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  "name_abbreviation": "Pomeroy v. Tanner Masonry",
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    "judges": [
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    "parties": [
      "DANIEL POMEROY, Employee, Plaintiff v. TANNER MASONRY, Employer, USF&G INSURANCE, Carrier; Defendants"
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    "opinions": [
      {
        "text": "CAMPBELL, Judge.\nTanner Masonry (Employer) and USF&G Insurance (collectively, Defendants) appeal from a 19 December 2000 opinion and award of the North Carolina Industrial Commission (the Commission). Specifically, Defendants contend the Commission erred in concluding that Daniel Pomeroy (Plaintiff) is \u201centitled to reasonably necessary medical treatment related to his compensable injury by accident for so long as such treatment tends to effect a cure, provide relief or lessen the period of disability.\u201d Plaintiff likewise appeals from the Commission\u2019s 19 December 2000 opinion and award, contending the Commission erred in finding and concluding that \u201cPlaintiffs current lack of employment or inability to work, if any, is not causally related to his injury of June 14, 1994 and plaintiff has not undergone a substantial change of condition related to his injury by accident.\u201d Plaintiff also appeals from a 19 February 2001 opinion and award in which the Commission concluded that it did not have jurisdiction to rule on Plaintiffs motion for reconsideration.\nOn 14 June 1994, Plaintiff, while working as a mason foreman for Employer, was injured when he fell six to eight feet from a scaffold and landed on a bolt, which penetrated his lower back. Plaintiff was taken to Lake Norman Regional Medical Center, where Dr. Marcus Wever, a board-certified general surgeon, performed surgery on Plaintiffs back, during which the puncture wound to Plaintiffs back was fully explored, irrigated, cleaned of debris and closed. Following surgery, Plaintiff remained in the hospital for a few days. On 15 June 1994, Dr. William A. Kutner, an orthopaedic surgeon, examined Plaintiff and found no obvious fractures associated with Plaintiffs injuries. Plaintiff was discharged from the hospital on 18 June 1994.\nFollowing his discharge from the hospital, Plaintiff was examined by Dr. Wever in the outpatient clinic on several occasions. On 17 August 1994, after Plaintiffs final follow-up appointment, Dr. Wever released him to return to work the following week with no restrictions or permanent partial impairment indicated. Dr. Wever opined that Plaintiff had reached maximum medical improvement consistent with his injury and indicated that Plaintiff would \u201cbe seen in followup on an as-needed basis.\u201d Following his injury, Plaintiff also received physical therapy for his back. On 26 August 1994, Plaintiffs physical therapist instructed him to return to work the following Monday (29 August 1994) with no restrictions or permanent partial impairment indicated.\nOn 27 June 1994, Plaintiff and Defendants entered into an Industrial Commission Form 21 Agreement for Compensation for Disability (Form 21 Agreement) stating that Plaintiff \u201csustained an injury by accident arising out of and in the course of [his] employment [with Employer]\u201d on 14 June 1994, and that the accident resulted in a \u201cback injury.\u201d The Form 21 Agreement was approved by the Commission on 5 August 1994. Under the terms of the Form 21 Agreement, Defendants paid Plaintiff compensation at the rate of $346.68 per week for temporary total disability from 14 June 1994 to 28 August 1994. Defendants also paid for Plaintiff\u2019s medical treatment in the total amount of $9,056.10.\nOn 29 August 1994, Plaintiff returned to work for Employer at full duty without restrictions. Plaintiffs return to work was noted on an Industrial Commission Form 28B executed and filed by Defendants on 29 August 1994. The Form 28B also noted that Plaintiff\u2019s final compensation check was forwarded to him on 29 August 1994. The Form 28B did not indicate the weekly wage at which Plaintiff had returned to work. By its terms, this Form 28B did not purport to close Plaintiff\u2019s case, for it appears that additional medical expenses were yet to be paid by Defendants.\nOn 24 October 1994, Defendants filed a second Form 28B notifying Plaintiff that his case was closed and that he had two years from the date of receipt of his final compensation check in which to notify the Commission, in writing, that he claimed further benefits. See N.C. Gen. Stat. \u00a7 97-47 (2001). This second Form 28B also did not indicate the weekly wage at which Plaintiff had returned to work.\nIn December 1994, Plaintiff stopped working for Employer and moved to New York. Plaintiff returned to work in New York two or three weeks later as a mason for H & R Masonry, where he worked for approximately one year. While working for H & R Masonry, Plaintiff earned lower wages than he had earned while working for Employer. Plaintiff attributed his lower wages to the economic recession affecting New York at the time. According to Plaintiff\u2019s testimony, he stopped working for H & R Masonry because he could not perform as expected due to continuing problems with his back.\nPlaintiff was also employed in New York by Yancey Conant Masonry (Yancey), where he worked as a mason for four or five months. While working for Yancey, Plaintiff earned wages equal to those he had earned while working for Employer prior to moving to New York. Plaintiff stopped working for Yancey in December of 1995. According to Plaintiff, he had to stop working for Yancey due to back problems. Plaintiff was unemployed from December 1995 until this case was heard by the Deputy Commissioner on 28 January 1998.\nOn 10 January 1996, Plaintiff was examined in New York by Dr. Jalal Sadrieh, an orthopaedic surgeon. Dr. Sadrieh ordered an x-ray of Plaintiffs lumbar spine, which showed no evidence of foreign material and that Plaintiffs bony structures and disc spaces were normal. Dr. Sadrieh was given an oral history of Plaintiffs back problems, but did not review any records from Plaintiffs treatment for his compensable back injury in North Carolina. Dr. Sadrieh diagnosed Plaintiff with \u201cacute and subacute low back sprain with sciatica and possible disc herniation.\u201d Dr. Sadrieh referred Plaintiff to physical therapy and recommended that he undergo an MRI. On 19 February 1996, Plaintiff returned to Dr. Sadrieh. Plaintiff had not been to physical therapy, nor had plaintiff undergone an MRI, because Defendants had refused to authorize insurance coverage for such medical treatment. Plaintiff was last examined by Dr. Sadrieh on 19 February 1996.\nOn 21 February 1996, Plaintiff was examined by Dr. Vincent Sportelli, a chiropractor. Plaintiff remained under the care of Dr. Sportelli until 4 October 1996. During this time, Plaintiff was seen by Dr. Sportelli on a total of forty-two occasions. In his deposition testimony, Dr. Sportelli opined that Plaintiff had a sixty-five percent (65%) permanent partial disability to the pelvic girdle causally related to the injury suffered by Plaintiff on 14 June 1994. However, the record shows that Dr. Sportelli\u2019s opinion was based solely on the history provided by Plaintiff and the Plaintiffs condition at the time Dr. Sportelli examined him. Dr. Sportelli had no access to the records from Plaintiffs 14 June 1994 back injury and subsequent treatment in North Carolina. As a result, Dr. Sportelli was under the impression that Plaintiffs earlier back injury was caused by a fifteen to twenty foot fall, while the records from North Carolina make it clear that Plaintiff only fell six to eight feet. Defendants refused to authorize insurance coverage for Plaintiff\u2019s treatment by Dr. Sportelli.\nOn 22 February 1996, Plaintiff filed an Industrial Commission Form 18 Notice of Accident to Employer alleging injury to his back resulting from the 14 June 1994 accident. Plaintiff did not specifically allege a change in condition or specifically state a claim for additional medical compensation under N.C. Gen. Stat. \u00a7 97-25. Nevertheless, we hold that Plaintiff\u2019s act of filing the Form 18 was sufficient to give the Commission the requisite written notice of Plaintiffs claims for further compensation due to change in condition under N.C.G.S. \u00a7 97-47 and additional medical compensation under N.C.G.S. \u00a7 97-25. See Apple v. Guilford County, 321 N.C. 98, 101, 361 S.E.2d 588, 591 (1987); Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 17, 348 S.E.2d 596, 599 (1986).\nOn 1 April 1996, Defendants filed an Industrial Commission Form 61 denying Plaintiffs claim for additional benefits on the grounds that his current condition was not the result of the 14 June 1994 com-pensable back injury. On 26 November 1996, Plaintiff requested a hearing on his claim for additional disability compensation and further medical treatment.\nPlaintiffs claim was heard before Deputy Commissioner Haigh on 28 January 1998. Following Deputy Commissioner Haigh\u2019s departure from the Commission, Plaintiffs claim was transferred to Deputy Commissioner Taylor for decision. On 4 February 2000, Deputy Commissioner Taylor entered an opinion and award denying Plaintiffs claim. Deputy Commissioner Taylor found as fact and concluded as a matter of law that \u201cPlaintiffs current condition is not causally related to his June 14, .1994 accident.\u201d Plaintiff appealed to the Full Commission.\nOn 19 December 2000, the Full Commission entered an opinion and award finding as fact that \u201c[plaintiff\u2019s current lack of employment or inability to work, if any, is not causally related to his June 14, 1994 accident.\u201d\nThe Full Commission also entered the following pertinent conclusions of law:\n4. Plaintiff\u2019s current lack of employment or in ability [sic] to work, if any, is not causally related to his injury of June 14, 1994 and plaintiff has not undergone a substantial change of condition related to his injury by accident.\n5. However, since plaintiff was injured prior to July 5, 1994, plaintiff\u2019s claim for additional medical compensation is not barred by N.C.G.S. \u00a7 97-47 or because defendants rebutted the presumption of disability. Plaintiff is therefore entitled to reasonably necessary medical treatment related to his compensable injury by accident for so long as such treatment tends to effect a cure, provide relief or lessen the period of disability.\nBased on its findings of fact and conclusions of law, the Full Commission denied Plaintiffs claim for additional disability compensation under N.C.G.S. \u00a7 97-47. However, the Commission ordered that \u201cDefendants shall pay for plaintiffs reasonably necessary medical treatment related to his compensable injury by accident for so long as such treatment tends to effect a cure, provide relief or lessen the period of disability.\u201d The Commission\u2019s opinion and award did not order Defendants to pay for any specific medical treatment that Plaintiff had received.\nOn 9 January 2001, Plaintiff filed a motion for reconsideration with the Commission requesting an order directing Defendants to pay for the medical treatment provided to Plaintiff in New York by Dr. Sadrieh and Dr. Sportelli. Plaintiff also requested an award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88.1. On 26 January 2001, Defendants filed notice of appeal from the Commission\u2019s 19 December 2000 opinion and award. On 19 February 2001, the Commission entered an opinion and award concluding that it no longer had jurisdiction to rule on Plaintiff\u2019s motion for reconsideration due to Defendants having already filed notice of appeal in this Court. On 21 February 2001, Plaintiff filed notice of appeal from both the 19 December 2000 opinion and award and the 19 February 2001 opinion and award.\nThe standard of review of appellate courts on appeal from an opinion and award of the Industrial Commission is limited to determining whether there is any competent evidence to support the Commission\u2019s findings of fact and whether such findings of fact support the Commission\u2019s conclusions of law. McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982); Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 652, 508 S.E.2d 831, 834 (1998). On appeal, this Court does not weigh the evidence and decide the issue on the basis of its weight; rather our duty goes no further than to determine whether the record contains any evidence tending to support the Commission\u2019s findings of fact, even when there is evidence to support a contrary finding of fact. Timmons v. N.C. Dep\u2019t of Transp., 351 N.C. 177, 181, 522 S.E.2d 62, 64 (1999) (citing Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)). \u201cFurthermore, the Commission is the sole judge of the credibility of the witnesses as well as how much weight their testimony should be given.\u201d Bailey, 131 N.C. App. at 653, 508 S.E.2d at 834. Additionally, although the Commission \u201cis not required ... to find facts as to all credible evidence ... the Commission must find those facts which are necessary to support its conclusions of law,\u201d Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 602, 532 S.E.2d 207, 213 (2000), and the Commission must \u201cmake specific findings with respect to crucial facts upon which the question of plaintiffs right to compensation depends.\u201d Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977).\nAdditional Compensation Under N.C.G.S. \u00a7 97-47\nWe first address Plaintiff\u2019s assignments of error to the Commission\u2019s denial of his claim for additional compensation on the grounds of a change in condition under N.C.G.S. \u00a7 97-47.\nPlaintiff first contends that the Commission erred in finding that he had returned to work at his pre-injury wages and concluding that the From 21 presumption of disability had been rebutted by Defendants. We disagree.\nPlaintiff sustained an injury by accident arising out of and in the course of his employment with Employer on 14 June 1994. Defendants admitted liability and entered into a Form 21 Agreement with Plaintiff for compensation, under which Plaintiff received $346.68 per week until 29 August 1994, when he returned to work. The Form 21 Agreement was approved by the Commission and became an award of the Commission enforceable, if necessary, by court decree. Chisholm, 83 N.C. App. at 17, 348 S.E.2d at 598 (citing Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777 (1953)). Upon approval by the Commission, the Form 21 Agreement raised the presumption that Plaintiff was disabled under the Worker\u2019s Compensation Act. Watkins v. Motor Lines, 279 N.C. 132, 138, 181 S.E.2d 588, 592 (1971). The Form 21 presumption of disability ends when the employee regains his or her pre-injury capacity to earn wages. Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 81, 476 S.E.2d 434, 439 (1996).\nHere, Plaintiff returned to work for Employer at full duty without restrictions on 29 August 1994. There is no indication in the record that Plaintiff returned to work at wages less than those he was receiving prior to his compensable back injury. On 29 August 1994, Plaintiff\u2019s final weekly compensation payment was forwarded to him for the period during which he was disabled. On 24 October 1994, Employer filed a Form 28B with the Commission informing Plaintiff that his case was closed as of 29 August 1994. The Form 28B does not indicate the weekly wage at which Plaintiff returned to work, but the record does not show that Plaintiff objected to the Form 28B or otherwise asserted that he had returned to work at wages less than those he was receiving prior to the 14 June 1994 accident. The filing of the Form 28B presumptively ended Plaintiffs claim for disability benefits as of 29 August 1994. See Watkins, 279 N.C. at 137, 181 S.E.2d at 592. The evidence of record supports the Commission\u2019s finding that Plaintiff had returned to work at his pre-injury wages and the conclusion that Plaintiff had regained his pre-injury earning capacity. Thus, the Commission did not err in concluding that Plaintiffs Form 21 presumption of disability had been effectively rebutted by Defendants.\nOnce an award of the Commission becomes final, the Commission may, \u201cupon its own motion or upon application of any party in interest on the grounds of a change in condition,\u201d review such award and \u201con such review may make an award ending, diminishing, or increasing the compensation previously awarded.\u201d N.C.G.S. \u00a7 97-47. Our case law defines a \u201cchange in condition\u201d under N.C.G.S. \u00a7 97-47 as a condition occurring after a final award of compensation that is \u201cdifferent from those existent when the award was made[,]\u201d Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 247, 354 S.E.2d 477, 480 (1987), and results in a substantial change in the physical capacity to earn wages. Bailey, 131 N.C. App. at 654, 508 S.E.2d at 835 (citing Pratt v. Central Upholstery Co., Inc., 252 N.C. 716, 722, 115 S.E.2d 27, 33-34 (1960)). This \u201cchange in condition\u201d can consist of either\n[1] a change in the claimant\u2019s physical condition that impacts his earning capacity, [2] a change in the claimant\u2019s earning capacity even though claimant\u2019s physical condition remains unchanged, or [3] a change in the degree of disability even though claimant\u2019s physical condition remains unchanged.\nBlair v. American Television & Communications Corp., 124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996) (internal citations omitted). In all instances, the party seeking modification of an award due to a \u201cchange in condition\u201d has the burden to prove that the new condition is directly related to the original compensable injury that is the basis of the award the party seeks to modify. Id.\nIn this case, Plaintiff claims that his physical condition has deteriorated since he returned to work on 29 August 1994 to the point that he is physically incapable of earning any wages. In support of his claim, Plaintiff testified that he continued to suffer from back pain after his return to work for Employer, that the condition of his back progressively worsened during his two stints of employment in New York, and that his back eventually deteriorated to the point that he was unable to work. Plaintiff also offered the testimony of Dr. Sadrieh and Dr. Sportelli. Dr. Sadrieh examined Plaintiff approximately nineteen months after his 14 June 1994 compensable back injury. Based on the oral history given by Plaintiff, and the fact that Plaintiff denied having suffered any other injuries to his back, Dr. Sadrieh opined that the 14 June 1994 compensable injury was the cause of Plaintiff\u2019s condition at the time Dr. Sadrieh examined him in early 1996.\nDr. Sportelli did not examine Plaintiff for the first time until approximately 20 months after the 14 June 1994 injury. Dr. Sportelli\u2019s diagnosis was also based solely on the oral history provided by Plaintiff and Plaintiffs condition at the time. Dr. Sportelli opined that Plaintiff\u2019s condition was directly and causally related to his com-pensable injury on 14 June 1994. Dr. Sportelli further opined that Plaintiff had a sixty-five percent (65%) permanent partial disability to his pelvic girdle.\nDespite the testimony of Plaintiff, Dr. Sadrieh and Dr. Sportelli, the Commission found that \u201c[p]laintiff\u2019s current lack of employment or inability to work, if any, is not causally related to his June 14, 1994 accident.\u201d Plaintiff assigned error to this finding of fact. The question for this Court is whether the record contains any competent evidence to support this finding of fact, even if there is evidence to support a contrary finding of fact. See Timmons, 351 N.C. at 181, 522 S.E.2d at 64.\nBased on competent evidence in the record, the Commission found as fact (in Findings Nos. 10, 11 and 12) that Plaintiff returned to work for Employer at full duty without restrictions on 29 August 1994 and remained there for approximately three months, that Plaintiff worked for H&R Masonry in New York for approximately one year, and that Plaintiff also was employed by Yancey for four or five months in 1995. The record further shows that Plaintiff received more than $200.00 per week in unemployment benefits for three or four months after he left his job in New York with Yancey in December 1995. Plaintiff testified that he was obligated to look for work while he was receiving unemployment benefits, but that he did not do so because the condition of his back would not allow him to find a job in his field. However, in order to receive unemployment benefits under New York law, Plaintiff was required to certify that he was physically able to work. Thus, there is competent evidence to support the following finding of fact entered by the Commission:\n17. Plaintiff received weekly unemployment benefits, in the amount of $200.00 per week, for approximately three to four months. To apply for unemployment benefits, plaintiff certified that he did not have any medical condition that would hinder his return to work, and that he was actively seeking employment.\nFurther, the Commission\u2019s Findings Nos. 10, 11 and 12 indicate that prior to drawing unemployment benefits, Plaintiff was in fact physically able to work and was actually working. These findings of fact and the evidence on which they are based provide competent evidence to support the Commission\u2019s finding that Plaintiff\u2019s lack of employment or inability to work was not causally related to the 14 June 1994 accident. While the testimony of Plaintiff, coupled with that of Dr. Sadrieh and Dr. Sportelli, may have been competent evidence to support a finding that Plaintiff\u2019s inability to work at the time of the hearing was causally related to the 14 June 1994 compensable injury, the Commission made a contrary finding. It is the duty of the Commission, not this Court, to weigh the evidence and to assess its credibility, and when conflicting evidence is presented, the Commission\u2019s finding of causal connection between the accident and the disability is conclusive. Bailey, 131 N.C. App. at 655, 508 S.E.2d at 835 (citing Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 275 (1965)). There is competent evidence to support the Commission\u2019s findings and conclusions to the effect that Plaintiff failed to establish that his lack of employment was causally related to his 14 June 1994 accident and that he had undergone a \u201cchange in condition\u201d related to the 14 June 1994 accident. Therefore, we affirm the Commission\u2019s denial of Plaintiff\u2019s claim for additional compensation under N.C.G.S. \u00a7 97-47.\nCompensation for Medical Treatment Under N.C.G.S. \u00a7 97-25\nDefendants contend that the Commission erred in ordering them to pay for \u201c[Plaintiff\u2019s reasonably necessary medical treatment related to his compensable injury by accident for so long as such treatment tends to effect a cure, provide relief or lessen the period of disability[,]\u201d under N.C.G.S. \u00a7 97-25.\nSubsequent to the establishment of a compensable injury under the Workers\u2019 Compensation Act, an employee may seek compensation under N.C.G.S. \u00a7 97-25 for additional medical treatment when such treatment lessens the period of disability, effects a cure, or gives relief. Hyler v. GTE Products Co., 333 N.C. 258, 261, 425 S.E.2d 698, 700 (1993) (citing Little v. Penn Ventilator Co., 317 N.C. 206, 211, 345 S.E.2d 204, 208 (1986)); see also N.C. Gen. Stat. \u00a7 97-2(19) (2001). An injured employee has the right to select, even in the absence of an emergency, a physician of his own choosing to provide the medical treatment covered by N.C.G.S. \u00a7 97-25, subject to the approval of the Commission. Schofield v. Tea Co., 299 N.C. 582, 590-91, 264 S.E.2d 56, 62 (1980). In order to be compensable under N.C.G.S. \u00a7 97-25, \u201cthe medical treatment sought must be \u2018directly related to the original compensable injury.\u2019 \u201d Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259, 523 S.E.2d 720, 723 (1999) (quoting Pittman v. Thomas & Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286 (1996)). When additional medical treatment is required, there is a rebuttable presumption that it is directly related to the original com-pensable injury and the employer has the burden of producing evidence showing the treatment is not directly related to the com-pensable injury. Id. In order to receive compensation for additional medical treatment under N.C.G.S. \u00a7 97-25, an injured employee is not required to make any showing of a change in his condition or in available medical treatments. Hyler, 333 N.C. at 267, 425 S.E.2d at 704. However, an injured employee is required to seek and obtain approval of the Commission within a reasonable time after he has selected a physician and/or medical treatment of his own choosing. Schofield, 299 N.C. at 593, 264 S.E.2d at 63.\nHere, the Commission concluded that Plaintiff was entitled to \u201creasonably necessary medical treatment related to his compensable injury by accident for so long as such treatment tends to effect a cure, provide relief or lessen the period of disability.\u201d However, the Commission did not order Defendants to pay for any specific medical treatment received by Plaintiff. As a result, Plaintiff filed a motion for reconsideration with the Commission requesting that it amend its opinion and award and order Defendants to pay for the medical treatment rendered by Dr. Sadrieh and Dr. Sportelli. Before the Commission could rule on Plaintiffs motion for reconsideration, Defendants filed notice of appeal from the Commission\u2019s 19 December 2000 opinion and award. Thereafter, the Commission entered an opinion and award concluding that it lacked jurisdiction to rule on Plaintiffs motion for reconsideration due to Defendants\u2019 appeal to this Court. Plaintiff contends that the Commission erred in concluding that it lacked jurisdiction to rule on Plaintiff\u2019s motion for reconsideration. We need not address this issue in detail, for assuming, arguendo, that the Commission was correct in its determination that it lacked jurisdiction to rule on Plaintiff\u2019s motion for reconsideration, we nonetheless are constrained to remand the case to the Commission for further findings on the issue of Plaintiffs entitlement to additional medical compensation under N.C.G.S. \u00a7 97-25.\nUnder N.C.G.S. \u00a7 97-25, as it existed when Plaintiff suffered his compensable injury by accident, an employee is entitled to compensation for reasonably necessary medical treatment when such treatment lessens the period of disability, effects a cure, or gives relief. Hyler, 333 N.C. at 261, 425 S.E.2d at 700. Thus, the Commission\u2019s conclusion on this issue was a correct general statement of the law on the subject. However, the Commission did not fully apply the law to the facts before it and order Defendants to pay for any specific medical treatment received by Plaintiff. The Commission left unresolved Plaintiff\u2019s claim for payment of the medical treatment provided by Dr. Sadrieh and Dr. Sportelli. As earlier noted, \u201cthe Commission must find those facts which are necessary to support its conclusions of law[,]\u201d Peagler, 138 N.C. App. at 602, 532 S.E.2d at 213, and the Commission must \u201cmake specific findings with respect to crucial facts upon which the question of plaintiff\u2019s right to compensation depends.\u201d Gaines, 33 N.C. App. at 579, 235 S.E.2d at 859. Further, when the Commission\u2019s findings of fact are insufficient to determine the rights of the parties upon a claim for compensation, the proper procedure on appeal is to remand the case to the Commission. Mills v. Fieldcrest Mills, 68 N.C. App. 151, 158, 314 S.E.2d 833, 838 (1984). It is not the duty of this Court to make the findings of fact necessary to support an award of compensation. Therefore, we are constrained to remand for further findings.\nOn remand, the Commission must make findings based upon competent evidence relative to whether the treatment provided and prescribed by Dr. Sadrieh and Dr. Sportelli was required to effect a cure or give relief from the 14 June 1994 compensable injury or tended to lessen the period of disability caused by said compensable injury. See Schofield, 299 N.C. at 595, 264 S.E.2d at 65. The Commission must also make findings of fact relative to whether the condition treated by Dr. Sadrieh and Dr. Sportelli was directly related to the 14 June 1994 compensable injury. See Reinninger, 136 N.C. App. at 259, 523 S.E.2d at 723. In so doing, the Commission must give Plaintiff the benefit of the rebuttable presumption that additional medical treatment is related to the original compensable injury. See id. In addition, the Commission must make findings of fact relative to whether Plaintiff sought approval of the Commission within a reasonable time after he received the treatment from Dr. Sadrieh and Dr. Sportelli. See Schofield, 299 N.C. at 594, 264 S.E.2d at 64. In making these required findings of fact, the Commission is to consider the record evidence as well as any additional evidence the Commission finds it necessary to take. Finally, on remand, the Commission is to rule on Plaintiff\u2019s motion for attorney\u2019s fees pursuant to N.C.G.S. \u00a7 97-88.1.\nFor the reasons stated herein, the Commission\u2019s denial of Plaintiff\u2019s claim for additional disability compensation under N.C.G.S. \u00a7 97-47 is affirmed, and the case is remanded to the Commission for further proceedings consistent with this opinion as to Plaintiff\u2019s claim for additional medical compensation under N.C.G.S. \u00a7 97-25 and Plaintiff\u2019s motion for attorney\u2019s fees under N.C.G.S. \u00a7 97-88.1.\nAffirmed in part and remanded in part.\nJudges MARTIN and HUDSON concur.\n. New York Labor Law \u00a7 591(2) (2002) provides:\n\u201cno [unemployment] benefits shall be payable to any claimant who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience.\u201d\n. In 1994, the General Assembly added N.C. Gen. Stat. \u00a7 97-25.1, which provides that an injured employee\u2019s \u201cright to medical compensation shall terminate two years after the employer\u2019s last payment of medical or indemnity compensation unless, prior to the expiration of this period, either: (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation.\u201d N.C. Gen. Stat. \u00a7 97-25.1 (2001). This section applies only to injuries occurring on or after 5 July 1994 and thus does not apply to Plaintiff\u2019s claim in the instant case.\n. Plaintiff also requested in his motion for reconsideration an assessment of attorney\u2019s fees against Defendants pursuant to N.C.G.S. \u00a7 97-88.1.",
        "type": "majority",
        "author": "CAMPBELL, Judge."
      }
    ],
    "attorneys": [
      "Bollinger & Piemonte, PLLC, by George C. Piemonte, for plaintiff-appellee/cross-appellant.",
      "Morris York Williams Surles & Barringer, LLP, by John F. Morris and Keith B. Nichols, for defendant-appellants/ cross-appellees."
    ],
    "corrections": "",
    "head_matter": "DANIEL POMEROY, Employee, Plaintiff v. TANNER MASONRY, Employer, USF&G INSURANCE, Carrier; Defendants\nNo. COA01-505\n(Filed 2 July 2002)\n1. Workers\u2019 Compensation\u2014 change in condition \u2014 additional medical compensation \u2014 notice\u2014Form 18\nEven though a plaintiff in a workers\u2019 compensation action did not specifically allege a change in condition under N.C.G.S. \u00a7 97-47 or specifically state a claim for additional medical compensation under N.C.G.S. \u00a7 97-25, plaintiff\u2019s filing of a Form 18 was sufficient to give the Industrial Commission the requisite written notice.\n2. Workers\u2019 Compensation\u2014 return to work \u2014 pre-injury wages\nThe Industrial Commission did not err in a workers\u2019 compensation action by finding that plaintiff had returned to work at his pre-injury wages and concluding that the Form 21 presumption of disability had been rebutted. There is no indication in the record that plaintiff returned to work at wages less than he was receiving prior to the accident; although the Form 28B does not indicate the weekly wage at which plaintiff returned to work, the record does not show that plaintiff objected to the Form 28B or otherwise asserted that he had returned to work at wages less than he was receiving prior to the accident.\n3. Workers\u2019 Compensation\u2014 alleged deteriorated physical condition \u2014 additional compensation denied\nThe Industrial Commission did not err by denying plaintiff\u2019s claim for additional compensation in a workers\u2019 compensation action where plaintiff claimed that his physical condition had deteriorated since he returned to work and that he is now incapable of earning wages, but there was competent evidence to support the Commission\u2019s findings that plaintiff was working prior to being unemployed and that plaintiff certified when applying for unemployment benefits that he did not have any medical condition that would hinder his return to work. Although there was testimony which may have supported a contrary finding, the Commission and not the court weighs evidence and assesses its credibility.\n4. Workers\u2019 Compensation\u2014 findings \u2014 reasonably necessary medical treatment\nA workers\u2019 compensation action was remanded for further findings where the Industrial Commission found that plaintiff was entitled to compensation for reasonably necessary medical treatment under N.C.G.S. \u00a7 97-25 as it then existed but left unresolved plaintiff\u2019s claim for specific medical treatment.\nAppeal by plaintiff and defendants from Opinion and Award entered 19 December 2000 by the North Carolina Industrial Commission and appeal by plaintiff from Opinion and Award entered 19 February 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 February 2002.\nBollinger & Piemonte, PLLC, by George C. Piemonte, for plaintiff-appellee/cross-appellant.\nMorris York Williams Surles & Barringer, LLP, by John F. Morris and Keith B. Nichols, for defendant-appellants/ cross-appellees."
  },
  "file_name": "0171-01",
  "first_page_order": 201,
  "last_page_order": 214
}
