Morgan v. Interim Healthcare

• Decision Date: 05 August 2014
• Docket Number: No. COA13–942.,COA13–942.
• Citation: 763 S.E.2d 928 (Table)
• Court: North Carolina Court of Appeals
• Parties: Antoinette MORGAN, Employee, Plaintiff, v. INTERIM HEALTHCARE, Employer, Self–Insured (Gallagher Bassett Services, Inc., Servicing Agent), Defendant.

763 S.E.2d 928 (Table)

Antoinette MORGAN, Employee, Plaintiff

v.INTERIM HEALTHCARE, Employer, Self–Insured (Gallagher Bassett Services, Inc., Servicing Agent), Defendant.

No. COA13–942.

Court of Appeals of North Carolina.

Aug. 5, 2014.

Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff-appellant.

Brooks, Stevens & Pope, P.A., by Ginny P. Lanier, for defendant-appellee.

BRYANT, Judge.

Where there was sufficient evidence that plaintiff reached maximum medical improvement in January 2009, and that plaintiff was offered but unjustifiably refused suitable employment, we affirm the opinion and award of the Full Commission finding and concluding that plaintiff is not entitled to ongoing disability benefits.

Plaintiff-employee Antoinette Morgan worked as a Certified Nursing Assistant with Defendant employer Interim Healthcare Services where she assisted patients in their homes. On 10 January 2008 and again on 18 January 2008 while assisting a patient, plaintiff injured her back and hip. The injury, diagnosed as a paralumbar strain, was reported to defendant and plaintiff's claim was accepted pursuant to defendant's Form 60 as a compensable injury. Plaintiff's average weekly compensation rate was determined to be $232.78. On 29 April 2010, plaintiff filed a request that the claim be assigned for hearing due to a disagreement about plaintiff's entitlement to indemnity and medical benefits. On 6 September 2011, the matter was heard before Deputy Commissioner Kim Ledford. In an order entered 18 October 2012, Deputy Commissioner Ledford denied plaintiff's claim for further medical compensation, awarding compensation at a rate of $232.78 per week for six weeks only. Plaintiff appealed the deputy commissioner's order and award to the Full Commission.

The matter was reviewed by the Full Commission (the Commission) which entered an opinion and award finding that between 10 January 2008 and April 2010, plaintiff saw ten physicians in regard to symptoms stemming from her compensable injury. On 30 April 2008, less than four months after plaintiff's compensable injury, she was examined by Dr. James Hoski, an orthopaedic surgeon with Spine Carolina. “Dr. Hoski found no objective findings to support Plaintiff's complaints of pain.” While Dr. Hoski referred plaintiff to a pain management physician, he recommended that plaintiff continue working four hours per day with no patient transfers, bending, squatting, or lifting more than five pounds. In October 2008, plaintiff sought a second opinion from orthopaedic specialist Dr. Stephen David. In November 2008, Dr. David assessed plaintiff at maximum medical improvement for the injury to her back from which the workers' compensation claim stemmed. Dr. David assigned permanent work restrictions of eight hour shifts, alternating between sitting and standing with limited bending, stooping, and twisting, and no lifting, pushing or pulling more than 10 pounds. On 5 January 2009, Dr. David assigned plaintiff a two percent permanent impairment rating to her spine and discharged her from his care. After plaintiff received permanent work restrictions, defendant twice offered her a full-time clerical support position. Plaintiff accepted the position the second time it was offered but did not show up for work. The day after she was to report to work, plaintiff went to the Asheville Family Health Center. She requested a note restricting her from work for the previous day. Defendant stated that regardless of the out-of-work note, plaintiff violated a zero tolerance policy by failing to notify defendant she could not come to work, and plaintiff was terminated from defendant's employment. In April 2010, plaintiff was receiving care from her primary care physician, Dr. Coin, and continued to complain of left-side body symptoms. Dr. Coin “considered the possibility that many of Plaintiff's body symptoms were manifestations of her emotions....”

The Commission concluded that a preponderance of the evidence established plaintiff had reached maximum medical improvement with respect to her compensable injury by 5 January 2009. “Defendant has provided all medical treatment reasonably required to effect a cure or give relief, and Plaintiff is not entitled to further medical treatment under this claim.” “Plaintiff unjustifiably refused suitable employment offered to her by Defendant in December 2008 and again in January 2009. Plaintiff is not entitled to compensation during the continuation of her refusal.” The Commission denied plaintiff's claim for further medical compensation and temporary total disability, and affirmed the deputy commissioner's award of $232.78 per week for six weeks for plaintiff's two percent impairment to her back. Plaintiff appeals.

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On appeal, plaintiff raises the following four issues: whether the Commission erred by finding and concluding that plaintiff (I) was at maximum medical improvement; (II) was offered suitable employment; (III) refused suitable employment; and (IV) was not entitled to further ongoing disability benefits.

Standard of review

This Court's review is limited to a determination of (1) whether the Commission's findings of fact are supported by competent evidence, and (2) whether the Commissioner's conclusions of law are supported by the findings of fact. The Commission's findings of fact are conclusive on appeal if supported by competent evidence, even where there is evidence to support contrary findings. The Commission's conclusions of law, however, are reviewable de novoby this Court. The Commission is the sole judge of the credibility of the witnesses and the weight accorded to their testimony.

Meares v. Dana Corp./Wix Div.,172 N.C.App. 291, 292, 615 S.E.2d 912, 915 (2005) (citation and quotations omitted). “Unchallenged findings of fact are presumed to be supported by competent evidence and are binding on appeal.” Allred v. Exceptional Landscapes, Inc.,––– N.C.App. ––––, ––––, 743 S.E.2d 48, 51 (2013) (citation omitted). However, during our review of challenged findings of fact, we do not reweigh the evidence. See Bishop v. Ingles Markets, Inc.,––– N.C.App. ––––, ––––, ––– S.E.2d ––––, –––– (filed April 15, 2014) (No.COA13–1102) (citation omitted).

I

Plaintiff first argues the Commission erred by finding that she reached maximum medical improvement (MMI) by January 2009. Plaintiff contends that while her treating physicians did not recommend surgical procedures to address her injury, she had been referred to pain management specialists for evaluation and treatment. And, because there were still courses of treatment available to decrease or help manage her pain, plaintiff contends she was not yet at MMI. We disagree.

MMI as a purely medical determination occurs when the employee's physical recovery has reached its peak, so that the extent to which an employee has reached MMI is not necessarily a crucial fact upon which the question of plaintiff's right to compensation depends.

The decisions of the Supreme Court and this Court, which have consistently used the same standard to address disability-related claims regardless of whether those claims arose before or after MMI, make no mention of utilizing different standards for making such determinations depending upon whether the claimant is still in the healing period.

Wynn v. United Health Servs./Two Rivers Health–Trent Campus,214 N.C.App. 69, 78, 716 S.E.2d 373, 381–82 (2011) (citing Walker v. Lake Rim Lawn & Garden,155 N.C.App. 709, 717–18, 575 S.E.2d 764, 769 (utilizing N.C. Gen.Stat. § 97–32 to evaluate the defendant's assertion that the plaintiff had refused suitable employment despite the fact that the plaintiff had not reached MMI), and Bailey v. Western Staff Servs.,151 N.C.App. 356, 363–64, 566 S.E.2d 509, 514 (2002) (evaluating the suitability of a job offered to the claimant prior to MMI utilizing the same standard applied in other cases)) (citations and quotations omitted).

In its findings of fact, the Commission acknowledged the medical assessments made by Drs. Hansen, Hoski, and David but gave the greatest weight to the testimony of Dr. David. Plaintiff challenged the Commission's finding of fact premised on Dr. David's testimony that “Plaintiff reached maximum medical improvement [ (MMI) ] by January 5, 2009 and retains a two percent permanent impairment to her back as a result of the January 2008 injuries.” Though not specifically challenged, the Commission, taking into account the testimony of the doctors, further found that plaintiff's physical complaints had a non-organic basis: “[i]t appears that Plaintiff may suffer from a psychological problem such as a somatization disorder. However, this has not been shown to have been caused by Plaintiff's work-related accidents.”

Other findings of fact show that in October 2008, plaintiff was seen by Dr. David, an orthopaedic specialist, working with the Blue Ridge Bone & Joint Clinic.

22.... Dr. David reviewed Plaintiff's x-rays and MRI results and saw no evidence of scoliosis, spondylolysis or spondylolisthesis, as well as no indications of neurologic impingement or disc herniation. The MRI showed only mild preexisting facet arthropathy at L4–5 and L5–S1. The examination showed no neurological deficits, only mild tenderness over the paraspinal musculature, and subjective decreased sensation of the left thigh and left leg, which could not be objectively verified. The examination was also positive for Waddell's Signs. Dr. David was of the opinion that Plaintiff might have some irritation around the piriformis, and he referred her for a piriformis block ... because it did not appear that Plaintiff's pain was from her back.

23. On October 30, 2008, Plaintiff underwent a sciatic nerve distribution block to the piriformis muscle.... Plaintiff returned to Dr. David and advised that the piriformis injection did not help her pain.... As of this visit, Dr. David assessed plaintiff at maximum medical improvement from her workers' compensation claim as to...