{ "id": 8411620, "name": "TAMMY BARBOUR, Employee, Plaintiff v. REGIS CORP., Employer; EMPLOYERS INSURANCE OF WAUSAU, Carrier, Defendants", "name_abbreviation": "Barbour v. Regis Corp.", "decision_date": "2004-12-21", "docket_number": "No. COA03-1134", "first_page": "449", "last_page": "459", "citations": [ { "type": "official", "cite": "167 N.C. App. 449" } ], "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": "624 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "indicating a Form 28U would merely reinstate compensation pending the Commission's determination on whether the return to work was a failed return to work due to a compensable work-related injury" } ], "opinion_index": 0 }, { "cite": "361 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741419 ], "year": 2000, "pin_cites": [ { "parenthetical": "indicating a Form 28U would merely reinstate compensation pending the Commission's determination on whether the return to work was a failed return to work due to a compensable work-related injury" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0341-01" ] }, { "cite": "518 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "10" } ], "opinion_index": 0 }, { "cite": "134 N.C. 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App.", "case_ids": [ 11912507 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "209", "parenthetical": "Walker, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0200-01" ] }, { "cite": "439 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522851 ], "year": 1994, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0440-01" ] }, { "cite": "181 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "155 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562491 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0076-01" ] }, { "cite": "374 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "485" }, { "page": "485" }, { "page": "485" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. 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App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439949 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "159-60" }, { "page": "159-60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0154-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 954, "char_count": 23862, "ocr_confidence": 0.743, "pagerank": { "raw": 1.2252598226990862e-07, "percentile": 0.6044219180346035 }, "sha256": "15da0aa7c3a0b31f77d8589e3c90f059c55ae5e871ac884cf7132cfdeb6f5cb4", "simhash": "1:9da34282d4d42e8f", "word_count": 3786 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and McCULLOUGH concur." ], "parties": [ "TAMMY BARBOUR, Employee, Plaintiff v. REGIS CORP., Employer; EMPLOYERS INSURANCE OF WAUSAU, Carrier, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nBy this appeal, Regis Corporation and Employers Insurance of Wausau (\u201cdefendants\u201d), challenge the Industrial Commission\u2019s opinion and award of temporary total disability compensation and medical expenses to Tammy Barbour (\u201cplaintiff\u2019). Specifically, defendants contend (I) plaintiff\u2019s cervical condition is not causally related to her original injury by accident and therefore not compensable; (II) plaintiff is not disabled under the North Carolina\u2019s Workers\u2019 Compensation Act and therefore she is not entitled to ongoing disability benefits; and (III) defendants are not estopped from denying plaintiff\u2019s cervical injury claim. After careful review, we affirm the Commission\u2019s opinion and award.\nOn 1 June 1998, plaintiff was a hair salon manager working for Smart Style Regis in Smithfield, North Carolina. Her duties included monitoring inventory, hiring personnel, making bank deposits and hair styling. On 1 June 1998, plaintiff was removing hair rollers from a customer\u2019s hair. After she finished one side of the customer\u2019s hair, she started walking around the chair to the other side of the customer to work on that side of the customer\u2019s hair. As she was walking, plaintiff\u2019s feet slid out from under her and she landed on her left shoulder and neck. After falling, she finished working on her customer and went home to rest because of pain.\nLater that evening, plaintiff sought treatment with Johnston Memorial Hospital because the pain had not dissipated. She advised the hospital that she was suffering from neck and left shoulder pain. She was prescribed pain medication, ordered not to work for two days and was advised to follow up with Dr. Richard John Alioto.\nOn 5 June 1998, plaintiff had her initial visit with Dr. Alioto. She informed Dr. Alioto that she fell landing on her left shoulder and neck at work and that she was still experiencing pain and numbness in her left arm. Dr. Alioto diagnosed plaintiff with left AC joint sprain, probably grade 1 or 2. After a few follow-up visits, plaintiff did not receive any treatment from Dr. Alioto from 25 June 1998 until 7 January 1999.\nAfter plaintiff returned to work at the end of June 1998, she continued to experience pain. However, she endured the pain because the salon was \u201cshort-staffed.\u201d At the beginning of the new year, she returned to Dr. Alioto complaining of pain radiating up into her neck, the shoulder area, and in her arm. Dr. Alioto diagnosed her with rota-tor cuff tendinitis and AC joint arthritis. After her follow-up visit on 26 January 1999, Dr. Alioto diagnosed her with a cervical strain. After several more visits, plaintiff underwent surgery on 15 March 1999.\nImmediately after the surgery, plaintiff remained out of work for four weeks. During this time period, plaintiff returned to Dr. Alioto for a post-surgery visit on 25 March 1999. At that time, Dr. Alioto reported plaintiff was doing well. Thereafter, she returned to work on light duty which consisted of scheduling, greeting customers, ordering inventory, and making bank deposits. Approximately two months after the surgery, in May, plaintiff resumed hairstyling for four hours a day. After she resumed hairstyling, plaintiff felt pain in the left side of her neck, shoulder and arm. Plaintiff discussed her pain with Dr. Alioto during her doctor\u2019s visits at the end of April, in May and in June. On 1 July 1999, Dr. Alioto suspected that her cervical problems were aggravated by her fall. However, during his deposition, Dr. Alioto stated that his suspicions were speculative and could not state to a reasonable degree of medical certainty that plaintiffs work-related fall caused or aggravated her cervical condition.\nOn 1 July 1999, Dr. Alioto also gave plaintiff a referral for a neu-rosurgical evaluation. On 28 September 1999, plaintiff had her first appointment with Dr. William S. Lestini, an orthopaedic surgeon. During the course of his treatment, Dr. Lestini conducted several diagnostic tests, prescribed medications and physical therapy, and performed a nerve root block in plaintiff\u2019s upper neck. Dr. Lestini testified to a reasonable degree of medical certainty that plaintiffs neck pain was either caused or aggravated by her 1 June 1998 injury.\nFinally, plaintiff was referred to Dr. James S. Fulghum, III, a neurosurgeon for a review and assessment of plaintiffs condition. He agreed with the finding that plaintiff had degenerative disc disease in her cervical area and opined that falling as plaintiff did could have caused an acceleration of degenerative disc disease. Dr. Fulghum also stated to a reasonable degree of medical certainty that if plaintiff fell, suffered an injury, and experienced pain symptoms afterwards without having experienced pain prior to the fall, plaintiffs pain was caused by the fall. However, he also testified that if she had no complaints of neck pain for a year and then only complained of neck pain after her shoulder had been worked on, then it would be very unlikely that the injury had anything to do with the neck pain.\nAfter plaintiff suffered her work-related injury on 1 June 1998, defendants filed a Form 60 on 16 June 1998, admitting plaintiffs right to compensation describing her injury as \u201cMPRT,\u201d pain in multiple body parts, and began receiving temporary total disability benefits. After one year of treatment and surgery, plaintiff was terminated from her employment with Smart Style Regis in June 1999. The next year, Dr. Lestini opined that plaintiff was at maximum medical improvement for her neck and Dr. Alioto opined that plaintiff was at maximum medical improvement on 2 March 2000 and assigned a fourteen percent (14%) permanent partial impairment of the left upper extremity.\nIn July 2000, plaintiff was given work restrictions and began working with Benson Chiropractic as a receptionist. However, on 24 August 2000, plaintiff resigned from her employment due to severe neck pain. In November 2000, defendants filed a Form 33 request for hearing seeking to terminate benefits on the grounds that plaintiff was no longer disabled. On 28 February 2002, the deputy commissioner found and concluded plaintiffs \u201ccervical stenosis, degenerative disc disease and accompanying pain were not caused by, aggravated by or accelerated by plaintiffs June 1, 1998 injury by accident.\u201d The deputy commissioner concluded plaintiffs \u201cpain which prevented [her] from continuing her employment\u201d was \u201cnot caused by or contributed to by her June 1, 1998 compensable injury.\u201d After appeal before the Full Commission, on 30 April 2003, the Commission reversed the deputy commissioner and determined that plaintiffs cervical condition and degenerative disc disease were aggravated or accelerated by the 1 June 1998 fall, that plaintiff has not reached maximum medical improvement for her cervical neck condition, and that plaintiff was disabled and unable to earn wages in her regular employment or in any other employment after 24 August 2000. Accordingly, the Commission ordered defendants to pay all medical expenses incurred or to be incurred as a result of the injury by accident, including treatment of plaintiffs cervical condition. Defendants appeal.\nDefendants first contend the Commission\u2019s findings of fact determining plaintiffs cervical condition was causally related to her work-related fall on 1 June 1998 \u201ccompletely lacked competent evidence to support them\u201d and were \u201cbased on nothing more than mere speculation and conjecture in violation of the law.\u201d However, we do not reach defendants\u2019 contentions because they have admitted liability and compensability for plaintiff\u2019s neck injury.\nOn 16 June 1998, defendants filed a Form 60 \u201cEmployer\u2019s Admission of Employee\u2019s Right to Compensation Pursuant to N.C. Gen. Stat. \u00a7 97-18(b)\u201d in which defendants describe plaintiff\u2019s injury as \u201cPain MPRT,\u201d or pain in multiple body parts, which resulted from an injury occurring on 1 June 1998. As explained in Sims v. Charmes/Arby\u2019s Roast Beef, 142 N.C. App. 154, 159-60, 542 S.E.2d 277, 281-82 (2001), an employer who files a Form 60 pursuant to N.C. Gen. Stat. \u00a7 97-18(b) will be deemed to have admitted liability and compensability.\nNonetheless, defendants argue they should be allowed to contest the compensability of plaintiff\u2019s cervical condition because the condition was non-work related. Defendants contend that \u201c[t]o hold otherwise would be unfair to the employer as a declaration against its interest even when the plaintiff does not have a valid claim.\u201d We decline to address defendants\u2019 contentions because the Commission correctly concluded plaintiffs cervical condition was either caused or aggravated by her 1 June 1998 work-related fall.\nIn its Opinion and Award, the Commission found: \u201c34. Plaintiff\u2019s cervical stenosis and degenerative disc disease were aggravated or accelerated by the June 1,1998 injury by accident.\u201d In challenging this finding, defendants reference the dissenting opinion of Commissioner Renee Riggsbee which stated a finding that a causal relationship exists between plaintiff\u2019s neck condition and the fall would result from a \u201cstrained reading of the totality of the medical depositions.\u201d Commissioner Riggsbee further stated \u201c[m]edical causation should be based on competent medical opinion and not speculation and conjecture.\u201d After careful review of the transcript, depositions and the record below, we affirm the Commission\u2019s finding of a causal relationship between plaintiff\u2019s work-related injury and her cervical condition.\nIn reviewing an Opinion and Award from the Industrial Commission:\n\u201cThe findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.\u201d Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). Thus, on appeal, this Court \u201cdoes not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Anderson [v. Lincoln Constr. Co.], 265 N.C. [431,] 434, 144 S.E.2d [272,] 274 [(1965)].\nN.C.G.S. \u00a7 97-86 provides that \u201can award of the Commission upon such review, as provided in G.S. 97-85, shall be conclusive and binding as to all questions of fact.\u201d N.C.G.S. \u00a7 97-86 (1991). As we stated in Jones v. Myrtle Desk Co., 264 N.C. 401, 141 S.E.2d 632 (1965), \u201c[t]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\u201d Id. at 402, 141 S.E.2d at 633. The evidence tending to support plaintiff\u2019s claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence. Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937).\nAdams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).\nWhile in this case Dr. Alioto testified that his 1 July 1999 statement that plaintiffs cervical stenosis was aggravated by her 1 June 1998 work-related fall was speculative, Dr. Lestini testified to a reasonable degree of medical certainty that a causal connection existed between plaintiff\u2019s neck condition and her work-related injury. Specifically, Dr. Lestini testified as follows:\n[Q.] If you will, for just a moment, assume that Tammy Barbour experienced no neck pain \u2014 as we submit she\u2019s testified earlier live in a hearing in this cause \u2014 before her fall on 6-1-98; assuming further, if you will, that she had neck pain in the aftermath of her 6-1-98 work fall as she has said she did; assume further that she complained of neck pain throughout her medical appointments with Dr. Alioto, an initial treating physician who, in fact, did surgery on her shoulder.\nIf you make those assumptions and based upon those assumptions, do you have an opinion satisfactory to yourself as to a reasonable degree of medical certainty as to whether her neck pain could have been proximally caused by the 6-1-98 fall?\nA. Given those assumptions, I have no reason to doubt that the current symptoms are not related to the initial injury, as described.\nShortly thereafter, Dr. Lestini testified as follows:\n[Q.] I understand you to say that to a reasonable degree of medical certainty the injury then proximately caused the neck\u2014 the fall proximately caused the neck injury?\nA. I believe we\u2019re saying the same thing and once again I believe, yes, that\u2019s the \u2014 I agree with that.\nMoreover, Dr. Lestini opined that the 1 June 1998 fall would have aggravated any preexisting neck condition.\nQ. Okay. Now, given the \u2014 if you make the same assumptions that I gave you earlier, would it not be fair to say also as to a reasonable degree of medical certainty that if there were preexisting degenerative diseases, that such a fall may have aggravated the condition of her neck and caused her neck pain?\nA. I believe that\u2019s true.\nDr. Fulghum also testified to a relationship between plaintiff\u2019s fall and an acceleration of plaintiff\u2019s degenerative disc condition.\nQ. ... a fall such as was described to you, her falling on a floor and on her left side and on her neck could have caused an acceleration of a degeneration or disc disease; is that correct?\nA. Yes, sir.\nIn each of the hypotheticals, the doctors were told to assume plaintiff complained of neck pain after the fall. Our review of the record indicates plaintiff complained of neck pain immediately after the fall. Indeed, she stated she had left side neck pain when she reported to Johnston Memorial Hospital and, during her initial visit with Dr. Alioto, the doctor reported she appeared uncomfortable in the neck area. Thus, we conclude the Commission\u2019s finding that plaintiff\u2019s 1 June 1998 work-related fall aggravated or accelerated her cervical stenosis and degenerative disc disease was supported by competent evidence. Even though Dr. Alioto testified that his opinion that there was a causal relationship was based upon mere speculation, \u201c \u2018the Commission is the fact finding body\u2019 \u201d and \u201c \u2018is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \"Adams, 349 N.C. at 680, 509 S.E.2d at 413 (citations omitted). As stated, \u201con appeal, this Court \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Id. at 681, 509 S.E.2d at 414 (citation omitted).\nDefendants next contend plaintiff is not entitled to ongoing disability benefits from 24 August 2000, the last date worked, because she is neither disabled as defined by the Workers\u2019 Compensation Act nor is her cervical condition compensable because it is a non-work related condition. As stated in Sims,\nadmitting compensability and liability, whether through notification of the Commission by the use of a Form 60 or through paying benefits beyond the statutory period provided for in G.S. \u00a7 97-18(d), does not create a presumption of continuing disability as does a Form 21 agreement entered into between the employer and the employee.\nSims, 142 N.C. App. at 159-60, 542 S.E.2d at 281-82. Thus, \u201c[t]he burden of proving disability . . . remains with plaintiff.\u201d Id. at 160, 542 S.E.2d at 282.\nThe Workers\u2019 Compensation Act compensates an employee for work related injuries which prevent him from making the equivalent amount of wages he made before the injury. Watson v. Winston-Salem Transit Authority, 92 N.C. App. 473, 475, 374 S.E.2d 483, 485 (1988). In order to receive disability compensation under the Act, the mere fact of an on the job injury is not sufficient. The injury must have impaired the worker\u2019s earning capacity. Id.; Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).\nN.C. Gen. Stat. \u00a7 97-2(9) (2003) defines disability as \u201cincapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d In order to find a worker disabled under the Act, the Commission must find:\n(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual\u2019s incapacity to earn was caused by plaintiff\u2019s injury.\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). Initially, the claimant must prove both the extent and the degree of his disability. Watson v. Winston-Salem Transit Authority, 92 N.C. App. at 475, 374 S.E.2d at 485. However, once the disability is proven, \u201cthere is a presumption that it continues until \u2018the employee returns to work at wages equal to those he was receiving at the time his injury occurred.\u2019 \u201d Watson, 92 N.C. App. at 476, 374 S.E.2d at 485 (quoting Watkins v. Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971)). That presumption of disability continues until the defendant offers evidence to rebut the presumption. At that point, the burden shifts to the employer to show that the worker is employable. Radica v. Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190 (1994). An employer may rebut the continuing presumption of total disability either by showing the employee\u2019s capacity to earn the same wages as before the injury or by showing the employee\u2019s capacity to earn lesser wages than before the injury. Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 209, 472 S.E.2d.382, 388 (1996) (Walker, J., concurring). To rebut the presumption of continuing disability, the employer must produce evidence that:\n(1) suitable jobs are available for the employee;\n(2) that the employee is capable of getting said job taking into account the employee\u2019s physical and vocational limitations;\n(3) and that the job would enable the employee to earn some wages.\nId. At any time, the employer may rebut the presumption of disability by showing that the employee has unjustifiably refused suitable employment. N.C. Gen. Stat. \u00a7 97-32 (2003); id.\nIn this case, defendants\u2019 argument that plaintiff is not entitled to ongoing disability benefits is based upon their contention that plaintiff\u2019s cervical condition was non-work related and that plaintiff has not sought treatment for her left shoulder or left AC joint since 1 July 1999. However, as previously discussed, competent evidence supports the Commission\u2019s finding that plaintiff\u2019s cervical condition is compensable and work-related. Furthermore, defendants concede in their brief that \u201cthe only evidence Plaintiff has provided to support her claim of ongoing disability is in regards to her cervical condition.\u201d As plaintiff has presented evidence of ongoing disability, the burden shifted to defendants to show that plaintiff refused suitable employment or that suitable jobs were available to plaintiff which plaintiff was capable of acquiring given her physical and vocational limitations and would have paid her some wages. See id. On appeal, defendants do not argue suitable employment was available or that plaintiff refused suitable employment. Furthermore, defendants do not contend that the following conclusion of law was unsupported by sufficient findings of fact based upon competent evidence:\n5. . . . Plaintiff met her burden of proving that she is physically, as a result of the work-related injury, incapable of any work. . . . Defendants have not shown that suitable jobs are available to plaintiff and that plaintiff is capable of obtaining a suitable job, taking into account both physical and vocation limitations.\nAccordingly, we overrule this assignment of error.\nFinally, defendants contend they are not estopped to deny plaintiffs unrelated and non-compensable cervical injury claim-because they filed a Form 60, paid compensation and did not deny plaintiffs claim within ninety days of filing the Form 60. As we have affirmed the Commission\u2019s findings and conclusions determining plaintiffs cervical condition was work-related and that plaintiff is entitled to ongoing disability benefits, we decline to address this assignment of error.\nAffirmed.\nJudges TIMMONS-GOODSON and McCULLOUGH concur.\n. \u201cG.S. \u00a7 97-82(b) specifically states that payment pursuant to G.S. \u00a7 97-18(b) (a Form 60 Payment) \u2018shall constitute an award of the Commission on the question of compensability of and the insurer\u2019s liability for the injury for which payment was made.\u2019 Moreover, Form 60 states only \u2018[y]our employer admits your right to compensation for an injury by accident on (date-) . . . .\u2019 Below this acknowledgment of liability is a section provided for a description of the accident, the average weekly wage and resulting compensation rate, and the date which disability begins and ends. The section is captioned, in bold print and capital letters: \u2018THE FOLLOWING IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE AN AGREEMENT.\u2019\nIn contrast, the North Carolina Industrial Commission Form 21, which constitutes an award of the Commission as to both compensability and amount when properly approved states explicitly that the parties agree and stipulate not only as to com-pensability but also to the employee\u2019s average weekly wage. \u2018Once the Form 21 agreement [is] reached and approved \u201cno party . . . [can] thereafter be heard to deny the truth of the matters therein set forth . . . \u201d Watts v. Hemlock Homes of the Highlands, Inc., 141 N.C. App. 725, 728, 544 S.E.2d 1,3 (2001) (citations omitted) (emphasis omitted).\n. Defendants also reference plaintiffs failure to file a Form 28U after leaving her employment with Benson Chiropractic on 24 August 2000. The failure to complete a Form 28U, \u201cEmployee\u2019s Request that Compensation be Reinstated After Unsuccessful Trial Return to Work,\u201d does not preclude plaintiff from receiving ongoing disability benefits. See Jenkins v. Public Servive Co. of N.C., 134 N.C. App. 406, 412, 518 S.E.2d 6, 10 (1999), reversed in part on other grounds by, 361 N.C. 341, 624 S.E.2d 806 (2000) (indicating a Form 28U would merely reinstate compensation pending the Commission\u2019s determination on whether the return to work was a failed return to work due to a compensable work-related injury).", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Law Offices of George W. Lennon, by George W. Lennon and W. Bain Jones, Jr., for plaintiff-appellee.", "Hedrick & Morton, L.L.P., by G. Grady Richardson, Jr. and P. Scott Hedrick, for defendant-appellants." ], "corrections": "", "head_matter": "TAMMY BARBOUR, Employee, Plaintiff v. REGIS CORP., Employer; EMPLOYERS INSURANCE OF WAUSAU, Carrier, Defendants\nNo. COA03-1134\n(Filed 21 December 2004)\n1. Workers\u2019 Compensation\u2014 causal connection between injury and condition \u2014 fall while styling hair\nThe evidence in a workers\u2019 compensation case supported the Industrial Commission\u2019s findings that plaintiff\u2019s cervical condition was causally related to her work-related fall. Even though one doctor testified that his opinion was based on speculation, there was other testimony that a causal connection existed to a reasonable degree of medical certainty; the Commission is the sole judge of the witnesses and the weight of their testimony.\n2. Workers\u2019 Compensation\u2014 ongoing disability \u2014 evidence of suitable employment \u2014 not forthcoming\nThe Industrial Commission did not err by awarding ongoing disability benefits where competent evidence supported the finding of a compensable work-related injury, plaintiff presented evidence of ongoing disability, and defendants did not then carry their burden of showing that suitable jobs were available or that plaintiff had refused suitable employment.\nAppeal by defendants from an opinion and award entered 30 April 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 August 2004.\nLaw Offices of George W. Lennon, by George W. Lennon and W. Bain Jones, Jr., for plaintiff-appellee.\nHedrick & Morton, L.L.P., by G. Grady Richardson, Jr. and P. Scott Hedrick, for defendant-appellants." }, "file_name": "0449-01", "first_page_order": 479, "last_page_order": 489 }