Simon v. TRIANGLE MATERIALS INC.

415 S.E.2d 105 (1992)

106 N.C. App. 39

Richard SIMON, Plaintiff Employee, v. TRIANGLE MATERIALS, INC., Employer Defendant, and Lumbermen's Underwriting Alliance Insurance Co. Carrier, Defendant(s).

No. 9110IC177.

Court of Appeals of North Carolina.

April 7, 1992.

*106 Lore & McClearen by F. Scott Templeton and R. Edwin McClearen, Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by P. Collins Barwick, III, Raleigh, for defendant-appellees.

ORR, Judge.

Appellate review of an order and award of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal conclusions of the Commission. Cody v. Snider Lumber, Co., 328 N.C. 67, 399 S.E.2d 104 (1991) (citations omitted). This is so even though there is evidence which would support a finding to the contrary. Crawford v. Warehouse Co., 263 N.C. 826, 140 S.E.2d 548 (1965). However, if the findings are predicated on an erroneous view of the law or a misapplication of the law, they are not conclusive on appeal. See e.g., Bailey v. Dept. of Mental Health, 272 N.C. 680, 159 S.E.2d 28 (1968) (remand required to consider evidence in its true legal light). Furthermore, findings of fact which are essentially conclusions of law will be treated as such upon review. Cody, 328 N.C. 67, 399 S.E.2d 104.

Plaintiff asserts that pursuant to N.C.Gen.Stat. § 97-25 defendants are required to pay for his back surgery and related medical expenses as long as the surgery is reasonably required to give plaintiff relief, regardless of whether such surgery will lessen the period of disability or effect a cure for his injury. In this case plaintiff contends the surgery will relieve a substantial portion of the pain he is suffering. *107 Defendant argues that medical services that may reasonably be required to effect a cure or give relief may be required by the employer only if the period of disability would be lessened.

Our Supreme Court directly addressed the issue of whether a plaintiff is entitled to future medical expenses under N.C.Gen.Stat. § 97-25 even though they will not lessen the period of disability in Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204 (1986). In Little the court held that N.C.Gen.Stat. § 97-25 does not limit an employer's obligation to pay future medical expenses to those cases in which such expenses will lessen the period of disability. Id., 345 S.E.2d 204. As a result of a 1973 amendment deleting the ten-week limitation with respect to medical treatments required to effect a cure or give relief, the Court held that N.C.Gen.Stat. § 97-25 provides alternate grounds for relief. As amended "[t]he statute also requires employers to pay the expenses of future medical treatments even if they will not lessen the period of disability as long as they are reasonably required to (1) effect a cure or (2) give relief." Id. at 210, 345 S.E.2d at 207.

The relevant portion of the statute provides:

Medical, surgical, hospital, nursing services, medicines, sick travel, rehabilitation services, 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,... shall be provided by the employer....

N.C.Gen.Stat. § 97-25 (1985). We are advertent to the fact that effective 15 July 1991 the legislature again amended N.C.Gen.Stat. § 97-25 by substituting the term "medical compensation" for the statutory language cited above. However, it is the pre-1991 amended version that governs the resolution of this case.

Here the Deputy Commissioner found as fact that "[a]t this time, any surgery to plaintiff's back will not effect a cure, give relief or tend to lessen plaintiff's period of disability." The full Commission adopted and affirmed this finding and restated it as a conclusion of law in its opinion and award. Our review of the record reveals that while there is evidence in support of the findings that back surgery will not lessen plaintiff's period of disability or effect a cure, there is no evidence in support of the finding that surgery would not give plaintiff relief. Here both medical experts testified that surgery would likely give plaintiff relief from his continuous pain. Dr. Grubb testified as follows:

I felt due to his age, the pathology, the location of the pathology, how much this was functionally impairing him toas far as being able to work and make a living and do the things that he needs to and wants to do ... that surgery was the treatment of choice....we feel that with this type of surgery, you have at least an eighty percent chance of getting rid of eighty percent of the pain. In Mr. Simon's case, knowing him as I do, I feel that our odds are higher than that.

Dr. Glasson testified that:

... with surgery ... it is my opinion that [while] reducing this disability would not be likely ... [rather] I would say that the objective of the surgery would be pain relief.

When questioned further, Dr. Glasson responded affirmatively that it was likely that surgery would give plaintiff some relief from continued back problems. Dr. Glasson, who originally treated plaintiff, also testified that at this point in plaintiff's recovery, continued conservative treatment would not offer any significant improvement in plaintiff's condition. While the evidence regarding whether plaintiff has reached maximum medical improvement is conflicting, there appears to be no conflict regarding whether or not surgery would lessen plaintiff's pain.

In our judgment, relief from pain constitutes "relief" as that term is used in N.C.Gen.Stat. § 97-25. While our courts have consistently recognized that the Workers' Compensation Act makes no provision for compensation for physical pain *108 and suffering, see e.g., Jackson v. Fayetteville Area System of Transp., 78 N.C.App. 412, 337 S.E.2d 110 (1985), appeal after remand, 88 N.C.App. 123, 362 S.E.2d 569 (1987), compensation may be awarded in some circumstances for pain resulting from an injury. See Roper v. J.P. Stevens & Co., 65 N.C.App. 69, 308 S.E.2d 485 (1983), disc. review denied, 310 N.C. 309, 312 S.E.2d 652 (1984). Similarly, when a back injury causes referred pain to the extremities of the body and this pain impairs the use of the extremities, then the award of workers compensation must take into account such impairment. Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214 (1985). Furthermore, N.C.Gen.Stat. § 97-25 provides three alternate grounds for future medical treatment. This compensation for medical treatment seems distinguishable from compensation for lost earnings. The fact that "pain is not in and of itself a compensable injury," Jackson, 78 N.C.App. at 414, 337 S.E.2d at 112, should not foreclose extending the "relief" anticipated by N.C.Gen.Stat. § 97-25 to include relief from pain. If the psychological and emotional benefits to an employee that flow from monitoring his condition constitute "relief" as that term is used in the statute, see Little, 317 N.C. 206, 345 S.E.2d 204, then clearly, relief from pain is also contemplated. As in Little, to rule otherwise would yield an impracticable result. Id. at 214, 345 S.E.2d at 210. Had plaintiff's physician elected to perform surgery immediately after the accident, then surgery would have fallen within the statutory definition of relief. Because a conservative treatment (based on less extensive testing) was originally undertaken, plaintiff should not be barred from obtaining more extensive future medical treatment that may be anticipated to give him relief from the pain he suffers.

Having determined that relief from pain is a legitimate aspect of the "relief" anticipated by future medical treatment under N.C.Gen.Stat. § 97-25, we therefore reverse the Commission's denial of future medical expenses for plaintiff's back surgery. Plaintiff's additional assignments of error not being presented for appellate review are deemed abandoned pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure. The remainder of the Commission's order not having been challenged is therefore affirmed.

Affirmed in part and reversed in part.

JOHNSON and EAGLES, JJ., concur.