Appeal by defendants from opinion and award entered 30 March
2006 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 25 January 2007.
Law Offices of Michael A. DeMayo, LLP, by Susan E. Rhodes, for
Morris York Williams Surles & Barringer, LLP, by Stephen
Kushner, for defendants-appellants.
Defendants Epes Transport Systems and Protective Insurance
Company appeal from an opinion and award of the North Carolina
Industrial Commission authorizing back surgery and other medical
treatment for plaintiff Charles Harvey. On appeal, defendants
argue that the Commission improperly shifted the burden of proof by
requiring defendants to establish that the surgery sought by
plaintiff was not reasonably calculated to effect a cure, provide
relief, or lessen Harvey's period of disability. Based upon areview of the entire opinion and award, we believe that the
Commission properly allocated the burden of proof.
Defendants further contend that compliance with the
Commission's authorization of treatment "as recommended" by two
separate treating physicians is impossible since each physician
recommended a different type of surgery. The opinion and award and
the record indicate that the doctors _ one who was treating
Harvey's pain and one who was the orthopedic surgeon _ were each
responsible for different aspects of Harvey's care and, in any
event, will be able to coordinate with respect to Harvey's
treatment. Therefore, the Commission did not abuse its discretion
when approving further treatment "as recommended" by the two
Harvey was born in 1956, attended high school through the
eleventh grade, and worked most of his adult life as a truck
driver. In April 2000, while working as a driver for U.S. Express,
Harvey sustained a back injury and later underwent fusion surgery
at the L5-S1 level. This surgery was performed by orthopedic
surgeon Dr. Paul Broadstone, who released Harvey to return to work
as a truck driver in May 2001.
In August 2001, Harvey became employed with defendant Epes
Transportation Services, Inc. as a truck driver. While working for
Epes, Harvey experienced no significant back-related problems until
his admittedly compensable injury by accident on 11 January 2003,
when the seat of a truck he was driving "suddenly lost compression"and dropped him to the floor of the cab. Harvey began experiencing
"piercing pain" in his back, and on 11 March 2003, the parties
filed a Form 21 agreeing that Harvey's injury was compensable.
When Harvey's back pain failed to remit, he was again referred
to Dr. Broadstone, who diagnosed Harvey with myofascial pain,
degenerative disk disease, and discogenic pain that was confirmed
by a positive discogram at L2-L3, L3-L4, and L4-L5. Although Dr.
Broadstone recommended physical therapy, this treatment was
discontinued after two visits when Harvey experienced significant
pain. After Harvey failed to respond to additional conservative
treatment, Dr. Broadstone recommended an inner-body fusion at L4-
On 21 April 2003, Dr. Broadstone referred Harvey to Dr. Roger
W. Catlin, a pain medicine specialist at the Chattanooga Center for
Pain Management. Dr. Catlin performed another discogram, from
which he concluded that several of Harvey's discs had degenerated
and were "leaky." Dr. Catlin treated Harvey with psychological
support, various medications, and injections. Dr. Catlin expressed
the opinion that the surgery recommended by Dr. Broadstone was
"necessary to reduce Mr. Harvey's pain to the point he can return
to a functional lifestyle . . . ." With respect to the type of
fusion surgery to be performed, Dr. Catlin testified: "I think he
needs fusion surgery, whether it's one level or three levels. You
know, I will leave it up to the orthopedist who is going to take
the responsibility for that surgery and for its outcome." In
addition to the surgery, Dr. Catlin recommended that Harvey bereferred for a psychological evaluation and treatment, a back
brace, smoking cessation patches, bone growth stimulator, and blood
work (necessary because of the medications taken by Harvey for many
On 13 January 2004, Harvey was examined by Dr. S. Craig
Humphreys, in an independent medical examination requested by
defendants. Dr. Humphreys recommended a three-level fusion, rather
than the single-level advised by Dr. Broadstone, although he
expressed the view that "what Dr. Broadstone is recommending is
certainly within the bounds of, you know, normal practice." He
agreed with Dr. Broadstone and Dr. Catlin that surgery _ whether a
three-level fusion or a one-level fusion _ was reasonably required
to effect a cure, provide relief, or lessen Harvey's period of
disability. Dr. Humphreys also agreed with the additional
treatment recommended by Dr. Catlin.
Defendants retained Dr. J. Paul Kern, a specialist in physical
medicine and rehabilitation, to review Harvey's medical records.
Based upon that review, Dr. Kern, who does not perform surgery and
did not physically examine plaintiff, disagreed with the other
physicians' opinion that the fusion would be likely to effect a
cure, provide relief, or lessen Harvey's period of disability. Dr.
Kern did agree with Dr. Catlin's referral of Harvey to a
psychologist, for a liver blood profile, and for smoking cessation
Defendants refused to pay for the surgery and treatment
recommended by Drs. Broadstone and Catlin, contending that Harvey'ssymptoms were related to his prior back injury in April 2001. The
deputy commissioner entered an opinion and award in favor of Harvey
and requiring, among other things, that defendants authorize and
pay for ongoing medical treatment "as may be recommended by Dr.
Broadstone and/or Dr. Catlin." Following defendants' appeal, the
Full Commission affirmed the decision of the deputy commissioner
with modifications, concluding that Harvey's "admittedly
compensable injury aggravated his pre-existing disc disease" and
that "plaintiff's request for additional medical treatment, as
recommended by his treating physicians, is reasonable and
appropriate." The Commission, therefore, ordered defendants to
"authorize and pay for ongoing medical treatment for the plaintiff
to help control or improve his pain, including surgery (whether a
one-level or three-level fusion); smoking cessation patches; blood
work/liver[;] Aspen Quick Draw Brace; bone growth stimulator; and
psychological evaluation and treatment[;] and other treatment as
may be recommended by Dr. Broadstone and/or Dr. Catlin."
Defendants timely appealed to this Court.
Defendants first argue that the Commission improperly shifted
the burden of proof by requiring defendants to show that the
treatment Harvey sought was not reasonably calculated to effect a
cure, provide relief, or lessen Harvey's period of disability. We
N.C. Gen. Stat. § 97-25 (2005) provides that "[m]edical
compensation shall be provided by the employer." Medicalcompensation is defined as "medical, surgical, hospital, nursing,
and rehabilitative services, and medicines, sick travel, and other
treatment, including medical and surgical supplies, as may
reasonably be required to effect a cure or give relief and for such
additional time as, in the judgment of the Commission, will tend to
lessen the period of disability . . . ." N.C. Gen. Stat. § 97-
2(19) (2005). "In case of a controversy arising between the
employer and employee relative to the continuance of medical,
surgical, hospital, or other treatment, the Industrial Commission
may order such further treatments as may in the discretion of the
Commission be necessary." N.C. Gen. Stat. § 97-25.
In arguing that the Commission improperly required them to
bear the burden of proving that fusion surgery was "required to
effect a cure or give relief" or "lessen the period of disability,"
defendants point to a single sentence in the middle of Finding of
Fact 39, in which the Commission found that "defendants' refusal to
authorize and pay for additional medical treatment . . . is not
supported by the greater weight of the evidence." Although we
agree this portion of Finding of Fact 39 would benefit from better
wording, review of the entire opinion and award reveals that the
Commission properly allocated the burden of proof. See Reavis v.
, 82 N.C. App. 77, 80, 345 S.E.2d 460, 462 (1986) ("Judgments
must be interpreted like other written documents, not by focusing
on isolated parts, but as a whole.").
Finding of Fact 39 states in its entirety:
39. The Full Commission finds that the
surgery (whether a one-level or three-levelfusion); smoking cessation patches; blood
work/liver profile[;] Aspen Quick Draw Brace;
bone growth stimulator[;] and psychological
evaluation, are reasonably required to provide
the plaintiff relief or to lessen his period
of disability. The defendants' refusal to
authorize and pay for additional medical
treatment, to include: surgery (whether a one-
level or three-level fusion); smoking
cessation patches; blood work/liver profile[;]
Aspen Quick Draw Brace; bone growth
stimulator; and psychological evaluation and
treatment is not supported by the greater
weight of the evidence. In reaching these
, the Full Commission notes that
three of the four doctors who were deposed
recommended surgery of some kind. Greater
weight is given to the testimony of Dr.
Broadstone, the surgeon most familiar with the
plaintiff's medical history and within whom
both Dr. Caitlin [sic] and Dr. Humphreys
expressed great confidence, as opposed to Dr.
Kerns [sic], who did not examine the plaintiff
or speak with any doctor that treated the
(Emphasis added.) As the Commission's reference to "these
conclusions" indicates, the first and second sentences of this
finding of fact represent two separate factual determinations.
The first sentence of the finding of fact _ addressing
Harvey's entitlement to further treatment _ suggests a proper
allocation of the burden of proof. This allocation is further
supported by the Commission's first conclusion of law, in which the
Commission concluded that "[t]he plaintiff's request
medical treatment, as recommended
by his treating physicians, is
reasonable and appropriate." (Emphasis added.)
When the entire opinion and award is reviewed, it is apparent
that the second sentence addresses Harvey's request for attorneys'
fees under N.C. Gen. Stat. § 97-88.1 (2005), which provides: "Ifthe Industrial Commission shall determine that any hearing has been
. . . defended without reasonable ground, it may assess the whole
cost of the proceedings including reasonable fees . . . upon the
party who has . . . defended them." After explaining that
defendants' litigation position was not supported by the greater
weight of the evidence, the Commission then made Finding of Fact
40, which determined that defendants nonetheless "reasonably
defended this matter" because their position was supported by some
of the evidence. In short, the Commission's reference to
defendants' refusal not being supported by the weight of the
evidence was related to its determination that it was supported by
some evidence and, therefore, did not warrant an award of fees
under § 97-88.1. See Simmons v. Columbus County Bd. of Educ.
N.C. App. 725, 732, 615 S.E.2d 69, 75 (2005) (interpreting disputed
finding of fact and concluding Commission did not misapply the
burden of proof). We, therefore, overrule this assignment of
Defendants next argue that the Commission's requirement that
defendants authorize and pay for "treatment as may be recommended
by Dr. Broadstone and/or Dr. Catlin" is "impossible" because these
two doctors "contradicted one another." In their brief, defendants
"concede that sufficient evidence existed for the Commission to
simply enter an Order approving the one-level fusion recommended by
Dr. Broadstone." Defendants thus apparently do not dispute that
the Commission could have ordered them to pay compensation pursuantto Dr. Broadstone's recommendations, and, instead, argue only that
compliance with the recommendations of both doctors is impossible.
Defendants have, however, overlooked the fact that this appeal
involved a dispute not only over the fusion surgery (recommended
initially by Dr. Broadstone), but also over whether Harvey was
entitled to the various types of further treatment recommended by
Dr. Catlin. Harvey had two separate treating physicians, each of
whom was responsible for different aspects of his treatment. Dr.
Broadstone was the surgeon, while Dr. Catlin was responsible for
pain management. Dr. Catlin determined that Harvey needed to
receive a psychological evaluation and treatment, a back brace,
smoking cessation patches, bone growth stimulator, and blood work.
After finding that fusion surgery and these other forms of
treatment _ recommended by the two treating physicians _ were
reasonably required to provide Harvey relief or to lessen his
period of disability, the Commission properly concluded, pursuant
to N.C. Gen. Stat. § 97-25, that "[t]he plaintiff's request for
additional medical treatment, as recommended by his treating
physicians, is reasonable and appropriate."
In light of the various types of treatment at issue and the
differing responsibilities of the two treating physicians, it is
reasonable that the Commission stated in its award that defendants
were required to pay for "ongoing medical treatment for the
plaintiff to help control or improve his pain, surgery (whether a
one-level or three-level fusion); smoking cessation patches; blood
work/liver[;] Aspen Quick Draw Brace; bone growth stimulator; andpsychological evaluation and treatment[;] and other treatment as
may be recommended by Dr. Broadstone and/or Dr. Catlin
added.) As Harvey's treating physicians, both doctors would likely
be involved in any medical determinations as to what other
treatment might be appropriate to help improve Harvey's pain.
Certainly, the Commission did not err in allowing Harvey to have
more than one treating physician. See, e.g.
, Lakey v. U.S.
, 155 N.C. App. 169, 174, 573 S.E.2d 703, 707 (2002)
(upholding opinion and award that approved treatment by several
physicians), disc. review denied
, 357 N.C. 251, 582 S.E.2d 271
(2003); Radica v. Carolina Mills
, 113 N.C. App. 440, 451, 439
S.E.2d 185, 192 (1994) (remanding to Commission for reconsideration
of whether plaintiff was entitled to medical compensation, not only
for services provided by defendant's physician, but also for
services provided by four other physicians treating plaintiff).
Defendants' concern that the opinion and award does not
specify whether the surgery should be a one-level or three-level
fusion is misplaced. The Commission is not qualified to make a
medical determination regarding which of two types of surgeries
would be best for a claimant without any expert testimony stating
that one of the types would be inappropriate. That decision must
be made by the approved treating physician or physicians in
conjunction with the patient. After determining that fusion
surgery was necessary under N.C. Gen. Stat. § 97-25, the Commission
properly left the task of determining precisely what type of fusion
surgery was best to Drs. Broadstone and Catlin. Moreover, the Commission's findings and the record indicate
that Drs. Broadstone and Catlin should be able to effectively
collaborate in making that decision. Dr. Catlin testified that he
not only agreed with Dr. Broadstone that Harvey needed surgery, but
that Dr. Catlin would also defer to Dr. Broadstone's
recommendations with respect to Harvey's specific surgical needs.
Further, defendants do not dispute the Commission's finding that
Dr. Catlin "expressed great confidence" in Dr. Broadstone's
Accordingly, we see no reason to conclude that the
Commission's approval of the treatment sought by Harvey amounted to
an abuse of discretion. See
N.C. Gen. Stat. § 97-25 ("In case of
a controversy arising between the employer and employee relative to
the continuance of medical, surgical, hospital, or other treatment,
the Industrial Commission may order such further treatments as may
in the discretion of the Commission be necessary."). We,
therefore, affirm the opinion and award of the Commission.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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