Spain v. Spain

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-312
NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

DAVID J. SPAIN,
Employee,
Plaintiff,

v. North Carolina
Industrial Commission
DAVID J. SPAIN d/b/a SPAIN'S I.C. No. W28283
MOBILE HOME MOVERS,
Employer,
COMPANION PROPERTY & CASUALTY
GROUP,
Carrier,
Defendants.

Appeal by plaintiff and defendants from opinion and award

entered 28 October 2013 by the North Carolina Industrial

Commission. Heard in the Court of Appeals 28 August 2014.

Mast, Mast, Johnson, Wells & Trimyer P.A., by Charles D.
Mast, for plaintiff.

Hedrick, Gardner, Kincheloe & Garofalo, LLP, by M. Duane
Jones, Matthew J. Carrier, and Tracie H. Brisson, for
defendants.

GEER, Judge.

Both plaintiff David J. Spain and defendants David J. Spain

d/b/a Spain's Mobile Home Movers and Companion Property &
 -2-
Casualty Group appeal from an opinion and award of the

Industrial Commission terminating plaintiff's temporary total

disability benefits for his right arm injury by accident, but

ordering defendants to authorize and pay for further medical

treatment of plaintiff's right arm injury.

On appeal, plaintiff primarily argues that the Commission

misapplied the test set forth in Lanning v. Fieldcrest-Cannon,

Inc., 352 N.C. 98, 107, 530 S.E.2d 54, 61 (2000), for

determining whether a claimant's ownership of a business

supports a finding that he has earning capacity such that he is

not totally disabled. However, because there is competent

evidence to support the Commission's findings that plaintiff has

demonstrated wage earning capacity through his active

involvement and the skills he obtained in the running of an auto

repair shop and those findings support the Commission's

conclusion that plaintiff was no longer totally disabled, we

affirm the termination of benefits.

Defendants argue that the Commission erred in awarding

further medical treatment for plaintiff's right arm complaints

and, specifically, for ordering defendants to authorize and pay

for plaintiff to undergo a psychiatric evaluation. We hold that

the Commission properly applied the presumption set out in

Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867
 -3-
(1997), and found that plaintiff's current complaints are

related to plaintiff's original compensable injury, requiring

defendants to pay for additional treatment of plaintiff's right

arm symptoms, including a psychiatric evaluation related to

plaintiff's right arm paralysis.

Facts

At the time of the hearing before the deputy commissioner,

plaintiff was 30 years old. Plaintiff dropped out of high

school in the tenth grade and later completed his GED. Prior to

working for defendant-employer, plaintiff had worked as a truck

driver, mobile home maintenance worker, and tree remover. In

2006, plaintiff was employed by his father, defendant-employer

David J. Spain d/b/a Spain's Mobile Home Movers, who was in the

business of transporting and setting up mobile homes.

Plaintiff's work was very physical in that it involved, among

other things, crawling under trailers and lifting up to about

200 pounds.

On 21 November 2006, plaintiff was using an auger machine

to drill an anchor into the ground. While holding on to the

auger machine with his right hand, plaintiff accidentally

drilled into an underground power line and sustained an electric

shock injury. Plaintiff was taken to the emergency department

of Beaufort County Hospital where he complained of right upper
 -4-
extremity numbness. On 28 November 2006, defendant-employer

filed a Form 19 reporting plaintiff's injury.

Following the injury, plaintiff consistently reported to

medical providers that he was unable to move his right upper

extremity and was numb below his right elbow. Plaintiff came

under the care of Dr. J. Gregg Hardy, a neurologist, whom he

initially saw in the emergency room at Pitt County Memorial

Hospital on 27 November 2006. After seeing plaintiff on 6

February 2007, Dr. Hardy noted that although proximal muscles of

plaintiff's right arm had recovered, plaintiff still reported

being unable to move his right hand. Dr. Hardy believed that

"there is a probable psychiatric component to this" and ordered

a Minnesota Multiphasic Personality Inventory ("MMPI") test for

plaintiff.

On 21 March 2007, Dr. Hardy noted that plaintiff was able

to move his right wrist, but reported that he was unable to curl

or straighten the fingers of his right hand. The MMPI results

suggested to Dr. Hardy that plaintiff may have a somatoform

disorder, which is a psychological condition. A patient with a

somatoform disorder unconsciously focuses on physical symptoms

and perceives them as more significant than they actually are.

Plaintiff underwent a cervical MRI on 28 March 2007 that showed

minimal cervical spondylosis with right eccentric disc bulge at
 -5-
C5-6 and mild multilevel uncovertebral joint spurring and no

evidence of neural impingement or cord deformity.

On 8 May 2007, plaintiff saw Dr. Robert C. Frere, a

neurologist, who noted that there was no objective evidence of a

lower neuron injury that would account for plaintiff's right

hand paralysis. Dr. Frere ordered a brain MRI which showed no

acute intracranial abnormality. Dr. Frere referred plaintiff

for physical and occupational therapy, but plaintiff, after

undergoing therapy, reported on 8 November 2007 no change in his

distal right arm weakness. Dr. Frere believed that plaintiff's

persistent right upper extremity condition was related to a

somatoform disorder and that the original electrical injury more

likely than not contributed to plaintiff's psychological

condition.

On 8 February 2008, plaintiff presented to Dr. Stuart Busby

at the UNC Neurology Clinic, complaining about his right arm and

about severe headaches that he had three to four times a week

beginning after his injury. On 4 April 2008, Dr. Busby noted

that the headaches and paralysis of plaintiff's right arm were

probably related to his injury, but concluded that plaintiff had

no determinable neurological impairment.

On 9 March 2009, plaintiff saw Dr. Ann Nunez, a

physiatrist, who performed a functional capacity evaluation
 -6-
("FCE") of plaintiff. Dr. Nunez concluded that plaintiff could

work at a sedentary capacity and exert up to 10 pounds of force

occasionally. On 16 March 2009, Dr. Nunez recommended that

plaintiff return to work. She also noted that none of the

medical providers had made any physiological findings that could

explain plaintiff's continuing inability to move his right upper

extremity and recommended a psychiatric evaluation.

On 22 June 2009, defendants filed a Form 60 admitting

compensability for plaintiff's injury to his right arm. The

form stated that disability resulting from the injury began on

22 November 2006 and that compensation commenced on 29 November

2006.

In February 2010 defendants began providing plaintiff with

vocational rehabilitation from Richard Cowan. In July 2010,

plaintiff took an online insurance course but did not pass the

exam. In June 2011, plaintiff enrolled in an EKG Monitor

Technician course, which he successfully completed, but then did

not obtain a job in that field.

In January 2011, plaintiff and his wife opened Wharton

Station Tire and Auto Care, a business providing auto and truck

servicing. Plaintiff obtained an inspection mechanic license

and on 4 March 2011, the North Carolina DMV issued Wharton

Station an "Official Inspection Station Certificate." Plaintiff
 -7-
and his wife reported that Wharton Station had a net profit of

$22,131.00 for 2011 which constituted the entirety of their

reported income for that year. On 23 May 2011 and 8 December

2011, plaintiff executed Form 90s that stated: "I do not know

what your definition of work is, but I do hang around Wharton

Station Tire & Auto Care during the day and may occasionally try

to do something helpful."

On 22 December 2011, defendants filed a Form 24 application

to terminate or suspend payment of compensation pursuant to N.C.

Gen. Stat. § 97-18.1. The form stated that "[p]laintiff made

false and/or misleading statements on an executed and signed

Form 90. Plaintiff is not disabled from suitable employment as

a result of his accident on November 21, 2006." Defendants

filed a Form 33 Request for Hearing dated 28 December 2011. On

8 February 2012 Special Deputy Commissioner Jennifer S. Boyer

entered an administrative decision and order stating that she

was unable to reach a decision on the Form 24 Application

following an informal hearing.

Following a full evidentiary hearing on 26 July 2012,

Deputy Commissioner Robert J. Harris entered an opinion and

award on 7 March 2013. The deputy commissioner concluded that

because plaintiff is actively involved in the daily operation of

Wharton Station and has shown that he has wage-earning capacity
 -8-
in the competitive market, plaintiff was no longer totally

disabled and defendants were entitled to terminate payment of

temporary total disability compensation. To the extent

plaintiff could show that he remained partially disabled, the

deputy commissioner found that plaintiff was no longer entitled

to partial disability compensation because the 300-week period

from the date of plaintiff's injury had passed. The deputy

commissioner further concluded that defendants failed to rebut

the presumption that further medical treatment for plaintiff's

right upper extremity condition was directly related to his

original compensable injury, and ordered defendants to authorize

and pay for future medical treatment, including a psychiatric

evaluation of plaintiff. Both parties appealed to the Full

Commission.

On 26 August 2013, plaintiff filed a Notice of Change of

Condition and Motion to Reinstate Compensation, or In the

Alternative, Motion for New Evidence, asserting that Wharton

Station closed on 30 March 2013 because it was operating at a

loss. The Commission entered an opinion and award on 28 October

2013 in which it denied plaintiff's motion and affirmed the

deputy commissioner's opinion and award. With respect to

plaintiff's 26 August 2013 motion, the Commission specified that

"[a]ny further issues in this claim related to any period after
 -9-
11 December 2012[, the date the record was closed,] may be

raised by either side through the filing of a new Form 33

Request That Claim be Assigned For Hearing." Both parties

timely appealed to this Court.

Discussion

"The scope of this Court's review of an Industrial

Commission decision is limited 'to reviewing whether any

competent evidence supports the Commission's findings of fact

and whether the findings of fact support the Commission's

conclusions of law.'" Wooten v. Newcon Transp., Inc., 178 N.C.

App. 698, 701, 632 S.E.2d 525, 528 (2006) (quoting Deese v.

Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553

(2000)). Findings of fact made by the Commission "are

conclusive on appeal if supported by competent evidence,

notwithstanding evidence that might support a contrary finding."

Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d

860, 862 (2002). "The Commission's conclusions of law are

subject to de novo review." Id.

Plaintiff's Appeal

Plaintiff argues that the Commission erred in determining

that he is no longer totally disabled and that defendants are

entitled to terminate payment of temporary total disability

compensation. "Disability" is defined as "incapacity because of
 -10-
injury to earn the wages which the employee was receiving at the

time of injury in the same or any other employment." N.C. Gen.

Stat. § 97-2(9) (2013). "When an employee suffers a 'diminution

of the power or capacity to earn,' . . . he or she is entitled

to benefits under N.C.G.S. § 97-30" for partial disability.

Gupton v. Builders Transp., 320 N.C. 38, 42, 357 S.E.2d 674, 678

(1987) (quoting Branham v. Panel Co., 223 N.C. 233, 237, 25

S.E.2d 865, 868 (1943)). However, "[w]hen the power or capacity

to earn is totally obliterated, he or she is entitled to

benefits under N.C.G.S. § 97-29" for total disability. Id.

With respect to partial disability benefits, plaintiff is

subject to the provisions of N.C. Gen. Stat. § 97-30 (2009),

which limits the total amount of partial disability compensation

to 300 weeks from the date of injury. Because in this case, the

300-week period from the date of injury has passed, plaintiff is

no longer entitled to partial disability benefits under N.C.

Gen. Stat. § 97-30. Therefore, the issue in this case is solely

whether plaintiff's earning capacity was "totally obliterated"

such that he remains totally disabled. Gupton, 320 N.C. at 42,

357 S.E.2d at 678.

Here, the Commission based its denial of total disability

benefits on its application of the test set forth by our Supreme

Court in Lanning. The Lanning test is used to determine whether
 -11-
a claimant's ownership of a business supports a finding of

earning capacity:

[T]he test for determining whether the self-
employed injured employee has wage-earning
capacity is that the employee (i) be
actively involved in the day to day
operation of the business and (ii) utilize
skills which would enable the employee to be
employable in the competitive market place
notwithstanding the employee's physical
limitations, age, education and experience.
In the instant case, given plaintiff's
exertional limitations, education, and
experience, would he be hired to work in the
competitive market place?

352 N.C. at 107, 530 S.E.2d at 61. Whether the two prongs of

this test are met "are questions of fact." Id. at 108, 530

S.E.2d at 61. In this case, the Commission determined that both

the requirements of the Lanning test were met.

With respect to the first prong, the Commission found that

Wharton Station's website states that it "is run by" plaintiff

and his wife. Several of the Commission's findings suggest that

plaintiff was physically present at Wharton Station on a regular

basis. Specifically, the Commission found that defendants

conducted 48 hours of surveillance on plaintiff in July, October

and November of 2011, in which plaintiff was observed

interacting with people and driving vehicles around the property

of Wharton Station; that on 23 May 2011 and 8 December 2011,

plaintiff executed Form 90s stating that he "hang[s] around
 -12-
Wharton Station Tire & Auto Care during the day and may

occasionally try to do something helpful"; and that plaintiff's

wife testified that plaintiff "provides her with husbandly

support, and she likes having him there at Wharton Station,

especially after dark."

With respect to the business operations at Wharton Station,

the Commission found:

53. Wharton Station has hired auto
mechanics, who perform the actual physical
mechanic's work for the business.

54. On 4 March 2011, NC DMV issued
Wharton Station an "Official Inspection
Station Certificate", with plaintiff
designated as the licensed inspector working
at the location. In order to obtain this
license, plaintiff took and passed a class
to be an inspection mechanic.

. . . .

63. As plaintiff testified, he has
handled tire orders for Wharton Station. He
has also logged in the codes for North
Carolina vehicle inspections, although the
mechanic performs the inspections
themselves. He has also met with customers.

. . . .

65. As of the hearing before the
Deputy Commissioner, plaintiff and his wife
had not paid any wages or salaries to
themselves from Wharton Station, but they
had used the Wharton Station bank account
for their personal expenses, including, but
not limited to, mortgage payments on their
residence.
 -13-
66. Although North Carolina
inspections account for only a very small
percentage of the revenues for Wharton
Station, the sign in front of the business
prominently lists "N.C. Inspection" as a
draw. As plaintiff's wife testified,
although the inspections themselves do not
bring in much revenue, she wanted to offer
them.

Plaintiff argues that because he did not physically work on

the motor vehicles, and there is no evidence that he instructed

the mechanics on what to do, the facts of this case are

analogous to the facts in Hunter v. Apac/Barrus Constr. Co., 188

N.C. App. 723, 656 S.E.2d 652 (2008). In Hunter, the

plaintiff's son took over the physical labor involved in the

daily operation of the family farm after the plaintiff was

injured. Id. at 730, 656 S.E.2d at 656. This Court upheld the

Commission's finding that the plaintiff was not involved in the

day-to-day operations of the farm, noting that although evidence

in the record showed that the plaintiff co-signed loans,

purchased equipment, and signed grower agreements, "the

Commission was entitled to credit plaintiff's evidence that

plaintiff signed the documents only because of [his son's] age

and lack of credit history and that the documents did not

reflect actual involvement in the day-to-day operations of the

farm." Id. This Court emphasized that "'[i]n weighing the

evidence, the Commission is the sole judge of the credibility of
 -14-
the witnesses and the weight to be given to their testimony, and

may reject a witness' testimony entirely if warranted by

disbelief of that witness.'" Id. at 731, 656 S.E.2d at 657

(quoting Lineback v. Wake Cnty. Bd. of Comm'rs, 126 N.C. App.

678, 680, 486 S.E.2d 252, 254 (1997)).

Similarly, here, the Commission was entitled to weigh the

credibility of plaintiff's testimony that he was only minimally

involved in the operation of Wharton Station and determine

whether his duties reflected actual involvement in the daily

operations of the business. In this case, the Commission chose

to place more weight on the representations plaintiff made on

his website that he and his wife ran Wharton Station, the

evidence that plaintiff was physically present at Wharton

Station, and the tasks plaintiff himself admitted to performing

for the business than to plaintiff's assertion that he merely

"hangs out" at Wharton Station or his wife's assertion that he

merely provides "husbandly support." We hold that the

Commission's finding that plaintiff was involved in the day-to-

day operations of Wharton Station is supported by competent

evidence and, therefore, is binding on appeal.

With respect to the second Lanning prong, the uncontested

findings above establish that plaintiff is licensed to be an

inspection mechanic and gained experience at Wharton Station
 -15-
meeting with customers, handling tire orders, and logging in

codes for vehicle inspections. The Commission additionally

found that plaintiff "has the knowledge to work on motor

vehicles" and "has good knowledge about tires." Although

plaintiff points to evidence in the record that plaintiff "comes

and goes as he feels" and that his presence at Wharton Station

was primarily "a marriage support thing" as showing that

plaintiff did not utilize any skills at Wharton Station, this

argument merely amounts to a request that we reweigh the

evidence, which this Court cannot do.

Because the Commission's findings regarding the skills

plaintiff utilized at Wharton Station are supported by competent

evidence, they are binding on appeal. These findings, in turn,

support the Commission's conclusion that the "management,

customer service and other skills he has utilized in the

operation of that business, when considered in conjunction with

his young age, his educational level, and his work experience

(particularly in working with and around motor vehicles), show

that he has wage earning capacity in the competitive market,

even in light of his ongoing compensable condition in his non-

dominant right upper extremity."

Plaintiff next argues, citing Devlin v. Apple Gold, Inc.,

153 N.C. App. 442, 570 S.E.2d 257 (2002), that even if there is
 -16-
evidence to support both prongs of the Lanning test, the

Commission has not made sufficient findings to determine

plaintiff's actual wage-earning capacity in the competitive

market. In Devlin, the Commission concluded that the plaintiff

failed to meet his burden of showing a continuing disability

based upon its findings that the plaintiff had wage earning

capacity from his gutter cleaning business. Id. at 446, 570

S.E.2d at 261. This Court reversed and remanded for further

findings of fact because the Commission failed to make findings

regarding the second prong of the Lanning test and failed to

make findings to determine the plaintiff's actual wage-earning

capacity. Id. at 448, 570 S.E.2d at 262.

Here, in contrast to Devlin, the Commission made sufficient

findings regarding the second Lanning prong. Further, because

plaintiff is no longer entitled to partial disability benefits

under N.C. Gen. Stat. § 97-30, it is not necessary for the

Commission to determine plaintiff's actual wage-earning

capacity. A finding that plaintiff has any wage earning

capacity is sufficient to preclude plaintiff from compensation

under N.C. Gen. Stat. § 97-29, which is only available "[i]f

wage-earning power is totally obliterated[.]" Devlin, 153 N.C.

App. at 447, 570 S.E.2d at 261. Because, in this case, the

Commission found that plaintiff retained wage earning capacity,
 -17-
we hold that the Commission did not err in denying plaintiff

total disability benefits.

Finally, plaintiff argues that the Commission erred in

denying his Notice of Change of Condition and Motion to

Reinstate Compensation, or In the Alternative, Motion for New

Evidence. On appeal from a ruling of the deputy commissioner,

the Full Commission may reconsider evidence, receive new

evidence, and rehear the parties or their representatives if

they have good ground to do so. N.C. Gen. Stat. § 97-85(a)

(2013). Whether good ground exists to receive additional

evidence is within the sound discretion of the Commission.

Lynch v. M. B. Kahn Constr. Co., 41 N.C. App. 127, 131, 254

S.E.2d 236, 238 (1979). Accordingly, we review the Commission's

denial of plaintiff's motion for abuse of discretion.

In support of his motion, plaintiff argued that the closing

of Wharton Station on 30 March 2013 amounted to a change in

condition that impacted plaintiff's earning capacity.

Plaintiff, however, did not file his motion until 26 August 2013

-- after both parties had submitted their briefs and made oral

arguments to the Full Commission. Although the Commission

denied plaintiff's motion, it nevertheless ordered that "[a]ny

further issues in this claim related to any period after 11

December 2012 may be raised by either side through the filing of
 -18-
a new Form 33 Request That Claim Be Assigned For Hearing."

Thus, plaintiff is not precluded from seeking further relief.

Given the timing of the motion and the fact that in order

to adequately address the issues raised by plaintiff's motion,

both parties will need to submit additional evidence and

arguments, it was reasonable for the Commission to wait to

address this issue on a record that is more fully developed.

We, therefore, hold that the Commission did not abuse its

discretion in denying plaintiff's motion.

Defendant's Appeal

Defendants argue that the Commission erred in awarding

medical treatment for plaintiff's right arm complaints and,

specifically, for ordering defendants to authorize and pay for

plaintiff to undergo a psychiatric evaluation. We disagree.

N.C. Gen. Stat. § 97-25 (2013) requires employers to

authorize and pay for medical treatment that is directly related

to the claimant's compensable injury. Parsons, 126 N.C. App. at

541-42, 485 S.E.2d at 869. Although the plaintiff bears the

initial burden of showing that an injury is compensable, once a

plaintiff's injury has been proven to be compensable, there is a

presumption that additional medical treatment is directly

related to the compensable injury, and the burden shifts to

defendants "to prove the original finding of compensable injury
 -19-
is unrelated to [the claimant's] present discomfort." Id. at

542, 485 S.E.2d at 869.

"This presumption, sometimes called the Parsons

presumption, helps to ensure that an employee is not required to

reprove causation each time he seeks treatment for an injury

already determined to be compensable." Taylor v.

Bridgestone/Firestone, 157 N.C. App. 453, 458, 579 S.E.2d 413,

416, reversed on other grounds sub nom. Taylor v.

Bridgestone/Firestone, 357 N.C. 565, 598 S.E.2d 379 (2003). In

Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 136, 620

S.E.2d 288, 293 (2005), this Court held that the Parsons

presumption applies when, as in this case, an employer has filed

a Form 60 admitting compensability of the injury.

With respect to the additional medical treatment for

plaintiff's injury, the Commission concluded:

1. As defendants accepted plaintiff's
"electrical shock and injury to right arm"
as compensable on a Form 60, plaintiff is
entitled to a rebuttable presumption that
further medical treatment for his right
upper extremity condition is directly
related to his original compensable injury.
While the medical providers have arrived at
the conclusion that a physiological basis
for plaintiff's continuing right upper
extremity paralysis and numbness cannot be
identified through currently available
diagnostic testing, they are unable to say
what is causing the continuing condition,
other than a psychiatric condition. As to
whether a possible psychiatric condition is
 -20-
causally related to the compensable injury,
the evidence as a whole does not establish
that it is not related. Therefore, based
upon the preponderance of the evidence in
view of the entire record, defendants have
not rebutted the presumption, and plaintiff
is thus entitled to further medical
compensation for his compensable right arm
injury. Perez v. Am. Airlines/AMR Corp.,
174 N.C. App. 128, 620 S.E.2d 288 (2005);
Parsons v. Pantry, Inc., 126 N.C. App. 540,
485 S.E.2d 867 (1997). It is notable that
defendants did not file their Form 60 until
well after they had ample medical evidence
at their disposal that the providers could
not identify any physiological cause for
plaintiff's continuing right upper extremity
paralysis and numbness.

Defendants argue that the Commission applied an incorrect

legal standard in reaching its conclusion that defendants failed

to rebut the Parsons presumption. Defendants, citing Rule 301

of the Rules of Evidence, assert that the presumption places on

defendants only a burden of production of "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, and

does not shift the ultimate burden of proof of causation to

defendants. Defendants argue that because they presented "ample

medical evidence" that plaintiff's current symptoms are not

related to his original compensable injury, they met their

burden of production and rebutted the presumption.

We first note that defendants rely solely on the Rules of

Evidence in arguing that the presumption only creates a burden
 -21-
of production and does not shift the burden of proof. However,

this Court has recognized that "[i]n workers' compensation cases

. . . the Rules of Evidence do not apply, and the Commission is

empowered to make its own rules . . . ." Fennell v. N.C. Dep't

of Crime Control & Pub. Safety, 145 N.C. App. 584, 594, 551

S.E.2d 486, 493 (2001).

This Court in Parsons specifically held that the Commission

erred "by placing the burden on plaintiff to prove causation"

because "[t]o require plaintiff to re-prove causation each time

she seeks treatment for the very injury that the Commission has

previously determined to be the result of a compensable accident

is unjust and violates our duty to interpret the Act in favor of

injured employees." 126 N.C. App. at 542, 485 S.E.2d at 869.

See also Gross v. Gene Bennett Co., 209 N.C. App. 349, 351, 703

S.E.2d 915, 917 (2011) (holding when Parsons presumption

applies, "the burden of proof is shifted from the plaintiff to

the defendant"). It is not until the defendant "rebuts the

Parsons presumption [that] the burden of proof shifts back to

the plaintiff." Miller v. Mission Hosp., Inc., ___ N.C. App.

___, ___, 760 S.E.2d 31, 35 (2014).

Furthermore, although "[t]he employer may rebut the

presumption with evidence that the medical treatment is not

directly related to the compensable injury[,]" Perez, 174 N.C.
 -22-
App. at 135, 620 S.E.2d at 292, presenting such evidence does

not automatically rebut the presumption. In McLeod v. Wal-Mart

Stores, Inc., 208 N.C. App. 555, 560, 703 S.E.2d 471, 475

(2010), this Court upheld the Commission's conclusion that the

defendants failed to rebut the presumption that the plaintiff's

back pain was directly related to his compensable back injury

despite the defendants having presented expert medical testimony

that the plaintiff's back strain from his original injury had

resolved and his current pain resulted from other pre-existing

conditions that the plaintiff had prior to his injury.

This Court explained:

Even assuming arguendo that [the doctor's]
testimony regarding plaintiff's preexisting
condition, if found to be credible and given
sufficient weight, was enough to rebut the
Parsons presumption, [t]he [F]ull Commission
is the sole judge of the weight and
credibility of the evidence. This Court is
not at liberty to reweigh the evidence and
to set aside the findings simply because
other conclusions might have been reached.

Id. at 560, 703 S.E.2d at 475 (internal citation and quotation

marks omitted). Thus, even where defendants present some

medical evidence to support their position, it is the

Commission's duty, not ours, to weigh the evidence and determine

whether the evidence presented is sufficient to rebut the

presumption and shift the burden back to the plaintiff.
 -23-
In any event, the medical evidence defendants point to as

tending to rebut the presumption in this case amounts to an

attempt by defendants to relitigate the compensability of

plaintiff's original injury. The Commission's findings tend to

show that the experts could not identify any physiological

explanation for plaintiff's right arm paralysis and numbness

following his electric shock injury. Several of the experts

did, however, identify a potential psychological etiology for

plaintiff's arm condition and recommended that plaintiff undergo

a psychiatric evaluation.

Although defendants point to the inability to identify a

physiological explanation for plaintiff's arm condition as

evidence that his condition was not caused by the 2006 shock

injury, defendants ignore the fact that they were well aware of

the lack of a physiological explanation for plaintiff's symptoms

and the possible psychological explanation by June 2009 when

they filed the Form 60 admitting compensability for plaintiff's

symptoms. Thus, the Form 60 determined that plaintiff's right

arm paralysis was directly related to the 2006 injury regardless

whether the etiology of the paralysis was psychological or

neurological. It was unnecessary for the Commission to

determine "whether a possible psychiatric condition is causally

related to the compensable injury" because by admitting
 -24-
compensability for plaintiff's arm condition knowing that it was

possibly caused by a psychological condition, defendants

implicitly admitted that any psychiatric condition causing

plaintiff's symptoms was also causally related to plaintiff's

injury.

Defendants repeat the same contentions in arguing that the

Commission erred in ordering defendants to provide a psychiatric

evaluation because "there has been no prior decision as to the

existence or compensability of a mental condition[.]"

Defendants reason that because the Parsons presumption is narrow

and limited to the "very injury" previously determined to be

compensable, Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869,

the presumption does not apply with respect to a psychiatric

evaluation, and plaintiff bears the burden of showing "by the

preponderance of the evidence that he suffers from such a mental

condition that resulted directly and proximately from the 2006

electrical shock injury."

However, as explained in Perez, "[t]he presumption of

compensability applies to future symptoms allegedly related to

the original compensable injury." 174 N.C. App. at 137 n.1, 620

S.E.2d at 293 n.1 (emphasis added). Defendants have not cited

any authority that the presumption does not apply if the cause

of a symptom, already determined to be directly related to a
 -25-
compensable injury, is psychological rather than physiological.

Plaintiff's symptoms -- paralysis and numbness of his right arm

-- have not materially changed since defendants filed their Form

60. Here, the Commission ordered a psychiatric evaluation as

medical treatment addressing plaintiff's arm paralysis, not as

treatment for a separate mental condition.

This result is not inconsistent with Clark v. Sanger

Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293 (2005), cited by

defendants. There, the plaintiff suffered an admittedly

compensable injury to her back, and the Commission ordered

defendants to provide all medical treatment arising from her

injury, "including subsequent falls resulting from her back

injury causing dental problems and a knee injury." Id. at 78,

623 S.E.2d at 295. Two years later, the plaintiff requested

medical compensation for degenerative arthritis in her knees.

This Court concluded that the Commission properly declined to

apply the Parsons presumption to medical treatment for the

arthritis and held that plaintiff's degenerative arthritis was

not compensable. Id. at 79, 623 S.E.2d at 296. This Court

explained that, unlike in Parsons, where "the plaintiff was

suffering from the exact same complaint (headaches) for which

she was initially awarded medical expenses and future medical

treatment[,]" in Clark, the "plaintiff [was] suffering from
 -26-
degenerative arthritis, while at the time of the initial award

plaintiff suffered a compensable knee injury caused by falls

related to her compensable injury by accident." Id.

Finally, defendants contend that the Commission erred in

refusing to award a credit to defendants for compensation

payments made after the filing of the Form 24 application to

terminate compensation. When an employer files a Form 24

application to terminate compensation, "the employee's

compensation shall continue pending a decision by the

Commission[.]" N.C. Gen. Stat. § 97-18.1(d) (2013). Rule

404(8) of the Workers' Compensation Rules of the North Carolina

Industrial Commission provides that after a full hearing, the

Commission may award retroactive termination of compensation and

that an employer may seek a credit pursuant to N.C. Gen. Stat. §

97-42 (2013). The decision whether to grant a credit is within

the sound discretion of the Commission and will not be reversed

on appeal absent abuse of discretion. Cross v. Falk Integrated

Techs., Inc., 190 N.C. App. 274, 286, 661 S.E.2d 249, 257

(2008).

In this case, the Commission denied defendants' request for

a credit based upon the following:

5. In the Pre-Trial Agreement,
defendants listed as an issue "Whether
[d]efendants are owed a credit for
overpayment of TTD to plaintiff after his
 -27-
disability ended?" However, defendants made
no argument for any such credit in their
Contentions or proposed Opinion and Award to
the Deputy Commissioner, and this issue was
thus deemed abandoned and was not ruled upon
by the Deputy Commissioner. Based on
defendants' failure to argue for any such
credit in their Contentions or proposed
Opinion and Award to the Deputy
Commissioner, the Commission, in its
discretion, declines to grant defendants a
credit for any overpayment of TTD to
plaintiff. N.C. Gen. Stat. § 97-42.

On appeal, defendants make no argument that the Commission erred

in deeming their request for a credit abandoned, nor do they

make any argument that denial of a credit for this reason

amounted to an abuse of discretion. We, therefore, affirm.

Affirmed.

Judge STEELMAN concurs.

Judge ROBERT N. HUNTER, JR. concurred in this opinion prior

to 6 September 2014.

Report per Rule 30(e).