1. Workers' Compensation_unauthorized medical treatment_approval not timely
sought
The Industrial Commission's findings that a workers' compensation plaintiff had not
sought timely approval of treatment by an osteopath was binding where plaintiff did not assign
error to those findings. Defendants were not required to pay for treatments from the osteopath
beyond those approved by her treating physician.
2. Workers' Compensation_unauthorized medical expenses_retroactively sanctioned
by treating physician_further treatment not covered
Expenses for osteopathic treatment for a workers' compensation plaintiff beyond that
approved by the treating physician were not subject to Rule 407(4) of the Workers'
Compensation Rules, and defendants did not have to pay for those treatments. The treating
physician retroactively sanctioned the initial treatment but did not refer plaintiff to the osteopath.
He did not recommend further treatment.
3. Workers' Compensation_attorney fees not awarded_no abuse of discretion
The Industrial Commission did not abuse its discretion in a workers' compensation case
by not awarding attorney fees as a sanction for unreasonable defense.
Browne, Flebotte, Wilson, Horn & Webb, PLLC, by Martin J.
Horn, for plaintiff-appellant.
McAngus Goudelock & Courie, PLLC, by Louis A. Waple and Joseph
N. Hamrick, for defendants-appellees.
STEELMAN, Judge.
Plaintiff, Anita Thompson, appeals an opinion and award
concluding that defendant-carrier, Crawford and Company, was not
required to pay for certain medical treatments plaintiff obtainedfrom an unauthorized physician. For the reasons discussed herein,
we affirm the determination of the Industrial Commission.
At the time of plaintiff's hearing before the Industrial
Commission, she was fifty-eight years old. She had a BA in
business administration and an MA in education. Plaintiff was
hired by defendant-employer, Federal Express Ground, as a manager
in training. Upon successful completion of her training, plaintiff
would have been a terminal manager. Shortly after she was hired,
plaintiff suffered a compensable injury by accident on 16 December
2000 while removing luggage from her car. At the time of her
injury, plaintiff's average weekly wage was $1,076.00. This
entitled her to compensation at the rate of $558.00, which she
continues to receive for temporary total disability.
Following the plaintiff's injury, she initially went to
Hillandale Medical Center for treatment, but was later referred to
Triangle Orthopedic Associates and saw Dr. Raphael Orenstein, who
became her treating physician. Dr. Orenstein's notes reflect
plaintiff complained of pain in her neck and lower back. He
recommended conservative treatment, including therapy, medication,
and chiropractic care. Plaintiff was permitted to return to work
with modified duty restrictions. She was not to lift anything
greater than ten pounds or do any repetitive bending or twisting.
Upon her return to Dr. Orenstein, plaintiff reported her pain was
worse and involved her entire body. Plaintiff also reported pain
when driving and requested a restriction of no driving. Dr.
Orenstein continued plaintiff on modified work restrictions. Despite an MRI scan, the doctor was unable to determine the source
of plaintiff's pain. When plaintiff did not respond to the
treatment, Dr. Orenstein recommended she attend an
interdisciplinary pain program geared toward changing a patient's
attitude toward pain. In response to this recommendation,
plaintiff underwent a psychological evaluation by Dr. Scott
Sanitate on 11 April 2001. Dr. Sanitate found no physical cause
for plaintiff's pain and determined her symptoms were not
consistent with the described injury. He opined that plaintiff's
pain was psychological. He concluded plaintiff had reached maximum
medical improvement, was able to return to work, and her condition
did not warrant an impairment rating. The only treatment Dr.
Sanitate recommended was a limited course of chiropractic
treatment. Based on Dr. Sanitate's report, defendants did not
authorize plaintiff to participate in the interdisciplinary pain
program.
At this time, plaintiff requested a referral for a second
opinion with an osteopath. Dr. Orenstein felt this was
unnecessary. He felt that since plaintiff had not experienced any
relief from chiropractic treatment, it was unlikely she would
experience any additional relief from an osteopath. Despite Dr.
Orenstein's refusal to refer plaintiff, she found an osteopath via
the Internet, and commencing 24 April 2001, received treatment from
Dr. Thomas Motyka, an osteopathic consultant at UNC hospitals.
Although Dr. Orenstein disagreed with Dr. Motyka's diagnosis of
fibromyalgia, he later stated that in his opinion Dr. Motyka'streatment from 24 April 2001 through 26 June 2001 was not
necessarily inconsistent with the type of chiropractic treatment he
recommended and was reasonable and necessary. However, as of 26
June 2001, Dr. Orenstein did not recommended any further
chiropractic or osteopathic treatment. Although plaintiff received
treatment from Dr. Motyka starting 24 April 2001, she did not
request approval from the Industrial Commission until she filed a
motion on 15 May 2002.
Defendants refused to pay for Dr. Motyka's treatment.
Plaintiff filed a Form 33 asserting she was not receiving
disability benefits.
The Full Commission (Commission) filed an
Opinion and Award on 1 September 2004 awarding plaintiff temporary
total disability at the weekly rate of $588.00 and instructing
defendants to pay for all medical expenses plaintiff had incurred
or would incur as a result of her compensable injury, including
expenses associated with Dr. Motyka's treatment for the limited
period from 24 April 2001 through 26 June 2001.
The Commission
further ordered that neither Dr. Motyka nor Dr. Orenstein were
approved as plaintiff's treating physicians. Finally, the
Commission determined that defendants' defense against plaintiff's
medical claims was reasonable and not based on stubborn, unfounded
litigiousness. As a result, it held plaintiff was not entitled to
attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1. Plaintiff
appeals.
Our review of an award by the Industrial Commission is limited
to: (1) whether there was competent evidence before the Commissionto support its findings; and (2) whether such findings support its
legal conclusions. Lewis v. Orkland Corp., 147 N.C. App. 742, 744,
556 S.E.2d 685, 687 (2001). Findings of fact from an opinion and
award of the Commission, if supported, are deemed conclusive, even
if there is evidence that would support findings to the contrary.
Id. On appeal, this Court does not have the authority to weigh the
evidence or make determinations of credibility, rather our duty
goes no further than to determine whether the record contains any
evidence tending to support the Commission's findings. Adams v.
AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citations
omitted).
[1] In plaintiff's first argument, she contends the Commission
erred in concluding that defendants were not responsible for
expenses incurred for her treatment by Dr. Motyka because
defendant-carrier had no right to direct any medical care she
obtained before the date it accepted the claim pursuant to N.C.
Gen. Stat. § 97-25, nor was she required to seek approval from the
Commission to change Dr. Motyka as her treating physician. We
disagree.
Generally, an employer has the right to direct the medical
treatment for a compensable work injury. Kanipe v. Lane
Upholstery, 141 N.C. App. 620, 623-24, 540 S.E.2d 785, 788 (2000).
Even so, an employer's right to direct medical treatment, which
necessarily includes the right to select the treating physician,
only arises once the employer accepts the claim as compensable.
Id. at 624, 540 S.E.2d at 788. Although defendant-carrier paidplaintiff's medical bills, this did not constitute an acceptance of
liability. Biddix v. Rex Mills, 237 N.C. 660, 664, 75 S.E.2d 777,
780-81 (1953). Since defendants did nothing to accept the claim,
other than to pay plaintiff's bills, the date liability is deemed
to have been accepted is 8 August 2001, the date defendants filed
the Form 60. The Commission ordered defendants to pay plaintiff's
medical bills, including those to Dr. Motyka from 24 April 2001
through 26 June 2001. Thus, the only medical expenses that are at
issue are those arising from Dr. Motyka's care from 27 June 2001
until 8 August 2001, when defendants officially admitted liability
by filing a Form 60. After that date, defendants would be entitled
to direct plaintiff's medical treatment.
Defendants would ordinarily be required to pay for the
treatment plaintiff received from Dr. Motyka during this period.
However, N.C. Gen. Stat. § 97-25 imposes upon an employee who
chooses his or her own physician the requirement that they obtain
the approval of the Commission within a reasonable time after
associating with the physician. This statute provides that “an
injured employee may select a physician of his own choosing to
attend, prescribe and assume the care and charge of his case,
subject to the approval of the Industrial Commission.” N.C. Gen.
Stat. § 97-25 (2005) (emphasis added). This approval is required
for each physician an employee chooses. Lucas v. Thomas Built
Buses, Inc., 88 N.C. App. 587, 590, 364 S.E.2d 147, 150 (1988).
“Moreover, the claimant must obtain the Industrial Commission
approval for the selected physician within a reasonable time afterprocuring the services of the physician.” Forrest v. Pitt County
Bd. of Education, 100 N.C. App. 119, 126, 394 S.E.2d 659, 663
(1990). It is for the Commission to determine whether approval was
sought within a reasonable time after treatments with the physician
began and to make the appropriate findings in support of its
determination. Scurlock v. Durham County Gen. Hosp., 136 N.C. App.
144, 152, 523 S.E.2d 439, 444 (1999). Absent the Commission's
approval, the employer is not required to pay for those medical
services. See Forrest, 100 N.C. App. at 126, 394 S.E.2d at 663.
In the instant case, the Commission specifically found:
11. Though [plaintiff] received unauthorized
treatment from Dr. Motyka beginning on April
24, 2001, plaintiff did not request Industrial
Commission approval of the treatment until a
Motion was filed May 15, 2002, almost one year
later. Plaintiff, who was represented by
counsel, had ample opportunity to request
approval earlier as numerous forms and Motions
were filed during this time and the
circumstances involved did not constitute [an]
emergency situation, especially in light of
the treatment being provided.
The Commission went on to find that plaintiff's motion to approve
Dr. Motyka was “not timely filed.” Plaintiff did not assign as
error these findings in the record on appeal. As a result, these
findings are presumed to be supported by competent evidence and are
binding on appeal. Konrady v. U.S. Airways, Inc., 165 N.C. App.
620, 628, 599 S.E.2d 593, 598 (2004). Since plaintiff failed to
obtain the Commission's approval of Dr. Motyka within a reasonable
time, defendants were not required to pay for her treatments with
Dr. Motyka from 27 June 2001 until 8 August 2001. [2] In the alternative, plaintiff argues that pursuant to Rule
407(4) of the Workers' Compensation Rules of the North Carolina
Industrial Commission, the Commission should have required
defendants to pay all of her medical expenses associated with Dr.
Motyka's treatment because Dr. Orenstein, her authorized treating
physician, referred her to Dr. Motyka.
Rule 407(4) provides:
The responsible employer or
carrier/administrator shall pay the statements
of medical compensation providers to whom the
employee has been referred by the authorized
treating physician, unless said physician has
been requested to obtain authorization for
referrals or tests; . . .
Workers' Compensation Rules of the North Carolina Industrial
Commission, Rule 407(4) (2005) (emphasis added). The Commission
found that “[plaintiff] located an osteopath via the Internet and
on April 24, 2001 received treatment on her own from Dr. Thomas
Motyka, an osteopathic consultant at UNC Hospitals . . . .”
(emphasis added). Dr. Orenstein did not refer plaintiff to Dr.
Motyka; he retroactively sanctioned the treatment provided from 24
April through 26 June 2001. However, he did not recommend further
treatment after that time. For this reason, the expenses for
medical treatment provided by Dr. Motyka after 26 June 2001 are not
subject to Rule 407(4). This argument is without merit.
[3] In plaintiff's second argument, she contends the trial
court erred in declining to award attorney's fees as a sanctionagainst defendants for unreasonable defense of her claim. We
disagree.
Pursuant to N.C. Gen. Stat. § 97-88.1, the Commission may
award attorney's fees if it determines that a hearing has been
unreasonably brought or defended. The decision whether to award or
deny attorney's fees rests within the sound discretion of the
Commission and will not be overturned absent a showing that the
decision was manifestly unsupported by reason. Bryson v. Phil
Cline Trucking, 150 N.C. App. 653, 656, 564 S.E.2d 585, 587 (2002).
Our review of the record fails to disclose an abuse of discretion
by the Commission. This argument is without merit.
The remainder of plaintiff's assignments of error are either
not argued in her brief or no authority is cited in support
thereof. As such, they are deemed abandoned. N.C. R. App. P.
28(b)(6).
AFFIRMED.
Judges WYNN and LEWIS concur.
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