An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 25-537
Filed 18 March 2026
North Carolina Industrial Commission I.C. No. 20-033144
OBEDINA ACOSTA VALENZUELA, Employee, Plaintiff,
v.
DELHAIZE AMERICA, LLC d/b/a FOOD LION, LLC, Employer, SELF-INSURED (RETAIL BUSINESS SERVICES, LLC, Third Party Administrator), Defendant.
Appeal by plaintiff from opinion and award entered 7 February 2025 by the
Full Commission of the North Carolina Industrial Commission. Heard in the Court
of Appeals 15 January 2026.
Barba Law Firm, PLLC, by Milton E. Barba, for plaintiff-appellant.
Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, for defendant- appellee.
DILLON, Chief Judge.
Plaintiff Obedina Acosta Valenzuela appeals from opinion and award entered
on 7 February 2025 by the North Carolina Industrial Commission in which the
Commission concluded: (1) Plaintiff was not entitled to a comprehensive second
opinion evaluation pursuant to G.S. 97-25(b)–(c); (2) Plaintiff was not entitled to
temporary partial disability benefits for the ten weeks she worked reduced hours; (3) VALENZUELA V. DELHAIZE AM., LLC
Opinion of the Court
Plaintiff’s $600.00 fee to obtain her wage and employment records was not an undue
burden or expense; and (4) Plaintiff was not entitled to fees and costs under G.S. 97-
88.1 based on Defendant Food Lion, LLC’s defense of Plaintiff’s claim. For the
reasons below, we affirm.
I. Background
While working as a part-time Deli Bakery Associate for Defendant, Plaintiff
“hit [ ] the container that had the oil and the edge [ ] cut [ ] into [her] foot.” Plaintiff
sustained a laceration on her lower right leg (“compensable injury”). Plaintiff’s
compensable injury measured approximately five centimeters in length, two
centimeters in depth, and Betsy Johnson Hospital (“BJH”) sutured Plaintiff’s
laceration the day of the injury. BJH instructed Plaintiff to remain non-weight
bearing for the next three to five days. Five days later, on 21 August 2020, Plaintiff
returned to work with Defendant in the same role.
Following Plaintiff’s 16 August 2020 compensable injury, Plaintiff visited
various doctors and health care providers over the course of the next few months. On
a visit to Coats Medical Services two days after Plaintiff’s compensable injury, a Dr.
Breen did not assign Plaintiff any work restrictions.
In medical records dated 5 November 2020 through 19 December 2022,
Plaintiff did not complain about the compensable injury. On 20 December 2022, a
physical exam of Plaintiff’s lower right extremity presented normal.
Approximately two months following the December visit, on 18 February 2022,
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Plaintiff filed a Form 18 indicating she sustained an injury while working with
Defendant. On 21 June 2022, Plaintiff voluntarily resigned from Defendant. On 14
July 2022, Defendant filed a Form 60 accepting compensability for a 16 August 2020
compensable injury of a “right lower leg laceration.” In September 2022, Plaintiff
began working part-time at Carolina Coastal Community College (“CCCC”) as a
second language instructor.1
On 10 July 2023, Plaintiff underwent an independent medical examination
(“IME”) at the request of her Worker’s Compensation carrier with Brian Szura, MD,
at UNC Cary Orthopedics and Sports Medicine Specialists. Dr. Szura placed Plaintiff
at maximum medical improvement (“MMI”) for the compensable injury and provided
Plaintiff with a three percent permanent partial impairment (“PPI”) rating. Dr.
Szura did not assign work restrictions. The Commission awarded Plaintiff $940.86
for six weeks of compensation for the three percent PPI.
During the time Plaintiff worked part-time with Defendant, she also worked
full-time at McDonald’s. At the time Plaintiff voluntarily resigned with Defendant
she continued working full-time at McDonald’s.
II. Analysis
Plaintiff presents four arguments on appeal. We address each in turn.
1 Plaintiff testified she worked at a local bar and grille as well as a Cookout during the period
from when she left Defendant to when she started at CCCC. However, the Commission did not make findings regarding such employment, thus, it is omitted herein.
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A. General Statute 97-25(b)–(c)
Plaintiff argues the Commission erred by denying her request for a second
opinion examination pursuant to G.S. 97-25(b) because during the 2023 IME visit Dr.
Szura, he discussed “desensitization techniques,” and this discussion shows a second
opinion is reasonably necessary. We disagree and affirm the Commission’s
determination.
General Statute 97-25 “leaves the approval of a physician within the discretion
of the Commission, and its determination may only be reversed upon finding a
manifest abuse of discretion.” Franklin v. Broyhill Furniture Indus., 123 N.C. App.
200, 207–08 (1996) (citing White v. White, 312 N.C. 770, 777 (1985)). The North
Carolina legislature updated the statute in 2011 granting initial discretion to grant
or deny a second opinion evaluation to a worker’s employer.2 See N.C.G.S. 97-25(b)
(2023) (“[T]he employer may agree to authorize and pay for a second opinion
examination[.]”) (emphasis added).
Presently, General Statute 97-25(b) requires a written request from employee
to employer for employee to obtain a second opinion examination. Id. If within
fourteen days following the employee’s request, the employer denies the request, or
the employer and employee cannot agree on a health care provider to provide the
second opinion examination, the employee may then request the Commission to order
2 See An Act Protecting and Putting North Carolina Back to Work by Reforming the Workers’
Compensation Act, S.L. 2011-287, § 6, 2011 N.C. Sess. Laws, 1087, 1089.
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a second opinion examination. Id.
Here, the Commission denied Plaintiff’s request to supplement the record with
a July 2023 email from Plaintiff’s counsel to Defendant’s counsel regarding a second
opinion evaluation. The Commission declined to decide on Plaintiff’s second opinion
request because it found Plaintiff failed to put such request properly before the
deputy commissioner.
The Commission then stated even assuming Plaintiff properly put the second
opinion request before the Commission, the Commission found a lack of sufficient
evidence to establish that Plaintiff submitted a written request to Defendant, or that
Defendant denied a request, as required by G.S. 97-25(b). The Commission then
concluded “Plaintiff failed to show compliance with the parameters of [G.S.] 97-25(b)
to properly request a second opinion evaluation . . . the Commission concludes [ ]
Plaintiff has not shown sufficient or good grounds to order a second opinion
evaluation[.]”
We conclude the Commission did not abuse its discretion in denying Plaintiff’s
second opinion examination because there is no written request from employee to
employer or to Commission requesting such. Alternatively, we conclude the
Commission did not abuse its discretion in denying Plaintiff’s request for a second
opinion.
Related to Plaintiff’s G.S. 97-25(b) argument, Plaintiff contends the
Commission erred by denying Plaintiff’s request to change her treating physician
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under G.S. 97-25(c). We conclude the Commission did not err in denying Plaintiff’s
request based on its determination that Plaintiff failed to meet her burden that a
change in her physician could cure, provide relief, or lessen the compensable injury.
See N.C.G.S. § 97-25(c) (2023).
A change in a treating physician or treatment is subject to the Industrial
Commission’s approval and “the employee must show by a preponderance of the
evidence that the change is reasonably necessary to effect a cure, provide relief, or
lessen the period of disability.” Id. (Emphasis added).
Here, the Commission found Plaintiff did not raise the G.S. 97-25(c) issue
before the deputy commissioner and declined to render a decision on the issue.
Nonetheless, the Commission found “[b]ased on the preponderance of the evidence in
view of the entire record . . . Plaintiff has not shown, what, if any, additional
treatment for her right leg injury is needed.” Specifically, the Commission found
Plaintiff’s medical records devoid of any reference to a right leg injury from 5
November 2020 through 23 July 2023. The Commission found during the 10 July
2023 IME visit, Dr. Szura stated “[i]t is unlikely that further intervention will be of
a significant benefit” and he placed Plaintiff at MMI with a three percent PPI rating
for the compensable injury.
These findings are supported by record evidence. Plaintiff testified no medical
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provider assigned “work restrictions”3 since her initial 16 August 2020 visit to BJH.
Second, Plaintiff admitted that a 20 December 2022 exam of her right leg presented
normal. Third, Plaintiff’s testimony reflected her understanding that Dr. Szura did
not provide her work restrictions in July 2023. Fourth, Dr. Szura’s July 2023 IME
report confirmed no work restrictions for Plaintiff, she reached MMI, and “further
intervention” would be unlikely to improve Plaintiff’s situation.
Accordingly, the Commission determined Plaintiff “has not shown a change in
medical providers could effect a cure, provide relief, or lessen Plaintiff’s period of
disability – especially considering she also lacks permanent work restrictions.” Thus,
we conclude Plaintiff failed to show by a preponderance of the evidence that a
physician change was necessary and the Commission’s did not err in denying
Plaintiff’s alleged request to change medical provider(s) or treatment.
B. Disability Compensation
Plaintiff contends the Commission’s denial of temporary partial disability
(“TPD”) benefits under G.S. 97-29 for the ten weeks Plaintiff worked reduced hours
is error because she established a loss of wage-earning capacity. For the reasons
below, the Commission’s findings are supported by competent evidence, and it
properly concluded Plaintiff failed to present evidence supporting a diminished wage-
3 BJH told Plaintiff to remain non-weight bearing for three to five days which the Commission
did not categorize as a work restriction in its finding. However, during cross-examination of Plaintiff, Defendant’s counsel characterized these three to five days as a work restriction.
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earning capacity because of the compensable injury.
Appellate review of the Commission's opinion and award considers “whether
competent evidence supports the Commission's findings of fact and whether the
findings support the Commission's conclusions of law.” Richardson v. Maxim
Healthcare/Allegis Group, 362 N.C. 657, 660 (2008) (citation omitted). Our analysis
“goes no further than to determine whether the record contains any evidence tending
to support the finding.” Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433–34 (1965).
See Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 108 (2000) (citation omitted)
(“The determination of whether a disability exists is a conclusion of law that must be
based upon findings of fact supported by competent evidence.”). Conclusions of law
are reviewed de novo. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 68 (2000)
(citation omitted).
To support a conclusion of disability, the Commission must find three
elements:
(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that [plaintiff’s] incapacity to earn was caused by plaintiff’s injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595 (1982) (citation omitted).
The claimant bears the burden of proving the existence and extent of her
disability by meeting each of those three elements. Clark v. Wal-Mart, 360 N.C. 41,
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43 (2005) (citation omitted). A claimant may prove the first two elements of Hilliard
by any of the four methods in Russell v. Lowes Prod. Distrib.:
(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
108 N.C. App 762, 765 (1993) (cleaned up). These four methods are not an exhaustive
list, nor statutory, of how to establish the first two elements of Hilliard. Medlin v.
Weaver Cooke Constr., LLC, 367 N.C. 414, 422 (2014). As for the third element of
Hilliard, also known as the statutory causation element, a claimant proves such “by
proving that his inability to obtain equally well-paying work is because of his work-
related injury.” Id.; see also N.C.G.S. § 97-2(9) (2023) (defining disability as
“incapacity because of injury to earn the wages which the employee was receiving at
the time of injury in the same or any other employment[ ]”).
However, “the fact that an employee is capable of performing employment
tendered by the employer [post-injury] is not, as a matter of law, an indication of
plaintiff’s ability to earn wages.” Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 764
(1997) (citation omitted). A plaintiff’s ability to work in the same position must be
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considered in conjunction with whether the employer has modified the position to
accommodate the employee’s injury, and thus, whether such post-injury position
would be “ordinarily available in the competitive job market.” Peoples v. Cone Mills
Corp., 316 N.C. 426, 438 (1986). The true test is whether “the wage that would have
been paid in the open market under normal employment conditions [is being paid] to
[the employee] as injured.” Id. at 437. (Citation and emphasis omitted).
The Commission found Plaintiff returned to work with Defendant five days
after the compensable injury. This finding is supported by Plaintiff’s testimony and
Defendant’s Worker’s Compensation Initial Report. The Commission also found the
absence of any post-injury wage records indicating Plaintiff worked less hours or
earned less wages with Defendant following the compensable injury. Additionally,
following the compensable injury, the Commission found Plaintiff returned
to/continued her role at McDonald’s. Plaintiff also continued working for Defendant
for nearly a year after the compensable injury, until 22 June 2021. The Commission
found Plaintiff voluntarily resigned from her position at Defendant to find a better
job.4 The Commission based this finding on Plaintiff’s testimony, as well as the
testimony of Defendant’s store manager who stated, “[Plaintiff] quit because she got
4 Defendant does not label Plaintiff’s resignation as a voluntary refusal of suitable employment. But see White v. Weyerhaeuser Co., 167 N.C. App. 658, 665 (2005) (citation omitted) (stating when termination is voluntary and “employer meets its burden of showing that a plaintiff unjustifiably refused suitable employment, then the employee is not entitled to further benefits under . . . G.S. 97-30 [partial incapacity].” See also N.C.G.S. § 97-32 (2023). We do not consider this issue. N.C. R. App. P. 28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or argument is stated, will be taken as abandoned.”).
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full time at [McDonald’s] . . . we tried to get her to stay but we did not have a full time
opening at that time.”5
Here, Plaintiff cannot establish the third, statutory Hilliard element proving
she is earning less or suffers from a diminished wage capacity because of her
compensable injury. First, record evidence indicates Plaintiff is making more after
her work injury as compared to prior to the work injury. Second, the Commission’s
findings are supported by record evidence showing Plaintiff continued working with
Defendant and McDonald’s following the injury and there is no indication either
employer altered the position due to Plaintiff’s compensable injury. Third, Plaintiff
never received formal work restrictions, rather, Plaintiff’s only limitation was to
remain non-weight bearing for three to five days following the compensable injury.6
And while “[t]he fact that an employee is capable of performing employment
tendered by the employer [post-injury] is not, as a matter of law, an indication of
plaintiff’s ability to earn wages,” Saums, 346 N.C. at 764, here, Plaintiff did so in the
same position with no work restrictions. Therefore, the record evidence is competent
to support the Commission’s findings indicating Plaintiff is not entitled to TPD
because she cannot establish diminished wage-earning capacity because of the
5 The Commission recited Plaintiff’s testimony regarding her resignation with Defendant due
to pain. However, the Commission evidently did not find this testimony convincing. See Branham v. Panel Co., 223 N.C. 233, 236 (1943) (“The [Workmen’s Compensation Act] provides no compensation for physical pain or discomfort. It is limited to the loss of ability to earn.”). 6 See also Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 281 (2008) (reasoning in
part the lack of work restrictions following a compensable work injury supports a conclusion under the non-statutory Russell factors that a plaintiff is not disabled).
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compensable injury. As such, the Commission’s conclusion of law indicating “Plaintiff
has not presented sufficient evidence otherwise showing she suffered a reduced wage-
earning capacity . . . as a result of her [compensable injury]” is supported by the
findings.
C. Wage Record Request
Plaintiff argues Defendant’s request of her wage and employment records from
McDonald’s—Plaintiff’s other employer around the time her compensable injury
occurred—constituted an undue burden or expense because Plaintiff could not afford
her diabetes medicine and the wage and employment records request cost four times
Plaintiff’s compensation rate. We conclude the Commission did not abuse its
discretion in concluding this request was not an undue burden or expense.
Failure to produce a wage record as requested by an opposing party is a
discovery issue subject to abuse of discretion review. Midkiff v. Compton, 204 N.C.
App. 21, 24 (2010) (citation omitted); see also Stanback v. Stanback, 287 N.C. 448,
459 (1975). An abuse of discretion is present “where [the Commission’s] ruling is
manifestly unsupported by reason or is so arbitrary that it could not have been the
result of a reasoned decision.” Midkiff, 204 N.C. App. at 24 (citing State v. Hennis,
323 N.C. 279, 285 (1988)).
Plaintiff indicated it would have cost her $600.00 to obtain her wage records.
Plaintiff based this cost on a statement from “Christy Oswald” at McDonald’s who
told Plaintiff the cost would be $5.00/paystub for a total of around $600.00. Ms.
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Oswald’s statement is Plaintiff’s sole reference regarding the validity of the cost to
obtain the wage records. Plaintiff asserts she did not deny Defendant’s discovery
request to submit the wage records, rather, the cost of such effectively prohibited her
from complying with Defendant’s request. A special deputy commissioner ordered
Plaintiff to produce the wage records and Plaintiff thereafter requested a hearing to
prove her entitlement to disability benefits.
Rule 26(c) of the North Carolina Rules of Civil Procedure permit a party to seek
a protective order as a safeguard “from unreasonable annoyance, embarrassment,
oppression, or undue burden or expense[.]” N.C.G.S. § 1A-1, Rule 26(c). In
consideration of whether a request is an undue burden or expense a “trial court must
consider the specific discovery sought and the factual circumstances of the party from
whom discovery is sought.” In re Accutane Litigation, 233 N.C. App. 319, 323 (2014)
(citations omitted).
Here, the Commission found Defendant’s request of “Plaintiff’s post-injury
wage records from McDonald’s did not constitute an undue burden or expense given
the issues in this case[,]” nor that Plaintiff provided “sufficient evidence establishing
the cost to obtain her wage records from McDonald’s.” Further, the Commission
concluded such request did not constitute an undue burden or expense because
Plaintiff’s claim for TPD benefits “directly pertain[ed] to [Plaintiff’s] post-injury
wage-earning capacity, and any discovery request seeking records of [Plaintiff’s]
earnings after the injury is information necessary for litigation of [Plaintiff’s] claim[.]”
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This Court concludes the Commission did not abuse its discretion in concluding the
wage record expense of $600.00 did not constitute an undue burden or expense
because the Commission’s request of the wage records directly related to Plaintiff’s
claim for TPD benefits and Plaintiff did not present evidence beyond what a Ms.
Oswald stated regarding the cost to produce the wage records.
D. Defense of Claim
Plaintiff argues she is entitled to recover her attorney’s fees, contending
Defendant’s defense is unreasonable. See N.C.G.S. § 97-88.1 (2023). We conclude the
Commission did not abuse its discretion in denying Plaintiff attorney’s fees.
The Industrial Commission’s decision to award attorney’s fees is subject to an
abuse of discretion review. Taylor v. J.P. Stevens Co., 307 N.C. 392, 394 (1983); see
also N.C.G.S. § 97-88.1 (2023) (emphasis added) (“If the Industrial Commission shall
determine that any hearing has been brought . . . without reasonable ground, it may
assess . . . reasonable [attorney’s fees].”). “The decision whether to award or deny
attorney’s fees rests within the sound discretion of the Commission and will not be
overturned absent a showing that the decision was manifestly unsupported by
reason.” Thompson v. Fed. Express, 175 N.C. App. 564, 570 (2006) (emphasis added)
(citation omitted). The test is whether the litigation is reasonable as opposed to being
“stubborn, unfounded litigiousness[.]” Sparks v. Mountain Breeze Rest. & Fish House,
Inc., 55 N.C. App. 663, 664 (1982). A reasonable defense is one grounded in “sound
legal principles” whereas stubborn or unfounded litigation has been characterized as
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an insurer appealing to harass “an economically feeble employee[.]” Taylor, 307 N.C.
at 398.
Here, Plaintiff does not point at a specific aspect of Defendant’s defense as
unreasonable. Rather, Plaintiff recites a timeline of her claim against Defendant,
raises the three arguments above, and realleges the facts surrounding Plaintiff’s exit
from Defendant. The Commission concluded “Plaintiff has not shown that
Defendant’s defense of this claim was without reasonable grounds. Accordingly,
Plaintiff is not entitled to attorney[’s] fees and costs.” Based on these findings and
conclusions, the Commission did not abuse its discretion because Defendant’s defense
of each claim rested on good faith arguments. See West v. Hoyle’s Tire & Axle, LLC,
277 N.C. App. 196, 204 (2021).
III. Conclusion
This Court affirms the Commission’s decision and award.
AFFIRMED.
Judges HAMPSON and MURRY concur.
Report per Rule 30(e).
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