Fontenot v. Ammons Springmoor Associates
| Decision Date | 21 February 2006 |
| Docket Number | No. COA05-396.,COA05-396. |
| Citation | 625 S.E.2d 862 |
| Court | North Carolina Court of Appeals |
| Parties | Contura R. FONTENOT, Employee, Plaintiff, v. AMMONS SPRINGMOOR ASSOCIATES, Employer, Reliance Insurance Company, c/o N.C. Insurance Guaranty Association, Carrier, Defendants. |
Law Offices of George W. Lennon, by George W. Lennon, by George W. Lennon, Raleigh, for plaintiff-appellee.
Young Moore and Henderson P.A., by Joe E. Austin, Jr., and Jennifer T. Gottsegen, Raleigh, for defendant-appellants.
Defendant Ammons Springmoor Associates, Incorporated, and its workers' compensation carrier (hereinafter referred to collectively as "defendants") appeal from an opinion and award of the North Carolina Industrial Commission granting medical and disability compensation to claimant Contura R. Fontenot. We affirm in part, vacate in part, and remand.
On 29 March 1999, claimant Contura R. Fontenot ("Fontenot") was working as a Certified Nursing Assistant for defendant Ammons Springmoor Associates ("Springmoor") when she suffered a back injury while lifting a patient. Ammons and its workers' compensation carrier admitted that Fontenot was entitled to compensation and medical benefits for her back injury, and Fontenot was referred to Tremont Medical Center for treatment. Tremont referred Fontenot to an orthopaedic surgeon, Dr. Daniel J. Albright. Without performing an MRI, Dr. Albright diagnosed Fontenot with a pulled muscle, indicated that she would become better with time, and in April or May of 1999, advised her that she could return to work without any restrictions. When she attempted to resume her employment at Springmoor, Fontenot continued to experience pain.
Thereafter, Fontenot began experiencing pain and numbness in her right hip and right leg, and her pain increased with time. According to Fontenot, she had not experienced an accident, injury, or other traumatic incident in the time period after her 29 March 1999 compensable injury but before the onset of the problems with her right hip and leg.
In November 2000, plaintiff sought treatment at an emergency room for right leg pain and numbness. After an examination at the emergency room, Fontenot was referred to her family doctor, Dr. Balwinder Sidhu. Dr. Sidhu prescribed conservative treatment, and when this course of action was unsuccessful, Dr. Sidhu ordered an MRI and referred Fontenot to a neurosurgeon, Dr. Samuel St. Clair.
After reviewing the MRI, Dr. St. Clair diagnosed Fontenot with a large L5-S1 disc herniation. In an 8 January 2001 appointment with Fontenot, Dr. St. Clair recommended surgery to address the herniation. Fontenot then sought a second opinion from an orthopaedic surgeon, Dr. T. Craig Derian, who concurred with Dr. St. Clair's recommendation.
On 23 January 2001, Fontenot filed a Form 18 "Notice of Accident to Employer and Claim of Employee." This filing contained the following statement: "The nature and extent of injury is HNP L5-S1, full extent unknown — aggravation of and/or change of condition from accepted injury." Defendants responded on 21 September 2001 by filing a Form 61 which provided the following reasons for denying Fontenot's claim: On 15 March 2002, Fontenot filed a Form 33 requesting that her claim for additional compensation and medical benefits be heard. Defendants then filed a Form 33R stating that the parties were unable to agree on Fontenot's claim for benefits because her herniated disc was not caused by her 29 March 1999 injury at work and because Fontenot "did not consult her authorized treating physician with regard to her new complaints and did not seek approval for her unauthorized care within a reasonable time."
At a hearing before the Industrial Commission, Fontenot presented evidence that her herniated disc was causally related to her admittedly compensable 29 March 1999 accident at work. Specifically, Dr. Albright testified as follows:
Dr. St. Clair testified that the 29 March 1999 compensable injury "could have" caused the herniated disc which he found on the MRI taken of Fontenot's back. Dr. Derian testified as follows:
I believe to a reasonable degree of medical certainty that, more likely than not, that the patient's symptoms resulting from the on-the-job injury in March of 1999 resulted in the structural findings identified on [the MRI] scan in the year 2000, including disc herniation, disc degeneration at L5-S1 with significant nerve-root compression, particularly on the right.
Defendants contended that Fontenot's herniated disc was unrelated to the 29 March 1999 accident at work. In addition, defendants took the position that Fontenot had not taken the necessary steps to receive authorization from her employer, or the approval of the Industrial Commission, for the medical treatment related to her herniated disc (hereinafter referred to as Fontenot's "additional medical treatment").
The Industrial Commission (hereinafter "the Commission") made the following procedural findings:
25. By filing a Form 33, [Fontenot] sought approval for medical treatment with Dr. Sidhu, Dr. St. Clair, and Dr. Derian within a reasonable time after [seeking] ... treatment [with these providers].
26. By filing a Form 18 on January 23, 2003 stating a claim for "HNP L5-S1, full extent unknown—aggravation of and/or change of condition from accepted injury," [Fontenot] filed a written request for additional medical treatment within two years after the last payment of medical compensation.
With respect to the substance of Fontenot's claim, the Commission made the following conclusions of law:
1. The greater weight of the evidence establishes a causal relationship between [Fontenot's] injury by accident on March 29, 1999 and the herniated disc in her low[er] back. [Fontenot] suffered a compensable injury by accident.
2. [Fontenot] is entitled to payment of medical expenses incurred or to be incurred as a result of the compensable injury as may reasonably be required to effect a cure, provide relief, or lessen the period of disability, including the recommended back surgery and all evaluations and treatment provided by Dr. Sidhu, Dr. St. Clair, and Dr. Derian.
3. [Fontenot] is entitled to compensation for future temporary total disability, permanent partial disability, and/or temporary partial disability, should such disability arise as a result of the March 29, 1999 compensable injury by accident or as a result of the treatment therefor.
(Citations omitted.) The Commission entered an award consistent with its findings and conclusions.
Defendants now appeal.
The first issue on appeal is whether the Commission erred by ordering defendants to pay Fontenot's additional medical expenses. Defendants contend that the Commission's ruling in this regard is premised upon erroneous determinations that (A) Fontenot sought approval for the medical treatment for her herniated disc within a reasonable amount of time after seeking such treatment pursuant to section 97-25 of the General Statutes, and (B) Fontenot filed with the Commission a timely application for medical compensation related to her herniated disc pursuant to section 97-25.1 of the General Statutes.
Pursuant to section 97-25 of the General Statutes, "[m]edical compensation shall be provided by the employer." N.C. Gen.Stat. § 97-25 (2005). As a general rule, an employer that has accepted an employee's injury as compensable has the right to choose the treating medical providers and to direct the medical treatment of the employee. Lakey v. U.S. Airways, Inc., 155 N.C.App. 169, 173, 573 S.E.2d 703, 707 (2002), disc. review denied, 357 N.C. 251, 582 S.E.2d 271 (2003). However, "[t]he 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 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...." N.C. Gen.Stat. § 97-25. To effectively request a change of treatment, an injured employee must "obtain Industrial Commission approval for the selected physician within a reasonable time after procuring the services of the physician." Forrest v. Pitt County Bd. of Education, 100 N.C.App. 119, 126, 394 S.E.2d 659, 663, pl.'s pet. for disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990), and pl.'s pet. for cert. denied, 328 N.C. 330, 400 S.E.2d 448, aff'd per curiam with respect to def.'s appeal, 328 N.C. 327, 401 S.E.2d 366 (1991).
In the instant case, Fontenot first sought treatment from a medical provider of her own choosing in November of 2000, and she submitted a Form 33 requesting that her claim for additional medical benefits be heard on 15 March 2002. Defendants contend that the Commission was compelled to find that (1) the filing of a Form 33 did not constitute a request for approval of unauthorized medical treatment, and (2) even if a Form 33 was sufficient to request such approval, Fontenot's Form 33 was not filed within a reasonable time after procuring alternative treatment.
Defendants' argument concerning the propriety of using a Form 33 to request additional medical treatment is premised upon...
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