{
  "id": 9080870,
  "name": "PEARL KANIPE, Employee, Plaintiff v. LANE UPHOLSTERY, HICKORY TAVERN FURNITURE CO., Employer, SELF-INSURED, Defendants",
  "name_abbreviation": "Kanipe v. Lane Upholstery, Hickory Tavern Furniture Co.",
  "decision_date": "2002-07-16",
  "docket_number": "No. COA01-1023",
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          "parenthetical": "hereinafter Kanipe I"
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  "casebody": {
    "judges": [
      "Judges McGEE and BIGGS concur."
    ],
    "parties": [
      "PEARL KANIPE, Employee, Plaintiff v. LANE UPHOLSTERY, HICKORY TAVERN FURNITURE CO., Employer, SELF-INSURED, Defendants"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nPearl Kanipe (Plaintiff) appeals an opinion and award filed 10 April 2001 by the Full Commission (the Commission) of the North Carolina Industrial Commission (the Industrial Commission) denying her claim for disability compensation against Lane Upholstery, Hickory Tavern Furniture Co. (Defendant).\nOn 26 June 1997, Plaintiff filed a Form 18 claiming workers\u2019 compensation due to bilateral carpal tunnel syndrome. On 11 July 1997, Plaintiff filed a Form 33 request for hearing before a deputy commissioner of the Industrial Commission in which she stated that Defendant refused to pay for treatment with her choice of physician, Dr. DePerczel, and requested compensation for her disability. On 9 September 1997, Defendant filed a Form 60 admitting Plaintiffs \u201cright to compensation for an . . . occupational disease as of 4/10, 1997\u201d but denying that Plaintiff had suffered any disability \u201cfrom work to date.\u201d\nThe evidence presented at the hearing revealed that while Defendant had authorized carpal tunnel release surgery for Plaintiff with Dr. Carl Michael Nicks (Dr. Nicks), she underwent surgery for both her wrists with Dr. DePerczel instead. After the first surgery on 9 July 1997, Dr. DePerczel never released Plaintiff to go back to work because Plaintiff could no longer perform her duties as a sewer and \u201cdid[] [not] have any other work options.\u201d While Plaintiff developed other health problems sometime after her carpal tunnel release surgeries, Dr. DePerczel thought that even without these additional problems \u201cshe would have had [only] a small chance of going back to work\u201d as a sewer. Dr. DePerczel based his decision to keep Plaintiff out of work on the fact that \u201cboth of [Plaintiffs] hands were severely involved.\u201d Plaintiff had experienced \u201csymptoms for such a long time, which mean[t] that there [was] more inflammation of the nerve and probably more permanent damage to the nerve.\u201d Dr. DePerczel also testified at his deposition that he had not yet rated Plaintiff for maximum medical improvement in respect to her hands.\nDr. Nicks testified during his deposition that he had performed thousands of carpal tunnel release surgeries and was familiar with the type of work that is done at furniture and upholstery plants such as the one operated by Defendant. The first and only time Dr. Nicks saw Plaintiff was on 4 June 1997. At this time, Dr. Nicks diagnosed Plaintiff with bilateral carpal tunnel syndrome and recommended surgery, beginning with the right wrist and followed by surgery on the left wrist after three to four weeks. Dr. Nicks testified that, after surgery, he generally returns Ms patients to work after only a couple of days with limitations of one-handed work for approximately three weeks. If the work environment is dirty and could potentially soil or damage a patient\u2019s wound, Dr. Nicks will keep his patient out of work for up to a week. \u201cAt the end of three to four weeks, [Dr. Nicks] generally . . . review[s] each case individually.\u201d Because Dr. Nicks individualizes the decision to return a patient to work, he could not give a general answer when asked what type of restriction he tends to impose after returning a patient to work. In explaining his approach of returning patients to work, Dr. Nicks noted that:\n[t]hey[] [are] always allowed to work, but with restrictions. Our policy in our office is to document the restrictions medically speaking that a patient needs to observe[,] and we let the employer decide whether they want to take them out of work or not. Sometimes those restrictions are so profound that they cannot legitimately do the job that they have always performed. And they might have to be put in a much less demanding position, but we very rarely take anybody completely out of work.\nAnne Story, Defendant\u2019s human resource manager, testified at the hearing that had Plaintiff been released to light-duty employment, Defendant would have accommodated her \u201cif there were jobs available within the restrictions.\u201d\nIn its opinion and award filed 26 June 1998, the deputy commissioner concluded Plaintiff was entitled to all medical expenses incurred as a result of her carpal tunnel syndrome, including expenses incurred while receiving treatment from Dr. DePerczel. The deputy commissioner also concluded Plaintiff was entitled to payment of temporary total disability compensation from 9 July 1997 onward. On appeal, the Commission, in an opinion and award filed 25 May 1999, reversed the deputy commissioner\u2019s award. The Commission found that:\n1. Plaintiff began working as a sewer for [Defendant in November 1969 and continued working in that capacity throughout her employment with [Defendant.\n2. In April 1997, [P]laintiff reported numbness in both her hands and left shoulder to her [doctor] .... [Her doctor] referred [P]laintiff to [Dr. DePerczel].\n5. On 6 May 1997, Dr. [DJePerczel examined [PJlaintiff and diagnosed bilateral carpal tunnel syndrome.\n6. Upon learning [from Plaintiff] that [PJlaintiff\u2019s condition was caused by her work, [DJefendant attempted to direct [PJlaintiff to appropriate medical treatment. . . .\n9. On 4 June 1997, [PJlaintiff presented [herself] to Dr. Nicks for examination, which was approved by [DJefendant. Dr. Nicks diagnosed her with bilateral carpal tunnel syndrome . . . and recommended surgical treatment consisting of carpal tunnel releases. Dr. Nicks scheduled [PJlaintiff for surgery for 12 June 1997.\n10. On 9 June 1997, [PJlaintiff filed an Industrial Commission Form 18 . . . stating that she had contracted bilateral carpal tunnel syndrome as a result of her work as a sewer for [DJefendant. By that date, [DJefendant had already informed [PJlaintiff that it would accept liability for her workers\u2019 compensation claim and would pay for and direct her medical treatment.\n11. On 10 June 1997, [PJlaintiff canceled the surgery . . . with Dr. Nicks.\n13. Although [PJlaintiff was aware that [DJefendant was refusing to pay for treatment by Dr. [DJePerczel, she chose to proceed with surgery on 7 July 1997. On that date, Dr. [DJePerczel performed a right carpal tunnel releasef,] and on 13 August 1997, he performed a left carpal tunnel release.\n14. Dr. [DJePerczel removed [PJlaintiff from work beginning 9 July 1997 and, at the time of the hearing before the [djeputy [cjommissioner, had not released her to return to work. After 9 July 1997, [PJlaintiff did not return[] to work in any capacity for any employer.\n20. Any inability by [PJlaintiff to earn wages subsequent to 9 July 1997 was not related to her work for [DJefendant or her occupational disease.\nThe Commission concluded that (1) Defendant was not responsible for Plaintiffs unauthorized treatment with Dr. DePerczel and (2) Plaintiff was not entitled to \u201cany disability compensation\u201d after 9 July 1997.\nUpon Plaintiff\u2019s appeal from the 25 May 1999 decision, this Court affirmed the Commission\u2019s denial of Plaintiff\u2019s medical expenses with Dr. DePerczel but vacated and remanded the Commission\u2019s opinion and award in part because the Commission had failed to make any findings explaining its denial of disability compensation. See Kanipe v. Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785 (2000) (hereinafter Kanipe I). This Court stated that:\nPerhaps the Commission based its denial on [Plaintiff\u2019s refusal to undergo medical treatment with Dr. Nicks. If so, this is not a valid reason for denial.... Alternatively, the Commission might have based its denial of disability compensation on Dr. Nicks\u2019 treatment plan, in which he determined that [P]laintiff would not have missed more than a week of work due to her injury. If that were the case, this basis would be lawful. See N.C. Gen. Stat. \u00a7 97-28 (\u201cNo compensation . . . shall be allowed for the first seven calendar days of disability resulting from an injury, except [medical expenses].\u201d). But because the Commission never made any specific findings, we simply do not know whether it denied disability compensation on a lawful or unlawful basis. We therefore remand to the Commission to reconsider [P]laintiff\u2019s claim for disability compensation and to make explicit findings with respect to this claim.\nId. at 627, 540 S.E.2d at 790.\nOn 16 February 2001, Plaintiff filed with the Commission a request for supplemental briefing and oral arguments to address issues raised by the Court of Appeals decision. Without ruling on Plaintiff\u2019s request, the Commission filed a revised opinion and award on 10 April 2001 in which it added the following findings:\n15. Dr. Nicks has performed thousands of carpal tunnel release surgeries. Based upon his professional experience and his personal examination of [P]laintiff, Dr. Nicks recommended that she undergo carpal tunnel release on her right wrist and the same surgery on the left wrist about three to four weeks later. Under Dr. Nicks\u2019 care, [P]laintiff would have remained out of work for two days after each surgery and returned to work with restrictions of one-handed work for three to four weeks. At most, [P]laintiff would have missed an entire week of work if her work environment was dirty because her wound could have been soiled or damaged.\n16. The . . . Commission gives great weight to the medical opinion of Dr. Nicks and finds that [P]laintiff did not miss more than seven days from work as a result of her bilateral carpal tunnel syndrome.\n22. The greater weight of the evidence fails to show that [Plaintiff missed more than seven days from work as a result of her bilateral carpal tunnel syndrome.\nThe Commission again found that \u201c[a]ny inability by [P]laintiff to earn wages subsequent to 9 July 1997 was not related to her work for [Defendant or her occupational disease.\u201d The Commission then concluded that:\n3. Plaintiff did not miss more than seven days as a result of her bilateral carpal tunnel syndrome. Therefore, [PJlaintiff is not entitled to total disability benefits.\n4. Any inability by [PJlaintiff to earn wages subsequent to 9 July 1997 was not related to her occupational disease^] and she is, therefore, not entitled to any disability compensation after that date.\nThe dispositive issues are whether: (I) Kanipe I is binding on this Court in determining the competency of Dr. Nicks\u2019 testimony; and if not, (II) Dr. Nicks\u2019 testimony is sufficient to support the Commission\u2019s denial of disability compensation.\nI\nDefendant argues \u201cthe doctrine of \u2018the law of the case\u2019 prevents Plaintiff from appealing the issue[] presently before this Court\u201d because the issue has already been decided in Kanipe I. We disagree.\n\u201c \u2018As a general rule, when an appellate court passes on questions and remands the case for further proceedings to the trial court, the questions therein actually presented and necessarily involved in determining the case, and the decision on those questions become the law of the case.\u2019 \u201d Creech v. Melnik, 147 N.C. App. 471, 473, 556 S.E.2d 587, 589 (2001) (citations omitted). Pursuant to the law of the case doctrine, \u201can appellate court ruling on a question governs the resolution of that question both in subsequent proceedings in the trial court and on a subsequent appeal, provided the same facts and the same questions, which were determined in the previous appeal, are involved in the second appeal.\u201d Id. at 473-74, 556 S.E.2d at 589. The law of the case doctrine, however, only applies to points actually presented and necessary for the determination of the case and not to dicta. Id. at 474, 556 S.E.2d at 589.\nIn Kanipe I, this Court held the Commission\u2019s findings were insufficient to determine the basis of its denial of disability compensation and remanded the case. Kanipe I, 141 N.C. App. at 627, 540 S.E.2d at 790. This Court stated that \u201cthe Commission might have based its denial of disability compensation on Dr. Nicks\u2019 treatment plan, in which he determined that [P]laintiff would not have missed more than a week of work due to her injury,\u201d which this Court perceived as a lawful basis for the Commission\u2019s denial of disability compensation. As this Court, however, did not consider the competency of Dr. Nicks\u2019 testimony in reaching this conclusion, it is mere dicta and not binding on this Court in regard to Plaintiff\u2019s present appeal.\nII\nPlaintiff argues Dr. Nicks\u2019 testimony is insufficient to support the Commission\u2019s findings that \u201c[P]laintiff did not miss more than seven days from work as a result of her bilateral carpal tunnel syndrome\u201d and therefore \u201c[a]ny inability by [P]laintiff to earn wages subsequent to 9 July 1997 was not related to her work for [Defendant or her occupational disease.\u201d We agree.\nIf the Commission\u2019s findings are based entirely upon the weight of one doctor\u2019s expert opinion testimony, that testimony must be competent and not based on \u201cconjecture and speculation.\u201d Young v. Hickory Bus. Furniture, 353 N.C. 227, 230-31, 538 S.E.2d 912, 914-15 (2000).\nIn this case, Dr. Nicks made only general statements as to the treatment plan of his patients and the time line under which he returns them to work. As Dr. Nicks explained, his office operates under the policy that patients are \u201calways allowed to work, but with restrictions.\u201d Only \u201crarely\u201d does he \u201ctake anybody completely out of work.\u201d While this testimony reflects Dr. Nicks\u2019 general treatment of the majority of his patients, it does leave room for the possibility that some patients will be incapable of returning to work after the seven-day period following surgery. Moreover, as Dr. Nicks stated that he individualizes the decision to return a patient to work and he did not see Plaintiff after her surgeries nor express an opinion regarding her post-surgery condition, any inferences made in respect to Plaintiffs ability to return to work would be mere speculation. As such, Dr. Nicks\u2019 testimony was insufficient to support the Commission\u2019s findings that \u201c[P]laintiff did not miss more than seven days from work as a result of her bilateral carpal tunnel syndrome\u201d and therefore \u201c[a]ny inability by [P]laintiff to earn wages subsequent to 9 July 1997 was not related to her work for [Defendant or her occupational disease.\u201d Accordingly, the Commission\u2019s denial of Plaintiff\u2019s claim for total disability benefits and its subsequent conclusion that Plaintiff was not entitled to \u201cany disability benefits\u201d was error and must be reversed and remanded.\nReversed and remanded.\nJudges McGEE and BIGGS concur.\n. While Plaintiff, in her notice of appeal to this Court, states that she is also appealing the Commission\u2019s denial of her request for treatment with her doctor, Dr. John DePerczel (Dr. DePerczel), she has not assigned error to this. Accordingly, this issue is not before this Court. See N.C.R. App. P. 10(a).\n. Based, for instance, on a review of Plaintiff\u2019s medical documents.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Patterson, Harkavy & Lawrence, L.L.P., by Henry N. Patterson, Jr. and Martha A. Geer, for plaintiff appellant.",
      "Robinson & Lawing, L.L.P., by Jolinda J. Babcock, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "PEARL KANIPE, Employee, Plaintiff v. LANE UPHOLSTERY, HICKORY TAVERN FURNITURE CO., Employer, SELF-INSURED, Defendants\nNo. COA01-1023\n(Filed 16 July 2002)\n1. Workers\u2019 Compensation\u2014 competency of doctor\u2019s testimony \u2014 law of the case doctrine inapplicable\nA plaintiff in a workers\u2019 compensation case was not barred by the doctrine of the law of the case and could present the issue of the competency of a doctor\u2019s testimony as a lawful basis for the Industrial Commission\u2019s denial of disability compensation, because: (1) the law of the case doctrine only applies to points actually presented that are necessary for the determination of the case and not to dicta; and (2) the Court of Appeals\u2019 failure to consider the competency of the doctor\u2019s testimony as a basis for the Commission\u2019s conclusion in a prior appeal means the statement in the Court\u2019s opinion that the Commission might lawfully have based its denial of disability compensation on the doctor\u2019s treatment plan in which plaintiff would not have missed more than a week of work was mere dicta and not binding in regard to plaintiff\u2019s present appeal.\n2. Workers\u2019 Compensation\u2014 doctor\u2019s generalized statements concerning treatment \u2014 speculation\nThe Industrial Commission erred in a workers\u2019 compensation case by denying plaintiff\u2019s claim for total disability benefits and by subsequently concluding that plaintiff was not entitled to any disability benefits based on a doctor\u2019s general statements as to the treatment plan of his patients and the time line under which he operates to return them to work, because: (1) if the Commission\u2019s findings are based entirely upon the weight of one doctor\u2019s expert opinion testimony, that testimony must be competent and not based on conjecture and speculation; (2) while the doctor\u2019s testimony reflects his general treatment of the majority of his patients, it does not leave room for the possibility that some patients will be incapable of returning to work after the seven-day period following surgery; and (3) as the doctor stated that he individualizes the decision to return a patient to work and that he did not see plaintiff after her surgeries or express an opinion regarding her post-surgery condition, any inferences made in respect to plaintiff\u2019s ability to return to work would be mere speculation.\nAppeal by plaintiff from opinion and award filed 10 April 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 21 May 2002.\nPatterson, Harkavy & Lawrence, L.L.P., by Henry N. Patterson, Jr. and Martha A. Geer, for plaintiff appellant.\nRobinson & Lawing, L.L.P., by Jolinda J. Babcock, for defendant appellees."
  },
  "file_name": "0478-01",
  "first_page_order": 508,
  "last_page_order": 516
}
