{ "id": 8301096, "name": "JENNIFER PERKINS, Employee, Plaintiff v. U.S. AIRWAYS, Employer, RELIANCE NATIONAL INSURANCE COMPANY, Insolvent, NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, SEDGWICK CMS, Third Party Administrator, Carrier, Defendants", "name_abbreviation": "Perkins v. U.S. Airways", "decision_date": "2006-04-18", "docket_number": "No. COA05-392", "first_page": "205", "last_page": "215", "citations": [ { "type": "official", "cite": "177 N.C. App. 205" } ], "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": "616 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633563 ], "year": 2005, "pin_cites": [ { "page": "360", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0356-01" ] }, { "cite": "599 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631450 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0404-01" ] }, { "cite": "358 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631458, 12631459, 12631448, 12631450, 12631451, 12631453, 12631454, 12631455 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0408-01", "/se2d/599/0409-01", "/se2d/599/0400-01", "/se2d/599/0404-01", "/se2d/599/0405-01", "/se2d/599/0406-01", "/se2d/599/0406-02", "/se2d/599/0407-02" ] }, { "cite": "595 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631284, 12631285 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/595/0153-02", "/se2d/595/0153-01" ] }, { "cite": "358 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631282, 12631283, 12631284, 12631287, 12631227 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/595/0152-02", "/se2d/595/0152-01", "/se2d/595/0153-02", "/se2d/595/0154-01", "/se2d/594/0188-01" ] }, { "cite": "613 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633056, 12633057, 12633058 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/613/0690-01", "/se2d/613/0690-02", "/se2d/613/0690-03" ] }, { "cite": "172 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320584 ], "year": 2005, "pin_cites": [ { "page": "501", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0496-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "457" }, { "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "\"It is not the role of the appellate courts ... to create an appeal for an appellant.\"" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "parenthetical": "\"It is not the role of the appellate courts ... to create an appeal for an appellant.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "316 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525904 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0168-01" ] }, { "cite": "588 S.E.2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956500 ], "year": 2003, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0211-01" ] }, { "cite": "589 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "154", "parenthetical": "\"[MJerely because plaintiff presented credible evidence, the Commission was not required to make findings of fact regarding that evidence.\"" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959480 ], "year": 2003, "pin_cites": [ { "page": "611", "parenthetical": "\"[MJerely because plaintiff presented credible evidence, the Commission was not required to make findings of fact regarding that evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0606-01" ] }, { "cite": "480 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53858 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0494-01" ] }, { "cite": "468 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "122 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915554 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0083-01" ] }, { "cite": "610 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797423 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0403-01" ] }, { "cite": "603 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "558", "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 563", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412225 ], "year": 2004, "pin_cites": [ { "page": "573", "parenthetical": "Hudson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0563-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "\" 'The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.' \" (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965))" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "\" 'The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.' \" (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965))" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "359 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800229, 3793893, 3794537, 3799052, 3804845, 3795663, 3804149, 3798264, 3796825 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0631-01", "/nc/359/0631-07", "/nc/359/0631-05", "/nc/359/0631-04", "/nc/359/0631-08", "/nc/359/0631-03", "/nc/359/0631-06", "/nc/359/0631-02", "/nc/359/0631-09" ] }, { "cite": "601 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "898-99" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411455 ], "year": 2004, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0413-01" ] }, { "cite": "457 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920864 ], "year": 1995, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0719-01" ] }, { "cite": "471 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798896, 798810, 798767, 798951 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0305-03", "/nc/343/0305-02", "/nc/343/0305-01", "/nc/343/0305-04" ] }, { "cite": "465 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917453 ], "year": 1996, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0387-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "opinion_index": 0 } ], "analysis": { "cardinality": 995, "char_count": 24252, "ocr_confidence": 0.736, "pagerank": { "raw": 2.8757821814622063e-07, "percentile": 0.8431669182257344 }, "sha256": "23d0568dbc306109a38f89bb81e1adf5e36bb549ac7ce2e128a17c79cdea6293", "simhash": "1:07298f0a20aaf844", "word_count": 3798 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "JENNIFER PERKINS, Employee, Plaintiff v. U.S. AIRWAYS, Employer, RELIANCE NATIONAL INSURANCE COMPANY, Insolvent, NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, SEDGWICK CMS, Third Party Administrator, Carrier, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Jennifer Perkins appeals from an opinion and award of the Industrial Commission concluding that she is not entitled to workers\u2019 compensation benefits. On appeal, Ms. Perkins challenges the Commission\u2019s decision to give greater weight to the testimony of certain expert witnesses, whose testimony was less favorable to her position, rather than the more favorable testimony of other experts. Additionally, Ms. Perkins objects to the Commission\u2019s failure to make findings regarding certain details in the evidence and its failure to draw more inferences in her favor. Because Ms. Perkins\u2019 arguments are inconsistent with the applicable standard of review, we affirm the Commission\u2019s order. Nevertheless, since the Commission failed to address Ms. Perkins\u2019 entitlement to compensation under N.C. Gen. Stat. \u00a7 97-31 (2005), we remand for determination of this issue.\nFacts\nMs. Perkins had been working as a flight attendant for 10 years when, on 10 May 2000, lightning struck a jet near her while she was helping passengers deplane from another U.S. Airways aircraft. Immediately after the strike, Ms. Perkins felt a \u201chot poker feeling\u201d in her right arm that persisted as a burning, \u201cpins and needles\u201d sensation. She was treated by paramedics at the scene and told to follow up with a doctor if problems continued. U.S. Airways filed a Form 60 admitting compensability. Over the next ten months, Ms. Perkins continued to perform her regular duties as a flight attendant for U.S. Airways.\nWithin a week of the accident Ms. Perkins saw neurologist Dr. Jerry Williams for a pre-existing neurological condition and complaints of tightness in her right side. In a later appointment, Ms. Perkins also complained of right arm and shoulder pain. Dr. Williams diagnosed Ms. Perkins as having an electric shock injury. A lumbar MRI showed disc degeneration at L5-S1 with mild broad-based disc protrusion, marginal osteophytosis, facet joint degenerative joint disease, and mild concentric disc protrusion at Ll-2. Dr. Williams continued to treat Ms. Perkins and ultimately excused her from work. As a result, Ms. Perkins began receiving temporary total disability benefits on 14 March 2001.\nDefendants referred Ms. Perkins to Dr. Roger Hershline for treatment relating to the lightning strike. On 30 March 2001, Dr. Hershline diagnosed her as suffering a cervical strain or cervical disc bulge and an electrical shock injury. He continued to excuse Ms. Perkins from work and referred her to Dr. Nicholas Grivas, a neurosurgeon, for assessment of her cervical condition. Dr. Grivas found no neurological deficits or any signs consistent with degenerative disc disease or a ruptured disc. He also testified that he did not find any evidence that Ms. Perkins suffered from thoracic outlet syndrome or any other surgically correctable abnormality.\nOn 13 April 2001, Ms. Perkins complained to Dr. Hershline of pain in her neck, shoulder, and aim, as well as problems with her memory. Ms. Perkins was able to answer Dr. Hershline\u2019s standard clinical memory tests correctly. With respect to the pain, Dr. Hershline noted that Ms. Perkins\u2019 recent home remodeling efforts had required greater physical exertion than Ms. Perkins\u2019 previous duties as a flight attendant. Further, although Ms. Perkins presented symptoms of depression, Dr. Hershline concluded they were not related to her lightning injury. He recommended that Ms. Perkins complete two more weeks of physical therapy and return to work without restrictions. The Commission found \u2014 in a finding of fact not challenged on appeal \u2014 that \u201c[f]rom this point forward, plaintiff\u2019s list of claimed symptoms expanded] dramatically.\u201d\nOn 8 June 2001, Ms. Perkins was seen by Dr. Rebecca Holdren in Greenville, South Carolina. Initially, Dr. Holdren diagnosed Ms. Perkins as suffering from reflex sympathetic dystrophy (\u201cRSD\u201d). Dr. Hershline, however, expressed the view that an RSD diagnosis was not supported by clinically observed symptoms and recommended a bone scan. A 13 July 2001 bone scan was normal. On 24 July 2001, Dr. Holdren agreed that the RSD diagnosis was incorrect and concluded that Ms. Perkins could return to work, from a physical standpoint, although she recommended three weeks of transitional work.\nDefendants subsequently filed a Form 24 seeking to* terminate Ms. Perkins\u2019 disability benefits on the grounds that she was no longer disabled. Special Deputy Commissioner Myra L. Griffith approved the application, and Ms. Perkins\u2019 disability benefits were ordered terminated on 12 September 2001.\nMs. Perkins learned of the Mensana Clinic in Maryland \u201cthrough a lightning strike survivor\u2019s Internet website\u201d and went there to see psychiatrist Dr. Nelson Hendler on 7 August 2001. At that time, Ms. Perkins reported an extensive list of physical conditions, including headaches, numbness, weight gain, spasms, trembling, and pain throughout much of her body. Dr. Hendler diagnosed Ms. Perkins with, among other things, thoracic outlet syndrome and nonfatal lightning injury with brain damage.\nSubsequent evaluation by neuropsychologist and Mensana Clinic affiliate Dr. Sheldon Levin found no neurocognitive disorders related to the lightning strike. Dr. Levin noted that Ms. Perkins was presenting a \u201cmixed pattern of symptoms\u201d that would normally be diagnosed as a somatization disorder, but declined to give this diagnosis based on Dr. Hendler\u2019s conclusion \u201cthat [Ms. Perkins] suffered from a physical rather than a mental illness.\u201d\nThe Commission ordered an independent medical examination and, on 11 December 2001, Ms. Perkins saw orthopaedist Dr. Robert Elkins. Dr. Elkins diagnosed Ms. Perkins as suffering from a lightning strike injury and related right upper extremity myofascial pain syndrome. Dr. Elkins concluded that Ms. Perkins had reached maximum medical improvement and assigned a 10% permanent partial disability rating to her upper right extremity. While Dr. Elkins believed that Ms. Perkins was disabled from her previous position as a flight attendant, he concluded she was capable of performing light to moderate duty work.\nDr. Hendler subsequently referred Ms. Perkins to neurologist Dr. Donlin Long, who found that Ms. Perkins had a normal EMG and cervical imaging study. Although he agreed that her complaints fit the classic definition of somatization disorder, he performed spinal fusion surgery based on Ms. Perkins\u2019 responses to \u201cprovocative disc blocks.\u201d\nDr. Hendler also referred Ms. Perkins to Dr. Avraam Karas. Dr. Karas performed several more surgeries on Ms. Perkins, including multiple rib resections and thoracic outlet syndrome surgeries. Ms. Perkins has requested additional surgery because of continuing pain.\nA hearing was held by Deputy Commissioner Adrian A. Phillips on 12 November 2002 for consideration of: (1) whether Ms. Perkins\u2019 compensable injury caused her cervical and lumbar spine injuries, thoracic outlet syndrome, depression, post-traumatic stress syndrome, and somatization disorder; and (2) to what degree Ms. Perkins was disabled as a result of her compensable injury. The deputy commissioner concluded that the lightning strike had caused Ms. Perkins\u2019 physical conditions as well as her \u201csevere depression and psychiatric illness\u201d and ordered defendants to pay temporary total disability benefits and all related medical expenses.\nOn appeal, the Full Commission reversed. The Commission decided to give \u201cgreater weight to the testimony of Dr. Hershline, Dr. Williams, Dr. Holdren, Dr. Grivas, Dr. Demas and Dr. Elkins than to Dr. Hendler, Dr. Levin, Dr. Long and Dr. Karas,\u201d noting that Drs. Hershline and Williams were Ms. Perkins\u2019 primary treating physicians immediately following the accident, whereas Dr. Hendler \u201cdid not see [Ms. Perkins] until more than a year after her initial injury.\u201d The Commission noted further that (1) \u201cDr. Hendler [had] relied on [Ms. Perkins\u2019] subjective complaints even when they [were] contradicted by the documentation provided by her previous physicians,\u201d and (2) Drs. Levin, Long, and Karas had \u201cdeferred to the opinion of Dr. Hendler even when the objective evidence . . . contradicted Dr. Hendler\u2019s diagnoses\nAlthough the Commission agreed that Ms. Perkins had sustained an injury by accident on 10 May 2000, it concluded that she had:\nfailed to establish though [sic] competent and credible medical evidence that [her] conditions with which she was diagnosed by Dr. Hendler and by the doctors to whom he referred [her] for the treatment of those conditions . . . were related to or aggravated by her compensable injury of May 10, 2000 as these diagnoses are contradicted by the objective medical evidence, records and testimony of Dr. Hershline, Dr. Williams, Dr. Grivas, Dr. Elkins, Dr. Demas and Dr. Holdren.\nThe Commission further concluded that \u201c[a]s of July 1, 2001, [Ms. Perkins] was capable of returning to full-duty work without restrictions.\u201d With respect to the diagnosis of a somatization disorder, the Commission stated that \u201c[m]erely being the \u2018precipitating\u2019 or \u2018triggering\u2019 event for her somatization disorder does not establish causation.\u201d Ms. Perkins timely appealed from this opinion and award.\nDiscussion\nOn appeal from a decision of the Full Commission, this Court reviews only (1) whether the Commission\u2019s findings of fact are supported by competent evidence in the record, and (2) whether the Commission\u2019s findings justify its legal conclusions. Counts v. Black & Decker Corp., 121 N.C. App. 387, 389, 465 S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68 (1996). The Commission\u2019s findings are conclusive on appeal if they are supported by competent, evidence, even if the evidence might also support a contrary finding. Jones v. Candler Mobile Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995). Consequently, \u201c[t]he Commission\u2019s findings of fact may be set aside on appeal only where there is a complete lack of competent evidence to support them.\u201d Id.\nI\nMuch of Ms. Perkins\u2019 argument on appeal rests on her contention that \u201c[t]he Commission committed a reversible error by not affording greater weight to the testimony of the physicians with experience treating patients with lightning strike injuries, and to the physicians whom have treated Ms. Perkins on a regular basis.\u201d Similarly, Ms. Perkins contends that \u201c[t]he record reflects that little, if any, weight should be given to the opinion of Dr. Hershline.\u201d The Commission is entitled, however, to give greater weight to the testimony of some doctors over others. Hensley v. Indus. Maint. Overflow, 166 N.C. App. 413, 420, 601 S.E.2d 893, 898-99 (2004), disc. review denied, 359 N.C. 631, 613 S.E.2d 690 (2005). Further, questions of weight and credibility are solely within the purview of the Commission to decide, and we may not revisit those determinations. Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (\u201c \u2018The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965))).\nMs. Perkins argues that \u201c[t]o afford greater weight to a doctor with no experience in an area who has unabashed loyalty to the defendants when there are physicians treating the patient with extensive experience, is unfair and unjust.\u201d That argument was for the Commission to assess and is not a proper subject for appellate review. See Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting) (\u201cIn reviewing a workers\u2019 compensation claim, this Court does not have the right to weigh the evidence and decide the issue on the basis of its weight.\u201d (internal quotation marks omitted)), adopted per curiam by, 359 N.C. 403, 610 S.E.2d 374 (2005). Accordingly, Ms. Perkins\u2019 arguments regarding weight and credibility cannot justify overturning the Commission\u2019s opinion and award.\nWith respect to Dr. Hershline in particular, Ms. Perkins also argues that an ex parte communication between Dr. Hershline and defendants rendered his testimony incompetent under Salaam v. N.C. Dep\u2019t of Transp., 122 N.C. App. 83, 468 S.E.2d 536 (1996), disc. review improvidently allowed, 345 N.C. 494, 480 S.E.2d 51 (1997). Ms. Perkins did not, however, object on Salaam grounds before the Commission, and, therefore, her contentions on this issue have not been preserved for appellate review. N.C.R.' App. P. 10(b)(1).\nWith respect to individual findings of fact, Ms. Perkins argues that the record supports additional findings not made by the Commission. So long as the Commission makes findings sufficient to address the issues and evidence before it, the Commission is not required to make findings of fact as to a particular point merely because the plaintiff has presented evidence on that subject. See Dunn v. Marconi Commc\u2019ns., Inc., 161 N.C. App. 606, 611, 589 S.E.2d 150, 154 (2003) (\u201c[MJerely because plaintiff presented credible evidence, the Commission was not required to make findings of fact regarding that evidence.\u201d). Ms. Perkins also asserts that the Commission should have drawn different inferences from the evidence upon which it did rely. As with decisions regarding credibility and weight, this Court may not revisit reasonable inferences drawn by the Commission. Norman v. N.C. Dep\u2019t of Transp., 161 N.C. App. 211, 224, 588 S.E.2d 42, 51 (2003), disc. review denied, 358 N.C. 235, 595 S.E.2d 153, cert. denied, 358 N.C. 545, 599 S.E.2d 404 (2004).\nIn arguing further that the Commission erred when it failed to find that Ms. Perkins\u2019 conditions were caused by her 10 May 2000 injury, Ms. Perkins relies on the testimony of Drs. Hendler, Long, Karas, Levin, and Dem\u00e1s. With the exception of Dr. Dem\u00e1s, the Commission chose not to rely upon those doctors\u2019 opinions, as it was entitled to do.\nAs for Dr. Demas, Ms. Perkins asserts that he stated that she \u201cis disabled due to a psychological impairment due to her post traumatic reaction to the trauma of her lightning strike event.\u201d The Commission acknowledged this diagnosis in its finding relating to Dr. Dem\u00e1s, but further found that \u201cDr. Dem\u00e1s testified that he felt plaintiff had a som-atization disorder, and as evidence cited her overly dramatic descriptions of her symptoms, her refusal to consider that there might be a psychological reason for her problems, and her seeking treatment from more and more physicians. He concluded the lightning itself would not have caused the condition but may have been a precipitating event.\u201d (Emphasis added.) This finding is supported by the record. The Commission ultimately found that \u201c[t]he greater weight of the evidence shows that plaintiff suffers from somatization disorder, which causes her to turn emotional anxiety into physical complaints.\u201d It concluded, however, that \u201c[m]erely being the \u2018precipitating\u2019 or \u2018triggering\u2019 event for her somatization disorder does not establish causation,\u201d citing Brewington v. Rigsbee Auto Parts, 69 N.C. App. 168, 316 S.E.2d 336 (1984).\nIn his dissent, Commissioner Thomas J. Bolch did not disagree with the Commission\u2019s assessment of the medical evidence, but concluded that \u201cthe majority erred in failing to find that plaintiff\u2019s soma-tization disorder is causally related to the lightning strike that she experienced on May 10, 2000. The majority should have found that plaintiff is mentally incapable of any employment as the consequence of her work-related injury . .. .\u201d Ms. Perkins, however, has chosen not to bring forth any argument on this issue on appeal and, accordingly, we may not address it. Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400; 402, 610 S.E.2d 360, 361 (2005) (\u201cIt is not the role of the appellate courts ... to create an appeal for an appellant.\u201d).\nAs a result, we conclude that the testimony of Dr. Dem\u00e1s does not justify overturning the Commission\u2019s findings and conclusions. Since Dr. Hershline\u2019s testimony, together with evidence and testimony from other doctors, supports the Commission\u2019s findings of fact and its conclusion that the Ms. Perkins failed to establish that the \u201cconditions with which she was diagnosed by Dr. Hendler and by the doctors to whom he referred [her] . .. were related to or aggravated by her com-pensable injury,\u201d we are required to uphold this aspect of the Commission\u2019s opinion and award.\nII\nMs. Perkins next argues that the Commission erred by concluding that she was not entitled to compensation for loss of wage earning capacity after 12 September 2001, the date that defendants\u2019 Form 24 was approved. \u201cThe burden is on the employee to show that [s]he is unable to earn the same wages [s]he had earned before the injury, either in the same employment or in other employment.\u201d Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). An employee may meet this burden in one of four ways:\n(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\nId. (internal citations omitted).\nMs. Perkins relies primarily on the first option, arguing that the medical evidence establishes that her work injury rendered her incapable of work in any employment. Of all the doctors to see Ms. Perkins, however, only Dr. Long stated that Ms. Perkins was incapable of doing any kind of work. Several of the other doctors\u2014 including Drs. Elkins, Karas, and Demas \u2014 testified that Ms. Perkins was capable of performing some kind of work. While we agree with Ms. Perkins that there is medical evidence to support a determination that she could not return to full-time work as a flight attendant, this alone is insufficient to establish that she was incapable of earning wages at any job.\nMs. Perkins alternatively argues that because she contacted U.S. Airways about a light duty position and they did not offer her one, the Commission erred by not concluding she was disabled under the second option, i.e., that she is capable of some work but had been unable to obtain employment after a reasonable effort. Ms. Perkins cites to no authority \u2014 and we know of none \u2014 that would have required U.S. Airways to offer Ms. Perkins such a position. The record contains no indication that Ms. Perkins made any other attempts to obtain employment. The Commission was free to decide, as it did, that Ms. Perkins\u2019 single contact with U.S. Airways was insufficient to establish she had made a reasonable effort to obtain employment under the second Russell option.\nWe, therefore, conclude that the record contains evidence to support the Commission\u2019s determination that \u201c[a]s of July 1, 2001, plaintiff was capable of returning to full-duty work without restrictions\u201d and that \u201cplaintiff failed in her burden of proving that, after that date, she remained disabled as a result of the compensable injury of May 10, 2000.\u201d These determinations in turn support the Commission\u2019s conclusion that plaintiff is not entitled to compensation under N.C. Gen. Stat. \u00a7\u00a7 97-29 or 97-30 (2005) after 12 September 2001, the date upon which the Form 24 was approved.\nMs. Perkins, however, contends alternatively that the Commission erred by failing to specifically address whether she was entitled to compensation under N.C. Gen. Stat. \u00a7 97-31. \u201cIt is well established that the full Commission has the duty and responsibility to decide all matters in controversy between the parties, and, if necessary, the full Commission must resolve matters in controversy even if those matters were not addressed by the deputy commissioner.\u201d Payne v. Charlotte Heating & Air Conditioning, 172 N.C. App. 496, 501, 616 S.E.2d 356, 360 (2005) (internal quotation marks omitted).\nThe Commission found that \u201cDr. Elkins concluded that plaintiff was suffering from a probable lightning strike injury and right upper extremity myofascial pain syndrome which he felt were related to her compensable injury, and mild degenerative changes of the neck and back which he did not feel were related.\u201d The Commission did not, however, address Dr. Elkins\u2019 opinion that Ms. Perkins had a 10% permanent partial disability rating to the right upper extremity. Further, the Commission\u2019s opinion and award contains no explanation why it did not believe Ms. Perkins to be entitled to compensation for permanent partial disability benefits based on that rating. Nor do defendants address this issue on appeal. Accordingly, we remand to the Commission for a determination whether Ms. Perkins is entitled to compensation under N.C. Gen. Stat. \u00a7 97-31.\nAffirmed in part and remanded in part.\nJudges HUNTER and McCULLOUGH concur.\n. Ms. Perkins also received treatment from other practitioners whose findings are not necessary to recite for resolution of this appeal.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Bazzle & Carr, P.A., by Ervin W. Bazzle, for plaintiff-appellant.", "Brooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr. and Kimberley A. D Arruda, for defendants-appellees." ], "corrections": "", "head_matter": "JENNIFER PERKINS, Employee, Plaintiff v. U.S. AIRWAYS, Employer, RELIANCE NATIONAL INSURANCE COMPANY, Insolvent, NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, SEDGWICK CMS, Third Party Administrator, Carrier, Defendants\nNo. COA05-392\n(Filed 18 April 2006)\n1. Workers\u2019 Compensation\u2014 weight and credibility of medical testimony \u2014 sole purview of Commission\nArguments from a workers\u2019 compensation plaintiff about the weight and credibility of medical testimony did not justify overturning the Industrial Commission\u2019s denial of benefits. The Commission is entitled to give greater weight to the testimony of some doctors over others, and, as questions of weight and credibility are solely within the purview of the Commission to decide, the appellate court may not revisit those determinations.\n2. Workers\u2019 Compensation\u2014 ex parte contact \u2014 failure to object \u2014 waiver\nThe failure to object in a workers\u2019 compensation case to an alleged ex parte contact between a doctor and the defendants resulted in the issue not being preserved for appeal.\n3. Workers\u2019 Compensation\u2014 findings \u2014 not required on every point \u2014 reasonable inferences of Commission not revisited\nAlthough a workers\u2019 compensation plaintiff argued that the record supported additional findings, the Industrial Commission is not required to make findings on a particular point merely because plaintiff has presented evidence on that subject, so long as the findings are sufficient to address the issues and the evidence before it. Also, the Court of Appeals may not revisit the Commission\u2019s reasonable inferences.\n4. Workers\u2019 Compensation\u2014 lightning strike \u2014 denial of compensation \u2014 contrary testimony from one of several doctors\nThe testimony of one of the doctors in a workers\u2019 compensation case did not justify overturning the Industrial Commission\u2019s findings and conclusions denying compensation to a flight attendant who suffered a lightning strike injury. The testimony of other doctors supported the findings and conclusions.\n5. Workers\u2019 Compensation\u2014 disability \u2014 capacity to return to work \u2014 evidence sufficient\nThe record in a workers\u2019 compensation proceeding contains evidence supporting the Commission\u2019s determination that the plaintiff was capable of returning to work and that she had failed to carry her burden of showing that she remained disabled.\n6. Workers\u2019 Compensation\u2014 partial disability \u2014 evidence presented \u2014 not addressed\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to address whether plaintiff was entitled to partial disability benefits where there was medical testimony of a 10% partial disability rating. The case was remanded.\nAppeal by plaintiff from an opinion and award filed 21 December 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 November 2005.\nBazzle & Carr, P.A., by Ervin W. Bazzle, for plaintiff-appellant.\nBrooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr. and Kimberley A. D Arruda, for defendants-appellees." }, "file_name": "0205-01", "first_page_order": 239, "last_page_order": 249 }