{ "id": 8353403, "name": "CLAUDE QUEEN, Employee, Plaintiff v. PENSKE CORPORATION, Employer, and KEMPER c/o GALLAGHER BASSETT, Carrier, Defendants", "name_abbreviation": "Queen v. Penske Corp.", "decision_date": "2005-12-06", "docket_number": "No. COA05-03", "first_page": "814", "last_page": "819", "citations": [ { "type": "official", "cite": "174 N.C. App. 814" } ], "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": "548 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135662, 135984, 135889, 135827, 135859 ], "year": 2001, "pin_cites": [ { "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0450-04", "/nc/353/0450-01", "/nc/353/0450-02", "/nc/353/0450-03", "/nc/353/0450-05" ] }, { "cite": "542 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "675", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441214 ], "year": 2001, "pin_cites": [ { "page": "360", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-25.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "415 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313785 ], "year": 1992, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0114-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "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" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] } ], "analysis": { "cardinality": 609, "char_count": 12092, "ocr_confidence": 0.738, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7513094392761894 }, "sha256": "1a5fe8eddc4145c83afcd0fc39ffc91058489c4ba8a1b646611430dd116953f3", "simhash": "1:0974336248bf7ad2", "word_count": 1882 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurred prior to 31 October 2005.", "Judge ELMORE concurs." ], "parties": [ "CLAUDE QUEEN, Employee, Plaintiff v. PENSKE CORPORATION, Employer, and KEMPER c/o GALLAGHER BASSETT, Carrier, Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nPlaintiff Claude Queen, an employee of defendant Penske Corporation (\u201cPenske\u201d), claimed a back injury at work on 1 July 2002. Following a hearing on 27 June 2003, Deputy Commissioner Wanda Blanche Taylor issued an opinion and award on 30 March 2004, concluding that plaintiff had sustained a compensable back injury at work and needed medical treatment, including both conservative measures and eventual surgery. Defendants appealed, and on 11 October 2004, the Full Commission issued an opinion and. award affirming the Deputy Commissioner\u2019s opinion and award. Defendants appeal. As discussed below, we affirm.\nPlaintiff is employed as an engine tuner for Penske. On 1 July 2002, plaintiff felt a sting and pop in his back while lifting a tire. Dr. Jerry Petty, a neurosurgeon, examined plaintiff and ordered an MRI. Based on the MRI, Dr. Petty recommended surgery if plaintiffs symptoms escalated to the point where he could not walk. Dr. Petty also recommended epidural steroid injections. Plaintiff elected not to have the injections, and also expressed a desire to avoid surgery if possible.\nThe Full Commission made numerous findings of fact including those challenged by defendants:\n2. Plaintiff had back problems that pre-existed his injury on July 1, 2002. However, these pre-existing problems were all minor and resolved quickly. In 1978, Plaintiff pulled a muscle in his back while self-employed. In approximately 1993, he hurt his back while picking up a tire. In 1999, Plaintiff hurt his neck. These preexisting problems required only a few medical appointments each and were managed conservatively by Plaintiffs treating neurosurgeon, Dr. Jerry Petty.\n***\n8. On July 30, 2002, Plaintiff returned to Dr. Petty and the MRI was interpreted to show degenerative changes in Plaintiffs spine, including stenosis and bulging discs at L2-3, L3-4, and L4-5. Dr. Petty recommended epidural steroid injections for Plaintiff and also discussed surgical intervention due to the symptoms Plaintiff had experienced since his injury on July 1, 2002.\n9. Plaintiff was advised that epidural steroid injections are not guaranteed to provide relief. For this reason, Plaintiff decided not to undergo these injections.\n11. Plaintiff\u2019s symptoms from his back injury come and go. Plaintiff has good days and bad days with his back pain. Although Plaintiffs pain is sometimes absent, he continues to have frequent back pain as a consequence of his injury on July 1, 2003 [sic]. Plaintiff did not experience this back pain before his injury. Despite his back pain, Plaintiff continues to work.\n12. Dr. Petty opined that although Plaintiff had pre-existing stenosis and bulging discs, the injury of July 1, 2003 [sic], aggravated these pre-existing conditions and cause Plaintiff to become symptomatic since that time. At the time of the hearing before the Deputy Commissioner, Plaintiffs symptoms have not resulted in a loss of wage earning capacity that would entitle him to disability compensation under N.C. Gen. Stat. 97-28 and 97-29.\n13. Dr. Petty recommended Plaintiff have surgery if he remains symptomatic. Dr. Petty opined Plaintiffs need for surgery is a proximate consequence of the specific traumatic incident he sustained on July 1, 2003 [sic], even though Plaintiff had underlying degenerative changes in his spine.\nDefendants also challenged the Commission\u2019s conclusion, quoted here in pertinent part:\n2. As the result of Plaintiff\u2019s compensable injury, Plaintiff needs medical treatment, including the conservative measures and surgery recommended by Dr. Jerry Petty. See N.C. Gen. Stat. 97-25. Plaintiff\u2019s reluctance to undergo some of this treatment does not result in a penalty against him, however, since plaintiff is not receiving disability compensation, the Commission has not ordered Plaintiff to undergo such treatment, and Plaintiff is justified in not wanting to undergo such treatment at the present time. See N.C. Gen. Stat. 97-25. In addition, the fact that Plaintiff\u2019s symptoms are not always present does not abate Defendants\u2019 liability for ongoing medical treatment, since such an inquiry deals not with the necessity of Plaintiff\u2019s surgery testified to by Dr. Petty but rather the question of whether a \u201cchange of condition\u201d has occurred. . . .\nWe begin by noting the well-established standard of review for worker\u2019s compensation cases from the Industrial Commission. This Court does not assess credibility or re-weigh evidence; it only determines whether the record contains any evidence to support the challenged findings. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), rehearing denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Instead, we are \u201climited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000).\nDefendants first argue that the Commission erred in finding and concluding that plaintiff\u2019s 1 July 2002 injury continues and that his need for further medical treatment is related to that injury. We disagree..\nThe Worker\u2019s Compensation Act specifies that employers provide medical compensation, defined by the Act as:\nmedical, surgical, hospital, nursing, and rehabilitative services, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability....\nN.C. Gen. Stat. \u00a7 97-2 (19) (2003). \u201c[A]n award for medical compensation must be limited to medical expenses reasonably related to the employee\u2019s compensable injury.\u201d Errante v. Cumberland County Solid Waste Mgmt., 106 N.C. App. 114, 121, 415 S.E.2d 583, 587 (1992). Defendants contend that plaintiff\u2019s back injury had resolved prior to the hearing, and that any future medical treatments he might require were unrelated to his compensable injury.\nHowever, Dr. Petty\u2019s deposition contains competent evidence that plaintiff\u2019s back problems continued and that the future medical treatments Dr. Petty recommended were related to the 1 July 2002 injury:\n[Plaintiff\u2019s counsel] Q: . . . [after summarizing plaintiff\u2019s medical history]. Based on those set of facts or assuming those facts are accurate or true, do you have an opinion as to whether it\u2019s more likely than not that Mr. Queen either sustained an injury on July 1, 2002, or aggravated a pre-existing condition on July 1, 2002, causing the treatment you have now recommended?\nA. I- \u2014 I do not know exactly how much back trouble he had had prior to the time he lifted the tire. He didn\u2019t see me for it if he had back trouble and I think that if he had no pain prior to the time he lifted the tire and he had pain after he lifted the tire, I think it\u2019s related to lifting the tire.\nQ: Okay. And would you think that the treatment that you have recommended, including the epidural steroid injection, that recommendation, as well as the possibility of future surgery, are as a result of this July 1, 2002, incident or the aggravation of this pre-existing condition?\nA. I think that if he had surgery, it would be for the lumbar spinal stenosis, which is congenital, and I think the reason he\u2019d have to have surgery is because that \u2014 either that got worse or he kept injuring himself trying to do the type of work he does.\n(Emphasis supplied). These excerpts from Dr. Petty\u2019s deposition provide competent evidence which supports the findings challenged by defendants. Because we do not reweigh the evidence, but merely determine whether any competent evidence supports the findings, we overrule this assignment of error.\nDefendants also argue that the Commission erred in finding and concluding that defendants must provide surgery at some point in the future. We disagree.\nDefendants contend that any future surgery plaintiff might require is merely a possibility at this time and that the Commission\u2019s order must be void as conditional. However, this eventuality is provided for by statute. The Worker\u2019s Compensation Act states, in pertinent part, that:\nThe right 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. If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation.\nN.C. Gen. Stat. \u00a7 97-25.1 (2003) (emphasis supplied). Thus, the Commission is specifically authorized to consider the possibility of future medical needs and to provide for them in awards. In addition, the Act provides that:\nMedical compensation shall be provided by the employer. Notwithstanding the provisions of G.S. 8-53, any law relating to the privacy of medical records or information, and the prohibition against ex parte communications at common law, an employer paying medical compensation to a provider rendering treatment under this Chapter may obtain records of the treatment without the express authorization of the employee. In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital, or other treatment, the Industrial Commission may order such further treatments as may in the discretion of the Commission be necessary.\nThe Commission may at any time upon the request of an employee order a change of treatment and designate other treatment suggested by the injured employee subject to the approval of the Commission, and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance.\nN.C. Gen. Stat. \u00a7 97-25 (2003). \u201cWhether to authorize supplemental medical treatment under section 97-25 is a matter firmly within the Commission\u2019s discretion. A discretionary ruling will be upheld on appeal, provided that the decision was reasonable and was not whimsical or ill-considered.\u201d Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 360, 542 S.E.2d 668, 675, disc. review denied, 353 N.C. 450, 548 S.E.2d 524 (2001) (internal citation omitted). Given the testimony from Dr. Petty about defendant\u2019s possible need for back surgery in the future and the findings and conclusions based thereupon, we conclude that the Commission\u2019s decision was reasonable.\nAffirmed.\nJudge TIMMONS-GOODSON concurred prior to 31 October 2005.\nJudge ELMORE concurs.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "The Sumwalt Law Firm, by Mark T Sumwalt and Vernon Sumwalt, for plaintiff.", "Brooks, Stevens & Pope, P.A., by Joy H. Brewer and Kimberly A. D Arruda, for defendants." ], "corrections": "", "head_matter": "CLAUDE QUEEN, Employee, Plaintiff v. PENSKE CORPORATION, Employer, and KEMPER c/o GALLAGHER BASSETT, Carrier, Defendants\nNo. COA05-03\n(Filed 6 December 2005)\n1. Workers\u2019 Compensation\u2014 back injury not resolved \u2014 need for continuing treatment \u2014 supporting evidence\nThere was competent evidence supporting the Industrial Commission\u2019s findings in a workers\u2019 compensation case that plaintiff\u2019s back injury continues and that his need for further medical treatment is related to that injury.\n2. Workers\u2019 Compensation\u2014 back injury \u2014 future surgery\u2014 not void as conditional\nThe requirement in a worker\u2019s compensation order that defendant provide surgery in the future for plaintiff\u2019s back injury was supported by medical testimony about plaintiff\u2019s need for the surgery. The Commission is specifically authorized by statute to consider the possibility of future medical needs and to provide for them.\nAppeal by defendants from opinion and award entered 11 October 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 August 2005.\nThe Sumwalt Law Firm, by Mark T Sumwalt and Vernon Sumwalt, for plaintiff.\nBrooks, Stevens & Pope, P.A., by Joy H. Brewer and Kimberly A. D Arruda, for defendants." }, "file_name": "0814-01", "first_page_order": 844, "last_page_order": 849 }