Appeal by plaintiff from an opinion and award entered 18
February 2002 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 13 March 2003.
Brent Adams & Associates, by Brenton D. Adams, for plaintiff-
appellant.
Cranfill, Sumner & Hartzog, L.L.P., by Samuel H. Poole, Jr.,
for defendants-appellees.
McGEE, Judge.
Roderick L. King (plaintiff) sustained a compensable injury at
his place of employment on 25 January 1995 when his right arm was
pulled into a tire machine. Kelly Springfield Tire Co. (employer)
filed a Form 60 Admission of Employee's Right to Compensation dated
12 June 1995. On the date of plaintiff's injury, plaintiff was
examined in a hospital emergency room and was diagnosed with an
abrasion to his right shoulder and spiral fractures of the fourthfinger on his right hand. Plaintiff was subsequently treated by
Dr. Louis Clark, who referred plaintiff to Dr. Lucas Van Tran for
nerve conduction studies in order to rule out a brachial plexus
injury. Dr. Van Tran testified that nerve conduction velocity
studies and electro diagnostic tests performed on 13 February 1995
showed that the nerves and muscles in plaintiff's right arm,
shoulder and hand were normal. Plaintiff continued to receive
follow-up treatment, primarily for pain in his shoulder and arm.
Dr. Clark suspected plaintiff was suffering from a rotator cuff
tear and referred plaintiff to Dr. Stanley Gilbert, who performed
surgery on 11 July 1995.
Plaintiff still continued to complain of difficulties
associated with his right arm. However, repeat nerve studies on 19
September 1995, conducted by Dr. Van Tran were normal for all
functions, including brachial plexus functions. Dr. Van Tran
testified that in September of 1995 there was no evidence of nerve
injury to plaintiff's arm.
Plaintiff was referred to a work hardening program by Dr.
Gilbert, which plaintiff completed on 1 November 1995. However, a
1 November 1995 report indicated that while plaintiff had completed
the work hardening program, he had not put forth maximum effort.
Dr. Gilbert noted on 1 November 1995 that plaintiff had full range
of motion in his shoulder, did not have any complaints of pain, and
the muscle strength in plaintiff's shoulder and arm appeared
satisfactory. Therefore, Dr. Gilbert felt that plaintiff had
reached maximum medical improvement, releasing him with a permanentpartial disability rating of twenty percent to the right arm and a
twenty pound weight restriction, based primarily on the subjective
complaints of plaintiff.
Plaintiff obtained a second opinion from Dr. Frank Rowan, who
diagnosed plaintiff with persistent right shoulder impingement
syndrome post/arthroscopic decompression with a residual spur. Dr.
Rowan testified that the spur was a pre-existing condition that
plaintiff had most likely developed over his lifetime. Dr. Rowan
performed an arthroscopic procedure to remove the spur from
plaintiff's shoulder on 22 January 1996. However, plaintiff
continued to complain of pain and progressed slowly in physical
therapy following his surgery. During an examination of plaintiff
by Dr. Rowan on 21 February 1996, plaintiff complained of pain in
his right shoulder despite injections to treat the pain.
Plaintiff was involved in a motor vehicle accident in which
his vehicle was rear-ended and demolished by another vehicle on 7
March 1996. Following this accident, plaintiff complained of pain
and stiffness in his lower back, neck, and shoulder.
Plaintiff saw Dr. Rowan on 12 March 1996. Dr. Rowan found a
significant psychological overlay to plaintiff's complaints and
could find no medical reason for plaintiff's complaints of pain.
During a 2 April 1996 visit, Dr. Rowan again found no objective
sign for plaintiff's pain; he placed a lifting restriction on
plaintiff of forty pounds and explained to plaintiff that he was
physically healed. Dr. Rowan increased plaintiff's lifting
restriction to seventy pounds in July 1996, allowing plaintiff tohold a position as a forklift operator; Dr. Rowan indicated that
plaintiff had reached maximum medical improvement and assigned a
fifteen percent permanent partial disability rating for plaintiff's
right upper extremity. Following this July 1996 appointment,
plaintiff continued to go to Dr. Rowan's office for follow-up
visits until he did not show up for two scheduled appointments on
15 October and 5 November 1996. Plaintiff contends his employer
did not allow him to return to Dr. Rowan after employer terminated
his employment. However, a 30 April 1998 letter indicates that
upon request for further medical treatment, employer authorized
plaintiff to return to Dr. Rowan, Dr. Gilbert, or Dr. Van Tran.
Employer paid temporary total workers' compensation benefits
to plaintiff until 9 July 1996, when plaintiff returned to work for
employer. Plaintiff argues that even though he returned to work in
July 1996, he did not begin operating a forklift for at least one
and a half months. Plaintiff further claimed that he sat in an
office doing "make work" from July 1996 until approximately October
1996. However, Dr. Rowan stated in his clinic notes on 23 July
1996 that plaintiff's "employer has been kind enough to give him a
job operating a forklift with all hydraulic controls and he seems
to like this [job] and is doing well." Plaintiff's supervisor,
Bernard Armstrong (Armstrong), also testified that plaintiff
returned to work as a forklift operator in the summer of 1996. The
forklift operator position required plaintiff to sit on the
forklift and use the steering wheel and hydraulic controls to
control the vehicle. Plaintiff claimed that he was only able touse one arm to operate the forklift. However, Armstrong testified
that while it is possible, it would be very awkward to operate a
forklift with one hand, and that he never recalled any complaints
with plaintiff's operating a forklift. Claimant was never required
to lift more than forty pounds when he returned to work for
employer.
Plaintiff continued to work as a forklift operator for
employer without incident until 28 October 1996 when he was
investigated for soliciting money from his co-workers under false
pretenses. Armstrong received a report that plaintiff had told
associates that a fellow employee's brother had been killed in an
automobile accident and that plaintiff had attempted to collect
money for the family. After at first denying he had done so,
plaintiff admitted to supervisory personnel that he had solicited
money from several associates on the basis of a co-worker's brother
having been killed in a car accident. Complaints against plaintiff
were investigated by employer and employer concluded plaintiff had
fabricated the story about a co-worker's brother. Employer fired
plaintiff on 4 November 1996.
Supervisory personnel from employer testified that plaintiff
was a good employee who performed his job well, and that, but for
the false solicitation of funds, plaintiff would not have been
terminated from his job as a forklift operator. Plaintiff's
termination report of 4 November 1996 stated that "the Company
cannot tolerate the practice of allowing an associate to solicit
money from other associates under false pretense, which is clearlyfraud and theft."
Plaintiff continued to complain of heaviness and numbness in
his entire upper extremity and was treated periodically by Dr.
Gilbert for these symptoms. Dr. Gilbert again referred plaintiff
to Dr. Van Tran for further nerve studies, which were conducted on
28 July 1997. Dr. Van Tran found no evidence of any injury in
plaintiff's wrist, forearm, arm, armpit, or neck. Dr. Van Tran
testified that plaintiff's compound muscle and sensory nerve action
tests were normal and that there was no evidence of a brachial
plexus injury or any other nerve injury.
A Form 26 Agreement was approved by the N.C. Industrial
Commission (the Commission) on 16 December 1997, which included a
compromise of 17.5 percent permanent partial disability rating for
plaintiff's shoulder.
Dr. Collins, a neurologist, saw plaintiff on 25 February 1998
on referral from plaintiff's family physician, Dr. Livingston. Dr.
Gilbert also gave plaintiff a referral to Dr. Collins on 20 May
1998. Dr. Collins performed an EMG and nerve conduction studies on
plaintiff on 10 March 1998. The results of these tests were
abnormal and consistent with a brachial plexus injury. Initially,
Dr. Collins was of the opinion that such an injury could have
resulted from the injury plaintiff sustained on 25 January 1995.
However, when Dr. Collins was presented with the normal nerve
studies conducted by Dr. Van Tran, Dr. Collins changed his opinion,
stating that if plaintiff's injuries were caused by his accident at
work, plaintiff's September 1995 and July 1997 nerve studies wouldhave been abnormal; therefore, the 25 January 1995 accident could
not have caused the brachial plexus injury.
Plaintiff was further evaluated by an orthopedist, Dr. Kevin
Speer, on 21 June 1999. Dr. Speer noted no atrophy of the right
shoulder and, based on plaintiff's subjective symptoms, Dr. Speer
diagnosed shoulder osteoarthritis with a potential mild brachial
plexapathy. Dr. Speer also noted a significant psychogenic
component to all symptoms, with an inconsistent distribution of
pain patterns. Dr. Speer felt that proper treatment of plaintiff's
condition would include shoulder arthroplasty or prosthetic joint
replacement. Dr. Speer testified in his deposition that the type
of injury plaintiff suffered "would be consistent with one that
would cause a shoulder arthritis to develop." Dr. Speer further
testified that he believed the shoulder arthritis was caused by the
January 1995 accident. Dr. Speer said that the shoulder arthritis
had progressed from that which had existed at the time of
plaintiff's prior surgeries and that the osteoarthritis condition
would likely worsen in the future.
Dr. Speer stated that plaintiff could be treated by performing
total shoulder arthroplasty, which would involve prosthetic
replacement of the shoulder socket joint and humeral head.
However, Dr. Speer noted that the prosthetic shoulder would likely
need to be replaced in ten to fifteen years. Dr. Speer did not
believe that plaintiff was malingering or engaging in symptom
magnification.
Plaintiff filed three motions with the Commission on 7 October1999: (1) a motion to strike and set aside the Form 26 Agreement
approved by the Commission on 16 December 1997, (2) a motion for
review of award and for increase of benefits pursuant to N.C. Gen.
Stat. § 97-47, and (3) a motion to compel payment of temporary
total disability benefits. In an order dated 26 October 1999,
these motions were denied and a finding that the issues raised by
the motions required findings of fact that "may only be addressed
in a full evidentiary hearing before a Deputy Commissioner upon the
filing of a Form 33 Request for Hearing." Plaintiff filed a Form
33 request for hearing on 29 October 1999. The parties entered
into a pre-trial agreement stipulating, inter alia, that a
compensable injury to plaintiff resulted from the 25 January 1995
accident, that plaintiff's average weekly wage at the time of the
accident was $978.43. The pre-trial agreement also identified the
possible witnesses for the hearing and the issues for
determination. A deputy commissioner entered an order on 30 March
2001, finding that plaintiff had constructively refused suitable
employment by way of his fraudulent conduct at work and concluded
that plaintiff had failed to show any additional disability or
change of condition. The deputy commissioner denied plaintiff's
request for additional workers' compensation benefits. Plaintiff
appealed this decision to the Commission. The Commission entered
an opinion and award on 18 February 2002 affirming the opinion of
the deputy commissioner with minor modifications. Plaintiff
appeals from the opinion and award.
Plaintiff has not submitted an argument in support ofassignment of error number four, and that assignment of error is,
therefore, deemed abandoned. N.C.R. App. P. 28(b)(6).
I.
Plaintiff argues that the Commission erred in finding as fact
that plaintiff solicited money from his co-workers under false
pretenses when there was no competent evidence to support that
finding; and the Commission therefore erred in concluding that
plaintiff was discharged for misconduct unrelated to his
compensable injury and thus constructively refused employment. In
reviewing an opinion and award from the Commission, our review "'is
limited to a determination of (1) whether the findings of fact are
supported by competent evidence, and (2) whether the conclusions of
law are supported by the findings.'"
Guy v. Burlington Industries,
74 N.C. App. 685, 689, 329 S.E.2d 685, 687-88 (1985) (quoting
Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678
(1980)).
As to plaintiff's first argument, we note that he has not
assigned error to finding of fact number sixteen. Findings of fact
not assigned as error are deemed supported by competent evidence
and are conclusive on appeal.
Taylor v. Bridgestone/Firestone,
Inc., ___ N.C. App. ___, ____, 579 S.E.2d 413, 414 n.1 (2003).
Finding of fact number sixteen states:
Mr. Malone testified, and the Full
Commission accepts as fact, that plaintiff-
employee was terminated from his employment
for soliciting funds from co-workers under
false pretenses in violation of company policy
and that other employees would have been
terminated for similar reason. Mr. Malone
testified that plaintiff initially denied thisconduct in the course of defendant-employer's
investigation, however, that plaintiff
subsequently admitted that he had made false
statements to co-employees for the purpose of
receiving money. Plaintiff, therefore, was
discharged for reasons unrelated to his
compensable workers' compensation injury. All
evidence is that plaintiff could have
continued in employment and would not have
sustained any disability absent his
termination for misconduct.
Although plaintiff challenges finding of fact number twelve, we
need not address that argument because, as noted below, finding of
fact number sixteen fully supports the Commission's conclusion of
law that "[p]laintiff, by soliciting money from his co-workers
under false pretenses and causing his termination, [for conduct for
which a non-disabled employee would be terminated], constructively
refused employment." However, even though this would not
automatically bar plaintiff from benefits if he continued to suffer
a diminution in wage-earning capacity as a result of his work-
related injury, in this case the Commission found and concluded
that plaintiff had not proved a continuing loss of wages due to his
injury.
See Seagroves v. Austin Co. of Greensboro, 123 N.C. App.
228, 233-34, 472 S.E.2d 397, 401 (1996) ("the test is whether the
employee's loss of, or diminution in, wages is attributable to the
wrongful act . . . or whether such loss . . . is due to the
employee's work-related disability, in which case the employee will
be entitled to benefits . . . ."). Plaintiff's first argument is
therefore overruled.
II.
Plaintiff also argues that the Commission erred in admittinginto evidence hearsay statements contained in defendant's exhibit
number three. Exhibit number three is the disciplinary action
record of plaintiff concerning plaintiff's discharge from
employment. Exhibit number three is a record written by Mr.
Malone, who testified at the hearing before the deputy
commissioner. Despite plaintiff's arguments to the contrary, the
record contains no statements by co-workers as to whether plaintiff
solicited them for money, such as the statements contained in
excluded exhibits numbers one and two. The only statements
referenced in the record are the statements of plaintiff himself,
admissible under N.C. Gen. Stat. § 8C-1, Rule 804(b)(3).
Plaintiff's second argument is overruled.
III.
Plaintiff next argues that the Commission erred in concluding
that plaintiff was entitled to no further benefits under the
Workers' Compensation Act because he constructively refused
suitable employment. As discussed above, plaintiff did not take
exception to finding of fact number sixteen and therefore the
finding of fact is presumed to be supported by competent evidence
and conclusive on appeal.
See Taylor, ___ N.C. App. at ___, 579
S.E.2d at 414 n.1. On appeal we must determine whether the
findings of fact support the conclusions of law.
Guy, 74 N.C. App.
at 689, 329 S.E.2d at 687.
Finding of fact number sixteen supports
the conclusion that plaintiff constructively refused suitable
employment.
See Seagroves, 123 N.C. App. at 234, 472 S.E.2d at
401. Thus, the burden shifts to plaintiff to establish disabilityby making a showing that he cannot find and retain a suitable job
with another employer that enables him to earn wages at pre-injury
levels.
Id. Finding of fact number thirteen states: "At the
hearing, Plaintiff testified that as of the date of the hearing in
the matter, he had made no independent efforts to locate suitable
employment in an effort to return to work." Plaintiff's testimony
supports this finding that he had not made an attempt to look for
work in the last two years. Plaintiff failed to meet his burden.
Therefore, the Commission's conclusions that plaintiff was not
entitled to additional benefits and that plaintiff constructively
refused employment are supported by the Commission's findings of
fact. This argument is overruled.
IV.
Plaintiff argues that the Commission erred in finding that the
plaintiff's current symptoms are not causally related to his 1995
work injury because the record is devoid of any evidence to support
such a finding. Plaintiff challenges several findings of fact in
this argument. Our review of this issue is to determine whether
there is any competent evidence to support the findings of fact
made by the Commission and whether those findings of fact 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 Commission is the sole judge of credibility of
testimony.
Rackley v. Coastal Painting, 153 N.C. App. 469, 472,
570 S.E.2d 121, 124 (2002) (citation omitted). On appeal, we do
not reweigh the evidence.
Whitfield v. Laboratory Corp. ofAmerica, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (2003).
A
conflict in medical testimony need not be resolved in favor of the
plaintiff.
Rooks v. Cement Co., 9 N.C. App. 57, 58, 175 S.E.2d
324, 325 (1970).
If there is any competent evidence to support the
Commission's findings, they are conclusive on appeal, "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).
Plaintiff challenges the portion of finding of fact number
three that states, "There was no evidence of injury in plaintiff's
wrist, forearm, armpit or neck." While in isolation this statement
appears erroneous, when taken in context with the entire finding of
fact number three, it relates only to the results of the nerve
studies conducted on plaintiff by Dr. Van Tran. There is evidence
in the record that Dr. Van Tran was qualified to conduct such
studies and interpret them. There is also competent testimony in
the record by Dr. Van Tran that the nerve studies he conducted
revealed no nerve injury to plaintiff's wrist, forearm, armpit, or
neck. This finding of fact is thus deemed conclusive on appeal.
Plaintiff challenges finding of fact number four which states:
Plaintiff's symptoms did not resolve and
he was referred to Dr. Collins, neurologist,
for more studies, which were performed on
March 10, 1998. This time the results were
consistent with a brachial plexus injury, but
Dr. Collins opined that given the normal
results obtained by Dr. Van Tran in 1996 and
1997, the compensable injury plaintiff
sustained in 1995 could not have been the
cause of the brachial plexus injury.
We first note that in plaintiff's assignment of error for this
finding, as well as for findings of fact six, eight and nine, heclaims that this finding is contrary to the weight of the evidence.
As frequently stated by this Court, that is not the correct basis
for our review. We will not overturn a finding of fact merely
because it is against the weight of the evidence; it must be
completely devoid of support by any competent evidence.
See
Whitfield, ___ N.C. App. at ___, ___ S.E.2d at ___. This finding
of fact is supported by the testimony of Dr. Collins, who was
qualified to give such testimony. This finding is conclusive on
appeal.
Plaintiff challenges finding of fact number six which states:
Plaintiff continued to complain of pain,
which puzzled Dr. Rowan, who believed
plaintiff should have experienced relief from
his treatment. Drs. Rowan and Collins opined
that there is no medical explanation for
plaintiff's continued complaints of pain and
noted a psychological component to plaintiff's
symptoms. Furthermore, in his physical
therapy sessions, plaintiff was observed
engaging in full use of his arm when he
thought no one was watching him.
There is competent testimony by both Dr. Rowan and Dr. Collins to
support this finding of fact. There is a stipulation that Dr.
Rowan was qualified to give such testimony; and there is evidence
to show Dr. Collins was qualified to give such testimony. This
finding is also conclusive on appeal.
Plaintiff challenges finding of fact number nine which states:
On July 23, 1996, plaintiff reported to
Dr. Rowan that he was enjoying his job as
forklift operator. Dr. Collins opined that
plaintiff was capable of performing this job.
Plaintiff never reported any difficulties
performing his job, but plaintiff testified at
the hearing that he could only perform the job
with one hand.
There is competent evidence in the record of plaintiff's statement
to Dr. Rowan. There is also competent testimony by Dr. Collins
that plaintiff was capable of performing his job. There is also
competent testimony in the depositions and at the hearing that
plaintiff never reported any difficulties in performing his job.
Further, plaintiff testified that he could only do the job with one
hand. This finding of fact is supported by competent evidence and
thus conclusive on appeal.
Plaintiff challenges finding of fact number eight in so far as
it indicates that driving a forklift was a suitable job for
plaintiff. We note that there is competent evidence in the record,
including statements by plaintiff to Dr. Rowan, testimony by both
plaintiff's direct supervisor and the former business manager that
plaintiff could perform the job of operating a forklift, as well as
medical testimony that plaintiff was capable of performing such
work. This finding of fact is deemed conclusive.
Plaintiff challenges finding of fact number eleven to the
extent that it states that Dr. Collins found that plaintiff's
brachial plexus injury was not related to his 1995 injury. As
discussed in our review of finding of fact number four, such a
finding is supported by competent evidence in the record, and
therefore is deemed conclusive on appeal.
The Commission stated in finding of fact number fourteen:
The Full Commission gives greater weight
to the testimony of Drs. Van Tran, Rowan,
Collins and Gilbert over that of Dr. Speer
regarding whether there is a causal
relationship between plaintiff's current
symptoms and his original injury of 1995because Dr. Speer only evaluated plaintiff
once while the others collectively and
individually treated plaintiff over a period
of time offering specific treatment plans.
Plaintiff also claims this finding is not supported by competent
evidence in the record. However, the record reveals that plaintiff
was treated by Drs. Van Tran, Rowan, Collins and Gilbert over a
significant period of time, while plaintiff was treated by Dr.
Speer on only one occasion. This is a valid basis for the
Commission to find the testimony of Drs. Van Tran, Rowan, Collins
and Gilbert more credible than the testimony of Dr. Speer.
See
Whitfield, ___ N.C. App. at ___, ___ S.E.2d at ___. Accordingly,
finding of fact number fourteen is deemed conclusive on appeal.
Plaintiff argues that finding of fact number seventeen is not
supported by competent evidence in the record. Finding of fact
number seventeen states:
The competent evidence in the record
establishes that plaintiff's current symptoms
are not causally related to his 1995 work-
related injury and thus plaintiff is not
entitled to further benefits beyond November
4, 1996 when plaintiff was discharged for
actions unrelated to his original compensable
injury.
As discussed above, the Commission properly found the testimony of
Drs. Van Tran, Rowan, Collins and Gilbert more credible than that
of Dr. Speer. We also note that plaintiff does not challenge
finding of fact number fifteen, in which the Commission stated that
the testimony by defendants' witnesses was entitled to greater
weight than the testimony of plaintiff's witnesses. Upon review of
the record we find competent evidence in the record to support theCommission's finding of fact number seventeen. Dr. Rowan testified
that there was no medical explanation for plaintiff's continued
complaints of pain and noted that prior to plaintiff's release,
plaintiff was observed engaging in full use of his arm when he
thought no one was watching. Dr. Gilbert testified that he could
not find a cause for plaintiff's pain symptoms. He further
testified that plaintiff suffered from cervical cord syrinx, but
that there was no relationship between that condition and his 1995
injury. Dr. Van Tran testified that plaintiff's compound muscle
and sensory nerve action tests were normal. When plaintiff was
referred in 1998 to Dr. Collins, a neurologist, Dr. Collins
conducted nerve studies and compared them to the nerve studies done
by Dr. Van Tran over the previous two years. While Dr. Collins
testified that the 1998 test results were consistent with a
brachial plexus injury, he also testified that due to the normal
tests conducted by Dr. Van Tran in 1996 and 1997, the 1995 injury
could not have caused the brachial plexus injury. Our discussion
of the previous findings of fact excepted to by plaintiff supports
our conclusion that this finding is supported by competent evidence
in the record. While there is testimony in the record by Dr. Speer
that plaintiff's current symptoms were the result of the 1995
injury, it is not our duty to reweigh the evidence.
Whitfield, ___
N.C. App. at ___, ___ S.E.2d at ___.
We hold there is competent
evidence sufficient to support the Commission's finding of fact
number seventeen, that plaintiff's current symptoms are not
causally related to his 1995 work-related injury. Therefore, it isdeemed conclusive on appeal.
See Morrison, 304 N.C. at 6, 282
S.E.2d at 463.
We note that, although plaintiff cites the Commission's
conclusions of law as error under this argument in his brief, he
puts forth no argument on that basis here; therefore, we will not
address that claim under this argument. As all of the findings of
fact excepted to by plaintiff are supported by competent evidence
in the record, plaintiff's argument is overruled.
V.
Plaintiff argues that the Commission erred in failing to order
additional medical benefits for plaintiff. Plaintiff cites three
assignments of error in making this argument, one of which deals
with the Commission's conclusion that plaintiff is not entitled to
any additional benefits generally. In plaintiff's assignments of
error, he does not specifically cite error to the Commission's
findings and conclusions as they relate to continuing medical
benefits under N.C. Gen. Stat. § 97-25. However, plaintiff did
make a request in his original motion for review of award for the
Commission to order defendant "to pay all medical expenses for care
and treatment of injuries sustained in the compensable accident of
January 25, 1995, including injury to his right shoulder, right
arm, right hand and fingers, neck, both knees, chest, back,
depression, anxiety and post traumatic stress disorder."
Plaintiff also filed a Form 18M seeking additional medical
compensation on 1 April 1998. In the pre-trial agreement entered
by the parties, plaintiff identifies as one of the issues forresolution: "Whether the claimant is entitled to further medical
care and treatment . . . as the result of his compensable injury by
accident . . . ." We note that plaintiff did not raise this issue
before the Commission when appealing from the deputy commissioner's
decision, except in so far as the broad exception that the deputy
commissioner erred in concluding that plaintiff was not entitled to
any additional benefits. However, given the references by
plaintiff to his request for further medical compensation, the
issue was before the deputy commissioner, who concluded that
plaintiff is entitled to no further benefits. The Commission
affirmed the deputy commissioner's conclusion, adopting it verbatim
as its own conclusion of law.
As stated above, our Court reviews whether conclusions of law
are supported by the findings of fact in an opinion and award.
Lineback, 126 N.C. App. at 680, 486 S.E.2d at 254.
Plaintiff has
put forth no argument in support of his contention that the trial
court erred in concluding that plaintiff had not shown a change in
conditions to satisfy N.C. Gen. Stat. § 97-47; therefore, we deem
that assignment or error to be abandoned. N.C.R. App. P. 28(b)(6).
However, in seeking a request for further medical treatment under
N.C.G.S. § 97-25, there is no requirement that plaintiff show a
"change of condition" as required by N.C. Gen. Stat. § 97-47
(2001).
Hyler v. GTE Products Co., 333 N.C. 258, 262-63, 425
S.E.2d 698, 701 (1993).
In an action for additional compensation
for medical treatment, the medical treatment
sought must be "directly related to the
original compensable injury."
Pittman v.Thomas & Howard, 122 N.C. App. 124, 130, 468
S.E.2d 283, 286,
disc. review denied, 343 N.C.
513, 472 S.E.2d 18 (1996). If additional
medical treatment is required, there arises a
rebuttable presumption that the treatment 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.
Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259,
523 S.E.2d 720, 723 (1999).
In the present case, plaintiff sought additional medical
treatment allegedly related to his 1995 injury. Therefore, the
burden is on defendant to show this treatment is not directly
related to the compensable injury.
Id. While the Commission made
numerous findings of fact that plaintiff's current symptoms are not
related to the 1995 injury and that the evidence establishes that
plaintiff's current symptoms are not causally related to the 1995
injury, that analysis appears to be done under the rubric of
whether the plaintiff has met his burden of establishing causation
in order to be entitled to compensation benefits. In making a
determination of whether additional medical benefits are required,
the burden has shifted to defendant.
See id. We cannot determine
that a finding based on that standard of proof has been made by the
Commission and thus remand to the Commission for a finding, without
taking additional evidence, of whether defendant has met its
"burden of producing evidence showing the treatment is not directly
related to the compensable injury."
Id. We note that while much
of the evidence in the record may relate to both the question of
causation, where the burden is on the employee, and entitlement toadditional medical compensation, where the burden is on the
employer to show the additional treatment was not related to the
compensable injury, the Commission must make separate findings as
to each, given the differing burdens of proof.
Affirmed in part; remanded in part.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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