{ "id": 9081914, "name": "RALPH DOUGLAS SHOEMAKER v. CREATIVE BUILDERS and N.C. FARM BUREAU MUTUAL INSURANCE COMPANY", "name_abbreviation": "Shoemaker v. Creative Builders", "decision_date": "2002-06-04", "docket_number": "No. COA01-722", "first_page": "523", "last_page": "531", "citations": [ { "type": "official", "cite": "150 N.C. App. 523" } ], "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": "264 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "62" } ], "opinion_index": 0 }, { "cite": "299 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575647 ], "year": 1980, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0582-01" ] }, { "cite": "415 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313428 ], "year": 1992, "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(19)" } ], "opinion_index": 0 }, { "cite": "391 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 466", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525042 ], "year": 1990, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0466-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1999, "opinion_index": 0 }, { "cite": "483 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53949, 54219, 53871, 53978, 54045 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0343-02", "/nc/345/0343-03", "/nc/345/0343-01", "/nc/345/0343-05", "/nc/345/0343-04" ] }, { "cite": "476 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "439" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888498 ], "year": 1996, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0072-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "379" } ], "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] } ], "analysis": { "cardinality": 819, "char_count": 18014, "ocr_confidence": 0.77, "pagerank": { "raw": 7.500188514851265e-08, "percentile": 0.4464984251977625 }, "sha256": "0260f0c18111e2e1b4b3191b0ab4385058568f619958267951361d930f3ffb88", "simhash": "1:2651ae279c020e42", "word_count": 2709 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUDSON concur." ], "parties": [ "RALPH DOUGLAS SHOEMAKER v. CREATIVE BUILDERS and N.C. FARM BUREAU MUTUAL INSURANCE COMPANY" ], "opinions": [ { "text": "THOMAS, Judge.\nDefendants appeal from an opinion and award of the Industrial Commission (Commission) ordering them to pay compensation to plaintiff for permanent total disability in the amount of $253.53 per week, plus medical expenses and reasonable attorneys\u2019 fees. They set forth six assignments of error. For the reasons herein, we affirm.\nThe facts are as follows: Plaintiff, Ralph Douglas Shoemaker, worked as a carpenter for defendant, Creative Builders. On 14 July 1992, he suffered a back injury that caused him to undergo surgery. Plaintiff and defendants then executed an Industrial Commission Form 21, after which plaintiff began receiving temporary total disability compensation.\nAs a result of the back surgery, however, plaintiff experienced encephalitis, which in turn caused him to suffer a frontal lobe syndrome coupled with an organic affective disorder. These complications led plaintiff, who was described as a caring, emotionally strong person with a good personality prior to the injury, to become flippant, emotionally labile, euphoric, easily distracted, and uninhibited. He experienced lapses in judgment, scattered thinking, and significant impairment of attention and concentration skills. Because of the. organic brain injury, plaintiff now suffers from a panic disorder and depression.\nDr. William Lestini, an orthopedic surgeon, performed plaintiffs back surgery. Lestini stated that plaintiff had reached maximum medical improvement and had sustained a 45% permanent partial disability to his spine. He limited plaintiff on a permanent basis to \u201clight duty restriction as a trim carpenter.\u201d Dr. Barrie Hurwitz, a neurologist, found evidence of focal slowing in plaintiff\u2019s brain and later determined that plaintiff had significant psychological distress and cortical dysfunction consistent with encephalitis. Dr. Patrick Logue, a psychologist, agreed that plaintiff experienced significant cognitive deficits and psychological distress as a result of the encephalitis, and referred him to psychiatry.\nPlaintiff was then evaluated by three psychiatrists. Dr. Victor Morcos gave a prognosis that plaintiff would not be able to function in a normal work environment because of his distractability, emotional instability, and jocular disinhibitive behavior. Plaintiff was seen by Morcos\u2019s partner, Dr. Raouf Badawi, who determined that plaintiff had a frontal lobe syndrome coupled with an organic affective disorder, and was unable to function even in a structured environment such as Goodwill Industries. Dr. Indu Varia later diagnosed plaintiff as suffering from obsessive compulsive disorder and panic disorder. Dr. Angus Mclnnis, plaintiff\u2019s family physician since 1976, noticed the post-surgery personality change as well.\nPlaintiff attempted to work on a part-time basis constructing homes for Alan Miller, but was disruptive on the job site and dismissed. Plaintiff then worked with a private vocational specialist retained by defendants from August 1995 through April 1996. Both alone and with the specialist, plaintiff underwent an extensive but unsuccessful job search in Rockingham County. Brenda Wrenn, who had previously employed plaintiff at her landscaping business, rehired him but found his attention span to be too short to complete necessary tasks. She also dismissed plaintiff.\nBy order entered 9 December 1996, Deputy Commissioner Wanda Blanche Taylor found that plaintiff had sustained a com-pensable injury to his back. Deputy Commissioner Taylor amended the compensation rate for plaintiff\u2019s temporary total disability, which had been wrongly calculated, and awarded plaintiff reimbursement for travel expenses incurred for participation in the rehabilitation program and job search directed by defendants\u2019 vocational consultant.\nIn an administrative order dated 18 December 1996, Deputy Commissioner Taylor denied defendants\u2019 motion to compel plaintiff to participate in a thirty-day Goodwill Industries work skill evaluation program. Defendants appealed the order by filing a Form 33 Request for Hearing. In response, plaintiff asserted that the evidence supported denial of the motion. He claims to be permanently and totally disabled and therefore should not be required to engage in a futile search for employment.\nIn January, 1997, prior to the hearing, plaintiff was driving a motor vehicle and crashed into a power pole. Plaintiff said he started to jerk all over just before the collision and his hands were \u201cspinning.\u201d He next remembered a state trooper knocking on his window. Plaintiff was treated for fractures resulting from the car wreck. He had at least two additional seizure-like episodes in April.\nPlaintiff was admitted to Greensboro Charter Hospital on 30 June 1997 and remained there until 9 July 1997 under the care of Dr. Rupinder Kaur, a psychiatrist, for treatment of depression, insomnia, and severe panic attacks. Kaur\u2019s findings were consistent with the diagnosis of a frontal lobe syndrome with affective lability due to encephalitis. Approximately a year later, plaintiff was again hospitalized at Greensboro Charter Hospital after he told Kaur that he was suicidal and planned to shoot himself. Kaur said that plaintiffs depression requires a psychiatrist to monitor his condition and medications for the remainder of his life. She also said plaintiff is not capable of entering into the workplace or even a sheltered workshop because of his psychiatric problems, namely, his inability to deal with people. Hurwitz, meanwhile, treated plaintiff again several times in 1997. He considered the option of basic work for plaintiff in a sheltered workshop, but eventually came to the conclusion that it would not be appropriate because of plaintiff\u2019s personality disorder.\nAt the hearing in September, 1997, Deputy Commissioner William C. Bost ruled in favor of plaintiff, finding that he was not required to participate in a vocational evaluation at Goodwill Industries, and that he was permanently totally disabled and thus entitled to compensation for the remainder of his life. Defendants appealed to the Full Commission.\nBy order entered 16 January 2001, the Full Commission found that \u201c[s]ince January 24, 1995, plaintiff has been incapable of earning wages ... as a result of physical, cognitive [,] and emotional impairments from his July 14, 1992 injury by accident and related encephalitis.\u201d It further concluded that defendant is \u201ctotally and permanently disabled . . . for the remainder of his life.\u201d The Commission awarded plaintiff benefits in the amount of $253.53 per week for the remainder of his life, reasonable medical expenses, and $750.00 in attorneys\u2019 fees because of defendants\u2019 appeal to the Full Commission. Defendants appeal.\nIn reviewing an award of the Commission, the appellate court is limited to determining whether there was competent evidence before the Commission and whether the findings of fact support the Commission\u2019s conclusions of law. Deese v. Champion Int\u2019l. Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). The Commission\u2019s findings of fact are conclusive on appeal even when there is evidence to support contrary findings. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986).\nBy defendants\u2019 first assignment of error, they contend the Commission erred in finding plaintiff to be permanently and totally disabled. They point to evidence that he returned to work and earned wages from at least two employers while he was receiving total disability compensation. However, \u201cmere proof of return to work is insufficient to rebut the . . . presumption [of disability],\u201d because capacity to earn in suitable employment is the \u201cbenchmark test of disability.\u201d Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 81, 476 S.E.2d 434, 439 (1996), disc. review denied, 345 N.C. 343, 483 S.E.2d 169 (1997).\nHere, the facts establish that plaintiff was unable to find regular work even with the assistance of a vocational specialist. He was unable to maintain any employment for more than a few weeks. Moreover, plaintiff offered medical testimony that he would never be able to work again. The competent evidence presented to the Commission supports its finding that plaintiff is totally and permanently disabled. This assignment of error is overruled.\nBy defendants\u2019 second assignment of error, they contend the Commission erred by finding plaintiff would not benefit from participating in a vocational rehabilitation program at Goodwill Industries.\nThe Commission may order vocational rehabilitation which it determines to be reasonably necessary. See N.C. Gen. Stat. \u00a7 97-25 (1999). In support of their argument, defendants cite the deposition of Mclnnis, who stated that plaintiff \u201ccould be employed with a lot of help.\u201d\nMclnnis, however, continued: \u201cBut as an independent employee . . . with all the responsibilities that people normally have, I think there are problems with that.\u201d Mclnnis further stated that defendant would need to work with \u201cpeople that are very . . . sympathetic ... to his problems\u201d and are \u201cable [and] willing to work with him.\u201d He was then asked if, in his opinion, it would be appropriate to first put plaintiff into something like a sheltered workshop in order to develop a vocational rehabilitation plan. Mclnnis replied: \u201cI think so. I haven\u2019t discussed it with him, and I don\u2019t know how he would react to it.\u201d\nKaur, who most recently treated plaintiff, repeatedly recommended against sending plaintiff to Goodwill Industries. Badawi concurred, saying plaintiff could not function \u201ceven in such a structured environment as Goodwill Industries offers.\u201d Requiring him to work even in a structured environment would, according to Badawi, ultimately lead to hospitalization. The Commission\u2019s finding that vocational rehabilitation in this case is futile is supported by competent evidence and we therefore reject this assignment of error.\nBy their third assignment of error, defendants contend the Commission erred in concluding that defendants are responsible for medical expenses associated with plaintiffs motor vehicle accident on 30 January 1997.\n\u201cThe basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.\u201d 1 Arthur Larson, The Law of Workmen\u2019s Compensation \u00a7 10.01 (2000). Plaintiff testified here that the accident was precipitated by seizure-like activity. Although the doctors are uncertain as to whether the seizure-like activity was due to an actual seizure or an anxiety or panic attack, they agree that either condition was the result of his cognitive or emotional disabilities caused by the compensable encephalitis. In either case, the relationship is direct. Further, case law clearly establishes that injuries resulting from an intervening cause do not preclude compensation, unless the employee intentionally caused the subsequent injury. See English v. J.P. Stevens & Co., 98 N.C. App. 466, 471, 391 S.E.2d 499, 502 (1990). There is substantial, competent evidence adequately supporting the finding that plaintiffs accident is the direct and natural result of his brain damage. We overrule this assignment of error.\nBy defendants\u2019 fourth assignment of error, they argue that plaintiff\u2019s 1992 injury was not the cause of his personality disorder. Defendants concede that plaintiffs encephalitis came into existence after the injury in 1992, but contest the existence of a causal link between the injury and the encephalitis. The causal link between the encephalitis and plaintiff\u2019s personality disorder, defendants maintain, is even more tenuous.\nIn support of their argument, defendants rely solely on the deposition testimony of Hurwitz, who said that he could not \u201crelate any of [plaintiff\u2019s] symptoms to his encephalomalacia with any degree of medical certainty.\u201d Extensive medical records, however, establish that the surgery for the back injury caused the encephalitis, which in turn resulted in plaintiff\u2019s cognitive and personality changes. In 1994, Lestini specifically related plaintiffs encephalitis to his back injury. The diagnoses of Morcos, Varia, and Logue also confirm the causal connection between the compensable injury and ensuing personality disorder. Kaur and Mclnnis agree that the encephalitis caused plaintiffs personality problems. Therefore, the Commission\u2019s findings are supported by competent evidence and we reject this assignment of error.\nBy their final assignment of error, defendants contend the Commission erred in concluding that they are responsible for the cost of plaintiff\u2019s treatment at Charter Hospital beginning on 30 June 1997. Defendants argue that plaintiff did not receive prior authorization for admission and there is no evidence his admission was an emergency under N.C. Gen. Stat. \u00a7 97-25 (1999). Defendants also point out that plaintiff had an appointment on 30 June 1997 with the physician who had treated his fractures from the automobile accident, but admitted himself to Charter Hospital instead. Had plaintiff kept his appointment, defendants claim, the doctor likely could have assisted plaintiff and defendants in coordinating mutually agreeable psychologic or psychiatric treatment.\nSection 97-25 states that \u201c[mjedical compensation shall be provided by the employer.\u201d N.C. Gen. Stat. \u00a7 97-25. Under the statute \u201can 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.\u201d Id. Thus, a plaintiff may choose his own physician provided he: (1) obtains the approval of the Commission within a reasonable time after such procurement; and (2) the treatment sought is for recovery or rehabilitation, or to \u201cgive relief.\u201d N.C. Gen. Stat. \u00a7 97-2(19) (1999); Braswell v. Pitt County Mem. Hosp., 106 N.C. App. 1, 5, 415 S.E.2d 86, 88 (1992). \u201cApproval is not necessary prior to [the injured employee] seeking assistance from another physician.\u201d Id. Moreover, an emergency is not required for the Commission to award compensation under the statute. Even in the absence of an emergency, the employee is entitled to choose a physician for treatment, subject to the approval of the Commission. Schofield v. Tea Co., 299 N.C. 582, 591, 264 S.E.2d 56, 62 (1980).\nHere, the Commission found that the hospitalization \u201cwas necessary to treat plaintiff\u2019s depression and in particular because plaintiff was suicidal.\u201d It then concluded as a matter of law that the treatment was necessary to \u201ceffect a cure or give relief from . . . the emotional effects of plaintiffs injury.\u201d There is extensive evidence in the record detailing the severity of plaintiff\u2019s emotional problems and the need for continuous medical treatment. Again, the Commission\u2019s findings are clearly supported by competent evidence and we overrule this final assignment of error.\nAFFIRMED.\nJudges MARTIN and HUDSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "Patterson, Harkavy & Lawrence, L.L.P., by Henry N. Patterson, Jr. and Martha A. Geer for plaintiff-appellee.", "Young Moore and Henderson P.A., by J.D. Prather and Dawn Dillon Raynor for defendants-appellants." ], "corrections": "", "head_matter": "RALPH DOUGLAS SHOEMAKER v. CREATIVE BUILDERS and N.C. FARM BUREAU MUTUAL INSURANCE COMPANY\nNo. COA01-722\n(Filed 4 June 2002)\n1. Workers\u2019 Compensation\u2014 disability \u2014 sufficiency of evidence\nThe Industrial Commission did not err in a workers\u2019 compensation action by finding plaintiff to be totally and permanently disabled where he returned to work but was unable to maintain any employment for more than a few weeks, was unable to find regular work even with the assistance of a vocational specialist, and there was medical testimony that he would never be able to work again.\n2. Workers\u2019 Compensation\u2014 vocational rehabilitation \u2014 futile\nThere was competent evidence in a workers\u2019 compensation action to support the Industrial Commission\u2019s finding that vocational rehabilitation was futile.\n3. Workers\u2019 Compensation\u2014 medical expenses \u2014 motor vehicle accident after injury\nThe Industrial Commission did not err by concluding that defendants are responsible for medical expenses associated with plaintiffs motor vehicle accident where plaintiff injured his back while working as a carpenter, he contracted encephalitis after back surgery and was left with an organic brain injury, and he crashed his motor vehicle into a telephone pole during a seizure-like episode. Although the doctors are uncertain as to whether the seizure-like activity was due to an actual seizure or an anxiety or panic attack, they agree that either condition was the result of his cognitive or emotional disabilities caused by the compensable encephalitis.\n4. Workers\u2019 Compensation\u2014 personality disorder \u2014 encephalitis after back surgery \u2014 injury as cause\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiffs 1992 injury was the cause of his personality disorder where he contracted encephalitis after back surgery and one doctor testified that he could not relate any of plaintiffs symptoms to his encephalomalacia with any degree of medical certainty, but extensive medical records establish that the surgery for the back injury caused the encephalitis, which in turn resulted in plaintiffs cognitive and personality changes.\n5. Workers\u2019 Compensation\u2014 depression \u2014 hospitalization\u2014 no prior approval\nThe Industrial Commission did not err by concluding that defendants were responsible for the cost of plaintiffs treatment for depression, insomnia, and severe panic attacks in a hospital where plaintiff did not receive prior authorization and there was no evidence of an emergency, but there was extensive evidence detailing the severity of plaintiffs emotional problems and the need for continuous medical treatment.\nAppeal by defendants from opinion and award entered 16 January 2001 by Commissioner Dianne C. Sellers of the N.C. Industrial Commission. Heard in the Court of Appeals 14 March 2002.\nPatterson, Harkavy & Lawrence, L.L.P., by Henry N. Patterson, Jr. and Martha A. Geer for plaintiff-appellee.\nYoung Moore and Henderson P.A., by J.D. Prather and Dawn Dillon Raynor for defendants-appellants." }, "file_name": "0523-01", "first_page_order": 553, "last_page_order": 561 }