Bennett v. Progressive Furniture Company

I respectfully dissent. The majority opinion is convincingly written based on findings that: (1) plaintiff needed to find another doctor because he could not see the authorized doctor, Dr. Rhyne, and (2) defendants did not present evidence to show that plaintiff was employable. These suggestions were contained in plaintiff's brief and/or in oral argument to the Full Commission. The record, however, does not support these and other findings by the majority.

The essential question presented is whether the Commission will decide issues of suitability of employment and continuing disability based on objective results of a functional capacity evaluation (FCE) or the subjective beliefs of physicians who were without the benefit of the FCE results (and whose opinions were not relevant to the issues in any event). Absent reason to question an FCE, it should be accepted as the test and measure of physical capacity following injury. This is particularly true in the instant case because there is no evidence that the UPS/shipping job was not within plaintiff's abilities. The competent evidence requires a finding and conclusion that the employment was suitable and that plaintiff is not entitled to continuing indemnity benefits.

(1) "Plaintiff could not see Dr. Rhyne"

As background, plaintiff's claim is based on a motor vehicle incident on April 2, 1998. Although multiple injuries were noted from the accident, during the period of relevant inquiry, the complaints centered on the lumbar spine and lower extremity. Plaintiff was treated by his family doctor, who referred plaintiff to John de Perczel, M.D. A lumbar MRI was performed on April 23, 1998, revealing mild desiccation at L4-5 and L5-S1 with mild disc bulges. No evidence of disc herniation, spinal stenosis, or other cause for radicular symptoms were noted from this examination. Plaintiff also had a myelogram and enhanced CT scan in February 1999, which was reported by Dr. Miller as showing a disk bulge at L4-5 with minimal laterization to the left. Dr. de Perczel released plaintiff to return to work with restrictions. After Dr. de Perczel released plaintiff to work, plaintiff saw Dr. Rhyne, initially for a second opinion as to his work status and subsequently for treatment.

Plaintiff was seen by Alfred Rhyne, M.D., a Board Certified Orthopaedic Surgeon, on April 5, 1999, for a second opinion concerning plaintiff's condition and his ability to work. Dr. Rhyne diagnosed a strain to the lumbar spine with questionable sciatica. Although Dr. Rhyne was authorized initially as a second opinion doctor, he offered to treat plaintiff and plaintiff accepted his treatment plan and continued to see him. Dr. Rhyne recommended two weeks of work conditioning to be followed by an FCE and anticipated a return to work consistent with the FCE examination. Pending the first FCE, consistent with Dr. de Perczel's release, Dr. Rhyne opined that plaintiff would be able to work light duty and released him to work with no lifting over 25 pounds and with a sit/stand option.

On July 26, 1999, Dr. Rhyne summarized with plaintiff the results of the first FCE. Dr. Rhyne noted that the first FCE was not valid and presented questions of malingering. Dr. Rhyne advised plaintiff to use his best effort and scheduled a second FCE. On August 9, 1999, Dr. Rhyne summarized the results of the second FCE, which found that plaintiff could work in the medium to heavy work level with lifting of 75 pounds occasionally, 35 pounds on a frequent basis, and 15 pounds on a constant basis. Dr. Rhyne found plaintiff to be at maximum medical improvement with a 2% impairment rating. Dr. Rhyne saw plaintiff again on September 20, 1999, and noted that plaintiff was working 40 hours per week, that the examination had not changed, and that plaintiff was able to tolerate his pain level. Plaintiff was advised to exercise and ambulate, and was given a prescription for Anthrotec, an anti-inflammatory medication. Dr. Rhyne's chart note indicates that, if there is a flare up or an increase in symptoms, that he and plaintiff would proceed from there.

The majority finds that plaintiff had to see Dr. Miller because plaintiff was not able to see Dr. Rhyne. Although plaintiff and his wife testified that they called Dr. Rhyne's office nine or ten times prior to September 20, 1999, their testimony is not supported by the record. First, plaintiff did not have a scheduled appointment after his release to work on August 9, 1999, and therefore, plaintiff had to call and schedule the appointment with Dr. Rhyne for the September 20, 1999, appointment. And, obviously plaintiff was successful because he was examined by Dr. Rhyne on September 20, 1999. Second, Dr. Rhyne and his office have no records of telephone calls from plaintiff to schedule an appointment or to request prescriptions. Dr. Rhyne indicated that he or one of his partners would have seen plaintiff in their normal schedule or would have sent plaintiff to their after-hours or weekend clinic if he had made a request for an examination.

Although Finding of Facts 7, 8, and 10 suggest that plaintiff could not get in to see Dr. Rhyne and that he, therefore, sought Dr. Miller, the testimony of plaintiff and his wife do not support these conclusions. First, plaintiff testified that he wanted to see Dr. Miller at the suggestion of his attorney and because plaintiff thought something was wrong with his back other than what he was hearing from Dr. Rhyne. Second, plaintiff's wife testified that they had already made the appointment with Dr. Miller before plaintiff saw Dr. Rhyne on September 20, 1999. Thus, the evidence shows that plaintiff wanted to see Dr. Miller for a third opinion, rather than that Dr. Rhyne was refusing to provide treatment.

Plaintiff saw Dr. Miller on September 23, 1999, and presented with a normal neurological examination. Dr. Miller is a neurosurgeon who is not board certified as a specialist in his field. Based on his initial examination, Dr. Miller, believed that plaintiff's complaints of pain could be related to his degenerative discs and sought to have this evaluated with a discogram. When the discogram was negative, Dr. Miller referred plaintiff to Thomas Herfurth, an anesthesiologist specializing in pain management. Dr. Miller took plaintiff off from work pending the discogram and his appointment with Dr. Herfurth. Dr. Miller was not provided with the medical records of Dr. Rhyne's care and in particular was not aware of the FCE results. Furthermore, his subjective precaution, as a new examiner, in removing plaintiff from work does not contradict the objective findings of the FCE and Dr. Rhyne's release based on the FCE results.

Dr. Herfurth treated plaintiff for complaints of low back and hip pain from December 15, 1999, through at least August 17, 2000. Dr. Herfurth testified that he has not taken plaintiff out of work.

Thus, there is no competent evidence that plaintiff was unable to see Dr. Rhyne in a timely fashion. To the contrary, the evidence is clear that plaintiff was not pleased with his release to work in the UPS/shipping job¹ and sought to see Dr. Miller at the suggestion of his attorney. Dr. Rhyne saw plaintiff on September 20, 1999, and there is no evidence that he refused or would refuse to continue treating plaintiff. To the contrary, Dr. Rhyne's last chart note indicates that he would re-evaluate plaintiff's treatment plan should plaintiff's symptoms or condition change, which hardly suggests an abandonment of the patient or a refusal to see him. Although plaintiff and his wife testified that they called Dr. Rhyne's office nine or ten times to get an appointment, there is no evidence that the failure to receive care was caused by defendants. Plaintiff suggests that they had trouble getting approval from the insurance company, but plaintiff's suggestion is not supported in the record. The record contains a fax coversheet and a letter dated September 16, 1999, from plaintiff's attorney to the insurance adjuster stating that Dr. Rhyne's office refuses to make an appointment for plaintiff. This evidence, however, does not support the finding that defendants were refusing to provide medical care. First, plaintiff saw Dr. Rhyne four days after the fax. Second, although the third page of the fax to the adjuster appears to be the fax confirmation page, the phone number on the confirmation sheet does not match the fax number for the fax coversheet. Thus, the evidence is either that defendants timely and appropriately responded, or that they did not get the message. The evidence does not support the finding that the defendants have lost their right to direct medical care by denying treatment with Dr. Rhyne.

(2) "Defendants presented no evidence that plaintiff was employable"

The most disturbing finding is that defendants failed to present any evidence that plaintiff was employable. But what about the FCE? An FCE is an objective measure of the patient's physical capabilities to perform the various physical functions of employment. An FCE is intended to assist the health care provider in determining the safe level of activities that a patient may perform in employment. FCE results are routinely used by the Commission for this very purpose. Thus there is no basis for a finding that defendants presented "no evidence" of employability.

In this case, the evidence is that plaintiff had two functional capacity examinations. The first found that plaintiff could perform in the light duty range, but the test was invalid because plaintiff did not cooperate fully. Dr. Rhyne sent plaintiff to another facility for another FCE with the admonition that plaintiff needed to give his best effort. The results of the second FCE were accepted as valid and showed that plaintiff could work in the medium to heavy category with lifting restrictions of 15 pounds constantly, 35 pounds frequently, and 75 pounds occasionally. Dr. Rhyne released plaintiff to work within these restrictions and the only evidence on this issue is that the UPS/Shipping job offered to plaintiff and performed by plaintiff was within the restrictions established by the FCE and permitted by Dr. Rhyne. Further, Dr. Rhyne observed plaintiff on September 20, 1999, after plaintiff had returned to work in the UPS/shipping position, and reported that plaintiff's condition had not changed and that he was able to tolerate the pain and discomfort. Dr. Rhyne did not take plaintiff off the UPS/Shipping job.

The majority appears to rely on evidence that Dr. Miller (the non-Board certified physician to whom plaintiff was referred by his attorney) took plaintiff off from work pending a discogram and referral to pain management as relevant evidence on the plaintiff's employability. This fact, however, is not competent, relevant, or material to this issue and does not contradict the objective findings of the FCE or Dr. Rhyne's release to return to work based on the FCE.

On the face of it, there might appear to be a conflict between Dr. Rhyne returning plaintiff to work and Dr. Miller taking plaintiff out of work. In fact, however, Dr. Miller's action in taking plaintiff off from work cannot and should not be read as evidence contrary to the FCE and Dr. Rhyne's return to work release. Dr. Miller was not provided with Dr. Rhyne's medical records and, in particular, was not provided with the FCE. There is no evidence in the record that Dr. Miller disagreed with or otherwise did not accept the FCE. The only evidence is that Dr. Miller was not aware that plaintiff had an FCE and that he prophylactically took plaintiff out of work pending a discogram to determine whether plaintiff had an operable condition. The discogram was negative, and Dr. Miller stopped treating plaintiff and referred him to pain management because he had nothing to offer — plaintiff did not have a surgical condition as Dr. Miller first opined.

Removing plaintiff from work pending the discogram may be viewed as prudent, conservative care and may justify plaintiff's absence from work during that specific time period. Such evidence, however, does not negate the FCE and is not relevant to the issue of plaintiff's employability: the discogram was negative and did not reveal the more serious abnormality that Dr. Miller initially suspected; Dr. Miller's suspicion that plaintiff had a spinal abnormality, which suspicion was ruled out, cannot and does not tend to prove that plaintiff could not perform the functions and job duties revealed in the FCE. In other words, Dr. Miller's disproved suspicion does not challenge the validity of the FCE or Dr. Rhyne's opinion and thereby cannot be considered legally competent evidence or evidence relevant to the issue of plaintiff's employability.

Similarly, the medical information from Dr. Herfurth and the pain management program does not contradict the FCE or the return to work release from Dr. Rhyne. When plaintiff went to the pain management program with Dr. Herfurth, he was not taken off from work. Dr. Herfurth testified that he never took plaintiff out of work. There is no evidence in plaintiff's medical records or Dr. Herfurth's deposition which attempts to contradict the FCE and the return to work by Dr. Rhyne based on the FCE.

It may bear noting that plaintiff does not benefit from a presumption of continuing disability in this case. See Sims v. Charmes/Arby's RoastBeef, 142 N.C. App. 154, 542 S.E.2d 277, disc. rev. den., 550 S.E.2d 782 (N.C. 2001).

In my opinion, there is no legally competent, relevant, or material evidence showing that plaintiff was not employable and is entitled to continuing disability benefits. See Young v. Hickory BusinessFurniture, 353 N.C. 227, 538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); Smith v. Beasley Enterprises, ___ N.C. App. ___, ___ S.E.2d ___ (February 5, 2002) (medical expert's testimony must be sufficiently reliable to be competent evidence); Seealso Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible). The only relevant and competent evidence is the FCE and Dr. Rhyne's return to work release,[Note 2] which compel findings to the contrary. The issue is not whether there is conflicting evidence which the majority weighs in favor of plaintiff. Rather, the majority ignores competent evidence and makes findings that are not supported by the evidence. In an appeal from the Industrial Commission, the appellate courts may review the two questions of law presented in this case, "namely (1) [w]hether or not there was any competent evidence before the Commission to support its findings of fact, and (2) whether or not the findings of the Commission justify its legal conclusions and decisions." Inscoe v. DeRose Industries,292 N.C. 210, 232 S.E.2d 449 (1977); Stevenson v. Noel Williams Masonry, 2001 WL 1657309, ___ N.C. App. ___, ___ S.E.2d ___ (2001); Loch v. Entertainment Partners, 2001 WL 1657324, ___ N.C. App. ___, ___S.E.2d ___ (2001); Janney v. J.W. JonesLumber Co., ___ N.C. App. ___, 550 S.E.2d 543 (2001). The findings of the Commission are conclusive only when they are supported by competent evidence. See Janney, supra. The Commission has the duty to determine whether proffered evidence is competent and must weigh all of the competent evidence in rendering its decision. See Young v. HickoryBusiness Furniture, supra (speculation and conjecture is not evidence);Smith v. Beasley Enterprises, ___ N.C. App. ___, ___ S.E.2d ___ (February 5, 2002) (Commission needs to determine competent evidence and weigh the competent evidence); See also Daubert v. Merrell Dow Pharmaceuticals,Inc., supra (court has duty to police the evidence to ensure that it is scientifically credible).

Dr. Miller and Dr. Herfurth was not aware of the FCE and its results, were not aware that Dr. Rhyne had released plaintiff to return to work based on the FCE, and were not aware that Dr. Rhyne had examined plaintiff after he had returned to work for more than a month and further that Dr. Rhyme believed that plaintiff could continue in this employment. The lack of this relevant evidence by Dr. Miller and Dr. Herfurth renders their opinions concerning plaintiff's employability to be less than competent evidence. See Smith v. Beasley Enterprises, ___ N.C. App. ___, ___ S.E.2d ___ (February 5, 2002) (lack of knowledge of pertinent information affects competency of physician's opinion).

Further, the majority has ignored the competent evidence from Dr. Rhyne and the results of the FCE. The Commission may not disregard and ignore competent evidence. Smith v. Beasley Enterprises, ___ N.C. App. ___, ___ S.E.2d ___ (February 5, 2002); Jenkins v. Easco Aluminum Corp.,142 N.C. App. 71, 541 S.E.2d 510 (2001); Lineback v. Wake County Board ofCommissioners, 126 N.C. App. 678, 486 S.E.2d 252 (1997). Although the full Commission is generally the final arbiter of credibility, the Commission cannot ignore or refuse to consider competent evidence.Harrell v. J.P. Stevens Co., 45 N.C. App. 197, 262 S.E.2d 830, rev.denied, 300 N.C. 196, 269 S.E.2d 623 (1980). The appellate courts have explained the duty of the full Commission:

"It is the duty of the Commission to consider all of the competent evidence, make definitive findings, draw its conclusions of law from these findings, and enter the appropriate award. In making its findings, the Commission's function is "to weigh and evaluate the entire evidence and determine as best it can where the truth lies." West v. J. P. Stevens, 6 N.C. App. 152, 156, 169 S.E.2d 517, 519 (1969). (Emphasis added.) To weigh the evidence is not to "discount" it. To weigh the evidence means to ponder it carefully; it connotes consideration and evaluation; it involves a mental balancing process. To "discount" the evidence, on the other hand, is to disregard it, to treat it as though it had never existed, to omit it from consideration. While the Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness's testimony, Morgan v. Thomasville Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E.2d 619 (1968), it nevertheless may not wholly disregard competent evidence. Contradictions in the testimony go to its weight, and the Commission may properly refuse to believe particular evidence."

Id. The majority in this case has accepted the plaintiff's testimony in all regards and the evidence from Dr. Miller and Dr. Herfurth, despite the fact that they have not explained why the FCE is not reliable and why the plaintiff could not work within the restrictions of the FCE, and the majority ignores, as if it did not exist, the testimony of Dr. Rhyne and the objective results of the FCE which shows that plaintiff could work in the medium to heavy work levels. The majority has erred in this case in failing to consider and evaluate competent evidence which conflicts with its opinion. Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71,541 S.E.2d 510 (2001); Harrell v. J.P. Stevens Co., supra.

Rather than reviewing all the competent evidence in this case, the majority has stopped upon finding, in their view, that plaintiff has established a prima facie case; the majority ignores all conflicting evidence. This is consistent with the "viewed in the light most favorable to plaintiff" and "plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence" standard of review that is only applicable to appellate review of Commission decisions. This position, however, totally ignores the duty of the Full Commission to determine whether evidence is competent and then to weigh all the competent evidence before drawing conclusions. See Cauble v. TheMache Co., 78 N.C. App. 793, 338 S.E.2d 320 (1986); Wagoner v. DoublasBattery Mfg. Co., 80 N.C. App. 163, 341 S.E.2d 120 (1986); Rooks v. IdealCement Co., 9 N.C. App. 57, 175 S.E.2d 324 (1970). The Full Commission is not an appellate body and does not apply the "some evidence" standard of review. See Adams v. AVX Corp., 349 N.C. 676,509 S.E.2d 411 (1998); Cauble supra; Wagoner, supra;Rooks, supra. Rather the Full Commission has the duty to review objectively all the competent evidence:

"The plenary powers of the Commission are such that upon review, it may adopt, modify or reject the findings of fact of the Hearing Commissioner, and in doing so may weigh the evidence and make its own determination as to the weight and credibility of the evidence. [citation omitted] The Industrial Commission has the duty and authority to resolve conflicts in the testimony whether medical or not, and the conflict should not always be resolved in favor of the claimant."

Wagoner, supra.

For the foregoing reasons, I respectfully dissent.

Signed this ___ day of April, 2002.

S/_____________________________ RENEE C. RIGGSBEE COMMISSIONER

RCR/gas

¹

NOTES1. The record suggests that plaintiff may not have desired the UPS/Shipping position because his wife held that position. Plaintiff wanted to work as a truck driver for short routes.

2. The fact that Dr. Miller took conservative measures and wrote slips to take plaintiff out of work temporarily is relevant and material to the issue of whether plaintiff should have reported to work during the period covered by the remain off from work slips. This evidence, however, is not competent, relevant, or material to the issue of whether plaintiff was employable and is not evidence that contradicts the FCE results. Setting aside the fact that Dr. Miller was not authorized and should not be authorized under the theory that plaintiff was unable to see Dr. Rhyne, Dr. Miller's temporary release from work pending further medical testing may be some evidence that plaintiff (if he brought the remain off from work slips to his employer) would be entitled to refrain from work during the period provided under the release(s). The evidence, however, is that plaintiff did not respond to his employer's inquiry as to who was Dr. Miller and why was plaintiff not at work; plaintiff did not provide subsequent out of work slips; and plaintiff failed to provide his employer with an excuse for not reporting to work.

***********The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Dollar and the briefs and oral arguments before the Full Commission. 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, except with minor modifications.

***********The Full Commission finds as fact and concludes as matters of law, the following which were entered into by the parties in a Pre-Trial Agreement and at the hearing before the Deputy Commissioner as:

STIPULATIONS1. The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.

2. Travelers Insurance Companies was the carrier on the risk.

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

4. Plaintiff sustained an admittedly compensable injury on or about April 2, 1998, as a result of which defendants filed a Form 60. Plaintiff received temporary total disability benefits from July 27, 1998 through August 17, 1998.

5. Plaintiff's average weekly wage is $675.43, which yields a compensation rate of $450.31 per week, based upon the Form 22.

6. The issues for determination are:

a. Whether plaintiff is entitled to temporary total disability benefits from October 21, 1999 when Dr. Peter Miller took him out of work;

b. Whether Dr. Miller or Dr. Thomas Herfurth should be authorized as plaintiff's treating physicians; and

c. Whether plaintiff unjustifiably refused to accept suitable work.

7. The parties stipulated to the following documentary evidence:

a. I.C. Forms 18, 19, 22, 28, 28B, 33 (2), 33R, 60;

b. Letters from plaintiff's counsel to the adjuster, dated September 16, 1999, September 27, 1999, and October 20, 1999;

c. October 25, 1999 and November 15, 1999 termination letters;

d. Correspondence from the adjuster, dated December 10, 1999 and December 13, 1999;

e. Records from Maiden Family Practice, 2 pages;

f. Records from Catawba Memorial Hospital, 15 pages;

g. Records of Dr. John dePerczel, 12 pages;

h. Records of Shook Family Chiropractic, 12 pages;

i. Records of Miller Orthopaedic Clinic, 1 page;

j. Records of Dr. Alfred Rhyne, 7 pages;

k. Records of Dr. Peter Miller, 10 pages;

l. Records of Pro-Active Therapy, 3 pages;

m. Records of Job Care, 1 page; and

n. Records of Unifour Pain Clinic, 44 pages.

***********The Full Commission adopts the findings of fact found by the Deputy Commissioner with some modification and finds as follows:

FINDINGS OF FACT1. At the time of the hearing before the Deputy Commissioner, plaintiff was fifty years old and was employed by defendant-employer as a truck driver. Plaintiff's duties required him to drive a furniture delivery truck and lift dressers, chests of drawers, and entertainment centers weighing up to one hundred pounds. Plaintiff began working for defendant-employer in approximately 1990.

2. On April 2, 1998 plaintiff sustained an admittedly compensable injury when his truck was rear-ended by another truck, forcing his vehicle into the rear of a camper on the Interstate 40 weigh station scales. During the course of the collision, plaintiff's head struck the rear of the truck, breaking the window.

3. After he returned home, plaintiff sought medical treatment at the emergency room of Catawba Memorial Hospital. An MRI taken on April 3, 1998 revealed plaintiff had mild desiccation at L4-5 and L5-S1. Plaintiff was eventually treated by Dr. John dePerczel, an orthopedist, who diagnosed plaintiff with contusions, neck, shoulder and back strain, and right sciatica. Plaintiff was authorized to return to work on April 27, 1998. Dr. dePerczel ordered physical therapy, steroid injections, and work hardening. By August 18, 1998 Dr. dePerczel found plaintiff had reached maximum medical improvement and retained no permanent impairment.

4. On April 5, 1999 defendants referred plaintiff to Dr. Alfred Rhyne, a board certified orthopedist, for a second opinion evaluation. Plaintiff complained of low back pain since the motor vehicle accident. Dr. Rhyne recommended a functional capacity evaluation (FCE). The results of the FCE indicated that plaintiff was capable of performing light duty work with a twenty-five pound lifting restriction and moving from sitting to standing every thirty minutes.

5. On July 26, 1999 plaintiff returned to Dr. Rhyne, at which time the doctor counseled plaintiff on the importance of cooperating with the FCE, as the prior report indicated that plaintiff did not cooperate and failed to complete the test. Plaintiff stated that he felt the test was not done properly, and he had to take pain medication during the test. After a second FCE, Dr. Rhyne found plaintiff capable of performing medium level work, with permanent work restrictions of occasionally lifting seventy-five pounds, frequently lifting thirty-five pounds and constantly lifting fifteen pounds. On August 9, 1999 Dr. Rhyne found plaintiff had reached maximum medical improvement and retained a two percent permanent partial impairment to his lumbar spine as a result of the compensable injury.

6. Defendant-employer did not have a truck driver job within plaintiff's permanent work restrictions, as set by Dr. Rhyne. On August 24, 1999 defendant-employer offered plaintiff a UPS/shipping job, which required him to lift forty pounds up to a maximum of seventy-five pounds and to frequently bend and stoop. Although plaintiff was able to gather the parts, wrap and box them without difficulty, the bending and stooping bothered his back. As a result of the back pain, plaintiff took pain medication on the job, which caused him to fall asleep on his shift. Although plaintiff's supervisor observed him sleeping on the job, he did not question plaintiff about it.

7. In August and early September of 1999 plaintiff and his wife made approximately nine or ten calls to Dr. Rhyne's office in an attempt to get prescription refills or to schedule an appointment. Dr. Rhyne's office staff advised them that defendants did not authorize the follow-up appointment.

8. On September 16, 1999 plaintiff's counsel Randy Duncan wrote to insurance adjuster Lisa House to advise that Dr. Rhyne's office refused to make an appointment for plaintiff or to write additional prescriptions. Again on September 27, 1999 Mr. Duncan wrote to Ms. House, advising that plaintiff had to go to the emergency room because Dr. Rhyne's office refused to see plaintiff on that date. Mr. Duncan sent a third letter to the adjuster on October 22, 1999 regarding plaintiff's inability to obtain treatment.

9. On September 20, 1999 plaintiff was allowed by the carrier to return to Dr. Rhyne and reported that he was working full time. Plaintiff complained of back pain, for which he obtained an additional prescription.

10. Prior to obtaining an additional appointment with Dr. Rhyne, plaintiff scheduled an appointment with neurosurgeon Dr. Peter Miller. On September 23, 1999 plaintiff presented to Dr. Miller with persistent low back pain, which radiated into the right leg, hip pain, and right leg weakness. Dr. Miller ordered a lumbar discogram, following which he ordered additional epidural injections. Plaintiff has not returned to Dr. Miller since October 18, 1999, although Dr. Miller did refer plaintiff to Dr. Thomas Herfurth, an anesthesiologist, for pain management.

11. Dr. Herfurth treated plaintiff from December 15, 1999 through August 17, 2000 for hip and back pain, restricting plaintiff to lifting no more than twenty pounds. Plaintiff would benefit from continued pain management treatment.

12. Dr. Miller stated that based upon the diagnostic testing and plaintiff's absence of back pain complaints prior to the motor vehicle accident, the accident either caused or accelerated plaintiff's back pain.

13. Based upon the lumbar discogram findings, plaintiff is not a candidate for back surgery.

14. Dr. Miller provided plaintiff with out of work notes for the period from October 21, 1999 until his appointment with Dr. Herfurth on December 15, 1999, as plaintiff was physically unable to perform the frequent bending and heavy lifting that his job required.

15. On October 25, 1999 defendant-employer sent plaintiff a letter to advise that the carrier did not authorize treatment by any doctor other than Dr. Rhyne. Therefore, defendant-employer refused to honor the work notes from Dr. Miller. On November 15, 1999 defendant-employer terminated plaintiff for being out of work without authorization.

16. On December 13, 1999 Regina Woodberry, the adjuster assigned to handle plaintiff's claim, wrote to Mr. Duncan stating that the carrier would not pay the bills for treatment plaintiff received from Dr. Miller. Although the carrier and defendant-employer took the position that Dr. Rhyne was plaintiff's authorized treating physician, Dr. Rhyne was not aware of the designation and believed that he was a second-opinion physician.

17. Since his termination, plaintiff has sought work through a temporary service and has contacted North Carolina Vocational Rehabilitation for assistance in locating work. Despite plaintiff's reasonable efforts, he has been unsuccessful finding employment. Plaintiff would benefit from additional vocational rehabilitation services to assist him in returning to gainful employment.

18. Although the carrier and defendant-employer have maintained that plaintiff sought unauthorized treatment from Dr. Miller and Dr. Herfurth, plaintiff only sought such treatment after he was unable to obtain additional treatment from Dr. Rhyne or any other doctor to whom the carrier had referred him. Even after plaintiff advised the carrier of difficulty obtaining treatment from Dr. Rhyne, the carrier did not document any steps taken to arrange additional evaluations for plaintiff. Therefore, the Full Commission specifically finds that the plaintiff made appropriate efforts to comply with the instructions from the carrier and was forced to obtain other care only after the carrier failed to make arrangements for him. As plaintiff made repeated requests for treatment in August and September of 1999 to the adjuster which went unanswered, his treatment by Dr. Miller and Dr. Herfurth is authorized.

***********Based upon the foregoing stipulations and findings of fact, the Full Commission enters the following:

CONCLUSIONS OF LAW1. Defendants admitted compensability of plaintiff's injury by accident on April 2, 1998 by filing with the Commission a Form 60. However, the Form 60 does not create a presumption of continuing disability and therefore the burden of proving disability remains with plaintiff. Simsv. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 542 S.E.2d 277 (2001).

2. In order to meet the burden of proving disability, plaintiff must produce one of the following: (1) medical evidence that he is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of preexisting conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that he has obtained other employment at wages less than his pre-injury wages. Demery v. Perdue Farms, Inc., ___ N.C. App. ___, 545 S.E.2d 485 (2001); Russell v. Lowes Product Distribution, 108 N.C. App. 762,425 S.E.2d 454 (1993) (citations omitted). Once a plaintiff meets the initial burden of showing disability, the burden shifts to defendants to show plaintiff is employable. Radica v. Carolina Mills, 113 N.C. App. 440,439 S.E.2d 185 (1994).

3. In the instant case, plaintiff met his initial burden to show that he is disabled. Plaintiff has work restrictions of no lifting over twenty pounds. He has made a reasonable effort to find work, but has been unsuccessful in his search for employment. Demery v. Perdue Farms,Inc., supra; Russell v. Lowes Product Distribution, supra. Defendants' evidence failed to show that plaintiff is employable. Radica v. CarolinaMills, supra.

4. As a result of the compensable injury, plaintiff is disabled from any employment and entitled to total disability compensation at the rate of $450.31 per week beginning October 21, 1999 and continuing until further Order of the Commission. N.C. GEN. STAT. § 97-29.

5. Plaintiff is entitled to have defendants pay for 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. N.C. GEN. STAT. §§ 97-2(19), -25. Plaintiff is also specifically authorized to have Dr. Peter Miller and Dr. Thomas Herfurth as his authorized treating physicians, and defendants shall pay for all treatment provided by the physicians or ordered by these physicians which are causally related. Plaintiff is also entitled to have defendants provide vocational rehabilitative services to assist him in returning to gainful employment.

***********Based on the foregoing findings of fact and conclusions of law, the Full Commission enters the following:

AWARD1. Subject to a reasonable attorney's fee approved below, defendants shall pay total disability compensation to plaintiff at the rate of $450.31 per week beginning October 21, 1999 and continuing until further Order of the Commission. As much of said compensation as has accrued shall be paid in a lump sum.

2. Defendants shall pay medical expenses incurred or to be incurred when bills for the same have been approved, in accordance with the provisions of the Act.

3. A reasonable attorney's fee of twenty-five percent of the compensation awarded to plaintiff in paragraph 1 above is hereby approved to be deducted from sums due plaintiff and paid directly to plaintiff's counsel.

4. As plaintiff has not completed medical treatment nor reached maximum medical improvement, this Opinion does not address this issue. However, in the event that the parties should be unable to agree on the amount of permanent partial disability compensation which may be due plaintiff, either party may request a hearing before the Commission to resolve this matter.

5. Defendants shall pay the costs.

This the ___ day of October 2001.

S/_____________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/_____________________________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/_____________________________ RENEE C. RIGGSBEE COMMISSIONER

LKM/mhb