{ "id": 9366720, "name": "CAROLYN BOLES, Plaintiff v. U.S. AIR, INC., Defendant, SELF-INSURED (ALEXIS, INC., Servicing Agent)", "name_abbreviation": "Boles v. U.S. Air, Inc.", "decision_date": "2002-02-05", "docket_number": "No. COA01-61", "first_page": "493", "last_page": "501", "citations": [ { "type": "official", "cite": "148 N.C. App. 493" } ], "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": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "528 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "635", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094063 ], "year": 2000, "pin_cites": [ { "page": "465", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0461-01" ] }, { "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", "year": 1996, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912507 ], "year": 1996, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0200-01" ] }, { "cite": "365 S.E.2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570853, 2570349, 2567695, 2568946, 2569780 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0744-04", "/nc/321/0744-03", "/nc/321/0744-02", "/nc/321/0744-01", "/nc/321/0744-05" ] }, { "cite": "362 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "88 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357925 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/88/0136-01" ] }, { "cite": "423 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "employee's own testimony concerning level of pain he suffered was competent evidence as to his ability to work" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523702 ], "year": 1992, "pin_cites": [ { "parenthetical": "employee's own testimony concerning level of pain he suffered was competent evidence as to his ability to work" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0259-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "312 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "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, "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": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "308 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "336", "parenthetical": "quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" }, { "page": "336" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527561 ], "year": 1983, "pin_cites": [ { "page": "697", "parenthetical": "quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0695-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "488 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139458, 139363, 139469, 139548, 139613 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0546-05", "/nc/346/0546-03", "/nc/346/0546-04", "/nc/346/0546-02", "/nc/346/0546-01" ] }, { "cite": "484 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710610 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0354-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "604" }, { "page": "604" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "132-33" }, { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] } ], "analysis": { "cardinality": 910, "char_count": 20495, "ocr_confidence": 0.759, "pagerank": { "raw": 2.066329499440206e-07, "percentile": 0.7571825616088043 }, "sha256": "80cf25592cbd290dea29ee176ed15eec3029a41272b1034b06d7f0b9cb7d74c6", "simhash": "1:6525cda7f607525f", "word_count": 3218 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge BIGGS concur." ], "parties": [ "CAROLYN BOLES, Plaintiff v. U.S. AIR, INC., Defendant, SELF-INSURED (ALEXIS, INC., Servicing Agent)" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant appeals from an opinion and award of the North Carolina Industrial Commission (hereinafter \u201cCommission\u201d) awarding plaintiff continuing benefits. Evidence before the Commission tended to show that plaintiff, Carolyn Boles, was employed by defendant, U.S. Air, Inc. (now U.S. Airways, Inc.) as a reservation sales agent (reservationist), providing booking and flight information to the public by telephone. Her job required her to sit at a computer keyboard throughout the workday keying in the necessary information. This work not only physically required her to use both hands repetitively, but cognitively required concentration, memory, and attention to detail. On 7 March 1991, plaintiff tripped and fell on a curb outside her office building as she was going into work. From the fall, plaintiff sustained a back injury manifested by chronic incapacitating neck, left shoulder, and left arm pain. Because plaintiffs symptoms did not significantly improve with conservative treatment (cervical traction, anti-inflammatory medications, and physical therapy), on 21 May 1992, she was examined by Dr. Curling, a neurosurgeon. Dr. Curling testified that an MRI revealed a large spur and associated disk bulge at C5-C6 and that he advised plaintiff to undergo a cervical discectomy at C5-C6 and an iliac crest interbody fusion at C5-C6. Dr. Curling performed this surgical procedure on 17 June 1992 and released plaintiff, without restrictions, on 24 September 1992 to return to work at U.S. Air, Inc., starting on half days for the first two weeks and then working up to whole days.\nAt the end of September 1992 the Commission approved the parties\u2019 Form 21 \u201cAgreement for Compensation for Disability\u201d wherein defendant accepted plaintiffs injury by accident resulting in an \u201cHNP [at] C5-C6.\u201d Additionally, the Commission approved several Form 26 Agreements for temporary total disability of various weeks (not continuous) in 1991 and 1992. In December 1992, Dr. Curling found plaintiff at maximum medical improvement (MMI) and rated her at approximately 10 percent permanent partial disability and released her from his care. Dr. Curling noted that plaintiff was having minimal neck discomfort but that plaintiff had returned to work and was doing her usual job without significant difficulty. On 25 February 1993, the Commission approved the parties\u2019 Form 26 \u201cSupplemental Memorandum of Agreement as to Payment of Compensation\u201d for a 10 percent permanent partial disability to the back (for 30 weeks of benefits at the rate of $306.42 per week from 10 December 1992 pursuant to G.S. \u00a7 97-31).\nOn 10 February 1993, plaintiff was again seen by Dr. Curling, complaining of recurrent pain in the neck and left arm. Dr. Curling stated in a letter to plaintiff that her pain was caused by nerve injury and recommended that plaintiff take Elavil for her recurrent neck and arm pain. On 23 August 1993, plaintiff called Dr. Curling indicating that she was having problems with depression and was feeling suicidal and asked that he write a letter giving her permission to stay out of work for two to three weeks so that she could \u201cget her act together.\u201d Dr. Curling recommended that plaintiff go to the emergency room and undergo a psychiatric evaluation, contact her family physician, or schedule an appointment with a psychiatrist as soon as possible.\nOn 23 September 1993, plaintiff\u2019s psychiatrist, Dr. Branham, diagnosed plaintiff with major depression and wrote, \u201c[a]t the present time I feel that it would be totally necessary for [plaintiff] to have the least amount of stress possible and since work is a major stress on her life I think she should be held out of work until further notice.\u201d Dr. Branham noted that since 7 March 1991, plaintiff had a history of feeling futile, hopeless, and tearful about her chronic pain. Dr. Branham also noted that she had problems sleeping, concentration and memory difficulties, and a loss of interest in daily and family activities. He prescribed chemotherapeutic intervention with antidepressant medication. Following this diagnosis, plaintiff regularly returned to Dr. Branham for treatment.\nOn 19 July 1994, Dr. Branham indicated in a letter to defendant that \u201c[d]ue to depression, the concentration, physical stamina, memory, and ability to withstand stress have all been eroded to such a degree that [plaintiff] is unable to work.\u201d During Dr. Branham\u2019s 1995 deposition, he stated that plaintiff could not return to work because of her pain, her memory and concentration deficits, which he noted were two symptoms of depression, and her difficulty relating to other people. During his 1998 deposition, Dr. Branham testified that he had never considered return to work as a goal, but that plaintiff no longer suffered from impaired memory or cognitive abilities, nor did she have difficulty with interpersonal relations. In the 1998 deposition, Dr. Branham testified that he thought that plaintiff was unable to return to work because she suffers from chronic pain syndrome and intermittent depression.\nOn 15 March 1994, plaintiff filed a motion pursuant to G.S. \u00a7 97-47, alleging she had a change in condition, and moved for additional compensation. She alleged that as a result of increased neck pain and depression, she had been unable to work since 28 September 1993. She also moved, pursuant to G.S. \u00a7 97-25, for approval of further medical treatment by Dr. Branham.\nOn 28 June 1994, after reviewing the results of a functional capacity evaluation, Dr. Curling indicated that plaintiff could return to work on a light-demand level. Additionally, Dr. Curling stated that in his opinion plaintiff was capable of returning to work as a reservations agent.\nPlaintiff was sent by defendant for a second opinion and psychological testing to clinical psychologist John F. Warren, III. In September 1994, Dr. Warren tested plaintiffs memory and concentration using the Wechsler Memory Scale-Revised and found that her general memory and verbal memory scores fell within the Superior range. In addition, plaintiffs visual memory, attention/concentration, and delayed recall index scores fell within the Average range. From these test results, Dr. Warren indicated there were no signs of severe memory problems that would cause plaintiff difficulty in terms of trying to attend to the affairs of daily living or work. Plaintiff was also administered the Booklet Category Test (BCT), which is a comprehensive, cognitive screening test designed to evaluate for the presence of cerebral dysfunction. Plaintiff performed within the Average range which suggests \u201cthat her non-verbal abstract reasoning and logical analysis skills are adequate for making most decisions required for organized planning and practical, everyday living and working situations.\u201d Dr. Warren recommended limited mental health intervention with goals and plans, as opposed to a more traditional, open-ended analytic or dynamic mental health treatment.\nIn February 1997, Dr. Jones evaluated plaintiff upon defendant\u2019s request that he provide a second opinion to clarify plaintiff\u2019s psychiatric condition, as well as make recommendations regarding her ability to return to work. At the time of the evaluation, Dr. Jones felt that plaintiff\u2019s depressive disorder was in remission. Dr. Jones did not find any impairments that would keep plaintiff from being capable of performing tasks required in the reservationist position. Dr. Jones opined that treatment with specific benchmarks would be more appropriate than Dr. Branham\u2019s open-ended treatment program.\nDuring the hearing, plaintiff admitted that she was aware that Dr. Branham was the only physician that she had seen since 1993 who is continuing to excuse her from work as a reservationist. Plaintiff also testified that she did not feel that she was capable of performing her job as reservationist because she was in so much pain that it caused her to have impaired memory and cognitive ability. Plaintiff further testified that she has not attempted to perform the actual job of reser-vationist since September 1993.\nOn 25 January 1995 a deputy commissioner heard plaintiff\u2019s G.S. \u00a7 97-47 motion to reopen her claim by reason of a change in condition for the worse, and her G.S. \u00a7 97-25 motion for Commission approval of Dr. Branham and Dr. Rauck. On 5 May 1995, the deputy commissioner ruled that plaintiff had sustained a substantial change for the worse in her condition from the 7 March 1991 back injury resulting in her becoming totally disabled by the same injury on 24 September 1993. Plaintiff was awarded compensation at a rate of $306.42 per week from 24 September 1993 to the scheduled hearing date and continuing thereafter at the same rate for so long as she remains totally disabled. The deputy commissioner also ruled that defendant shall pay all reasonable and necessary medical expenses incurred by plaintiff as a result of her substantial change of condition, including continued psychiatric treatment provided by Dr. Branham and any other treatment he may reasonably recommend that would tend to reduce her chronic incapacitating pain such as a return to the pain clinic. Neither party appealed from the deputy commissioner\u2019s opinion and award.\nOn 7 April 1997, defendant filed a Form 24 \u201cApplication to Terminate Payment of Compensation\u201d, alleging that plaintiff had unjustifiably refused the employer\u2019s offer of suitable employment (as reservations agent) on 14 March 1997. The matter was heard by a deputy commissioner who ruled that plaintiff was justified in refusing the job offer under G.S. \u00a7 97-32, that plaintiff remains totally disabled as a result of her 7 March 1991 compensable injury and is entitled to continuing compensation under G.S. \u00a7 97-29, and that Dr. Branham remain the treating physician under G.S. \u00a7 97-25. Defendant appealed to the Full Commission which modified and affirmed the decision of the deputy commissioner and ordered defendant to continue to pay compensation to plaintiff for temporary total disability, and to continue to pay for her medical treatment, including that provided by Dr. Branham. Defendant appeals.\nI.\nDefendant first contends that there is no competent evidence to support the Commission\u2019s finding of fact that plaintiff remains disabled and therefore, the Commission erred in awarding continued temporary total disability compensation to plaintiff. Defendant specifically assigns error to the following Commission\u2019s findings of fact: \u201c. . . Dr. Branham maintains that plaintiff cannot return to work at this time, and remains totally disabled\u201d and \u201c[b]ased upon the restrictions on plaintiff\u2019s return to work imposed by [Dr. Branham], the job of reservation agent was not suitable employment and plaintiff\u2019s refusal to accept the job of reservation agent offered by defendant on 14 March 1997, was justified.\u201d\nAt the outset, \u201c[t]he standard of review for an appeal from an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). If there is competent evidence to support the findings, they are conclusive on appeal even though there is evidence to support contrary findings. Hedrick v. PPG Industries, 126 N.C. App. 354, 484 S.E.2d 853, disc. review denied, 346 N.C. 546, 488 S.E.2d 801 (1997). However, \u201c... findings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them.\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). We also emphasize that \u201c \u2018[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Dolbow v. Holland Industrial, Inc., 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983) (quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984). \u201cThus, the Commission may assign more weight and credibility to certain testimony than other.\u201d Id. at 697, 308 S.E.2d at 336. See also Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).\nDefendant argues that the Commission improperly relied on Dr. Branham\u2019s testimony in its determination that plaintiff remains totally disabled. Defendant specifically argues that Dr. Branham\u2019s opinion testimony is speculative and therefore incompetent evidence. Defendant notes that in 1993, Dr. Branham wrote plaintiff out of work to reduce stress, testified in 1995 that plaintiff was unable to work due to pain, impaired mental and cognitive abilities, and difficulty relating to other people, and testified in 1998 that plaintiff\u2019s impaired mental and cognitive abilities and plaintiff\u2019s difficulty with interpersonal relationships had resolved but that she was still unable to return to work due to pain and intermittent depression. Defendant argues that Dr. Branham\u2019s 1995 testimony that pain was largely a function of plaintiff\u2019s anatomical problem with which Dr. Curling was more familiar was inconsistent with his 1998 testimony that plaintiff is unable to perform as a reservationist because of the concentration and agility of movement required and because using the left arm could increase her pain. Defendant points out that Dr. Branham testified there were no tests to measure pain and therefore, defendant asserts Dr. Branham must be relying on plaintiff\u2019s perception of pain to determine when plaintiff can return to work.\nThere was competent evidence, from the testimony of Dr. Branham and from plaintiff\u2019s own testimony, supporting the Commission\u2019s finding that plaintiff continues to be totally disabled. This Court has previously held that an employee\u2019s own testimony as to pain and ability to work is competent evidence as to the employee\u2019s ability to work. See Matthews v. Petroleum Tank Service, Inc. 108 N.C. App. 259, 423 S.E.2d 532 (1992) (employee\u2019s own testimony concerning level of pain he suffered was competent evidence as to his ability to work); Niple v. Seawell Realty & Indus. Co., 88 N.C. App. 136, 362 S.E.2d 572 (1987), (employee\u2019s own testimony as to pain upon physical exertion competent evidence as to her ability to work), disc. review denied, 321 N.C. 744, 365 S.E.2d 903 (1988). Plaintiff testified that she believes that she is unable to handle calls as a reservationist because one must keep a lot of information in memory, it is stressful, and \u201c. . . with the pain that I\u2019ve got, I cannot think at times .... I have constant pain, and . . . when the pain overwhelms me, I am not able to keep my thoughts in line . . . [and] at times, [] I totally go blank.\u201d She further stated, \u201c. . . I probably could do this job for two or three hours. But then ... I\u2019d be in bed after that . . . .\u201d Plaintiff occasionally works out in her yard, which entails driving a lawn tractor and pushing a fertilizer spreader, but plaintiff explained that the reservationist position is more mentally demanding and she is only able to work in her yard on her good days which are rare. Thus, we conclude that there is competent evidence supporting the Commission\u2019s finding that plaintiff remains totally disabled.\nDefendant argues, however, that there was competent medical evidence upon which the Industrial Commission could have relied to conclude that plaintiff is able to return to work. Defendant points out that Dr. Branham is the only doctor who currently claims plaintiff is unable to work. Dr. Curling released plaintiff from a physical standpoint and Dr. Warren and Dr. Jones released plaintiff from a psychological standpoint. Defendant also points out that unlike Dr. Branham, Dr. Warren and Dr. Jones relied on objective testing of plaintiff\u2019s abilities and deferred to Dr. Curling\u2019s assessment of her physical pain. Dr. Jones found that plaintiff\u2019s depressive disorder was in remission and he did not find any impairments that would keep plaintiff from being capable of working as a reservationist. That there may be competent evidence supporting a finding that plaintiff does not remain totally disabled, however, is not dispositive since the issue before us is whether there is any competent evidence in the record supporting the Commission\u2019s finding that plaintiff remains totally disabled. See Goff, 140 N.C. App. at 132, 535 S.E.2d at 604. If so, the Commission\u2019s findings are conclusive on appeal even though there is evidence to support contrary findings. Hedrick, 126 N.C. App. at 357, 484 S.E.2d at 856. Since there was competent evidence supporting the Commission\u2019s finding that plaintiff continues to be totally disabled, we hold that the Commission did not err in awarding continued temporary total disability compensation to plaintiff.\nII.\nDefendant next argues the Commission abused its discretion in awarding continued medical treatment by Dr. Branham and denying defendant\u2019s motion to change plaintiff\u2019s treating physician. G.S. \u00a7 97-25 provides that \u201c. . . an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of [her] case, subject to the approval of the Industrial Commission.\u201d \u201cThe unambiguous language of this statute, thus, leaves the approval of a physician within the discretion of the Commission and the Commission\u2019s determination may only be reversed upon a finding of a manifest abuse of discretion.\u201d Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 207, 472 S.E.2d 382, 387, cert. denied, 344 N.C. 629, 477 S.E.2d 39 (1996). An \u201c \u2018[a]buse of discretion results where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Long v. Harris, 137 N.C. App. 461, 465, 528 S.E.2d 633, 635 (2000) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).\nThough Dr. Warren and Dr. Jones both testified that their evaluation and opinion of proper treatment methods differed from the treatment provided plaintiff by Dr. Branham, there has been no evidence that Dr. Branham is not a competent physician. Thus, the Commission\u2019s decision to allow Dr. Branham to be plaintiff\u2019s treating physician is not manifestly unsupported by reason and we hold the Commission did not abuse its discretion by failing to remove him.\nAffirmed.\nChief Judge EAGLES and Judge BIGGS concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Walden & Walden, by Daniel S. Walden and Margaret D. Walden, for plaintiff-appellee.", "Brooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr., and Kimberley A. D Arruda, for defendant-appellant." ], "corrections": "", "head_matter": "CAROLYN BOLES, Plaintiff v. U.S. AIR, INC., Defendant, SELF-INSURED (ALEXIS, INC., Servicing Agent)\nNo. COA01-61\n(Filed 5 February 2002)\n1. Workers\u2019 Compensation\u2014 continued temporary total disability \u2014 doctor\u2019s opinion testimony\nThe full Industrial Commission did not err in a workers\u2019 compensation case by awarding continued temporary total disability compensation to plaintiff based on its reliance on one doctor\u2019s opinion testimony concerning plaintiffs pain which relied on plaintiff\u2019s perception of pain to determine that plaintiff was unable to return to work as a reservationist even though three other doctors thought plaintiff was able to work, because: (1) there was competent evidence from the testimony of both the one doctor and from plaintiff\u2019s own testimony supporting this finding; and (2) The Court of Appeals has previously held that an employee\u2019s own testimony as to pain and ability to work is competent evidence as to the employee\u2019s ability to work.\n2. Workers\u2019 Compensation\u2014 continued medical treatment by treating physician \u2014 motion to change treating physician\nThe full Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by awarding continued medical treatment from plaintiff\u2019s treating physician and by denying defendant\u2019s motion to change plaintiff\u2019s treating physician, because although the testimony of two other doctors was that their evaluation and opinion of proper treatment methods differed from the treatment provided by plaintiff\u2019s treating physician, there has been no evidence that the treating physician is not a competent physician.\nAppeal by defendant from opinion and award entered 18 September 2000 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 November 2001.\nWalden & Walden, by Daniel S. Walden and Margaret D. Walden, for plaintiff-appellee.\nBrooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr., and Kimberley A. D Arruda, for defendant-appellant." }, "file_name": "0493-01", "first_page_order": 523, "last_page_order": 531 }