Harrison v. Gemma Power Systems, LLC

IN THE SUPREME COURT OF NORTH CAROLINA

No. 216A16

Filed 9 June 2017

KERRY RAY HARRISON, Employee

v.
GEMMA POWER SYSTEMS, LLC,
Employer,

TRAVELERS INSURANCE COMPANY,
Carrier

Appeal pursuant to N.C.G.S. § 7A-30(2) from the unpublished decision of a

divided panel of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 433 (2016),

affirming an amended opinion and award filed on 4 March 2015 by the North Carolina

Industrial Commission. Heard in the Supreme Court on 22 March 2017.

Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson, for plaintiff-appellant.

Orbock, Ruark & Dillard, P.C., by Jessica E. Lyles and Roger L. Dillard, Jr.,
for defendant-appellees.

HUDSON, Justice.

In the Court of Appeals, plaintiff employee challenged the Industrial

Commission’s determination that he is not entitled to any compensation for

permanent partial disability under N.C.G.S. § 97-31. The Court of Appeals, in a

divided opinion, affirmed the denial, and plaintiff appealed to this Court on the basis

of the dissenting opinion. We reverse the decision of the Court of Appeals and remand

this case for further proceedings.
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Opinion of the Court

This summary of facts is based on the stipulations of the parties as well as the

forms in the record and the unchallenged findings of fact in the most recent opinion

and award filed on 4 March 2015. On 2 March 2001, plaintiff, a pipefitter, suffered a

compensable accident and sustained injuries to his left upper leg, neck, and other

areas of his body when a heavy valve fell on his head, while he was walking at his job

site. Defendants, his employer at the time and its workers’ compensation insurance

carrier, accepted plaintiff’s claim as compensable under the Workers’ Compensation

Act (Act). Plaintiff received medical treatment for his injuries for a period of several

years, but defendants eventually refused to authorize additional medical treatment.

Defendants have handled the claim as medical only from its onset, and plaintiff has

never received indemnity payments.

After his work-related accident, plaintiff immediately complained of neck pain

and headaches, and he received prompt treatment from an authorized medical

provider, who documented plaintiff’s complaints of headaches and neck pain.

Plaintiff was referred to chiropractor Larry Stogner for care. Plaintiff attempted to

return to work for defendant employer by doing light duty tasks, but he was laid off

on 22 April 2001. On 27 June 2001, Dixon Gerber, M.D., an orthopaedic surgeon, saw

plaintiff for a second opinion examination and found that plaintiff “was at maximum

medical improvement and had no permanent partial disability.” Dr. Gerber’s medical

record also reflected plaintiff’s impression that he “could probably return to work at

any time.” Dr. Gerber released plaintiff from treatment without restrictions as of 2

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Opinion of the Court

July 2001, four months after plaintiff’s work-related accident.

Defendant employer re-hired plaintiff but shortly thereafter terminated him

for missing work and tardiness. After that, plaintiff worked for other employers, also

as a pipefitter. Plaintiff testified that he had to stop working as a pipefitter in

February 2003 because of his ongoing neck pain. Plaintiff then worked in other

occupations until May 2009, and he received unemployment benefits when he was

not working during that time. Plaintiff became a full-time community college student

in May 2009.

During the years after his work-related accident, plaintiff continued to have

neck pain, and in October 2002, defendants referred him for an independent medical

examination by Robert Lacin, M.D., at Goldsboro Neurological Surgery. Dr. Lacin

opined that he “certainly ha[d] no doubt that [plaintiff’s] symptoms are related to this

incident of March 2, 2001.”

In December 2003, plaintiff began treatment with Hemanth Rao, M.D., at

Neurology Consultants of the Carolinas. An MRI in November 2006 showed that

plaintiff had evidence of a continuing injury, for which he was referred for a surgical

opinion. Plaintiff received an independent medical evaluation from Alfred Rhyne,

M.D., at OrthoCarolina in April 2009, after which Dr. Rhyne recommended another

MRI. Dr. Rhyne later testified that if plaintiff had no complaints of pain or problems

before his March 2001 workplace injury, that injury “precipitated the onset of his

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Opinion of the Court

symptoms.” Defendants did not authorize the MRI as recommended by Dr. Rhyne.

Plaintiff subsequently received an MRI at the Veterans Affairs Medical Center

in Fayetteville, North Carolina. A medical record from that facility dated 9 August

2010 diagnosed “[m]ultilevel cervical spondylosis seen in the lower cervical spine,

most prominent at C5 and C6.” Chiropractor Stogner, who had treated plaintiff since

shortly after his injury, also opined that it was “more probable than not” that the 2

March 2001 workplace accident caused plaintiff’s neck problems and stated that he

does “not expect to see any significant improvement with [plaintiff’s] injury status [as

he] suspect[s] that [plaintiff’s] condition is permanent.”

Defendants’ last payment of medical compensation to plaintiff was on 18 May

2009. Plaintiff enrolled in college full time in May 2009, graduated with an

associate’s degree in May 2012, and at the time his case was heard before the deputy

commissioner, was a full-time student pursuing a bachelor’s degree in business.

Plaintiff worked part time at a desk job while he was a student.

On 25 January 2012, plaintiff filed a Form 33 with the Industrial Commission,

asserting that defendants “ha[d] failed to authorize plaintiff’s request for further

treatment with Dr. Rhyne” and contending that there was also “an issue with

indemnity benefits.” In their response to this filing, defendants stated that the claim

“is barred by the statute of limitations [in] G.S. §97-24. Plaintiff’s claim is a no lost

time claim. This claim was medical only and it has been more than two years since

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Opinion of the Court

the last payment of medical compensation.”

On 7 February 2013, a deputy commissioner ordered that, to the extent they

had not done so, defendants provide (pay for) all medical treatment for plaintiff’s neck

condition for the period between the date of injury through 18 May 2009. The deputy

denied plaintiff’s claim for additional benefits under the Act. Plaintiff appealed to

the Full Commission (Commission), which affirmed the deputy commissioner’s

opinion and award on 16 September 2013.

Plaintiff appealed the Commission’s opinion and award to the North Carolina

Court of Appeals, arguing, inter alia, that the Commission’s findings of fact were

inadequate and that the record evidence entitled him to permanent impairment

indemnity benefits. Harrison v. Gemma Power Sys., LLC, 234 N.C. App. 664, 763

S.E.2d 17, 2014 WL 2993853 (2014) (unpublished) (Harrison I). Specifically, plaintiff

argued that Finding of Fact 22 was not supported by competent evidence and that it

irreconcilably conflicted with Finding of Fact 25. Harrison I, 2014 WL 2993853, at

*10.

Finding of Fact 22 reads:

22. Dr. Rhyne testified that plaintiff’s probable
permanent partial disability would be three percent (3%),
or if plaintiff had to have surgery, the rating would be in
the range of five to fifteen percent (5-15%). The
Commission assigns greater weight to the testimony of Dr.
Gerber regarding plaintiff’s permanent partial disability
rating as Dr. Gerber was plaintiff’s authorized treating
physician and Dr. Rhyne only performed a one time

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Opinion of the Court

independent medical evaluation. Therefore, based on Dr.
Gerber’s testimony, the Commission finds plaintiff has no
permanent partial disability.

In Finding of Fact 5, the Commission noted that “Dr. Gerber found that plaintiff was

at maximum medical improvement and has no permanent partial disability” and

“released plaintiff from treatment without restrictions as of 2 July 2001.”

Finding of Fact 25 reads:

25. Based upon the preponderance of the
evidence in view of the entire record, the medical treatment
plaintiff received for his neck condition, on or before 18
May 2009, was reasonable and medically necessary, and
was reasonably calculated to effect a cure and give relief
from plaintiff’s 2 March 2001 compensable injury by
accident.

Based on these findings, the Commission reached Conclusion of Law 2, that

“[p]laintiff is entitled to the provision of medical treatment for his neck condition for

the period from 2 March 2001 through 18 May 2009.”

In a unanimous, unpublished opinion filed on 1 July 2014, the Court of

Appeals, inter alia, reversed the Commission’s denial of indemnity benefits,

concluding that the Commission’s findings and conclusions on that issue were

“inadequate.” Id. at *1. Specifically, the Court of Appeals agreed with plaintiff that

Finding of Fact 22 lacked evidentiary support but disagreed that Findings of Fact 22

and 25 are irreconcilable. Id. at *10. With respect to Findings of Fact 22 and 25, the

Court of Appeals stated:

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Opinion of the Court

[A] finding that Plaintiff is at maximum medical
improvement with no permanent partial disability denotes
that Plaintiff’s compensable injury has healed and/or
stabilized, with no permanent functional loss to his neck
and/or back. The fact that Plaintiff has no permanent
functional impairment, however, does not mean, ipso facto,
that ongoing medical treatment will not be necessary to
“effect a cure and give relief” to the underlying injury.

Id. The Court of Appeals instructed: “[I]f, on remand, the Full Commission again

finds Plaintiff to have no permanent partial impairment, the Full Commission is

instructed to enter additional findings reconciling that finding with Finding of Fact

25.” Id. The Court of Appeals remanded the case to the Commission “for additional

findings of fact and conclusions of law on the issue of Plaintiff’s entitlement to

permanent partial impairment benefits under N.C. Gen. Stat. § 97-31.” Id. at *11.

On 4 March 2015, the Commission filed an amended opinion and award that

made no change to its ultimate decision, including denying all additional benefits to

plaintiff under the Act. In the amended opinion and award, however, the Commission

modified Findings of Fact 22 and 25 (listed as Findings of Fact 23 and 26 in the

amended opinion and award), as well as Conclusion of Law 2. It also added

Conclusion of Law 6.

In Finding of Fact 23 of the amended opinion and award (amending Finding of

Fact 22), the Commission bolstered its reasoning for assigning greater weight to the

opinion of Dr. Gerber over that of Dr. Rhyne regarding the permanent partial

disability rating. Finding of Fact 23 (amending Finding of Fact 22) now reads:

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Opinion of the Court

23. Dr. Rhyne testified that plaintiff’s probable
permanent partial disability would be three percent (3%),
or if plaintiff had to have surgery, the rating would be in
the range of five to fifteen percent (5-15%). The
Commission assigns greater weight to the opinion of Dr.
Gerber regarding plaintiff’s permanent partial disability
rating as detailed in Dr. Gerber’s 27 June 2001 medical
record. The Commission bases the decision to assign more
weight to Dr. Gerber’s opinion regarding the permanent
partial disability rating on the fact that Dr. Gerber was
able to examine plaintiff in close temporal proximity to
plaintiff’s compensable injury and also provided his opinion
on plaintiff’s permanent partial disability at the time of his
examination. Dr. Gerber’s record noted plaintiff’s
statement to him that plaintiff felt he could probably
return to work, and found plaintiff to be at maximum
medical improvement with no permanent disability and to
have no work restrictions. Dr. Gerber’s examination was
on 27 June 2001, less than four months after plaintiff’s
injury, as compared to Dr. Rhyne, who did not examine
plaintiff until 27 April 2009, more than eight years after
plaintiff’s injury and gave his opinion on plaintiff’s
permanent partial disability rating more than three years
after his examination of plaintiff in October of 2012.
Therefore, based on Dr. Gerber’s 27 June 2001 medical
record, the Commission finds that plaintiff reached
maximum medical improvement on 27 June 2001 and that
plaintiff has no permanent partial disability.

Also, the Commission reconciled Findings of Fact 22 and 25. In the amended

opinion and award, Finding of Fact 26 (amending Finding of Fact 25) now reads:

26. Based upon the preponderance of the
evidence in view of the entire record, the medical treatment
plaintiff received for his neck condition, on or before 18
May 2009, was reasonable and medically necessary, and
was reasonably calculated to give relief from plaintiff’s 2
March 2001 compensable injury by accident. The
Commission notes that even though plaintiff is determined
to have reached maximum medical improvement on 27

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Opinion of the Court

June 2001, that determination is not inconsistent with
plaintiff continuing to receive additional medical
treatment to provide relief from his compensable injury by
accident.

Conclusion of Law 2 in the amended opinion and award now reads:

2. Plaintiff is entitled to the provision of medical
treatment for his neck condition for the period from 2
March 2001 through 18 May 2009. N.C. Gen. Stat. §§ 97-
25; 97-25.1. The Commission further concludes that even
though the medical treatment plaintiff received
subsequent to his full duty release could not lessen his
period of disability, the medical treatment he did receive
provided relief. The Supreme Court of North Carolina has
instructed:

N.C.G.S. § 97-25 does not, however, limit an
employer’s obligation to pay future medical
expenses to those cases in which such
expenses will lessen the period of disability.
The statute also requires employers to pay the
expenses of future medical treatments even if
they will not lessen the period of disability as
long as they are reasonably required to (1)
effect a cure or (2) give relief.

Little v. Penn Ventilator Co., 317 N.C. 206, 210, 345 S.E.2d
204, 207 (1986). Therefore, the Commission concludes that
plaintiff is entitled to the provision of medical treatment
following his full duty release through 18 May 2009 as the
medical treatment he received provided relief from his
compensable injury.

Newly added Conclusion of Law 6 reads: “Based upon Dr. Gerber’s assignment of a

zero percent (0%) permanent partial disability rating, plaintiff is not entitled to any

compensation for permanent partial disability.”

These excerpts demonstrate the Commission’s attempts to bolster its

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reasoning for assigning greater weight to the opinion of Dr. Gerber over that of Dr.

Rhyne regarding the permanent partial disability rating and to reconcile the

determination that plaintiff is entitled to medical treatment for his neck condition for

the period from 2 March 2001 through 18 May 2009 (Finding of Fact 26, Conclusion

of Law 2) with the determination that plaintiff is not entitled to any compensation

for permanent partial disability (Finding of Fact 23, Conclusion of Law 6).

In the amended opinion and award, the Commission also added Finding of Fact

29, which reads in pertinent part: “[O]n 30 January 2009, plaintiff was assigned work

restrictions of no lifting greater than twenty (20) pounds and no reaching overhead.

Those restrictions rendered plaintiff’s pre-injury job unsuitable as it would exceed

both the lifting restriction and the prohibition on reaching overhead.”

Plaintiff again appealed the Commission’s decision to the Court of Appeals,

which, in an unpublished, divided opinion filed on 3 May 2016, affirmed the amended

opinion and award. Harrison v. Gemma Power Sys., LLC, ___ N.C. App. ___, 786

S.E.2d 433, 2016 WL 1744423 (2016) (unpublished) (Harrison II). The majority

considered plaintiff’s argument that the Commission made an additional finding of

fact in the amended opinion and award that plaintiff was assigned work restrictions

on 30 January 2009, and therefore, the Commission’s finding “recogniz[ed] a loss of

functional ability due to injury” that amounted to a “ ‘functional abnormality’ after

maximum medical improvement because he can no longer perform his pre-injury job

due to accident-related restrictions.” Harrison II, 2016 WL 1744423, at *5.

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Therefore, according to plaintiff, the Commission’s new finding establishes that he

“has permanent partial impairment due to his injury,” which finding is “irreconcilable

with” a finding of fact and conclusion of law in the original opinion and award of the

Commission. Id.

The majority found plaintiff’s arguments unconvincing. Id. at *6. The majority

concluded that although “competent record evidence . . . support[ed] the finding that”

an examining physician imposed work restrictions on plaintiff on 30 January 2009,

“the evidence does not indicate whether these restrictions were related to his 2 March

2001 injury in any way.” Id.

The majority also noted that the Commission made an amended finding that

“assigned greater weight to the opinion of Dr. Gerber regarding plaintiff’s permanent

partial disability, as opposed to the opinion of Dr. Rhyne.” Id. at *7. Recognizing

that “[t]he Commission is the sole judge of the credibility of the witnesses and the

weight to be given their testimony,” the majority held that the Commission “was

entitled to place greater weight on the substance of Dr. Gerber’s opinion.” Id.

Therefore, the Court of Appeals affirmed the amended opinion and award, holding

that the Commission did not err in concluding that plaintiff is not entitled to any

compensation for permanent partial disability. Id.

In contrast, the dissenting opinion concluded that the Commission again failed

to properly determine whether plaintiff is entitled to compensation under N.C.G.S. §

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97-31. Id. (Geer, J., dissenting). The dissent observed that the Commission found as

fact that “as of 30 January 2009, plaintiff had a loss of function—a substantial

limitation on his ability to lift a relatively modest weight and an inability to reach

overhead.” Id. at *8. The dissent did not agree “that the record contains no evidence

that the 30 January 2009 restrictions were due to the 2 March 2001 compensable

neck injury.” Id. Rather, the dissent would conclude that, when read as a whole, the

Commission’s opinion and award establishes that “the Commission understood that

the restrictions . . . assigned were due to plaintiff’s compensable neck condition.” Id.

The dissent agreed with plaintiff that “the Commission’s findings of fact do not

support its conclusion that plaintiff suffers no permanent partial disability within the

meaning of [section] 97-31”; therefore, the dissent would reverse the Commission’s

opinion and award on this issue and, to the extent necessary, remand this case “so

that the Commission can clarify its findings” “regarding the source of the physical

restrictions” placed on plaintiff. Id. at *9.

Plaintiff appealed based on the dissenting opinion. Plaintiff argues that the

Commission’s detailed findings of fact compel a conclusion that he suffers from

permanent partial impairment as a result of his compensable injury and is therefore

entitled to collect scheduled benefits under N.C.G.S. § 97-31.

We decline plaintiff’s invitation to hold that the findings of fact in the amended

opinion and award compel the conclusion that plaintiff retains permanent partial

impairment as a result of his injury. “[T]he Commission is the sole judge of the

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credibility of the witnesses and the weight of the evidence. . . . ‘Thus, on appeal, this

Court does not have the right to weigh the evidence and decide the issue on the basis

of its weight.’ ” Hassell v. Onslow Cty. Bd. of Educ., 362 N.C. 299, 305, 661 S.E.2d

709, 714 (2008) (citations omitted) (quoting Adams v. AVX Corp., 349 N.C. 676, 681,

509 S.E.2d 411, 414 (1998)). But, because we conclude that again the Commission

has failed to adequately address the Court of Appeals’ mandate that it make

“additional findings of fact and conclusions of law on the issue of Plaintiff’s

entitlement to permanent partial impairment benefits under N.C. Gen. Stat. § 97-

31,” Harrison I, 2014 WL 2993853, at *11, we reverse the decision currently on appeal

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

to comply with the 2014 mandate of the Court of Appeals.

“In reviewing an opinion and award from the Industrial Commission, the

appellate courts are bound by the Commission’s findings of fact when supported by

any competent evidence; but the [Commission’s] legal conclusions are fully

reviewable.” Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d 54, 60

(2000) (citing Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684

(1982)). Moreover, “[t]o enable the appellate courts to perform their duty of

determining whether the Commission’s legal conclusions are justified, the

Commission must support its conclusions with sufficient findings of fact.” Gregory v.

W.A. Brown & Sons, 363 N.C. 750, 761, 688 S.E.2d 431, 439 (2010) (citing Pardue v.

Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 415-16, 132 S.E.2d 747, 748-49 (1963)).

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“Although the Commission need not find facts on every issue raised by the evidence,

it is ‘required to make findings on crucial facts upon which the right to compensation

depends.’ ” Cardwell v. Jenkins Cleaners, Inc., 365 N.C. 1, 2-3, 704 S.E.2d 898, 899

(2011) (per curiam) (quoting Watts v. Borg Warner Auto., Inc., 171 N.C. App. 1, 5, 613

S.E.2d 715, 719 (emphasis added), aff’d per curiam, 360 N.C. 169, 622 S.E.2d 492

(2005)). “Where the findings are insufficient to enable the court to determine the

rights of the parties, the case must be remanded to the Commission for proper

findings of fact.” Watts, 171 N.C. App. at 5, 613 S.E.2d at 719 (quoting Lawton v.

County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987)).

Under the Workers’ Compensation Act, an injured employee who suffers some

degree of loss or permanent injury to a body part, as enumerated in N.C.G.S. § 97-

31,1 is entitled to collect permanent disability compensation for a “statutorily-

prescribed period of time . . . which begins when the healing period ends and runs for

the specific number of weeks set forth in the statute.” Knight v. Wal-Mart Stores,

Inc., 149 N.C. App. 1, 11, 562 S.E.2d 434, 442 (2002), aff’d per curiam, 357 N.C. 44,

577 S.E.2d 620 (2003); see also N.C.G.S. § 97-31 (2015). “[T]he healing period . . .

ends at the point when the injury has stabilized, referred to as the point of ‘maximum

1 N.C.G.S. § 97-31 lists a schedule of injuries and the rate and period of compensation
for each, and specifically indicates that: “In cases included by the following schedule the
compensation in each case shall be paid for disability during the healing period and in
addition the disability shall be deemed to continue for the period specified, and shall be in
lieu of all other compensation . . . .” N.C.G.S. § 97-31 (2015).

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medical improvement’. . . .” Knight, 149 N.C. App. at 12, 562 S.E.2d at 442 (citations

omitted).

At that point, a treating or evaluating physician typically assigns to the injured

employee a “permanent partial impairment rating,” which corresponds to the degree

of permanent impairment to the body part. See generally North Carolina Workers’

Compensation Law: A Practical Guide to Success at Every Stage of a Claim 167-68

(Valerie A. Johnson & Gina E. Cammarano eds., 3d ed. 2016) [hereinafter Workers’

Compensation Law]; see also N.C.G.S. § 97-31; N.C. Indus. Comm’n, N.C. Industrial

Commission Rating Guide sec. 1, http://www.ic.nc.gov/ncic/pages/ratinggd.htm

http://www.ic.nc.gov/ncic/pages/ratinggd.htm (last updated July 8, 2016) (last visited

June 3, 2017) [hereinafter Indus. Comm’n Rating Guide] (“Permanent physical

impairment is any anatomical or functional abnormality or loss after maximum

medical rehabilitation has been achieved and which abnormality or loss the physician

considers stable or non-progressive at the time the evaluation is made.”). This rating

often determines the benefits to which the injured employee is entitled. See generally

Workers’ Compensation Law 167-68; see also N.C.G.S. § 97-31; Indus. Comm’n Rating

Guide.

The N.C. Industrial Commission Rating Guide is an Industrial Commission

publication “made available to the physicians of the State of North Carolina” that is

intended to be used “as a guide and basic outline for physicians making rating

examinations of individuals who have had industrial injuries.” Indus. Comm’n

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Rating Guide sec. 2. In addition to the specific impairment descriptions provided in

the Guide for various body parts, the Guide recognizes that “in many cases there are

intangible factors which cannot be stereotyped but must be considered,” including but

not limited to “pain, weakness, and dexterity.” Id.

Additionally, an injured employee is eligible for compensation under N.C.G.S.

§ 97-31 “regardless of whether the employee has, in fact, suffered a loss of wage-

earning capacity,” because unlike all other types of disability benefits, “disability is

presumed from the fact of the injury itself.” Knight, 149 N.C. App. at 11, 562 S.E.2d

at 442 (citation omitted).

Thus, to receive benefits for permanent injury under N.C.G.S. § 97-31,

ordinarily, the plaintiff must establish that he or she has reached the point of

maximum medical improvement and has a permanent impairment. A showing of

maximum medical improvement indicates that the healing period has ended, and the

“permanent partial impairment rating” indicates the degree of permanent damage or

loss sustained to a body part.

Here the findings of fact are insufficient to enable this Court to determine the

plaintiff’s right to benefits under N.C.G.S. § 97-31. In Harrison I the Court of Appeals

remanded this case to the Commission, mandating that the Commission make

“additional findings of fact and conclusions of law on the issue of Plaintiff’s

entitlement to permanent partial impairment benefits under N.C. Gen. Stat. § 97-

31.” Harrison I, 2014 WL 2993853, at *11. Although the Commission bolstered its

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reasoning for assigning greater weight to the opinion of Dr. Gerber over that of Dr.

Rhyne regarding the permanent partial disability rating in Finding of Fact 23 of the

amended opinion and award, we conclude that the Commission has still failed to

address adequately whether plaintiff retains any permanent impairment

compensable under N.C.G.S. § 97-31.

The record here contains indications in medical records and treatment notes

that plaintiff’s injury may be permanent and ongoing. Various medical providers

entered these notes well past the date of Dr. Gerber’s 27 June 2001 medical

evaluation. The record contains, inter alia, the following: (1) in 2003 Dr. Rice

indicated that “at this juncture, [he] feel[s] [plaintiff] continues to have symptoms

from his injuries which need to be addressed through the VA”; (2) in 2004 an

evaluation from Carolina Complete Rehabilitation Center recommends therapy and

indicates that plaintiff has “decreased mobility of [the] cervical region” and “continues

to experience neck pain that increases with quick movements of [his] head and

forward bending[, with his pain] rated at 7/10 in the scale of 0-10”; (3) in 2006 a report

from Neurology Consultants of the Carolinas indicates that plaintiff “is a patient

[they] have been following for headaches, neck pain, and painful paresthesias on the

right upper extremity resulting from an accident at work,” that plaintiff has “a mild

disk bulge at the C6-77 level,” and that plaintiff “has already been treated for this

conservatively, but has not improved” so they will “refer him for a surgical opinion”;

(4) in 2009 a medical record by Dr. Rhyne indicates that plaintiff’s “MRI was

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conclusive for a mild broad-based disk bulge at C6-C7 without evidence of spinal

stenosis”; (5) in 2010 a progress note from the Fayetteville, North Carolina, Veterans

Affairs Medical Center indicates that a “multilevel cervical spondylosis [is] seen in

the lower cervical spine”; and (6) in 2012 Chiropractor Stogner’s visit note indicates

that “it is conclusive that [plaintiff] has some serious neck issues to consider,” that

“the combination of degenerative changes and ongoing restriction to movement . . .

suggest that the accident is the cause of his ongoing problems,” and that Chiropractor

Stogner does “not expect to see any significant improvement with [plaintiff’s] injury

status and [he] suspect[s] that [plaintiff’s] condition is permanent.”

Despite these indications, the amended opinion and award does not contain

adequate findings and conclusions on whether plaintiff has a permanent injury,

taking into account all pertinent evidence. Without such findings, we are unable to

review any determination regarding whether plaintiff is, in fact, entitled to benefits

for permanent partial impairment under N.C.G.S. § 97-31.

Additionally, we hold that the Commission must modify Finding of Fact 23 and

Conclusion of Law 6. Finding of Fact 23 either fails to adequately address the

necessary issue, Cardwell, 365 N.C. at 2-3, 704 S.E.2d at 899, or it contains a mere

recitation of the evidence rather than true findings. To the extent that the finding is

simply a recitation of the evidence, it does not constitute a finding of fact sufficient to

comply with the Act. See, e.g., N.C.G.S. § 97-84 (2015); Lane v. Am. Nat’l Can Co.,

181 N.C. App. 527, 531, 640 S.E.2d 732, 735 (2007) (“This Court has long held that

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findings of fact must be more than a mere summarization or recitation of the evidence

and the Commission must resolve the conflicting testimony.” (citations omitted)),

disc. rev. denied, 362 N.C. 236, 659 S.E.2d 735 (2008); Davis v. Weyerhaeuser Co., 132

N.C. App. 771, 776, 514 S.E.2d 91, 94 (1999) (“Although we ‘interpret the

Commission’s practice of reciting testimony to mean that it does find the recited

testimony to be a fact,’ Peoples v. Cone Mills Corp., 316 N.C. 426, 442 n.7, 342 S.E.2d

798, 808 n.7 (1986), it is the Commission’s duty to find the ultimate determinative

facts, not to merely recite evidentiary facts and the opinions of experts.”). Further,

the Commission must explain its finding of no permanent impairment, given the

nearly eight years of treatment between Dr. Gerber’s medical opinion in June 2001

and 18 May 2009, when the condition was found compensable (Findings of Fact 25

and 26).

We conclude that the Commission has failed to carry out the Court of Appeals’

mandate that it make additional findings of fact and conclusions of law on the issue

of plaintiff’s entitlement to benefits under N.C.G.S. § 97-31. For this reason, we

reverse the decision of the Court of Appeals and remand this matter to that court for

further remand to the Commission to comply with the 2014 mandate of the Court of

Appeals in Harrison I and enter a new opinion and award not inconsistent with this

opinion.

REVERSED AND REMANDED.

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