Hawkins v. Hartstrings, LLC

While I concur with the majority's opinion that defendants should authorize the cervical MRI, I respectfully disagree with the majority's award of attorney's fess under N.C. Gen. Stat. § 97-88.1.

Contrary to plaintiff's assertions, the record evidence in this matter reveals that defendants did not accept compensability for plaintiff's neck condition, but rather her shoulder injury. While defendants did pay for some medical treatment related to plaintiff's neck, payment of medical treatment does not equate to acceptance of a new injury. Specifically, during the course of plaintiff's treatment, Dr. Isbell initially recommended a cervical MRI which was performed on August 2, 2006 and which was interpreted by Dr. Isbell as being essentially normal. Defendants paid for this MRI as it was recommended by the treating physician and was part of the initial diagnostic studies to evaluate plaintiff's injuries. However, when Dr. Isbell recommended a second cervical MRI a year and a half later and after plaintiff had undergone shoulder surgery, defendants were reasonable in denying this procedure until it could be ascertained as to whether plaintiff's neck condition and possible pinched nerve were causally related to the compensable shoulder injury. Further, the reasonableness of defendants' position is supported by the ruling by former Special Deputy Commissioner Henderson at the administrative level. After the determination was made by the Commission, defendants authorized the cervical MRI. *Page 8 I believe defendants' defense of this claim was based in reason rather than stubborn, unfounded litigiousness. For this reason, I would deny plaintiff's request for attorney's fees under N.C. Gen. Stat. § 97-88.1.

S/___________________ DIANNE C. SELLERS COMMISSIONER

2. Defendant-employer employed the requisite number of employees to be bound under the provisions of the Act at the time of the alleged incident.

3. The date of plaintiff's injury is March 9, 2006.

4. An employment relationship existed between plaintiff and defendant-employer on March 9, 2006.

5. Travelers Property Casualty Company of America was the carrier on the risk.

6. Plaintiff's average weekly wage is $400.00, which yields a compensation rate of $266.68.

7. Plaintiff received treatment from the following medical providers:

a. Dr. William Isbell

b. Dr. Kevin Speer

c. NovaCare PT

d. Dr. Mark Moriarty

e. Johnston Memorial Hospital

f. Wilson Regional MRI

g. Raleigh Radiology

h. Carolina Back Institute

8. The following evidence was received into evidence at the Deputy Commissioner's hearing:

a. Stipulated Exhibit #1: Medical records

b. Stipulated Exhibit #2: Industrial Commission forms

9. The issues before the Deputy Commissioner were whether defendants should *Page 3 provide plaintiff a cervical spine MRI and treatment as recommended by his treating physician, and whether any potential spine abnormalities were related to the injury of March 9, 2006. Subsequent to the Deputy Commissioner's hearing, defendants paid for plaintiff's cervical MRI and treatment. The only issue remaining before the Full Commission is whether plaintiff is due attorney's fees under N.C. Gen. Stat. § 97-88.1.

2. On March 9, 2006, plaintiff sustained an injury by accident when a ladder fell sideways in the stockroom and she tried to catch it with her right upper extremity, injuring her neck and right shoulder. On July 28, 2006, defendants accepted plaintiff's shoulder injury on a Form 60.

3. Plaintiff sought treatment with Dr. William Isbell for neck pain, shoulder pain and numbness and tingling in her right arm. Dr. Isbell ordered an MRI, which revealed a tear in plaintiff's right shoulder. As a result of the MRI findings, plaintiff underwent surgery on October 24, 2006.

4. On December 5, 2007, plaintiff returned to Dr. Isbell with continued complaints of pain in the trapezius area and numbness and tingling into the fingers of her right hand. Dr. *Page 4 Isbell ordered a second MRI of the cervical spine and trigger point injections. Plaintiff returned to work in January 2007 with restrictions, but continued to experience problems performing her work duties.

5. At the time of the Deputy Commissioner's hearing, neither the cervical spine nor trigger point injections were authorized by defendants. Plaintiff continued to work at defendant-employer with permanent restrictions.

6. Plaintiff filed a medical motion requesting defendants pay for the cervical MRI and trigger point injections. Special Deputy Commissioner Meredith Henderson ordered defendants to pay for trigger point injections, but not the cervical MRI. Plaintiff appealed by filing a Form 33.

7. At his deposition on July 25, 2008, Dr. Isbell testified that plaintiff's need for the cervical MRI and further treatment for her neck and arm pain was caused by the work incident on March 9, 2006. Dr. Isbell also testified that the cervical MRI is reasonable and necessary for plaintiff.

8. Following the receipt of the Deputy Commissioner's Opinion and Award, defendants paid for plaintiff's cervical MRI and further treatment.

9. Defendants defended this action without reasonable grounds from the date of Dr. Isbell's deposition until they paid for plaintiff's cervical MRI and treatment.

2. Plaintiff has met her burden of proof through medical testimony that her current condition of neck pain and right hand paresthesia is related to the accident which is the subject of this claim.

3. The defense of this claim was without reasonable grounds from the date of Dr. Isbells' deposition until defendants paid for plaintiff's cervical MRI and treatment. Therefore, plaintiff is entitled to attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1; Sparks v. MountainBreeze Restaurant, 55 N.C. App. 663, 286 S.E.2d 575 (1982).

2. Defendants defended this action without reasonable grounds from the date of Dr. Isbells' deposition until defendants paid for plaintiff's cervical MRI and treatment and, therefore, plaintiff is entitled to attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1. Defendants shall pay a reasonable attorney's fee to plaintiff's counsel in the amount of $2,500.00. *Page 6

3. Defendants shall pay the costs.

This 20th day of April 2009.

S/___________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/___________________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING IN PART, DISSENTING IN PART:

S/___________________ DIANNE C. SELLERS COMMISSIONER