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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.
DAPHNE SHARPE, Employee, Plaintiff, v. REX HEALTHCARE, Employer,
ALLIED CLAIMS ADMINISTRATION, Carrier, Defendants
Filed: 5 September 2006
1. Workers' Compensation_return to work_conclusions_supported by competent
There was competent evidence in a workers' compensation case to support findings that
plaintiff had not approached her employer about returning to work and had not shown that her
unjustified refusal to return to work had ceased. While plaintiff testified that she could not work
because she was still hurt and argued that competent evidence supported that contention, it is not
the role of the Court of Appeals to re-weigh the evidence or to substitute its evaluation of
credibility for that of the Industrial Commission.
2. Workers' Compensation_change of condition--time limitation
The two-year time limitation for filing for a change of condition in workers'
compensation cases runs from the date on which the employee received the last payment of
compensation, not from the date the employee receives a Form 28B. The plaintiff here failed to
file a timely claim where she received her last compensation check on 17 May 1999 and filed
for a change of condition on 3 October 2002.
3. Workers' Compensation_appeal and claim for additional compensation_timeliness
A workers' compensation plaintiff failed to timely appeal from the denial of
compensation or to timely make a claim for additional compensation.
4. Workers' Compensation_conclusions_supported by findings
Disputed conclusions in a workers' compensation case were fully supported by the
findings of fact.
5. Workers' Compensation_change of treating physicians_request not timely
The Industrial Commission did not err in finding and concluding that plaintiff failed to
request a change of treating physicians within a reasonable time. She raised the issue of payment
for unauthorized treatments more than three years defendant made its last payment of medical
compensation for authorized treatment, and she acknowledged that she had not previously sought
to change her treating physicians.
Judge LEVINSON concurring in part and dissenting in part.
Appeal by plaintiff from opinion and award entered 12 April
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 23 February 2006.
Michael J. Anderson, for plaintiff-appellant.
Young Moore and Henderson P.A., by Dawn D. Raynor and Angela
, for defendants-appellees
Daphne Sharpe (plaintiff) appeals from the North Carolina
Industrial Commission's opinion and award (the Commission)
denying her claim for further compensation and medical benefits
under the North Carolina Workers' Compensation Act. We affirm.
On 20 June 1998, plaintiff was employed by Rex Healthcare
(Rex) as a certified nursing assistant. Plaintiff injured her
back while lifting a patient from the floor. Plaintiff's original
claim for benefits was accepted by defendants' filing a Form 60 on
23 July 1998. Plaintiff was initially treated by Dr. Douglas
Hammer (Dr. Hammer) at Rex. Dr. Hammer recommended physical
therapy and referred plaintiff to Dr. Scott Sanitate (Dr.
Santate), who administered epidural injections. Plaintiff was
also referred to Dr. James Fulghum (Dr. Fulghum), who performed
surgery on an herniated disc in plaintiff's spine on 16 December
1998. Dr. Fulghum released plaintiff during late April or early
May 1999, and indicated she had reached maximum medical improvement
and had sustained a 10% permanent partial rating. Dr. Fulghum also
restricted plaintiff's work, limiting lifting. Plaintiff was
advised to refrain from frequent twisting or bending. A Form 28
Return to Work Report was approved by defendants and filed with the
Commission on 27 July 1998. Plaintiff accepted a job at the pediatric unit at Rex
Hospital. Plaintiff greeted family members and screened and
monitored children during the day. Rex Hospital staff were aware
of plaintiff's lifting restrictions and provided her assistance
when needed. Plaintiff's work attendance was not consistent.
Plaintiff last day at work at Rex Hospital was 2 August 1999. On
10 August 1999, plaintiff's husband called Rex Hospital and stated
she would not attend work. Rex Hospital terminated plaintiff.
Following this termination, plaintiff remained unemployed.
On 31 August 2001, the Commission concluded plaintiff had
refused suitable employment and was not entitled to further
compensation until her refusal to work ceased.
In 2001, plaintiff continued treatment with her personal
physician, Dr. Hand, while also under the care of Drs. Fulghum and
Sanitate. Dr. Hand recommended plaintiff see Dr. William Deans
(Dr. Deans), a board certified neurologist, for pain management.
Dr. Deans opined plaintiff's recurrent disc herniation was an
exacerbation of her condition and increased pain. Dr. Deans
referred plaintiff to another neurosurgeon, Dr. Lucas Martinez
Dr. Martinez performed a second surgery on plaintiff's back on
15 November 2002. Plaintiff testified that she got a little
relief from this surgery. Plaintiff never contacted Rex or their
insurance carrier, Allied Claims, for authorization for the
treatment rendered either by Dr. Hand or Dr. Deans, or approval for
the surgeries by Dr. Martinez during 2001 and 2002. Rex filed a Form 28B on 13 April 2000 stating the last
compensation check was forwarded on 17 May 1999, and the last
medical compensation was paid on 24 January 2001.
Plaintiff filed a Form 33 on 3 October 2002 requesting a new
hearing. Plaintiff claimed defendants refused to pay temporary
total disability benefits. Defendants filed a Form 33R and
responded that [p]laintiff has never requested temporary total
disability compensation since an Opinion and Award filed on August
31, 2001 was filed denying her claim for temporary total disability
On 17 June 2004, Deputy Commissioner Baddour entered an
opinion and award finding plaintiff failed to show her unjustified
refusal to return to work had ceased, and concluded she was not
entitled to any further compensation or medical expenses. On 12
April 2005, the Full Commission affirmed Deputy Commissioner
1. Defendant-carrier mailed plaintiff's final
indemnity check on or about May 17, 1999.
Defendant-carrier filed a Form 28B on or about
April 13, 2000, followed by a revised Form 28B
that was filed on or about November 16, 2001.
Both the first Form 28B and the second Form
28B indicate that the last compensation check
was forwarded to plaintiff on May 17, 1999.
2. Defendant-carrier made the final payment
for authorized medical expenses on or about
January 4, 2001, as indicated on the revised
3. On August 31, 2001, the Full Commission
filed an Opinion and Award in this matter that
contained the following Conclusion of Law:
Plaintiff refused employment procured for her
suitable to her capacity; therefore, plaintiff
is not entitled to compensation under theprovisions of the North Carolina Workers'
Compensation Act until such refusal ceases.
N.C. Gen. Stat. § 97-32. The Full
Commission's Opinion and Award contained the
following Order: Under the law, plaintiff's
claim for workers' compensation benefits must
be, and the same is hereby suspended.
4. Plaintiff did not appeal the Full
Commission's Opinion and Award filed on August
5. Following the filing of the Full
Commission's Opinion and Award on August 31,
2001, plaintiff never approached the
defendant-employer regarding returning to
6. Plaintiff failed to show that her
unjustified refusal to return to work has
. . . .
8. Plaintiff did not claim any other benefits
on the Form 33 filed October 3, 2002.
Specifically, plaintiff checked the box
indicating a claim for payment of
compensation for days missed and did not
check the box indicating a claim for payment
of medical expenses/treatment.
9. On or about April 24, 2003, plaintiff
asserted, for the first time, a claim for
payment of past unauthorized medical expenses
and a claim for payment of future medical
expenses. These claims were raised as issues
in the pretrial agreement for the hearing on
April 24, 2003 before the undersigned.
10. Plaintiff has never requested a change of
treating physician and has not sought approval
and payment of unauthorized medical expenses
within a reasonable time.
11. Plaintiff failed to make a claim for a
change of condition within two years of
defendants' last payment of indemnity
12. Plaintiff failed to file a Form 18M, or
otherwise make a claim for additional medicalcompensation within two years of defendants'
last payment of medical or indemnity
The Full Commission concluded:
The Full Commission's Opinion and Award
filed on August 31, 2001 is conclusive and
binding. Because plaintiff failed to show
that her unjustified refusal to return to work
has ceased, plaintiff is not entitled to
payment of any additional compensation,
including temporary total disability
compensation or an impairment rating. N.C.
Gen. Stat. §§ 97-86; 97-2(11).
2. Plaintiff failed to request approval of
unauthorized medical expenses within a
reasonable time. N.C. Gen. Stat. § 97-25.
Plaintiff failed to make a claim for a
change of condition within two years of
defendants' last payment of indemnity
compensation. Accordingly, plaintiff's claim
for additional indemnity compensation based
upon a change of condition is time barred.
N.C. Gen. Stat. § 97-47
4. Plaintiff failed to file a Form 18M, or
otherwise make a claim, for additional medical
compensation within two years of the
employer's last payment of medical or
indemnity compensation. Accordingly,
plaintiff's claim for additional medical
compensation is time barred. N.C. Gen. Stat.
§ 97-25.1; NCIC Workers' Compensation Rule
Plaintiff appeals solely from the 12 April 2005 opinion and
Plaintiff argues the Commission erred in: (1) denying her
claim for further compensation by concluding she failed to show
that her unjustified refusal to return to work has ceased; (2)
concluding that the two-year limitations period contained in N.C.Gen. Stat. § 97-47 precluded a change of condition claim; and (3)
denying her request for change in treating physicians.
Plaintiff's remaining assignments of error not carried forward
and argued in her brief are deemed abandoned and dismissed. N.C.R.
App. P. 28(b)(6) (2006).
III. Standard of Review
The standard of review on appeal to this Court from an award
by the Commission is whether there is any competent evidence in the
record to support the Commission's findings and whether those
findings support the Commission's conclusions of law. Oliver v.
Lane Co., 143 N.C. App. 167, 170, 544 S.E.2d 606, 608 (2001). This
Court does not re-weigh evidence or assess credibility of
witnesses. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998). [I]f . . . competent evidence support[s] the
findings, they are conclusive on appeal even though . . . plenary
evidence [may] support contrary findings. Oliver, 143 N.C. App.
at 170, 544 S.E.2d at 608 (citations omitted). The Commission may
weigh the evidence and believe all, none or some of the evidence.
Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 428, 552 S.E.2d
269, 272, disc. rev. denied, 355 N.C. 211, 558 S.E.2d 868 (2001).
The Commission's conclusions of law are reviewable de novo.
Arnold v. Wal-Mart Stores, Inc., 154 N.C. App. 482, 484, 571 S.E.2d
888, 891 (2002).
IV. Refusal to Work
 Plaintiff argues that the Commission erred in denying her
claim for further compensation after concluding she failed to show
she had ceased her unjustified refusal to return to work.
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).
The term disability refers to diminished earning capacity. If
an injured employee refuses employment procured for him suitable to
his capacity he shall not be entitled to any compensation at any
time during the continuance of such refusal, unless in the opinion
of the Industrial Commission such refusal was justified. N.C.
Gen. Stat. § 97-32 (2005).
Plaintiff challenges findings of fact numbered 5 and 6,
contending they are contrary to any competent evidence. We
Competent evidence in the record demonstrates that plaintiff
never approached Rex about returning to work after Rex Hospital
terminated her employment for absences. Plaintiff also failed to
present any evidence showing that she accepted or looked for other
suitable employment in conformity with her prescribed work
restrictions. While plaintiff testified she could not work because
she was still hurt and argues on appeal competent evidence in the
record supports this contention, it is not the role of this Court
to re-weigh the evidence or substitute our evaluation or
credibility of the evidence for that of the Commission. SeeRoberts v. Century Contrs., Inc., 162 N.C. App. 688, 691, 592
S.E.2d 215, 218 (2004). We conclude that findings of fact numbered
5 and 6 are supported by competent evidence. Plaintiff's
assignment of error is overruled.
V. Two-Year Limitations Period
 Plaintiff next contends the two year limitations period to
file for a change of condition pursuant to N.C. Gen. Stat. § 97-47
did not run, and defendants owe her the ten percent permanent
partial disability pursuant to the 31 August 2001 award. We
Under N.C. Gen. Stat. § 97-47 (2005):
the Industrial Commission may review any
award, and on such review may make an award
ending, diminishing, or increasing the
compensation previously awarded . . . . No
such review shall affect such award as regards
any moneys paid but no such review shall be
made after two years from the date of the last
payment of compensation pursuant to an award
under this Article.
The time limitation commences to run from the date on which
employee received the last payment of compensation, not from the
date the employee receives a Form 28B. Cook v. Southern Bonded,
Inc., 82 N.C. App. 277, 280, 346 S.E.2d 168, 170 (1986), disc. rev.
denied, 318 N.C. 692, 351 S.E.2d 741 (1987).
Plaintiff received her last compensation check on 17 May 1999.
The two-year limitation period for filing a change of condition
began to run on 17 May 1999. Plaintiff filed for a change of
condition on 3 October 2002, more than two years after her receiptof her last compensation check. Plaintiff failed to file a timely
claim asserting a change of her condition.
 Plaintiff also failed to appeal from the Full Commission's
31 August 2001 award. In its 12 April 2005 opinion and award, the
Commission's conclusion of law numbered 1 states:
The Full Commission's Opinion and Award filed
on August 31, 2001 is conclusive and binding.
Because plaintiff failed to show that her
unjustified refusal to return to work has
ceased, plaintiff is not entitled to payment
of any additional compensation, including
temporary total disability compensation or an
impairment rating. N.C. Gen. Stat. §§ 97-86;
Under N.C. Gen. Stat. § 97-86, an award of the [full]
Commission . . . shall be conclusive and binding as to all
questions of fact; but either party to the dispute may, within 30
days from the date of such award . . . appeal from the decision of
said Commission to the Court of Appeals for errors of law . . . .
N.C. Gen. Stat. § 97-86 (2005); see Hall v. Thomason Chevrolet,
Inc., 263 N.C. 569, 575, 139 S.E.2d 857, 861 (1965) (an award of
the Commission, if not reviewed in due time as provided in the Act,
is conclusive and binding as to all questions of fact).
Plaintiff failed to appeal from the 31 August 2001 award and
lost her right to appeal from the Commission's conclusion denying
her compensation. The opinion and award's findings of fact are
conclusive and binding. Hall, 263 N.C. at 575, 139 S.E.2d at 861.
Plaintiff appeals solely from the 12 April 2005 Commission's
opinion and award. The Commission's finding of fact numbered 1
which states, defendant-carrier mailed plaintiff's final indemnitycheck on or about May 17, 1999, is supported by competent evidence
in the record. Defendants' amended Form 28B states plaintiff's
last compensation check was forwarded to her on 17 May 1999. The
Commission's conclusion of law numbered 4 which states, plaintiff
failed to file a Form 18M, or otherwise make a claim, for
additional medical compensation within two years of the employer's
last payment of medical or indemnity compensation, is supported by
finding of fact numbered 1. Plaintiff's assignment of error is
 Plaintiff next contends that conclusion of law numbered 1
is erroneous because the credible facts support the conclusion
that the Full Commission's Opinion and Award filed on August 31,
2001 is not conclusive and binding[.] This conclusion of law is
fully supported by findings of fact in the opinion and award.
Plaintiff also contends that conclusion of law numbered 2 is
erroneous because it is contrary to the facts[.] This conclusion
is fully supported by competent evidence and the findings of fact
in the opinion and award. This assignment of error is overruled.
VI. Treating Physicians
 Plaintiff argues Dr. Deans and Dr. Martinez should be
approved as [her] treating physicians. Presuming, arguendo, this
issue was preserved by plaintiff's assignments of error, it has no
merit. Plaintiff raised the issue of payment for unauthorized
medical treatments more than three years after defendants made
their last payment of medical compensation for authorized
treatment. At the 24 April 2003 hearing, plaintiff acknowledgedshe never sought permission from the Commission to change her
treating physicians to Drs. Deans and Martinez. The Commission did
not err in finding and concluding that plaintiff failed to timely
request a change of treating physicians within a reasonable time.
The Commission's conclusions of law are supported by its
findings of fact, which findings are supported by competent
evidence in the record. The Commission's 12 April 2005 opinion and
award is affirmed.
Judge MCCULLOUGH concurs.
Judge LEVINSON concurs in part, dissents in part by separate
LEVINSON, Judge concurring in part and dissenting in part.
I concur in the majority opinion except to the extent it
concludes that the two year limitations period contained in G.S. §
97-47 has expired. This appeal primarily concerns the
interpretation and application of this statute. Before the
Industrial Commission, plaintiff alleged a change of condition
primarily because she sought additional medical compensation. The
majority opinion, instead, frames the main issue on appeal as
whether plaintiff can compel defendants to pay the ten percent
On appeal, plaintiff contends that because defendants have not
yet paid her the ten percent permanent partial disability, the G.S.§ 97-47 two year limitations period to file for a change of
condition has not expired. This argument has merit.
Here, the 31 August 2001 opinion and award, expressly citing
G.S. § 97-32, provided that plaintiff was not entitled to
compensation under the provisions of the North Carolina Workers'
Compensation Act until [her refusal to accept employment] ceases.
Suspension under G.S. § 97-32 is temporary, and the last potential
payment could not have occurred because the ten percent rating was
payable if the suspension ended. In short, the limitations period
in G.S. § 97-47 had not yet begun to expire by virtue of any
compensation payments made in 1999, as the majority concludes. In
my view, the reasoning of the majority opinion does not take the
G.S. § 97-32 suspension into account.
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