Lee v. Center

The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Dollar and the briefs and arguments of the parties. The appealing party has not shown good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the Opinion and Award.

2. Defendant was a duly qualified self-insured, with Key Risk Management Services as the servicing agent.

3. The employee-employer relationship existed between the parties at all relevant times.

4. Plaintiff sustained an admittedly compensable back injury on November 2, 1991, as a result of which the parties entered into a Form 21 Agreement. Plaintiff has received benefits pursuant to the Form 21 from the date of the injury until she returned to work on July 19, 1993. Plaintiff last worked on August 27, 1993, after which she received additional temporary total disability compensation under a Form 26 Supplemental Agreement.

5. Plaintiffs average weekly wage was $206.25, which yields a compensation rate of $137.50 per week.

6. The issues for determination are:

a. Whether plaintiffs compensation should be terminated for failure to comply with the independent medical evaluation as ordered by the Commission on May 27, 1998, and

b. Whether plaintiff is authorized to change her treating physician to Dr. David Mackel?

7. Judicial Notice is taken of the Opinion and Award of Deputy Commissioner Bost, which was filed on April 10, 1997, the Opinion and Award of the Full Commission filed on January 21, 1998, and the Orders which are contained in the Commission file.

2. After receiving the Full Commission Opinion and Award, adjuster Lynn Key assigned the claim to a vocational specialist to assist with returning plaintiff to work suitable to her capacity.

3. Jane Veal, a vocational specialist with Concentra Managed Care, recommended that plaintiffs current medical restrictions be obtained.

4. Ms. Key contacted Joanne Johnson, medical case manager for plaintiffs claim, to schedule an appointment with Dr. Chapman. However, as Dr. Chapman was on medical leave, he was not available to see plaintiff. Ms. Key then authorized plaintiff to see Dr. Mark Hartman, who was in practice with Dr. Chapman at Miller Clinic.

5. Ms. Johnson scheduled plaintiff to be evaluated by Dr. Hartman on March 23, 1998 at Miller Clinic in Charlotte. Plaintiff failed to attend this appointment, telling Ms. Johnson that she was unable to attend the appointment due to transportation problems.

6. Plaintiff sought unauthorized medical treatment from her family doctor, Dr. Steven Crane. As early as November 2, 1993, plaintiff and her attorney had been advised by defendant that care by Dr. Crane was unauthorized. Nevertheless, plaintiff continued to treat with Dr. Crane who eventually referred her to Dr. David Mackel, an orthopedist in Hendersonville. Plaintiffs counsel contacted Ms. Key in early 1998 to request that defendant authorize Dr. Mackel as the treating physician. Ms. Key advised plaintiffs counsel that this would not be authorized.

7. Defendant filed a motion with the Commission seeking an order to compel plaintiffs attendance at an evaluation by Dr. Hartman. On May 25, 1998, plaintiffs counsel filed a motion with the Commission seeking to change plaintiffs treating physician to Dr. David Mackel. The Executive Secretary did not rule on this motion separately. By Order filed May 27, 1998, the Commission directed the plaintiff to attend a subsequent examination by Dr. Hartman and directed the plaintiff to submit information to the Commission regarding any transportation difficulties. The request for a change of physician to Dr. Mackel was not granted.

8. Plaintiff did not file any information with the Commission pursuant to the May 27, 1998 Order to indicate or explain any transportation difficulties.

9. Ms. Johnson rescheduled plaintiff to see Dr. Hartman on June 22, 1998. Nevertheless, plaintiff again failed to attend this appointment.

10. Plaintiffs refusal to attend the medical examination on June 22, 1998, as Ordered by the Commission was unjustified.

2. Plaintiff is entitled to have defendant pay for all reasonably necessary medical expenses incurred or to be incurred as a result of the compensable injury as may be required to provide relief, effect a cure or lessen the period of disability. However, plaintiff is not entitled to have the defendant pay for unauthorized medical treatment. N.C. Gen. Stat. 97-2(19) 97-25.

2. Plaintiffs right to temporary total disability compensation is hereby SUSPENDED from June 22, 1998 and continuing until she ceases her refusal and complies with the Commission Order of May 27, 1998 to submit to an examination at the Miller Orthopedic Clinic.

3. Plaintiff shall fully cooperate with medical and vocational treatment.

4. Defendant shall pay all authorized medical expenses reasonably necessary and incurred or to be incurred which tend to effect a cure, provide relief or lessen the period of disability when bills for the same have been approved in accordance with Commission procedure.

5. Defendant shall pay the costs.

This the ___ day of October 2000.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

DCS/bjp

I dissent. The majority by their Opinion and Award have permitted this self-insured employer and its servicing agent to ignore an earlier Opinion and Award of the Full Commission, have permitted the defendants to cease payment of disability payments without a prior order of the Industrial Commission, have required this injured worker to travel six hours per trip from Hendersonville to Charlotte to see defendants chosen physicians when medical treatment could have been provided much closer to where the injured worker lives, have refused the injured workers reasonable request to treat with a physician closer to her home, have refused to sanction the defendants for their failure to provide medical attention ordered pursuant to N.C. Gen. Stat. 97-25, have penalized this injured worker because she rightfully insisted on travel expenses for her round trip from Hendersonville to Charlotte and back, and to add insult to injury have ordered the injured worker to cooperate with defendants so-called medical and vocational treatment although the same were transparently set up by the defendants so they could wrongfully get out of their obligation to abide by the Full Commissions prior Opinion and Award in this matter. I direct attention to the Plaintiffs Counsels able brief in this matter which lays it all out much better than I.

The Workers Compensation Act in North Carolina is an embodiment of the General Assemblys intent to "compel industry to take care of its own wreckage. Hyler v. G.T.E. Products Co., 333 N.C. 258 at 268,426 S.E.2d 698, 704 (1993). "The Workers Compensation Act is to be construed liberally, and benefits are not to be denied upon technical, narrow or strict interpretation of its provisions. Matthews v.Charlotte-Mecklenburg Hospital, 132 N.C. App. 11, 21, 510 S.E.2d 388, 395, dis. rev, den. 350 N.C. 834, ___ S.E.2d ___ (1999); Dayal v.Provident Life, 71 N.C. App. 131, 132, 321 S.E.2d 452, 453 (1984).

This 7th day of December 2000.

S/_____________ THOMAS J. BOLCH COMMISSIONER