Appeal by defendants and cross-appeal by plaintiff from an
opinion and award entered 18 January 2002 by the North Carolina
Industrial Commission. Heard in the Court of Appeals 9 January
Edelstein & Payne, by M. Travis Payne, for plaintiff.
Smith Moore LLP, by Jeri L. Whitfield and Shannon J. Adcock,
Laboratory Corporation of America (employer) and Hartford-ITTSpecialty Risk Services (collectively defendants) appeal from an
opinion and award of the North Carolina Industrial Commission (the
Commission) entered 18 January 2002 granting Angela Whitfield
(plaintiff) additional disability benefits, along with past and
future medical expenses for injuries plaintiff sustained in a slip
and fall accident in her employment with Laboratory Corporation of
America. Plaintiff filed a cross-appeal dated 20 February 2002 as
to the Commission's denial of her request for attorney's fees for
defendants' failure to provide plaintiff reasonable and necessary
A deputy commissioner entered an opinion and award on 31 July
that plaintiff was (1) not entitled to any further
temporary total disability compensation beyond what she had
received because plaintiff had failed to show she had sustained a
compensable injury; (2) that plaintiff was able to return to work;
and (3) that plaintiff's evidence concerning her back injury was
not credible. Plaintiff appealed to the Full Commission. The
Commission reversed the deputy commissioner's award on 18 January
2002, finding plaintiff was entitled to additional disability
benefits, as well as past and future medical expenses. The
Commission's opinion and award did not address plaintiff's request
for attorney's fees under N.C. Gen. Stat. § 97-88.1.
Plaintiff worked for employer as a service representative,
traveling to medical offices in Raleigh to pick up patient
specimens for analysis. The specimens were placed in a cooler in
the trunk of a car provided by employer. When plaintiff completed
her route, she carried the cooler from the car into the offices ofemployer and labeled and packaged the specimens to be sent to a
laboratory. Plaintiff had to stand for about two hours during the
labeling and packaging at the end of the shift.
On 5 June 1998, plaintiff entered a building to make a pickup.
As she entered the front door of the building, there was rainwater
on the floor and plaintiff's legs slipped out from under her. She
began to fall and twisted around abruptly to maintain her balance.
She was able to grab onto the door with her left hand as she was
falling backwards. She did not quite fall to the floor, as she was
able to hold onto the door, but she ended up supporting most of her
body weight with her left hand and arm.
Plaintiff almost immediately began experiencing a tingling
sensation and pain in her back. As this pickup was near the end of
her route, she was able to complete the route that day. Plaintiff
rested over the weekend and returned to work on Monday. She
reported her injuries to her supervisor and said she was in
considerable pain and needed to see a doctor. Plaintiff's
supervisor told her to call for an appointment and plaintiff saw
Dr. Nichols the following day.
Dr. Nichols took plaintiff out of work until 17 June 1998 and
gave her limitations of no lifting and minimal bending. Plaintiff
attempted to work on June 17 and 18 but was experiencing so much
pain in her back and neck that she returned to Dr. Nichols on June
19, and he again took her out of work.
Dr. Nichols sent plaintiff to Oren LeBlang for physical
therapy, but plaintiff was in so much pain that the therapy did not
prove beneficial and it was terminated after about three visits. LeBlang wrote a letter stating that plaintiff complained of pain
with "feather like stroking." Plaintiff testified that she clearly
remembered the incident and that LeBlang "was mashing very hard on
On 15 July 1998, Dr. Nichols released plaintiff to return to
work in a sedentary position, lifting no more than ten pounds.
When employer was provided with Dr. Nichols' restrictions,
plaintiff was assigned to driving a full route, which aggravated
her condition. On July 16 and 17, plaintiff's job was changed and
she was allowed to remain in the office doing data entry for three
hours. Plaintiff's supervisor testified that even when plaintiff
was performing the data entry tasks, she appeared to be in
significant pain. She was later assigned to a route with another
employee. The route she was assigned was more hectic than the one
she had previously done. The new route required plaintiff to move
more quickly and also required going up and down more stairs. At
the end of the day, plaintiff experienced significantly increased
levels of pain.
Plaintiff drove from her home in Goldsboro to work in Raleigh
on 20 July 1998. When she arrived at work, she told her supervisor
that she was experiencing significant pain and spasms in her back,
and requested to again see Dr. Nichols. When she could not get an
appointment with Dr. Nichols, plaintiff requested to be allowed to
go to a hospital emergency room to get some medication for her
pain. She was refused permission to go to the emergency room, but
employer located a doctor in Durham, Dr. Christian J. Lambertsen,
that plaintiff could see that day. Plaintiff traveled to Durhamand first saw Dr. Henry Adomonis, who conduced almost a full
examination. Dr. Lambertsen came into the room and repeated the
examination. Plaintiff's pain limited her ability to comply with
all of the examination requests of the doctor. Dr. Lambertsen
placed plaintiff on limited duty with no driving for three weeks.
Plaintiff was in so much pain that she was barely able to walk and
was unable to drive herself home to Goldsboro. She called and
arranged to have a friend pick her up.
Over the next several days plaintiff, or someone on her
behalf, called employer early each morning, informing them that
plaintiff continued to be in a great deal of pain and could not
work. Plaintiff was informed by her supervisor that as long as she
called in and reported her status each day there would be no
Plaintiff was informed on 21 July 1998 by a nurse working for
employer that she would no longer be able to see Dr. Nichols. Two
days later, plaintiff continued to experience severe pain and went
on her own to a hospital emergency room in Greenville for
treatment. Plaintiff drove to Raleigh and reported for work at her
normal time on Friday, 24 July 1998. She was informed that she
should return home and come back on Monday, 27 July 1998 to talk to
with her supervisor, who was not at work that day. Plaintiff
reported to work on July 27 and was informed by her supervisor that
she had been discharged for not coming to work during the previous
On the afternoon of July 27, plaintiff kept an appointment
with Dr. Scott Sanitate that had been arranged by defendants. Plaintiff's friend accompanied her to the appointment and went into
the examination room with her. Plaintiff was still in significant
pain and was dragging her right leg to a significant extent. Dr.
Sanitate did a minimal evaluation and indicated to plaintiff that
he thought all of her problems would resolve with no surgical
intervention and with minimal treatment. He recommended a
steroidal injection, which was scheduled for 4 August 1998.
Plaintiff was unable to attend the scheduled appointment for
the injection because she had started other employment. She asked
that the appointment be rescheduled, but defendants did not
reschedule it. After 27 July 1998, defendants never provided
plaintiff any type of medical treatment.
Plaintiff continued to experience severe levels of pain in her
neck, back, shoulder and leg. She was unable to sit for long
periods, unable to stand for significant periods, and unable to
walk any significant distances. These were activities that she did
regularly before her injury. Plaintiff also experienced difficulty
in doing routine chores such as cleaning her house.
Plaintiff began to see Dr. Huh, at the Duke Hospital Pain
Clinic in October 1998. Because of her limited financial resources
and lack of health insurance, plaintiff was unable to see Dr. Huh
as frequently as recommended. She was also financially unable to
purchase all of the medications he prescribed or obtain the
diagnostic tests he prescribed, such as cervical and lumbar MRI's.
Dr. Huh, a board certified anesthesiologist and board eligible
pain management specialist, stated that plaintiff was experiencing
real and significant levels of pain in her neck, back, and leg andthat she was not exaggerating her level of pain during the period
he treated plaintiff. Based on a description of the slip and fall
that plaintiff experienced on 5 June 1998, it was Dr. Huh's opinion
that the types of problems he diagnosed for plaintiff were likely
to have arisen from such a twisting fall.
Dr. Huh testified that plaintiff developed significant
depression secondary to her chronic pain. He further opined that
this was not unusual and that a doctor needed to treat the
depression as well as the pain in order for a patient to obtain
significant pain relief.
Dr. Huh also stated that plaintiff's inability to attend
regular and scheduled appointments, due to her financial situation,
negatively affected her treatment and possibilities for recovery;
but her prognosis for a significant recovery was fair provided she
was able to attend regularly scheduled medical visits at the pain
clinic, receive all of the medication prescribed, attend regular
psychotherapy sessions, and attend a regular, long-term physical
therapy program. Dr. Huh testified that plaintiff was not capable
and had not been capable of performing a job that required her to
sit in a car and drive the vehicle for approximately four hours out
of an eight hour shift due to the pain and difficulties that she
Following her discharge by employer, plaintiff was able to
obtain employment driving a bus on a part-time basis. Driving the
bus caused plaintiff considerable pain.
Defendants paid plaintiff temporary disability benefits during
the periods she was unable to work from 9 June 1998 to 16 June1998, and from 19 June 1998 to 15 July 1998. They have paid
plaintiff no benefits since 20 July 1998. Defendants have provided
plaintiff with no medical treatment since her appointment with Dr.
Sanitate on 27 July 1998.
Defendants have failed to present an argument in support of
assignments of error 10, 11, 15, and 18 and those assignments are
deemed abandoned. N.C.R. App. P. 28(b)(6).
"The standard of appellate review of an opinion and award of
the Industrial Commission in a workers' compensation case is
whether there is any competent evidence in the record to support
the Commission's findings of fact and whether these findings
support the Commission's conclusions of law." Lineback v. Wake
County Board of Commissioners
, 126 N.C. App. 678, 680, 486 S.E.2d
252, 254 (1997). The Industrial Commission's findings of fact "are
conclusive on appeal when supported by competent evidence . . .
even [if] there is evidence to support a contrary finding[,]"
Morrison v. Burlington Industries
, 304 N.C. 1, 6, 282 S.E.2d 458,
463 (1981), and "may be set aside on appeal [only] when there is a
complete lack of competent evidence to support them[.]" Young v.
Hickory Bus. Furn.
, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).
"Whether the full Commission conducts a
hearing or reviews a cold record, N.C.G.S. §
97-85 places the ultimate fact-finding
function with the Commission[.]" Adams v. AVX
, 349 N.C. 676, 681, 509 S.E.2d 411, 413
(1998). Where "defendants' interpretation of
the evidence is not the only reasonable
interpretation[, it] is for the Commission to
determine the credibility of the witnesses,
the weight to be given the evidence, and the
inferences to be drawn from it. As long as
the Commission's findings are supported by
competent evidence of record, they will not be
overturned on appeal." Rackley v. CoastalPainting
,  N.C. App. , , 570
S.E.2d 121, 124 (2002) (citation omitted).
Therefore, "appellate courts reviewing
Commission decisions are limited to reviewing
whether any competent evidence supports the
Commission's findings of fact and whether the
findings of fact support the Commission's
conclusions of law." Deese v. Champion Int'l
, 352 N.C. 109, 116, 530 S.E.2d 549, 553
(2000) (citing Adams
, 349 N.C. at 681, 509
S.E.2d at 413). However, the Industrial
Commission's conclusions of law are reviewable
. Lewis v. Craven Regional Medical
, 122 N.C. App. 143, 468 S.E.2d 269
Johnson v. Herbie's Place
, 157 N.C. App. 168, 171, 579 S.E.2d 110,
 Defendants first argue that the Commission erred by wholly
disregarding the stipulated medical records of Doctors Nichols,
Lambertsen, Sanitate, and Adomonis, as well as the records of
plaintiff's physical therapist, Oren LeBlang, which defendants
argue show that plaintiff was not disabled and was able to return
to work without restrictions. Defendants argue that the Commission
based its decision solely on the deposition testimony of Dr. Huh.
It is reversible error for the Commission to fail to consider
the testimony or records of a treating physician. Jenkins v. Easco
, 142 N.C. App. 71, 78, 541 S.E.2d 510, 515 (2001)
(the Commission "may not wholly disregard competent evidence");
, 126 N.C. App. at 680, 486 S.E.2d at 254. However, the
record reveals that the Commission did not wholly disregard the
medical notes of Doctors Nichols, Lambertsen, Sanitate, and
Adomonis and the records of Oren LeBlang. The Commission made
numerous findings concerning plaintiff's visits to these doctorsand to the physical therapist. The Commission simply accorded
greater weight to the opinion of Dr. Huh, as it is entitled to do.
, 153 N.C. App. at 472, 570 S.E.2d at 124 (citation
One reason stated by the Commission for giving greater weight
to the opinion of Dr. Huh was that Dr. Huh was "more qualified by
training to assess chronic pain." Another reason stated by the
Commission was that Dr. Huh treated plaintiff for a longer period
of time than the other doctors. Both of these reasons are
supported by the evidence. The evidence showed that Dr. Huh is a
board certified anesthesiologist and board eligible pain management
specialist. He is an Associate in Anesthesiology at the Duke
Hospital Pain Clinic, he graduated from medical school, and he
served four years of residency and a fellowship in pain management
at the University of North Carolina at Chapel Hill. In addition,
there is competent evidence that Dr. Huh treated plaintiff during
a period of more than a year and a half, as opposed to the minimal
appointments plaintiff had with the other doctors and the physical
therapist. The evidence in the record supports the Commission's
 We note that the statement by the Commission that Doctors
Nichols, Lambertsen, Sanitate, and Adomonis were "not deposed; [and
that] only their treatment records [were] in evidence" is somewhat
contradictory to North Carolina Workers' Compensation Rule 612.
This rule encourages parties to stipulate medical records into
evidence, as opposed to taking multiple depositions, by allowing
assessment of the costs of a deposition of a medical witness,including attorney's fees, against the party who refuses to
stipulate to medical records. Hawley v. Wayne Dale Constr.
N.C. App. 423, 428-29, 552 S.E.2d 269, 273, disc. review denied
355 N.C. 211, 558 S.E.2d 868 (2001). However, this rule does not
prohibit a party from taking depositions if the party believes a
deposition will be more useful than stipulated medical records of
a medical witness. "The Commission may make rules, not
inconsistent with this Article [the North Carolina Workers'
Compensation Act], for carrying out the provisions of this
Article." N.C. Gen. Stat. § 97-80(a) (2001). If the Commission
makes rules, it should consider those rules in making its
decisions. In the present case, the Commission's findings show
that it considered the medical records of Doctors Nichols,
Lambertsen, Sanitate, and Adomonis and the reports of Oren LeBlang,
along with the deposition of Dr. Huh. The Commission then gave
more weight to the deposition of Dr. Huh because of Dr. Huh's
training and experience and the fact that Dr. Huh treated plaintiff
for an extended period of time, both appropriate bases to accord
greater weight to Dr. Huh's deposition. This argument is
 Defendants also argue that the Commission erred in its
conclusion that plaintiff had proven a causal relationship between
plaintiff's alleged symptoms and any compensable incident at work.
As stated above, when reviewing the Commission's conclusions of law
we must determine whether the findings of fact support the
conclusions of law.
However we review conclusions of law by theCommission de novo
, 146 N.C. App. at 427, 272 S.E.2d at
The plaintiff in a workers' compensation case bears the burden
of initially proving each and every element of compensability,
including causation. Porter v. Fieldcrest Cannon, Inc.
, 133 N.C.
App. 23, 28, 514 S.E.2d 517, 521 (1999). "'[W]here the exact
nature and probable genesis of a particular type of injury involves
complicated medical questions far removed from the ordinary
experience and knowledge of laymen, only an expert can give
competent opinion evidence as to the cause of the injury.'" Demery
v. Converse, Inc.
, 138 N.C. App. 243, 248, 530 S.E.2d 871, 875
(quoting Click v. Freight Carriers
, 300 N.C. 164, 167, 265
S.E.2d 389, 391 (1980)). "To establish the necessary causal
relationship for the injury to be compensable under the Act, 'the
evidence must be such as to take the case out of the realm of
conjecture and remote possibility.'" Id.
(quoting Gilmore v. Board
, 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)).
The Commission found that:
27. Based on a description of the slip and
fall that plaintiff experienced on June 5,
1998, Dr. Huh was of the opinion and the Full
Commission finds that the types of problems he
diagnosed for plaintiff were likely to have
arisen from such a twisting fall.
This finding, if supported by the evidence, is sufficient to
support the Commission's conclusion that plaintiff had shown a
causal relationship between plaintiff's symptoms and the
compensable accident that occurred on 5 June 1998. Such a finding
takes the causal relationship out of the "realm of conjecture and
remote possibility" as required. Id.
We acknowledge that the"mere possibility of causation," as opposed to the "probability" of
causation, is insufficient to support a finding of compensability.
Swink v. Cone Mills, Inc.
, 65 N.C. App. 397, 398, 309 S.E.2d 272,
271 (1983). However, this finding of fact speaks to the
"probability," not the "possibility," of causation, and thus will
support the conclusion of compensability if the finding of fact is
supported by the evidence in the record. See id.
Dr. Huh testified in his deposition that, not only is it
"possible," but that it is "likely" that plaintiff's near fall is
the cause of her current pain. Dr. Huh also testified that he
could say with a degree of "substantial certainty" that the fall on
5 June 1998 was the cause of plaintiff's back pain. Defendants
argue that Dr. Huh had no basis for his opinion and his testimony
was therefore inadmissible under (1) Daubert v. Merrell Dow
, 509 U.S. 579, 590, 125 L. Ed. 2d 469, 481
(1993), because it was not "ground[ed] in the methods and
procedures of science," and (2) under Young
, 353 N.C. at 230, 538
S.E.2d at 915,
because his testimony was entirely based on "mere
speculation or possibility." Dr. Huh examined plaintiff several
times over the period of more than a year and a half, he knew about
the fall that occurred on 5 June 1998, and he diagnosed the
injuries of which plaintiff complains. As we have already stated,
Dr. Huh's deposition testimony is not speculative and it focuses on
the probability, not simply the possibility, that the fall on 5
June 1998 caused plaintiff's injuries. Dr. Huh's testimony as to
causation was competent and could be considered by the Commission.
"The Commission's findings will not be disturbed on appeal ifthey are supported by competent evidence even if there is contrary
evidence in the record." Hawley
, 146 N.C. App. at 427, 552 S.E.2d
at 272 (citing Deese
, 352 N.C. 109, 530 S.E.2d 549 (2000) and
Peoples v. Cone Mills Corp.
, 316 N.C. 426, 432, 342 S.E.2d 798, 803
(1986)). Although there is contrary evidence in the record, we
find that Dr. Huh's testimony was competent evidence to support the
Commission's findings and its conclusion that plaintiff had shown
a causal relationship between the fall on 5 June 1998 and the
symptoms for which plaintiff seeks recovery. This argument is
 Defendants next argue that the Commission erred in finding
that plaintiff was entitled to temporary total disability benefits.
A plaintiff in a workers' compensation case has the burden of
showing the injury complained of resulted from an accident arising
out of and in the course and scope of her employment. Henry v.
, 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950); Smith v.
Cotton Mills, Inc.
, 31 N.C. App. 687, 690, 230 S.E.2d 772, 774
(1976). With respect to a back injury, a plaintiff may show that
the injury is the result of an accident, or that the alleged injury
is the direct result of a specific traumatic incident of the work
assigned. Richards v. Town of Valdese
, 92 N.C. App. 222, 224, 374
S.E.2d 116, 118 (1988), disc. review denied
, 324 N.C. 337, 378
S.E.2d 799 (1989). Defendants argue that plaintiff failed to carry
her burden of proof.
Defendants basically contend that the deputy commissioner
correctly determined that plaintiff's evidence concerning her backinjury was not credible. Defendants argue that testimony by the
four authorized physicians and a physical therapist, all opining
that plaintiff was malingering, was the only credible evidence as
to plaintiff's injuries, and the Commission erred in reversing the
Plaintiff presented medical evidence in the form of deposition
testimony by Dr. Huh. Plaintiff also testified as to the injury to
her lower back. Defendants argue that this evidence was entitled
to no weight. As stated above,
[w]here "defendants' interpretation of the
evidence is not the only reasonable
interpretation[, it] is for the Commission to
determine the credibility of the witnesses,
the weight to be given the evidence, and the
inferences to be drawn from it. As long as
the Commission's findings are supported by
competent evidence of record, they will not be
overturned on appeal."
157 N.C. App. at 171, 579 S.E.2d at 113 (quoting Rackley
153 N.C. App. at 472, 570 S.E.2d at 124 (citation omitted)). There
is conflicting evidence as to whether the injuries plaintiff
complains of resulted from the fall on 5 June 1998. "The
Commission's findings will not be disturbed on appeal if they are
supported by competent evidence even if there is contrary evidence
in the record." Hawley
, 146 N.C. App. at 427, 552 S.E.2d at 272
We find that there is sufficient evidence, in
the form of deposition testimony of Dr. Huh, whose competence to
testify we discussed above, and testimony by plaintiff to support
the Commission's finding that plaintiff's injury was compensable.
Defendants are essentially asking us to reverse the decision of the
Commission on the basis of disputed testimony, which we cannot do. This argument is overruled.
 Defendants next argue that even if plaintiff can show that
she sustained a compensable injury on 5 June 1998, there is no
evidence on which to base a finding and conclusion that her injury
resulted in any compensable disability. Defendants argue that
findings of fact 33 and 34 are not supported by competent evidence
in the record, and thus conclusion of law number 2 and paragraph 1
of the award by the Commission are without support.
The challenged findings state as follows:
33. While defendants paid plaintiff some
temporary disability benefits during the
periods she was unable to work from June 9 -
June 16, and June 19 - July 15, 1998, they
have paid her no benefits from the period
since July 20, 1998. As a result of her
injury, plaintiff was unable to earn wages in
any employment from July 20, 1998 through July
34. As a result of her injury, plaintiff has
sustained diminished wage earning capacity.
Plaintiff's earning as a part-time bus driver
are indicative of her wage earning capacity.
Plaintiff has been partially disabled since
August 1, 1998.
Defendants argue that no medical evidence indicated that
plaintiff was unable to work during the period from 20 July 1998 to
31 July 1998. In fact, defendants argue that plaintiff's treating
physician authorized plaintiff to return to work and that
plaintiff's "wage loss" was due to her failure to return to work.
However, the Commission found that plaintiff, after talking to her
supervisor, remained home and either called in or had someone call
on her behalf everyday until she was able to return to work with
employer. The Commission found that plaintiff was informed byemployer that this was a suitable course of action under the
circumstances, and that it was not until 27 July 1998, the second
day she came to work after this recovery period, that plaintiff
learned she was being fired for staying home to recover. These
findings were supported by competent evidence in the record,
including testimony of employer's branch manager, plaintiff,
plaintiff's mother, and plaintiff's friend. The Commission did
not err in its determination that plaintiff did not refuse to
return to work.
 Defendants also argue that plaintiff has not shown any
diminished earning capacity since the evidence shows plaintiff
earned $5,516.00 in 1997, $9,253.00 in 1998, and $11,790.42 in
1999. However, in paragraph 5 of the pre-trial agreement entered
into by the parties, the parties stipulated that plaintiff's
average weekly wage was "at least $280.00." An employee can
establish that she is unable to earn the wages she earned at the
time of her injury four different ways:
(1) the production of medical evidence that
[she] is physically or mentally, as a
consequence of the work related injury,
incapable of work in any employment; (2) the
production of evidence that [she] is capable
of some work, but that [she] has, after
reasonable effort on [her] part been
unsuccessful in her effort to obtain
employment; (3) the production of evidence
that [she] is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, inexperience, lack of
education, to seek other employment; or (4)
the production of evidence that [she] has
obtained other employment at a wage less than
that earned prior to the injury.
Russell v. Lowes Product Distribution
, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (citations omitted). In the present case, plaintiff presented evidence under the
fourth option, in the form of check stubs showing her earnings from
the job she began on 1 August 1998, as well as a summary of those
earnings in relation to the stipulated amount of earnings from
plaintiff's job with employer. Thus, there is competent evidence
in the record to support the Commission's finding that plaintiff
had demonstrated a reduced wage earning capacity under the fourth
option. This finding, based on the competent evidence in the
record, was a proper basis for the Commission to award plaintiff
partial disability benefits. See Larramore v. Richardson Sports
, 141 N.C. App. 250, 259-60, 540 S.E.2d 768, 773
(2000), aff'd per curiam
, 353 N.C. 520, 546 S.E.2d 87 (2001)
(holding that a former professional football player with an
$86,000.00 contract who had shown that because of injury he could
not play football and had to perform low-paying jobs had presented
sufficient evidence of reduced wage earning capacity). The
Commission did not err in awarding plaintiff additional temporary
total disability benefits from 21 July 1998 through 31 July 1998
and temporary partial disability benefits based on plaintiff's wage
differential from 1 August 1998. Defendants' argument is
 Similar to the argument above, defendants contend that the
Commission erred in finding that plaintiff was entitled to
continuing benefits, because plaintiff unjustifiably refused
suitable employment. If an employer meets its burden of showing
that a plaintiff unjustifiably refused suitable employment, thenthe employee is not entitled to any further benefits under N.C.
Gen. Stat. §§ 97-29 or 97-30. Gordon v. City of Durham
, 153 N.C.
App. 782, 787, 571 S.E.2d 48, 51 (2002); Franklin v. Broyhill
, 123 N.C. App. 200, 206, 472 S.E.2d 382, 386,
, 344 N.C. 629, 477 S.E.2d 39 (1996). Defendants argue
that plaintiff's failure to return to work from 21 July 1998 to 23
July 1998 constituted an unjustifiable refusal of suitable
employment. As noted in the Commission's findings of fact:
12. Over the next several days plaintiff, or
someone on her behalf, called defendant-
employer early each morning, informing them
that plaintiff continued to be in a great deal
of pain and could not work. Plaintiff was
informed by her supervisor Ms. Howard, that as
long as she called in and reported her status
each day there would be no problems.
. . .
15. On Friday, July 24, 1998, plaintiff drove
to Raleigh and reported for work at her normal
time. She was informed that she should return
home, and come back on Monday to talk with Ms.
Howard who was not at work that day.
Plaintiff provided defendant-employer with a
copy of a statement she had received from the
emergency room the previous day, establishing
that she had been to see a doctor and she
continued to have significant limitations.
16. On Monday, July 27, 1998, plaintiff
reported to work and was informed by Ms.
Howard that [plaintiff] had been discharged
for not coming to work during the previous
week. Ms. Howard testified that she did not
recommend plaintiff's discharge and did not
know who really made that decision. She
further indicated that she did not know what
the company's attendance policies were.
These findings of fact are supported by the competent evidence in
the record: testimony of employer's branch manager, plaintiff,
plaintiff's mother, and plaintiff's friend. Defendants' argumentthat the Commission erred in failing to determine that plaintiff
unjustifiably refused suitable employment is without merit.
 Defendants' final argument is that the Commission erred in
ruling that employer is responsible for payment of medical bills
that plaintiff incurred for treatment, where the treatment was not
approved by employer.
Employers are required to provide medical compensation when
the treatment in question is reasonably required to lessen the
period of disability, effect a cure, or give relief. N.C. Gen.
Stat. §§ 97-2(18) and 97-25 (2001); Little v. Penn Ventilator Co.
317 N.C. 206, 210, 345 S.E.2d 204, 207 (1986). "[R]elief from pain
is a legitimate aspect of the 'relief' anticipated by future
medical treatment under N.C. Gen. Stat. § 97-25." Simon v.
Triangle Materials, Inc.
, 106 N.C. App. 39, 44, 415 S.E.2d 105,
108, disc. review denied
, 332 N.C. 347, 421 S.E.2d 154 (1992).
There is competent evidence in the record that supports the
Commission's finding that plaintiff required further medical
treatment as a result of her fall on 5 June 1998. Dr. Huh
testified that because of plaintiff's limited resources and lack of
health insurance, plaintiff was unable (1) to see Dr. Huh as
frequently as he recommended, (2) to purchase all of the
medications he prescribed, and (3) to obtain diagnostic tests he
prescribed, such as cervical and lumbar MRI's. Dr. Huh testified
that plaintiff was experiencing real and significant levels of pain
in her neck, back, and leg and that she was not exaggerating her
level of pain during the period he treated her. Dr. Huh alsotestified that plaintiff had developed significant depression
secondary to her chronic pain and that it was usually necessary to
treat the depression as well as the pain in order for such a
patient to obtain significant pain relief. He testified that due
to plaintiff's financial inability to attend regularly scheduled
appointments, plaintiff's possibility for recovery was negatively
affected; however, provided plaintiff did everything Dr. Huh
recommended, he believed plaintiff's prognosis for recovery was
fair. This competent testimony is sufficient to support the
Commission's findings that plaintiff required further medical
treatment to provide relief. As stated above, employers are
required to provide medical treatment when the treatment is
reasonably required to lessen the period of disability, effect a
cure, or give relief. Little
, 317 N.C. at 210, 345 S.E.2d at 207.
Defendants argue that plaintiff is not entitled to simply shop
around for a physician who will medicate subjective complaints of
pain when four employer-chosen physicians were all in agreement
that further treatment for plaintiff would be useless. However,
this is a credibility issue for the Commission to resolve, and as
discussed above, we do not disturb those findings since they are
supported by competent evidence. See Hawley
, 146 N.C. App. at 427,
552 S.E.2d at 272.
N.C.G.S. § 97-25 allows "an injured employee
[to] 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."
The Commission approved Dr. Huh as the primary treating
physician for plaintiff for the problems arising from plaintiff's5 June 1998 injury by accident. The findings of fact indicate that
the treatment recommended by Dr. Huh is reasonably necessary to
provide relief to plaintiff. Those findings are supported by
competent evidence. There are also findings that Dr. Huh is
qualified to provide ongoing treatment to plaintiff, which are
supported by competent evidence in the record of Dr. Huh's training
and experience. Therefore, as to future medical expenses, the
Commission did not err in ruling that defendants are responsible
for those expenses.
As to the past medical expenses, there is no finding by the
Commission that the Commission approved the treatment by Dr. Huh
prior to the issuance of the Commission's order and award, or that
plaintiff sought such approval from the Commission. The record
does not show that any such request was made as required by
N.C.G.S. § 97-25. We recognize that such a request need not be
made before treatment is received, only within a reasonable time
141 N.C. App. at 258, 540 S.E.2d at 772-73;
however, without any evidence of a request in the record, the issue
of the timeliness of the request is not before us. We therefore
vacate the portion of conclusion number three of the Commission's
opinion and award granting past medical benefits for treatment by
Dr. Huh and remand this issue to the Commission to make proper
findings as to whether plaintiff actually requested approval from
the Commission for treatment by Dr. Huh.
 Plaintiff has made two cross-assignments of error.
Plaintiff first argues that the Commission erred by failing to findand conclude that defendants were aware that plaintiff was in need
of on-going medical treatment arising from her injury, yet failed
and refused to provide such treatment. Plaintiff also argues that
the Commission erred (1) in failing to conclude that defendants'
denial of benefits, particularly needed medical treatment, was
unreasonable, and (2) in failing to award plaintiff reasonable
attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1 (2001).
N.C.G.S. § 97-88.1 states that:
If the Industrial Commission shall determine
that any hearing has been . . . defended
without reasonable ground, it may assess the
whole cost of the proceedings including
reasonable fees for . . . plaintiff's attorney
upon the party who has . . . defended them.
The purpose of this statute is "to prevent 'stubborn, unfounded
litigiousness' which is inharmonious with the primary purpose of
the Workers' Compensation Act to provide compensation to injured
employees." Beam v. Floyd's Creek Baptist Church
, 99 N.C. App.
767, 768, 394 S.E.2d 191, 192 (1990) (citation omitted). However,
the decision of the Commission to award or deny attorney's fees is
reversible only for an abuse of discretion. Troutman v. White &
, 121 N.C. App. 48, 54-55, 464 S.E.2d 481, 486 (1995),
disc. review denied
, 343 N.C. 516, 472 S.E.2d 26 (1996).
Upon review of the record it is evident that the Commission
failed to rule on plaintiff's request for attorney's fees pursuant
to N.C.G.S. § 97-88.1. Our Court recently addressed this same
issue and determined that the failure of the Commission to address
plaintiff's attorney's fee request was in error. Cialino v.
, 156 N.C. App. 463, 474, 577 S.E.2d 345, 353
(2003). "'This Court has held that when the matter is "appealed"to the full Commission . . ., it is the duty and responsibility
of the full Commission to decide all of the matters in controversy
between the parties.'" Id.
(quoting Vieregge v. N.C. State
, 105 N.C. App. 633, 638, 414 S.E.2d 771, 774 (1992)).
We must therefore remand this issue to the Commission for
 Plaintiff also requests that defendants be ordered to pay
plaintiff's attorney's fees incurred in connection with the present
appeal, pursuant to N.C. Gen. Stat. § 97-88 (2001). Under N.C.G.S.
§ 97-88 a reviewing court may award costs of the appeal, including
attorney's fees, to an injured employee "if (1) the insurer has
appealed a decision to the full Commission or to any court, and (2)
on appeal, the Commission or court has ordered the insurer to make,
or continue making, payments of benefits to the employee." Flores
v. Stacy Penny Masonry Co.
, 134 N.C. App. 452, 459, 518 S.E.2d 200,
205 (1999) (citations omitted). The statutory requirements have
been met in the present case. Unlike N.C.G.S. § 97-88.1, a request
for attorney's fees under N.C.G.S. § 97-88 does not require a
determination that a hearing be "brought, prosecuted or defended
without reasonable ground" in order to assess the cost of the
proceedings upon the party who has defended the proceedings. Brown
v. Public Works Comm.
, 122 N.C. App. 473, 477, 470 S.E.2d 352, 354
(1996). Our determination of this issue is therefore not
controlled by the Commission's decision whether to award attorney's
fees on remand under N.C.G.S. § 97-88.1 as discussed above.
We note that in the present case, the Commission's awardrequires plaintiff to pay her attorney "one-fourth of the indemnity
compensation awarded to plaintiff," but does not take into account
or include expenses related to medical care and treatment in
determining the amount plaintiff must pay to her attorney. See
Hyler v. GTE Prod. Co.
, 333 N.C. 258, 264-65, 425 S.E.2d 698, 702-
03 (1993) (distinguishing between general "compensation" and
"medical compensation" under the Workers' Compensation Act). Our
decision does not affect the amount of total indemnity compensation
plaintiff will receive under the Commission's award, of which
plaintiff's attorney is entitled a one-fourth interest under the
terms of the award.
Further, many of the assignments of error
asserted by defendants focus on the credibility determinations by
the full Commission, an area in which, as thoroughly discussed
above, this Court is bound by the findings of the Commission if
supported by any competent evidence. We find this to be an
appropriate case to exercise our discretion and
request for attorney's fees for the cost of this appeal. See
, 122 N.C. App. at 477, 470 S.E.2d at 354.
We remand this
matter to the Commission for a determination of the amount of
reasonable attorney's fees owed plaintiff as a result of this
Affirmed in part and remanded in part.
Judges HUNTER and CALABRIA concur.
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