An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-312 NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
DAVID J. SPAIN, Employee, Plaintiff,
v. North Carolina Industrial Commission DAVID J. SPAIN d/b/a SPAIN'S I.C. No. W28283 MOBILE HOME MOVERS, Employer, COMPANION PROPERTY & CASUALTY GROUP, Carrier, Defendants.
Appeal by plaintiff and defendants from opinion and award
entered 28 October 2013 by the North Carolina Industrial
Commission. Heard in the Court of Appeals 28 August 2014.
Mast, Mast, Johnson, Wells & Trimyer P.A., by Charles D. Mast, for plaintiff.
Hedrick, Gardner, Kincheloe & Garofalo, LLP, by M. Duane Jones, Matthew J. Carrier, and Tracie H. Brisson, for defendants.
GEER, Judge.
Both plaintiff David J. Spain and defendants David J. Spain
d/b/a Spain's Mobile Home Movers and Companion Property & -2- Casualty Group appeal from an opinion and award of the
Industrial Commission terminating plaintiff's temporary total
disability benefits for his right arm injury by accident, but
ordering defendants to authorize and pay for further medical
treatment of plaintiff's right arm injury.
On appeal, plaintiff primarily argues that the Commission
misapplied the test set forth in Lanning v. Fieldcrest-Cannon,
Inc., 352 N.C. 98, 107, 530 S.E.2d 54, 61 (2000), for
determining whether a claimant's ownership of a business
supports a finding that he has earning capacity such that he is
not totally disabled. However, because there is competent
evidence to support the Commission's findings that plaintiff has
demonstrated wage earning capacity through his active
involvement and the skills he obtained in the running of an auto
repair shop and those findings support the Commission's
conclusion that plaintiff was no longer totally disabled, we
affirm the termination of benefits.
Defendants argue that the Commission erred in awarding
further medical treatment for plaintiff's right arm complaints
and, specifically, for ordering defendants to authorize and pay
for plaintiff to undergo a psychiatric evaluation. We hold that
the Commission properly applied the presumption set out in
Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 -3- (1997), and found that plaintiff's current complaints are
related to plaintiff's original compensable injury, requiring
defendants to pay for additional treatment of plaintiff's right
arm symptoms, including a psychiatric evaluation related to
plaintiff's right arm paralysis.
Facts
At the time of the hearing before the deputy commissioner,
plaintiff was 30 years old. Plaintiff dropped out of high
school in the tenth grade and later completed his GED. Prior to
working for defendant-employer, plaintiff had worked as a truck
driver, mobile home maintenance worker, and tree remover. In
2006, plaintiff was employed by his father, defendant-employer
David J. Spain d/b/a Spain's Mobile Home Movers, who was in the
business of transporting and setting up mobile homes.
Plaintiff's work was very physical in that it involved, among
other things, crawling under trailers and lifting up to about
200 pounds.
On 21 November 2006, plaintiff was using an auger machine
to drill an anchor into the ground. While holding on to the
auger machine with his right hand, plaintiff accidentally
drilled into an underground power line and sustained an electric
shock injury. Plaintiff was taken to the emergency department
of Beaufort County Hospital where he complained of right upper -4- extremity numbness. On 28 November 2006, defendant-employer
filed a Form 19 reporting plaintiff's injury.
Following the injury, plaintiff consistently reported to
medical providers that he was unable to move his right upper
extremity and was numb below his right elbow. Plaintiff came
under the care of Dr. J. Gregg Hardy, a neurologist, whom he
initially saw in the emergency room at Pitt County Memorial
Hospital on 27 November 2006. After seeing plaintiff on 6
February 2007, Dr. Hardy noted that although proximal muscles of
plaintiff's right arm had recovered, plaintiff still reported
being unable to move his right hand. Dr. Hardy believed that
"there is a probable psychiatric component to this" and ordered
a Minnesota Multiphasic Personality Inventory ("MMPI") test for
plaintiff.
On 21 March 2007, Dr. Hardy noted that plaintiff was able
to move his right wrist, but reported that he was unable to curl
or straighten the fingers of his right hand. The MMPI results
suggested to Dr. Hardy that plaintiff may have a somatoform
disorder, which is a psychological condition. A patient with a
somatoform disorder unconsciously focuses on physical symptoms
and perceives them as more significant than they actually are.
Plaintiff underwent a cervical MRI on 28 March 2007 that showed
minimal cervical spondylosis with right eccentric disc bulge at -5- C5-6 and mild multilevel uncovertebral joint spurring and no
evidence of neural impingement or cord deformity.
On 8 May 2007, plaintiff saw Dr. Robert C. Frere, a
neurologist, who noted that there was no objective evidence of a
lower neuron injury that would account for plaintiff's right
hand paralysis. Dr. Frere ordered a brain MRI which showed no
acute intracranial abnormality. Dr. Frere referred plaintiff
for physical and occupational therapy, but plaintiff, after
undergoing therapy, reported on 8 November 2007 no change in his
distal right arm weakness. Dr. Frere believed that plaintiff's
persistent right upper extremity condition was related to a
somatoform disorder and that the original electrical injury more
likely than not contributed to plaintiff's psychological
condition.
On 8 February 2008, plaintiff presented to Dr. Stuart Busby
at the UNC Neurology Clinic, complaining about his right arm and
about severe headaches that he had three to four times a week
beginning after his injury. On 4 April 2008, Dr. Busby noted
that the headaches and paralysis of plaintiff's right arm were
probably related to his injury, but concluded that plaintiff had
no determinable neurological impairment.
On 9 March 2009, plaintiff saw Dr. Ann Nunez, a
physiatrist, who performed a functional capacity evaluation -6- ("FCE") of plaintiff. Dr. Nunez concluded that plaintiff could
work at a sedentary capacity and exert up to 10 pounds of force
occasionally. On 16 March 2009, Dr. Nunez recommended that
plaintiff return to work. She also noted that none of the
medical providers had made any physiological findings that could
explain plaintiff's continuing inability to move his right upper
extremity and recommended a psychiatric evaluation.
On 22 June 2009, defendants filed a Form 60 admitting
compensability for plaintiff's injury to his right arm. The
form stated that disability resulting from the injury began on
22 November 2006 and that compensation commenced on 29 November
2006.
In February 2010 defendants began providing plaintiff with
vocational rehabilitation from Richard Cowan. In July 2010,
plaintiff took an online insurance course but did not pass the
exam. In June 2011, plaintiff enrolled in an EKG Monitor
Technician course, which he successfully completed, but then did
not obtain a job in that field.
In January 2011, plaintiff and his wife opened Wharton
Station Tire and Auto Care, a business providing auto and truck
servicing. Plaintiff obtained an inspection mechanic license
and on 4 March 2011, the North Carolina DMV issued Wharton
Station an "Official Inspection Station Certificate." Plaintiff -7- and his wife reported that Wharton Station had a net profit of
$22,131.00 for 2011 which constituted the entirety of their
reported income for that year. On 23 May 2011 and 8 December
2011, plaintiff executed Form 90s that stated: "I do not know
what your definition of work is, but I do hang around Wharton
Station Tire & Auto Care during the day and may occasionally try
to do something helpful."
On 22 December 2011, defendants filed a Form 24 application
to terminate or suspend payment of compensation pursuant to N.C.
Gen. Stat. § 97-18.1. The form stated that "[p]laintiff made
false and/or misleading statements on an executed and signed
Form 90. Plaintiff is not disabled from suitable employment as
a result of his accident on November 21, 2006." Defendants
filed a Form 33 Request for Hearing dated 28 December 2011. On
8 February 2012 Special Deputy Commissioner Jennifer S. Boyer
entered an administrative decision and order stating that she
was unable to reach a decision on the Form 24 Application
following an informal hearing.
Following a full evidentiary hearing on 26 July 2012,
Deputy Commissioner Robert J. Harris entered an opinion and
award on 7 March 2013. The deputy commissioner concluded that
because plaintiff is actively involved in the daily operation of
Wharton Station and has shown that he has wage-earning capacity -8- in the competitive market, plaintiff was no longer totally
disabled and defendants were entitled to terminate payment of
temporary total disability compensation. To the extent
plaintiff could show that he remained partially disabled, the
deputy commissioner found that plaintiff was no longer entitled
to partial disability compensation because the 300-week period
from the date of plaintiff's injury had passed. The deputy
commissioner further concluded that defendants failed to rebut
the presumption that further medical treatment for plaintiff's
right upper extremity condition was directly related to his
original compensable injury, and ordered defendants to authorize
and pay for future medical treatment, including a psychiatric
evaluation of plaintiff. Both parties appealed to the Full
Commission.
On 26 August 2013, plaintiff filed a Notice of Change of
Condition and Motion to Reinstate Compensation, or In the
Alternative, Motion for New Evidence, asserting that Wharton
Station closed on 30 March 2013 because it was operating at a
loss. The Commission entered an opinion and award on 28 October
2013 in which it denied plaintiff's motion and affirmed the
deputy commissioner's opinion and award. With respect to
plaintiff's 26 August 2013 motion, the Commission specified that
"[a]ny further issues in this claim related to any period after -9- 11 December 2012[, the date the record was closed,] may be
raised by either side through the filing of a new Form 33
Request That Claim be Assigned For Hearing." Both parties
timely appealed to this Court.
Discussion
"The scope of this Court's review of an Industrial
Commission decision is limited 'to reviewing whether any
competent evidence supports the Commission's findings of fact
and whether the findings of fact support the Commission's
conclusions of law.'" Wooten v. Newcon Transp., Inc., 178 N.C.
App. 698, 701, 632 S.E.2d 525, 528 (2006) (quoting Deese v.
Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553
(2000)). Findings of fact made by the Commission "are
conclusive on appeal if supported by competent evidence,
notwithstanding evidence that might support a contrary finding."
Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d
860, 862 (2002). "The Commission's conclusions of law are
subject to de novo review." Id.
Plaintiff's Appeal
Plaintiff argues that the Commission erred in determining
that he is no longer totally disabled and that defendants are
entitled to terminate payment of temporary total disability
compensation. "Disability" is defined as "incapacity because of -10- injury to earn the wages which the employee was receiving at the
time of injury in the same or any other employment." N.C. Gen.
Stat. § 97-2(9) (2013). "When an employee suffers a 'diminution
of the power or capacity to earn,' . . . he or she is entitled
to benefits under N.C.G.S. § 97-30" for partial disability.
Gupton v. Builders Transp., 320 N.C. 38, 42, 357 S.E.2d 674, 678
(1987) (quoting Branham v. Panel Co., 223 N.C. 233, 237, 25
S.E.2d 865, 868 (1943)). However, "[w]hen the power or capacity
to earn is totally obliterated, he or she is entitled to
benefits under N.C.G.S. § 97-29" for total disability. Id.
With respect to partial disability benefits, plaintiff is
subject to the provisions of N.C. Gen. Stat. § 97-30 (2009),
which limits the total amount of partial disability compensation
to 300 weeks from the date of injury. Because in this case, the
300-week period from the date of injury has passed, plaintiff is
no longer entitled to partial disability benefits under N.C.
Gen. Stat. § 97-30. Therefore, the issue in this case is solely
whether plaintiff's earning capacity was "totally obliterated"
such that he remains totally disabled. Gupton, 320 N.C. at 42,
357 S.E.2d at 678.
Here, the Commission based its denial of total disability
benefits on its application of the test set forth by our Supreme
Court in Lanning. The Lanning test is used to determine whether -11- a claimant's ownership of a business supports a finding of
earning capacity:
[T]he test for determining whether the self- employed injured employee has wage-earning capacity is that the employee (i) be actively involved in the day to day operation of the business and (ii) utilize skills which would enable the employee to be employable in the competitive market place notwithstanding the employee's physical limitations, age, education and experience. In the instant case, given plaintiff's exertional limitations, education, and experience, would he be hired to work in the competitive market place?
352 N.C. at 107, 530 S.E.2d at 61. Whether the two prongs of
this test are met "are questions of fact." Id. at 108, 530
S.E.2d at 61. In this case, the Commission determined that both
the requirements of the Lanning test were met.
With respect to the first prong, the Commission found that
Wharton Station's website states that it "is run by" plaintiff
and his wife. Several of the Commission's findings suggest that
plaintiff was physically present at Wharton Station on a regular
basis. Specifically, the Commission found that defendants
conducted 48 hours of surveillance on plaintiff in July, October
and November of 2011, in which plaintiff was observed
interacting with people and driving vehicles around the property
of Wharton Station; that on 23 May 2011 and 8 December 2011,
plaintiff executed Form 90s stating that he "hang[s] around -12- Wharton Station Tire & Auto Care during the day and may
occasionally try to do something helpful"; and that plaintiff's
wife testified that plaintiff "provides her with husbandly
support, and she likes having him there at Wharton Station,
especially after dark."
With respect to the business operations at Wharton Station,
the Commission found:
53. Wharton Station has hired auto mechanics, who perform the actual physical mechanic's work for the business.
54. On 4 March 2011, NC DMV issued Wharton Station an "Official Inspection Station Certificate", with plaintiff designated as the licensed inspector working at the location. In order to obtain this license, plaintiff took and passed a class to be an inspection mechanic.
. . . .
63. As plaintiff testified, he has handled tire orders for Wharton Station. He has also logged in the codes for North Carolina vehicle inspections, although the mechanic performs the inspections themselves. He has also met with customers.
65. As of the hearing before the Deputy Commissioner, plaintiff and his wife had not paid any wages or salaries to themselves from Wharton Station, but they had used the Wharton Station bank account for their personal expenses, including, but not limited to, mortgage payments on their residence. -13- 66. Although North Carolina inspections account for only a very small percentage of the revenues for Wharton Station, the sign in front of the business prominently lists "N.C. Inspection" as a draw. As plaintiff's wife testified, although the inspections themselves do not bring in much revenue, she wanted to offer them.
Plaintiff argues that because he did not physically work on
the motor vehicles, and there is no evidence that he instructed
the mechanics on what to do, the facts of this case are
analogous to the facts in Hunter v. Apac/Barrus Constr. Co., 188
N.C. App. 723, 656 S.E.2d 652 (2008). In Hunter, the
plaintiff's son took over the physical labor involved in the
daily operation of the family farm after the plaintiff was
injured. Id. at 730, 656 S.E.2d at 656. This Court upheld the
Commission's finding that the plaintiff was not involved in the
day-to-day operations of the farm, noting that although evidence
in the record showed that the plaintiff co-signed loans,
purchased equipment, and signed grower agreements, "the
Commission was entitled to credit plaintiff's evidence that
plaintiff signed the documents only because of [his son's] age
and lack of credit history and that the documents did not
reflect actual involvement in the day-to-day operations of the
farm." Id. This Court emphasized that "'[i]n weighing the
evidence, the Commission is the sole judge of the credibility of -14- the witnesses and the weight to be given to their testimony, and
may reject a witness' testimony entirely if warranted by
disbelief of that witness.'" Id. at 731, 656 S.E.2d at 657
(quoting Lineback v. Wake Cnty. Bd. of Comm'rs, 126 N.C. App.
678, 680, 486 S.E.2d 252, 254 (1997)).
Similarly, here, the Commission was entitled to weigh the
credibility of plaintiff's testimony that he was only minimally
involved in the operation of Wharton Station and determine
whether his duties reflected actual involvement in the daily
operations of the business. In this case, the Commission chose
to place more weight on the representations plaintiff made on
his website that he and his wife ran Wharton Station, the
evidence that plaintiff was physically present at Wharton
Station, and the tasks plaintiff himself admitted to performing
for the business than to plaintiff's assertion that he merely
"hangs out" at Wharton Station or his wife's assertion that he
merely provides "husbandly support." We hold that the
Commission's finding that plaintiff was involved in the day-to-
day operations of Wharton Station is supported by competent
evidence and, therefore, is binding on appeal.
With respect to the second Lanning prong, the uncontested
findings above establish that plaintiff is licensed to be an
inspection mechanic and gained experience at Wharton Station -15- meeting with customers, handling tire orders, and logging in
codes for vehicle inspections. The Commission additionally
found that plaintiff "has the knowledge to work on motor
vehicles" and "has good knowledge about tires." Although
plaintiff points to evidence in the record that plaintiff "comes
and goes as he feels" and that his presence at Wharton Station
was primarily "a marriage support thing" as showing that
plaintiff did not utilize any skills at Wharton Station, this
argument merely amounts to a request that we reweigh the
evidence, which this Court cannot do.
Because the Commission's findings regarding the skills
plaintiff utilized at Wharton Station are supported by competent
evidence, they are binding on appeal. These findings, in turn,
support the Commission's conclusion that the "management,
customer service and other skills he has utilized in the
operation of that business, when considered in conjunction with
his young age, his educational level, and his work experience
(particularly in working with and around motor vehicles), show
that he has wage earning capacity in the competitive market,
even in light of his ongoing compensable condition in his non-
dominant right upper extremity."
Plaintiff next argues, citing Devlin v. Apple Gold, Inc.,
153 N.C. App. 442, 570 S.E.2d 257 (2002), that even if there is -16- evidence to support both prongs of the Lanning test, the
Commission has not made sufficient findings to determine
plaintiff's actual wage-earning capacity in the competitive
market. In Devlin, the Commission concluded that the plaintiff
failed to meet his burden of showing a continuing disability
based upon its findings that the plaintiff had wage earning
capacity from his gutter cleaning business. Id. at 446, 570
S.E.2d at 261. This Court reversed and remanded for further
findings of fact because the Commission failed to make findings
regarding the second prong of the Lanning test and failed to
make findings to determine the plaintiff's actual wage-earning
capacity. Id. at 448, 570 S.E.2d at 262.
Here, in contrast to Devlin, the Commission made sufficient
findings regarding the second Lanning prong. Further, because
plaintiff is no longer entitled to partial disability benefits
under N.C. Gen. Stat. § 97-30, it is not necessary for the
Commission to determine plaintiff's actual wage-earning
capacity. A finding that plaintiff has any wage earning
capacity is sufficient to preclude plaintiff from compensation
under N.C. Gen. Stat. § 97-29, which is only available "[i]f
wage-earning power is totally obliterated[.]" Devlin, 153 N.C.
App. at 447, 570 S.E.2d at 261. Because, in this case, the
Commission found that plaintiff retained wage earning capacity, -17- we hold that the Commission did not err in denying plaintiff
total disability benefits.
Finally, plaintiff argues that the Commission erred in
denying his Notice of Change of Condition and Motion to
Reinstate Compensation, or In the Alternative, Motion for New
Evidence. On appeal from a ruling of the deputy commissioner,
the Full Commission may reconsider evidence, receive new
evidence, and rehear the parties or their representatives if
they have good ground to do so. N.C. Gen. Stat. § 97-85(a)
(2013). Whether good ground exists to receive additional
evidence is within the sound discretion of the Commission.
Lynch v. M. B. Kahn Constr. Co., 41 N.C. App. 127, 131, 254
S.E.2d 236, 238 (1979). Accordingly, we review the Commission's
denial of plaintiff's motion for abuse of discretion.
In support of his motion, plaintiff argued that the closing
of Wharton Station on 30 March 2013 amounted to a change in
condition that impacted plaintiff's earning capacity.
Plaintiff, however, did not file his motion until 26 August 2013
-- after both parties had submitted their briefs and made oral
arguments to the Full Commission. Although the Commission
denied plaintiff's motion, it nevertheless ordered that "[a]ny
further issues in this claim related to any period after 11
December 2012 may be raised by either side through the filing of -18- a new Form 33 Request That Claim Be Assigned For Hearing."
Thus, plaintiff is not precluded from seeking further relief.
Given the timing of the motion and the fact that in order
to adequately address the issues raised by plaintiff's motion,
both parties will need to submit additional evidence and
arguments, it was reasonable for the Commission to wait to
address this issue on a record that is more fully developed.
We, therefore, hold that the Commission did not abuse its
discretion in denying plaintiff's motion.
Defendant's Appeal
medical treatment for plaintiff's right arm complaints and,
specifically, for ordering defendants to authorize and pay for
plaintiff to undergo a psychiatric evaluation. We disagree.
N.C. Gen. Stat. § 97-25 (2013) requires employers to
authorize and pay for medical treatment that is directly related
to the claimant's compensable injury. Parsons, 126 N.C. App. at
541-42, 485 S.E.2d at 869. Although the plaintiff bears the
initial burden of showing that an injury is compensable, once a
plaintiff's injury has been proven to be compensable, there is a
presumption that additional medical treatment is directly
related to the compensable injury, and the burden shifts to
defendants "to prove the original finding of compensable injury -19- is unrelated to [the claimant's] present discomfort." Id. at
542, 485 S.E.2d at 869.
"This presumption, sometimes called the Parsons
presumption, helps to ensure that an employee is not required to
reprove causation each time he seeks treatment for an injury
already determined to be compensable." Taylor v.
Bridgestone/Firestone, 157 N.C. App. 453, 458, 579 S.E.2d 413,
416, reversed on other grounds sub nom. Taylor v.
Bridgestone/Firestone, 357 N.C. 565, 598 S.E.2d 379 (2003). In
Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 136, 620
S.E.2d 288, 293 (2005), this Court held that the Parsons
presumption applies when, as in this case, an employer has filed
a Form 60 admitting compensability of the injury.
With respect to the additional medical treatment for
plaintiff's injury, the Commission concluded:
1. As defendants accepted plaintiff's "electrical shock and injury to right arm" as compensable on a Form 60, plaintiff is entitled to a rebuttable presumption that further medical treatment for his right upper extremity condition is directly related to his original compensable injury. While the medical providers have arrived at the conclusion that a physiological basis for plaintiff's continuing right upper extremity paralysis and numbness cannot be identified through currently available diagnostic testing, they are unable to say what is causing the continuing condition, other than a psychiatric condition. As to whether a possible psychiatric condition is -20- causally related to the compensable injury, the evidence as a whole does not establish that it is not related. Therefore, based upon the preponderance of the evidence in view of the entire record, defendants have not rebutted the presumption, and plaintiff is thus entitled to further medical compensation for his compensable right arm injury. Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288 (2005); Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997). It is notable that defendants did not file their Form 60 until well after they had ample medical evidence at their disposal that the providers could not identify any physiological cause for plaintiff's continuing right upper extremity paralysis and numbness.
Defendants argue that the Commission applied an incorrect
legal standard in reaching its conclusion that defendants failed
to rebut the Parsons presumption. Defendants, citing Rule 301
of the Rules of Evidence, assert that the presumption places on
defendants only a burden of production of "evidence that the
medical treatment is not directly related to the compensable
injury[,]" Perez, 174 N.C. App. at 135, 620 S.E.2d at 292, and
does not shift the ultimate burden of proof of causation to
defendants. Defendants argue that because they presented "ample
medical evidence" that plaintiff's current symptoms are not
related to his original compensable injury, they met their
burden of production and rebutted the presumption.
We first note that defendants rely solely on the Rules of
Evidence in arguing that the presumption only creates a burden -21- of production and does not shift the burden of proof. However,
this Court has recognized that "[i]n workers' compensation cases
. . . the Rules of Evidence do not apply, and the Commission is
empowered to make its own rules . . . ." Fennell v. N.C. Dep't
of Crime Control & Pub. Safety, 145 N.C. App. 584, 594, 551
S.E.2d 486, 493 (2001).
This Court in Parsons specifically held that the Commission
erred "by placing the burden on plaintiff to prove causation"
because "[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." 126 N.C. App. at 542, 485 S.E.2d at 869.
See also Gross v. Gene Bennett Co., 209 N.C. App. 349, 351, 703
S.E.2d 915, 917 (2011) (holding when Parsons presumption
applies, "the burden of proof is shifted from the plaintiff to
the defendant"). It is not until the defendant "rebuts the
Parsons presumption [that] the burden of proof shifts back to
the plaintiff." Miller v. Mission Hosp., Inc., ___ N.C. App.
___, ___, 760 S.E.2d 31, 35 (2014).
Furthermore, although "[t]he employer may rebut the
presumption with evidence that the medical treatment is not
directly related to the compensable injury[,]" Perez, 174 N.C. -22- App. at 135, 620 S.E.2d at 292, presenting such evidence does
not automatically rebut the presumption. In McLeod v. Wal-Mart
Stores, Inc., 208 N.C. App. 555, 560, 703 S.E.2d 471, 475
(2010), this Court upheld the Commission's conclusion that the
defendants failed to rebut the presumption that the plaintiff's
back pain was directly related to his compensable back injury
despite the defendants having presented expert medical testimony
that the plaintiff's back strain from his original injury had
resolved and his current pain resulted from other pre-existing
conditions that the plaintiff had prior to his injury.
This Court explained:
Even assuming arguendo that [the doctor's] testimony regarding plaintiff's preexisting condition, if found to be credible and given sufficient weight, was enough to rebut the Parsons presumption, [t]he [F]ull Commission is the sole judge of the weight and credibility of the evidence. This Court is not at liberty to reweigh the evidence and to set aside the findings simply because other conclusions might have been reached.
Id. at 560, 703 S.E.2d at 475 (internal citation and quotation
marks omitted). Thus, even where defendants present some
medical evidence to support their position, it is the
Commission's duty, not ours, to weigh the evidence and determine
whether the evidence presented is sufficient to rebut the
presumption and shift the burden back to the plaintiff. -23- In any event, the medical evidence defendants point to as
tending to rebut the presumption in this case amounts to an
attempt by defendants to relitigate the compensability of
plaintiff's original injury. The Commission's findings tend to
show that the experts could not identify any physiological
explanation for plaintiff's right arm paralysis and numbness
following his electric shock injury. Several of the experts
did, however, identify a potential psychological etiology for
plaintiff's arm condition and recommended that plaintiff undergo
a psychiatric evaluation.
Although defendants point to the inability to identify a
physiological explanation for plaintiff's arm condition as
evidence that his condition was not caused by the 2006 shock
injury, defendants ignore the fact that they were well aware of
the lack of a physiological explanation for plaintiff's symptoms
and the possible psychological explanation by June 2009 when
they filed the Form 60 admitting compensability for plaintiff's
symptoms. Thus, the Form 60 determined that plaintiff's right
arm paralysis was directly related to the 2006 injury regardless
whether the etiology of the paralysis was psychological or
neurological. It was unnecessary for the Commission to
determine "whether a possible psychiatric condition is causally
related to the compensable injury" because by admitting -24- compensability for plaintiff's arm condition knowing that it was
possibly caused by a psychological condition, defendants
implicitly admitted that any psychiatric condition causing
plaintiff's symptoms was also causally related to plaintiff's
injury.
Defendants repeat the same contentions in arguing that the
Commission erred in ordering defendants to provide a psychiatric
evaluation because "there has been no prior decision as to the
existence or compensability of a mental condition[.]"
Defendants reason that because the Parsons presumption is narrow
and limited to the "very injury" previously determined to be
compensable, Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869,
the presumption does not apply with respect to a psychiatric
evaluation, and plaintiff bears the burden of showing "by the
preponderance of the evidence that he suffers from such a mental
condition that resulted directly and proximately from the 2006
electrical shock injury."
However, as explained in Perez, "[t]he presumption of
compensability applies to future symptoms allegedly related to
the original compensable injury." 174 N.C. App. at 137 n.1, 620
S.E.2d at 293 n.1 (emphasis added). Defendants have not cited
any authority that the presumption does not apply if the cause
of a symptom, already determined to be directly related to a -25- compensable injury, is psychological rather than physiological.
Plaintiff's symptoms -- paralysis and numbness of his right arm
-- have not materially changed since defendants filed their Form
60. Here, the Commission ordered a psychiatric evaluation as
medical treatment addressing plaintiff's arm paralysis, not as
treatment for a separate mental condition.
This result is not inconsistent with Clark v. Sanger
Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293 (2005), cited by
defendants. There, the plaintiff suffered an admittedly
compensable injury to her back, and the Commission ordered
defendants to provide all medical treatment arising from her
injury, "including subsequent falls resulting from her back
injury causing dental problems and a knee injury." Id. at 78,
623 S.E.2d at 295. Two years later, the plaintiff requested
medical compensation for degenerative arthritis in her knees.
This Court concluded that the Commission properly declined to
apply the Parsons presumption to medical treatment for the
arthritis and held that plaintiff's degenerative arthritis was
not compensable. Id. at 79, 623 S.E.2d at 296. This Court
explained that, unlike in Parsons, where "the plaintiff was
suffering from the exact same complaint (headaches) for which
she was initially awarded medical expenses and future medical
treatment[,]" in Clark, the "plaintiff [was] suffering from -26- degenerative arthritis, while at the time of the initial award
plaintiff suffered a compensable knee injury caused by falls
related to her compensable injury by accident." Id.
Finally, defendants contend that the Commission erred in
refusing to award a credit to defendants for compensation
payments made after the filing of the Form 24 application to
terminate compensation. When an employer files a Form 24
application to terminate compensation, "the employee's
compensation shall continue pending a decision by the
Commission[.]" N.C. Gen. Stat. § 97-18.1(d) (2013). Rule
404(8) of the Workers' Compensation Rules of the North Carolina
Industrial Commission provides that after a full hearing, the
Commission may award retroactive termination of compensation and
that an employer may seek a credit pursuant to N.C. Gen. Stat. §
97-42 (2013). The decision whether to grant a credit is within
the sound discretion of the Commission and will not be reversed
on appeal absent abuse of discretion. Cross v. Falk Integrated
Techs., Inc., 190 N.C. App. 274, 286, 661 S.E.2d 249, 257
(2008).
In this case, the Commission denied defendants' request for
a credit based upon the following:
5. In the Pre-Trial Agreement, defendants listed as an issue "Whether [d]efendants are owed a credit for overpayment of TTD to plaintiff after his -27- disability ended?" However, defendants made no argument for any such credit in their Contentions or proposed Opinion and Award to the Deputy Commissioner, and this issue was thus deemed abandoned and was not ruled upon by the Deputy Commissioner. Based on defendants' failure to argue for any such credit in their Contentions or proposed Opinion and Award to the Deputy Commissioner, the Commission, in its discretion, declines to grant defendants a credit for any overpayment of TTD to plaintiff. N.C. Gen. Stat. § 97-42.
On appeal, defendants make no argument that the Commission erred
in deeming their request for a credit abandoned, nor do they
make any argument that denial of a credit for this reason
amounted to an abuse of discretion. We, therefore, affirm.
Affirmed.
Judge STEELMAN concurs.
Judge ROBERT N. HUNTER, JR. concurred in this opinion prior
to 6 September 2014.
Report per Rule 30(e).