Wilkes v. City of Greenville

IN THE SUPREME COURT OF NORTH CAROLINA

No. 368PA15

Filed 9 June 2017

JOHNNIE WILKES, Employee

v.
CITY OF GREENVILLE,
Employer, SELF-INSURED

(PMA MANAGEMENT GROUP, Third-Party Administrator)

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 777 S.E.2d 282 (2015), reversing in part

and vacating and remanding in part an opinion and award filed on 9 April 2014 by

the North Carolina Industrial Commission. Heard in the Supreme Court on 15

February 2017.

Hunt Law Firm, PLLC, by Anita B. Hunt; and Patterson Harkavy LLP, by
Narendra K. Ghosh, for plaintiff-appellee.

Brooks, Stevens & Pope, P.A., by Matthew P. Blake, for defendant-appellant.

Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson; and Sumwalt Law
Firm, by Vernon Sumwalt, for North Carolina Advocates for Justice, amicus
curiae.

Young Moore and Henderson, P.A., by Angela Farag Craddock; and Hedrick,
Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones, for North Carolina
Association of Defense Attorneys, North Carolina Chamber, North Carolina
Retail Merchants Association, North Carolina Home Builders Association,
Employers Coalition of North Carolina, Property Casualty Insurers of America,
and American Insurance Association , amici curiae.

Lewis & Roberts, PLLC, by J. William Crone and J. Timothy Wilson, for all
amici; Teague, Campbell, Dennis & Gorham, LLP, by Bruce Hamilton, for
North Carolina Association of Self-Insurers, and by Tracey Jones, for North
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Opinion of the Court

Carolina Association of County Commissioners; Allison B. Schafer, Legal
Counsel, and Christine T. Scheef, Staff Attorney, for N.C. School Boards
Association; and Kimberly S. Hibbard, General Counsel, for N.C. League of
Municipalities, amici curiae.

Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner; and Law Office of
David P. Stewart, by David P. Stewart, for Workers’ Injury Law & Advocacy
Group, amicus curiae.

HUDSON, Justice.

Plaintiff Johnnie Wilkes appealed the opinion and award of the North Carolina

Industrial Commission concluding that: (1) plaintiff failed to meet his burden of

establishing that his anxiety and depression were a result of his work-related

accident; and (2) plaintiff was not entitled to disability payments made after 18

January 2011. Wilkes v. City of Greenville, ___ N.C. App. ___, ___, ___, 777 S.E.2d

282, 284-85, 289 (2015). On appeal, the Court of Appeals unanimously vacated and

remanded in part, holding that on remand in reviewing plaintiff’s entitlement to

medical treatment, the Commission should give plaintiff the benefit of a presumption

that his anxiety and depression were related to his injuries, and reversed in part,

holding that plaintiff had met his burden of establishing disability. Id. at ___, ___,

777 S.E.2d at 285-91. Because we agree that plaintiff was entitled to a presumption

of compensability in regards to his continued medical treatment, we affirm that

portion of the decision of the Court of Appeals. Because we conclude further that the

Commission failed to address the effects of plaintiff’s tinnitus in determining whether

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Opinion of the Court

he lost wage-earning capacity, we modify and affirm that portion of the Court of

Appeals’ decision, and remand for further proceedings not inconsistent with this

opinion.

Background

Plaintiff was employed by defendant as a landscaper for approximately nine

years before 21 April 2010, when he was involved in a motor vehicle wreck while on

the job. Plaintiff was driving a truck owned by defendant when a third party ran a

red light and struck plaintiff’s vehicle. The truck then collided with a tree, causing

the windshield to break and the airbags to deploy. Plaintiff was taken to the

emergency room at Pitt County Memorial Hospital and treated for his injuries, which

included an abrasion on his head, three broken ribs, and injuries to his neck, back,

pelvis, and hip. The following day, plaintiff returned to the ER complaining of

dizziness; an MRI revealed that plaintiff had suffered a concussion from the accident.

Slightly over a week later, on 29 April 2010, defendant filed a Form 60 with the North

Carolina Industrial Commission, in which defendant accepted plaintiff’s claim as

compensable under the Workers’ Compensation Act (Act), and described the injury

as “worker involved in MVA and had multiple injuries to ribs, neck, legs and entire

left side.” Defendant began paying plaintiff compensation for temporary total

disability and provided medical compensation for plaintiff’s injuries.

Plaintiff saw numerous physicians over the next year for treatment and

evaluation of continuing complaints of pain in his back and leg, ringing in his ears

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Opinion of the Court

(tinnitus), anxiety and depression, and sleep loss. On 18 January 2011, defendant

filed a Form 33 requesting that plaintiff’s claim be assigned for a hearing before the

Commission, stating that the “[p]arties disagree about the totality of plaintiff’s

complaints related to his compensable injury and need for additional medical

evaluations.” On 28 January 2011, plaintiff filed a Form 33 requesting an “Expedited

Medical Motion” hearing, listing his work-related injuries as “head, back, depression,

ringing in ears [tinnitus], memory loss, speech changes, dizziness, balance, etc.,” and

stating that he was “in need of additional medical treatment . . . specifically an

evaluation by a neurosurgeon.” After a conference call hearing on 4 February 2011,

plaintiff saw Robert Lacin, M.D., a neurosurgeon; the Commission held a subsequent

conference call hearing on 7 April 2011, and declined to refer plaintiff to a

neuropsychiatrist.

Eventually, the matter was heard in person before Deputy Commissioner Mary

C. Vilas on 21 September 2011, after which depositions of medical personnel were

taken. On 1 February 2013, Deputy Commissioner Vilas entered an opinion and

award determining that plaintiff’s low back and leg pain, anxiety, depression, sleep

disorder, tinnitus, headaches, and temporomandibular joint pain were causally

related to his 21 April 2010 compensable injury. Deputy Commissioner Vilas also

determined that plaintiff had established temporary total disability by

demonstrating “that he is capable of some work but that it would be futile to seek

work at this time because of preexisting conditions of his age, full-scale IQ of 65,

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education level and reading capacity at grade level 2.6, previous work history of

manual labor jobs, and his physical conditions resulting from his April 21, 2010

compensable injury.” Accordingly, the deputy commissioner ordered defendant to pay

plaintiff temporary total disability until he returned to work or until further order of

the Commission and to pay all medical expenses reasonably required to effect a cure

or lessen plaintiff’s period of disability. Defendant appealed to the Full Commission

(Commission).

The Commission heard the case on 4 November 2013, and considered the

parties’ stipulations, exhibits, testimony from multiple witnesses, including plaintiff

and plaintiff’s wife, and depositions taken from Doctors Albernaz, Tucci, Lacin,

Schulz, Hervey, and Gualtieri. The Commission found that plaintiff suffered tinnitus

as a result of the 21 April 2010 accident, but that the evidence regarding his alleged

anxiety and depression was conflicting. The Commission noted, for example, that

“Dr. Schulz diagnosed Plaintiff with malingering along with possible mild

depression,” and that “Dr. Gualtieri concurred with Dr. Schulz’s diagnosis of

symptom exaggeration and malingering.” On the other hand, “Dr. Hervey disagreed

with Dr. Schulz’s malingering diagnosis . . . . Dr. Hervey noted ‘apparent distress’

and diagnosed Plaintiff with depression and anxiety,” while Dr. Tucci diagnosed

Plaintiff with “severe tinnitus” and testified that the tinnitus was “wrapped up with

the anxiety or depression.” Accordingly, the Commission found, in relevant part:

34. Based on the preponderance of the evidence,

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including testimony by Doctors Albernaz and Tucci, the
Full Commission concludes that Plaintiff has not reached
maximum medical improvement with regard to his
tinnitus.

35. Testimony by Plaintiff, Plaintiff’s wife, and
Doctors Lacin, Schulz, Hervey, and Gualtieri is conflicting
as to whether Plaintiff is currently suffering from anxiety
and depression. Based upon a preponderance of all the
evidence of record, the Full Commission concludes that
Plaintiff’s alleged anxiety and depression was not caused
by the 21 April 2010 work-related accident.

Based on these findings of fact, the Commission concluded that while plaintiff

was entitled to medical compensation for his tinnitus, plaintiff had failed to meet his

burden of establishing that he had anxiety and depression caused by his work-related

accident, and that therefore, plaintiff was not entitled to medical compensation for

those conditions. The Commission further concluded that plaintiff was not entitled

to any disability payments made after 18 January 2011 (the date defendant filed a

Form 33 requesting a hearing on plaintiff’s claims), and that defendant was entitled

to a credit for any payments it had made after that date. More specifically, the

Commission made the following relevant conclusions of law:

2. . . . Based upon all credible evidence, the Full
Commission concludes that Plaintiff has met his burden of
showing that on 21 April 2010 he suffered compensable
injuries [to] his head and ears leading to tinnitus as a
result of a traffic accident arising out of the course and
scope of his employment with Employer-Defendant.

....

4. Plaintiff is entitled to the payment of past and

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Opinion of the Court

future medical expenses incurred for treatment that was
reasonably required to effect a cure, provide relief or lessen
any disability, including such further treatment for his
tinnitus that may be recommended by Doctors Tucci and
Albernaz.

5. Where depression or other emotional trauma
has been caused by a compensable accident and injury, and
such depression or trauma has caused disability, then total
disability benefits may be allowed. Here, the evidence is
conflicting as to whether Plaintiff has suffered from
depression and whether any depression was caused by the
21 April 2010 work-related accident. Based upon the
preponderance of the evidence, the Full Commission
concludes that Plaintiff has not met his burden of showing
that his alleged depression and anxiety is a result of the 21
April 2010 work-related accident or has caused him any
temporary disability.

6. . . . The Full Commission concludes that
Plaintiff has not presented evidence of a reasonable job
search and has presented insufficient evidence that a job
search would be futile. Thus, the Full Commission
concludes that Plaintiff is entitled to temporary total
disability benefits from the 21 April 2010 work-related
injury until 18 January 2011, the date that Employer-
Defendant filed a Form 33 requesting a hearing on
Plaintiff’s claims.

(Citations omitted.) On 9 April 2014, the Commission issued its opinion and award,

from which plaintiff appealed.

In a unanimous opinion, the Court of Appeals first vacated the portion of the

opinion and award concerning plaintiff’s request for additional medical treatment for

anxiety and depression. Wilkes, ___ N.C. App. at ___, ___, 777 S.E.2d at 287-88, 292.

In light of the court’s previous decisions in Parsons v. Pantry, Inc., 126 N.C. App. 540,

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485 S.E.2d 867 (1997), and Perez v. American Airlines/AMR Corp., 174 N.C. App.

128, 620 S.E.2d 288 (2005), disc. rev. improvidently allowed per curiam, 360 N.C. 587,

634 S.E.2d 887 (2006), the court held that the Commission erred by not applying the

rebuttable Parsons presumption to plaintiff’s anxiety and depression, and instead

placing the burden on plaintiff to demonstrate causation of those conditions. Wilkes,

___ N.C. App. at ___, 777 S.E.2d at 285-88. The court remanded the matter to the

Commission to “apply the Parsons presumption and then make a new determination

as to whether Plaintiff’s psychological symptoms are causally related to the 21 April

2010 injury.” Id. at ___, 777 S.E.2d at 287-88.

Additionally, the court reversed the portion of the Commission’s opinion and

award terminating plaintiff’s total temporary disability benefits. Id. at ___, 777

S.E.2d at 292. Noting the testimony of Kurt Voos, M.D., who “authorized Plaintiff to

return to work at sedentary duty with permanent restrictions including lifting up to

10 lbs with occasional walking and standing,” the court stated that based on this

testimony the Commission had found that plaintiff was “incapable of returning to his

previous job but is capable of working in sedentary employment.” Id. at ___, 777

S.E.2d at 289. The court also took note of other facts found by the Commission:

Specifically, the Commission found that Plaintiff (1) was 60
years old at the time of the hearing; (2) had been employed
as a landscaper with Defendant since 2001; (3) had been
employed in medium and heavy labor positions throughout
his entire adult life; (4) attended school until the tenth
grade; (5) was physically incapable of performing his
former job as a landscaper/laborer; (6) has “difficulty

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reading and comprehending” written material as evidenced
during his evaluation with Dr. Peter Schulz; and (7)
has “an IQ of 65, putting him in the impaired range.”

Id. at ___, 777 S.E.2d at 289. The court held that with this evidence, plaintiff had

met his initial burden of showing that a job search would be futile so as to shift the

burden to his employer to show that suitable jobs were available. Id. at ___, 777

S.E.2d at 289-90. Because defendant made no such showing, the court concluded that

“the Commission erred in ruling that Plaintiff was not temporarily totally disabled,”

and that the Commission’s “conclusions of law reaching the opposite result were not

supported by the findings of fact contained within its Opinion and Award.” Id. at ___,

777 S.E.2d at 291.

Defendant filed a petition for discretionary review, which this Court allowed

on 13 April 2016.

I. Medical Compensation

Here defendant argues that the Court of Appeals erred in holding that plaintiff

was entitled to a presumption that his anxiety and depression were causally related

to his compensable injuries. We do not agree, and affirm the Court of Appeals on this

issue.

Our review of an order of the Commission is limited to determining “whether

any competent evidence supports the Commission’s findings of fact and whether the

findings of fact support the Commission’s conclusions of law.” Deese v. Champion

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Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); see also N.C.G.S. § 97-86

(2015). But, “[w]hen the Commission acts under a misapprehension of the law, the

award must be set aside and the case remanded for a new determination using the

correct legal standard.” Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155,

158, 357 S.E.2d 683, 685 (1987) (citing, inter alia, Conrad v. Cook-Lewis Foundry Co.,

198 N.C. 723, 153 S.E. 266 (1930)). “When considering a case on discretionary review

from the Court of Appeals, we review the decision for errors of law.” Irving v.

Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611, 781 S.E.2d 282, 284 (2016)

(citing N.C. R. App. P. 16(a)).

In construing the provisions of the Workers’ Compensation Act, “[w]e have held

in decision after decision that our Workmen’s Compensation Act should be liberally

construed to effectuate its purpose to provide compensation for injured employees or

their dependants, and its benefits should not be denied by a technical, narrow, and

strict construction.” Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874,

882 (1968) (citing 3 Strong’s North Carolina Index: Master and Servant § 45 (1960)).

But, we are mindful that the Act “was never intended to be a general accident and

health insurance policy.” Weaver v. Swedish Imports Maint., Inc., 319 N.C. 243, 253,

354 S.E.2d 477, 483 (1987). We have also noted that “[t]he primary purpose of

legislation of this kind is to compel industry to take care of its own wreckage.” Barber

v. Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943); see also Deese v. Se. Lawn &

Tree Expert Co., 306 N.C. 275, 278, 293 S.E.2d 140, 143 (1982) (“[I]n all cases of doubt,

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the intent of the legislature regarding the operation or application of a particular

provision is to be discerned from a consideration of the Act as a whole—its language,

purposes and spirit.”).

A claim for benefits under the Workers’ Compensation Act “is the right of the

employee, at his election, to demand compensation for such injuries as result from an

accident.” Biddix v. Rex Mills, Inc., 237 N.C. 660, 663, 75 S.E.2d 777, 780 (1953).

Under the terms of the Act, an “injury” is compensable when it is: (1) by accident; (2)

arising out of employment; and (3) in the course of employment. N.C.G.S. § 97-2(6)

(2015); Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977).

When the employee suffers a compensable injury, “[m]edical compensation

shall be provided by the employer.” N.C.G.S. § 97-25(a) (2015) (emphasis added);

Mehaffey v. Burger King, 367 N.C. 120, 124, 749 S.E.2d 252, 255 (2013) (“The Act

places upon an employer the responsibility to furnish ‘medical compensation’ to an

injured employee.”). “Medical Compensation” includes any treatment that “may

reasonably be required to effect a cure or give relief” or “tend to lessen the period of

disability.” N.C.G.S. § 97-2(19) (2015); see also Little v. Penn Ventilator Co., 317 N.C.

206, 213, 345 S.E.2d 204, 209 (1986) (“In our judgment relief embraces not only an

affirmative improvement towards an injured employee’s health, but also the

prevention or mitigation of further decline in that health due to the compensable

injury.”); Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869 (“ ‘Logically implicit’ in

this statute is the requirement that the future medical treatment be ‘directly related

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to the original compensable injury.’ ” (quoting Pittman v. Thomas & Howard, 122

N.C. App. 124, 130, 468 S.E.2d 283, 286, disc. rev. denied, 343 N.C. 513, 472 S.E.2d

18 (1996))). The employee’s “right to medical compensation” continues until “two

years after the employer’s last payment of medical or indemnity compensation.”

N.C.G.S. § 97-25.1 (2015) (emphasis added). At that point, the right to medical

compensation terminates, unless, before the end of that period: “(i) the employee files

with the Commission an application for additional medical compensation which is

thereafter approved by the Commission, or (ii) the Commission on its own motion

orders additional medical compensation.” Id.

The question here concerns whether, when an injury has previously been

established as compensable, a presumption arises that additional medical treatment

is related to the compensable injury. While we have yet to address whether a

presumption arises in the context of medical compensation, the Court of Appeals first

addressed this issue in Parsons v. Pantry, Inc.

In Parsons the plaintiff was working in the defendant’s store late at night when

two men entered. 126 N.C. App. at 540-42, 485 S.E.2d at 868. One of the men struck

the plaintiff in the forehead and shot her multiple times with a stun gun. Id. At a

hearing before the Commission, the plaintiff met her burden of establishing that as

a result of the incident she suffered compensable injuries, which consisted primarily

of headaches. Id. at 540-42, 485 S.E.2d at 868-69. Accordingly, the Commission

entered an opinion and award ordering the defendant to pay the plaintiff’s medical

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expenses and to provide additional treatment “which tends to effect a cure, give relief,

or lessen the plaintiff’s period of disability.” Id. at 540-41, 485 S.E.2d at 868. When

the plaintiff subsequently requested a hearing because of the defendant’s failure to

pay medical expenses, the Commission denied her any further medical treatment on

the basis that she had “not introduced any evidence of causation between her injury

and her headache complaints at the time of the hearing.” Id. at 541, 485 S.E.2d at

868-69. On appeal, the Court of Appeals reversed and remanded, holding that it was

error to place the burden on the plaintiff to prove causation in order to obtain

additional medical treatment. Id. at 542-43, 485 S.E.2d at 869. The court explained

that the plaintiff had met her burden at the initial hearing, and that “[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.” Id.

at 542, 485 S.E.2d at 869. This presumption that additional medical treatment is

directly related to the compensable injury has since become known as the “Parsons

presumption.” See Wilkes, ___ N.C. App. at ___, 777 S.E.2d at 286 (“Once the

employee meets this initial burden, however, a presumption arises—often referred to

as the Parsons presumption—that ‘additional medical treatment is directly related

to the compensable injury.’ ” (quoting Perez, 174 N.C. App. at 135, 620 S.E.2d at 292)).

The Court of Appeals has since held that the Parsons presumption applies both

to agreements to pay compensation by means of a Form 21 (“Agreement for

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Compensation for Disability’’) and to cases involving “direct payment” accompanied

by a Form 60 (“Employer’s Admission of Employee’s Right to Compensation (G.S. §

97-18(b))”). See Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259-60,

523 S.E.2d 720, 723-24 (1999); see also Perez, 174 N.C. App. at 135-37, 620 S.E.2d at

292-94. With the filing of a Form 21, the employer agrees after a workplace injury to

accept the claim as compensable pursuant to N.C.G.S. §§ 97-18 and 97-82. The

statutes require the employer to file a “memorandum of agreement” in the form

prescribed by the Commission; once approved, that document constitutes an award

of the Commission. N.C.G.S. §§ 97-82, -87(a)(2) (2015); see also Watkins v. Cent.

Motor Lines, Inc., 279 N.C. 132, 138, 181 S.E.2d 588, 593 (1971) (“The agreement

between the parties on Form 21, approved by the Commission . . . . constituted an

award by the Commission . . . .”). The statutes also permit “direct payment” by the

employer, which requires no approval either from the Commission or the employee,

and allows the employer to promptly initiate payments to the employee following an

injury. N.C.G.S. § 97-18(b), (d) (2015); id. § 97-82. In 1994, the legislature enacted

direct payment by amending subsection 97-18(b), adding subsection 97-18(d), and

amending N.C.G.S. § 97-82(b). The Workers’ Compensation Reform Act of 1994, ch.

679, secs. 3.1, 3.2, 1993 N.C. Sess. Laws (Reg. Sess. 1994) 394, 400-03. Under the

current statutory framework, when the employer proceeds with direct payment, the

employer can file with the Commission a Form 60 “admit[ting] the employee’s right

to compensation” under N.C.G.S. § 97-18(b). See, e.g., Clark v. Wal-Mart, 360 N.C.

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41, 42, 619 S.E.2d 491, 492 (2005). In the alternative, the employer can file a Form

63 under N.C.G.S. § 97-18(d), in which the employer may initiate payments without

prejudice and without admitting liability, after which the employer has ninety days

to contest or accept liability for the claim. See, e.g., Johnson v. S. Tire Sales & Serv.,

358 N.C. 701, 702, 599 S.E.2d 508, 510 (2004). Notably, N.C.G.S. § 97-82(b) provides

that “[p]ayment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d)

when compensability and liability are not contested prior to expiration of the period

for payment without prejudice, shall constitute an award of the Commission on the

question of compensability of and the insurer’s liability for the injury for which

payment was made.”

We hold that plaintiff here is entitled to a presumption that additional medical

treatment is related to his compensable conditions. This holding is consistent both

with the statutory language and with cases pointing out that “compensability” and

“disability” are separate issues. We have recognized that a presumption of ongoing

disability arises only in limited circumstances—specifically, once the disability has

been admitted or proved to the Industrial Commission. Johnson, 358 N.C. at 706,

599 S.E.2d at 512. This judicial construction of a presumption of ongoing disability

arising based upon an “award of the Commission” dates back to at least 1951. Tucker

v. Lowdermilk, 233 N.C. 185, 189, 63 S.E.2d 109, 112 (1951) (“However, if an award

is made, payable during disability, and there is a presumption that disability lasts

until the employee returns to work, there is likewise a presumption that disability

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ended when the employee returned to work.”); see also Watkins, 279 N.C. at 137, 181

S.E.2d at 592 (“If an award is made by the Industrial Commission, payable during

disability, there is a presumption that disability lasts until the employee returns to

work . . . .”). On that basis, we held that while the employer admits compensability

by filing a Form 60, or a Form 63 when the employer fails to contest compensability

within the ninety-day period, no presumption of disability arises in those

circumstances. Clark, 360 N.C. at 43-46, 619 S.E.2d at 492-94; Johnson, 358 N.C. at

706-07, 599 S.E.2d at 512-13.

Nonetheless, on the issue of compensability in the same circumstances, we

view the plain language of N.C.G.S. § 97-82(b) as dispositive. Subsection 97-82(b)

provides that “[p]ayment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-

18(d) when compensability and liability are not contested prior to expiration of the

period for payment without prejudice, shall constitute an award of the Commission

on the question of compensability of and the insurer’s liability for the injury for which

payment was made.” (Emphasis added.) Continually placing the burden on an

employee to prove that his symptoms are causally related to his admittedly

compensable injury before he can receive further medical treatment “ignores this

prior award.” Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869. Accordingly, we

conclude that an admission of compensability approved under N.C.G.S. § 97-82(b)

entitles an employee to a presumption that additional medical treatment is causally

related to his compensable injury. In reaching this conclusion, we note the

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mandatory language of N.C.G.S. § 97-25(a) (stating that “[m]edical compensation

shall be provided by the employer” (emphasis added)), as well as the fact that medical

compensation encompasses any treatment that “may reasonably be required to effect

a cure or give relief,” Id. § 97-2(19).

Defendant contends that the “award” under N.C.G.S. § 97-82(b) is merely an

admission that the employee has suffered an accident arising out of and in the course

of employment, and that the specifics of any injury must still be determined by an

adjudication of the Commission. We conclude otherwise. Requiring the employee to

repeatedly “build claims for medical compensation” for an admittedly compensable

injury, as argued by defendant, would be inconsistent with the language of N.C.G.S.

§§ 97-25, 97-2(19), and 97-82(b), as well as the purpose and spirit of the Act. We

decline to adopt such a narrow interpretation of the Act.

Moreover, defendant’s proposed interpretation would allow the employer, by

“admitting” that the employee has suffered a compensable injury, to enjoy the right

to direct the employee’s medical treatment without accepting the accompanying

responsibility to provide medical compensation for any treatment until the employee

has proved its relatedness to the compensable injury. We have observed that,

concomitant with the employer’s duty under N.C.G.S. § 97-25 to provide, and the

employee’s right to receive, medical compensation, is the employer’s right to direct

the medical treatment that it furnishes. Schofield v. Great Atl. & Pac. Tea Co., 299

N.C. 582, 586-87, 264 S.E.2d 56, 60 (1980); see N.C.G.S. § 97-25 (2015). Even before

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compensability is established, when the employee claims compensation after an

injury, the employer has the right to direct the employee to submit to an independent

medical examination by one of its authorized physicians. N.C.G.S. § 97-27(a) (2015);

see also Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d 785, 788 (2000)

(“One of the implicit purposes of this requirement is to enable the employer to

ascertain whether the injury is work-related or not and thus whether the claim is

indeed compensable.”), disc. rev. denied, 356 N.C. 303, 570 S.E.2d 725 (2002).

Finally, defendant argues that applying the Parsons presumption to a Form 60

filing will discourage direct payment, upset the framework of the Act, and convert the

Act into general health insurance. We are unconvinced. Applying the rebuttable

presumption merely removes from the employee seeking medical treatment the

burden of proving every time that such treatment is for injuries or symptoms causally

related to the admittedly compensable condition. Perez, 174 N.C. App. at 135, 620

S.E.2d at 292. The employer may rebut this presumption with evidence that the

condition or treatment is not directly related to the compensable injury. Id. at 135,

620 S.E.2d at 292. Defendant has not identified any marked decrease in the use of

Form 60s, or any increase in related litigation and costs, since Perez was decided in

2004.1

To the contrary, following the enactment of direct payment and our holdings in
1

Johnson and Clark, Forms 60 and 63 have essentially replaced Forms 21 and 26. See North
Carolina Workers’ Compensation Law: A Practical Guide to Success at Every Stage of a Claim
155-56 (Valerie A. Johnson & Gina E. Cammarano eds., 3d ed. 2016) (“The use of [Form 21
and Form 26], however, has declined dramatically since the 1994 amendments to the Act.

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Opinion of the Court

Certainly, medical issues can be complex and the extent of an employee’s

injuries may be difficult to determine at the time of the accident. However, with

N.C.G.S. § 97-27(a) (providing that an employee alleging a compensable injury is

required to submit to a medical examination by the employer’s authorized physician)

and N.C.G.S. § 97-18(d) (authorizing payment without prejudice to later contest

liability), the legislature has wisely given employers who are uncertain about the

compensability of an employee’s injuries the methods to investigate such injuries

without admitting any liability under the Act while still providing prompt payments

to injured employees.

In addition, the legislature has provided more recently for an expedited

“medical motions” procedure, which was utilized here and can quickly be used to

rebut the presumption if appropriate.2 In 2007 the General Assembly amended

N.C.G.S. § 97-78 to require the Commission to implement a plan to expeditiously

resolve disputes involving medical compensation. Current Operations and Capital

Improvements Appropriations Act of 2007, ch. 323, sec. 13.4A.(a), 2007 N.C. Sess.

Laws 616, 787-88. And in 2013 the legislature amended N.C.G.S. § 97-25(f) to set

forth such an expedited procedure. Act of July 9, 2013, ch. 294, sec. 4, 2013 N.C. Sess.

Employers and insurance carriers instead use a Form 60 or Form 63 procedure to admit
liability for a claim and pay weekly benefits, without giving rise to any presumption of
disability. Thus, the presumption of continuing disability, while it still exists, is increasingly
irrelevant.” (citations omitted)).
2 Here, where plaintiff utilized these expedited procedures, the matter might well have

been concluded speedily, had the presumption been properly applied.

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Opinion of the Court

Laws 802, 803-04. Thus, our holding on this issue is consistent with both the

statutory mandate to provide treatment to the employee and with any employer’s

need to quickly rebut the presumption.

Here, as a result of a motor vehicle crash that occurred within the course and

scope of his employment, plaintiff sustained injuries that included an abrasion on his

head, three broken ribs, and injuries to his neck, back, pelvis, hip, and entire left side,

as well as a concussion. Defendant filed a Form 60 accepting that plaintiff suffered

compensable injuries by accident and began paying temporary total compensation

and medical compensation for plaintiff’s injuries. Accordingly, when plaintiff sought

additional medical treatment for tinnitus, anxiety, and depression, alleging that

these conditions were directly related to his compensable injuries, he was entitled to

a rebuttable presumption to that effect. It is clear from the Commission’s Conclusions

of Law that did it not apply any presumption, and instead placed the initial burden

on plaintiff to prove causation for any medical compensation he sought:

2. The claimant in a workers’ compensation case
bears the initial burden of proof, and must establish “each
and every element of compensability,” including a causal
relationship between the injury and his employment.
Based upon all credible evidence, the Full Commission
concludes that Plaintiff has met his burden of showing that
on 21 April 2010 he suffered compensable injuries [to] his
head and ears leading to tinnitus as a result of a traffic
accident arising out of the course and scope of his
employment with Employer-Defendant. N.C. Gen. Stat. §
97-2(6).

....

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Opinion of the Court

5. . . . Based upon the preponderance of the
evidence, the Full Commission concludes that Plaintiff has
not met his burden of showing that his alleged depression
and anxiety is a result of the 21 April 2010 work-related
accident . . . .

(Citation omitted.) Because the Commission acted under a misapprehension of law,

the Court of Appeals vacated the opinion and award on this issue and remanded for

application of the presumption; we affirm this portion of the Court of Appeals’

opinion. See Ballenger, 320 N.C. at 158, 357 S.E.2d at 685. We note that plaintiff

was evaluated by several physicians and that the Commission found the evidence

regarding plaintiff’s anxiety and depression to be “conflicting.” Like the Court of

Appeals, “[w]e express no opinion on the question of whether the evidence of record

is sufficient to rebut the presumption that Plaintiff’s current complaints are directly

related to his initial compensable injury.” Wilkes, ___ N.C. App. at ___, 777 S.E.2d at

288. We leave this determination to the Commission on remand.

II. Disability

On the issue of disability, the Court of Appeals, relying in part on Russell v.

Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), held

that the uncontroverted evidence establishing plaintiff’s cognitive limitations

adequately demonstrated that any attempt by him to find other employment would

be futile, and therefore, plaintiff was entitled to total disability benefits. Defendant

argues that the Court of Appeals erred in reversing the Commission’s termination of

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Opinion of the Court

plaintiff’s temporary total disability benefits. We modify and affirm that decision,

and remand for further proceedings.

As we explained in Medlin v. Weaver Cooke Construction, LLC, “disability” is

defined by the Act in N.C.G.S. § 97-2(9) as:

“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.” Id. §§ 97-2(9) (2013), -2(i) (1930).
This definition, we have long and consistently held,
specifically relates to the incapacity to earn wages, rather
than only to physical infirmity. See, e.g., Hendrix v. Linn-
Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 378-79
(1986); Fleming v. K-Mart Corp., 312 N.C. 538, 541, 324
S.E.2d 214, 216 (1985). In Hilliard [v. Apex Cabinet Co.,
305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982)], we
articulated again the three factual elements that a plaintiff
must prove to support the legal conclusion of disability:

[“]We are of the opinion that in order to support a
conclusion of disability, the Commission must find: (1) that
plaintiff was incapable after his injury of earning the same
wages he had earned before his injury in the same
employment, (2) that plaintiff was incapable after his
injury of earning the same wages he had earned before his
injury in any other employment, and (3) that this
individual’s incapacity to earn was caused by plaintiff’s
injury.[”]

367 N.C. 414, 420, 760 S.E.2d 732, 736 (2014). In 1993 the Court of Appeals issued

its decision in Russell, apparently to provide examples of methods3 by which a

3 “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, Peoples, 316 N.C. at 443, 342 S.E.2d at 809; (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, id. at 444, [342]
S.E.2d at 809; 1C Arthur Larson, The Law of Workmen’s Compensation § 57.61(d) (1992); (3)

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Opinion of the Court

plaintiff could prove disability as defined above. Here we emphasize that this Court

has not adopted Russell, and that the approaches taken therein are not the only

means of proving disability. See id. at 422, 760 S.E.2d at 737 (stating that “Hilliard

was grounded explicitly in the statutory definition of disability in section 97-2;

Russell expanded upon, and perhaps diverged from, that grounding” and that the

Russell methods “are neither statutory nor exhaustive” (emphases added)). In fact,

the issue in Russell was “whether an injured employee seeking an award of total

disability under N.C.G.S. § 97-29, who is unemployed, medically able to work, and

possesses no preexisting limitations which would render him unemployable,”

presented sufficient evidence that he was unable to find work. Russell, 108 N.C. App.

at 764-65, 425 S.E.2d at 456-57 (emphasis added). Here, where plaintiff has

numerous preexisting limitations as found by the Commission (over the age of sixty,

limited IQ of sixty-five, limited education and work experience), Russell is inapposite.

Again, we have stated that, in determining loss of wage-earning capacity, the

Commission must take into account age, education, and prior work experience as well

as other preexisting and coexisting conditions. Little v. Anson Cty. Sch. Food Serv.,

295 N.C. 527, 532, 246 S.E.2d 743, 746 (1978). While plaintiff here bears the burden

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,
Peoples, 316 N.C. at 444, 342 S.E.2d at 809; or (4) the production of evidence that he has
obtained other employment at a wage less than that earned prior to the injury[,] Tyndall v.
Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550, disc. rev. denied, 329 N.C.
505, 407 S.E.2d 553 (1991).” Russell, 108 N.C. App. at 765-66, 425 S.E.2d at 457.

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Opinion of the Court

of proof to establish disability, once plaintiff has done so, the burden shifts to

defendant “to show not only that suitable jobs are available, but also that the plaintiff

is capable of getting one, taking into account both physical and vocational

limitations.” Johnson, 358 N.C. at 706, 708, 599 S.E.2d at 512, 513 (quoting Burwell

v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994)

(emphasis omitted)).

Defendant argues that, in reversing the Commission, the Court of Appeals

erroneously overruled an earlier decision of that court in Fields v. H&E Equipment

Services, LLC, 240 N.C. App. 483, 771 S.E.2d 791 (2015). It is unclear whether

defendant, in relying on Fields, is arguing that plaintiff was required to produce

expert testimony to prove that engaging in a job search would be futile under Russell.

See Fields, 240 N.C. App. at 483, 771 S.E.2d at 792 (concluding that the plaintiff did

not establish futility because he “failed to provide competent evidence through expert

testimony of his inability to find any other work as a result of his work-related injury”

(emphasis added)). Because we have held that Russell does not apply here, this

argument is misplaced; however, we have never held, and decline to do so now, that

an employee is required to produce expert testimony in order to demonstrate his

inability to earn wages. A plaintiff’s own testimony, as well as that of his lay

witnesses, can be quite competent to explain how a plaintiff’s injury and any related

symptoms have affected his activities. See Kennedy v. Duke Univ. Med. Ctr., 101 N.C.

App. 24, 31, 398 S.E.2d 677, 681 (1990) (“Testimony by the plaintiff him/herself has

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Opinion of the Court

also been found to be competent on the issue of wage earning capacity.” (citing

Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 325, 69 S.E.2d 707, 714 (1952))). If

plaintiff shows total incapacity for work, taking into account his work-related

conditions combined with the other factors noted above, he is not required to also

show that a job search would be futile. See Peoples v. Cone Mills Corp., 316 N.C. 426,

444, 342 S.E.2d 798, 809 (1986) (“In order to prove disability, the employee need not

prove he unsuccessfully sought employment if the employee proves he is unable to

obtain employment.”).

We have often stated that the Commission must make specific findings that

address the “crucial questions of fact upon which plaintiff’s right to compensation

depends.” Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599

(1955); see also, e.g., Singleton v. Durham Laundry Co., 213 N.C. 32, 34-35, 195 S.E.

34, 35 (1938) (“It is the duty of the Commission to make such specific and definite

findings upon the evidence reported as will enable this Court to determine whether

the general finding or conclusion should stand, particularly when there are material

facts at issue.”). Here the Commission found the evidence conflicting on whether

plaintiff was actually suffering from anxiety and depression, and as a result, the

Commission determined that plaintiff had failed to establish that his anxiety and

depression were compensable or that they affected his ability to work, thus resulting

in disability. The Commission found as fact, in relevant part that:

35. Testimony by Plaintiff, Plaintiff’s wife, and

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Opinion of the Court

Doctors Lacin, Schulz, Hervey, and Gualtieri is conflicting
as to whether Plaintiff is currently suffering from anxiety
and depression. Based upon a preponderance of all the
evidence of record, the Full Commission concludes that
Plaintiff’s alleged anxiety and depression was not caused
by the 21 April 2010 work-related accident.

The Commission concluded as a matter of law that:

5. Where depression or other emotional trauma
has been caused by a compensable accident and injury, and
such depression or trauma has caused disability, then total
disability benefits may be allowed. Here, the evidence is
conflicting as to whether Plaintiff has suffered from
depression and whether any depression was caused by the
21 April 2010 work-related accident. Based upon the
preponderance of the evidence, the Full Commission
concludes that Plaintiff has not met his burden of showing
that his alleged depression and anxiety is a result of the 21
April 2010 work-related accident or has caused him any
temporary disability.

(Emphasis added and citations omitted.)

On the other hand, the Commission found credible plaintiff’s evidence that he

was actually suffering from tinnitus, noting plaintiff’s numerous complaints dating

back to May 2010, and found that he had not reached maximum medical

improvement with regard to his tinnitus at the time of the Commission’s opinion and

award in April 2014. The Commission specifically found:

26. On 27 December 2011, Plaintiff saw Dr.
Debara Tucci, a board-certified otolaryngologist at Duke
University Medical Center, for an evaluation. Dr. Tucci
reviewed Plaintiff’s previous medical records, audiograms
and physically examined Plaintiff’s head and ears. Dr.
Tucci diagnosed Plaintiff with severe tinnitus and testified
that this condition was likely caused by the accident. Dr.

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Opinion of the Court

Tucci further testified that the tinnitus was “wrapped up
with the anxiety or depression” diagnosed in Dr. Hervey’s
report, which she reviewed.

27. Dr. Tucci testified that Plaintiff’s tinnitus was
“more likely than not” a result of the 21 April 2010 accident
and was part of the “symptomatology that occurred as a
result of the accident.”

The Commission awarded plaintiff medical compensation for his tinnitus, including

any treatment “reasonably required to effect a cure, provide relief or lessen any

disability.” (Emphasis added.) Yet, having found credible evidence of plaintiff’s

“severe tinnitus,” the Commission made no related findings on how plaintiff’s

compensable tinnitus and any related symptoms may have affected his ability to

engage in wage-earning activities. Accordingly, we remand this case to the

Commission to take additional evidence if necessary and to make specific findings

addressing plaintiff’s wage-earning capacity, considering plaintiff’s compensable

tinnitus in the context of all the preexisting and coexisting conditions bearing upon

his wage-earning capacity. See Medlin, 367 N.C. at 420, 760 S.E.2d at 736; Peoples,

316 N.C. at 441, 342 S.E.2d at 808 (“If preexisting conditions such as the employee’s

age, education and work experience are such that an injury causes the employee a

greater degree of incapacity for work than the same injury would cause some other

person, the employee must be compensated for the actual incapacity he or she suffers,

and not for the degree of disability which would be suffered by someone younger or

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Opinion of the Court

who possesses superior education or work experience.” (citing Little, 295 N.C. at 532,

246 S.E.2d at 746)).

Conclusion

In sum, we hold that the Commission erred in failing to give plaintiff the

benefit of a presumption that the additional medical treatment he sought was for

conditions related to his compensable injuries. The Commission will reevaluate its

decision, applying the correct presumption. As the Court of Appeals correctly

addressed this error, we affirm on this issue. On the issue of plaintiff’s entitlement

to additional disability benefits, we hold that the evidence raises factual issues

regarding the effect of plaintiff’s compensable tinnitus on his ability to earn wages,

and that, on remand, the Commission must find these facts. Accordingly, on this

second issue we modify and affirm the decision of the Court of Appeals. We remand

this case to the Court of Appeals for further remand to the Commission for further

proceedings not inconsistent with this opinion.

AFFIRMED IN PART; MODIFIED AND AFFIRMED IN PART, AND

REMANDED.

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