Appeal by plaintiff from an Opinion and Award filed 18 October
2004 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 16 November 2005.
Seth M. Bernanke for plaintiff-appellant.
Morris York Williams Surles & Barringer, LLP, by Susan H.
Briggs and Keith B. Nichols, for defendant-appellees.
Martha Falls Clark (plaintiff) appeals from an Opinion and
Award of the North Carolina Industrial Commission (Full Commission)
ordering her former employer, the Sanger Clinic, and its insurance
carrier, ITT Hartford Insurance Company, (defendants) to continue
paying plaintiff permanent total disability benefits, provide all
medical treatment arising from her compensable injury by accident,
provide modifications to plaintiff's house or assist plaintiff in
seeking alternative housing, and awarding interest on unpaid
Facts and Procedural History
Plaintiff was injured on 16 April 1993 while pushing a cart
transporting 600 to 800 pounds of equipment into an elevator. The
wheel of the cart became wedged in the threshold of the elevator,
and in her attempt to dislodge the wheel, plaintiff suffered an
admittedly compensable injury to her back. On 4 October 1999, the
Full Commission awarded plaintiff temporary total disability and
permanent total disability benefits, and, in part, ordered
defendants to provide all medical treatment arising from her injury
by accident, including subsequent falls resulting from her back
injury causing dental problems and a knee injury.
This matter was initiated on 8 February 2001 when plaintiff
filed a Form 33 Request that Claim be Assigned for Hearing,
claiming defendants had failed to pay plaintiff benefits and had
not modified plaintiff's home as previously ordered by the
Industrial Commission. The claim came before Deputy CommissionerAmy L. Pfeiffer on 18 October 2001. Deputy Commissioner Pfeiffer
filed her Opinion and Award on 14 October 2002. Plaintiff and
defendants filed a Notice of Appeal to the Full Commission on 22
October 2002. The claim was heard by the Full Commission on 2 May
2003 and a companion case was subsequently heard by the same panel
of the Full Commission on 2 March 2004. On 18 October 2004, the
Full Commission filed its Opinion and Award in this matter.
Plaintiff argues the Full Commission erred: (I) by holding
plaintiff's arthritic conditions in her knees are not compensable;
(II) by holding plaintiff's dental problems caused by dry mouth
syndrome are not compensable; (III) by failing to specify treatment
for plaintiff's esophageal reflux, constipation and nausea were
compensable; and (IV) by failing to award plaintiff attorney's
fees. For the following reasons, we disagree and affirm the
Opinion and Award of the Full Commission.
Standard of Review
Review by this Court of a decision by the North Carolina
Industrial Commission is limited to the determination of whether
any competent evidence supports the Commission's findings of fact
and whether [those] findings . . . support the Commission's
conclusions of law. Deese v. Champion Int'l Corp.
, 352 N.C. 109,
116, 530 S.E.2d 549, 553 (2000).
The Commission's findings of fact
are conclusive on appeal even where there is contrary evidence, and
such findings may only be set aside where there is a complete lackof competent evidence to support them. Johnson v. Herbie's Place
157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation
omitted); see also Adams v. AVX Corp.
, 349 N.C. 676, 681, 509
S.E.2d 411, 414 (1998). Our review goes no further than to
determine whether the record contains any evidence tending to
support the finding. Anderson v. Lincoln Constr. Co.
, 265 N.C.
431, 434, 144 S.E.2d 272, 274 (1965). However, the Commission's
conclusions of law are reviewed de novo
. McRae v. Toastmaster,
, 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
 Plaintiff first argues the Full Commission erred in
holding plaintiff's arthritic conditions in her knees are not
compensable. The Full Commission found that although meniscal
tears in plaintiff's knees were related to falls, and therefore
compensable, treatment for plaintiff's degenerative arthritis was
Plaintiff argues that, as the prior Opinion and Award includes
problems caused by falls as compensable conditions, it is not
plaintiff's burden to continually prove that treatment for these
problems is compensable; instead, it is defendants' burden to prove
that the need for treatment they dispute is not related. See
Parsons v. Pantry. Inc.
, 126 N.C. App. 540, 485 S.E.2d 867 (1997).
However, in Parsons
, the plaintiff was suffering from the exact
same complaint (headaches) for which she was initially awarded
medical expenses and future medical treatment. Id.
at 542, 485
S.E.2d at 869. This Court held that requiring the plaintiff toprove a causal relationship between her accident and her current
headaches in order to get further medical treatment ignored the
prior award. Id.
To require plaintiff to re-prove causation each
time she seeks treatment for the very injury
that the Commission
has previously determined to be the result of a compensable
accident is unjust and violates our duty to interpret the Act in
favor of injured employees. Id.
(Emphasis added). In the instant
case, plaintiff is suffering from degenerative arthritis, while at
the time of the initial award plaintiff suffered a compensable knee
injury caused by falls related to her compensable injury by
accident. Thus, plaintiff's reliance on Parsons
Plaintiff also contends that even if the burden were correctly
placed, if a compensable injury materially aggravates or
accelerates the need for treatment, that need is also compensable.
Little v. Anson County Sch. Food Ser.
, 295 N.C. 527, 532, 246
S.E.2d 743, 746 (1978). Plaintiff relies on testimony by Dr.
James Yates, Jr., who first saw plaintiff on 22 October 1998, to
support this argument.
Q: Do you have an opinion within a reasonable
medical probability as to whether her history
of falls and landing on the knee or twisting
when she fell would have materially
aggravated, would or could have materially
aggravated pre-existing arthritis of the knee?
A: Yes, sir. I absolutely believe that
certainly is, is the case.
However, plaintiff does not establish, and we are unable to find
any indication in the record before us, that she actually had apreexisting arthritic condition in her knees prior to her 16 April
1993 compensable injury by accident.
There is ample, competent evidence of Record to support the
Full Commission's findings of fact. When asked whether there was
a connection between torn or malpositioned menisci and/or loose
bodies in the knee and degeneration of the knee, Dr. Yates answered
I don't know. . . I don't think its well-accepted in the
orthopaedic community, specifically those of us who primarily do
knee surgery that a long-standing meniscal tear can cause arthritis
of the knee . . . . Dr. Yates further testified that it was not
uncommon for a woman of 50 years old to have severe arthritis in
both knees, particularly in a big person, and she is a very large
lady and that there was no question at all that obesity is a risk
factor for development of osteoarthritis. While there is evidence
of record to support a finding that plaintiff's falls could have
aggravated her degenerative knee condition, there is also testimony
of record that plaintiff's pre-existing obesity could have
aggravated the degenerative changes in her knees:
Q. And you indicated, I believe, that she
had fairly extensive degenerative changes
in her knee?
A. She really does.
Q. And would excessive weight aggravate that
Q. And she was obese when you first saw her.
Is that right?
The Full Commission is the ultimate finder of fact in a
workers' compensation case. Adams
, 349 N.C. at 681, 509 S.E.2d at
413. The Commission may weigh the evidence and believe all, none,
or some of the evidence. Hawley v. Wayne Dale Const.
, 146 N.C.
App. 423, 428, 552 S.E.2d 269, 272 (2001). The Full Commission
may accept or reject the testimony of a witness, either in whole
or in part, depending solely upon whether it believes or
disbelieves the same. Anderson v. Northwestern Motor Co.
N.C. 372, 376, 64 S.E.2d 265, 268 (1951). Finding of Fact Number
18 is supported by competent evidence and in turn supports the Full
Commission's conclusion that plaintiff's degenerative arthritic
condition and treatment related thereto is not compensable. This
assignment of error is overruled.
 Plaintiff similarly argues the Full Commission erred in
holding plaintiff's dental problems caused by dry mouth syndrome
are not compensable. The Full Commission found as fact:
Plaintiff also saw thereafter Dr. Jakubek on
many other occasions for treatment of
extensive cavities and to do other
restorative treatment. These extensive
problems could have been caused initially by
poor hygiene, by plaintiff being in a six-week
coma following her unrelated gastric bypass
surgery, by dry mouth that was possibly caused
by medications taken by plaintiff for medical
conditions, some of which were and some were
not related to the fall, or even from stones
in the salivary glands. Therefore, due to the
tenuous nature of any causal relationshipbetween plaintiff's compensable injury by
accident and the need for restorative
treatment, the Full Commission hereby finds
that Dr. Jakubek's restorative treatment, if
not directly related to a fall by plaintiff,
was unrelated to plaintiff's compensable back
injury and is not compensable.
The Full Commission then concluded as a matter of law that
defendants were not required to pay for restorative treatment
unrelated to falls by plaintiff.
Again, there is competent evidence of Record supporting the
Full Commission's findings. Dr. Joseph T. Jakubek, a general
dentist, testified regarding the cause of plaintiff's extensive
dental problems. Dr. Jakubek testified that plaintiff's dental
condition could have been caused by poor hygiene, xerostomia (dry
mouth syndrome) possibly brought on by plaintiff's medications,
stones in her salivary glands, or the six weeks that plaintiff was
in a coma following her unrelated gastric bypass procedure in 1998.
Dr. John Wilson, III, also testified that dry mouth syndrome was
a potential side effect of several of plaintiff's medications.
However, there is no testimony as to what actually
plaintiff's dental condition. While Dr. Wilson may have testified
with certainty that many of plaintiff's medications have dry
mouth syndrome as a side effect, there is no testimony that
plaintiff's dental condition was caused by dry mouth syndrome.
To show that the prior compensable injury caused the
subsequent injury, the evidence must be such as to take the case
out of the realm of conjecture and remote possibility, that is,
there must be sufficient competent evidence tending to show aproximate causal relation. Cooper v. Cooper Enters., Inc.
N.C. App. 562, 564, 608 S.E.2d 104, 106 (2005) (internal quotations
omitted). Based upon the testimony of record, the Full Commission
properly concluded that the causal relationship between plaintiff's
compensable injuries and the need for restorative dental treatment
was tenuous. Finding of Fact Number 21 is supported by competent
evidence and in turn supports the Full Commission's conclusion that
plaintiff's restorative dental treatment is not compensable. This
assignment of error is overruled.
 Plaintiff also argues the Full Commission erred by failing
to specify treatment for plaintiff's esophageal reflux,
constipation and nausea as compensable. When [a] 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. Vieregge v. N.C. State Univ.
105 N.C. App. 633, 638, 414 S.E.2d 771, 774 (1992). The only
testimony before the Full Commission regarding plaintiff's
esophageal reflux, constipation and nausea came from Dr. Wilson.
The Full Commission made the following findings of fact regarding
Dr. Wilson's treatment of plaintiff:
14. Upon her temporary move to South Carolina
in 1998, plaintiff presented to Dr. Wilson, an
internist, for medical management for chronic
low back pain and complications from recent
surgery. Plaintiff presented to the physician
while she was recovering from the unrelated
gastric bypass surgery, and she was noted to
be severely deconditioned. Because physical
therapy had been suggested upon her hospital
discharge, Dr. Wilson sent plaintiff tophysical therapy. This therapy was due mostly
to plaintiff's severe deconditioning and
complications stemming from the gastric bypass
surgery, and only in very small part to her
back. In fact, Dr. Wilson's first medical note
only references plaintiff's deconditioning due
to surgery as the reason for physical therapy.
This initial course of physical therapy
ordered by Dr. Wilson was unrelated to
plaintiff's compensable back or knee
conditions and is not compensable.
15. Dr. Wilson, over the course of his
treatment of plaintiff, treated plaintiff for
many unrelated medical conditions. These
conditions include but are not limited to
restrictive lung disease, osteopenia, a
hernia, and various illnesses such as upper
respiratory infections. None of the treatment
for these conditions or illnesses was related
to plaintiff's compensable conditions.
However, any treatment by Dr. Wilson that
actually was related to her compensable back
and knee conditions, including but not limited
to prescriptions for diet pills, was
reasonably necessary to effect a cure or give
relief, and defendants are therefore obligated
to provide this treatment. It was reasonable
for plaintiff to seek treatment by Dr. Wilson
to manage her medical care during the period
of time that she resided in South Carolina,
and to the extent that treatment by Dr. Wilson
related to the conditions found compensable by
the Full Commission, defendants are
responsible for payment of this treatment.
As in Issue II, supra
, there is no testimony as to what
actually caused plaintiff's esophageal reflux, constipation and
nausea. While Dr. Wilson may have testified that many of
plaintiff's medications have esophageal reflux, constipation and
nausea as side effects, there is no testimony that these conditions
were causally related to plaintiff's compensable injuries.
Furthermore, Dr. Wilson testified that plaintiff had ample reason
to have nausea, having had . . . the gastric surgery, thecomplications from that, and sometimes pain medication. Pursuant
to the Full Commission's award, if plaintiff can establish that her
esophageal reflux, constipation, or nausea, are related to her
compensable injuries, defendants would be obligated to provide the
treatment for those ailments. This assignment of error is
 Plaintiff lastly argues the Full Commission erred by
failing to award plaintiff attorney's fees pursuant to Section 97-
88.1 of the North Carolina General Statutes. Under Section 97-88.1
the Industrial Commission may assess the whole cost of the
proceedings including reasonable [attorney's fees] if the
Commission determines any hearing has been brought, prosecuted or
defended without reasonable ground. N.C. Gen. Stat. . 97-88.1
(2003); see also, Hieb v. Howell's Child Care Ctr., Inc.
, 123 N.C.
App. 61, 69, 472 S.E.2d 208, 213 (1996) (where the Full Commission
properly awarded attorney's fees upon finding defendants in
violation of Industrial Commission rules by terminating
compensation without the Commission's approval, and by refusing to
resume immediate payments following the Deputy Commissioner's
order). The decision of whether to make such an award, and the
amount of the award, is in the discretion of the Commission, and
its award or denial of an award will not be disturbed absent an
abuse of discretion. Troutman v. White & Simpson, Inc.
, 121 N.C.
App. 48, 54-55, 464 S.E.2d 481, 486 (1995). An abuse of
discretion results only where a decision is manifestly unsupportedby reason or . . . so arbitrary that it could not have been the
result of a reasoned decision. Goforth v. K-Mart Corp.
, 167 N.C.
App. 618, 624, 605 S.E.2d 709, 713 (2004) (internal quotations
In the instant case, the Full Commission concluded that
neither party is entitled to attorney's fees pursuant to N.C. Gen.
Stat. §§ 97-88 or 88.1. However, the Full Commission reiterated
the award of plaintiff's permanent total disability compensation
benefits subject to the attorney's fees approved in the initial
Opinion and Award. Plaintiff argues the Full Commission's finding
that defendants' defense of the issues addressed herein was
reasonable is a legal judgment and thus cannot support the Full
Commission's conclusion that she is not entitled to attorney's
fees. The Full Commission did make the following findings of fact,
which are not assigned as error by plaintiff and are therefore
binding upon this Court:
4. The Full Commission ordered defendants to
modify plaintiff's house according to a June
1997 plan devised by a rehabilitation
technology consultant. However, as of the date
of the filing of the first Opinion and Award
by the Full Commission in February 1999,
plaintiff was living out of the state. In
addition, plaintiff had her house on the
market for about a year in approximately 1999
through 2000. Plaintiff did not return to her
house until early 2001, and at that time she
did not contact defendants about beginning the
modifications. Furthermore, she was only back
at her house for approximately one month
before she filed the Form 33 in the matter.
For these reasons, the Full Commission finds
it was not unreasonable for defendants to have
failed to follow through on the Full
Commission's order to modify plaintiff's house
at that time.
. . .
22. Plaintiff was seen at Miller Orthopaedic
Clinic on several occasions in July and August
1997. These appointments were with Dr. Meade
for treatment of knee pain following a fall or
falls. Plaintiff, through counsel, now argues
that defendants failed to pay for these
medical expenses, although as of the date of
the deposition in this matter, defendants had
not been billed by Miller Orthopaedic Clinic
for this treatment. . . .
23. Plaintiff was also seen at Miller
Orthopaedic Clinic twice in November 1999, and
once in 2000. . . . However, it was not
unreasonable for defendants not to have paid
for these evaluations and treatment, as
plaintiff specifically informed the medical
care provider in question that the treatment
was not related to workers' compensation. In
fact, the medical notes from these visits
report a diagnosis of displaced degenerative
lateral meniscal tear right knee, thereby
corroborating the nonwork-related status of
these visits. In addition, as of the date of
the deposition of the representative from
Miller Orthopaedic Clinic on January 23, 2002,
this medical care provider had not billed
defendant-carrier for any of these services.
It was not until September 7, 2000 that
plaintiff asked defendants for reimbursement
for this medical compensation. This treatment
was for plaintiff's degenerative condition and
is therefore not compensable.
Given the facts and circumstances of the instant case, we are
unpersuaded that defendants' defense of plaintiff's claims was
necessarily unreasonable. Further, we discern no abuse of
discretion in the Full Commission's decision not to award
attorney's fees to either party. This assignment of error is
Judges CALABRIA and JACKSON concur.
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