{ "id": 11145035, "name": "MICHAEL JENKINS, Employee, Plaintiff v. PUBLIC SERVICE COMPANY OF NORTH CAROLINA, Employer, SELF-INSURED CONSTITUTION STATE SERVICE COMPANY, Servicing Agent, Defendants", "name_abbreviation": "Jenkins v. Public Service Co.", "decision_date": "1999-08-03", "docket_number": "No. COA98-1072", "first_page": "405", "last_page": "417", "citations": [ { "type": "official", "cite": "134 N.C. App. 405" } ], "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": "122 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915554 ], "year": 1996, "opinion_index": -1, "case_paths": [ "/nc-app/122/0083-01" ] }, { "cite": "338 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 793", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524334 ], "year": 1986, "pin_cites": [ { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0793-01" ] }, { "cite": "143 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "257", "parenthetical": "\"[W]hen it appears that the Industrial Commission has found the facts under a misapprehension of the applicable law, the cause will be remanded for findings of fact by the Industrial Commission upon consideration of the evidence in its true legal light.\"" } ], "opinion_index": 0 }, { "cite": "265 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574297 ], "year": 1965, "pin_cites": [ { "page": "14", "parenthetical": "\"[W]hen it appears that the Industrial Commission has found the facts under a misapprehension of the applicable law, the cause will be remanded for findings of fact by the Industrial Commission upon consideration of the evidence in its true legal light.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0001-01" ] }, { "cite": "480 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53858 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0494-01" ] }, { "cite": "389 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "47" } ], "opinion_index": 0 }, { "cite": "326 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308491 ], "year": 1990, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0326-01" ] }, { "cite": "468 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "538-39", "parenthetical": "quoting Crist v. Moffatt, 326 N.C. 326, 336, 389 S.E.2d 41, 47 (1990)" } ], "opinion_index": 0 }, { "cite": "477 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867530, 867637, 867578, 867644, 867710 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0629-03", "/nc/344/0629-04", "/nc/344/0629-05", "/nc/344/0629-01", "/nc/344/0629-02" ] }, { "cite": "472 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912507 ], "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0200-01" ] }, { "cite": "264 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "60" }, { "page": "63" }, { "page": "64" } ], "opinion_index": 0 }, { "cite": "299 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575647 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "586-87" }, { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0582-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "holding the Commission \"is the sole judge of the credibility of the witnesses and the weight to be given their testimony\"" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "holding the Commission \"is the sole judge of the credibility of the witnesses and the weight to be given their testimony\"" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "315 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399854, 2401808, 2396509, 2399198, 2403167 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0743-02", "/nc/310/0743-01", "/nc/310/0743-05", "/nc/310/0743-04", "/nc/310/0743-03" ] }, { "cite": "311 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525640 ], "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0556-01" ] }, { "cite": "122 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915554 ], "year": 1996, "pin_cites": [ { "page": "87-88", "parenthetical": "quoting Crist v. Moffatt, 326 N.C. 326, 336, 389 S.E.2d 41, 47 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0083-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 1 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 1, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "456 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "888" } ], "opinion_index": 1 }, { "cite": "118 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920912 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "730" } ], "opinion_index": 1, "case_paths": [ "/nc-app/118/0727-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 1 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0676-01" ] } ], "analysis": { "cardinality": 1009, "char_count": 29977, "ocr_confidence": 0.756, "pagerank": { "raw": 4.5543845438412003e-07, "percentile": 0.9245959899592602 }, "sha256": "0ac027b4a44973a73f4f6033c9fdb910e2811cba6c7030f0a9fab0f7680503d3", "simhash": "1:a7796b0d54fbee86", "word_count": 4658 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN concurs.", "Judge WYNN dissents in part." ], "parties": [ "MICHAEL JENKINS, Employee, Plaintiff v. PUBLIC SERVICE COMPANY OF NORTH CAROLINA, Employer, SELF-INSURED CONSTITUTION STATE SERVICE COMPANY, Servicing Agent, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nPublic Service Company of North Carolina, Inc. (PSC) and its servicing agent (collectively, Defendants) appeal from the Opinion and Award of the North Carolina Industrial Commission (Commission) in favor of Michael E. Jenkins (Plaintiff).\nPlaintiff received a compensable back injury on 25 October 1993 while working for PSC. A Form 21 \u201cAgreement for Compensation for Disability\u201d was entered into by the parties, and pursuant to that agreement, Plaintiff received temporary total disability compensation. Plaintiff\u2019s authorized treating physician immediately following his injury, R. Mark Rodger, M.D. (Dr. Rodger), performed surgery on Plaintiff in 1993. Early in 1994, Plaintiff was referred to J. Robinson Hicks, M.D. (Dr. Hicks), who then became Plaintiffs authorized treating physician.\nOn 7 February 1996, Plaintiff attempted a trial return to work with PSC as a meter reader. Plaintiff worked as a meter reader for approximately one week. Plaintiff then filled out a Form 28U, \u201cEmployee\u2019s Request that Compensation be Reinstated After Unsuccessful Trial Return to Work,\u201d because he felt he could \u201cnot physically perform the job duties of a meter reader. The job requires constant walking, driving, and getting in and out of a truck. I am in severe pain.\u201d On 22 February 1996, Plaintiff took the Form 28U and x-rays to his authorized treating physician, Dr. Hicks, for certification that his return to work had been unsuccessful due to his disability. Plaintiff testified:\n[Dr. Hicks] looked at [the Form 28U] and took it out and talked to my rehab nurse out in the hall, come back. First he was going to sign it, I thought, and he said, \u201cWell, I need to talk to your rehab nurse about it.\u201d So he took it out in the hall and talked to her a few minutes, come back in and handed it back to me and said he couldn\u2019t sign it.\nDr. Hicks testified that prior to discussing a trial return to work with Plaintiff, his test results had not shown signs of symptom magnification; however, \u201cabout three weeks after [they] discussed for the first time returning to work,\u201d Plaintiff\u2019s test results suggested symptom magnification. Dr. Hicks felt the meter reader position was \u201cappropriate\u201d for Plaintiff and \u201chad no medical reason for keeping [Plaintiff] out of work\u201d; he therefore refused to sign the Form 28U. Dr. Hicks further testified that he had no recollection of any conversation with Nancy Lipscomb, R.N. (Nurse Lipscomb), Plaintiff\u2019s rehabilitation professional, prior to declining to sign Plaintiff\u2019s Form 28U. Dr. Hicks stated: \u201cI sometimes talk to the rehabilitation nurse outside the presence of a patient, but I have no idea in this particular case whether I did, and if I did, what the subject was.\u201d Dr. Hicks noted that it would not have been unusual for him to confer with a patient\u2019s rehabilitation professional outside the patient\u2019s presence.\nIn her 24 March 1996 Progress Report, Nurse Lipscomb noted:\nOn 2/22/96, I met [Plaintiff] at Dr. Hicks\u2019 office. From [Plaintiff] I learned that he is not working now, and he walks with a limp. . . .\n[Plaintiff] was examined by Dr. Hicks by himself. Dr. Hicks did discuss with me that the patient brought a paper to him today to have him reinstate his Worker\u2019s [sic] Compensation. Dr. Hicks did state he can\u2019t take him out of work, as he needs to know why, and [Plaintiff] was given a consent paper to sign, so that Dr. Hicks\u2019 office could obtain [Plaintiff\u2019s medical records from other physicians he had seen], and then perhaps [Dr. Hicks] could help him. Dr. Hicks did tell the patient that he would write to the Industrial Commission to the effect that [Plaintiff] is having so much pain that he says he is unable to work. Dr. Hicks did plan to get another [functional capacity evaluation]. Dr. Hicks did state that he would write to the other doctors to obtain records and the x-rays to see if he would concur with their diagnosis. However, the patient did not sign the consent [for the other doctors to release his medical records to Dr. Hicks]... .\nFollowing Dr. Hicks\u2019 refusal to sign the Form 28U, Plaintiff took the Form 28U to Dr. Rodger. Dr. Rodger had not seen Plaintiff as a patient in nearly two years, since 11 March 1994. Dr. Rodger testified, in relevant part, as follows:\nI did some x-rays, and my best supposition was that it was this problem at L5-S1. A lot of what, you know, what he can and can\u2019t do, I have to rely on what the patient tells me. You know, I don\u2019t have hard documentation of what he is being observed physically to be able to do, like a functional capacity assessment or something. I didn\u2019t have access to that. So my interpretation is subjective and based on what the patient tells me. ... He convinced me that he wasn\u2019t able to do it. . . . Just coming to tell me you can\u2019t do it doesn\u2019t always mean that I agree that you can\u2019t do it. ... I have to be convinced, and he was able to convince me.\nPlaintiff\u2019s attorney asked Dr. Rodger if he had an \u201copinion satisfactory to yourself and to a reasonable degree of medical certainty as to what specific restrictions or limitations [Plaintiff] has as a result of his physical condition?\u201d Dr. Rodger testified that his \u201cimpression was that [Plaintiff] was functionally unable to do any significant lifting and probably required frequent position changes for relief of his back pain.\u201d Dr. Rodger x-rayed Plaintiff, and testified the x-rays revealed that Plaintiff \u201chad a good fusion. It looked okay to me.\u201d Dr. Rodger stated that \u201cthe history [he] had about [Plaintiff\u2019s] fusion ... was from [Plaintiff] and from supposition and guesswork based on his x-rays.\u201d Dr. Rodger further testified:\nI don\u2019t think I took a detailed history of the actual occupation [Plaintiff] was involved with [(i.e., the meter reader position)]. We did talk in general terms about the fact that he had gone back to a light-duty job, but hadn\u2019t been able to tolerate it. The actual details of how much time he spent sitting, standing, lifting, I don\u2019t have it detailed in the chart. And I can\u2019t remember if I asked him specifically about that or not.\nDr. Rodger testified that \u201cin [his] opinion, he couldn\u2019t do the job that they wanted him to do.\u201d Dr. Rodger did not require Plaintiff to perform objective tests to determine whether his complaints of pain were exaggerated or nonphysiogenic; rather, because he believed Plaintiff\u2019s subjective complaints, he signed Plaintiff\u2019s Form 28U certifying that Plaintiff\u2019s return to work had been unsuccessful due to his injury.\nThe Commission gave \u201cno weight\u201d to the testimony of Dr. Hicks, finding that Dr. Hicks \u201cleft at least the appearance of undue influence by the rehabilitation nurse by stepping outside the presence of the plaintiff and into the presence of the rehabilitation nurse before saying whether or not he would sign the Form 28U.\u201d In addition, the Commission found \u201cDr. Rodger to be the proper party, under the circumstances, to sign the Form 28U,\u201d and concluded Plaintiff had complied with its rule 404A requiring the Form 28U to be signed by the authorized treating physician. Finally, based on the evidence before it, the Commission found Plaintiff\u2019s trial return to work in the meter reader position \u201cwas a failed return to work.\u201d Accordingly, the Commission, with one commissioner dissenting, awarded Plaintiff temporary total disability from 25 October 1993 through 4 February 1996, partial disability from 5 February 1996 through 12 February 1996 (during his trial return to work at lower wages than his pre-injury employment), and temporary total disability from 19 February 1996 \u201cuntil further order of the Commission.\u201d\nThe issues are whether: (I) Dr. Rodger\u2019s testimony was incompetent because it was based on \u201cmere speculation\u201d; (II) Dr. Rodger could not certify that Plaintiff\u2019s return to work was unsuccessful because he was not Plaintiff\u2019s authorized treating physician; and (III) private conversations between the authorized treating physician and the rehabilitation professional without the employee\u2019s consent are permissible.\nI\nDefendants first contend the testimony of Dr. Rodger was incompetent because it was based on \u201cmere speculation.\u201d\nIn this case, it is clear from the record that Dr. Rodger based his opinion that Plaintiff could not perform the meter reader position primarily on Plaintiff\u2019s subjective complaints. It does not follow, however, that Dr. Rodger\u2019s opinion was based on \u201cmere speculation.\u201d See, e.g., Ballenger v. Burris Industries, 66 N.C. App. 556, 567, 311 S.E.2d 881, 887 (expert testimony as to causation is incompetent if based on \u201cmere speculation and possibility\u201d), disc. review denied, 310 N.C. 743, 315 S.E.2d 700 (1984). A physician\u2019s diagnosis often depends on the patient\u2019s subjective complaints, and this does not render the physician\u2019s opinion incompetent as a matter of law. Dr. Rodger was aware of Plaintiff\u2019s history to a certain extent because he had been Plaintiff\u2019s initial treating physician for his back injury, and Dr. Rodger testified he was \u201cconvinced\u201d that Plaintiff was unable to tolerate the meter reader position due to his injury. Dr. Rodger further testified that, in his medical opinion, Plaintiff could not perform the job. In addition, Dr. Rodger\u2019s testimony that he derived his update of Plaintiff\u2019s history from Plaintiff and from \u201csupposition and guesswork\u201d following his review of Plaintiff\u2019s x-rays does not render his testimony incompetent, because the method by which Dr. Rodger derived his update of Plaintiff\u2019s history is a separate question from his determination of Plaintiff\u2019s inability to perform the meter reader position. On that question, Dr. Rodger was clear: in his medical opinion, Plaintiff could not perform the meter reader job. Although the Commission could have given Dr. Rodger\u2019s opinion less weight due to the fact that it was based on Plaintiff\u2019s subjective complaints rather than objective testing, it was not required to do so. See Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (holding the Commission \u201cis the sole judge of the credibility of the witnesses and the weight to be given their testimony\u201d).\nII\nDefendants further contend Dr. Rodger could not certify that Plaintiff\u2019s return to work was unsuccessful due to his compensable injury because Dr. Rodger was not Plaintiff\u2019s authorized treating physician. Although we agree with Defendants that Dr. Rodger was not the appropriate party to sign Plaintiff\u2019s Form 28U, this does not constitute reversible error at this stage of the proceedings.\nSection 97-32.1 provides that an employee may \u201cattempt a trial return to work.\u201d N.C.G.S. \u00a7 97-32.1 (Supp. 1998). \u201cIf the trial return to work is unsuccessful, the employee\u2019s right to continuing compensation under G.S. 97-29 [for total incapacity] shall be unimpaired . . . .\u201d Id. The determination of whether an employee\u2019s trial return to work was unsuccessful is made by the Commission. See N.C.G.S. \u00a7 97-84 (1991) (determination of disputed issues). To expedite reinstatement of an employee\u2019s compensation pending a determination by the Commission of whether an employee\u2019s return to work was unsuccessful, the Commission\u2019s rules provide that an employee may file a Form 28U \u201cRequest that Compensation be Reinstated.\u201d Workers\u2019 Comp. R. N.C. Indus. Comm\u2019n 404A(2), 1999 Ann. R. N.C. 690. The Form 28U must contain a certification by the employee\u2019s \u201cauthorized treating physician\u201d that, in the physician\u2019s medical opinion, the employee is unable to continue with the trial return to work because of his compensable injury. Id. Upon the filing of a \u201cproperly completed\u201d Form 28U, the defendant-employer \u201cshall forthwith resume payment of compensation for total disability.\u201d Id. If it is thereafter determined by the Commission that the employee\u2019s trial return to work was not unsuccessful due to his injury, then the defendant-employer is entitled to a credit for sums paid pursuant to the Form 28U. Workers\u2019 Comp. R. N.C. Indus. Comm\u2019n 404A(4), 1999 Ann. R. N.C. 691.\nAn employee\u2019s \u201cauthorized treating physician\u201d is generally selected by the employer. See Schofield v. Tea Co., 299 N.C. 582, 586-87, 264 S.E.2d 56, 60 (1980). If the employee prefers, however, he may select, subject to the Commission\u2019s approval and authorization, a new physician. Id.; see also Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 207, 472 S.E.2d 382, 387 (noting that approval of a new physician is within the Commission\u2019s discretion), cert. denied, 344 N.C. 629, 477 S.E.2d 39 (1996). Although the Commission\u2019s approval and authorization need not be obtained prior to seeking the services of a new treating physician, it must be obtained within a reasonable time after the employee has selected the new physician. Schofield, 299 N.C. at 593, 264 S.E.2d at 63. Where an employee seeks retroactive authorization of a new treating physician, the Commission \u201cmust make findings relative to whether such approval was sought . . . within a reasonable time.\u201d Id. at 594, 264 S.E.2d at 64.\nIn this case, Plaintiff returned to work on 7 February 1996. Plaintiff worked approximately one week, and then submitted a Form 28U, signed by Dr. Rodger, requesting reinstatement of his total disability compensation due to an unsuccessful return to work. Although Dr. Rodger had initially been Plaintiffs authorized treating physician, Plaintiff had not been treated by Dr. Rodger for nearly two years at the time of Plaintiffs trial return to work as a meter reader. Plaintiffs authorized treating physician at that time was Dr. Hicks. Accordingly, Plaintiffs Form 28U was not \u201cproperly completed\u201d when Plaintiff obtained the certification of Dr. Rodger. Dr. Rodger was not Plaintiffs authorized treating physician, and there is no indication in the record that Plaintiff, at any time either before or after having Dr. Rodger sign his Form 28U, sought the Commission\u2019s approval of Dr. Rodger as his authorized treating physician. The Commission ultimately found, however, based on competent evidence in the record, that Plaintiffs return to work was \u201ca failed return to work\u201d due to his work-related compensable injury. It follows that Plaintiffs failure to submit a \u201cproperly completed\u201d Form 28U, which would merely have reinstated compensation pending the Commission\u2019s determination on this issue, does not require reversal.\nIll\nFinally, Defendants contend the Full Commission erred in excluding, or assigning no weight to, Dr. Hicks\u2019 testimony based solely on his conversation with the rehabilitation professional assigned to Plaintiff\u2019s case outside Plaintiff\u2019s presence and without his consent.\nThe defendant and defense counsel are precluded from engaging in ex parte communications with the plaintiff\u2019s nonparty treating physician without the plaintiff\u2019s consent. Salaam v. N.C. Dept. of Transportation, 122 N.C. App. 83, 87-88, 468 S.E.2d 536, 538-39 (1996) (quoting Crist v. Moffatt, 326 N.C. 326, 336, 389 S.E.2d 41, 47 (1990)), disc. review improvidently allowed, 345 N.C. 494, 480 S.E.2d 51 (1997). It follows that, if the rehabilitation professional is an agent of the defendant, her communication with the plaintiff\u2019s treating physician is also barred by Salaam.\nRehabilitation professionals, as defined by the Commission, are \u201ccase managers and coordinators of medical rehabilitation services and/or vocational rehabilitation services.\u201d N.C. Indus. Comm\u2019n Rules for Rehabilitation Professionals 1(A), 1999 Ann. R. N.C. 745. A rehabilitation professional\u2019s case management services include, but are not limited to:\n[C]ase assessment, including a personal interview with the injured worker; development, implementation and coordination of a care plan with health care providers and with the worker and family; evaluation of treatment results; planning for community re-entry; return to work with the employer of injury and/or referral for further vocational rehabilitation services.\nId., at 1(D), 1999 Ann. R. N.C. 745. A rehabilitation professional\u2019s medical rehabilitation services include \u201cthe planning and coordination of health care services appropriate to achievement of the goal of medical rehabilitation.\u201d Id. Rehabilitation professionals are required to \u201cexercise independent professional judgment in making and documenting recommendations for medical arid vocational rehabilitation,\u201d id., at VI(B), 1999 Ann. R. N.C. 748, and \u201chave an obligation to provide unbiased, objective opinions,\u201d id., at V(D), 1999 Ann. R. N.C. 747. In addition, rehabilitation professionals are bound by the ethical rules of their field of certification. Id., at V(A), 1999 Ann. R. N.C. 747. Finally, the Commission\u2019s rules provide that rehabilitation professionals \u201cshall not accept any compensation or reward from any source as a result of settlement.\u201d Id., at VI(E)(3), 1999 Ann. R. N.C. 748. It follows from all of the above that the role of a rehabilitation professional is not that of an agent for either the defendant or the plaintiff, but of a neutral and unbiased proponent of the plaintiff\u2019s rehabilitation. Accordingly, Salaam does not, as a matter of law, prohibit communication between the rehabilitation professional and the plaintiff\u2019s non-party treating physician. Of course, where evidence is presented that the rehabilitation professional is the agent of the defendant rather than a neutral and unbiased professional, Salaam will apply. We will not assume, however, without supporting evidence, that a rehabilitation professional is acting as the agent of the defendant, because acting as the defendant\u2019s agent would be unethical and in violation of the Commission\u2019s rules.\nIn this case, the evidence supports the Commission\u2019s finding that Dr. Hicks and Nurse Lipscomb communicated outside Plaintiff\u2019s presence and without his consent. Plaintiff testified that Dr. Hicks left his presence to speak with Nurse Lipscomb; Dr. Hicks testified that, although he had no recollection of the conversation, such a conversation would not have been unusual; and Nurse Lipscomb noted the substance of her conversation with Dr. Hicks in her Progress Report, as required by the Commission\u2019s rules. No evidence was presented, however, which would show that Nurse Lipscomb was an agent of Defendants. Accordingly, Salaam does not require exclusion of any of Dr. Hicks\u2019 testimony based on his private conversation with Nurse Lipscomb.\nThe remaining question is whether the rules of the Commission prohibit communication between a rehabilitation professional and the plaintiff\u2019s treating physician. The Commission\u2019s rules expressly provide \u201cno right to confidential communication between the [rehabilitation professional], the parties, the physician, or the health-care providers.\u201d N.C. Indus. Comm\u2019n Rules for Rehabilitation Professionals VII(E), 1999 Ann. R. N.C. 749; see also N.C.G.S. \u00a7 97-27 (1991) (\u201c[N]o fact communicated to or otherwise learned by any physician . . . shall be privileged in any workers\u2019 compensation case . . . .\u201d). The rules further provide:\nIf the [rehabilitation professional] wishes to obtain medical information in a personal conference with the physician following an examination, the [rehabilitation professional] should reserve with the physician sufficient appointment time for a conference. The worker must be offered the opportunity to attend this conference with the physician. If the worker or the physician does not consent to a joint conference, or if in the physician\u2019s opinion it is medically contraindicated for the worker to participate in the conference, the [rehabilitation professional] will note this in his or her report and may in such case communicate directly with the vhvsician and shall report the substance of the communication.\nN.C. Indus. Comm\u2019n Rules for Rehabilitation Professionals VIII(C), 1999 Ann. R. N.C. 749 (emphases added). Although the Commission\u2019s rules indicate a strong preference that the plaintiff be present during conferences between the treating physician and the rehabilitation professional, the rules expressly give the treating physician broad discretion to confer with the rehabilitation professional outside the plaintiff\u2019s presence whether or not the plaintiff has consented. Accordingly, the fact that a treating physician and a rehabilitation professional have communicated outside the plaintiff\u2019s presence without the plaintiffs consent, without more, does not violate the Commission\u2019s rules. Dr. Hicks\u2019 private conversation with Nurse Lipscomb therefore does not require exclusion of his testimony, and likewise does not support disregarding his testimony or assigning it no weight. The Commission\u2019s apparent misapprehension of the applicable law on this issue requires us to remand for reconsideration of Plaintiff\u2019s case. See, e.g., Teer Co. v. Highway Commission, 265 N.C. 1, 14, 143 S.E.2d 247, 257 (1965) (\u201c[W]hen it appears that the Industrial Commission has found the facts under a misapprehension of the applicable law, the cause will be remanded for findings of fact by the Industrial Commission upon consideration of the evidence in its true legal light.\u201d); Cauble v. The Macke Co., 78 N.C. App. 793, 795, 338 S.E.2d 320, 322 (1986).\nReversed and remanded.\nJudge MARTIN concurs.\nJudge WYNN dissents in part.\n. \u201cThe Commission may adopt utilization rules and guidelines . . . for vocational rehabilitation services and other types of rehabilitation services.\u201d N.C.G.S. \u00a7 97-25.5 (Supp. 1998).\n. We also note that a rehabilitation professional \u201cmay be removed from a case upon motion by either party for good cause shown or by the Industrial Commission in its own discretion.\u201d N.C. Indus. Comm\u2019n Rules for Rehabilitation Professionals X(A), 1999 Ann. R. N.C. 750. It follows that a plaintiff who believes the rehabilitation professional is behaving unethically or in violation of the Commission\u2019s rules may seek her removal.\n. Of course, the Commission may find that Dr. Hicks\u2019 testimony is entitled to no weight, or less weight, for permissible reasons, as the Commission is the judge of the weight to be assigned to the evidence before it.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge Wynn\ndissenting in part.\nI disagree with the majority\u2019s holding that the Full Commission erred in assigning no weight to Dr. Hicks\u2019 testimony. In essence, the majority failed to consider whether competent evidence existed to support the Commission\u2019s finding that Dr. Hicks\u2019 conversation with the rehabilitation nurse gave \u201cat least\u201d the appearance of undue influence.\nIn Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), our Supreme Court reiterated the limited role of this Court in reviewing decisions of the Industrial Commission. There, the Supreme Court instructed us that the Industrial Commission is the fact-finding body, and is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See id. Thus, the findings of fact made by the Commission are conclusive on appeal when supported by competent evidence, even when there is evidence to support a finding to the contrary. See Plummer v. Henderson Storage Company, 118 N.C. App. 727, 456 S.E.2d 886 (1995).\nFurther, the Supreme Court stated that this Court \u201c \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight. [In fact,] [t]he court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).\nHere, the pertinent findings that relate to Dr. Hicks\u2019 conversation with the rehabilitation nurse are:\n18. The Commission gives great weight to the opinions of Drs. Rodger and Grobler in their treatment of plaintiff because their treatment accomplished the most toward solving plaintiff\u2019s medical problem. The Full Commission gives no weight to the evidence of Dr. Hicks who left at least the appearance of undue influence by the rehabilitation nurse by stepping outside the presence of the plaintiff and into the presence of the rehabilitation nurse before saying whether or not he would sign the Form 28U.\n19. ... The Deputy Commission also erred in not considering the possibility of undue influence upon Dr. Hicks by the medical rehabilitation nurse, who had apparently had a private conversation with Dr. Hicks just prior to his initial refusal to sign the Form 28U. . . .\nThese findings state that the Full Commission considered the opinions of Drs. Rodger, Grobler, and Hicks, but chose not to give any weight to Dr. Hicks\u2019 testimony. The evidence shows that neither Dr. Rodger nor Dr. Grobler consulted with the rehabilitation nurse prior to making their medical decisions. Their medical conclusions favoring the plaintiff indeed are some evidence supporting the Commission\u2019s findings that there was \u201cleft at least\u201d a \u201cpossibility of undue influence upon Dr. Hicks by the medical rehabilitation nurse.\u201d\nMoreover, Dr. Hicks testified that the plaintiff informed him that two physicians in Statesville had seen \u201csomething on [the plaintiff\u2019s] x-ray that would explain his pain.\u201d According to plaintiff\u2019s testimony, Dr. Hicks refused to review the accompanying x-rays at the time that the plaintiff presented the Form 28U for his approval. This again is some evidence to support the Commission\u2019s findings.\nFurther, the plaintiff testified that he thought that Dr. Hicks was going to sign the form prior to his conversation with the rehabilitation nurse. He testified that following this conversation, Dr. Hicks handed the plaintiff the form and informed him that he could not sign it. This, too, is some evidence supporting the Commission\u2019s findings.\nDespite Dr. Hicks\u2019 refusal to sign the Form 28U, he testified that in his opinion the plaintiff would be expected to live with some form of pain for the rest of his life which would limit certain jobs that he could perform. Additionally, Dr. Hicks admitted that he had no reason not to believe the plaintiff\u2019s complaints of pain that he experienced while walking, standing, and sitting \u2014 which are all activities the plaintiff was required to perform in his position as a meter reader.\nFinally, the Commission is the fact-finding body for matters arising under the Workers Compensation Act. As such, it considers numerous claims involving rehabilitation nurses. The Commission, not this Court, best understands the function of those specialists and their roles.\nAs long as there was any competent evidence to support the possibility of undue influence upon Dr. Hicks, the Commission\u2019s findings on this basis are conclusive on appeal. See Plummer, 118 N.C. App. at 730, 456 S.E.2d at 888. And while contrary evidence existed, competent evidence supported the finding that Dr. Hicks\u2019 consultation with the rehabilitation nurse prior to agreeing to sign the Form 28U created \u201cat least the appearance of undue influence.\u201d Accordingly, I dissent.", "type": "dissent", "author": "Judge Wynn" } ], "attorneys": [ "Law Offices of Edward, Jennings, by Griffis C. Shuler, for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Mel J. Garofalo and Shelley Walters Coleman, for defendant-appellants." ], "corrections": "", "head_matter": "MICHAEL JENKINS, Employee, Plaintiff v. PUBLIC SERVICE COMPANY OF NORTH CAROLINA, Employer, SELF-INSURED CONSTITUTION STATE SERVICE COMPANY, Servicing Agent, Defendants\nNo. COA98-1072\n(Filed 3 August 1999)\n1. Workers\u2019 Compensation\u2014 testimony of doctor \u2014 based on employee\u2019s subjective complaints\nThe Industrial Commission did not err in concluding plaintiff-employee\u2019s second doctor did not give incompetent testimony based on \u201cmere speculation.\u201d Although the Industrial Commission could have given the doctor\u2019s opinion less weight due to the fact that it was based on plaintiff\u2019s subjective complaints rather than on objective testing, it was not required to do so.\n2. Workers\u2019 Compensation\u2014 failure to properly complete Form 28U not reversible error \u2014 not the authorized treating physician\nPlaintiff-employee\u2019s failure to submit a \u201cproperly completed\u201d Form 28U did not require reversal because the Industrial Commission ultimately found that plaintiff\u2019s return to work was a \u201cfailed return to work\u201d based on his work-related compensable injury. The form was improperly completed because although the doctor who signed it was plaintiff\u2019s initial authorized treating physician, the doctor had not treated plaintiff for nearly two years at the time of plaintiffs trial return to work as a meter reader and another doctor was currently plaintiffs authorized treating physician.\n3. Workers\u2019 Compensation\u2014 private communication \u2014 treating physician and rehabilitation professional \u2014 exclusion of testimony not required \u2014 not an agent of defendant\nThe Industrial Commission erred in excluding or assigning no weight to the authorized treating physician\u2019s testimony pursuant to Salaam v. N.C. Dept, of Transp., 122 N.C. App. 83 (1996), because there is no evidence that the rehabilitation professional is an agent of defendant barring the rehabilitation professional\u2019s communication with plaintiffs treating physician.\n4. Workers\u2019 Compensation\u2014 private communication \u2014 treating physician and rehabilitation professional \u2014 exclusion of testimony not required \u2014 Industrial Commission\u2019s rules\u2014 broad discretion\nThe Industrial Commission erred in excluding or assigning no weight to the authorized treating physician\u2019s testimony based on the Commission\u2019s rules merely because he communicated with a rehabilitation professional outside plaintiff\u2019s presence without plaintiff\u2019s consent. Although the Industrial Commission\u2019s rules indicate a strong preference that plaintiff-employee be present during conferences between the treating physician and the rehabilitation professional, the rules expressly give the treating physician broad discretion to confer with the rehabilitation professional outside plaintiff\u2019s presence with or without plaintiff\u2019s consent.\nJudge Wynn dissenting.\nAppeal by defendants from Opinion and Award filed 1 June 1998 by the North Carolina Industrial Commission. Heard in the Court of Appeals 11 May 1999.\nLaw Offices of Edward, Jennings, by Griffis C. Shuler, for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Mel J. Garofalo and Shelley Walters Coleman, for defendant-appellants." }, "file_name": "0405-01", "first_page_order": 437, "last_page_order": 449 }