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1. Workers' Compensation_interlocutory order_reconsideration_notice
The Industrial Commission was not precluded in a workers' compensation case from revisiting an earlier order which did not determine all of the issues between the parties; however, the parties should have had notice that an issue might be reached and should have had an opportunity to present pertinent evidence.
2. Workers' Compensation_unauthorized treatment_physician's testimony_competent
The fact that a physician is not authorized by the Commission means that the employer and carrier cannot be required to pay for treatment, but does not render the physician's evidence incompetent.
3. Workers' Compensation_remand_law of the case
Determinations about an injury which were not appealed by plaintiff became the law of the case and, although addressed by defendant in its brief on appeal, may not be revisited on a remand on other grounds.
Wayne W. Martin for plaintiff-appellee.
Orbock, Ruark & Dillard, PC, by Barbara E. Ruark, for defendants-appellees.
Defendants Carolina Shoe Company and N.C. Insurance Guaranty Association appeal from an opinion and award of the Industrial Commission, awarding plaintiff Janet Branch total disability compensation based on a change of condition under N.C. Gen. Stat.§ 97-47 (2003). On appeal, defendants argue that the Full Commission was bound by its decision remanding the case for an evidentiary hearing on specified issues and that the Commission, therefore, erred when its subsequent opinion and award went beyond those specified issues. Although we hold that the Full Commission was not limited by its earlier decision, it was obligated to give the parties notice and an opportunity to be heard prior to basing its decision on issues that the parties had no reason to believe would be addressed. We, therefore, reverse the Commission's decision and remand for further proceedings to allow the parties an adequate opportunity to present evidence on the question whether there was a change of condition under N.C. Gen. Stat. § 97-47.
32. Plaintiff reached maximum medical
improvement no later than 16 September 1997.
She has a permanent impairment rating of 20%
to her left foot.
Based on its findings, the Commission concluded that Branch had
unjustifiably refused to comply with her physicians'
recommendations that she increase her level of activity, including
her work hours, in order to improve. It, therefore, suspended her
eligibility for wage loss compensation as of 16 September 1997.
The Commission also concluded that Branch was not entitled, for the
same reasons, to payment for medical treatment after that date.
The Commission directed that "[i]n order to reinstate benefits, plaintiff must comply with the following work schedule: Plaintiff must begin working four hours a day regularly for a period of two weeks, then increase her daily work schedule by onehour each successive week until she reaches a regular schedule of eight hours per day." Neither party appealed from this opinion and award.
One month later, on 5 April 1999, Branch filed a Form 18 that alleged a "worsening in her pain syndrome from the work related injury." The nature and extent of this injury was reported to be "[c]omplex regional pain syndrome involving the predominantly right lower extremity as well as right upper extremity secondary to work related injury to the right lower extremity." Plaintiff claimed her disability started on 6 November 1997.
On 25 September 2000, deputy commissioner Richard B. Ford filed an order addressing two motions of plaintiff: (1) a motion to combine plaintiff's original claim (I.C. No. 453005) with her new claim (I.C. No. 921804) for purposes of hearing, and (2) a motion to reopen I.C. No. 453005 for change of condition. The deputy found that Branch had not appealed from the prior opinion and award and had not complied with it, that the terms and conditions in I.C. No. 453005 were the law in the case, that there had been no change of condition with respect to plaintiff's right foot, and that I.C. No. 921804 sought recovery for an upper extremity injury occurring on 5 November 1997. He ordered that the 31 December 1997 opinion and award was still in full force and effect and that I.C. No. 921804 would be set for hearing. Plaintiff appealed this decision to the Full Commission on 5 October 2000. In an opinion and award filed 20 March 2002, the Full Commission concluded first that "[p]laintiff is entitled to file a motion to modify the Commission's Award based on a change of condition under Section 97-47 and is entitled to present evidence relevant to this issue." After concluding that the findings of fact and conclusions of law in the 17 February 2000 opinion and award were final and could not be relitigated, the Commission observed that "this fact does not preclude plaintiff from asserting and presenting relevant evidence on a change of condition under Section 97-47."
The Commission then concluded that this case differed from the usual N.C. Gen. Stat. § 97-47 change of condition claim because of the Commission's prior findings that (1) plaintiff has self-imposed limitations and failed to comply with her physicians' treatment plan, (2) the benefits had been suspended, and (3) plaintiff's upper extremity pain syndrome, as argued in I.C. No. 453005, is not related to her compensable lower extremity injury. The Commission, therefore, concluded that evidence that plaintiff's condition had gotten worse would not "purge the prior finding that plaintiff failed to accept suitable employment and thereby is not entitled to benefits under Section 97-32. Therefore, mere evidence that plaintiff's condition has worsened is not relevant to the issues before the Commission."
The Commission then remanded to the deputy commissioner for a hearing on specified issues:
[T]he issues raised by plaintiff's Form 18 in I.C. No. 921804 and the motion for change ofcondition in I.C. No. 453005 are: (1) whether plaintiff has complied with her physician's treatment plan and reasonably sought employment sufficient to remove the Section 97-32 suspension of benefits; (2) whether plaintiff has sustained a compensable injury to her right upper extremity in I.C. No. 921804 that is different from the condition for which compensation was previously sought and denied in I.C. No. 435005; and if so, (3) what benefits, if any, is plaintiff entitled to receive.
On remand, a hearing took place before deputy commissioner Ronnie E. Rowell, and the parties took the depositions of Dr. Mark McManus, Dr. Gary Poehling, and Dr. Hans Hansen. Following the closing of the record, the deputy commissioner transferred the matter to the Full Commission.
The Full Commission entered its opinion and award on 6 April 2004. The Commission first observed that the medical depositions would support findings that plaintiff's complex regional pain syndrome migrated from her lower extremity to the upper extremity, that the tag room position exacerbated the upper extremity pain syndrome and that, as of December 1997, plaintiff was unable to work in any job due to the complex regional pain syndrome in her upper and lower extremities. The Commission then found (1) that plaintiff had presented no evidence that she had made any effort to seek employment or to comply with the 17 February 1999 opinion and award, (2) that plaintiff presented no evidence of a new onset of an occupational disease or new injury in I.C. No. 921804, and (3) that the issues concerning plaintiff's upper extremity condition and its relationship to her compensable right foot condition and the tag room job "have previously been litigated and ruled upon bythe Full Commission. The Full Commission decisions on these issues were not appealed and therefore are final and binding on the parties."
The Commission then ruled that the only remaining issue was whether plaintiff had sustained a change of condition. The Commission acknowledged that its 20 March 2002 opinion and award had stated that "mere evidence that plaintiff's condition has worsened is not relevant to the issues before the Commission," but found that "the recently submitted uncontroverted medical evidence in the deposition testimony of Drs. Poehling, Hansen and McManus shows that plaintiff was not capable of work in any employment after December 18, 1997 due to the pain syndrome in both upper and lower extremities." The Commission added that "[t]here is no medical evidence in the record that since December 1997 plaintiff was capable of returning to work in any employment or that working would improve her condition."
Based on these findings, the Commission concluded that plaintiff's upper extremity condition was not compensable under either I.C. No. 453005 or I.C. No. 921804. The Commission concluded, however, that as of 18 December 1997, plaintiff was no longer capable of work in any employment due to the combination of her compensable complex regional pain syndrome in her lower extremity and her non-compensable complex regional pain syndrome in her upper extremity. Because no medical evidence was presented to apportion the extent of disability between the compensable condition and the non-compensable condition, the Commissionconcluded that plaintiff was entitled to a resumption of total disability compensation after 18 December 1997 "and continuing until further Order of the Commission."
The Commission also concluded that plaintiff was entitled to authorized medical treatment related to the compensable right foot condition, but because Drs. Poehling, McManus, and Hansen were not authorized treating physicians, plaintiff was not entitled to payment by defendants of the care provided by those physicians. The Commission then directed that a Commission nurse be assigned to manage plaintiff's treatment, to assist the parties in the designation of an authorized treating physician, and to schedule a vocational assessment as recommended by Dr. Hansen.
Defendants filed a timely notice of appeal of the Full Commission's opinion and award. Plaintiff has not appealed any aspect of the opinion and award.
Id. at 312, 309 S.E.2d at 275. The Court then proceeded to
conclude that the Industrial Commission had no jurisdiction to
consider the plaintiff's claim and that the defendant's motion to
dismiss should have been granted. Id. at 315, 309 S.E.2d at 277.
We read this opinion as holding in part that the Commission must
first decide whether it has jurisdiction prior to reaching themerits. See Bryant v. Hogarth, 127 N.C. App. 79, 83, 488 S.E.2d
269, 271 ("Subject matter jurisdiction is a prerequisite for the
exercise of judicial authority over any case or controversy."),
disc. review denied, 347 N.C. 396, 494 S.E.2d 406 (1997).
We also believe that the Court's reference to a denial of the rights of the parties concerned the lack of notice and opportunity to be heard. See Allen v. K-Mart, 137 N.C. App. 298, 304, 528 S.E.2d 60, 64 (2000) ("The opportunity to be heard . . . [is] tantamount to due process and basic to our justice system. . . . Therefore, we hold that where the Commission allows a party to introduce new evidence which becomes the basis for its opinion and award, it must allow the other party the opportunity to rebut or discredit that evidence."). The requirement of due process does not, however, mean that the Commission may not revisit its interlocutory decisions. Instead, the Commission must, prior to making its decision, ensure that the parties have notice that an issue may be reached and an opportunity to present evidence pertinent to that issue.
In this case, because of the Commission's interlocutory opinion and award remanding to the deputy commissioner, defendants had no notice that the Commission would be addressing a change of condition or plaintiff's inability to comply with the mandated work schedule until after the Commission filed its 6 April 2004 opinion and award. Defendants, therefore, had no opportunity to obtain and present medical evidence on those issues. The Commission then relied upon this lack of evidence when it found: "There is nomedical evidence in the record that since December 1997 plaintiff was capable of returning to work in any employment or that working would improve her condition." Defendants justifiably contend that they "have now been penalized" by their adherence to the Commission's prior decisions. Accordingly, we reverse the Commission's decision and remand for further proceedings to allow the parties to present evidence on the questions whether plaintiff experienced a change of condition under N.C. Gen. Stat. § 97-47, whether plaintiff is capable of working in any employment, and whether working would improve plaintiff's condition.
 Since the issue may arise upon remand, we note that defendants have argued that the Commission erred in making its findings by relying upon the testimony of unauthorized physicians, but cite no authority in support of this position. The fact that a physician is not authorized by the Commission means that the employer and carrier cannot be required to pay for treatment by that physician. See Kanipe v. Lane Upholstery, 141 N.C. App. 620, 627, 540 S.E.2d 785, 789-90 (2000) (Commission could deny claim for medical expenses if physician not approved by Commission). It does not render the physician's evidence incompetent. The Commission did not, therefore, err in relying upon the opinions of Drs. Poehling, Hansen, and McManus even though they were not authorized treating physicians of plaintiff.
 Defendants have also addressed in their brief the question of the compensability of plaintiff's upper extremity condition. The Commission ruled in its 6 April 2004 opinion and award that (1)"[t]he findings and conclusions [in the 17 February 1999 opinion and award] that plaintiff's upper extremity complaints are not causally related to the compensable foot injury or to the tag room position are final and may not be relitigated," and (2) "[p]laintiff did not sustain an injury by accident or contract a compensable occupational disease involving her right upper extremity in I.C. No. 921804." Neither of these determinations has been appealed by plaintiff, and they are, therefore, the law of the case and may not be revisited on remand.
Reversed and remanded.
Judges TIMMONS-GOODSON and CALABRIA concur.
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