Appeal by plaintiff from an opinion and award filed 21
December 2004 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 16 November 2005.
Bazzle & Carr, P.A., by Ervin W. Bazzle, for plaintiff-
Brooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr. and
Kimberley A. D'Arruda, for defendants-appellees.
Plaintiff Jennifer Perkins appeals from an opinion and award
of the Industrial Commission concluding that she is not entitled to
workers' compensation benefits. On appeal, Ms. Perkins challenges
the Commission's decision to give greater weight to the testimony
of certain expert witnesses, whose testimony was less favorable to
her position, rather than the more favorable testimony of other
experts. Additionally, Ms. Perkins objects to the Commission's
failure to make findings regarding certain details in the evidence
and its failure to draw more inferences in her favor. Because Ms.
Perkins' arguments are inconsistent with the applicable standard of
review, we affirm the Commission's order. Nevertheless, since the
Commission failed to address Ms. Perkins' entitlement to
compensation under N.C. Gen. Stat. § 97-31 (2005), we remand for
determination of this issue.
Ms. Perkins had been working as a flight attendant for 10
years when, on 10 May 2000, lightning struck a jet near her while
she was helping passengers deplane from another U.S. Airwaysaircraft. Immediately after the strike, Ms. Perkins felt a "hot
poker feeling" in her right arm that persisted as a burning, "pins
and needles" sensation. She was treated by paramedics at the scene
and told to follow up with a doctor if problems continued. U.S.
Airways filed a Form 60 admitting compensability. Over the next
ten months, Ms. Perkins continued to perform her regular duties as
a flight attendant for U.S. Airways.
Within a week of the accident Ms. Perkins saw neurologist Dr.
Jerry Williams for a pre-existing neurological condition and
complaints of tightness in her right side. In a later appointment,
Ms. Perkins also complained of right arm and shoulder pain. Dr.
Williams diagnosed Ms. Perkins as having an electric shock injury.
A lumbar MRI showed disc degeneration at L5-S1 with mild broad-
based disc protrusion, marginal osteophytosis, facet joint
degenerative joint disease, and mild concentric disc protrusion at
L1-2. Dr. Williams continued to treat Ms. Perkins and ultimately
excused her from work. As a result, Ms. Perkins began receiving
temporary total disability benefits on 14 March 2001.
Defendants referred Ms. Perkins to Dr. Roger Hershline for
treatment relating to the lightning strike. On 30 March 2001, Dr.
Hershline diagnosed her as suffering a cervical strain or cervical
disc bulge and an electrical shock injury. He continued to excuse
Ms. Perkins from work and referred her to Dr. Nicholas Grivas, a
neurosurgeon, for assessment of her cervical condition. Dr. Grivas
found no neurological deficits or any signs consistent with
degenerative disc disease or a ruptured disc. He also testifiedthat he did not find any evidence that Ms. Perkins suffered from
thoracic outlet syndrome or any other surgically correctable
On 13 April 2001, Ms. Perkins complained to Dr. Hershline of
pain in her neck, shoulder, and arm, as well as problems with her
memory. Ms. Perkins was able to answer Dr. Hershline's standard
clinical memory tests correctly. With respect to the pain, Dr.
Hershline noted that Ms. Perkins' recent home remodeling efforts
had required greater physical exertion than Ms. Perkins' previous
duties as a flight attendant. Further, although Ms. Perkins
presented symptoms of depression, Dr. Hershline concluded they were
not related to her lightning injury. He recommended that Ms.
Perkins complete two more weeks of physical therapy and return to
work without restrictions. The Commission found _ in a finding of
fact not challenged on appeal _ that "[f]rom this point forward,
plaintiff's list of claimed symptoms expand[ed] dramatically."
On 8 June 2001, Ms. Perkins was seen by Dr. Rebecca Holdren in
Greenville, South Carolina. Initially, Dr. Holdren diagnosed Ms.
Perkins as suffering from reflex sympathetic dystrophy ("RSD").
Dr. Hershline, however, expressed the view that an RSD diagnosis
was not supported by clinically observed symptoms and recommended
a bone scan. A 13 July 2001 bone scan was normal. On 24 July
2001, Dr. Holdren agreed that the RSD diagnosis was incorrect and
concluded that Ms. Perkins could return to work, from a physical
standpoint, although she recommended three weeks of transitional
work. Defendants subsequently filed a Form 24 seeking to terminate
Ms. Perkins' disability benefits on the grounds that she was no
longer disabled. Special Deputy Commissioner Myra L. Griffith
approved the application, and Ms. Perkins' disability benefits were
ordered terminated on 12 September 2001.
Ms. Perkins learned of the Mensana Clinic in Maryland "through
a lightning strike survivor's Internet website" and went there to
see psychiatrist Dr. Nelson Hendler on 7 August 2001. At that
time, Ms. Perkins reported an extensive list of physical
conditions, including headaches, numbness, weight gain, spasms,
trembling, and pain throughout much of her body. Dr. Hendler
diagnosed Ms. Perkins with, among other things, thoracic outlet
syndrome and nonfatal lightning injury with brain damage.
Subsequent evaluation by neuropsychologist and Mensana Clinic
affiliate Dr. Sheldon Levin found no neurocognitive disorders
related to the lightning strike. Dr. Levin noted that Ms. Perkins
was presenting a "mixed pattern of symptoms" that would normally be
diagnosed as a somatization disorder, but declined to give this
diagnosis based on Dr. Hendler's conclusion "that [Ms. Perkins]
suffered from a physical rather than a mental illness."
The Commission ordered an independent medical examination and,
on 11 December 2001, Ms. Perkins saw orthopaedist Dr. Robert
Elkins. Dr. Elkins diagnosed Ms. Perkins as suffering from a
lightning strike injury and related right upper extremity
myofascial pain syndrome. Dr. Elkins concluded that Ms. Perkins
had reached maximum medical improvement and assigned a 10%permanent partial disability rating to her upper right extremity.
While Dr. Elkins believed that Ms. Perkins was disabled from her
previous position as a flight attendant, he concluded she was
capable of performing light to moderate duty work.
Dr. Hendler subsequently referred Ms. Perkins to neurologist
Dr. Donlin Long, who found that Ms. Perkins had a normal EMG and
cervical imaging study. Although he agreed that her complaints fit
the classic definition of somatization disorder, he performed
spinal fusion surgery based on Ms. Perkins' responses to
"provocative disc blocks."
Dr. Hendler also referred Ms. Perkins to Dr. Avraam Karas.
Dr. Karas performed several more surgeries on Ms. Perkins,
including multiple rib resections and thoracic outlet syndrome
surgeries. Ms. Perkins has requested additional surgery because of
(See footnote 1)
A hearing was held by Deputy Commissioner Adrian A. Phillips
on 12 November 2002 for consideration of: (1) whether Ms. Perkins'
compensable injury caused her cervical and lumbar spine injuries,
thoracic outlet syndrome, depression, post-traumatic stress
syndrome, and somatization disorder; and (2) to what degree Ms.
Perkins was disabled as a result of her compensable injury. The
deputy commissioner concluded that the lightning strike had caused
Ms. Perkins' physical conditions as well as her "severe depressionand psychiatric illness" and ordered defendants to pay temporary
total disability benefits and all related medical expenses.
On appeal, the Full Commission reversed. The Commission
decided to give "greater weight to the testimony of Dr. Hershline,
Dr. Williams, Dr. Holdren, Dr. Grivas, Dr. Demas and Dr. Elkins
than to Dr. Hendler, Dr. Levin, Dr. Long and Dr. Karas," noting
that Drs. Hershline and Williams were Ms. Perkins' primary treating
physicians immediately following the accident, whereas Dr. Hendler
"did not see [Ms. Perkins] until more than a year after her initial
injury." The Commission noted further that (1) "Dr. Hendler [had]
relied on [Ms. Perkins'] subjective complaints even when they
[were] contradicted by the documentation provided by her previous
physicians," and (2) Drs. Levin, Long, and Karas had "deferred to
the opinion of Dr. Hendler even when the objective evidence . . .
contradicted Dr. Hendler's diagnoses . . . ."
Although the Commission agreed that Ms. Perkins had sustained
an injury by accident on 10 May 2000, it concluded that she had:
failed to establish though [sic] competent and
credible medical evidence that [her]
conditions with which she was diagnosed by Dr.
Hendler and by the doctors to whom he referred
[her] for the treatment of those conditions .
. . were related to or aggravated by her
compensable injury of May 10, 2000 as these
diagnoses are contradicted by the objective
medical evidence, records and testimony of Dr.
Hershline, Dr. Williams, Dr. Grivas, Dr.
Elkins, Dr. Demas and Dr. Holdren.
The Commission further concluded that "[a]s of July 1, 2001, [Ms.
Perkins] was capable of returning to full-duty work without
restrictions." With respect to the diagnosis of a somatizationdisorder, the Commission stated that "[m]erely being the
'precipitating' or 'triggering' event for her somatization disorder
does not establish causation." Ms. Perkins timely appealed from
this opinion and award.
On appeal from a decision of the Full Commission, this Court
reviews only (1) whether the Commission's findings of fact are
supported by competent evidence in the record, and (2) whether the
Commission's findings justify its legal conclusions. Counts v.
Black & Decker Corp.
, 121 N.C. App. 387, 389, 465 S.E.2d 343, 345,
disc. review denied
, 343 N.C. 305, 471 S.E.2d 68 (1996). The
Commission's findings are conclusive on appeal if they are
supported by competent evidence, even if the evidence might also
support a contrary finding. Jones v. Candler Mobile Village
N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995). Consequently,
"[t]he Commission's findings of fact may be set aside on appeal
only where there is a complete lack of competent evidence to
support them." Id.
 Much of Ms. Perkins' argument on appeal rests on her
contention that "[t]he Commission committed a reversible error by
not affording greater weight to the testimony of the physicians
with experience treating patients with lightning strike injuries,
and to the physicians whom have treated Ms. Perkins on a regular
basis." Similarly, Ms. Perkins contends that "[t]he record
reflects that little, if any, weight should be given to the opinionof Dr. Hershline." The Commission is entitled, however, to give
greater weight to the testimony of some doctors over others.
Hensley v. Indus. Maint. Overflow
, 166 N.C. App. 413, 420, 601
S.E.2d 893, 898-99 (2004), disc. review denied
, 359 N.C. 631, 613
S.E.2d 690 (2005). Further, questions of weight and credibility
are solely within the purview of the Commission to decide, and we
may not revisit those determinations. Adams v. AVX Corp.
, 349 N.C.
676, 680, 509 S.E.2d 411, 413 (1998) ("'The Commission is the sole
judge of the credibility of the witnesses and the weight to be
given their testimony.'" (quoting Anderson v. Lincoln Constr. Co.
265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)
Ms. Perkins argues that "[t]o afford greater weight to a
doctor with no experience in an area who has unabashed loyalty to
the defendants when there are physicians treating the patient with
extensive experience, is unfair and unjust." That argument was for
the Commission to assess and is not a proper subject for appellate
review. See Alexander v. Wal-Mart Stores, Inc.
, 166 N.C. App. 563,
573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting) ("In
reviewing a workers' compensation claim, this Court does not have
the right to weigh the evidence and decide the issue on the basis
of its weight." (internal quotation marks omitted)), adopted per
, 359 N.C. 403, 610 S.E.2d 374 (2005). Accordingly, Ms.
Perkins' arguments regarding weight and credibility cannot justify
overturning the Commission's opinion and award.
 With respect to Dr. Hershline in particular, Ms. Perkins
also argues that an ex parte
communication between Dr. Hershlineand defendants rendered his testimony incompetent under Salaam v.
N.C. Dep't of Transp.
, 122 N.C. App. 83, 468 S.E.2d 536 (1996),
disc. review improvidently allowed
, 345 N.C. 494, 480 S.E.2d 51
(1997). Ms. Perkins did not, however, object on Salaam
before the Commission, and, therefore, her contentions on this
issue have not been preserved for appellate review. N.C.R. App. P.
 With respect to individual findings of fact, Ms. Perkins
argues that the record supports additional findings not made by the
Commission. So long as the Commission makes findings sufficient to
address the issues and evidence before it, the Commission is not
required to make findings of fact as to a particular point merely
because the plaintiff has presented evidence on that subject. See
Dunn v. Marconi Commc'ns., Inc.
, 161 N.C. App. 606, 611, 589 S.E.2d
150, 154 (2003) ("[M]erely because plaintiff presented credible
evidence, the Commission was not required to make findings of fact
regarding that evidence."). Ms. Perkins also asserts that the
Commission should have drawn different inferences from the evidence
upon which it did rely. As with decisions regarding credibility
and weight, this Court may not revisit reasonable inferences drawn
by the Commission. Norman v. N.C. Dep't of Transp.
, 161 N.C. App.
211, 224, 588 S.E.2d 42, 51 (2003), disc. review denied
, 358 N.C.
235, 595 S.E.2d 153, cert. denied
, 358 N.C. 545, 599 S.E.2d 404
 In arguing further that the Commission erred when it
failed to find that Ms. Perkins' conditions were caused by her 10May 2000 injury, Ms. Perkins relies on the testimony of Drs.
Hendler, Long, Karas, Levin, and Demas. With the exception of Dr.
Demas, the Commission chose not to rely upon those doctors'
opinions, as it was entitled to do.
As for Dr. Demas, Ms. Perkins asserts that he stated that she
"is disabled due to a psychological impairment due to her post
traumatic reaction to the trauma of her lightning strike event."
The Commission acknowledged this diagnosis in its finding relating
to Dr. Demas, but further found that "Dr. Demas testified that he
felt plaintiff had a somatization disorder, and as evidence cited
her overly dramatic descriptions of her symptoms, her refusal to
consider that there might be a psychological reason for her
problems, and her seeking treatment from more and more physicians.
He concluded the lightning itself would not have caused the
condition but may have been a precipitating event
added.) This finding is supported by the record. The Commission
ultimately found that "[t]he greater weight of the evidence shows
that plaintiff suffers from somatization disorder, which causes her
to turn emotional anxiety into physical complaints." It concluded,
however, that "[m]erely being the 'precipitating' or 'triggering'
event for her somatization disorder does not establish causation,"
citing Brewington v. Rigsbee Auto Parts
, 69 N.C. App. 168, 316
S.E.2d 336 (1984).
In his dissent, Commissioner Thomas J. Bolch did not disagree
with the Commission's assessment of the medical evidence, but
concluded that "the majority erred in failing to find thatplaintiff's somatization disorder is causally related to the
lightning strike that she experienced on May 10, 2000. The
majority should have found that plaintiff is mentally incapable of
any employment as the consequence of her work-related injury . . .
." Ms. Perkins, however, has chosen not to bring forth any
argument on this issue on appeal and, accordingly, we may not
address it. Viar v. N.C. Dep't of Transp.
, 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005) ("It is not the role of the appellate courts
. . . to create an appeal for an appellant.").
As a result, we conclude that the testimony of Dr. Demas does
not justify overturning the Commission's findings and conclusions.
Since Dr. Hershline's testimony, together with evidence and
testimony from other doctors, supports the Commission's findings of
fact and its conclusion that the Ms. Perkins failed to establish
that the "conditions with which she was diagnosed by Dr. Hendler
and by the doctors to whom he referred [her] . . . were related to
or aggravated by her compensable injury," we are required to uphold
this aspect of the Commission's opinion and award.
 Ms. Perkins next argues that the Commission erred by
concluding that she was not entitled to compensation for loss of
wage earning capacity after 12 September 2001, the date that
defendants' Form 24 was approved. "The burden is on the employee
to show that [s]he is unable to earn the same wages [s]he had
earned before the injury, either in the same employment or in other
employment." Russell v. Lowes Prod. Distribution
, 108 N.C. App.762, 765, 425 S.E.2d 454, 457 (1993). An employee may meet this
burden in one of four ways:
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work in
any employment; (2) the production of evidence
that he is capable of some work, but that he
has, after a reasonable effort on his part,
been unsuccessful in his effort to obtain
employment; (3) the production of evidence
that he 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 he has
obtained other employment at a wage less than
that earned prior to the injury.
(internal citations omitted).
Ms. Perkins relies primarily on the first option, arguing that
the medical evidence establishes that her work injury rendered her
incapable of work in any employment. Of all the doctors to see Ms.
Perkins, however, only Dr. Long stated that Ms. Perkins was
incapable of doing any kind of work. Several of the other doctors
_ including Drs. Elkins, Karas, and Demas _ testified that Ms.
Perkins was capable of performing some kind of work. While we
agree with Ms. Perkins that there is medical evidence to support a
determination that she could not return to full-time work as a
flight attendant, this alone is insufficient to establish that she
was incapable of earning wages at any job.
Ms. Perkins alternatively argues that because she contacted
U.S. Airways about a light duty position and they did not offer her
one, the Commission erred by not concluding she was disabled under
the second option, i.e.
, that she is capable of some work but hadbeen unable to obtain employment after a reasonable effort. Ms.
Perkins cites to no authority _ and we know of none _ that would
have required U.S. Airways to offer Ms. Perkins such a position.
The record contains no indication that Ms. Perkins made any other
attempts to obtain employment. The Commission was free to decide,
as it did, that Ms. Perkins' single contact with U.S. Airways was
insufficient to establish she had made a reasonable effort to
obtain employment under the second Russell
We, therefore, conclude that the record contains evidence to
support the Commission's determination that "[a]s of July 1, 2001,
plaintiff was capable of returning to full-duty work without
restrictions" and that "plaintiff failed in her burden of proving
that, after that date, she remained disabled as a result of the
compensable injury of May 10, 2000." These determinations in turn
support the Commission's conclusion that plaintiff is not entitled
to compensation under N.C. Gen. Stat. §§ 97-29 or 97-30 (2005)
after 12 September 2001, the date upon which the Form 24 was
 Ms. Perkins, however, contends alternatively that the
Commission erred by failing to specifically address whether she was
entitled to compensation under N.C. Gen. Stat. § 97-31. "It is
well established that the full Commission has the duty and
responsibility to decide all matters in controversy between the
parties, and, if necessary, the full Commission must resolve
matters in controversy even if those matters were not addressed by
the deputy commissioner." Payne v. Charlotte Heating & AirConditioning
, 172, N.C. App. 496, 501, 616 S.E.2d 356, 360 (2005)
(internal quotation marks omitted).
The Commission found that "Dr. Elkins concluded that plaintiff
was suffering from a probable lightning strike injury and right
upper extremity myofascial pain syndrome which he felt were related
to her compensable injury, and mild degenerative changes of the
neck and back which he did not feel were related." The Commission
did not, however, address Dr. Elkins' opinion that Ms. Perkins had
a 10% permanent partial disability rating to the right upper
extremity. Further, the Commission's opinion and award contains no
explanation why it did not believe Ms. Perkins to be entitled to
compensation for permanent partial disability benefits based on
that rating. Nor do defendants address this issue on appeal.
Accordingly, we remand to the Commission for a determination
whether Ms. Perkins is entitled to compensation under N.C. Gen.
Stat. § 97-31.
Affirmed in part and remanded in part.
Judges HUNTER and McCULLOUGH concur.