Appeal by Defendants from opinion and award entered 8
September 2005 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 21 September 2006.
Michael E. Mauney; and Rigsbee & Cotter, P.A., by William J.
Cotter, for Plaintiff-Appellee.
Hedrick Eatman Gardner & Kincheloe, L.L.P., by Sharon E. Dent,
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission (the Commission) filed 8 September
2005, affirming a Deputy Commissioner's decision awarding Plaintiff
medical treatment pursuant to N.C. Gen. Stat. § 97-25. Plaintiffalso filed a motion to dismiss this appeal as interlocutory.
Robbie A. Cash (Plaintiff) was injured in a motor vehicle
collision on 8 October 2001, while Plaintiff was employed as a
respiratory therapist for Defendant Lincare Holdings, Inc.
(Lincare). Plaintiff was taken to the emergency room at Duke
University Medical Center and was admitted for three days. The
emergency room report stated that Plaintiff "complained of pain to
the belly and to the neck and back." Plaintiff also had difficulty
urinating. Lincare admitted compensability by filing a Form 60 on
11 February 2002 and began paying Plaintiff's medical expenses and
weekly wage compensation.
After the 8 October 2001 accident, Plaintiff sought follow-up
care with Dr. Robert Wilson (Dr. Wilson) and Dr. Thomas Dimmig (Dr.
Dimmig), with Triangle Orthopaedics, for his spine and neck
injuries, and with Dr. Robert Andrews (Dr. Andrews) for his
urination dysfunction. After medication failed to correct
Plaintiff's urination problem, Dr. Andrews opined that Plaintiff's
"voiding problems [were] secondary to his primary spine injury and
treatment of the primary spine injury should not be delayed."
Plaintiff returned for a follow-up appointment on 20 March 2002 and
Dr. Andrews reiterated that "ultimate improvement will require
identification and treatment of his underlying spinal pathology."
After Plaintiff's initial appointment with Dr. Dimmig, Lincare
arranged for Plaintiff to be treated by Dr. Scott Sanitate (Dr.
Sanitate) of the Carolina Back Institute. Plaintiff saw Dr. Sanitate on 13 December 2001 and reported
numbness in his upper and lower extremities, incontinence,
difficulty swallowing, and cervical and lumbar pain. Plaintiff
reported he felt most of his discomfort on his left side.
Plaintiff saw Dr. Sanitate again on 17 January 2002. Despite
Plaintiff's reluctance, Dr. Sanitate released Plaintiff to return
to work, with no lifting greater than twenty-five pounds.
Plaintiff moved for a Change of Treating Physician to return to the
care of Triangle Orthopaedics, which was granted by the Industrial
Dr. Dimmig assumed Plaintiff's care once again, and performed
lumbar decompression and fusion surgery on Plaintiff's back on 26
March 2002. As a result of the surgery, Plaintiff reported
improvement in his back pain and in his ability to urinate, though
he continued to complain of significant pain in his neck, left
shoulder, and in his left knee.
After the 8 October 2001 accident, Plaintiff also developed
difficulty swallowing liquids. The physician treating Plaintiff
for this problem referred Plaintiff to a neurologist, and Plaintiff
began seeing Dr. Jeffrey Siegel (Dr. Siegel). Plaintiff reported
daily headaches, muscle spasms, and continued swallowing problems.
Plaintiff continued seeing both Dr. Dimmig and Dr. Siegel.
Dr. Dimmig performed an additional surgery on Plaintiff's neck
on 16 July 2002. After the surgery, Plaintiff developed numbness
around his neck, hands, and right leg, and weakness in his left
arm. He continued to experience difficulty swallowing. Plaintiffreturned for a follow-up visit with Dr. Dimmig and complained of
increased right leg pain. Dr. Dimmig ordered an MRI. Plaintiff's
MRI was "satisfactory" and on 20 December 2002, Dr. Dimmig
concluded that "other interventional treatment [was not]
necessary." On 17 January 2003, Dr. Dimmig stated that Plaintiff
"[was] reaching maximum medical improvement" and Dr. Dimmig would
consider discharging Plaintiff with permanent restrictions when
Plaintiff returned for his next follow-up in approximately one
month. After ordering a functional capacity evaluation, Dr. Dimmig
concluded that Plaintiff required sedentary-type work and was
unable to work a four-hour or eight-hour day. At Plaintiff's 11
April 2003 visit, Dr. Dimmig found Plaintiff to be at maximum
medical improvement, concluded that Plaintiff could work a four-
hour to eight-hour work day in a sedentary-type job, and discharged
Plaintiff continued seeing Dr. Siegel for neurological care,
and in a follow-up note dated 6 March 2003, Dr. Siegel indicated
that Plaintiff was upset at being "abruptly released" from care by
Dr. Dimmig. Dr. Siegel suggested that Plaintiff seek additional
orthopedic care with another orthopedic surgeon. Dr. Siegel noted
on 11 April 2003 that Plaintiff would be at maximum medical
improvement neurologically "very shortly" but that Plaintiff "was
not yet there." After reviewing the results of Plaintiff's
functional capacity evaluation, Dr. Siegel felt that Plaintiff was
totally disabled and unable to work even four hours at a time. Dr.
Siegel noted on 9 May 2003 that Plaintiff thought he needed asecond opinion for ongoing left knee and left arm pain since he had
been discharged from Dr. Dimmig's care, and Dr. Siegel agreed. Dr.
Siegel concluded that Plaintiff was at maximum medical improvement
with the exception of Plaintiff's orthopedic problems.
Plaintiff filed a motion to compel Lincare's insurance
carrier, Travelers Insurance Company (Travelers), to authorize the
medical treatment recommended by Dr. Siegel on 2 June 2003.
Plaintiff saw Dr. Siegel again on 23 June 2003 and 25 July 2003,
and complained of being "jerked . . . around" by Travelers. Dr.
Siegel recommended, inter alia
, psychological or psychiatric care
for Plaintiff for increased depression and anxiety, follow-up
orthopedic care, and follow-up neurological care, which Travelers
refused to authorize. By letter, Travelers instructed Dr. Siegel
to restrict his care to treatment of Plaintiff's swallowing
dysfunction and headaches, and not to treat any psychiatric
conditions or back problems.
While Plaintiff was waiting for the Commission to rule on his
motion to compel, Plaintiff's five-year old son was involved in a
bicycle accident. Plaintiff felt that as a result of his ongoing
injuries, he was unable to assist his son and decided to "take
[his] health into his own hands." Plaintiff sought treatment from
Dr. Paul Suh (Dr. Suh), an orthopedic surgeon at the North Carolina
Spine Center, on 15 July 2003. Dr. Suh referred Plaintiff to Dr.
Andrew Jones (Dr. Jones) for Plaintiff's shoulder and knee
problems. Dr. Suh treated Plaintiff for continued low back pain
and started Plaintiff on physical therapy. In an administrative order dated 21 July 2003, the Commission
granted Plaintiff's motion to compel, and ordered Travelers to
authorize and pay for Plaintiff's treatment as recommended by Dr.
Siegel. Neither Lincare nor Travelers appealed this order. Under
Dr. Suh's care, Plaintiff underwent a lumbar myelogram and CT scan
on 12 September 2003, which revealed mild degenerative disc
disease. Dr. Suh also stated that Plaintiff might benefit from
removal of a "pedicle screw" to alleviate thigh pain. Dr. Jones
gave Plaintiff a corticosteroid injection in his left shoulder and
recommended knee surgery be performed by Dr. Clifford Wheeless (Dr.
Wheeless). Dr. Wheeless operated on Plaintiff's left knee on 1
October 2003, and found several knee injuries, including a meniscus
Plaintiff filed a motion to compel payment for the treatment
provided by Drs. Jones, Suh, and Wheeless on 4 September 2003. In
an administrative order dated 22 September 2003, the Commission
denied Plaintiff's motion, but "noted that [D]efendants shall
continue compliance with the medical order entered July 21, 2003."
Dr. Siegel wrote prescriptions for Plaintiff to receive treatment
by Drs. Jones, Suh, and Wheeless on 24 September 2003.
Travelers ultimately approved Plaintiff to obtain a
psychological evaluation as recommended by Dr. Siegel, and
Plaintiff saw Dr. Robert Arne Newman (Dr. Newman). Dr. Newman
stated that Plaintiff suffered from conversion disorder, which
leaves affected individuals "vulnerable to developing physical
symptoms in response to stress" and "an unrealistic interpretationof physical signs or symptoms[.]"
Plaintiff filed a motion to reconsider, which the Commission
denied. Plaintiff appealed the administrative decision and a
hearing on the appeal was held on 9 February 2004. In an opinion
and award dated 30 November 2004, the Deputy Commissioner concluded
that the treatment rendered by Drs. Jones, Suh, and Wheeless from
15 July 2003 to 24 September 2003 was emergency treatment
reasonably necessary to give relief and effect a cure pursuant to
N.C. Gen. Stat. § 97-25. The Deputy Commissioner also concluded
that the treatment provided subsequent to 24 September 2003 was
reasonably necessary to effect a cure or give relief for injuries
proximately caused by the 8 October 2001 accident. Therefore,
Defendants were ordered to pay for the referenced treatment.
Defendants appealed to the Commission, which affirmed the opinion
and award with minor modifications. The Commission also authorized
Drs. Jones, Suh, and Wheeless as Plaintiff's treating physicians.
II. Plaintiff's Motion to Dismiss as Interlocutory
 N.C. Gen. Stat. § 97-86 (2005) governs an appeal from an
opinion and award of the Commission, and provides that any party to
the dispute may "appeal from the decision of [the] Commission to
the Court of Appeals for errors of law under the same terms and
conditions as govern appeals from the superior court to the Court
of Appeals in ordinary civil actions." "Parties have a right to
appeal any final judgment of a superior court. Thus, an appeal of
right arises only from a final order or decision of the IndustrialCommission." Ratchford v. C.C. Mangum, Inc.
, 150 N.C. App. 197,
199, 564 S.E.2d 245, 247 (2002) (citation omitted). Therefore,
"[a] decision of the Industrial Commission is interlocutory if it
determines one but not all of the issues in a workers' compensation
case. A decision that on its face contemplates further proceedings
or . . . does not fully dispose of the pending stage of the
litigation is interlocutory." Perry v. N.C. Dep't of Corr.
N.C. App. 123, 129, 625 S.E.2d 790, 794 (2006) (internal citations
and quotation marks omitted). Even where a decision is
interlocutory, however, immediate review of the issue is proper
where the interlocutory decision affects a substantial right. Id.
To qualify, the right affected must be substantial, and "the
deprivation of that substantial right must potentially work injury
if not corrected before appeal from a final judgment." Id.
In his motion to dismiss, Plaintiff argues that the appeal in
the present case is interlocutory because "other hearings or
appeals for the same or similar medical payment issues are possible
in the future[.]" Thus, hearing the appeal will lead to the "yo-yo
procedure" which "works to defeat the very purpose of the Workers'
Compensation Act." Hardin v. Venture Construction Co.
, 107 N.C.
App. 758, 761, 421 S.E.2d 601, 602-03 (1992). We disagree.
The opinion and award which is the subject of this appeal was
filed following a full evidentiary hearing before a Deputy
Commissioner, and was subsequently reviewed by the Commission. The
award does not contemplate further proceedings, nor does it remand
the matter to the Deputy Commissioner. Rather, the order resolvesall issues surrounding the disputed medical treatment.
N.C. Gen. Stat. § 97-25 (2005) mandates that "[m]edical
compensation shall be provided by the employer." The Workers'
Compensation Act defines this term to include "medical, surgical,
hospital, nursing, and rehabilitative services, and medicines, sick
travel, and other treatment . . . as may reasonably be required to
effect a cure or give relief[.]" N.C. Gen. Stat. § 97-2(19)
(2005). Our Supreme Court has noted that
the legislature always has provided for, and
continues to provide for, two distinct
components of an award under the Workers'
Compensation Act: (1) payment for the cost of
medical care, now denominated "medical
compensation," which consists of payment of
the employee's medical expenses incurred as a
result of a job-related injury; and (2)
general "compensation" for financial loss
other than medical expenses, which includes
payment to compensate for an employee's lost
earning capacity and payment of funeral
Hyler v. GTE Products Co.
, 333 N.C. 258, 267, 425 S.E.2d 698, 704
Thus, the Commission's determination that an employer must
pay an injured employee medical compensation pursuant to N.C.G.S.
§ 97-25 is a separate determination from whether an employer owes
compensation as a result of an employee's disability. Neither
determination is a necessary prerequisite for the other.
Therefore, the fact that the order Defendants appealed contains no
determination of any wage compensation owed to Plaintiff does not
render this appeal interlocutory.
We find further support for this conclusion in prior cases
arising from disputes over payment of medical expenses underN.C.G.S. § 97-25. We are mindful that the language of N.C.G.S. §
97-25 has been amended since these cases were decided, but note
that the amendments do not affect whether an appeal from an opinion
and award under this section is interlocutory. In Bass v.
, 258 N.C. 226, 235, 128 S.E.2d 570, 576 (1962),
our Supreme Court stated
[i]t is our opinion, and we so hold, that when
the Commission approves claimant's such bills,
defendant shall then have a right on appeal to
challenge the action of the Commission in
respect to the bills approved by it, in whole
or in part, if it deems it advisable to do so.
Further, in Errante v. Cumberland County Solid Waste Management
106 N.C. App. 114, 121-22, 415 S.E.2d 583, 588 (1992), this Court
we note that in the case of a controversy
arising between plaintiff and defendant
relative to the continuance of medical
treatment, the Industrial Commission is vested
with the authority to order such further
treatments as may in its discretion be
necessary, N.C.G.S. § 97-25 (1991), and if the
Commission approves a medical bill that in
defendant's opinion is not compensable, then
defendant at that time shall have a right and
opportunity on appeal to challenge the
Thus, we deny Plaintiff's motion to dismiss this appeal as
interlocutory and review the merits of Defendants' appeal.
III. Defendants' Substantive Appeal
 Our review in a workers' compensation case is limited to
a determination of (1) whether the Commission's findings of fact
are supported by any competent evidence in the record; and (2)
whether the Commission's findings justify its conclusions of law. Deese v. Champion Int'l Corp.
, 352 N.C. 109, 116, 530 S.E.2d 549,
553 (2000). Where the Commission's findings are supported by
competent evidence, those findings are conclusive even if there is
evidence to support a contrary finding. Jones v. Candler Mobile
, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995). We
first note that although Defendants assign error to several of the
Commission's findings of fact, Defendants do not support these
assignments of error with arguments in their brief. We deem these
assignments of error abandoned. N.C.R. App. P. 28(b)(6)
("Assignments of error not set out in the appellant's brief . . .
will be taken as abandoned."). As a result, the Commission's
findings of fact are binding on this Court. Wooten v. Newcon
, 178 N.C. App. 698, 702-03, 632 S.E.2d 525, 528
(2006). Our review is limited to whether the Commission's findings
of fact justify the following conclusions of law:
1. The treatment received by [P]laintiff at
North Carolina Spine Center prior to the
Industrial Commission order of July 21, 2003,
was reasonably necessary under the
circumstances and constitutes an emergency as
defined by N.C. Gen. Stat. § 97-25.
2. The Industrial Commission Order of July
21, 2003, provided that [D]efendants shall
authorize and pay for [P]laintiff's treatment
as recommended by Dr. Siegel. On September
24, 2003, Dr. Siegel recommended treatment for
[P]laintiff with Dr. Jones, Dr. Suh, and Dr.
Wheeless. On or after September 24, 2003,
[D]efendants had not provided any other
orthopedic treatment or options to Plaintiff.
Pursuant to Industrial Commission order July
21, 2003, treatment subsequent to September
24, 2003 provided by Dr. Jones, Dr. Suh, and
Dr. Wheeless, as recommended by Dr. Siegel,
should be paid for by [D]efendants.
3. The treatment provided to [P]laintiff, at
North Carolina Spine Center from Dr. Jones and
Dr. Suh, and the treatment provided by Dr.
Wheeless for [P]laintiff's left knee was
necessary to effect a cure and give relief.
N.C. Gen. Stat. § 97-25.
We find the Commission's conclusions of law to be supported by its
findings of fact, and therefore affirm the Commission's opinion and
Defendants challenge the Commission's conclusion that "the
treatment received by Plaintiff at the North Carolina Spine Center
prior to the Industrial Commission order of July 21, 2003, was
reasonably necessary under the circumstances and constituted an
emergency as defined by N.C. Gen. Stat. § 97-25."
Pursuant to N.C. Gen. Stat. § 97-25 (2005),
If in an emergency on account of the
employer's failure to provide the medical or
other care as herein specified a physician
other than provided by the employers is called
to treat the injured employee the reasonable
cost of such service shall be paid by the
employer, if so ordered by the Industrial
Our courts have concluded an employee is justified "in seeking
another physician in an emergency where the employer's failure to
provide medical services amounts merely to an inability to provide
those services." Schofield v. Tea Co.
, 299 N.C. 582, 588, 264
S.E.2d 56, 61 (1980) (emphasis omitted). Further, "an injured
employee has the right to procure, even in the absence of an
emergency, a physician of his own choosing, subject to the approval
of the Commission." Id.
at 591, 264 S.E.2d at 64.
At the time that Plaintiff sought treatment at the NorthCarolina Spine Center, he had been discharged from Dr. Dimmig's
care. Yet, Dr. Siegel recommended additional orthopedic
evaluation, and Plaintiff still reported pain. When Defendants
refused the care recommended by Dr. Siegel, Plaintiff moved the
Commission for an order compelling Defendants to provide further
care. Thus, Plaintiff sought authorization from the Commission
prior to obtaining care on his own. Plaintiff did not seek care on
his own until 15 July 2003, more than three months after being
discharged by Dr. Dimmig, and after receiving no further orthopedic
treatment, despite continued pain. Further, the Commission's
findings as to the nature of the emergency were sufficient. The
duration of the emergency is clear (the treatment provided by Drs.
Jones, Suh, and Wheeless from 15 July 2003 to 24 September 2003)
and the Commission concluded the care was "reasonably necessary
under the circumstances." See Schofield
, 299 N.C. at 594, 264
S.E.2d at 64.
Defendants next challenge the Commission's conclusion that
Defendants must pay for the medical treatment provided by Drs.
Jones, Suh, and Wheeless subsequent to 24 September 2003 pursuant
to the 21 July 2003 order. The Commission's 21 July 2003 order
mandated that Defendants authorize and pay for the treatment
recommended by Dr. Siegel. Dr. Siegel referred Plaintiff to Drs.
Jones, Suh, and Wheeless on 24 September 2003. Pursuant to the 21
July 2003 order, Defendants were responsible for this treatment.
Finally, Defendants argue that the Commission erred when it
concluded that the treatment provided by Drs. Jones, Suh, andWheeless was necessary to effect a cure and give relief.
Defendants argue this additional treatment provided by Drs. Jones,
Suh, and Wheeless was not related to the compensable injury, and
therefore Defendants were not responsible for this treatment. We
Medical treatment awarded pursuant to N.C. Gen. Stat. § 97-25
must be "directly related to the original compensable injury."
Pittman v. Thomas & Howard
, 122 N.C. App. 124, 130, 468 S.E.2d 283,
286, disc. review denied
, 343 N.C. 513, 472 S.E.2d 18 (1996). "If
additional medical treatment is required, there arises a rebuttable
presumption that the treatment is directly related to the original
compensable injury and the employer has the burden of producing
evidence showing the treatment is not directly related to the
compensable injury." Reinninger v. Prestige Fabricators, Inc.
N.C. App. 255, 259, 523 S.E.2d 720, 723 (1999). Defendants argue
that the testimony of Dr. Dimmig that Plaintiff had reached maximum
medical orthopedic improvement, and Dr. Newman's diagnosis of
conversion disorder show the treatment was not related to the
compensable injury. Plaintiff points us to the opinion of Dr.
Siegel, who traced Plaintiff's orthopedic problems to the 8 October
2001 accident. Defendants ask us to resolve a credibility issue,
which is not our role. Anderson v. Lincoln Construction Co.
N.C. 431, 434, 144 S.E.2d 272, 274 (1965) ("The Commission is the
sole judge of the credibility of the witnesses and the weight to be
given their testimony.").
Judges WYNN and McCULLOUGH concur.
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