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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
CONTURA R. FONTENOT, Employee, Plaintiff, v. AMMONS SPRINGMOOR
ASSOCIATES, Employer, RELIANCE INSURANCE COMPANY, c/o N.C.
INSURANCE GUARANTY ASSOCIATION, Carrier, Defendants
Filed: 21 February 2006
1. Workers' Compensation-_additional medical expenses--unauthorized medical
The Industrial Commission did not err in a workers' compensation case by ordering
defendants to pay plaintiff employee's additional medical expenses for alleged unauthorized
medical treatment, because: (1) plaintiff's Form 33 contains a specific allusion to N.C.G.S. § 97-
25 which authorizes the Commission to approve an employee's request for medical treatment of
her own choosing; (2) based on the facts in this case, the Commission was permitted to find that
plaintiff sought its approval for additional medical treatment within a reasonable amount of time
after seeking such treatment; (3) the Form 18 at issue constituted a written request for additional
medical treatment within two years after the last payment of medical compensation since it
specifically referenced a change in plaintiff's medical condition inasmuch as it stated that there
was an aggravation of and/or change of condition from accepted injury and set forth a new
diagnosis, and it also contained boilerplate language giving notice to the employer in order that
the medical services prescribed by the Workers' Compensation Act could be obtained; and (4)
the record indicated that defendants were aware that plaintiff was seeking additional medical
compensation because the Form 61 which defendants filed in response to plaintiff's Form 18
specifically indicated that further treatment would be denied.
2. Workers' Compensation-_disc herniation--causation--accident at work--medical
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee's disc herniation was causally related to her 29 March 1999 accident at
work, because: (1) if the link between an employee's condition and an accident at work involves
a complex medical question, as in the instant case, a finding of causation must be premised upon
the testimony of a medical expert; and (2) four doctors provided competent medical evidence that
tended to link plaintiff's herniated disc to her 29 March 1999 accident at work.
3. Workers' Compensation-_potential future disability--diminished earning capacity
The Industrial Commission erred in a workers' compensation case by awarding
compensation for potential future disability, and this portion of the Commission's award is
vacated and remanded for entry of a corrected order, because: (1) disability refers to diminished
earning capacity, and at the time of the hearing before the Commission, plaintiff was working
with a new employer and was earning significantly higher wages than she had earned while
working for defendant employer; and (2) no evidence was presented to show that plaintiff would
be under a disability in the future, and the Commission made no findings concerning any such
4. Workers' Compensation-_failure to incorporate statute of limitations into award
Standing alone, the failure of the Industrial Commission in a workers' compensation case
to state that its award is subject to the statute of limitations under N.C.G.S. § 97-25.1 does not
warrant remanding the case to the Commission. However, given that the case is already beingremanded for a different issue, the Court of Appeals also remands this case to the Commission to
incorporate the statutory limitations into its award.
Appeal by defendants from an opinion and award filed 18
November 2004 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 16 November 2005.
Law Offices of George W. Lennon, by George W. Lennon, for
Young Moore and Henderson P.A., by Joe E. Austin, Jr., and
Jennifer T. Gottsegen, for defendant appellants.
Defendant Ammons Springmoor Associates, Incorporated, and its
workers' compensation carrier (hereinafter referred to collectively
as defendants) appeal from an opinion and award of the North
Carolina Industrial Commission granting medical and disability
compensation to claimant Contura R. Fontenot. We affirm in part,
vacate in part, and remand.
On 29 March 1999, claimant Contura R. Fontenot (Fontenot)
was working as a Certified Nursing Assistant for defendant Ammons
Springmoor Associates (Springmoor) when she suffered a back
injury while lifting a patient. Ammons and its workers'
compensation carrier admitted that Fontenot was entitled to
compensation and medical benefits for her back injury, and Fontenot
was referred to Tremont Medical Center for treatment. Tremont
referred Fontenot to an orthopaedic surgeon, Dr. Daniel J.Albright. Without performing an MRI, Dr. Albright diagnosed
Fontenot with a pulled muscle, indicated that she would become
better with time, and in April or May of 1999, advised her that she
could return to work without any restrictions. When she attempted
to resume her employment at Springmoor, Fontenot continued to
Thereafter, Fontenot began experiencing pain and numbness in
her right hip and right leg, and her pain increased with time.
According to Fontenot, she had not experienced an accident, injury,
or other traumatic incident in the time period after her 29 March
1999 compensable injury but before the onset of the problems with
her right hip and leg.
In November 2000, plaintiff sought treatment at an emergency
room for right leg pain and numbness. After an examination at the
emergency room, Fontenot was referred to her family doctor, Dr.
Balwinder Sidhu. Dr. Sidhu prescribed conservative treatment, and
when this course of action was unsuccessful, Dr. Sidhu ordered an
MRI and referred Fontenot to a neurosurgeon, Dr. Samuel St. Clair.
After reviewing the MRI, Dr. St. Clair diagnosed Fontenot with
a large L5-S1 disc herniation. In an 8 January 2001 appointment
with Fontenot, Dr. St. Clair recommended surgery to address the
herniation. Fontenot then sought a second opinion from an
orthopaedic surgeon, Dr. T. Craig Derian, who concurred with Dr.
St. Clair's recommendation.
On 23 January 2001, Fontenot filed a Form 18 Notice of
Accident to Employer and Claim of Employee. This filing containedthe following statement: The nature and extent of injury is HNP
L5-S1, full extent unknown _ aggravation of and/or change of
condition from accepted injury. Defendants responded on 21
September 2001 by filing a Form 61 which provided the following
reasons for denying Fontenot's claim: [F]urther treatment will be
denied [because] employee was released to return to work full
duties April/May 1999. Employee sought unauthorized care and
ma[de] no mention of 1999 injury by accident over a year and half
later. Employee appears to have had a subsequent injury[.] On 15
March 2002, Fontenot filed a Form 33 requesting that her claim for
additional compensation and medical benefits be heard. Defendants
then filed a Form 33R stating that the parties were unable to agree
on Fontenot's claim for benefits because her herniated disc was not
caused by her 29 March 1999 injury at work and because Fontenot
did not consult her authorized treating physician with regard to
her new complaints and did not seek approval for her unauthorized
care within a reasonable time.
At a hearing before the Industrial Commission, Fontenot
presented evidence that her herniated disc was causally related to
her admittedly compensable 29 March 1999 accident at work.
Specifically, Dr. Albright testified as follows:
[PLAINTIFF'S COUNSEL]: So, in your opinion, more likely
than not, was the injury in March of 1999 the cause of
the subsequent disc herniation that was found on [the
MRI] by Dr. St. Clair?
[Objection by Defense Counsel]
[DR. ALBRIGHT]: Yes . . . .
Dr. St. Clair testified that the 29 March 1999 compensable injury
could have caused the herniated disc which he found on the MRI
taken of Fontenot's back. Dr. Derian testified as follows:
I believe to a reasonable degree of medical certainty
that, more likely than not, that the patient's symptoms
resulting from the on-the-job injury in March of 1999
resulted in the structural findings identified on [the
MRI] scan in the year 2000, including disc herniation,
disc degeneration at L5-S1 with significant nerve-root
compression, particularly on the right.
Defendants contended that Fontenot's herniated disc was
unrelated to the 29 March 1999 accident at work. In addition,
defendants took the position that Fontenot had not taken the
necessary steps to receive authorization from her employer, or the
approval of the Industrial Commission, for the medical treatment
related to her herniated disc (hereinafter referred to as
Fontenot's additional medical treatment).
The Industrial Commission (hereinafter the Commission) made
the following procedural findings:
25. By filing a Form 33, [Fontenot] sought approval
for medical treatment with Dr. Sidhu, Dr. St. Clair, and
Dr. Derian within a reasonable time after [seeking] . . .
treatment [with these providers].
26. By filing a Form 18 on January 23, 2003 stating
a claim for HNP L5-S1, full extent unknown_aggravation
of and/or change of condition from accepted injury,
[Fontenot] filed a written request for additional medical
treatment within two years after the last payment of
With respect to the substance of Fontenot's claim, the Commission
made the following conclusions of law:
1. The greater weight of the evidence establishes
a causal relationship between [Fontenot's] injury by
accident on March 29, 1999 and the herniated disc in herlow[er] back. [Fontenot] suffered a compensable injury by
2. [Fontenot] is entitled to payment of medical
expenses incurred or to be incurred as a result of the
compensable injury as may reasonably be required to
effect a cure, provide relief, or lessen the period of
disability, including the recommended back surgery and
all evaluations and treatment provided by Dr. Sidhu, Dr.
St. Clair, and Dr. Derian.
3. [Fontenot] is entitled to compensation for
future temporary total disability, permanent partial
disability, and/or temporary partial disability, should
such disability arise as a result of the March 29, 1999
compensable injury by accident or as a result of the
(Citations omitted.) The Commission entered an award consistent
with its findings and conclusions.
Defendants now appeal.
 The first issue on appeal is whether the Commission erred
by ordering defendants to pay Fontenot's additional medical
expenses. Defendants contend that the Commission's ruling in this
premised upon erroneous determinations that (A) Fontenot sought
approval for the medical treatment for her herniated disc within a
reasonable amount of time after seeking such treatment pursuant to
section 97-25 of the General Statutes, and (B) Fontenot filed with
the Commission a timely application for medical compensation
related to her herniated disc pursuant to section 97-25.1 of the
A. Defendants' Arguments Concerning Section 97-25
Pursuant to section 97-25 of the General Statutes, [m]edical
compensation shall be provided by the employer. N.C. Gen. Stat.
§ 97-25 (2005). As a general rule, an employer that has accepted
an employee's injury as compensable has the right to choose the
treating medical providers and to direct the medical treatment of
the employee. Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 173,
573 S.E.2d 703, 707 (2002), disc. review denied, 357 N.C. 251, 582
S.E.2d 271 (2003). However, [t]he Commission may at any time upon
the request of an employee order a change of treatment and
designate other treatment suggested by the injured employee subject
to the approval of the Commission, and in such a case the expense
thereof shall be borne by the employer upon the same terms and
conditions . . . . N.C. Gen. Stat. § 97-25. To effectively
request a change of treatment, an injured employee must obtain
Industrial Commission approval for the selected physician within a
reasonable time after procuring the services of the physician.
Forrest v. Pitt County Bd. of Education, 100 N.C. App. 119, 126,
394 S.E.2d 659, 663, pl.'s pet. for disc. review denied, 327 N.C.
634, 399 S.E.2d 121 (1990), and pl.'s pet. for cert. denied, 328
N.C. 330, 400 S.E.2d 448, aff'd per curiam with respect to def.'s
appeal, 328 N.C. 327, 401 S.E.2d 366 (1991).
In the instant case, Fontenot first sought treatment from a
medical provider of her own choosing in November of 2000, and she
submitted a Form 33 requesting that her claim for additional
medical benefits be heard on 15 March 2002. Defendants contend
that the Commission was compelled to find that (1) the filing of aForm 33 did not constitute a request for approval of unauthorized
medical treatment, and (2) even if a Form 33 was sufficient to
request such approval, Fontenot's Form 33 was not filed within a
reasonable time after procuring alternative treatment.
Defendants' argument concerning the propriety of using a Form
33 to request additional medical treatment is premised upon this
Court's decision in Whitfield Laboratory Corp. of Am., 158 N.C.
App. 341, 581 S.E.2d 778 (2003). In Whitfield, we held that the
record did not indicate whether the claimant had sought approval
for certain treatment with his chosen physician, and we remanded
the case for findings as to whether plaintiff actually requested
such approval. Id. at 357, 581 S.E.2d at 788-89. Defendants have
produced a copy of the record in the Whitfield case, and they note
that the only references to medical treatment issues contained in
that record are a Form 33 which requests payment of medical
expenses/treatment and the parties' pretrial agreement in which
the claimant asserted an issue as to whether the employer should be
required to pay for medical treatment. Defendants posit that
Whitfield stands for the proposition that a Form 33 can never be
used by a claimant to request approval for a change in medical
We are not inclined to read Whitfield as broadly as
defendants. Rather, we conclude that this Court more narrowly held
that Whitfield's Form 33 did not include a request for approval of
alternative medical treatment. Significantly, the Form 33 at issuein the instant case differs significantly from the Form 33 filed in
the Whitfield case. In particular, Fontenot's Form 33 contains a
specific allusion to section 97-25 of the General Statutes, which
authorizes the Commission to approve an employee's request for
medical treatment of her own choosing. This reference provided a
basis for the Commission's determination that Fontenot sought
approval for her additional medical treatment. As this
determination is supported by the record, it must be affirmed. See
Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 480
(1997) (noting that the standard of review for an opinion and award
of the Commission is "(1) whether any competent evidence in the
record supports the Commission's findings of fact, and (2) whether
such findings of fact support the Commission's conclusions of
law[.]); Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571
S.E.2d 860, 862 (2002) (The Commission's findings of fact are
conclusive on appeal if supported by competent evidence,
notwithstanding evidence that might support a contrary finding.).
With respect to the Commission's finding that Fontenot's
request for approval was filed within a reasonable amount of time,
we note that what is reasonable is a question of fact to be
determined in the light of the circumstances of each case. Cf.
O'Brien v. Plumides
, 79 N.C. App. 159, 162, 339 S.E.2d 54, 55
(1986) (noting that the reasonable value of an attorney's services
must be decided based upon the circumstances of a particular case);
Hardee's Food Systems, Inc. v. Hicks
, 5 N.C. App. 595, 599, 169S.E.2d 70, 73 (1969) (discussing a reasonable amount of time under
a contract and reiterating the proposition that if different
inferences may be drawn, . . . such that a definite legal rule
cannot be applied . . . , then the matter should be submitted to
the [trier of fact]) (citation omitted).
In this case, Fontenot visited an emergency room and saw three
physicians of her choosing between November of 2000 and February of
2001. On 23 January 2001, Fontenot filed a request to have
defendants pay the costs of this treatment.
(See footnote 1)
Had this request been
granted, there would have been no need for intervention by the
Commission. However, defendants formally refused Fontenot's
request for authorization in writing on 21 September 2001. Only
five months later, in March of 2002, Fontenot sought to have the
Commission approve the course of treatment which defendants had
declined to authorize. We conclude that, on these facts, the
Commission was permitted to find that Fontenot sought its approval
for her additional medical treatment within a reasonable amount of
time after seeking such treatment. As this determination is
supported by the record, it must be affirmed. Ante
, slip op. at 8.
B. Defendants' Arguments Concerning section 97-25.1
Under section 97-25.1 of the North Carolina General Statutes,
an injured employee's right to medical compensation expires two
years after an employer's last payment of such compensation unless,
prior to the running of this two-year period, the employee fileswith the Commission an application for additional medical
compensation which is thereafter approved by the Commission.
(See footnote 2)
N.C. Gen. Stat. § 97-25.1 (2005). Pursuant to the Commission's
promulgated rules governing workers' compensation cases, an
application for the additional medical benefits available under
section 97-25.1 of the General Statutes may me made on a Form 18M
or by written request to the . . . Commission. Workers'
Compensation Rules of the North Carolina Industrial Commission,
Rule 408(2) (2006).
The present case has been complicated by the remiss failure of
Fontenot's attorney to file the appropriate form with the
Commission. On 23 January 2001, within the two-year period after
defendants' last payment of medical compensation, Fontenot's
attorney filed a Form 18,
(See footnote 3)
rather than a Form 18M. Accordingly,
Fontenot was only entitled to additional medical compensation if
the Form 18 which was filed on her behalf constituted a written
request for such compensation. Defendants take the position that
the Form 18 filed on 23 January 2001 failed to make any request for
medical treatment such that the Commission was compelled todetermine that it was not a written request for additional medical
compensation. We disagree.
The Form 18 at issue specifically referenced a change in
Fontenot's medical condition inasmuch as it stated that there was
an aggravation of and/or change of condition from accepted
injury[,] and it set forth a new diagnosis: HNP L5-S1, full
extent unknown. Fontenot's Form 18 also contained the following
boilerplate language: This notice is being sent to you [the
employer] . . . in order that the medical services prescribed by
[the Workers' Compensation Act] may be obtained[.] Moreover, the
record indicates that defendants were aware that Fontenot was
seeking additional medical compensation: the Form 61 which
defendants filed in response to Fontenot's Form 18 specifically
indicated that further treatment will be denied [because Fontenot]
was released to return to work full duties April/May 1999. These
facts permitted a finding by the Commission that Fontenot's Form 18
constituted a written request for additional medical treatment
within two years after the last payment of medical compensation.
(See footnote 4)
As the Commission's determination is grounded in the record, it
must be affirmed. Ante
, slip op. at 8.
 The next issue for our consideration is whether the
Commission erred by concluding that Fontenot's disc herniation was
causally related to her 29 March 1999 accident at work. Defendants
contend that this conclusion is not supported by competent evidence
in the record. We disagree.
The Commission's causation determination must be affirmed if
it is supported by any competent evidence in the record. Goff v.
Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d
602, 604 (2000). If the link between an employee's condition and
an accident at work involves a complex medical question, as in the
instant case, a finding of causation must be premised upon the
testimony of a medical expert. Click v. Freight Carriers, 300 N.C.
164, 167, 265 S.E.2d 389, 391 (1980). Medical certainty from the
expert is not required, but if an expert's opinion as to causation
is based on speculation, his opinion is not competent evidence
which supports a finding that an accident at work caused the
employee's injury. Holley v. ACTS, Inc., 357 N.C. 228, 234, 581
S.E.2d 750, 754 (2003); Young v. Hickory Bus. Furn., 353 N.C. 227,
233, 538 S.E.2d 912, 916 (2000). Even if an expert is unable to
state with certainty that there is a nexus between an event and an
injury, his testimony relating the two is at least some evidence of
causation if there is additional evidence which establishes that
the expert's testimony is more than conjecture. See Singletary v.
N.C. Baptist Hosp., 174 N.C. App. 147, 154, 619 S.E.2d 888, 893-94
(2005); Adams v. Metals USA, 168 N.C. App. 469, 482, 608 S.E.2d
357, 365, aff'd per curiam, 360 N.C. 54, __ S.E.2d __ (2005). In this case, Drs. Albright, Sidhu, St. Clair, and Derian
provided competent medical evidence which tended to link Fontenot's
herniated disc to her 29 March 1999 accident at work. Accordingly,
the Commission's finding that the two were causally related is
supported by competent evidence in the record and must be affirmed.
 Defendants have also raised an issue as to whether the
Commission erred by awarding compensation for potential future
disability. The Commission concluded that Fontenot is entitled to
compensation for future . . . disability, should such disability
arise as a result of the March 29, 1999 compensable injury by
accident or as a result of the treatment therefor and entered a
corresponding award of compensation for potential future
Under the North Carolina Workers' Compensation Act, a
disability is defined as incapacity because of injury to earn the
wages which the employee was receiving at the time of injury in the
same or any other employment. N.C. Gen. Stat. § 97-2(9) (2005).
Thus, the term disability refers to diminished earning capacity.
See id. The Commission's conclusion concerning disability must be
affirmed if it is consistent with applicable law and is based upon
findings of fact which are, in turn, based upon competent evidence
in the record. See Creel, 126 N.C. App. at 552, 486 S.E.2d at 480.
In the instant case, it is undisputed that, at the time of the
hearing before the Commission, Fontenot was working with a new
employer and was earning significantly higher wages than she hadearned while working for Springmoor. No evidence was presented to
show that Fontenot would be under a disability in the future, and
the Commission made no findings concerning any such future
disability. Accordingly, the Commission's conclusion that she was
entitled to potential future disability compensation is not
supported by findings of fact or competent evidence in the record.
The offending conclusion and the corresponding portion of the
Commission's award are vacated, and this matter is remanded to the
Commission for entry of a corrected order.
 The final issue presented by defendants is whether the
Commission erred by failing to provide that its award of medical
compensation was subject to the two-year statute of limitations
contained in section 97-25.1 of the General Statutes. Though an
award of medical compensation is subject to the statute of
limitations prescribed in section 97-25.1, whether or not the
Commission so specifies, we acknowledge that it is the better
practice for the Commission to incorporate language to this effect
in an opinion and award. See Effingham v. Kroger Co
., 149 N.C.
App. 105, 119, 561 S.E.2d 287, 297 (2002). Standing alone, the
failure of the Commission to state that its award is subject to the
statute of limitations does not warrant remanding the case to the
Commission; however, given that the case is being remanded pursuant
to section III of this opinion, we also remand to the Commission to
incorporate the statutory limitations into its award.
Affirmed in part, vacated in part, and remanded. Judges HUNTER and GEER concur.
Our discussion of the sufficiency of Fontenot's 23 January
2001 filing is included in section I(B) of this opinion.
An employee may also receive additional medical
compensation if the Commission makes an ex mero motu
additional medical compensation
within the two-year limitation
period. N.C. Gen. Stat. § 97-25.1. The Commission did not make
a timely ex mero motu
award of additional medical compensation in
A Form 18 is the document by which an injured employee
provides the requisite notice to her employer that she is seeking
benefits for a work-related injury. Workers' Compensation Rules
of the North Carolina Industrial Commission, Rule 103(1) (2006).
This holding should not be construed to establish that the
filing of a Form 18 will always constitute a written request for
additional medical treatment. Rather, our holding is limited to
a determination that in this case the Commission did not err by
determining that the Form 18 at issue constituted a written
request for additional medical treatment.
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