings of the Commission should reflect whether
she is entitled to these costs.
I urge the parties and the Commission to take the appropriate
action to bring this matter to a resolution since plaintiff's
benefits remain in suspension until these issues are resolved.
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