Sharpe v. Rex Healthcare

633 S.E.2d 702, 179 N.C. App. 365, 2006 N.C. App. LEXIS 1912
CourtCourt of Appeals of North Carolina
DecidedSeptember 5, 2006
DocketCOA05-1010
StatusPublished
Cited by5 cases

This text of 633 S.E.2d 702 (Sharpe v. Rex Healthcare) 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
Sharpe v. Rex Healthcare, 633 S.E.2d 702, 179 N.C. App. 365, 2006 N.C. App. LEXIS 1912 (N.C. Ct. App. 2006).

Opinions

TYSON, Judge.

Daphne Sharpe (“plaintiff’) appeals from the North Carolina Industrial Commission’s opinion and award (“the Commission”) denying her claim for further compensation and medical benefits under the North Carolina Workers’ Compensation Act. We affirm.

I. Background

On 20 June 1998, plaintiff was employed by Rex Healthcare (“Rex”) as a certified nursing assistant. Plaintiff injured her back while lifting a patient from the floor. Plaintiff’s original claim for benefits was accepted by defendants’ filing a Form 60 on 23 July 1998. Plaintiff was initially treated by Dr. Douglas Hammer (“Dr. Hammer”) at Rex. Dr. Hammer recommended physical therapy and referred plaintiff to Dr. Scott Sanitate (“Dr. Sanitate”), who administered epidural injections. Plaintiff was also referred to Dr. James Fulghum (“Dr. Fulghum”), who performed surgery on an herniated disc in plaintiff’s spine on 16 December 1998. Dr. Fulghum released plaintiff during late April or early May 1999, and indicated she had reached maximum medical improvement and had sustained a 10% permanent partial rating. Dr. Fulghum also restricted plaintiff’s work, limiting lifting. Plaintiff was advised to refrain from frequent twisting or bending. A Form 28 Return to Work Report was approved by defendants and filed with the Commission on 27 July 1998.

Plaintiff accepted a job at the pediatric unit at Rex Hospital. Plaintiff greeted family members and screened and monitored children during the day. Rex Hospital staff were aware of plaintiff’s lifting restrictions and provided her assistance when needed. Plaintiff’s work attendance was not consistent. Plaintiff last day at work at Rex Hospital was 2 August 1999. On 10 August 1999, plaintiff’s husband called Rex Hospital and stated she would not attend work. Rex Hospital terminated plaintiff. Following this termination, plaintiff remained unemployed.

On 31 August 2001, the Commission concluded plaintiff had refused suitable employment and was not entitled to further compensation until her refusal to work ceased.

[368]*368In 2001, plaintiff continued treatment with her personal physician, Dr. Hand, while also under the care of Drs. Fulghum and Sanitate. Dr. Hand recommended plaintiff see Dr. William Deans (“Dr. Deans”), a board certified neurologist, for pain management. Dr. Deans opined plaintiffs recurrent disc herniation was an exacerbation of her condition and increased pain. Dr. Deans referred plaintiff to another neurosurgeon, Dr. Lucas Martinez (“Dr. Martinez”).

Dr. Martinez performed a second surgery on plaintiffs back on 15 November 2002. Plaintiff testified that she “got a little relief” from this surgery. Plaintiff never contacted Rex or their insurance carrier, Allied Claims, for authorization for the treatment rendered either by Dr. Hand or Dr. Deans, or approval for the surgeries by Dr. Martinez during 2001 and 2002.

Rex filed a Form 28B on 13 April 2000 stating the “last compensation check was forwarded” on 17 May 1999, and the “last medical compensation was paid” on 24 January 2001.

Plaintiff filed a Form 33 on 3 October 2002 requesting a new hearing. Plaintiff claimed defendants refused to pay temporary total disability benefits. Defendants filed a Form 33R and responded that “[p]laintiff has never requested temporary total disability compensation since an Opinion and Award filed on August 31, 2001 was filed denying her claim for temporary total disability benefits.”

On 17 June 2004, Deputy Commissioner Baddour entered an opinion and award finding plaintiff failed to show her unjustified refusal to return to work had ceased, and concluded she was not entitled to any further compensation or medical expenses. On 12 April 2005, the Full Commission affirmed Deputy Commissioner Baddour’s findings:

1. Defendant-carrier mailed plaintiffs final indemnity check on or about May 17, 1999. Defendant-carrier filed a Form 28B on or about April 13, 2000,- followed by a revised Form 28B that was filed on or about November 16, 2001. Both the first Form 28B and the second Form 28B indicate that the last compensation check was forwarded to plaintiff on May 17, 1999.
2. Defendant-carrier made the final payment for authorized medical expenses on or about January 4, 2001, as indicated on the revised Form 28B.
3. On August 31, 2001, the Full Commission filed an Opinion and Award in this matter that contained the following Conclusion of [369]*369Law: “Plaintiff refused employment procured for her suitable to her capacity; therefore, plaintiff is not entitled to compensation under the provisions of the North Carolina Workers’ Compensation Act until such refusal ceases. N.C. Gen. Stat. § 97-32.” The Full Commission’s Opinion and Award contained the following Order: “Under the law, plaintiff’s claim for workers’ compensation benefits must be, and the same is hereby suspended.”
4. Plaintiff did not appeal the Full Commission’s Opinion and Award filed on August 31, 2001.
5. Following the filing of the Full Commission’s Opinion and Award on August 31, 2001, plaintiff never approached the defendant-employer regarding returning to work.
6. Plaintiff failed to show that her unjustified refusal to return to work has ceased.
8. Plaintiff did not claim any other benefits on the Form 33 filed October 3, 2002. Specifically, plaintiff checked the box indicating a claim for “payment of compensation for days missed” and did not check the box indicating a claim for “payment of medical expenses/treatment.”
9. On or about April 24, 2003, plaintiff asserted, for the first time, a claim for payment of past unauthorized medical expenses and a claim for payment of future médical expenses. These claims were raised as issues in the pretrial agreement for the hearing on April 24, 2003 before the undersigned.
10. Plaintiff has never requested a change of treating physician and has not sought approval and payment of unauthorized medical expenses within a reasonable time.
11. Plaintiff failed to make a claim for a change of condition within two years of defendants’ last payment of indemnity compensation.
12. Plaintiff failed to file a Form 18M, or otherwise make a claim for additional medical compensation within two years of defendants’ last payment of medical or indemnity compensation.
The Full Commission concluded:
1. The Full Commission’s Opinion and Award filed on August 31, 2001 is conclusive and binding. Because plaintiff failed to show [370]*370that her unjustified refusal to return to work has ceased, plaintiff is not entitled to payment of any additional compensation, including temporary total disability compensation or an impairment rating. N.C. Gen. Stat. §§ 97-86; 97-2(11).
2. Plaintiff failed to request approval of unauthorized medical expenses within a reasonable time. N.C. Gen. Stat. § 97-25.
3. Plaintiff failed to make a claim for a change of condition within two years of defendants’ last payment of indemnity compensation. Accordingly, plaintiff’s claim for additional indemnity compensation based upon a change of condition is time barred. N.C. Gen. Stat. § 97-47.

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Sharpe v. Rex Healthcare
633 S.E.2d 702 (Court of Appeals of North Carolina, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
633 S.E.2d 702, 179 N.C. App. 365, 2006 N.C. App. LEXIS 1912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharpe-v-rex-healthcare-ncctapp-2006.