{ "id": 8526385, "name": "ADDIE FORREST, Employee, Plaintiff v. PITT COUNTY BOARD OF EDUCATION, Employer, SELF-INSURED (STATE BOARD OF EDUCATION), Defendant", "name_abbreviation": "Forrest v. Pitt County Board of Education", "decision_date": "1990-08-21", "docket_number": "No. 8910IC1183", "first_page": "119", "last_page": "129", "citations": [ { "type": "official", "cite": "100 N.C. App. 119" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 97-91", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "opinion_index": 0 }, { "cite": "264 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "63-64" } ], "opinion_index": 0 }, { "cite": "299 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575647 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0582-01" ] }, { "cite": "361 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725056, 4730755, 4729611, 4727700, 4728892 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0792-03", "/nc/320/0792-02", "/nc/320/0792-04", "/nc/320/0792-01", "/nc/320/0792-05" ] }, { "cite": "358 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "86 N.C. App. 411", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132527 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0411-01" ] }, { "cite": "364 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "150" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358653 ], "year": 1988, "pin_cites": [ { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0587-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "opinion_index": 0 }, { "cite": "191 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 756", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576640, 8576611, 8576587, 8576623, 8576596 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0756-05", "/nc/281/0756-03", "/nc/281/0756-01", "/nc/281/0756-04", "/nc/281/0756-02" ] }, { "cite": "190 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 508", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551808 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0508-01" ] }, { "cite": "261 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "year": 1980, "opinion_index": 0 }, { "cite": "258 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "798" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551956 ], "year": 1979, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0372-01" ] }, { "cite": "139 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "862" } ], "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "year": 1965, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "390-91" }, { "page": "406-07" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "276 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "750" }, { "page": "750", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644529 ], "year": 1981, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0402-01" ] }, { "cite": "312 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "parenthetical": "citation omitted" }, { "page": "697" } ], "opinion_index": 0 }, { "cite": "310 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403756, 2395921, 2403313, 2394261, 2401497 ], "year": 1984, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0308-03", "/nc/310/0308-01", "/nc/310/0308-04", "/nc/310/0308-05", "/nc/310/0308-02" ] }, { "cite": "308 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "336" }, { "page": "336", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527561 ], "year": 1983, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0695-01" ] }, { "cite": "312 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "310 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403756, 2395921, 2403313, 2394261, 2401497 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/310/0308-03", "/nc/310/0308-01", "/nc/310/0308-04", "/nc/310/0308-05", "/nc/310/0308-02" ] }, { "cite": "308 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "336" } ], "opinion_index": 1 }, { "cite": "64 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527561 ], "year": 1983, "pin_cites": [ { "page": "697" } ], "opinion_index": 1, "case_paths": [ "/nc-app/64/0695-01" ] } ], "analysis": { "cardinality": 813, "char_count": 22224, "ocr_confidence": 0.763, "pagerank": { "raw": 6.841562809956848e-07, "percentile": 0.9642318915118218 }, "sha256": "5d54359caf062f43622faa34f8fb5470cd810be95c081cbc64d94004a866132d", "simhash": "1:05656b8a188b784c", "word_count": 3609 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs.", "Judge Lewis dissents." ], "parties": [ "ADDIE FORREST, Employee, Plaintiff v. PITT COUNTY BOARD OF EDUCATION, Employer, SELF-INSURED (STATE BOARD OF EDUCATION), Defendant" ], "opinions": [ { "text": "ORR, Judge.\nPlaintiff argues four assignments of error on appeal and defendant argues, one assignment of error on cross-appeal. For the reasons below, we affirm in part, vacate in part and remand for further action consistent with this opinion.\nThe first issue this Court must address is whether to dismiss plaintiff\u2019s appeal upon defendant\u2019s motion on the ground that plaintiff allegedly failed to file the record on appeal within 15 days after the record was settled pursuant to the Rules of Appellate Procedure. We find no merit to this issue and therefore deny defendant\u2019s motion.\nUnder Rule 12(a) of the N.C. Rules of Appellate Procedure, \u201cWithin 15 days after the record on appeal has been settled by any of the procedures provided in . . . Rule 18, ..., the appellant shall file the record on appeal with the clerk of the court to which appeal is taken.\u201d Rule 18 discusses in greater detail the methods by which the record on appeal may be settled when the appeal is taken from administrative agencies to this Court.\nThe record on appeal in the case before us was filed with this Court on 31 October 1989. Defendant argues that the record was settled on 3 October 1989 pursuant to a letter from plaintiff\u2019s attorney to Chairman Stephenson, in which plaintiffs attorney states:\nI wanted to let you know that [defendant\u2019s attorney] and I have verbally agreed to a Settlement of the Record in [this matter] .... I will be forwarding a new Copy of the Record for signature by a member of the Commission so that the record can be settled within the appropriate time.\nI am mailing this letter on October 3, which is prior to the date which I am to request a Judicial Settlement of the Record in accordance with the applicable Appellate Rules of Appellate Procedure. ,\nPlaintiff contends that this letter constitutes information to the Commission concerning the proposed record on appeal and is not an agreement to the record on appeal. We agree. This letter contains conflicting evidence that it was in fact a final agreement of settlement of the record on appeal.\nPlaintiff subsequently filed the record on appeal with minor changes with the Industrial Commission on 19 October 1989 pursuant to Rule 18(d)(2) of the N.C. Rules of Appellate Procedure. Defendant signed the Stipulation and Settlement of the Record on Appeal on 19 October 1989, but the date of 3 October 1989 was inserted by defendant as the date upon which the parties reached agreement on the record on appeal.\nBased upon the above evidence of record, we find that the record on appeal was not settled under Rule 12 and Rule 18 of the N.C. Rules of Appellate Procedure until defendant signed the Stipulation and Settlement of the Record on Appeal on 19 October 1989. Therefore, we deny defendant\u2019s motion to dismiss on these grounds.\nPlaintiff\u2019s Appeal\nPlaintiff first contends that the Full Commission erred by awarding plaintiff a 15% disability rating based upon testimony by plaintiff\u2019s surgeon, instead of a 20%-25% rating recommended by her treating physician.\nIn reviewing an opinion and award of the Industrial Commission, this Court is limited to two questions of law: \u201c(1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether . . . the findings of fact of the Commission justify its legal conclusions and decisions.\u201d Dolbow v. Holland Industrial, 64 N.C. App. 695, 696, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984) (citation omitted). The Commission is the sole judge of the credibility of the witnesses and the weight given to their testimony, and may assign more credibility and weight to certain testimony than other testimony. Moreover, the determination of the Commission is conclusive upon appeal even though the evidence may support two contrary findings. Id. at 697, 308 S.E.2d at 336 (citation omitted).\nThe Commission\u2019s \u201cfindings of fact may be set aside on appeal only when there is a complete lack of competent evidence to support them.\u201d Mayo v. City of Washington, 51 N.C. App. 402, 406, 276 S.E.2d 747, 750 (1981), citing, Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390-91 (1980). \u201c[I]f the totality of the evidence, viewed in the light most favorable to the complainant, tends directly or by reasonable inference to support the Commission\u2019s findings, these findings are conclusive on appeal even though there may be plenary evidence to support findings to the contrary.\u201d Id. at 406-07, 276 S.E.2d at 750 (citations omitted). The plaintiff has the burden of proof in establishing whether or not a disability exists. Hall v. Chevrolet Co., 263 N.C. 569, 577, 139 S.E.2d 857, 862 (1965).\nWe note that plaintiff did not provide this Court with transcripts of the proceedings, depositions or other necessary documents pursuant to Rule 9(c) of the N.C. Rules of Appellate Procedure. When the evidence is not in the record on appeal, it is presumed that the findings of fact are supported by competent evidence, and are therefore conclusive on appeal. Bethea v. Bethea, 43 N.C. App. 372, 374, 258 S.E.2d 796, 798 (1979), disc. review denied, 299 N.C. 199, 261 S.E.2d 922 (1980); Christie v. Powell, 15 N.C. App. 508, 190 S.E.2d 367, cert. denied, 281 N.C. 756, 191 S.E.2d 361 (1972); 1 Strong\u2019s N.C. Index 4th, Appeal and Error, \u00a7 409 pp. 892-93.\nWith these basic principles in mind, we find that plaintiff has failed to show that the Full Commission erred in denying plaintiff\u2019s claim for the disability rating recommended by her treating physician, Dr. Boone. Moreover, the record on appeal presented to this Court contains no evidence that the Commission erred in denying plaintiff permanent and total disability benefits under N.C. Gen. Stat. \u00a7 97-31 (1985). We further find that the record is void of evidence that the Commission erred in denying plaintiff a 10% late penalty payment under N.C. Gen. Stat. \u00a7 97-18.\nPlaintiff\u2019s remaining assignment of error concerns whether the Commission erred in concluding as a matter of law that medical expenses benefits should be denied to S.C. Boone, M.D. under \u00a7 97-25.\nThe Deputy Commissioner made the following finding of fact on this issue, which is conclusive on appeal.\n4. A friend of the plaintiff\u2019s suggested the plaintiff see Dr. 5.C. Boone in Raleigh. On August 22, 1985, the plaintiff saw Dr. Boone who admitted the plaintiff to the hospital for the period from August 25, 1985 to September 3, 1985 and then saw her on September 24, 1985 and October 24, 1985. Dr. Boone surgically removed a small disc at the L5-S1 on August 26, 1985. After the surgery Dr. Boone treated the plaintiff with medications and physical therapy through December 11, 1985. At the last office visit (October 24, 1985) the plaintiff still complained about back and leg pain. A doctor did not refer the plaintiff to Dr. Boone. The plaintiff went to Dr. Boone on her own.\nThe Deputy Commissioner then concluded as a matter of law that:\n4. The plaintiff chose to see Dr. S.C. Boone on her own. She, therefore, is not entitled to have the medical expenses she incurred with and under the direction of Dr. Boone paid under the provisions of the Workers\u2019 Compensation Act. G.S. 97-25.\nThe Full Commission subsequently affirmed the Deputy Commissioner\u2019s findings of fact on this issue and stated,\nInsofar as the treatment rendered by Dr. Boone, defendants are not obligated to pay for same. The fee schedule of the North Carolina Industrial Commission provides (page 18) that \u2018charges for a major surgical operation and incidental care will not be approved unless the operation was first authorized by the Industrial Commission, insurance carrier or self-insuring employer, except in cases of emergency.\u2019 There is no evidence that the surgery performed by Dr. Boone was in the category of an emergency. Neither is there evidence that the surgery was authorized. In our opinion, on this issue the hearing commissioner reached the correct result.\nWe note that any Fee Schedule prepared by the Industrial Commission is superseded by N.C. Gen. Stat. \u00a7 97-25 (1985). Therefore, we must rely solely upon this statute in determining whether the Commission erred in its conclusion of law. Under \u00a7 97-25:\nMedical, surgical, hospital, nursing services, medicines, sick travel, rehabilitation services, and other treatment including medical and surgical supplies as may reasonably be required to effect a cure or give relief and for such additional time as in the judgment of the Commission will tend to lessen the period of disability, and in addition thereto such original artificial members as may be reasonably necessary at the end of the healing period shall be provided by the employer. In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital, or other treatment, the Industrial Commission may order such further treatments as may in the discretion of the Commission be necessary.\nIf in an emergency on account of the employer\u2019s failure to provide the medical or other care as herein specified a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be paid by the employer if so ordered by the Industrial Commission.\nProvided, however, if he so desires, an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.\nN.C. Gen. Stat. \u00a7 97-25 (1985).\nUnder this statute, a claimant has the right to choose a physician, but this right is subject to the approval of the Industrial Commission, and the treatment sought must be to effect a cure or provide rehabilitation. Lucas v. Thomas Built Buses, 88 N.C. App. 587, 590, 364 S.E.2d 147, 150 (1988). Moreover, the claimant must obtain Industrial Commission approval for the selected physician within a reasonable time after procuring the services of the physician. If a plaintiff seeks approval of the physician within a reasonable time, if the Commission approves a plaintiffs choice and if the treatment sought is to effectuate a cure or rehabilitation, then the employer has a statutory duty under \u00a7 97-25 to pay for the treatment. See Lucas; Hudson v. Mastercraft Div., Collins & Aikman Corp., 86 N.C. App. 411, 358 S.E.2d 134, disc. review denied, 320 N.C. 792, 361 S.E.2d 77 (1987).\nIn the case suh judice, the Deputy Commissioner specifically found that plaintiff sought treatment from Dr. Boone on her own, and that there was no approval by the Industrial Commission at any time. The Full Commission affirmed these findings, and relying on the Fee Schedule, further found that Dr. Boone\u2019s treatment of plaintiff was not an emergency.\nThe findings of fact and conclusions of law before us indicate that plaintiff sought treatment from a physician she personally selected as authorized by \u00a7 97-25. The first question that must be answered is whether approval was sought within a reasonable time.\nRelying on the Fee Schedule (\u201ccharges for a major surgical operation and incidental care will not be approved unless the operation was first authorized\u201d (emphasis added)), the Full Commission stated in its Full Opinion and Award that there was no evidence \u201cthat the surgery was authorized.\u201d (Emphasis added.) There are no findings of fact, however, indicating whether approval for any of Dr. Boone\u2019s treatment of plaintiff was sought within a reasonable time.\nThe Commission\u2019s findings and conclusions appear to indicate that approval for a physician\u2019s services, including surgery, must be sought prior to the surgical procedure and once before the Commission cannot be considered. This is not the law in this State. In Schofield v. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980), our Supreme Court stated,\nWe therefore construe the statute [\u00a7 97-25] to obtain approval of the Commission within a reasonable time after he has selected a physician of his own choosing to assume treatment.\nThe Industrial Commission is primarily an administrative agency of the State, and its jurisdiction as an administrative agency is a continuing one. [Citations] The Industrial Commission acts in a judicial capacity only in respect to a controversy between an employer and employee. [Citation] The existence of such a controversy does not operate to divest the Commission of its administrative powers. Obviously, an appeal of an award of the Industrial Commission does not support that agency\u2019s authority to accept notification of an employee\u2019s decision to select his own doctor; neither does an appeal deprive the Commission of its jurisdiction to accept the submission of a claim. It may well be that the determination of the particular claim will be delayed until the outcome of the appeal. Nevertheless, the Commission has jurisdiction to receive the claim and is, in fact, the only agency vested with that jurisdiction. [Citation]\n299 N.C. at 593-94, 264 S.E.2d at 63-64.\nThe above Schofield analysis indicates that the Commission does not have to preclude payments for a physician\u2019s services solely because approval for those services was not previously requested. Under \u00a7 97-25, a plaintiff must only seek approval within a reasonable time not necessarily prior to the services or surgery rendered by the physician. The Commission should have addressed this issue when the case came before it requesting, in part, payment (and by inference) approval of Dr. Boone\u2019s fees for services rendered. If Dr. Boone was an acceptable choice for a treating physician and the request before the Commission was made in a reasonable time, the next issue to be determined would be whether the services performed effected a cure or rehabilitation. If so, the fees should be paid. We find no findings of fact or conclusions of law addressing these issues as required by the statute.\nTherefore, we vacate the portion of the Full Commission\u2019s opinion and award dealing with this issue and remand for further findings supported by competent evidence that plaintiff either did or did not comply with \u00a7 97-25 using the above analysis and the pertinent case law. In making this determination on remand, we caution the Commission to mold its findings of fact and conclusions of law to conform to the statute and not necessarily the Fee Schedule.\nDefendant\u2019s Appeal\nDefendant argues that the Full Commission erred by not ruling upon defendant\u2019s motion for a credit for an amount of previous overpayments to or on behalf of plaintiff.\nOn 19 October 1988, plaintiff requested payment of the \u201cnon contested\u201d award, and defendant agreed to make such payment. Defendant failed to deduct the percentage for a fee to plaintiff\u2019s attorney and pay the attorney separately. The Commission then directed defendant to prepare another check to plaintiff\u2019s attorney, which resulted in an overpayment to plaintiff and her attorney.\nDefendant requested that the Full Commission address this matter, but it did not do so in its opinion and award of 13 June 1989. On 27 June 1989, defendant requested the Commission to modify its opinion and award to reflect defendant\u2019s entitlement to the overpayment. There is no evidence in the record before us that the Commission has made such modification.\nBecause the Commission has a duty to consider all aspects of a case before it, we direct the Commission to consider this issue upon remand. N.C. Gen. Stat. \u00a7 97-91 (1985).\nIn conclusion, we affirm the opinion and award of the Full Commission in part, vacate in part and remand for further action consistent with this opinion.\nAffirmed in part, vacated and remanded.\nJudge GREENE concurs.\nJudge Lewis dissents.", "type": "majority", "author": "ORR, Judge." }, { "text": "Judge Lewis\ndissenting.\nIn paragraph four of his conclusions of law, the Deputy Commissioner found that the plaintiff \u201cis not entitled to have the medical expenses as to Dr. Boone paid. . . .\u201d The Full Commission further stated that \u201ccharges for a major surgical operation and incidental care will not be approved unless. . . .\u201d It went on to find that the \u201csurgery\u201d was not authorized. It is my opinion that taken in context, considering the whole opinion, the Full Commission made adequate findings and conclusions that plaintiff failed to produce any evidence that the plaintiff\u2019s surgery and all incidental treatment necessarily connected thereto was authorized. If there is any competent evidence in the record to support the findings of the Commissioner, that determination is conclusive on appeal. Dolbow v. Holland Industries, Inc., 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), cert. denied, 310 N.C. 308, 312 S.E.2d 651 (1984). Since the surgery and all incidental care by Dr. Boone clearly was not authorized, there is no need to run the Commission through the hoops again. In this respect, I dissent from the majority.", "type": "dissent", "author": "Judge Lewis" } ], "attorneys": [ "Hugh D. Cox for plaintiff-appellant and plaintiff-appellee.", "Attorney General Lacy H. Thornburg, by Assistant Attorney General D. Sigsbee Miller, for defendant-appellee and defendant-appellant." ], "corrections": "", "head_matter": "ADDIE FORREST, Employee, Plaintiff v. PITT COUNTY BOARD OF EDUCATION, Employer, SELF-INSURED (STATE BOARD OF EDUCATION), Defendant\nNo. 8910IC1183\n(Filed 21 August 1990)\n1. Appeal and Error \u00a7 369 (NCI4th)\u2014 settlement of record\u2014 settled upon defendant signing stipulation and settlement agreement\nDefendant\u2019s motion on appeal to dismiss plaintiffs appeal on the ground that the record was not filed within 15 days after being settled was denied where the record on appeal was filed on 31 October 1989; defendant argues that the record was settled on 3 October 1989 pursuant to a letter from plaintiff\u2019s attorney to the chairman of the Industrial Commission; plaintiff contends that the letter constitutes information to the Commission concerning the proposed record and was not an agreement; plaintiff subsequently filed the record on appeal with minor changes with the Industrial Commission on 19 October; and defendant signed the stipulation and settlement of record on 19 October 1989, but inserted 3 October as the date the parties reached agreement. The record was not settled under Rules 12 and 18 of the North Carolina Rules of Appellate Procedure until defendant signed the stipulation and settlement on 19 October.\nAm Jur 2d, Appeal and Error \u00a7 444.\n2. Appeal and Error \u00a7 409 (NCI4th)\u2014 workers\u2019 compensation award \u2014evidence not included in record \u2014findings presumed supported by evidence\nPlaintiff failed to show that the full Industrial Commission erred by awarding plaintiff a 15% disability rating based on testimony by her surgeon rather than a 20% to 25% rating recommended by her treating physician where plaintiff did not provide the Court of Appeals with transcripts of the proceedings, depositions, or other necessary documents pursuant to Rule 9(c) of the N.C. Rules of Appellate Procedure; when the evidence is not in the record on appeal, it is presumed that the findings of fact are supported by competent evidence and are therefore conclusive on appeal. Moreover, the record presented here contains no evidence that the Commission erred in denying plaintiff permanent and total disability benefits and the record is furthermore void of evidence that the Commission erred in denying plaintiff a 10% late penalty under N.C.G.S. \u00a7 97-18.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 549, 550, 617.\n3. Master and Servant \u00a7\u00a7 75, 94.1 (NCI3d)\u2014 workers\u2019 compensation-medical expenses \u2014 findings insufficient\nAn Industrial Commission opinion and award was remanded for further findings on the issue of whether plaintiff complied with N.C.G.S. \u00a7 97-25 in seeking medical treatment where there were no findings of fact indicating whether approval for any of plaintiff\u2019s treatment was sought within a reasonable time and whether the services performed affected a cure or rehabilitation. The Commission does not have to preclude payments for physician\u2019s services solely because approval was not previously requested; under N.C.G.S. \u00a7 97-25, a plaintiff must seek approval within a reasonable time not necessarily prior to the services or surgery rendered by the physician.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 398, 399.\n4. Master and Servant \u00a7 94.2 (NCI3d)\u2014 opinion and award of full Commission \u2014issue not addressed \u2014remanded\nAn opinion of the Industrial Commission in a workers\u2019 compensation action arising from a slip and fall in a cafeteria freezer was remanded where plaintiff requested payment of the noncontested award; defendant failed to deduct the percentage for a fee to plaintiff\u2019s attorney and pay the attorney separately; the Commission directed defendant to prepare another check to plaintiff\u2019s attorney which resulted in an overpayment to plaintiff and her attorney; defendant requested that the Full Commission address the matter, but it did not do so in its opinion and award; and defendant subsequently requested the Commission to modify its opinion and award but there was no evidence that the Commission made such modification. The Commission has a duty to consider all aspects of a case before it. N.C.G.S. \u00a7 97-91.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 644, 646.\nJudge Lewis dissents.\nAPPEAL by plaintiff from opinion and award entered 13 June 1989 from the Industrial Commission by William H. Stephenson, Chairman. Heard in the Court of Appeals 4 May 1990.\nOn 1 February 1985, plaintiff sustained an accident during the scope and course of her employment as a cafeteria manager at one of defendant\u2019s public schools. The accident occurred when plaintiff slipped and fell in the cafeteria freezer and injured her back.\nThis case was heard before Honorable John Charles Rush, Deputy Commissioner, on 5 December 1985 in Greenville, North Carolina. In an opinion and award entered 18 December 1987, Deputy Commissioner Rush granted certain benefits to plaintiff and denied others.\nPlaintiff appealed to the Full Commission. After a hearing on 25 May 1989, the Full Commission modified the opinion and award entered by Deputy Commissioner Rush by increasing the amount of permanent partial disability awarded to plaintiff from 10% to 15%.\nFrom the opinion and award of the Full Commission entered 13 June 1989, plaintiff appeals. Defendant also cross-appeals from this opinion and award.\nHugh D. Cox for plaintiff-appellant and plaintiff-appellee.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General D. Sigsbee Miller, for defendant-appellee and defendant-appellant." }, "file_name": "0119-01", "first_page_order": 151, "last_page_order": 161 }