An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 May 2006
v. N.C. Industrial Commission
I.C. No. 101235
SELF-INSURED (COMPENSATION CLAIMS
SOLUTIONS, Servicing Agent),
Appeal by defendant and cross-appeal by plaintiff from opinion
and award entered 1 July 2005 by Commissioner Christopher Scott for
the North Carolina Industrial Commission. Heard in the Court of
Appeals 19 April 2006.
William G. Goldston, for plaintiff-appellee/cross appellant.
Young Moore and Henderson P.A., by Dawn Dillon Raynor and
Jennifer T. Gottsegen, for defendant-appellant/cross appellee.
Durham County (defendant) appeals from the Industrial
Commission's (Commission) approval of Wilhelmina Foster-Long's
(plaintiff) request to change her treating physician. Plaintiff
cross-appeals asserting the Commission erred in denying her motion
to consider new evidence and to supplement her motion to consider
new evidence, and in failing to consider plaintiff's form 18M. We
I. BackgroundA. History of Treatment
Plaintiff is employed with the Durham County Government
Criminal Justice Resource Center and supervises the Substance Abuse
Treatment Program. Plaintiff was injured at work on 29 March 2000.
She was walking down a flight of stairs in the building at her
workplace. Plaintiff was distracted by a bee in the window and
fell down three or four stairs. Plaintiff developed pain in her
back the day after the fall.
Plaintiff was seen by Dr. Aaron Miller (Dr. Miller) at
Research Triangle Occupational Health Service, who prescribed pain
medication. She presented several more times to Dr. Miller and was
referred to Dr. Peter Gilmer (Dr. Gilmer) at Triangle Orthopaedic
Associates (Triangle Orthopaedics). Dr. Gilmer diagnosed
plaintiff with a lumbar strain on 11 May 2000 and recommended
physical therapy. Plaintiff returned to Dr. Gilmer on 7 June 2000.
Dr. Gilmer encouraged plaintiff to participate in physical therapy
and to return to work.
Plaintiff returned to Dr. Gilmer's office on 2 October 2000
complaining of increased pain after a period of improvement. On 27
October 2000, plaintiff was seen by Dr. Ralph Orenstein (Dr.
Orenstein) with Triangle Orthopaedics. Dr. Orenstein performed a
Magnetic Resonance Imaging examination (MRI) which indicated disc
desiccation and mild disc bulges. Dr. Orenstein also diagnosed
degenerative disc disease and degenerative joint disease in the
lower lumbar spine. Plaintiff underwent epidural steroid
injections. Plaintiff returned to Dr. Orenstein on 15 December 2000
reporting improvement and little pain. Dr. Orenstein recommended
facet joint injections instead of epidural injections and a course
of physical therapy. On 2 January 2001, plaintiff returned to Dr.
Orenstein and reported great improvement from pain after the
injections. On 23 March 2001, plaintiff was seen by Dr. Orenstein
for pain. On 29 June 2001, Dr. Orenstein recommended a course of
chiropractic treatment and prescribed Darvocet for pain.
On 22 October 2001, plaintiff reported new neck pain without
trauma to Dr. Orenstein. On 6 March 2002, plaintiff reported
increased pain and underwent an MRI which revealed bulging and
stenosis. Plaintiff reported increased pain radiating down her
left leg on 10 May 2002.
Plaintiff returned to Dr. Gilmer on 29 May 2002 for a
consultation regarding surgery on her back. Surgery was not
indicated and Dr. Gilmer encouraged a conservative program with
emphasis on walking. On 16 January 2003, plaintiff was seen by Dr.
Scott Sanitate (Dr. Sanitate) for a second opinion regarding
surgery. Dr. Sanitate found that surgery would be premature. Dr.
Sanitate suggested a Lidoderm Patch and possible acupuncture or
repeat injections. Plaintiff returned to Dr. Orenstein on 14 May
2003. Dr. Orenstein agreed that surgery was not indicated and
found plaintiff to be at maximum medical improvement with a 10%
permanent partial impairment rating.
On 26 June 2003, plaintiff was seen by Dr. T. Craig Darian
(Dr. Derian) for a second opinion of Dr. Orenstein's impairmentrating. Dr. Derian is an orthopaedic surgeon specializing in adult
reconstructive spinal surgery. Dr. Darian recommended another MRI,
did not believe plaintiff to be at maximum medical improvement, but
agreed with the other physicians that if plaintiff did not wish to
consider further treatment options, she would have a 10% permanent
partial impairment rating. Another MRI was performed and plaintiff
has continued treatment with Dr. Orenstein.
B. Procedural History
On 28 December 2000, defendant filed a Form 60 admitting the
compensability of plaintiff's claim. Since that time, defendant
has paid for all of plaintiff's medical treatment for her back.
However, defendant denied authorization for treatment by Dr.
On 4 August 2003, plaintiff filed a Motion to Change Treating
Physicians with the Industrial Commission. Plaintiff sought an
order designating Dr. Derian as her treating physician. The
Commission granted plaintiff's motion to change physicians to a
physician upon whom both parties would agree. The parties were
unable to agree on a new physician. Plaintiff filed a Form 33
request for hearing on this issue.
The Deputy Commissioner entered an opinion and award on 18
December 2003 denying plaintiff's request to change physicians to
Dr. Derian. The Deputy Commissioner concluded that plaintiff
failed to show that a change of physicians is reasonably and
medically necessary. The Deputy Commissioner concluded plaintiffis entitled to another MRI and continued treatment with Dr. Gilmer
and Dr. Orenstein.
Plaintiff appealed to the Full Commission. Prior to the
hearing before the Full Commission, plaintiff moved to have the
Commission consider her most recent medical records. Plaintiff
subsequently supplemented her motion with additional new medical
records. Plaintiff further supplemented her evidence with a Form
18M. The Full Commission denied plaintiff's motion to consider new
The Full Commission reversed the Deputy Commissioner's Opinion
and Award and concluded plaintiff had shown that a change of
physicians is reasonably and medically necessary pursuant to N.C.
Gen. Stat. § 97-25 (2005). The Commission concluded that the
approval of Dr. Derian as plaintiff's authorized treating
physician is not an approval of surgery if surgery is not
reasonably required to effect a cure, give relief, or lessen the
plaintiff's disability. The Commission ordered Dr. Derian to be
designated as plaintiff's treating physician. Defendant appeals.
Defendant argues the Commission abused its discretion in
approving plaintiff's request to change physicians.
Plaintiff argues on cross-appeal that the Commission erred in
denying plaintiff's motion to consider new evidence and to
supplement her motion to consider new evidence, and in failing to
consider plaintiff's form 18M. III. Defendant's Appeal: Plaintiff's Request to Change Physicians
Defendant argues the Commission abused its discretion in
approving plaintiff's request to change physicians. We disagree.
N.C. Gen. Stat. § 97-25 provides that if a controversy arises
between the employer and the employee regarding treatment, the
Commission may order such further treatments as may in the
discretion of the Commission be necessary. (Emphasis supplied).
We review the Commission's decision to approve plaintiff's request
to change physicians under an abuse of discretion standard.
Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 207,
472 S.E.2d 382, 387, cert. denied, 344 N.C. 629, 477 S.E.2d 39
(1996). An abuse of discretion occurs when the ruling is
manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision. Briley v.
Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998).
Evidence presented at the hearing tended to show plaintiff had
undergone several years of conservative treatment under Dr. Gilmer
and Dr. Orenstein including a number of medications, physical
therapy, chiropractic treatment, walking therapy, and injections.
Plaintiff remained in pain after having undergone these treatments.
Dr. Orenstein, as plaintiff's treating physician, referred
plaintiff to Dr. Derian. On the record before us, defendant has
failed to show how the Commission's decision to allow plaintiff to
change treating physicians was manifestly unsupported by reason
or so arbitrary that it could not have been the result of areasoned decision. Briley, 348 N.C. at 547, 501 S.E.2d at 656.
This assignment of error is overruled.
IV. Plaintiff's Cross-Appeal: Motion to Consider New Evidence
Plaintiff argues the Commission abused its discretion in
denying plaintiff's motion to consider new evidence and plaintiff's
supplement to motion to consider new evidence, and failed to
consider plaintiff's Form 18M. In light of our decision to affirm
the Industrial Commission's approval of plaintiff's request to
change physicians, this issue is moot
Defendant failed to show the Commission abused its discretion
in approving plaintiff's request to change physicians. Plaintiff's
assignments of error asserted on her cross-appeal are moot. The
Commission's order and award is affirmed.
Judge GEER and JACKSON concur.
Report per Rule 30(e).
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