{ "id": 8373533, "name": "ROBBIE A. CASH, Employee, Plaintiff-Appellee v. LINCARE HOLDINGS, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants", "name_abbreviation": "Cash v. Lincare Holdings", "decision_date": "2007-01-02", "docket_number": "No. COA06-77", "first_page": "259", "last_page": "268", "citations": [ { "type": "official", "cite": "181 N.C. App. 259" } ], "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": "632 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636322 ], "year": 2006, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0525-01" ] }, { "cite": "625 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635079 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "794", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0790-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274", "parenthetical": "\"The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\"" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434", "parenthetical": "\"The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "523 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239226 ], "year": 1999, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0255-01" ] }, { "cite": "472 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798785, 798887, 798824, 798831, 798934 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0513-02", "/nc/343/0513-05", "/nc/343/0513-04", "/nc/343/0513-01", "/nc/343/0513-03" ] }, { "cite": "468 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "286" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915971 ], "year": 1996, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0124-01" ] }, { "cite": "264 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "61", "parenthetical": "emphasis omitted" }, { "page": "64" }, { "page": "64" } ], "opinion_index": 0 }, { "cite": "299 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575647 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "588", "parenthetical": "emphasis omitted" }, { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0582-01" ] }, { "cite": "178 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8379757 ], "year": 2006, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0698-01" ] }, { "cite": "457 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "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": "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": "415 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. 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Stat.", "year": 2005, "pin_cites": [ { "page": "(19)" } ], "opinion_index": 0 }, { "cite": "421 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "602-03" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 758", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527987 ], "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0758-01" ] }, { "cite": "176 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300854 ], "year": 2006, "pin_cites": [ { "page": "129", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0123-01" ] }, { "cite": "564 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "247", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080608 ], "year": 2002, "pin_cites": [ { "page": "199", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0197-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "opinion_index": 0 } ], "analysis": { "cardinality": 927, "char_count": 22884, "ocr_confidence": 0.757, "pagerank": { "raw": 1.7346944000783012e-07, "percentile": 0.7061091206475745 }, "sha256": "b7ff7dd65210e82e42ee750b0405e32802242e7786c05faeec1459bfab7ba338", "simhash": "1:89bcccc2043f7250", "word_count": 3549 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McCULLOUGH concur." ], "parties": [ "ROBBIE A. CASH, Employee, Plaintiff-Appellee v. LINCARE HOLDINGS, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants" ], "opinions": [ { "text": "McGEE, Judge.\nDefendants appeal from an opinion and award of the North Carolina Industrial Commission (the Commission) filed 8 September 2005, affirming a Deputy Commissioner\u2019s decision awarding Plaintiff medical treatment pursuant to N.C. Gen. Stat. \u00a7 97-25. Plaintiff also filed a motion to dismiss this appeal as interlocutory.\nI. Facts\nRobbie A. Cash (Plaintiff) was injured in a motor vehicle collision on 8 October 2001, while Plaintiff was employed as a respiratory therapist for Defendant Lineare Holdings, Inc. (Lineare). Plaintiff was taken to the emergency room at Duke University Medical Center and was admitted for three days. The emergency room report stated that Plaintiff \u201ccomplained of pain to the belly and to the neck and back.\u201d Plaintiff also had difficulty urinating. Lineare admitted compensability by filing a Form 60 on 11 February 2002 and began paying Plaintiff\u2019s medical expenses and weekly wage compensation.\nAfter the 8 October 2001 accident, Plaintiff sought follow-up care with Dr. Robert Wilson (Dr. Wilson) and Dr. Thomas Dimmig (Dr. Dimmig), with Triangle Orthopaedics, for his spine and neck injuries, and with Dr. Robert Andrews (Dr. Andrews) for his urination dysfunction. After medication failed to correct Plaintiffs urination problem, Dr. Andrews opined that Plaintiffs \u201cvoiding problems [were] secondary to his primary spine injury and treatment of the primary spine injury should not be delayed.\u201d Plaintiff returned for a follow-up appointment on 20 March 2002 and Dr. Andrews reiterated that \u201cultimate improvement will require identification and treatment of his underlying spinal pathology.\u201d After Plaintiffs initial appointment with Dr. Dimmig, Lineare arranged for Plaintiff to be treated by Dr. Scott Sanitate (Dr. Sanitate) of the Carolina Back Institute.\nPlaintiff saw Dr. Sanitate on 13 December 2001 and reported numbness in his upper and lower extremities, incontinence, difficulty swallowing, and cervical and lumbar pain. Plaintiff reported he felt most of his discomfort on his left side. Plaintiff saw Dr. Sanitate again on 17 January 2002. Despite Plaintiffs reluctance, Dr. Sanitate released Plaintiff to return to work, with no lifting greater than twenty-five pounds. Plaintiff moved for a Change of Treating Physician to return to the care of Triangle Orthopaedics, which was granted by the Industrial Commission.\nDr. Dimmig assumed Plaintiffs care once again, and performed lumbar decompression and fusion surgery on Plaintiffs back on 26 March 2002. As a result of the surgery, Plaintiff reported improvement in his back pain and in his ability to urinate, though he continued to complain of significant pain in his neck, left shoulder, and in his left knee.\nAfter the 8 October 2001 accident, Plaintiff also developed difficulty swallowing liquids. The physician treating Plaintiff for this problem referred Plaintiff to a neurologist, and Plaintiff began seeing Dr. Jeffrey Siegel (Dr. Siegel). Plaintiff reported daily headaches, muscle spasms, and continued swallowing problems. Plaintiff continued seeing both Dr. Dimmig and Dr. Siegel.\nDr. Dimmig performed an additional surgery on Plaintiffs neck on 16 July 2002. After the surgery, Plaintiff developed numbness around his neck, hands, and right leg, and weakness in his left arm. He continued to experience difficulty swallowing. Plaintiff returned for a follow-up visit with Dr. Dimmig and complained of increased right leg pain. Dr. Dimmig ordered an MRI. Plaintiffs MRI was \u201csatisfactory\u201d and on 20 December 2002, Dr. Dimmig concluded that \u201cother interventional treatment [was not] necessary.\u201d On 17 January 2003, Dr. Dimmig stated that Plaintiff \u201c[was] reaching maximum medical improvement\u201d and Dr. Dimmig would consider discharging Plaintiff with permanent restrictions when Plaintiff returned for his next follow-up in approximately one month. After ordering a functional capacity evaluation, Dr. Dimmig concluded that Plaintiff required sedentary-type work and was unable to work a four-hour or eight-hour day. At Plaintiffs 11 April 2003 visit, Dr. Dimmig found Plaintiff to be at maximum medical improvement, concluded that Plaintiff could work a four-hour to eight-hour work day in a sedentary-type job, and discharged Plaintiff.\nPlaintiff continued seeing Dr. Siegel for neurological care, and in a follow-up note dated 6 March 2003, Dr. Siegel indicated that Plaintiff was upset at being \u201cabruptly released\u201d from care by Dr. Dimmig. Dr. Siegel suggested that Plaintiff seek additional orthopedic care with another orthopedic surgeon. Dr. Siegel noted on 11 April 2003 that Plaintiff would be at maximum medical improvement neurologically \u201cvery shortly\u201d but that Plaintiff \u201cwas not yet there.\u201d After reviewing the results of Plaintiff\u2019s functional capacity evaluation, Dr. Siegel felt that Plaintiff was totally disabled and unable to work even four hours at a time. Dr. Siegel noted on 9 May 2003 that Plaintiff thought he needed a second opinion for ongoing left knee and left arm pain since he had been discharged from Dr. Dimmig\u2019s care, and Dr. Siegel agreed. Dr. Siegel concluded that Plaintiff was at maximum medical improvement with the exception of Plaintiffs orthopedic problems.\nPlaintiff filed a motion to compel Lincare\u2019s insurance carrier, Travelers Insurance Company (Travelers), to authorize the medical treatment recommended by Dr. Siegel on 2 June 2003. Plaintiff saw Dr. Siegel again on 23 June 2003 and 25 July 2003, and complained of being \u201cjerked . . . around\u201d by Travelers. Dr. Siegel recommended, inter alia, psychological or psychiatric care for Plaintiff for increased depression and anxiety, follow-up orthopedic care, and follow-up neurological care, which Travelers refused to authorize. By letter, Travelers instructed Dr. Siegel to restrict his care to treatment of Plaintiffs swallowing dysfunction and headaches, and not to treat any psychiatric conditions or back problems.\nWhile Plaintiff was waiting for the Commission to rule on his motion to compel, Plaintiffs five-year old son was involved in a bicycle accident. Plaintiff felt that as a result of his ongoing injuries, he was unable to assist his son and decided to \u201ctake [his] health into his own hands.\u201d Plaintiff sought treatment from Dr. Paul Suh (Dr. Suh), an orthopedic surgeon at the North Carolina Spine Center, on 15 July 2003. Dr. Suh referred Plaintiff to Dr. Andrew Jones (Dr. Jones) for Plaintiffs shoulder and knee problems. Dr. Suh treated Plaintiff for continued low back pain and started Plaintiff on physical therapy.\nIn an administrative order dated 21 July 2003, the Commission granted Plaintiffs motion to compel, and ordered Travelers to authorize and pay for Plaintiffs treatment as recommended by Dr. Siegel. Neither Lineare nor Travelers appealed this order. Under Dr. Suh\u2019s care, Plaintiff underwent a lumbar myelogram and CT scan on 12 September 2003, which revealed mild degenerative disc disease. Dr. Suh also stated that Plaintiff might benefit from removal of a \u201cpedicle screw\u201d to alleviate thigh pain. Dr. Jones gave Plaintiff a corticosteroid injection in his left shoulder and recommended knee surgery be performed by Dr. Clifford Wheeless (Dr. Wheeless). Dr. Wheeless operated on Plaintiffs left knee on 1 October 2003, and found several knee injuries, including a meniscus tear.\nPlaintiff filed a motion to compel payment for the treatment provided by Drs. Jones, Suh, and Wheeless on 4 September 2003. In an administrative order dated 22 September 2003, the Commission denied Plaintiffs motion, but \u201cnoted that [Defendants shall continue compliance with the medical order entered July 21, 2003.\u201d Dr. Siegel wrote prescriptions for Plaintiff to receive treatment by Drs. Jones, Suh, and Wheeless on 24 September 2003.\nTravelers ultimately approved Plaintiff to obtain a psychological evaluation as recommended by Dr. Siegel, and Plaintiff saw Dr. Robert Arne Newman (Dr. Newman). Dr. Newman stated that Plaintiff suffered from conversion disorder, which leaves affected individuals \u201cvulnerable to developing physical symptoms in response to stress\u201d and \u201can unrealistic interpretation of physical signs or symptoms[.]\u201d\nPlaintiff filed a motion to reconsider, which the Commission denied. Plaintiff appealed the administrative decision and a hearing on the appeal was held on 9 February 2004. In an opinion and award dated 30 November 2004, the Deputy Commissioner concluded that the treatment rendered by Drs. Jones, Suh, and Wheeless from 15 July 2003 to 24 September 2003 was emergency treatment reasonably necessary to give relief and effect a cure pursuant to N.C. Gen. Stat. \u00a7 97-25. The Deputy Commissioner also concluded that the treatment provided subsequent to 24 September 2003 was reasonably necessary to effect a cure or give relief for injuries proximately caused by the 8 October 2001 accident. Therefore, Defendants were ordered to pay for the referenced treatment. Defendants appealed to the Commission, which affirmed the opinion and award with minor modifications. The Commission also authorized Drs. Jones, Suh, and Wheeless as Plaintiff\u2019s treating physicians. Defendants appeal.\nII. Plaintiffs Motion to Dismiss as Interlocutory\nN.C. Gen. Stat. \u00a7 97-86 (2005) governs an appeal from an opinion and award of the Commission, and provides that any party to the dispute may \u201cappeal from the decision of [the] Commission to the Court of Appeals for errors of law under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions.\u201d \u201cParties have a right to appeal any final judgment of a superior court. Thus, an appeal of right arises only from a final order or decision of the Industrial Commission.\u201d Ratchford v. C.C. Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002) (citation omitted). Therefore, \u201c[a] decision of the Industrial Commission is interlocutory if it determines one but not all of the issues in a workers\u2019 compensation case. A decision that on its face contemplates further proceedings or . . . does not fully dispose of the pending stage of the litigation is interlocutory.\u201d Perry v. N.C. Dep\u2019t of Corr., 176 N.C. App. 123, 129, 625 S.E.2d 790, 794 (2006) (internal citations and quotation marks omitted). Even where a decision is interlocutory, however, immediate review of the issue is proper where the interlocutory decision affects a substantial right. Id. To qualify, the right affected must be substantial, and \u201cthe deprivation of that substantial right must potentially work injury if not corrected before appeal from a final judgment.\u201d Id.\nIn his motion to dismiss, Plaintiff argues that the appeal in the present case is interlocutory because \u201cother hearings or appeals for the same or similar medical payment issues are possible in the future[.]\u201d Thus, hearing the appeal will lead to the \u201cyo-yo procedure\u201d which \u201cworks to defeat the very purpose of the Workers\u2019 Compensation Act.\u201d Hardin v. Venture Construction Co., 107 N.C. App. 758, 761, 421 S.E.2d 601, 602-03 (1992). We disagree.\nThe opinion and award which is the subject of this appeal was filed following a full evidentiary hearing before a Deputy Commissioner, and was subsequently reviewed by the Commission. The award does not contemplate further proceedings, nor does it remand the matter to the Deputy Commissioner. Rather, the order resolves all issues surrounding the disputed medical treatment.\nN.C. Gen. Stat. \u00a7 97-25 (2005) mandates that \u201c[m]edical compensation shall be provided by the employer.\u201d The Workers\u2019 Compensation Act defines this term to include \u201cmedical, surgical, hospital, nursing, and rehabilitative services, and medicines, sick travel, and other treatment... as may reasonably be required to effect a cure or give relief[.]\u201d N.C. Gen. Stat. \u00a7 97-2(19) (2005). Our Supreme Court has noted that\nthe legislature always has provided for, and continues to provide for, two distinct components of an award under the Workers\u2019 Compensation Act: (1) payment for the cost of medical care, now denominated \u201cmedical compensation,\u201d which consists of payment of the employee\u2019s medical expenses incurred as a result of a job-related injury; and (2) general \u201ccompensation\u201d for financial loss other than medical expenses, which includes payment to compensate for an employee\u2019s lost earning capacity and payment of funeral expenses.\nHyler v. GTE Products Co., 333 N.C. 258, 267, 425 S.E.2d 698, 704 (1993). Thus, the Commission\u2019s determination that an employer must pay an injured employee medical compensation pursuant to N.C.G.S. \u00a7 97-25 is a separate determination from whether an employer owes compensation as a result of an employee\u2019s disability. Neither determination is a necessary prerequisite for the other. Therefore, the fact that the order Defendants appealed contains no determination of any wage compensation owed to Plaintiff does not render this appeal interlocutory.\nWe find further support for this conclusion in prior cases arising from disputes over payment of medical expenses under N.C.G.S. \u00a7 97-25. We are mindful that the language of N.C.G.S. \u00a7 97-25 has been amended since these cases were decided, but note that the amendments do not affect whether an appeal from an opinion and award under this section is interlocutory. In Bass v. Mecklenburg County, 258 N.C. 226, 235, 128 S.E.2d 570, 576 (1962), our Supreme Court stated\n[i]t is our opinion, and we so hold, that when the Commission approves claimant\u2019s such bills, defendant shall then have a right on appeal to challenge the action of the Commission in respect to the bills approved by it, in whole or in part, if it deems it advisable to do so.\nFurther, in Errante v. Cumberland County Solid Waste Management, 106 N.C. App. 114, 121-22, 415 S.E.2d 583, 588 (1992), this Court said\nwe note that in the case of a controversy arising between plaintiff and defendant relative to the continuance of medical treatment, the Industrial Commission is vested with the authority to order such further treatments as may in its discretion be necessary, N.C.G.S. \u00a7 97-25 (1991), and if the Commission approves a medical bill that in defendant\u2019s opinion is not compensable, then defendant at that time shall have a right and opportunity on appeal to challenge the Commission\u2019s decision.\nThus, we deny Plaintiffs motion to dismiss this appeal as interlocutory and review the merits of Defendants\u2019 appeal.\nIII. Defendants\u2019 Substantive Appeal\nOur review in a workers\u2019 compensation case is limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law. Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Where the Commission\u2019s findings are supported by competent evidence, those findings are conclusive even if there is evidence to support a contrary finding. Jones v. Candler Mobile Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995). We first note that although Defendants assign error to several of the Commission\u2019s findings of fact, Defendants do not support these assignments of error with arguments in their brief. We deem these assignments of error abandoned. N.C.R. App. P. 28(b)(6) (\u201cAssignments of error not set out in the appellant\u2019s brief . . . will be taken as abandoned.\u201d). As a result, the Commission\u2019s findings of fact are binding on this Court. Wooten v. Newcon Transp., Inc., 178 N.C. App. 698, 701, 632 S.E.2d 525, 528 (2006). Our review is limited to whether the Commission\u2019s findings of fact justify the following conclusions of law:\n1. The treatment received by [P]laintiff at North Carolina Spine Center prior to the Industrial Commission order of July 21, 2003, was reasonably necessary under the circumstances and constitutes an emergency as defined by N.C. Gen. Stat. \u00a7 97-25.\n2. The Industrial Commission Order of July 21, 2003, provided that [Defendants shall authorize and pay for [Pjlaintiffs treatment as recommended by Dr. Siegel. On September 24, 2003, Dr. Siegel recommended treatment for [P]laintiff with Dr. Jones, Dr. Suh, and Dr. Wheeless. On or after September 24, 2003, [Defendants had not provided any other orthopedic treatment or options to Plaintiff. Pursuant to Industrial Commission order July 21, 2003, treatment subsequent to September 24, 2003 provided by Dr. Jones, Dr. Suh, and Dr. Wheeless, as recommended by Dr. Siegel, should be paid for by [Defendants.\n3. The treatment provided to [P]laintiff, at North Carolina Spine Center from Dr. Jones and Dr. Suh, and the treatment provided by Dr. Wheeless for [P]laintiff\u2019s left knee was necessary to effect a cure and give relief. N.C. Gen. Stat. \u00a7 97-25.\nWe find the Commission\u2019s conclusions of law to be supported by' its findings of fact, and therefore affirm the Commission\u2019s opinion and award.\nDefendants challenge the Commission\u2019s conclusion that \u201cthe treatment received by Plaintiff at the North Carolina Spine Center prior to the Industrial Commission order of July 21, 2003, was reasonably necessary under the circumstances and constituted an emergency as defined by N.C. Gen. Stat. \u00a7 97-25.\u201d\nPursuant to N.C. Gen. Stat. \u00a7 97-25 (2005),\nIf in an emergency on account of the employer\u2019s failure to provide the medical or other care as herein specified a physician other than provided by the employers is called to treat the injured employee the reasonable cost of such service shall be paid by the employer, if so ordered by the Industrial Commission.\nOur courts have concluded an employee is justified \u201cin seeking another physician in an emergency where the employer\u2019s failure to provide medical services amounts merely to an inability to provide those services.\u201d Schofield v. Tea Co., 299 N.C. 582, 588, 264 S.E.2d 56, 61 (1980) (emphasis omitted). Further, \u201can injured employee has the right to procure, even in the absence of an emergency, a physician of his own choosing, subject to the approval of the Commission.\u201d Id. at 591, 264 S.E.2d at 64.\nAt the time that Plaintiff sought treatment at the North Carolina Spine Center, he had been discharged from Dr. Dimmig\u2019s care. Yet, Dr. Siegel recommended additional orthopedic evaluation, and Plaintiff still reported pain. When Defendants refused the care recommended by Dr. Siegel, Plaintiff moved the Commission for an order compelling Defendants to provide further care. Thus, Plaintiff sought authorization from the Commission prior to obtaining care on his own. Plaintiff did not seek care on his own until 15 July 2003, more than three months after being discharged by Dr. Dimmig, and after receiving no further orthopedic treatment, despite continued pain. Further, the Commission\u2019s findings as to the nature of the emergency were sufficient. The duration of the emergency is clear (the treatment provided by Drs. Jones, Suh, and Wheeless from 15 July 2003 to 24 September 2003) and the Commission concluded the care was \u201creasonably necessary under the circumstances.\u201d See Schofield, 299 N.C. at 594, 264 S.E.2d at 64.\nDefendants next challenge the Commission\u2019s conclusion that Defendants must pay for the medical treatment provided by Drs. Jones, Suh, and Wheeless subsequent to 24 September 2003 pursuant to the 21 July 2003 order. The Commission\u2019s 21 July 2003 order mandated that Defendants authorize and pay for the treatment recommended by Dr. Siegel. Dr. Siegel referred Plaintiff to Drs. Jones, Suh, and Wheeless on 24 September 2003. Pursuant to the 21 July 2003 order, Defendants were responsible for this treatment.\nFinally, Defendants argue that the Commission erred when it concluded that the treatment provided by Drs. Jones, Suh, and Wheeless was necessary to effect a cure and give relief. Defendants argue this additional treatment provided by Drs. Jones, Suh, and Wheeless was not related to the compensable injury, and therefore Defendants were not responsible for this treatment. We disagree.\nMedical treatment awarded pursuant to N.C. Gen. Stat. \u00a7 97-25 must be \u201cdirectly related to the original compensable injury.\u201d Pittman v. Thomas & Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286, disc. review denied, 343 N.C. 513, 472 S.E.2d 18 (1996). \u201cIf additional medical treatment is required, there arises a rebuttable presumption that the treatment is directly related to the original compensable injury and the employer has the burden of producing evidence showing the treatment is not directly related to the compensable injury.\u201d Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259, 523 S.E.2d 720, 723 (1999). Defendants argue that the testimony of Dr. Dimmig that Plaintiff had reached maximum medical orthopedic improvement, and Dr. Newman\u2019s diagnosis of conversion disorder show the treatment was not related to the compensable injury. Plaintiff points us to the opinion of Dr. Siegel, who traced Plaintiffs orthopedic problems to the 8 October 2001 accident. Defendants ask us to resolve a credibility issue, which is not our role. Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965) (\u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d).\nAffirmed.\nJudges WYNN and McCULLOUGH concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Michael E. Mauney; and Rigsbee & Cotter, P.A., by William J. Cotter, for Plaintiff-Appellee.", "Hedrick Eatman Gardner & Kincheloe, L.L.P., by Sharon E. Dent, for Defendants-Appellants." ], "corrections": "", "head_matter": "ROBBIE A. CASH, Employee, Plaintiff-Appellee v. LINCARE HOLDINGS, Employer, TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants\nNo. COA06-77\n(Filed 2 January 2007)\n1. Workers\u2019 Compensation\u2014 possibility of future medical treatment \u2014 appeal not interlocutory\nAn appeal from a workers\u2019 compensation case involving payment for medical treatment was not interlocutory even though defendant argued that other hearings on the same issue were possible in the future. The Commission\u2019s order resolved all issues surrounding the disputed treatment and did not contemplate further hearings. The fact that the order did not determine wage compensation did not render the appeal interlocutory; the determination of medical compensation is separate from the determination of disability compensation.\n2. Workers\u2019 Compensation\u2014 emergency treatment \u2014 com-pensable \u2014 binding findings supporting conclusions\nIndustrial Commission findings in a workers\u2019 compensation case were deemed binding where the assignments of error were not supported by arguments in the brief. The findings supported conclusions that the medical treatment received by plaintiff was reasonably necessary for an emergency, and that defendants must pay for treatment given at specific times. N.C.G.S. \u00a7 97-25.\nAppeal by Defendants from opinion and award entered 8 September 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 21 September 2006.\nMichael E. Mauney; and Rigsbee & Cotter, P.A., by William J. Cotter, for Plaintiff-Appellee.\nHedrick Eatman Gardner & Kincheloe, L.L.P., by Sharon E. Dent, for Defendants-Appellants." }, "file_name": "0259-01", "first_page_order": 291, "last_page_order": 300 }