Peeler v. Piedmont Elastic, Inc.

514 S.E.2d 108, 132 N.C. App. 713, 1999 N.C. App. LEXIS 266
CourtCourt of Appeals of North Carolina
DecidedApril 6, 1999
DocketNo. 98-672
StatusPublished
Cited by4 cases

This text of 514 S.E.2d 108 (Peeler v. Piedmont Elastic, Inc.) 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
Peeler v. Piedmont Elastic, Inc., 514 S.E.2d 108, 132 N.C. App. 713, 1999 N.C. App. LEXIS 266 (N.C. Ct. App. 1999).

Opinion

LEWIS, Judge.

On 4 January 1995, plaintiff sustained an injury by accident to her back while working for defendant Piedmont Elastic, Inc. Plaintiff underwent two back surgeries for this compensable injury, the first on 13 June 1995 and the second on 15 February 1996. On 13 July 1995, approximately one month after the first surgery, plaintiff was hospitalized for pneumonia. At issue in this case is the extent of pulmonary treatments for which defendants must pay as a result of the pulmonary problems plaintiff has experienced since her first surgery.

Plaintiff has been a heavy smoker for many years and has had numerous bouts with bronchitis; her first surgery was postponed for two weeks to allow her to recover from one such illness. Her family physician, Dr. Rudisill, treated plaintiff both before and after her first surgery for various ailments, including continued back pain and more pulmonary problems. Plaintiff saw Dr. Rudisill on 4 July 1995, and he diagnosed her as having asthmatic bronchitis and sinusitis. Shortly thereafter, plaintiffs surgeon, Dr. McCloskey, requested that a pul-monologist, Dr. Owens, see plaintiff. On 13 July 1995, plaintiff was admitted to Frye Regional Medical Center by Dr. Owens for treatment for pneumonia. Plaintiff remained in the hospital until 17 July 1995 when she was discharged by Dr. Pollock, an associate of Dr. Owens and also a pulmonologist. Plaintiff has continued to experience breathing difficulty and bouts of bronchitis.

Plaintiff filed a Form 33 requesting a hearing regarding payment for the pneumonia medications on 28 July 1995. In August of 1995, Drs. McCloskey and Pollack each tendered letters to plaintiffs attorney indicating that plaintiffs pneumonia was a result of the anesthesia involved in her first back surgery. On 22 August, defendants filed a Form 33R contending that the pneumonia treatments were unrelated to the original compensable injury. By letter dated 24 August 1995, the Industrial Commission ordered defendants to pay for the pneumonia treatment; defendants’ motion for reconsideration of this order was denied on 19 September 1995.

At a hearing before the deputy commissioner on 27 June 1996, plaintiff and her husband testified, and depositions of Drs. Rudisill, Pollock, Owens, and McCloskey were received as evidence. The deputy commissioner ordered that “[defendants shall provide and pay for all treatment of the employee’s pulmonary problems after the June 13, 1995, surgery, including treatment by Dr. Rudisill, Dr. [715]*715Pollock, [and] Dr. Owens.” Defendants were ordered to pay $700.00 in áttorney’s fees as well as costs due the Commission for their failure to comply with the Commission’s order of 24 August 1995.

Defendants’ appeal was heard by the Full Commission on 18 August 1997. The Full Commission affirmed the award of the deputy commissioner, and found the following facts which are the subject of this appeal:

4. Dr. Elbert Rudisill, a Hickory family practitioner, has been the employee’s family doctor since before 1981. Before the employee’s June 3, 1995, back surgery, the employee did not have any chronic pulmonary problems. Since the June 13, 1995, back surgery, the employee has had recurrent pulmonary infections which are still ongoing.
5. Dr. Rudisill saw the employee: 7/4/95, 8/26/95, 9/18/95, 9/21/95, 10/10/95, 1/4/96, 1/16/96, 2/1/96, 4/2/96, 6/3/97 [sic], 6/25/96, 6/28/96, 7/9/96, 7/13/96, and 7/30/96. That was more times than any of the other treating physicians. Dr. Rudisill became concerned that while the Hickory pulmonologist [sic] were telling the employee she was cured that [sic] he could readily detect ongoing pulmonary problems.
6. Dr. Rudisill is reasonably certain that the employee’s June 13, 1995, back surgery caused an ongoing recurrent pulmonary infectious process.
7. Dr. Scott McCloskey, the employee’s neurosurgeon, Dr. Joseph Pollock and Dr. Fred Owens believe at least the pneumonia, bronchitis and sinusitis after the June 1995 back surgery were in part caused or aggravated by the surgery. Anesthesia during surgery is a well-known risk factor in the development or aggravation of pulmonary problems. In the employee’s situation, her June 13, 1995 surgery had been postponed because of that risk.
8. While some of the doctors felt the employee’s pulmonary problems caused by the June 13, 1995, surgery had ended after the employee’s July 13, 1995-July 17, 1995, Frye Regional Medical Center hospitalization for pulmonary complications, the undersigned believes Dr. Rudisill is correct, and that surgery-caused pulmonary problems have continued.
9. The employee properly applied to the Commission for approval of the pulmonary expenses. By letter/order dated [716]*716August 24, 1995, the Industrial Commission ordered Defendants to cover the pneumonia treatment. Defendants did not appeal from that order and have continuously refused to comply.

Based on these findings of fact, the Full Commission made the following conclusions of law:

1. One of the causes of the employee’s continuing pulmonary problems of pneumonia, bronchitis and sinusitis was her June 13, 1995, back surgery for the injury at work and the Defendants shall provide treatment. G.S. §97-25.
2. The Defendants have continuously refused to comply with the Commission’s August 24, 1995, order to provide treatment without filing an appeal and they shall be sanctioned pursuant to G.S. §97-88.1.

The Defendants were ordered to pay for “all treatment of the employee’s pulmonary problems after the June 13, 1995, surgery,” and to pay $700.00 directly to plaintiff’s attorney as a reasonable attorney fee.

Defendants appeal and argue four assignments of error. In our review of an Industrial Commission opinion and award, we determine whether the findings of fact are supported by any competent evidence and whether the findings of fact so supported justify the conclusions of law drawn therefrom. See Snead v. Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331, 334, 499 S.E.2d 470, 472, cert. denied, 348 N.C. 501, 510 S.E.2d 656 (1998). “The Commission’s conclusions of law, however, are reviewable de novo.” Id. at 335, 499 S.E.2d at 472. The findings of fact of the Full Commission are binding if supported by any competent evidence. See Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). In this case, we are mindful that “implicit in the authority accorded the Commission to order additional compensation under G.S. § 97-47 and further medical treatment under G.S. § 97-25 is the requirement that the supplemental compensation and future treatment be directly related to the original compensable injury.” Pittman v. Thomas & Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286 (emphasis omitted), disc. rev. denied, 343 N.C. 513, 472 S.E.2d 18 (1996). See also Errante v. Cumberland County Solid Waste Mgmt., 106 N.C. App. 114, 121, 415 S.E.2d 583

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Bluebook (online)
514 S.E.2d 108, 132 N.C. App. 713, 1999 N.C. App. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peeler-v-piedmont-elastic-inc-ncctapp-1999.