Miller v. Mission Hospital, Inc.

NO. COA 13-1310

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

DEBORAH MILLER,
Employee,
Plaintiff,

v. From the Industrial Commission
No. I.C. W29159
MISSION HOSPITAL, INC.,
Employer,

SELF-INSURED,
Defendant.

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, by Louise Critz Root, for plaintiff-
appellant.

Brewer Defense Group, 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
 -2-
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
 -3-
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
 -4-
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.
 -5-
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).
 -6-
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
 -7-
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
 -8-
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,

hospital, nursing, and rehabilitative services” that “may

reasonably be required to effect a cure or give relief” or “tend

to lessen the period of disability[.]” N.C. Gen. Stat. § 97-

2(19). “In a workers’ compensation claim, the employee ‘has the

[initial] burden of proving that his claim is compensable.’”

Holley v. Acts, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752

(2003) (quoting Henry v. Leather Co., 231 N.C. 477, 479, 57
 -9-
S.E.2d 760, 761 (1950)). “The degree of proof required of a

party plaintiff under the Act is the ‘greater weight’ of the

evidence or ‘preponderance’ of the evidence.” Phillips v. U.S.

Air, Inc., 120 N.C. App. 538, 541-42, 463 S.E.2d 259, 261

(1995). “The employer’s filing of a Form 60 is an admission of

compensability.” Perez v. Am. Airlines/AMR Corp., 174 N.C. App.

128, 135, 620 S.E.2d 288, 293 (2005) (citing Sims v.

Charmes/Arby’s Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d

277, 281 (2001)). “Where a plaintiff’s injury has been proven to

be compensable, there is a presumption that the additional

medical treatment is directly related to the compensable injury.

The employer may rebut the presumption with evidence that the

medical treatment is not directly related to the compensable

injury.” Perez, 174 N.C. App. at 135, 620 S.E.2d at 292 (citing

Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255,

259, 523 S.E.2d 720, 723 (1999), and Parsons v. Pantry, Inc.,

126 N.C. App. 540, 542, 485 S.E.2d 867, 869 (1997). If the

defendant rebuts the Parsons presumption, the burden of proof

shifts back to the plaintiff. See McCoy v. Oxford Janitorial

Service Co., 122 N.C. App. 730, 733, 471 S.E.2d 662, 664 (1996)

(“[T]he signing of the Form 21 agreement established a

presumption of the plaintiff’s disability. The defendant then

presented evidence . . . successfully rebutting plaintiff’s
 -10-
presumption of disability, and the burden shifted back to the

plaintiff.”).

As discussed above, defendant admitted the compensability

of plaintiff’s injury by filing a Form 60 on 22 June 2009.

Therefore, the issue before the Commission was not whether

plaintiff had suffered a compensable workplace accident in 2009,

or whether she experienced a C2-3 disc herniation, but whether

at the time of the hearing she required any further medical

treatment for her injury. In this regard, the Commission found

in relevant part that:

. . .

3. On June 10, 2009, Plaintiff sustained an
injury by accident arising out of and in the
course of her employment with Defendant[.]

. . .

6. Plaintiff was referred to Dr. Stephen
Michael David . . . and began treating with
him on June 12, 2009. Plaintiff received
conservative treatment from Dr. David from
mid-2009 through early 2012[.] . . .

7. Dr. David recommended a cervical MRI,
which was done on June 14, 2009. . . . In
the opinion of Dr. David, the June 2009
cervical MRI revealed the prior surgical
fusion at C3-C4, cervical spondylosis with
broad-based disc osteophyte formation at C5-
C6, as well as a new central disk protrusion
at C2-3. . . .

. . .
 -11-
9. Nerve conduction studies were done on
January 12, 2010, . . . [which showed] no
evidence of cervical entrapment. . . .

. . .

11. . . . [O]n February 12, 2010 . . . Dr.
David assessed Plaintiff at maximum medical
improvement . . . [and] released her to
return to work with restrictions[.] . . .

12. Shortly after being released to return
to work with restrictions, Plaintiff
returned to Dr. David on March 2, 2010,
reporting an aggravation of her neck pain. .
. .

. . .

14. Defendant engaged a private investigator
to conduct surveillance on Plaintiff. . . .

15. . . . [The video surveillance] shows
Plaintiff engaging in many of the activities
of daily living. Her movements have been
noted to be inconsistent with what was
expected by the physicians, based upon her
presentations in their offices. The video
shows more fluid and natural movement than
Plaintiff demonstrated in the offices of the
physicians or at the hearing before Deputy
Commissioner Ledford.

. . .

21. . . . Plaintiff was examined on April
19, 2011 by Dr. Dennis White, a specialist
in pain medicine. Upon examination, Dr.
White noted that Plaintiff appeared to be in
distress, guarding her neck movements and
avoiding any flexion of the neck or gestural
range of motion while communicating.
According to Dr. White, Plaintiff was
deliberately avoiding any movement because
of pain. . . .
 -12-
. . .

23. . . . Dr. White viewed the video of the
surveillance of Plaintiff. He found her
movements on the surveillance [video] to be
inconsistent with what she demonstrated at
the time of the examination[, and testified
that] . . . . Plaintiff’s movement on the
surveillance video was natural, spontaneous,
gestural, and rhythmic, and that he “didn't
see any sign of distress whatsoever.” . . .

24. Dr. Craig Brigham, an orthopedic surgeon
who specializes in spine surgery, examined
Plaintiff on January 27, 2011[.] . . . Dr.
Brigham found no neurological abnormalities
and no motor deficits. Dr. Brigham found
“near full range of motion of her cervical
spine considering she has had a 1-level
fusion as well as normal range of motion of
the shoulders.” . . .

25. Dr. Brigham testified that he saw no
acute distress when he examined Plaintiff
and . . . no objective basis as to why
Plaintiff could not return to full duty work
without restriction[,] . . . based upon his
review of the medical records and what he
found to be a lack of objective evidence of
ongoing problems, as well as the
inconsistencies noted in his physical
examination of Plaintiff. He opined that any
consequences of the work injury had resolved
and no further treatment was needed.

26. Dr. Dahari Brooks, an orthopaedic
specialist, conducted a medical records
review . . . [and] agreed with the
assessment of Dr. Brigham. In his opinion,
the surveillance footage he reviewed showed
Plaintiff engaging in activities which were
inconsistent with her subjective pain
complaints[.] . . . Plaintiff’s physical
motions as seen in the surveillance footage
failed to correlate with the restricted
motion she described during the course of
 -13-
her office visits. . . . Dr. Brooks opined
that Plaintiff was capable of returning to
full duty work without restriction and that
she would not need further medical
treatment.

. . .

33. Based upon a preponderance of the
evidence in view of the entire record, the
Full Commission does not find Plaintiff’s
testimony regarding the nature and severity
of her complaints to be credible.

34. In assessing the expert medical
testimony, the Full Commission places
greater weight on the testimony of Dr.
Brooks, Dr. White, and Dr. Brigham, as
opposed to that of Dr. David[.] . . . There
is no objective basis for Plaintiff’s
complaints of ongoing, disabling . . . pain,
and these complaints are belied by the video
surveillance evidence. . . . Dr. David’s
opinions are based in large part on
Plaintiff’s subjective complaints, which the
Full Commission does not find credible.

Plaintiff has not challenged the evidentiary support for these

findings of fact, which are therefore binding on appeal. Johnson

v. Herbie’s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118

(2003). We hold that these findings support the Commission’s

conclusion that “any consequences of Plaintiff’s work-related

injury have resolved and that there is no need for ongoing

medical treatment in this case related to Plaintiff’s injury by

accident on June 10, 2009.”

In arguing for a different result, plaintiff appears to

argue that the Form 60 automatically entitles her to additional
 -14-
medical compensation. However, in Conclusion No. 3 the

Commission addressed the implications of defendant’s execution

of the Form 60 and stated that:

3. Since Defendant filed a Form 60 admitting
the compensability of Plaintiff’s injury to
her spine, specifically her “C2-3 Disk
Herniation,” there is a rebuttable
presumption that the additional medical
treatment for her spine is directly related
to the compensable injury. . . . Parsons v.
Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d
867 (1997). . . . Defendant has successfully
rebutted the Parsons presumption with
competent, credible medical evidence that
any consequences of Plaintiff’s work-related
injury have resolved and that there is no
need for ongoing medical treatment in this
case related to Plaintiff’s injury by
accident on June 10, 2009. Therefore, the
burden shifted back to Plaintiff to prove
that her medical conditions are related to
her accident at work on June 10, 2009. The
Full Commission concludes that Plaintiff has
failed to meet this burden, and therefore,
Defendant is not responsible for ongoing
medical compensation.

This conclusion acknowledges the presumption arising under

Parsons from the Form 60, but concludes that defendant

successfully rebutted the presumption and that plaintiff failed

to meet her burden to produce competent medical evidence that

her claim for ongoing medical benefits was “related to her

accident at work on June 10, 2009.” Plaintiff has not challenged

the factual or evidentiary support for this conclusion of law,

or disputed its legal validity. We hold that the Commission did
 -15-
not err by concluding that plaintiff was not entitled to further

medical benefits arising from this claim.

V. Cessation of Indemnity Compensation

Finally, plaintiff asserts that the Commission “erred by

allowing [defendant] to stop paying indemnity compensation to

plaintiff.” We disagree.

N.C. Gen. Stat. § 97-2(9) defines “disability” as an

“incapacity because of injury to earn the wages which the

employee was receiving at the time of injury in the same or any

other employment.” In is well-established that:

The burden is on the employee to show that
he is unable to earn the same wages he had
earned before the injury, either in the same
employment or in other employment. The
employee may meet this burden in one of four
ways: (1) the production of medical evidence
that he is physically or mentally, as a
consequence of the work related injury,
incapable of work in any employment, (2) the
production of evidence that he is capable of
some work, but that he has, after a
reasonable effort on his part, been
unsuccessful in his effort to obtain
employment, (3) the production of evidence
that he is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, inexperience, lack of
education, to seek other employment, or (4)
the production of evidence that he has
obtained other employment at a wage less
than that earned prior to the injury.

Russell v. Lowe’s Product Distribution, 108 N.C. App. 762, 765-

66, 425 S.E.2d 454, 457 (1993) (citing Hilliard v. Apex Cabinet
 -16-
Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982), Peoples v.

Cone Mills Corp., 316 N.C. 426, 443-44, 342 S.E.2d 798, 809

(1986), and Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730,

403 S.E.2d 548, 550 (1991)). In this case, the Commission

concluded in relevant part that:

2. Plaintiff bears the burden of proving
disability. . . . In the case at bar,
Plaintiff has failed to prove disability
under any prong of Russell. Moreover, the
competent, credible evidence of record
establishes that as of January 27, 2011,
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 within the
meaning of N.C. Gen. Stat. § 97-2(9). . . .

This conclusion is supported by the findings quoted above

in relation to the issue of plaintiff’s entitlement to further

medical benefits, by the Commission’s findings detailing

plaintiff’s physical abilities as depicted on the surveillance

videos, and by its findings that:

. . .

25. Dr. Brigham testified that he saw no
acute distress when he examined Plaintiff
and that he saw no objective basis as to why
Plaintiff could not return to full duty work
without restriction. . . .

26. . . . Based upon his review of the
medical records, as well as the
surveillance, Dr. Brooks opined that
Plaintiff was capable of returning to full
duty work without restriction and that she
would not need further medical treatment.
 -17-

Plaintiff acknowledges that these findings support the

Commission’s conclusion that she was no longer disabled.

However, she appears to argue that, because the Form 60

specified that she had suffered a C2-3 disc herniation, the

Commission could not properly rely upon an expert’s opinion

regarding disability unless the expert “formed this diagnosis

[of a disc herniation] as a basis of their opinion.” However,

the Form 60, although establishing the compensability of her 9

June 2009 injury, did not give rise to any legal presumption

regarding whether she remained disabled in 2012. The “use of the

Form 60 did not entitle plaintiff to a presumption of continuing

temporary disability[.]” Sims, 142 N.C. App. at 160, 542 S.E.2d

at 282. The Commission’s ruling on plaintiff’s claim for

disability required it to determine whether or not plaintiff was

capable of returning to work. Plaintiff cites no authority in

support of her contention that an expert’s opinion on her

ability to return to work in 2012 requires the expert to agree

that in 2009 plaintiff suffered the specific injury set out in

the Form 60. In other words, plaintiff fails to articulate how

the fact that the Form 60 described her injury as a C2-3 disc

herniation is relevant to the question of whether or not the

symptoms arising from plaintiff’s June 2009 compensable injury

had resolved several years later. We hold that the expert
 -18-
opinions of Dr. Brooks and Dr. Brigham that plaintiff was

capable of returning to work were not invalidated by the fact

that their assessment of plaintiff’s condition was not based on

their agreement that plaintiff suffered a disc herniation as a

result of her compensable injury, and that the Commission did

not err by ruling that plaintiff was no longer disabled.

For the reasons discussed above, we hold that the

Commission did not err and that its Opinion and Award should be

AFFIRMED.

Judges HUNTER, Robert C., and BRYANT concur.