Thompson v. Federal Express Ground

623 S.E.2d 811, 175 N.C. App. 564, 2006 N.C. App. LEXIS 184
CourtCourt of Appeals of North Carolina
DecidedJanuary 17, 2006
DocketNo. COA05-34.
StatusPublished
Cited by10 cases

This text of 623 S.E.2d 811 (Thompson v. Federal Express Ground) 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
Thompson v. Federal Express Ground, 623 S.E.2d 811, 175 N.C. App. 564, 2006 N.C. App. LEXIS 184 (N.C. Ct. App. 2006).

Opinion

STEELMAN, Judge.

Plaintiff, Anita Thompson, appeals an opinion and award concluding that defendant-carrier, Crawford and Company, was not required to pay for certain medical treatments plaintiff obtained from an unauthorized physician. For the reasons discussed herein, we affirm the determination of the Industrial Commission.

At the time of plaintiff's hearing before the Industrial Commission, she was fifty-eight years old. She had a BA in business administration and an MA in education. Plaintiff was hired by defendant-employer, Federal Express Ground, as a manager in training. Upon successful completion of her training, plaintiff would have been a terminal manager. Shortly after she was hired, plaintiff suffered a compensable injury by accident on 16 December 2000 while removing luggage from her car. At the time of her injury, plaintiff's average weekly wage was $1,076.00. This entitled her to compensation at the rate of $558.00, which she continues to receive for temporary total disability.

Following the plaintiff's injury, she initially went to Hillandale Medical Center for treatment, but was later referred to Triangle Orthopedic Associates and saw Dr. Raphael Orenstein, who became her treating physician. Dr. Orenstein's notes reflect plaintiff complained of pain in her neck and lower back. He recommended conservative treatment, including therapy, medication, and chiropractic care. Plaintiff was permitted to return to work with modified duty restrictions. She was not to lift anything greater than ten pounds or do any repetitive bending or twisting. Upon her return to Dr. Orenstein, plaintiff reported her pain was worse and involved her entire body. Plaintiff also reported pain when driving and requested a restriction of no driving. Dr. Orenstein continued plaintiff on modified work restrictions. Despite an MRI scan, the doctor was unable to determine the source of plaintiff's pain. When plaintiff did not respond to the treatment, Dr. Orenstein recommended she attend an interdisciplinary pain program geared toward changing a patient's attitude toward pain. In response to this recommendation, plaintiff underwent a psychological evaluation by Dr. Scott Sanitate on 11 April 2001. Dr. Sanitate found no physical cause for plaintiff's pain and determined her symptoms were not consistent with the described injury. He opined that plaintiff's pain was *813psychological. He concluded plaintiff had reached maximum medical improvement, was able to return to work, and her condition did not warrant an impairment rating. The only treatment Dr. Sanitate recommended was a limited course of chiropractic treatment. Based on Dr. Sanitate's report, defendants did not authorize plaintiff to participate in the interdisciplinary pain program.

At this time, plaintiff requested a referral for a second opinion with an osteopath. Dr. Orenstein felt this was unnecessary. He felt that since plaintiff had not experienced any relief from chiropractic treatment, it was unlikely she would experience any additional relief from an osteopath. Despite Dr. Orenstein's refusal to refer plaintiff, she found an osteopath via the Internet, and commencing 24 April 2001, received treatment from Dr. Thomas Motyka, an osteopathic consultant at UNC hospitals. Although Dr. Orenstein disagreed with Dr. Motyka's diagnosis of fibromyalgia, he later stated that in his opinion Dr. Motyka's treatment from 24 April 2001 through 26 June 2001 was not necessarily inconsistent with the type of chiropractic treatment he recommended and was reasonable and necessary. However, as of 26 June 2001, Dr. Orenstein did not recommended any further chiropractic or osteopathic treatment. Although plaintiff received treatment from Dr. Motyka starting 24 April 2001, she did not request approval from the Industrial Commission until she filed a motion on 15 May 2002.

Defendants refused to pay for Dr. Motyka's treatment. Plaintiff filed a Form 33 asserting she was not receiving disability benefits. The Full Commission (Commission) filed an Opinion and Award on 1 September 2004 awarding plaintiff temporary total disability at the weekly rate of $588.00 and instructing defendants to pay for all medical expenses plaintiff had incurred or would incur as a result of her compensable injury, including expenses associated with Dr. Motyka's treatment for the limited period from 24 April 2001 through 26 June 2001. The Commission further ordered that neither Dr. Motyka nor Dr. Orenstein were approved as plaintiff's treating physicians. Finally, the Commission determined that defendants' defense against plaintiff's medical claims was reasonable and not based on stubborn, unfounded litigiousness. As a result, it held plaintiff was not entitled to attorney's fees pursuant to N.C. Gen.Stat. § 97-88.1. Plaintiff appeals.

Our review of an award by the Industrial Commission is limited to: (1) whether there was competent evidence before the Commission to support its findings; and (2) whether such findings support its legal conclusions. Lewis v. Orkand Corp., 147 N.C.App. 742, 744, 556 S.E.2d 685, 687 (2001). Findings of fact from an opinion and award of the Commission, if supported, are deemed conclusive, even if there is evidence that would support findings to the contrary. Id. On appeal, this Court does not have the authority to weigh the evidence or make determinations of credibility, rather our duty goes no further than to determine whether the record contains any evidence tending to support the Commission's findings. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citations omitted).

In plaintiff's first argument, she contends the Commission erred in concluding that defendants were not responsible for expenses incurred for her treatment by Dr. Motyka because defendant-carrier had no right to direct any medical care she obtained before the date it accepted the claim pursuant to N.C. Gen.Stat. § 97-25, nor was she required to seek approval from the Commission to change Dr. Motyka as her treating physician. We disagree.

Generally, an employer has the right to direct the medical treatment for a compensable work injury. Kanipe v. Lane Upholstery, 141 N.C.App. 620, 623-24, 540 S.E.2d 785, 788 (2000). Even so, an employer's right to direct medical treatment, which necessarily includes the right to select the treating physician, only arises once the employer accepts the claim as compensable. Id. at 624, 540 S.E.2d at 788.

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Bluebook (online)
623 S.E.2d 811, 175 N.C. App. 564, 2006 N.C. App. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-federal-express-ground-ncctapp-2006.