Braswell v. Pitt County Memorial Hospital

415 S.E.2d 86, 106 N.C. App. 1, 1992 N.C. App. LEXIS 349
CourtCourt of Appeals of North Carolina
DecidedApril 7, 1992
Docket9110IC426
StatusPublished
Cited by12 cases

This text of 415 S.E.2d 86 (Braswell v. Pitt County Memorial Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braswell v. Pitt County Memorial Hospital, 415 S.E.2d 86, 106 N.C. App. 1, 1992 N.C. App. LEXIS 349 (N.C. Ct. App. 1992).

Opinions

WALKER, Judge.

The pertinent portion of G.S. 97-25 provides:

Medical compensation shall be provided by the employer. In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital, or other treatment, the Industrial Commission may order such further treatments as may in the discretion of the Commission be necessary.
The Commission may at any time upon the request of an employee order a change of treatment and designate other treatment suggested by the injured employee subject to the approval of the Commission, and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance.
[I]f he so desires, an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.

[5]*5Under this statute plaintiff may choose her own physician provided she obtains the approval of the Commission within a reasonable time after such procurement, and the treatment sought is to effect a cure or provide rehabilitation. Lucas v. Thomas Built Buses, 88 N.C.App. 587, 364 S.E.2d 147 (1988). Approval is not necessary prior to her seeking assistance from another physician. Schofield v. The Great Atlantic and Pacific Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980). The first question which must be answered under the statute, then, is whether such approval was sought within a reasonable time. Forrest v. Pitt County Board of Education, 100 N.C.App. 119, 394 S.E.2d 659 (1990), aff’d, 328 N.C. 327, 401 S.E.2d 366 (1991). The Commission must make findings bearing upon this issue for, “[i]f a plaintiff seeks approval of the physician within a reasonable time, if the Commission approves a plaintiffs choice and if the treatment sought is to effectuate a cure or rehabilitation, then the employer has a statutory duty under [G.S.] 97-25 to pay for the treatment.” Id. at 126, 394 S.E.2d at 663; See also, Hudson v. Mastercraft Div., Collins & Aikman Corp., 86 N.C.App. 411, 358 S.E.2d 134, disc, review denied, 320 N.C. 792, 361 S.E.2d 77 (1987).

In the case sub judice the Industrial Commission found:

8. Although as of 4 July 1987 plaintiff possessed the-capacity to return to her normal work which she was performing prior to the time of her on-the-job injury, she made no effort to return to work. In fact, she chose to seek unauthorized medical treatment by a doctor of her own choosing. Unfortunately, his ultimate choice of treatment was inappropriate. Surgery should not have been performed. It did not effect a cure, give relief, of [sic] lessen her disability. Furthermore, the surgery was not authorized by the defendant or the Industrial Commission, and there was no emergency involved.
Any disability which plaintiff suffered after she was released from treatment to return to her normal work as of 4 July 1987 was not the result of her on-the-job injury, but, at least in part, was the result of unauthorized treatment, particularly the surgery by Dr. Miller. Such treatment did not lessen her period of disability but instead lengthened the. period of disability. In fact, her condition worsened after the surgery and, thus, did not either effect a cure or give relief or lessen her period of disability.

[6]*6The Commission failed to make any preliminary requisite findings of whether plaintiff sought approval by the Commission for treatment by Dr. Miller- within a reasonable time after procuring his assistance. Instead, the Commission’s holding that plaintiff was not entitled to have the defendant pay for any expenses incurred under Dr. Miller was based upon the second prong of the statute, that the treatment did not effect a cure, give relief or lessen the period of plaintiff’s disability. With this analysis we cannot agree.

In Forrest v. Pitt County Board of Education, supra, plaintiff was employed as a cafeteria manager when she fell and injured her back in the cafeteria freezer at one of defendant’s public schools. She sought medical assistance from Dr. Boone who subsequently performed surgery and treated her with medications and physical therapy. Plaintiff continued to experience pain in her back and leg, however. The Deputy Commissioner concluded as a matter of law that plaintiff was not entitled to have the expenses incurred while under Dr. Boone’s care paid pursuant to the provisions of the Workers’ Compensation Act because she had chosen to see Dr. Boone on her own. The Full Commission affirmed noting that there was no evidence the surgery performed was in the nature of an emergency or otherwise authorized. This Court stressed that although the Full Commission stated there was no evidence “that the surgery was authorized, . . . [t]here [were] no findings of fact . . . indicating whether approval for any of Dr. Boone’s treatment of plaintiff was sought within a reasonable time. Id. at 126, 394 S.E.2d at 663. (Emphasis in original). It was noted:

If Dr. Boone was an acceptable choice for a treating physician and the request before the Commission was made in a reasonable time, the next issue to be determined would be whether the services performed effected a cure or rehabilitation. If so, the fees should be paid. We find no findings of fact or conclusions of law addressing these issues as required by the statute.

Id. at 127, 394 S.E.2d at 664. Consequently, this Court vacated the portion of the Full Commission’s opinion and award dealing with this issue and remanded with directions that “the Commission . . . mold its findings of fact and conclusions of law to conform to the statute.” Id. at 128, 394 S.E.2d at 664.

Although the limited findings by the Commission in Forrest suggested it misconstrued the law to require approval prior to the surgical procedure, that case emphasizes the Commission’s duty [7]*7to make findings of fact in accordance with the statute. Insofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue. Upon a finding that the request was made within a reasonable time, the Commission must make a determination of whether approval by the Commission was granted or denied, in light of the Commission’s apparent inaction on plaintiff’s motion. Although the Commission stated in its Finding of Fact No. 8 that the surgery was not authorized, it must make findings of fact with regard to whether approval for any of Dr. Miller’s treatment was sought within a reasonable time. The Commission’s conclusion that “[plaintiff is not entitled to have the defendant pay for any of the treatment rendered by Dr.

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Braswell v. Pitt County Memorial Hospital
415 S.E.2d 86 (Court of Appeals of North Carolina, 1992)

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Bluebook (online)
415 S.E.2d 86, 106 N.C. App. 1, 1992 N.C. App. LEXIS 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braswell-v-pitt-county-memorial-hospital-ncctapp-1992.