I concur in the majority's decision to select the pain program at Triangle Orthopaedic Associates as the more appropriate facility for plaintiff's treatment considering the circumstances of this case and to tax defendants with the costs of plaintiff's participation in the program. I respectfully dissent from the remainder of the Opinion and Award of the majority in this case for the following reasons:
Under the facts of this case, I believe that the medical evidence is sufficient to establish that plaintiff is permanently and totally disabled and should be compensated accordingly. However, the majority has found that plaintiff is not at maximum medical improvement. Based upon this finding, the majority is precluded from determining whether plaintiff is permanently and totally disabled. Therefore, the majority's discussion of permanent disability as it relates to plaintiff in this case in Finding of Fact Nos. 17-19 is inappropriate. Finding of Fact No. 18 is particularly troublesome because it is based upon the personal philosophy of the majority and appears to be a forecast of how the majority would rule in future cases. This finding certainly has no relevance in a case where the majority has found that plaintiff has not reached maximum medical improvement.
It is also my opinion that defendants defended this claim without reasonable grounds. The evidence shows that defendants knew plaintiff was totally incapable of working and that her treating physician and the independent medical evaluation physician both attributed plaintiff's condition to her admittedly compensable injury. Despite this knowledge, defendants chose to deny plaintiff continuing compensation during the pendency of unnecessary litigation without any evidence to support their position as to plaintiff's right to compensation. Accordingly, the sanctions available in N.C. Gen. Stat. § 97-88.1 should be imposed.
For these reasons, I concur in part and dissent in part from the majority Opinion and Award.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER