Miller v. Mission Hosp., Inc.

• Decision Date: 01 July 2014
• Docket Number: No. COA 13–1310.,COA 13–1310.
• Citation: 760 S.E.2d 31
• Court: North Carolina Court of Appeals
• Parties: Deborah MILLER, Employee, Plaintiff, v. MISSION HOSPITAL, INC., Employer, Self–Insured, Defendant.

760 S.E.2d 31

Deborah MILLER, Employee, Plaintiff,

v.MISSION HOSPITAL, INC., Employer,Self–Insured, Defendant.

No. COA 13–1310.

Court of Appeals of North Carolina.

July 1, 2014.

Appeal by Plaintiff from Opinion and Award entered 6 August 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 8 April 2014.

Root & Root, PLLC, Weaverville, by Louise Critz Root, for plaintiff-appellant.

Brewer Defense Group, Cary, by Joy H. Brewer and Ginny P. Lanier, for defendant-appellee.

STEELMAN, Judge.

Where the Industrial Commission held that defendant had rebutted the presumption that arose by virtue of the filing of a Form 60 and pursuant to Parsons v. Pantry, Inc., 126 N.C.App. 540, 485 S.E.2d 867 (1997), the burden shifted back to plaintiff to establish her continuing need for medical treatment. Where plaintiff failed to meet this burden and failed to present evidence of disability, the Commission properly ordered indemnity and medical compensation to plaintiff terminated.

I. Factual and Procedural Background

Deborah Miller (plaintiff) was born in 1952 and began working for Mission Hospital (defendant) around 1988. In 2003 plaintiff was diagnosed with non-work related cervical spondylosis, a degenerative spinal condition. She underwent cervical fusion surgery at C3–C4 and returned to work in early 2004. On 10 June 2009 plaintiff suffered a compensable injury by accident that aggravated her pre-existing back condition. She was referred to Dr. Stephen David, who treated her from 12 June 2009 until early 2012. Plaintiff had an MRI scan on 14 June 2009. Dr. David reviewed the results and observed a “disc protrusion at C2–C3” that had not been present in an MRI performed in January 2003. Dr. David believed that the C2–3 disc herniation was a contributing cause of her symptoms, in addition to the exacerbation of her chronic spinal condition.

On 2 July 2009 defendant filed an Industrial Commission Form 60 admitting the compensability of plaintiff's claim for workers' compensation benefits and describing her injury as a C2–3 disc herniation. Tests performed at the direction of Dr. David revealed that the C2–3 disc herniation was not impinging upon plaintiff's spinal nerves. However, plaintiff reported significant pain and difficulty in performing daily activities to Dr. David, who treated her with cervical epidural injections, physical therapy, heat and ice on the affected areas, and various medications.

On 2 February 2010 plaintiff had a functional capacity evaluation, and on 12 February 2010 Dr. David examined plaintiff and reviewed the results of the evaluation. He concluded that plaintiff had reached maximum medical improvement and could return to work full time, with restrictions. However, a few weeks later, plaintiff reported to Dr. David that her symptoms had gotten worse. Dr. David found plaintiff “difficult to treat” because, despite the variety of treatments she did not have “any significant break-throughs,” and his notes from 16 June 2010 state that he found it necessary to “write her out of work permanently.”

Defendant hired a private investigator, who made videos in March 2010 depicting plaintiff engaging in daily activities over a number of days. On 19 April 2011 plaintiff was examined by Dr. Dennis White, a specialist in pain medicine. He initially diagnosed plaintiff with ‘peripheralized’ pain in “a global, nonspecific pain pattern.” However, when Dr. White viewed the video surveillance of plaintiff, he found her movements as shown on the surveillance video to be inconsistent with her behavior and with the symptoms she reported during his examination.

Dr. Craig Brigham, an orthopedic surgeon who specializes in spine surgery, examined plaintiff on 27 January 2011 and found her to have a “near full range of motion of her cervical spine” as well as a “normal range of motion of the shoulders.” Dr. Brigham saw no objective reason that plaintiff could not return to full duty work without restriction, and opined that the consequences of her work injury had resolved and that no further treatment was needed. Dr. Dahari Brooks, an orthopedic specialist, reviewed plaintiff's medical records, Dr. Brigham's notes and the surveillance videos. Based upon his review of these records, Dr. Brooks agreed with Dr. Brigham's assessment. He observed that the videos showed plaintiff engaging in activities that were inconsistent with the subjective complaints noted in her medical records, and that her physical motions in the surveillance vidoes did not correlate with the restricted motion she described during her office visits. He testified that Plaintiff was capable of returning to full duty work without restriction and did not need further medical treatment.

On 23 August 2011 plaintiff filed an Industrial Commission Form 33 requesting that her claim be assigned for hearing. The Full Commission issued its Opinion and Award on 6 August 2013. The Commission concluded that plaintiff had “regained the capacity to earn the same wages she was earning at the time of the injury in the same employment, and therefore, she is not disabled” and that “there is no need for ongoing medical treatment in this case related to Plaintiff's injury by accident on June 10, 2009.” The Commission ordered defendant to “stop payment of indemnity and medical compensation to Plaintiff.”

Plaintiff appeals.

II. Standard of Review

The standard of review in workers' compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court.... Under the Workers' Compensation Act, ‘[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ Therefore, on appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission's findings of fact and whether the findings support the Commission's conclusions of law. This ‘court's duty goes no further than to determine whether the record contains any evidence tending to support the finding.’ “[F]indings of fact which are left unchallenged by the parties on appeal are ‘presumed to be supported by competent evidence’ and are, thus ‘conclusively established on appeal.’ ” The “Commission's conclusions of law are reviewed de novo.”

Spivey v. Wright's Roofing, ––– N.C.App. ––––, ––––, 737 S.E.2d 745, 748–49 (2013) (quotations and citations omitted).

III. Commission's Description of Plaintiff's Injury

In her first argument, plaintiff contends that the Commission erred in Conclusion of Law No. 1 by holding “that plaintiff had sustained an aggravation of a pre-existing condition” without holding that she had also suffered a disc herniation. Plaintiff does not dispute that she had a pre-existing spinal condition or challenge the evidentiary support for the Commission's finding that her compensable injury included an exacerbation of this pre-existing condition. Instead, she contends that it was error for the Commission not to specify that she also suffered a disc herniation. Plaintiff appears to argue that (1) defendant attempted “to void the agreement” represented by the execution of an Industrial Commission Form 60 by denying that she had a disc herniation as stated on the Form 60, and that (2) whether or not she suffered a disc herniation was a disputed issue of legal significance which the Commission was required to resolve. We disagree with both assertions.

Plaintiff does not identify any evidentiary basis for her assertion that defendant attempted to have the Form 60 set aside. For example, she does not contend that defendant filed a motion to have the Form 60 set aside, or that defendant ever denied that plaintiff suffered a compensable injury as admitted by the Form 60. The forms filed by the parties make it clear that they agreed that plaintiff had suffered a compensable injury in 2009, but disagreed about whether or not she remained disabled or needed further medical treatment several years later. In the Industrial Commission Form 33 that plaintiff filed to request a hearing, she asserted that “Plaintiff maintains and defendants deny that plaintiff is permanently and totally disabled.” In the Form 33R that defendant filed in response, defendant asserted that “Plaintiff has failed to present sufficient evidence to establish that she remains disabled as a result of her compensable injury or that she is permanently and totally disabled.” Thus, both parties characterized their dispute as a disagreement about the duration of plaintiff's disability, and not as a conflict about the nature of her original injury or the validity of the Form 60.

Plaintiff also fails to articulate why the Commission was required to make more detailed findings about her original injury in its determination of whether she was entitled to continued disability or medical compensation at the time of the hearing. Moreover, in its Conclusion of Law No. 3 the Commission specifically addressed the legal implications of the fact that the Form 60 characterizes plaintiff's injury as a disc herniation. Plaintiff fails to explain how she was prejudiced by the Commission's failure to specify that she had a C2–3 disc herniation in its Conclusion No. 1, given that this issue is expressly addressed in another conclusion of law.

We hold that there is no evidence that defendant attempted to “void” the Form 60, and that plaintiff was not prejudiced by the Commission's characterization of her admittedly compensable injury as an aggravation of her pre-existing condition rather than an aggravation of her condition and also a separate disc herniation.

This argument is without merit.

IV. Cessation of Medical Compensation

In her next argument, plaintiff asserts that the Commission's conclusion that she did not need further medical compensation was “not supported by the evidence of record or applicable law.” We disagree.

Medical compensation is defined as “medical, surgical,...