Braswell v. Pitt County Memorial Hosp.

415 S.E.2d 86 (1992)

106 N.C. App. 1

Katherine W. BRASWELL, Employee, Plaintiff; v. PITT COUNTY MEMORIAL HOSPITAL, Employer; Self-Insured, (Alexsis Risk Management Service), Defendant.

No. 9110IC426.

Court of Appeals of North Carolina.

April 7, 1992.

*87 Harrington and Edwards by Roberta L. Edwards, Greenville, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham by Linda Stephens and Kathryn G. Tate, Raleigh, for defendant-appellee.

WALKER, Judge.

The pertinent portion of G.S. 97-25 provides:

Medical compensation shall be provided by the employer. 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. 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 *88 subject to the approval of the Commission, and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance. ... [I]f he so desires, an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.

Under this statute plaintiff may choose her own physician provided she obtains the approval of the Commission within a reasonable time after such procurement, and the treatment sought is to effect a cure or provide rehabilitation. Lucas v. Thomas Built Buses, 88 N.C.App. 587, 364 S.E.2d 147 (1988). Approval is not necessary prior to her seeking assistance from another physician. Schofield v. The Great Atlantic and Pacific Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980). The first question which must be answered under the statute, then, is whether such approval was sought within a reasonable time. Forrest v. Pitt County Board of Education, 100 N.C.App. 119, 394 S.E.2d 659 (1990), aff'd, 328 N.C. 327, 401 S.E.2d 366 (1991). The Commission must make findings bearing upon this issue for, "[i]f a plaintiff seeks approval of the physician within a reasonable time, if the Commission approves a plaintiff's choice and if the treatment sought is to effectuate a cure or rehabilitation, then the employer has a statutory duty under [G.S.] 97-25 to pay for the treatment." Id., 100 N.C.App. at 126, 394 S.E.2d at 663; See also, Hudson v. Mastercraft Div., Collins & Aikman Corp., 86 N.C.App. 411, 358 S.E.2d 134, disc. review denied, 320 N.C. 792, 361 S.E.2d 77 (1987).

In the case sub judice the Industrial Commission found:

8. Although as of 4 July 1987 plaintiff possessed the capacity to return to her normal work which she was performing prior to the time of her on-the-job injury, she made no effort to return to work. In fact, she chose to seek unauthorized medical treatment by a doctor of her own choosing. Unfortunately, his ultimate choice of treatment was inappropriate. Surgery should not have been performed. It did not effect a cure, give relief, of [sic] lessen her disability. Furthermore, the surgery was not authorized by the defendant or the Industrial Commission, and there was no emergency involved. Any disability which plaintiff suffered after she was released from treatment to return to her normal work as of 4 July 1987 was not the result of her on-the-job injury, but, at least in part, was the result of unauthorized treatment, particularly the surgery by Dr. Miller. Such treatment did not lessen her period of disability but instead lengthened the period of disability. In fact, her condition worsened after the surgery and, thus, did not either effect a cure or give relief or lessen her period of disability.

The Commission failed to make any preliminary requisite findings of whether plaintiff sought approval by the Commission for treatment by Dr. Miller within a reasonable time after procuring his assistance. Instead, the Commission's holding that plaintiff was not entitled to have the defendant pay for any expenses incurred under Dr. Miller was based upon the second prong of the statute, that the treatment did not effect a cure, give relief or lessen the period of plaintiff's disability. With this analysis we cannot agree.

In Forrest v. Pitt County Board of Education, supra, plaintiff was employed as a cafeteria manager when she fell and injured her back in the cafeteria freezer at one of defendant's public schools. She sought medical assistance from Dr. Boone who subsequently performed surgery and treated her with medications and physical therapy. Plaintiff continued to experience pain in her back and leg, however. The Deputy Commissioner concluded as a matter of law that plaintiff was not entitled to have the expenses incurred while under Dr. Boone's care paid pursuant to the provisions of the Workers' Compensation Act because she had chosen to see Dr. Boone *89 on her own. The Full Commission affirmed noting that there was no evidence the surgery performed was in the nature of an emergency or otherwise authorized. This Court stressed that although the Full Commission stated there was no evidence "that the surgery was authorized, ... [t]here [were] no findings of fact ... indicating whether approval for any of Dr. Boone's treatment of plaintiff was sought within a reasonable time. Id., 100 N.C.App. at 126, 394 S.E.2d at 663. (Emphasis in original). It was noted: If Dr. Boone was an acceptable choice for a treating physician and the request before the Commission was made in a reasonable time, the next issue to be determined would be whether the services performed effected a cure or rehabilitation. If so, the fees should be paid. We find no findings of fact or conclusions of law addressing these issues as required by the statute.

Id. at 127, 394 S.E.2d at 664. Consequently, this Court vacated the portion of the Full Commission's opinion and award dealing with this issue and remanded with directions that "the Commission ... mold its findings of fact and conclusions of law to conform to the statute." Id. at 128, 394 S.E.2d at 664.

Although the limited findings by the Commission in Forrest suggested it misconstrued the law to require approval prior to the surgical procedure, that case emphasizes the Commission's duty to make findings of fact in accordance with the statute. Insofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue. Upon a finding that the request was made within a reasonable time, the Commission must make a determination of whether approval by the Commission was granted or denied, in light of the Commission's apparent inaction on plaintiff's motion. Although the Commission stated in its Finding of Fact No. 8 that the surgery was not authorized, it must make findings of fact with regard to whether approval for any of Dr. Miller's treatment was sought within a reasonable time. The Commission's conclusion that "[p]laintiff is not entitled to have the defendant pay for any of the treatment rendered by Dr. Miller because such treatment was not authorized by the defendant, not approved by the Industrial Commission, was not sought under emergency circumstances, and was not necessary to effect a cure, give relief, or lessen the period of plaintiff's disability" is not amply supported by the findings of fact which stress the unauthorized nature of the surgery. If the Commission finds any of Dr. Miller's services to have been authorized then the Commission may proceed under the second prong of the statute to determine whether those services, when viewed as a whole, effected a cure, afforded plaintiff relief or otherwise lessened her disability.

Plaintiff further assigns as error the Commission's determination that she had reached maximum medical improvement on 5 July 1987 and was therefore not entitled to temporary total disability compensation after that date. The Deputy Commissioner found:

8. As a result of this injury by accident, plaintiff was unable to work from July 5, 1987 through August 16, 1988 when this case was heard. She had not reached maximum medical improvement as of that date. No finding is made regarding the extent of any subsequent temporary total disability or permanent partial disability she might have sustained.

The Full Commission struck this finding and determined:

7. On 4 July 1987 plaintiff regained the capacity to earn the same wages which she was earning at the time of the injury in the same or a similar employment. She continued to retain that capacity through the date of the hearing. As of 4 July 1987 plaintiff sustained a five percent (5%) permanent partial impairment as a result of the on-the-job injury.

The Commission apparently based its decision upon Dr. Bowman's opinion of 4 June *90 1987 that plaintiff was capable of returning to work, but that due to her psychological condition a tapering period over the next month would be beneficial. However, we cannot conclude that this finding was based upon sufficient competent evidence. Upon remand, we therefore direct the Commission to conduct a de novo hearing on the issue of when plaintiff reached maximum medical improvement.

Reversed and remanded.

ORR, J., concurs.

HEDRICK, C.J., concurs with a separate opinion.

HEDRICK, Chief Judge, concurring.

I concur in the opinion of the majority reversing and remanding this proceeding to the Industrial Commission for a "hearing on the issue of when plaintiff reached maximum medical improvement" and for a hearing with respect to "whether plaintiff sought approval by the Commission for treatment by Dr. Miller within a reasonable time after procuring his assistance." In my opinion, the proceeding before the Industrial Commission, in addition to being "de novo " as directed by the majority opinion, should be conducted pursuant to the provisions of G.S. 97-85.

In Joyner v. Rocky Mount Mills, 92 N.C.App. 478, 374 S.E.2d 610 (1988), we undertook, in considerable detail, to explain the duties of the full Commission in reviewing a case pursuant to G.S. 97-85. In Joyner, we also explained that the North Carolina Industrial Commission does not judicially review cases pursuant to G.S. 97-85 in the same way that an appellate court reviews cases from the trial courts, and we suggested that the better practice to be followed by the full Commission is to make its own findings of fact, conclusions of law and enter an appropriate order rather than adopt the findings and conclusions of the hearing officer. Id. at 482-483, 374 S.E.2d at 613. The full Commission has consistently ignored what we perceived to be helpful suggestions in Joyner, and the present case is no different.

Here, Deputy Commissioner Dianne C. Sellers, writing for the full Commission, stated, inter alia, that:

The Full Commission adopts as its own the Opinion and Award, as modified, of the Deputy Commissioner. The result reached by her [Deputy Commissioner Morgan S. Chapman] is hereby, in all respects, MODIFIED and AFFIRMED.

In reality, the decision of the full Commission reversed the decision of the Deputy Commissioner requiring defendant to:

1. ... pay additional temporary total disability compensation to plaintiff at the rate of $40.38 per week for 23 5/7 weeks for the period from January 20 through July 4, 1987.... 2. ... pay compensation to plaintiff for temporary total disability at the rate $146.35 per week for 58 6/7 weeks, for the period from July 5, 1987 through August 16, 1988, and continuing thereafter until she is released to return to work by her physician, she returns to work, or she reaches maximum medical improvement.... 3. ... pay all medical expenses incurred by plaintiff as a result of this injury by accident, excluding those arising from the surgery performed by Dr. Miller, when bills for the same have been submitted through the defendant to the Industrial Commission and approved by the Commission.

Moreover, in its decision, the full Commission found and concluded that:

2. As a result of the compensable injury plaintiff sustained a five percent (5%) permanent partial disability of her back. N.C.G.S. 97-31(15).

Yet, the full Commission made no award for plaintiff's permanent partial disability and gave no explanation as to why no award was made. This omission, as well as the errors cited by the majority, on the part of the full Commission requires that the decision of the full Commission be reversed and the case remanded to the full Commission to "review the award, ... reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the award" pursuant *91 to G.S. 97-85 without remanding the case to the Deputy Commissioner.