Appeal by defendants and cross-appeal by plaintiff from an
Opinion and Award filed 27 August 2004 by the Full Commission.
Heard in the Court of Appeals 17 August 2005.
Tania L. Leon, P.A, by Tania L. Leon, for plaintiff-
appellee/cross-appellant.
Young Moore and Henderson P.A., by Michael W. Ballance, for
defendant-appellants/cross-appellees.
BRYANT, Judge.
Defendants Frito Lay, Inc. and RSKCO (defendants) and
plaintiff Jennie Hughes appeal from an Opinion and Award of the
North Carolina Industrial Commission awarding plaintiff ongoing
total disability benefits and medical treatment. We affirm the
Commission's Opinion and Award in part, reverse in part and remand
for further findings regarding the causation and impact of
plaintiff's psychological and physical conditions.
Facts and Procedural History
Plaintiff had been an employee of defendant, Frito Lay, Inc.,
for fifteen years at the time of her compensable accident on 28
August 2001 when she fell between two to ten feet onto a concrete
floor as she was climbing on a ladder to a platform seven to twelve
feet above the floor. As a result of her fall, she sustained a
hairline fracture to the radial head of her right elbow, contusions
to her right hip, wrist, hand, arm, shoulder and back. She also
suffered pain to her lower extremities.
Defendants accepted her claim as compensable and began paying
plaintiff's medical treatment and weekly workers' compensation
benefits at $620.00, the maximum compensation rate for 2001.
Plaintiff worked on restricted duty for various periods from
October 2001 through June 2002. She again began receiving workers'
compensation benefits in June 2002, and never returned to her pre-
injury job.
On 30 August 2001 plaintiff began receiving treatment from Dr.
David DuPuy, an orthopedist. During plaintiff's work attempts, she
began experiencing increased pain and feelings of frustration,
depression and anxiety because she felt that she could not
physically perform even the modified duties expected of her.
Despite plaintiff's complaints of pain, Dr. DuPuy restricted
plaintiff to a light duty position and increased her physical
restrictions.
On 8 January 2002, plaintiff saw Dr. DuPuy still complaining
of moderate pain in her right upper extremity making it difficult
for her to work, reported decreased strength, and requested areferral to a neurologist. Dr. DuPuy denied this request and
instead increased her light duty restrictions.
Plaintiff returned to Dr. DuPuy on 5 February 2002 still
complaining of pain and significant emotional problems. Dr. DuPuy
recommended plaintiff continue reporting to work and indicated
there was an “extreme subjective emotional overlay involved with
this whole case.” Dr. DuPuy also referred plaintiff for a
Functional Capacity Evaluation (FCE). The results of the FCE
showed plaintiff gave consistent effort throughout the testing and
concluded she could do light duty work with frequent floor to
knuckle lifting of twelve pounds, knuckle to shoulder lifting of
nine pounds, shoulder to overhead lifting of six pounds and
carrying ten pounds fifty feet with pivoting.
On 12 February 2002, plaintiff sought psychological counseling
from Susan Vigeant and Dr. Kenneth Carter of Rock Hill Psychiatric
Consultants. Plaintiff complained of depression and a desire to
“get back to being myself” and reported these symptoms of
depression began when she “felt powerless to assure proper
treatment” regarding her work related injury. Plaintiff was
diagnosed with severe depressive disorder and panic disorder and
prescribed Wellbutrin, Serzone, Sonata, and Klonopin. Dr. Carter
testified that although plaintiff had other stressors in her life,
her psychiatric symptoms were causally related to her August 28,
2001 injury by accident. Dr. Carter also opined that plaintiff was
not capable of returning to work due to her impaired concentration
and focus. On 23 May 2002, plaintiff filed a Motion to Change Treating
Physician and to Designate Medical Treatment. Plaintiff's motion
was granted by Order filed 26 June 2002, wherein Special Deputy
Commissioner Myra L. Griffin ordered defendants to provide
plaintiff with a one-time evaluation by a physician of her choice,
however plaintiff's request for psychological treatment was denied.
Plaintiff subsequently saw Dr. Neal Taub on 9 July 2002 and on 23
July 2002 filed a Motion to Change Treating Physician in order to
pursue the treatment recommendations set forth by Dr. Taub.
Dr. Taub is a medical specialist in the field of physical
medicine and rehabilitation. Dr. Taub's impression was that
plaintiff had persistent right shoulder, hip and knee pain with
probable myofascial pain syndrome, all related to her 28 August
2001 injury by accident.
Plaintiff continued seeing Dr. DuPuy, complaining of pain, and
on 12 August 2002, Dr. DuPuy stated that plaintiff could return to
work with no restrictions. Dr. DuPuy assigned a fifteen percent
permanent partial disability rating to plaintiff's right arm, and
no permanent impairment to any other body part.
Defendants filed an Application to Terminate or Suspend
Payment of Compensation on 12 September 2002, claiming plaintiff's
treating orthopedist, Dr. David DuPuy, had released plaintiff to
return to work full time without restriction on 12 August 2002 and
found her to be at maximum medical improvement. On 16 September
2002 Deputy Commissioner Adrian A. Phillips granted plaintiff's
motion to change her treating physician. Defendants appealedDeputy Commissioner Phillips' Order on 20 September 2002, claiming
the Order was unsupported by the medical evidence, and as an
admitted claim, defendants were entitled to direct plaintiff's
care. On 14 November 2002, Special Deputy Commissioner Matthew D.
Harbin denied defendants' Application to Terminate or Suspend
Payment of Compensation and ordered defendants to pay for all
medical treatment ordered by Dr. Taub. Defendants appealed Deputy
Commissioner Harbin's Order on 21 November 2002. Plaintiff
appealed Deputy Commissioner Griffin's denial of her request for
psychological treatment on 4 February 2003.
This matter was then heard before Deputy Commissioner Bradley
W. Houser on 20 February 2003. In his Opinion and Award of 12
December 2003, Deputy Commissioner Houser awarded plaintiff ongoing
total disability compensation at the rate of $620.00 per week from
7 March 2002 and continuing; and ordered defendants to pay for all
related medical expenses for treatment by Dr. Taub and plaintiff's
psychological treatment by Dr. Carter. Defendants appealed to the
Full Commission.
On 27 August 2004, the Full Commission entered an Opinion and
Award affirming the Opinion and Award of Deputy Commissioner
Houser, with modifications. The Full Commission awarded plaintiff
total disability compensation at the rate of $620.00 per week from
7 March 2002 through the present and continuing. The Commission
also ordered defendants to pay for all related medical expenses
incurred or to be incurred by plaintiff for the treatment of her
back, right knee, right hip, right arm, right shoulder, andpsychological condition as long as such treatment is reasonably
required to effect a cure, give relief, and/or lessen plaintiff's
disability. Defendants appealed to the Court of Appeals on 16
September 2004. Plaintiff appealed to the Court of Appeals on 22
September 2004.
_________________________
On appeal, defendants raise five issues: (I) whether the
Commission's Opinion and Award is inherently contradictory and in
error as to the causation of plaintiff's psychological problems;
(II) whether the Commission applied the wrong burden of proof
concerning the cause of plaintiff's physical problems; (III)
whether the Commission erred in finding plaintiff was totally
disabled because of her work-related injury; (IV) whether the
Commission erred in concluding plaintiff was entitled to ongoing
total disability benefits because defendants failed to offer
plaintiff any job after her completion of jury duty in June of
2002; and (V) whether the Commission erred in concluding plaintiff
was entitled to a change of her treating physician. Plaintiff
cross-appeals raising three issues involving the Commission's
findings regarding plaintiff's psychological problems.
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 lack
of competent evidence to support them.”
Johnson v. Herbie's Place,
157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation and
quotations 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.'”
Id. (quoting
Anderson v. Lincoln Constr.
Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). “[E]vidence
tending to support plaintiff's claim is to be viewed in the light
most favorable to plaintiff, and plaintiff is entitled to the
benefit of every reasonable inference to be drawn from the
evidence.”
Id. (citing
Doggett v. South Atl. Warehouse Co., 212
N.C. 599, 194 S.E. 111 (1937));
see also Hollman v. City of
Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968) (“[O]ur
Workmen's Compensation Act should be liberally construed to
effectuate its purpose to provide compensation for injured
employees . . ., and its benefits should not be denied by a
technical, narrow, and strict construction.”). However, the
Commission's conclusions of law are reviewed
de novo.
McRae v.
Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
I
Defendants argue (Arguments I and III in defendant-appellants'
brief) the Commission's Opinion and Award is inherently
contradictory on the issue of psychological causation and that theCommission erred by finding and concluding plaintiff's
psychological condition was causally related to her elbow injury.
Plaintiff cross-appeals arguing (Arguments I, II and III in
plaintiff-appellant's brief) the Commission erred in finding
plaintiff's psychological problems are not disabling and in finding
and concluding that defendant's have met their burden of showing
plaintiff's psychological problems are not the result of her
original compensable injury. Because both parties' arguments as to
psychological causation are interrelated, we review them together.
“[A]lthough the Commission 'is not required . . . to find
facts as to all credible evidence . . . the Commission must find
those facts which are necessary to support its conclusions of
law[.]'”
Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 178, 565
S.E.2d 209, 214 (2002) (quoting
Peagler v. Tyson Foods, Inc., 138
N.C. App. 593, 602, 532 S.E.2d 207, 213 (2000)). “If the findings
of the Commission are insufficient to determine the rights of the
parties, the appellate court may remand to the Industrial
Commission for additional findings.”
Lanning v. Fieldcrest-Cannon,
Inc., 352 N.C. 98, 106, 530 S.E.2d 54, 60 (2000).
See also Harrell
v. Harriet & Henderson Yarns, 314 N.C. 566, 575, 336 S.E.2d 47, 52
(1985) (where Commission makes “inconsistent fact findings, . . .
the proper course is to remand the case to the Commission”);
Neal
v. Leslie Fay, Inc., 78 N.C. App. 117, 119, 336 S.E.2d 628, 630
(1985) (“[t]hough this appeal raises [certain] questions they
cannot be determined because the Commission's findings of fact andconclusions of law are inconsistent and contradictory, some of
which support and some of which undermine the decision made”).
In the instant case, the Commission made the following
pertinent findings of fact:
25. Based upon the greater weight of the
evidence,
plaintiff's need for treatment for
her psychological problems, which, according
to Dr. Carter, primarily related to her
frustration with efforts to return her to work
and her lack of control over her medical care
and return-to-work situation,
flowed directly
from, and was a direct and natural result of
conditions related to her compensable injury.
Plaintiff's psychological problems were not
disabling. Plaintiff continued to work while
receiving psychiatric consultations and by 26
July 2002, her generalized anxiety disorder
had nearly resolved. No weight is given to Dr.
Carter's opinion that plaintiff was not
capable of returning to work due to impaired
concentration and focus.
(Emphasis added.) This finding of fact is inherently contradictory
to the Commission's Conclusion of Law Number Two:
2. Because the compensability of plaintiff's
original injury is not in dispute,
defendants
have the burden of proving that plaintiff's
musculoskeletal problems, including pain in
her back, knee, hip, arm, and shoulder are not
the result of or causally related to her
original injury by accident.
Parsons v.
Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d
867 (1997). Based on the greater weight of the
evidence,
defendants have met this burden only
as to plaintiff's psychological problems.
(Emphasis added.) However, in its Conclusion of Law Number Five,
the Commission went on to hold:
5.
Plaintiff is entitled to the payment of
medical expenses incurred or to be incurred
for the treatment of the injury to her back,
right knee, right hip, right arm, and right
shoulder and
her psychological condition
related to her injury so long as suchtreatment is reasonably required to effect a
cure, give relief, and/or lessen plaintiff's
disability.
(Emphasis added.)
Because it is not possible to divine the true intent of the
Commission based upon the record before this Court, we must remand
this issue back to the Commission so that it may make proper
findings of fact that are not inherently contradictory and that
adequately support its conclusions of law.
II
Defendants next argue the Commission applied the wrong burden
of proof concerning the cause of plaintiff's physical problems. In
its Conclusion of Law Number Two, the Commission held:
2. Because the compensability of plaintiff's
original injury is not in dispute, defendants
have the burden of proving that plaintiff's
musculoskeletal problems, including pain in
her back, knee, hip, arm, and shoulder are not
the result of or causally related to her
original injury by accident.
Parsons v.
Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d
867 (1997).
Under
Parsons, a claimant is not required 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.
Parsons at 542, 485 S.E.2d at 869.
Defendants argue that
Parsons only applies where the issue is
treatment for the same body part which has previously been found
compensable by the Commission, and where there has been no prior
Award or ruling by the Commission on causation the burden of proof
remains with plaintiff.
See Porter v. Fieldcrest Cannon, Inc., 133N.C. App. 23, 27-28, 514 S.E.2d 517, 521 (1999) (plaintiff has the
burden of establishing a causal relationship between a work-related
incident and her medical conditions where her claim has not been
approved by the Commission).
Defendants have stipulated that plaintiff sustained a
compensable injury by accident on 28 August 2001, but defendants
contend only the fracture to plaintiff's elbow was accepted as
compensable. Plaintiff was diagnosed and treated for strain to her
back, right hip, and right knee by defendant's chosen treating
physician, Dr. DuPuy as early as 14 September 2001 which Dr. DuPuy
noted arose out of an employment-related accident. Defendants paid
for all treatments with Dr. DuPuy and never denied the
compensability of these conditions. Furthermore, Dr. Taub stated
that in his opinion, plaintiff's musculoskeletal pain arose out of
her fall in August 2001.
While an employer does not accept liability for an employee's
injuries merely because the employer directs medical treatment;
see
Harrison v. Lucent Techs., 156 N.C. App. 147, 153, 575 S.E.2d 825,
828-29 (2003); there is competent evidence on the record before
this Court supporting the Commission's finding that plaintiff's
musculoskeletal problems, including pain in her back, knee, hip,
arm, and shoulder, are in fact the result of or causally related to
her original injury by accident. Thus, plaintiff is entitled to
the
Parsons presumption and the Commission properly applied the
burden of proof to defendants to show plaintiff's physical problemswere not causally related to her original injury. This assignment
of error is overruled.
III
Defendants next claim the Commission erred when it found
plaintiff was totally disabled because of her injury at work. In
the context of workers' compensation, disability is defined as the
“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 determination
of whether a disability exists is a conclusion of law that must be
based upon findings of fact supported by competent evidence.”
Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 108, 530 S.E.2d
54, 61 (2000).
[I]n order to support a conclusion of
disability, the Commission must find: (1) that
plaintiff was incapable after his injury of
earning the same wages he had earned before
his injury in the same employment, (2) that
plaintiff was incapable after his injury of
earning the same wages he had earned before
his injury in any other employment, and (3)
that this individual's incapacity to earn was
caused by plaintiff's injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982) (citing
Watkins v. Cent. Motor Lines, Inc., 279 N.C.
132, 181 S.E.2d 588 (1971)).
The burden is on the employee to show that she is unable to
earn the same wages she had earned before the injury, either in the
same employment or in other employment.
Id. This burden may be
met 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.
Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (citations omitted).
In support of its conclusion that plaintiff is totally
disabled, the Commission found plaintiff established the first of
the above
Lowe's factors:
27. As a result of her 28 August 2001 injury
by accident to her back, right knee, right
hip, right arm, and right shoulder and related
conditions, plaintiff has been unable to earn
wages in any position with defendant-employer
or in any other employment for the period from
7 March 2002 though the present and
continuing.
The Commission went on to conclude:
4. As a result of her 28 August 2001 injury by
accident and related conditions, plaintiff is
entitled to be paid by defendants ongoing
total disability compensation at the rate of
$620.00 per week for the period of 7 March
2002 through the present and continuing until
further order of the Commission. N.C. Gen.
Stat. § 97-29.
As discussed in Issue
II,
supra, there is competent evidence
supporting the Commission's finding that plaintiff's physical
conditions are the result of, or causally related to, plaintiff'soriginal injury by accident. However, there is no competent
evidence in the record before this Court to support the
Commission's findings and conclusion that plaintiff “has been
unable to earn wages in any position with defendant-employer or in
any other employment” solely because of her
physical conditions,
and is therefore totally disabled. Both Dr. DuPuy and Dr. Taub
testified that plaintiff was capable of performing work within the
limits established by the FCE. There is substantial evidence in
the record before this Court showing plaintiff has restrictions as
to the work she is able to perform and that plaintiff cannot
perform her previous job under these restrictions. However, it is
unclear from the record whether plaintiff has shown that, due
solely to her physical conditions, she is unable to earn the same
wages she had earned before the injury, either in the same
employment or in other employment.
The only support found in the record for an award for total
disability is Dr. Carter's opinion that plaintiff was not capable
of returning to work due to her impaired concentration and focus.
As discussed above, the Commission's findings regarding plaintiff's
psychological disability are inconsistent and cannot support a
finding of total disability. As the Commission's findings on
plaintiff's disability are inconsistent, and it is unclear from the
record before this Court whether plaintiff met her burden of
establishing her ongoing total disability, we must also remand this
issue back to the Commission so that it may make proper findings of
fact that adequately support its conclusions of law.
IV
Defendants next argue the Commission erred in concluding
plaintiff was entitled to ongoing total disability benefits because
defendants failed to offer plaintiff any job after her completion
of jury duty in June of 2002. Plaintiff argues the Commission
properly found she was totally disabled because defendant did not
offer her suitable employment within the physical work restrictions
established by Dr. Taub. Plaintiff asks this Court to hold that an
employer's failure to offer suitable employment to an injured
employee may be used by the Commission as a basis for finding
plaintiff is totally disabled.
The burden is on plaintiff to establish her disability and
once established, the burden then shifts to the employer to show
the employee has refused suitable employment without justification
whereby compensation can then be denied.
Johnson v. S. Tire Sales
& Serv., 358 N.C. 701, 708-09, 599 S.E.2d 508, 513-14 (2004). In
the instant case, it is unclear whether plaintiff met her initial
burden and so whether suitable employment was offered or refused is
not at issue. Therefore, as in Issue
III,
supra, we remand this
issue back to the Commission to determine whether, after making
proper findings of fact as to disability, this issue is relevant.
V
By Order filed 16 September 2002, the Executive Secretary's
office allowed plaintiff to change treating physicians from Dr.
DuPuy to Dr. Taub. Defendants contend the Commission erred by
finding plaintiff was entitled to a change of treating physicians. Defendants claim plaintiff purposefully sabotaged the treatment
relationship so she could seek treatment from a doctor recommended
by her attorney; the treatment provided by Dr. Taub was neither
necessary nor reasonable and did not facilitate any demonstrable
rehabilitation or recovery; and that Dr. Taub specifically
testified he had nothing more medically to offer plaintiff.
Defendants argue they should not be required to pay for Dr. Taub's
past treatment, and that the Commission's award ordering defendants
to pay for current and future treatment is an abuse of discretion
and must be reversed. We disagree.
“The 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 . . . .” N.C. Gen. Stat. § 97-25 (2005). “The
unambiguous language of this statute, thus, leaves the approval of
a physician within the discretion of the Commission and the
Commission's determination may only be reversed upon a finding of
a manifest abuse of discretion.”
Franklin v. Broyhill Furniture
Indus., 123 N.C. App. 200, 207, 472 S.E.2d 382, 387 (1996). If the
Commission approves a plaintiff's choice of treating physicians,
and if the treatment sought is to effectuate a cure or
rehabilitation, then the employer has a statutory duty under this
section to pay for the treatment.
Forrest v. Pitt County Bd. of
Educ., 100 N.C. App. 119, 126, 394 S.E.2d 659, 663 (1990). The Commission made the following findings of fact in support
of its conclusion that Dr. Taub is plaintiff's authorized treating
physician:
19. On 9 July 2002, upon an Order by the
Commission, plaintiff was examined by Dr. Neal
Taub, a medical specialist in the field of
physical medicine and rehabilitation. Based
upon his initial examination, Dr. Taub found
that plaintiff had persistent right shoulder,
hip and knee pain with probable myofascial
pain syndrome. Dr. Taub testified that
plaintiff's musculoskeletal problems,
including the pain in her back, knee, hip,
arm, and shoulder are related to her 28 August
2001 injury by accident. Dr. Taub also opined
that plaintiff's depression and anxiety were
related to her 25 August injury by accident.
Dr. Taub further opined that: (a) plaintiff
was capable of working within the restrictions
outlined in the FCE; (b) plaintiff needed
additional physical therapy; and (c) plaintiff
had not reached maximum medical improvement.
20. As of 12 August 2002, Dr. DuPuy released
plaintiff to return to her full duties in her
former position with defendant-employer. Dr.
DuPuy opined that plaintiff reached maximum
medical improvement on 5 February 2002 with a
fifteen percent (15%) permanent partial
disability rating to her right arm, and no
permanent impairment to any other body part.
Additionally, Dr. DuPuy opined that
plaintiff's psychological symptoms and
physical conditions beyond the hairline
fracture of the right elbow radial head and
some initial right hip, arm, and back
bruising, were not caused by, aggravated by,
or related to plaintiff's injury by accident
of 28 August 2001.
21. On 10 January 2003, Dr. Taub prescribed
physical and aquatic therapy for plaintiff,
which improved her symptoms. Additionally, Dr.
Taub prescribed the use of a TENS unit, which
also improved plaintiff's symptoms. Dr. Taub
testified that plaintiff would continue to
experience chronic pain requiring medication
or other treatment.
22. Based on the greater weight of the
evidence, plaintiff has lost confidence in Dr.
DuPuy as her treating physician. Additionally,
the evidence shows that plaintiff's conditions
and symptoms have improved under the treatment
regime provided by Dr. Taub, whose designation
as plaintiff's authorized treating physician
is approved by the Full Commission.
Competent evidence exists on the record to support each of the
Commission's findings of fact regarding Dr. Taub. There is no
indication the Commission abused its discretion in allowing
plaintiff to change treating physicians. This assignment of error
is overruled.
Affirmed in part; reversed in part and remanded for further
findings.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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